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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.

England: Equine Microchip Law to Enter into Force

(Aug. 7, 2020) On October 1, 2020, regulations requiring all equines in England to be microchipped will enter into force in the country. The new regulations, the Equine Identification (England) Regulations 2018, revoke the Horse Passport (England) 2009 Regulations and introduce the Commission Implementing Regulation (EU) 2015/262 into the national law of England.

The regulations aim to improve the system of identifying equines and to “improve traceability during disease outbreaks as well as support appropriate resolution and enforcement in cases of loss, theft or lapses in welfare.” Under the regulations, every horse, pony, and donkey in England, regardless of age, is required to have a microchip and a valid identification document. The identification document contains the details of the microchip; the equine’s age, breed, and markings; the owner’s details; and all medications the equine has been on. The details contained in the identification document must be registered with the Central Equine Database (CED). Owners are under a legal obligation to report any changes to an equine’s ownership to a passport issuing organization, which then has one working day to update the CED with any new information.

The identification requirements do not extend to wild ponies and horses living in specified areas across England. Wild ponies over 12 months old that are moved outside these areas, enter into domestic use, or receive any veterinary medicinal product lose the exemption and must be microchipped and assigned an identification document.

While horse meat is not typically consumed in England, horsemeat and live horses may be transported to the EU and the horses then slaughtered for meat. The regulations thus also ensure that horses treated with veterinary medicines that can be harmful to humans do not enter the food chain. Conversely, veterinarians will be able to administer veterinary medicines to equines that may previously have been ineligible for such treatment because veterinarians are required to identify horses and may use certain medications only if the horse has been signed out of the human food chain.

Under the now revoked Horse Passport (England) 2009 Regulations, local authorities were responsible for enforcing the regulations. The costs and time involved in prosecuting these offenses resulted in few prosecutions. When introducing the 2018 Regulations, the government considered that “the same outcome in terms of compliance [with the Regulations] can be achieved in different ways” and introduced civil sanctions, which include compliance notices requiring remedial action to be taken to ensure compliance with the regulations. Local authorities may also recover costs and impose fixed monetary penalties of up to £200 (approximately US$260). Criminal proceedings may also be initiated against individuals who fail to comply with the regulations, but these may only be started after the local authority has pursued civil sanctions.

The new regulations have been welcomed by the British Horse Council, which has stated that

[h]aving all up-to-date data recorded on the CED will help us better protect our equine population in the event of a disease outbreak, as well as providing essential tools to help owners find their horses in the event of theft or straying. It should also give owners confidence that horses which have previously been signed out of the human food chain never end up in the abattoir.

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France: Parliament Adopts Law against Domestic Violence

(Aug. 7, 2020) On July 21, 2020, the French Senate adopted a bill that aims to better protect victims of domestic violence. The National Assembly had adopted the same text on July 16, 2020. The bill was signed into law on July 30, 2020.

This new law contains several measures aimed at detecting and fighting domestic violence. One of the most significant measures is the creation of an exception to the rules of medical confidentiality. Under the new law, doctors or other medical professionals who find that the lives of patients are in immediate danger due to domestic abuse, and that the patients are not able to protect themselves due to the abuser’s psychological control over them, will not be in violation of medical confidentiality if they inform a prosecutor’s office of the situation. Medical professionals should try to obtain the victim’s consent if possible, but if this is impossible, they should tell the victim that they have informed the prosecutor’s office.

This new law also introduces the use of distancing bracelets: a violent spouse or partner may be required to wear a geolocation bracelet that automatically alerts the victim if the wearer comes within a perimeter set by a judge. The French minister of justice has indicated that these bracelets will become available for use in September 2020.

Additionally, the law introduces new provisions in the Penal Code to prevent abusive spouses or partners from using geolocation devices to know their victims’ whereabouts. These new provisions make it illegal for anyone to record or transmit another person’s geolocation information without that person’s consent. Additionally, the theft of a communication device by a spouse or partner is now a prosecutable offense.

