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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.

United Kingdom: Viagra Made Available as Over-the-Counter Medication

(Dec. 12, 2017) The Medicines and Healthcare Products Regulatory Agency (MHRA), an executive agency of the United Kingdom’s Department of Health responsible for regulating medicines, medical devices, and blood transfusion components, recently assessed whether Viagra Connect should become available as an over-the-counter medicine. At the end of November 2017, the results of the assessment were considered, and the MHRA issued a press release announcing that Viagra Connect (sildenafil 50mg) will be reclassified from a prescription-only medication to one that is available over the counter at pharmacies. This means that the drug may be obtained without a prescription from a doctor by men over 18 years of age who have erectile dysfunction. (Medicines & Healthcare Products Regulatory Agency, Public Assessment Report – Prescription Only Medicine to Pharmacy Medicine Reclassification: Viagra Connect 50mg Film-Coated Tablets, Sildenafil Citrate (PL 00165/0392 – 0001, 2017), MHRA website; Press Release, Medicines and Healthcare Products Regulatory Agency, MHRA Reclassifies Viagra Connect Tablets to a Pharmacy Medicine (Nov. 28, 2017), GOV.UK.)

Since 2006, pharmacists who have taken an additional accredited course and had their entry in the Register of Pharmaceutical Chemists at the Royal Pharmaceutical Society of Great Britain annotated have been able to provide certain medications over the counter that previously were available only with a prescription from a doctor. (The Medicines for Human Use (Prescribing) (Miscellaneous Amendments) Order 2006, SI 2006/915, LEGISLATION.GOV.UK.)

The rationale behind removing the need for a doctor’s appointment to get a prescription for Viagra Connect was to make the medication more easily available to men who may be reluctant to see a doctor about erectile dysfunction and to help reduce the number of individuals purchasing this drug from unregulated online pharmacies, where counterfeit versions of the medication have often been sold. (Buying Fake Viagra Online ‘Russian Roulette,’  BBC News (video report, Sept. 25, 2017).) The MHRA determined that individuals who suffer from a variety of ailments that Viagra Connect could exacerbate, such as cardiovascular disorders, liver failure, or severe kidney failure, or those taking medications that could result in an adverse interaction need to continue to see a doctor in order to obtain Viagra Connect. (Michelle Roberts, Viagra Can Be Sold Over the Counter, BBC News (Nov. 28, 2017).)

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Austria: Same-Sex Couples Allowed to Get Married Starting January 2019

(Dec. 12, 2017) On December 4, 2017, the Austrian Constitutional Court (Verfassungsgerichtshof Österreich, VfGH) struck down the provisions of the Civil Code and the Registered Partnership Act that restrict marriage to persons of different sexes and registered partnerships to persons of the same sex, respectively.  The Court held that the provisions violate the prohibition of discrimination in the equality clause of the Federal Constitutional Law. The annulment of the provisions takes effect on December 31, 2018. The remaining provisions of the Registered Partnership Act will remain in force.  Starting January 1, 2019, same-sex couples and different-sex couples will have the option to choose between a marriage and a registered partnership. (VfGH, Dec. 4, 2017, Docket No. G 258-259/2017-9 (VfGH G 258-259/2017-9), VfGH website (in German); Allgemeines bürgerliches Gesetzbuch für die gesammten deutschen Erbländer der Oesterreichischen Monarchie [ABGB] [Civil Code], JUSTIZGESETZSAMMLUNG [JGS] No. 946/1811, as amended, § 44, Rechtsinformationssystem (RIS) [Legal Information System]; Eingetragene Partnerschaft-Gesetz – EPG) [Federal Act on Registered Partnership (Registered Partnership Act – RPA)], BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I No. 135/2009, § 2, RIS.)

The VfGH held that even though there are no substantial differences between the two legal institutions of marriage and registered partnership in Austria, the fact that two different legal institutions with different names exist constitutes discrimination. (VfGH G 258-259/2017-9, at 11 & 15.) It stated that even though both legal institutions recognize “permanent unions between two equal persons to provide mutual support and consideration,” they are treated unequally. Having two different legal institutions signifies to the public that same-sex relationships are different from different-sex relationships. (Id. at 10 & 16 (translation by author).) Having a different name for the marital status discriminates against same-sex couples by forcing them to reveal their sexual orientation even in situations in which sexual orientation is irrelevant, thereby aggravating the historical discrimination against same-sex couples. (Id.)

