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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.

Germany: Upskirting Criminalized

(Oct. 23, 2020) On October 14, 2020, an amendment to the German Criminal Code that makes upskirting a crime was published in the German Federal Law Gazette. Upskirting refers to the act of taking photos or videos under women’s clothing without permission. The amendment will enter into force on January 1, 2021.

 Content of the Amendment

Crime of Upskirting

The new provision is included in the chapter on sex offenses. It criminalizes three different types of actions. It prohibits

  • purposefully or knowingly recording or transmitting an image of the genitalia or buttocks of another person, the female bust, or the underwear covering these body parts without permission insofar as these areas are protected from view;
  • using an image made in such a manner or making it available to a third person; and
  • knowingly making an image of one of those areas that was taken with permission available to a third person without permission.

The crime is punishable by a prison sentence of up to two years or a fine. It will be prosecuted only upon request or if there is an overwhelming public interest.

An exception exists for images that are taken to further a legitimate interest, such as art or sciences, research or teaching, reporting on events of contemporary history or historical events, or similar purposes.

The German minister of justice, Christine Lambrecht, stated that “[u]pskirting is a sickening infringement of the privacy of women. It is unacceptable that secretly photographing under a woman’s skirt has only been an administrative offense until now and not a crime.”

 Additional Crime Added

In addition, unrelated to the crime of upskirting, the amendment adds taking or transmitting images of dead persons in a manner that is grossly offensive to the crime of the “Violation of intimate privacy by taking photographs or other images.” (Criminal Code § 201a.) This amendment to the Criminal Code was added to address the increasing problem of bystanders taking pictures or videos of accident victims and distributing them on social media or giving them to the media. Before the amendment, the Criminal Code only protected images of living people. (Explanatory Memorandum at 1.)

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Italy: Supreme Court Decision Finds Tax Inversion Illegal Absent Actual Transfer of Functions

(Oct. 22, 2020) On March 16, 2020, the Italian Supreme Court of Cassation issued Decision No. 10098 on the legal consequences of tax inversion (esterovestizione), which is the relocation abroad of the residence of a person or company in order to enjoy a more advantageous tax regime. Confirming its precedent, the Court held that the tax inversion in this case was illegal because the defendant had not actually and effectively transferred its administrative, management, control, and other related functions overseas.

This decision is significant for a number of reasons.  First, it reaffirms Supreme Court precedents establishing that the relocation of an Italian company overseas does not release it from its tax obligations in Italy in the absence of an effective transfer of control and management of the company abroad. Next, it holds that EU legislation contemplating such transference does not supersede applicable Italian tax legislation. And lastly, it establishes that the nonpayment of taxes, even under a good-faith but erroneous interpretation of applicable tax legislation, does not release a taxpayer from the obligation of payment.

Request for Declaration of Illegality

The request came to the Supreme Court from the Review Tribunal of Naples and concerned a judicial decree issued by that tribunal’s investigating judge ordering the sequestration from a criminal defendant of close to US$5 million. The money constituted the profits from the defendant’s crime, under article 5 of Legislative Decree No. 74 of March 10, 2000 (L.D. No. 74),  of failing to file a tax return in Italy in order to evade taxes. (Decision, Considerations of Fact §§ 1 & 2.)

The defendant had created a company with a registered office of convenience in Malta, but which in reality operated in Naples, where the effective management of company operations was conducted, including the decision to acquire a fleet of vessels at an auction to afterwards be sold to third parties, with the intent of avoiding applicable income and value-added taxes and the filing of annual tax returns. (Decision, Considerations of Law § 2.1.) In the underlying case, the defendant had claimed that, pursuant to EU legislation, he was legally allowed to transfer his investments to a foreign jurisdiction and the fact that the place of effective management of his company was in Italy did not subject his company to the full payment of taxes to the Italian authorities.  This interpretation was key to determining whether the requester had a tax obligation within Italy, whether relocating the company’s headquarters to Malta was done for the sole purpose of evading taxes, and whether the defendant’s failure to pay taxes made him criminally liable for tax evasion from the time that those taxes were due. (Decision, Considerations of Fact §§ 3, 4.)

Reasoning of the Supreme Court

The Court reasoned that the failure to submit required annual tax returns by an Italian company whose residence is located overseas constitutes a crime if the company has a permanent establishment in Italy and carries out its management, strategic, industrial, and financial decisions in Italy, as well as the necessary acts contemplated in its corporate charter or bylaws. (Decision, Considerations of Law § 2.2.)