Other new measures introduced by the new law include the suspension of parents’ custody and visitation rights over their children when those parents are charged with abusing their partner. Harassment of a spouse or partner, which was already punishable by up to five years in jail and a fine of 75,000 euros (about US$88,850) if it rendered the victim incapacitated for work or was done in the presence of a minor, will now be punished by up to 10 years in jail and a fine of 150,000 euros if the harassment caused the victim to commit or attempt suicide. Law enforcement authorities may now seize any weapons in the possession of a person under investigation for domestic violence. The new law also does away with mediation procedures in divorces of couples where one of the spouses was abusive.

Additionally, this new law increases the penalty for recording or sharing child pornography from two years in jail and a fine of 30,000 euros (about US$35,500) to five years in jail and a fine of 75,000 euros. It also reinforces the obligation for producers and distributors of legal pornography to prevent minors from accessing their work, as they can now be criminally liable if minors gain access to pornographic material by simply declaring that they are 18 or older.

The bill in its final drafting was supported across the political spectrum and was unanimously adopted by the Senate. However, while its adoption was generally welcomed by advocacy groups, many criticize the government for failing to provide sufficient means to apply the new measures. Indeed, some critics estimate that up to 80% of charges for domestic abuse are dropped before trial. Even in the cases that do go to trial, there can be a delay of several months between when a victim first approaches the police and when the abuser is tried in court. Critics therefore fear that, without additional means and training for law enforcement and the court system, these newly adopted measures will remain mostly symbolic. Furthermore, the new measure allowing medical professionals to alert law enforcement authorities if they feel a patient is in grave danger, even without the patient’s consent, has been criticized by some as being overly paternalistic and as potentially causing negative unforeseen consequences, such as more hesitation on the part of victims of domestic abuse to seek medical care.

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Germany: Constitutional Court Declines to Hear Complaint Challenging Alternating Schedules in Schools

(Aug. 5, 2020) In an order published on July 15, 2020, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) declined to hear a case in which the complainants challenged a COVID-19 regulation limiting in-person classes in schools in Bavaria when a physical distance of 1.5 meters (4.9 feet) cannot be maintained. The court further denied the request that it issue a preliminary injunction stating that the complainants’ and their children’s rights to the free development of their personalities (Basic Law art. 2, para. 1), to education, to equal treatment (art. 3), to the special protection of marriage and the family (art. 6), and to occupational freedom (art. 12) must give way to the right to life and physical integrity (art. 2, para. 2, sentence 1) of other people.

Facts of the Case

The complainants challenged section 16 of the Sixth Bavarian Regulation to Protect against Infectious Diseases (Sixth Regulation), which provides that in-person classes in schools may take place only if a physical distance of at least 1.5 meters can be maintained. Furthermore, schools must establish a protection and hygiene protocol that contains measures to ensure that the minimum physical distance be observed and the infection risk minimized. Such measures may be a reduction in class size or alternating schedules. Local conditions and school-specific requirements must be taken into account. The regulation provided that the challenged provision would automatically expire on July 19, 2020. (BVerfG para. 2; Sixth Regulation § 24.)

The complainants both work full-time and have three children of mandatory school age. The children rotate weekly between attending in-person classes and staying at home. The Bavarian Higher Administrative Court (Bayerischer Verwaltungsgerichtshof, BayVGH) ruled against the complainants. The complainants therefore filed a constitutional complaint against this decision as well as a request for a preliminary injunction with the Federal Constitutional Court. They alleged that there is no conclusive evidence that regular school classes contribute to a rise in COVID-19 infection rates and that children can pass on the virus. Furthermore, they contended that there are more appropriate measures to stop the spread of the virus than physical distancing. (BayVGH paras. 9, 10; BVerfG paras. 1, 3, 4.)

Decision

The Federal Constitutional Court denied the complainants’ request for the court to hear the constitutional complaint because the complainants had not exhausted their legal remedies. The exceptions to the exhaustion of legal remedies, meaning a complaint that is of general relevance or a case where prior recourse to other courts would cause the complainant severe and unavoidable disadvantages, are not applicable. The court pointed out that there is no settled case law from the highest courts with regard to coronavirus restrictions. Furthermore, the complaint requires that the court interpret not only constitutional law questions but also epidemiological, virological, medical, and psychological assessments and risk evaluations regarding the contentious issues of what infection risks exist from opening schools and whether children can transmit the virus. (Paras. 5–12.)

