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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

France: Bill Intended to Create New Status for Platform Economy Workers Defeated in Senate

(July 2, 2020) On June 4, 2020, a bill intended to create a separate employment status for workers in the gig economy was defeated in the French Senate. This bill, submitted to the Senate on September 11, 2019, aimed to fill a gap in French employment law.

As noted in the commission report drafted by one of the bill’s sponsors, French employment law distinguishes between employees and independent contractors, with the former enjoying substantial protections under the Code du travail (Labor Code), such as guaranteed remuneration, guaranteed periods of rest, the right to engage in collective bargaining, and the right to a social protection. These protections are premised on the idea that employees are in a situation of subordination to their employers, which makes them vulnerable.

Independent workers, by contrast, do not enjoy the same levels of protection on the premise that they are not in a situation of subordination. The rise of online platforms to facilitate new work relationships—the so-called “platform economy” or “gig economy”—has changed the premises upon which the traditional dichotomy between employees and independent workers were founded. According to the sponsors of the Senate bill, the independence of many workers of the gig economy is illusory, as they tend to find themselves in a situation of subordination to the platforms through which they work. The bill therefore sought to remedy this problem by creating a new type of labor contract that would provide most of the protections that salaried employees enjoy while preserving the workers’ autonomy.

The bill aimed to build upon a 2016 law that created a “principle of social responsibility” for platforms, which includes the requirement that they pay for the workers’ insurance against work-related accidents, pay for any professional training that they might require, and respect their workers’ rights to unionize and to go on strike. Judging these guarantees positive but insufficient, the bill proposed to create a new type of labor contract that would apply to the relationships between gig economy workers and the platforms through which they operate. Under the bill, much of the French Labor Code would have become applicable to these labor contracts, nevertheless with certain accommodations. For example, platform workers would be subject to maximum daily and weekly work hours, but would otherwise be free to choose their work schedules. The bill would also have introduced collective bargaining into the relationship between platforms and workers, with yearly negotiations between the platforms and workers’ representatives. Furthermore, gig workers would have access to unemployment insurance and to the general health insurance system. Additionally, the bill would have introduced a right of information and expression regarding the algorithms that determine certain essential aspects of the work relationship.

As per the usual legislative procedure, the bill was first discussed in a commission, and the commission voted against it. The bill was then discussed in a plenary session of the Senate, during which it was again voted down. The bill was supported neither by the government, nor by any of the Senate’s centrist and conservative majority. While all tended to agree that gig workers need more protections, some of the bill’s critics argued that despite a few accommodations for flexibility, it almost turned platform workers into salaried employees, against the preferences of many platform workers. The government and the senatorial majority also expressed opposition to the idea of creating a third category of workers whose status is midway between that of employees and of independent workers. Instead, as at least one senator argued, certain social benefits should be universalized to protect independent contractors as well as salaried employees.

The question of gig workers’ status is bound to return before the Sentate and the other chamber of the French Parliament, the National Assembly. In January 2020, the prime minister created a working group headed by Jean-Yves Frouin, a former judge of the Cour de cassation, France’s highest jurisdiction in civil matters. This working group, referred to as the “mission Frouin” (Frouin Mission), was initially set up to study platform workers’ unequal bargaining power against the online platforms through which they work, but its mission was broadened to include all other problems that these workers face, including working hours, remuneration, training, and social protections. The Frouin Mission’s work was initially scheduled to submit its final report in June 2020, but this date was pushed back to October due to the coronavirus pandemic. Parliamentary discussions on this topic are expected to occur after that.

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Italy: Constitutional Court Declares Revocation of Certain Criminal Offenders’ Driver’s Licenses Unconstitutional

(July 2, 2020) On May 29, 2020, the Italian Constitutional Court issued a decision declaring unconstitutional a provision of the New Highway Code that established the automatic revocation of certain criminal offenders’ driver’s licenses. (Decision No. 99 of May 27, 2020.)

Background of the Case

The regional administrative court (Tribunale Amministrativo Regionale, TAR) for Italy’s Marche region raised a constitutional legitimacy question regarding the power of a prefect (police chief) to revoke the driver’s license of a released convicted criminal still subject to anti-Mafia preventive measures because, according to article 120, paragraph 2 of Legislative Decree No. 235 of April 30, 1992 (New Highway Code), “The recipient of the revocation order cannot obtain a new driver’s license before at least three years have passed … ‘even if a judicial order declaring that the subject no longer poses any danger [to public safety] is issued’.”