The Court noted that in the underlying case, the tribunal had found that the company board was composed of individuals residing in different places who convened via videoconference, which impeded the tribunal from establishing the precise place of the meetings and deliberations of the board. Faced with that challenge, the tribunal found that the place of residence and work of the legal advisor (consigliere) who had advised the company on its legal formation was determinative, and that place was Naples. (Decision, Considerations of Law § 2.3.)

The Court took due account of the absolute artificiality of the legal seat in the underlying case; in effect, the Court stated that a company with a fixed place of business in Italy that carries out its administrative management, strategic, industrial, financial decisions, and all other acts necessary to achieve its purpose in Italy, but establishes or transfers its headquarters abroad without declaring the income it generates is artificial (artificiosa) because it creates a “legal form that does not reproduce a corresponding and genuine economic reality.” (Decision, Considerations of Law §§ 2.4, 2.5.)

The Court added that this reasoning was perfectly compatible with the principle that Italian tax laws must be interpreted and applied in accordance with the jurisprudence of the European Court of Justice, so as not to hinder the freedoms enshrined in EU treaties, including in particular the principle of freedom of establishment under articles 49 to 55 of the Treaty on the Functioning of the European Union. The Court further reasoned that tax inversion exists in the case of illicitly obtained profits through the fictitious screen (schermo) of company management activities. (Decision, Considerations of Law §§ 2.5, 2.7.)

Holding of the Supreme Court

The Court thus held that for tax inversion to be legally permissible the subject must actually and effectively transfer its administrative, management, control, and other related functions overseas, which the defendant in this case had not done, making the inversion illegal. (Decision, Considerations of Law § 3.)

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United Kingdom: Proposed Regulations Would Provide Amnesty and Compensation for Weapons Prohibited under 2019 Law

(Oct. 21, 2020) The draft of new regulations aimed at helping to ensure the safe surrender of weapons whose possession was made unlawful under the Offensive Weapons Act 2019 was laid before the United Kingdom’s (UK’s) Parliament on June 9, 2020. If approved, the Surrender of Offensive Weapons (Compensation) Regulations 2020 will

set out arrangements for the payment of compensation to the lawful owners of certain offensive weapons and firearms who surrender these in accordance with arrangements set out by the Secretary of State before their ownership becomes prohibited by virtue of … the Offensive Weapons Act 2019.

The minister for crime and policing has recognized that prohibiting items that were previously lawful “impacts … the individual’s right to property” and that the lawful owners of the weapons “should be fairly compensated for the loss of their property.”

The surrender period would occur over a three-month period once the regulations are approved, enabling owners of the newly designated unlawful firearms and “offensive weapons” to hand them over to police and simultaneously claim compensation by submitting to the police a completed compensation claim form. Standard levels of compensation would be set under the program, but any person surrendering a weapon could claim a higher amount by supporting their application with a credible valuation. The program for compensation for unlawful firearms extends to the entire UK, while the compensation program for offensive weapons extends only to England and Wales. In all instances, the Home Office would be responsible for processing claims.

The Offensive Weapons Act 2019 was enacted to “protect public safety by limiting the availability of certain offensive weapons and firearms to prevent their use in violent offences.” The 2019 act was passed to counter a rise in violent crimes involving knives and other weapons, and prohibits the ownership of these weapons.

The Offensive Weapons Act 2019 and the draft regulations are part of the government’s plan to tackle serious violence. Other plans from the Home Secretary include a significant increase in funding for the police force to recruit an additional 20,000 police officers over the next three years, along with new powers to make it easier for the police to stop and search individuals who are known for carrying knives.

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Colombia: Congress Passes Law Ratifying Inter-American Convention on the Protection of Human Rights of Older Persons

(Oct. 20, 2020) On September 10, 2020, Colombia’s Congress passed Law No. 2055 to ratify the Inter-American Convention on the Protection of Human Rights of Older Persons. The convention had been adopted at the General Assembly of the Organization of American States in Washington, DC, on June 15, 2015, and entered into force on January 11, 2017, 30 days after Costa Rica became the second party to the convention to deposit its instrument of ratification.

The convention seeks to promote, protect, and ensure the full enjoyment of human rights and fundamental freedoms of older persons. Parties to the convention must ensure the elderly enjoy the rights to

  • equality and nondiscrimination for reasons of age;
  • life and dignity in old age on an equal basis with other segments of the population;
  • independence in decision-making and leading a life of autonomy in keeping with their traditions and beliefs;
  • participation and integration in the family, community, and society;
  • safety and a life free of violence of any kind;
  • freedom from torture or cruel, inhuman, or degrading treatment or punishment;
  • give free and informed consent on health matters;
  • receive long-term care;
  • personal liberty;
  • freedom of expression and opinion, and access to information;
  • nationality and freedom of movement;
  • privacy and intimacy;
  • social security;
  • work;
  • health and health care;
  • education;
  • a cultural identity, and participation in the cultural and artistic life of the community;
  • recreation, leisure, and sports;
  • property;
  • housing;
  • a healthy environment;
  • accessibility to the physical, social, economic, and cultural environment, and to personal mobility;
  • political rights;
  • freedom of association and assembly;
  • protection in situations of risk and humanitarian emergencies;
  • equal recognition before the law; and
  • access to justice.