Background

The VfGH’s examination of the provisions of the Civil Code and the Registered Partnership Act resulted from a marriage application of a same-sex couple that had been denied by the city of Vienna and the Administrative Court of Vienna. The city and the Court denied the request on the grounds that section 44 of the Civil Code restricts marriage to persons of different sexes. The couple filed a complaint with the Constitutional Court alleging a violation of their right to marry and their rights to equal treatment and nondiscrimination on the grounds of gender and sexual orientation, as guaranteed by the European Convention on Human Rights, the Federal Constitutional Law, and the Basic Law on the General Rights of Nationals; they also alleged a general violation of their rights by the application of an unconstitutional law. (Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), arts. 8, 12, & 14, Nov. 4, 1950, 213 U.N.T.S. 221, European Court of Human Rights website; Bundes-Verfassungsgesetz – B-VG [Federal Constitutional Law], BGBl. No. 1/1930, as amended, art. 7, RIS; Staatsgrundgesetz – StGG [Basic Law on the General Rights of Nationals], REICHSGESETZBLATT [RGBl.] [IMPERIAL LAW GAZETTE] No. 142/1867, art. 2, RIS.)

The VfGH decided to examine the constitutionality of the provisions of the Civil Code and the Registered Partnership Act on its own initiative (ex officio), because it would have had to apply the two laws in connection with addressing the pending complaint by the same-sex couple. (Federal Constitutional Law, art. 140; VfGH, Prüfungsbeschluss [Examination Order], Oct. 12, 2017, Docket No. E 230-231/2016-27, VfGH website.) (See also Jenny Gesley, Austria/European Court of Human Rights: No Discrimination If Heterosexual Couple Is Denied Access to Registered Partnership, GLOBAL LEGAL MONITOR (Nov. 16, 2017).)

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United Kingdom: $20 Million in Tampon Tax to Be Distributed to Women’s Charities

(Dec. 12, 2017) In the United Kingdom, there has been a long-running campaign to remove value-added tax (VAT) from women’s sanitary products. Since January 1, 2001, the VAT rate charged for sanitary products has been 5%, a 15% discount on the current 20% rate of VAT in the UK and the lowest rate currently permitted by European Union VAT laws. In 2015, the government stated that it would request a change in EU law to allow the zero rating of sanitary products and, working with EU officials, secured from the EU Commission agreement on the possibility of a zero rating for sanitary products. In the meantime, some larger supermarkets have stepped in to cover the cost of VAT on sanitary products by cutting the price of the products by 5%. (HM Revenue & Customs, Notice, VAT Notice 701/18: Women’s Sanitary Protection Products, GOV.UK (July 4, 2011); HM Revenue & Customs, Policy Paper, VAT: Zero-Rating of Women’s Sanitary Products, GOV.UK (Mar. 24, 2016); Timothy Wyatt, Tesco Covers Tampon Tax for Customers by Cutting Prices, Guardian (London) (July 28, 2017); 607 Parl. Deb. (5th ser.) HC (2016) 1246, HANSARD ONLINE.)

While the UK has been unable to lower the VAT, in 2015 the Chancellor of the Exchequer announced the government would set up a system, known as the Tampon Tax Fund, to use the VAT collected on women’s sanitary products to provide grants to women’s health and support charities. As of March 2016, the government had distributed £17 million (about US$22.75 million) from this fund to women’s charities across the country. The government recently announced that it was accepting applications for funding from the £15 million (about US$20 million) Tampon Tax Fund. This money may be spent over a one- or two-year period, but all services must be delivered and funding used by March 2020. (Press Release, Department for Digital, Culture, Media and Sport & Tracy Couch MP, £15m of New Tampon Tax Funding for Women’s Charities (Dec. 5, 2017), GOV.UK; 602 Parl. Deb. HC (5th ser.) (2015) 1368, PARLIAMENT.UK; Deal Reached to Scrap ‘Tampon Tax,’ Officials Say, BBC News (Mar. 17, 2016); House of Commons Library, VAT on Sanitary Protection, Briefing Paper No. 01128 (Mar. 22, 2017.)