The constitutional referral argued that the language of the challenged provision in the New Highway Code specified that the prefect automatically “provides” for the revocation of the license instead of “can provide” at the prefect’s discretion for the revocation of the license. The claim noted that the automatic nature of the revocation would impede the offender from carrying out lawful work activities during the whole period of the respective sentence, thus making the measure even more onerous than what the criminal judge had intended. (Considerations of fact § 1, para. 2.)

The constitutional referral claimed that the challenged provision violated articles 3, 4, 16, and 35 of the Italian Constitution (English translation), which guarantee, in general, equality before the law and due process, the right to work and its protection through international agreements, freedom to reside anywhere in the country and to leave and reenter the national territory, and the right to emigrate from Italy. (Considerations of fact § 1, para. 1.)

Reasoning of the Court

The court reasoned that its previous case law had deemed the automatic revocation of the driver’s license by the prefect as contrary to the principles of equality, proportionality, and reasonableness. (Considerations of law § 4.3, para. 2.) The court highlighted the arbitrariness of the provision in that other criminal provisions establish the measure of revocation against offenders who have been convicted or suspected of criminal offenses of different levels of severity, ranging from crimes of high social alarm (such as terrorism and Mafia-type associations) to crimes of less intense social danger, including those criminals who habitually live, even partially, off the proceeds of criminal activities. (Considerations of law § 5, para. 3.) The challenged provision, instead, applied the automatic revocation to much less serious crimes and prevented the affected individuals from finding substantive gainful employment. (Considerations of law § 5, para. 5.)

Holding of the Court 

The court concluded that the application of the same penalty to conduct that is meaningfully different in its gravity and dangerousness is inherently unreasonable and violates essential principles of the Italian Constitution. (Considerations of law § 5, para. 7.) Accordingly, the court declared the constitutional illegitimacy of article 120, paragraph 2, of Legislative Decree No. 285 of April 30, 1992 (New Highway Code) because it establishes that the prefect must revoke the driver’s license of criminal offenders who are or have been subject to anti-Mafia preventative measures. (Holding, para. 1.)

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International: World Intellectual Property Organization Announces Service Providing Evidence of Intellectual Assets’ Authorship

(July 1, 2020) On May 27, 2020, the World Intellectual Property Organization (WIPO) announced a new service called WIPO PROOF, which reportedly provides evidence of the existence of digital files in any format at a point in time in order to document their authorship.

According to WIPO, because creative activities are increasingly digital, global, and collaborative, they generate a wide array of data files containing valuable content throughout the production process. This content is produced in a wide variety of intellectual property projects, including trade secrets, scripts, musical scores, research results, data sets, and artificial intelligence algorithms.

To prevent their misappropriation, it is helpful for these outputs to be documented at every step of development, regardless of whether they eventually become formal intellectual property rights.

PROOF aims at helping creators take verifiable steps to safeguard these outputs of their work by generating tamper-proof evidence proving that a digital file was created at a specific point in time and hasn’t been altered since then. PROOF’s fee-based technology creates a token (i.e., a date- and time-stamped digital fingerprint of a file or data) that can be used as evidence in a legal dispute to establish prior existence, thus helping prevent misuse and misappropriation.

The benefits of using PROOF’s applications for intellectual property projects include the following:

  • The use of the applications in trade secret strategies to certify the existence of a file or data at a specific point in time concretely demonstrates that the file or data has value and steps have been taken to protect it.
  • The ability to prove the existence of creative works at the time of creation is fundamental to protecting them from potential misappropriation or infringement.
  • The employment of PROOF to manage valuable data sets, such as scientific research data or data for training AI models, is useful in that the existence and possession of each iteration of a data set can be formally documented in a matter of seconds.

Anyone can have access to PROOF’s secure website to obtain a token for a particular digital file through a one-way algorithm that interacts with the requester’s browser to generate a unique digital fingerprint of the file. Afterwards, third parties can verify such tokens on PROOF’s website, which provides evidence in the event of disputes and litigation over the existence of a digital file and its intellectual property rights.