The court further refused to issue a preliminary injunction because the required weighing of competing constitutional rights would result in a decision to the disadvantage of the complainants. The complainants alleged that not having regular in-person classes significantly affects their family and work life and results in disadvantages for their children’s personal and social development possibilities and educational opportunities that could not be offset. However, the Bavarian Higher Administrative Court found that it is currently unclear what effect the introduction of regular in-person classes will have because there are no clear scientific studies that confirm whether children can be carriers of the virus. The Robert Koch Institute in Germany therefore recommends that children and adolescents also observe physical distancing and hygiene rules. The court therefore concluded that by granting the preliminary injunction, an appropriate safety measure to contain the spread of the virus would be eliminated. The rights of the complainants must give way to the right to life and physical integrity of other people. (Paras. 19–25.)

The court added that in-person classes had at least resumed with an alternating schedule and that the provision in question would expire on July 19, 2020. Presumably, regular classes would resume after the summer break. Lastly, the state program “Learning at Home” would compensate at least partially for the loss of in-person classes. (Para. 25.)

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Montenegro: New Law Establishing Registration of Same-Sex Partnerships Enters into Force

(Aug. 5, 2020) On July 3, 2020, the president of Montenegro, Milo Đukanović, signed Decree No. 01-1337 / 2 on the Promulgation of the Law on the Same-Sex Life Partnership. The president issued the decree two days after the Skupština Crne Gore (the Parliament of Montenegro) passed the Law on the Same-Sex Life Partnership (Law No. 868 of July 1, 2020.)

Forty-two lawmakers in the 81-seat Parliament backed the law, which required 41 votes for passage. Members of the Parliament from the ruling Democratic Party of Socialists (DPS); the Social Democrats; the Liberal Party; and the opposition party, the Social Democratic Party, comprised the votes for passing the legislation. Five MP’s voted against and the rest claimed during the June 30 debate that the law was being imposed by the “world Satanists” and abstained from voting.

The law enters into force on the eighth day after its publication in the Official Gazette of Montenegro, but the law’s provisions stipulate that its implementation (the issuing of certificates of partnership, etc.) will begin one year after it enters into force. (Art. 76.)

The new law recognizes same-sex partnerships as legal unions, regulates the establishment and termination of same-sex life partnerships, and provides for the maintenance a national register of partnerships that records the rights and obligations of persons who have entered into a same-sex partnership. A same-sex partnership is to be based “[o]n the principles of equality, mutual respect, mutual assistance and respect for partners.” (Art. 1.)

To enter into a same-sex partnership, both partners must be older than 18 years of age (art. 8) and have full legal capacity (art. 10). Partnerships between individuals who are not blood relatives (including cousins) or relatives through adoption can be registered. (Art. 11.) Also, neither of the partners can be married or be a partner in another civil partnership. (Art. 9.)

Article 19 stipulates that the termination of the partnership while both partners are alive must be conducted in accordance with a court ruling.

The law does not include provisions allowing the registered partners to adopt children. Although the law does not recognize same-sex partnership as a marriage, it mandates that the partners have the same obligations toward each other’s children as they would in a marriage. (Art. 52.)

Article 53 allows a non-parental partner to make decisions concerning the rights of the other partner’s children in emergency situations, while provisions of article 54 grant partners the same rights as in the case of marriage with regard to disputes over the protection of their children’s rights.

Law No. 868 regulates the ownership of the partners’ assets. For example, partners have the right to inherit from each other, and the tax status of the partners is regulated in the same way as in the case of a traditional marriage. (Arts. 55 & 67.)

To register the partnership, at least one of the partners must be a citizen of Montenegro. If the other partner is a foreigner, the law allows that partner to obtain a permanent or temporary residence permit in Montenegro. (Art. 70.)

The passage of the law was preceded by the Ministry of Human and Minority Rights of Montenegro’s adoption in March 2019 of the National Strategy on Improving the Quality of Life of LGBTI People in Montenegro for 2019–2023. The National Strategy recommended that a legal framework for gender recognition in Montenegro be put in place by the end of 2023 and that international standards be respected when doing so.

After the adoption of the law, President Milo Đukanović wrote on his Twitter account that the adoption of the Law on the Same-Sex Life Partnership is “[a] confirmation that our society is maturing, accepting and living the differences. Born free and equal in dignity and rights!”

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