The convention defines older person to be a person 60 years or older, unless the internal law of the member country establishes a lower or higher base age, provided that it is not over 65 years.

The ratification of the convention is considered to be a very important measure in Colombia because, within 30 years, the percentage of elderly persons in the country are projected to increase by 9.7%, to 23% of the population.

The convention calls for the states parties to adopt, in compliance with each country’s constitutional procedures and the provisions of the convention, the legislative or other measures that are necessary to make such rights and freedoms effective.

Under this legally binding instrument, Colombia is committing to advance an institutional framework that secures the protection of the rights of the elderly aimed at their integral development. According to the Secretaria de Integración Social de Bogota, to achieve this goal, the government of Colombia will need to focus on formulating, executing, and evaluating public policy; undertaking comprehensive action; and engaging in constant monitoring to ensure that the commitments established in the convention are fulfilled. Parties to the convention are required to enact domestic laws in compliance with its mandates, especially those related to social protection systems and strengthening public policies that sustain and promote relevant care for older adults.

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International: World Trade Organization Addresses Trade Disputes between Major Trading Powers, Future of Global Trade Governance

(Oct. 19, 2020) In September 2020, at the World Knowledge Forum, an event aimed at “highlighting the importance of knowledge sharing towards a balanced prosperity of the global economy,” Deputy Director-General (DDG) Alan Wolff of the World Trade Organization (WTO) addressed the topics of trade disputes between major trading powers and the future of global trade governance. One of four WTO Deputy Directors-General, Wolff has been acting in place of former WTO Director-General (DG) Roberto Azevêdo since he stepped down in late August 2020, a year before the expiry of his mandate. The current selection process for a new DG is ongoing, with the second phase of consultations having ended on October 6, 2020.

Wolff’s remarks highlighted the current cooperation challenges among WTO members, as well as the substantive differences, such as “differentiation for developing country status and approaches to subsidies disciplines.” In line with the international legal commitments of the Doha Declaration, WTO members who claim developing country status can benefit from longer transition periods under some WTO agreements, as well as unilateral trade preference schemes. Wolff noted the significance to the world trading system of the strong differences of views and interests among the two largest trading countries, China and the United States.

Nonetheless, Wolff emphasized areas of potential agreement among these countries, such as on rules for e-commerce and on fishing subsidies. He argued that agreement in these areas could lead them to support needed reforms to the world trading system.

Wolff’s remarks also follow on the recent WTO Panel report (DS543) on the dispute between China and the United States regarding tariff measures on two lists of goods from China issued in accordance with Section 301 of the U.S. Trade Act of 1974 (19 U.S.C. § 2411). The panel concluded that the additional duties of 25% on the products specified by the U.S. are prima facie inconsistent with article I:1 and article II:1 (a) and (b) of the General Agreement on Tariffs and Trade (GATT) 1994 and that the U.S. did not meet its burden of demonstrating that the measures are justified under article XX(a) of GATT 1994 (measures necessary to protect public morals). The panel, therefore, also did not inquire into the second part of the “exception” analysis—whether the measures satisfy the requirements of the chapeau of article XX at section 1.9.

It is also worth noting that the panel report did not address China’s third claim against the U.S.’s imposition of Section 301 tariffs—namely, that the measures at issue appeared to be inconsistent with the U.S.’s obligations under article 23 of the Dispute Settlement Understanding (DSU). Article 23 of the DSU prohibits any unilateral retaliation measure without the authorization of the WTO Dispute Settlement Body. However, it has been argued that because China also imposed simultaneous retaliatory measures on U.S. products, those measures would be inconsistent with China’s DSU article 23 obligations as well.

Within the WTO dispute settlement mechanism, panel reports are usually appealable to the WTO’s appellate body, which has not been functioning since 2019, to decide on appeals of trade disputes. The panel report adds to the list of contentious disputes between the U.S. and China regarding a variety of issues over the past several years, including China’s developing-country status, subsidies disciplines, and trade remedies, with 16 cases involving China as the complainant and the U.S. as respondent, and 23 cases involving the U.S. as the complainant and China as the respondent.

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