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Germany: Berlin Adopts Antidiscrimination Act

(June 30, 2020) On June 21, 2020, a new antidiscrimination act entered into force in the city-state of Berlin, Germany. The act, entitled the State Antidiscrimination Act, prohibits Berlin public authorities, including police and public schools and universities, from engaging in discrimination on the grounds of gender, ethnic origin, racial association, religion or belief, disability, chronic illness, age, language, sexual or gender identity, or social status. Furthermore, it includes measures to promote an appreciation for diversity. The act complements the German Federal General Act on Equal Treatment, which applies to all areas of employment and mass market transactions in the private sector.

Content of the Law

Types of Discrimination

The act prohibits five different types of discrimination: direct discrimination, indirect discrimination, general harassment, sexual harassment, and an order to discriminate against another person, meaning an order to engage in behavior that would result in  discrimination prohibited under the act. (§ 4.) Measures that are objectively justified or intend to compensate for disadvantages of structurally disadvantaged people are not covered by the prohibition. (§ 5.) In addition, the Antidiscrimination Act prohibits retaliatory measures against persons who exercise their rights under the act or persons who refuse to carry out an order that would perpetrate illegal discrimination against someone. (§ 6.)

Burden of Proof and Legal Recourse

The act provides that once a person has established facts from which it may be presumed that discrimination has taken place, it is up to the public authority to prove the contrary. (§ 7.) The public authority who supervises the person who has committed the discriminating act must pay damages to the person who has been discriminated against. In cases of nonpecuniary damages, the discriminated person may demand adequate financial compensation. (§ 8.) Legal recourse may be sought in civil court. (§ 8, para. 5.) The statute of limitations runs for one year from the end of the year in which the claim arose and the claimant knew or should have known, without gross negligence, of the circumstances giving rise to the claim and of the person who committed the discrimination. (§ 8, para. 4.)

Right of Associations to Initiate Proceedings

Certified antidiscrimination associations may demand a declaratory judgment that certain administrative acts, general orders, or other administrative actions generally discriminate without having to prove an infringement of their individual rights. Associations must complain to the public authority before initiating court proceedings. (§ 9.) In addition, such associations may sue on behalf of individuals who have been discriminated against if the individual agrees. (§ 10.)

Ombudsman

An independent ombudsman is created within the antidiscrimination unit of the Senate Administration of the City of Berlin. The ombudsman is to work together with the appropriate public authorities and support discriminated individuals with information and advice. Furthermore, he or she should encourage amicable settlement of disputes. The ombudsman may consult with experts, request reports, refer complaints, and make recommendations. Berlin public authorities must work together with the ombudsman, in particular by providing the requested information or statements, and generally allow access to files. All information provided to the ombudsman must be kept confidential. (§ 15.)

Promotion of Diversity

All public authorities in Berlin are required to consider the prevention of discrimination and the promotion of diversity as guiding principles for their work. Training on diversity competency, including its antidiscriminatory origins, must be offered and completed by all public employees. (§ 12.) In addition, Berlin’s executive body, the Senate of Berlin, must pass statewide measures to promote diversity in the administration and report on their implementation to the Berlin Parliament at least every five years. (§ 13.)

Reactions

The act has been severely criticized and dubbed an “Anti-police Act.” Opponents contend that it will negatively impact the ability of the police to do their work. In particular, police officers fear that they will be subjected to unjustified discrimination accusations when investigating drug crimes and gang violence. This fear stems from the fact that claimants must only establish facts from which it may be presumed that discrimination has taken place, after which it is up to the public authority to prove the contrary. Critics see this as a reversal of the burden of proof. Several German states, as well as the federal minister of the interior, fear disadvantages for their police officers, in particular additional administrative burdens, and have therefore announced that they will no longer send police to Berlin to support the local police force. In response, Berlin has emphasized that the new Antidiscrimination Act applies only to Berlin public authorities and will not be applied to out-of-state police.

Proponents, on the other hand, have stated that the law’s passage is an important acknowledgment that institutional racism and discrimination exist.

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Italy: Constitutional Court Declares Criminal Code Provision on Child Abduction Unconstitutional

(June 30, 2020) On May 29, 2020, the Italian Constitutional Court issued a decision declaring the unconstitutionality of a Criminal Code provision on the suspension of parental authority in cases of child abduction and child maintenance overseas. (Decision No. 102 of May 29, 2020.)