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Italy: New Legislation on International Judicial Cooperation in Effect

(Dec. 6, 2017) On October 31, 2017, comprehensive new legislation on extradition and other forms of international judicial cooperation entered into effect in Italy. (Legislative Decree No. 149 of October 3, 2017, Provisions Amending Book XI of the Code of Criminal Procedure on Jurisdictional Relations with Foreign Authorities (L.D. No. 149), GAZZETTA UFFICIALE (Oct. 16, 2017), NORMATTIVA (in Italian).) L.D. No. 149 amends not only the Italian Code of Criminal Procedure (C.P.C.) provisions on extradition, but also those concerning requests for international judicial assistance, the legal effect of foreign criminal decisions, the execution of Italian criminal decisions overseas, and other matters related to cooperation with foreign criminal authorities. (L.D. No. 149, art. 1.1.)

The Decree provides that Italy’s judicial assistance relations with Member States of the European Union are governed by EU law (including EU implementing legislation), general international conventions, and applicable general international law (id. art. 2.1), while such relations with non-EU members are governed by international conventions in force between Italy and the respective state and by general international law (id. art. 2.2).

Mutual Recognition of Judicial Decisions with Other EU Members

As already established in current legislation, judicial decisions and decrees issued by competent authorities in other EU Member States may be recognized in Italy. (Id. art. 2.4, adding art. 696-bis (2) to the C.P.C.) However, the new Decree streamlines procedural issues providing that the competent Italian judicial authorities that receive requests for judicial cooperation communicate directly with their EU Member State counterparts and send them information related to the recognition and enforcement of the judicial decision or decree on the given criminal matter. (Id. art. 2.4, adding art. 696-quarter (1)-(2) to the C.P.C.)

Under L.D. No. 149, Italian judicial authorities must recognize and enforce those decisions and decrees, provided that there are no reasonable grounds indicating that the criminal defendant or the person convicted will be subject to acts constituting a serious violation of the fundamental principles of the Italian legal system or EU law. (Id. art. 2.4, adding art. 696-ter(1) to the C.P.C.) Recognition and enforcement must proceed without delay and may not entail a review of the merits of another EU judicial decision or decree, unless the applicable legislation provides for an exception. (Id. art. 2.4, adding arts. 696-quinquies(1) & 696-octies(1) to the C.P.C.) The Italian Minister of Justice must guarantee compliance with the conditions established in each case by the requesting EU judicial authorities. (Id. art. 2.4, adding art. 696-sexies (1) to the C.P.C.)

The new Decree states that decisions on the recognition and enforcement of a decree issued by a judicial authority of another EU member state may be appealled according to the means established by the Italian C.P.C. (Id. art. 2.4, adding art. 696-novies(1) to the C.P.C.) Judicial decisions and decrees that are deemed to adversely affect the personal freedoms of the concerned persons may be challenged through a writ of cassation for violation of Italian law. (Id. art. 2.4, adding art. 696-novies(2) to the C.P.C.) No appeal may be lodged on the basis of the merits of a decision, unless a specific exception is established in the applicable legislation. (Id. art. 2.4, adding art. 696-novies (3) to the C.P.C.) Third parties that are interested in the enforcement of the respective decision or decree may intervene in good faith in the recognition procedures. (Id. art. 2.4, adding art. 696-decies(1)-(2) to the C.P.C.)

Admissibility of Extradition Requests  

L.D. No. 149 states that the Ministry of Justice may refuse a request for judicial cooperation when the requesting state does not provide adequate guarantees of reciprocity, or when the request may compromise the sovereignty, security, or essential interests of the Italian state. (Id. arts. 2.4. & 4(1)(a)(2).) In accordance with an applicable international convention, the Ministry may reject the extradition of a citizen, taking into account the gravity of the facts, the relevance of the interests involved, and the personal condition of the person who is the subject of the request for extradition. (Id.)

Additionally, Italian judicial authorities may reject a request for extradition submitted by another country upon determining that the person concerned is likely to be subject to acts of persecution or discrimination for reasons of race, religion, sex, nationality, language, political opinion, or personal or social conditions; or to the death penalty or cruel, inhuman, or degrading punishment or treatment; or who in any way is likely to suffer a violation of fundamental human rights. (Id. art. 4(1)(a)(3)(f).) In particular, the legislation repeals language that previously allowed Italian judicial authorities to accept a request for extradition when a requesting state whose domestic legislation included the death penalty provided assurances that the death penalty would not be imposed. (Id. art. 4(1)(a)(3)(b)(1).)

Procedure for the Review of Extradition Requests Submitted by non-EU Countries

Within 30 days of receiving a request for extradition submitted by a country outside of the EU, the Minister of Justice must decide whether to approve or reject it, and if the Minister accepts it, the appropriate documentation must be sent to the general prosecutor of the respective territorial appellate court for the execution of the extradition. (Id. art. 4(1)(a)(3)(d)(1).) The general prosecutor then orders the possible extraditee to appear for identification and interrogation, to determine whether he/she will consent to be extradited. (Id. art. 4(1)(a)(3)(d)(2).) The person is to be informed that he/she can appoint an attorney or the court will appoint a public defender. (Id.) When the extradition of a person from one non-EU state to another requires transit through Italian territory, the Minister of Justice must issue the respective authorization upon application from the requesting state, provided that the transit does not compromise the sovereignty, security, or essential interests of the Italian state. (Id. art. 4(1)(a)(3)(l).)

The Minister of Justice must decide on a request for judicial cooperation submitted by a foreign authority within 30 days of receiving the request. (Id. art. 6(1)(a).) Requests for judicial assistance that entail the gathering of evidence or the sequestration of assets for purposes of confiscation must be transmitted to the prosecutor of the district where the requested measure will be executed.  (Id. art. 6(7)(b)(1).) Special provisions are included on the extradition of persons connected to mafia activities or terrorism. (Id. art. 6(9).)

Execution of Foreign Criminal Decisions in Italy and of Italian Criminal Decisions Abroad

Appellate courts with jurisdiction in the territory where the foreign criminal extradition decision is to be implemented must decide on the request for extradition within 90 days, hearing the opinion of the respective prosecutor, the interested person, and his defense counsel. (Id. art. 8(1)(d).) The Minister of Justice must ensure that requests for the execution of Italian criminal decisions sent overseas comply with all the conditions established by the requesting state for acceptance of such requests. (Id. art. 9(1)(b).)

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Germany: Regional Court of Frankfurt Establishes English-Speaking Chamber for Commercial Matters

(Dec. 6, 2017) On November 2, 2017, the German Regional Court of Frankfurt am Main (Landgericht Frankfurt am Main) reported that they will establish an English-speaking Chamber for Commercial Matters in January 2018. If a party requests that the dispute be litigated in English, the dispute will be automatically assigned to the new Chamber. If both parties agree, the language used during oral arguments will be English. (Press Release, Gerichtsstandort Frankfurt wird gestärkt: Englischsprachige Kammer für Handelssachen ab Januar 2018 [Strengthening Frankfurt as a Venue: English-Speaking Chamber for Commercial Matters Starting in January 2018] (Nov. 2, 2017), Landgericht Frankfurt website.)

The President of the Regional Court of Frankfurt explained that the court sees a “chance to establish Frankfurt as an international forum,” especially after Brexit. (Id.)

Background

The German Courts Constitution Act generally provides that the language of the courts is German. However, if all parties understand a foreign language, the oral proceedings may be conducted in that foreign language without the use of an interpreter. (Gerichtsverfassungsgesetz [GVG] [Courts Constitution Act], May 9, 1975, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1077, as amended, §§184, 185; English translation (updated through July 2, 2013) GERMAN LAWS ONLINE.) Chambers for commercial matters can be established by the German states at regional courts. (Id. § 95.) These chambers deal with disputes between merchants and are composed of one professional judge and two lay judges who are merchants. (Id.)

In 2010, several regional courts in the German state of North Rhine-Westphalia embarked on a model project and established International Chambers for Commercial Matters in which the parties could choose English as the language of the oral proceedings. (Martin W. Huff, Modellprojekt in NRW. LG Köln goes international [Model Project in NRW. Regional Court of Cologne Goes International, LEGAL TRIBUNE ONLINE (Nov. 29, 2011).)

In 2014, a bill was submitted to the German parliament that would have amended the Courts Constitution Act to allow the establishment of International Chambers for Commercial Matters and to change the language of the court in such chambers to English. In addition to conducting the oral proceedings in English, the bill would have permitted the use of English for the briefs, court records, and decisions of the court. The decision of the case would have been translated into German as well.  The bill required that the case have an international element, for example, an English-language contract, and that the parties agree that the language of the proceedings would be English. (Deutscher Bundestag: Drucksachen und Protokolle [BT-Drs.] 18/1827, Bundestag website.) However, due to the “principle of discontinuity,” the bill became moot at the end of the legislative period in 2017 and will have to be resubmitted in the new legislative period. (Rules of Procedure of the German Parliament, June 25, 1980, BGBl. I at 1237, as amended, § 125, GERMAN LAWS ONLINE, English translation (updated through May 2014) German Parliament website.)

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