Background of the Case

At the request of the Supreme Court of Cassation’s Sixth Criminal Chamber, the Italian Constitutional Court reviewed the constitutionality of article 34 and article 574-bis of the Criminal Code on the basis that they violated the United Nations Convention on the Rights of the Child of 1989 (implemented in Italy through Law No. 176 of May 27, 1991) and articles 2; 3; 10; 27, paragraph 3; 30; and 31 of the Italian Constitution (English translation) in requiring the automatic suspension of the kidnapping parent’s parental authority over the child. (Decision, considerations of fact § 1, para. 1.)

On April 30, 2016, the Tribunal of Grosseto sentenced a woman to prison for two years and one month for failing on several occasions to comply with an order of the juvenile court of Florence regarding the shared custody of her two minor children and for kidnapping the children and bringing them to Austria against the will of the father. In addition to the prison sentence, the tribunal suspended the mother’s parental authority over the children. On April 6, 2018, the Florence Court of Appeal rejected the defendant’s appeal and, affirming the decision of first instance, increased her prison sentence to two years and six months. (Considerations of fact § 1.1.)

Reasoning of the Court

The Constitutional Court reviewed the case in light of article 3.1 of the Convention on the Rights of the Child, which states that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” (Considerations of fact § 1.3, para. 6.) In addition, article 8 of the convention consecrates the duty of the state to respect the right of the child to preserve his or her identity, including nationality, name, and family relations as recognized by law without unlawful interference, and the principles that all decisions concerning a child must be adopted on the basis of the child’s best interests and protection. (Considerations of fact § 1.3, para. 2.) Further, article 9, paragraph 3 indicates that “States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.” (Considerations of law § 4.2, para. 2.)

The court noted that the general rules on cessation of parental authority established in the Civil Code are applied by a specialized judge—that is, the judge of the juvenile court who reviews all of the specific circumstances of a case. Under the challenged provision, the suspension of parental authority resulting from parental kidnapping operates automatically, thereby impeding the judge from evaluating the specific circumstances of the case, in particular whether the best interests of the child have been observed. (Considerations of fact § 1.3, para. 3.) In this context, the court sustained that the conduct punished by article 574-bis of the Criminal Code “would cause a prejudice to the moral and material interests of the minor.” (Considerations of fact § 2.2, para. 2.)

In addition, the court went on to state that the automatic application of the penalty violates the principle of proportionality of the penalty established in article 3 and article 27, paragraph 3 of the Constitution; would be excessive when the offender was motivated by the purpose of protecting the child from harm that could be caused by the other parent; and would not have any re-educational value. (Considerations of law § 1, para. 3.) Article 30 of the Constitution, in turn, as highlighted by the court, guarantees “the right of the child to have a direct and personal relationship with both parents, except when a concrete harm results to his/her interests. (Considerations of law § 4.2, para. 3.)

The court also pointed out the arbitrariness of article 574-bis of the Criminal Code in that this provision imposes the automatic suspension of parental authority when the kidnapping parent has committed the crime of “harming the minor” without establishing the duration of such suspension (considerations of fact § 1, para. 1), whereas article 34 of the Criminal Code establishes that the duration of the accessory penalty cannot be twice the duration of the principal penalty imposed on the offender (considerations of law § 2.1, para. 1; § 2.2, para. 2).

The court then concluded that an automatic and necessary suspension of parental authority is not optimal for the best interests of the child inasmuch as the penalty may affect a person other than the guilty party, usually the minor children. (Considerations of law § 5.2, para. 3; § 5.3.) Finally, the court maintained that the unreasonableness of the automatic penalty is aggravated by the fact that the suspension of parental authority is implemented only after the final conviction of the parent, which often takes place years after the offense. (Considerations of law § 5.3.3., para. 1.)

Holding of the Court 

The Constitutional Court declared the unconstitutionality of article 574-bis, third paragraph, of the Criminal Code because, contrary to the best interests of the child, it provides for the automatic suspension of the exercise of parental authority of a parent convicted of abducting and maintaining a child abroad rather than allowing the judge to order the suspension. (Holding, para. 1.)

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