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Italy: Anti-Corruption Law Adopted

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(Nov 07, 2012) On October 31, 2012, Italy's Parliament approved new anti-corruption legislation, the Provisions for the Prevention and Suppression of Corruption and Illegality in Public Administration [Disposizioni per la prevenzione e la repressione della corruzione e dell'illegalità nella pubblica amministrazione]. The law has been under consideration by the Parliament for over a year. (Philip Pullella, New Italy Law Tackles Rampant Corruption, REUTERS (Oct. 30, 2012); Atto Camera n. 4434-B [Chamber of Deputies Act No. 4434-B], Parlamento Italiano website (Oct. 31, 2012); Bill No. 4434-B [in Italian], Chamber of Deputies website (text as presented to the President of the Italian Senate on Oct. 18, 2012].)

Adoption of the law follows the end of the era of rampant corruption under the rule of former Prime Minister Silvio Berlusconi, who earlier in October was convicted of tax fraud and sentenced to four years in prison, having left office in November 2011. He faces additional charges as well. Berlusconi, reportedly a defendant in almost 50 cases, "has never served a single prison sentence due to either successfully appealing or having the statute of limitations on the charge expire." (Maureen Cosgrove, Italy Passes Anti-Corruption Law, PAPER CHASE NEWSBURST (Oct. 31, 2012).) Aside from Berlusconi, "[a]t least 20 current legislators have been convicted of crimes including corruption or ties with the Mafia; more than 120 are under judicial investigation," Italian newspapers have stated. (Sarah Delaney, Italy Lawmakers Approve Anti-Corruption Legislation, LOS ANGELES TIMES (Oct. 31, 2012).)

Among other measures, the new law:

  • bans persons who have been definitively convicted of corruption, or any serious crime, from running for public office or having access to certain public sector posts;
  • increases prison sentences for public officials convicted of abuse of office, demanding bribes, or influence peddling;
  • increases penalties for corruption in the private sector, adding the crime of corruption between private parties;
  • calls for the adoption of a code of conduct for public officials;
  • requires local and regional governments to institute an anti-corruption plan and renew it annually;
  • requires local governments to post their budgets and the cost of public works on their websites, with transparency in hiring also required; and
  • guarantees anonymity for whistleblowers. (Pullella, supra; Delaney, supra Davide Del Monte, Italy Corruption Vote: New Law, New Start?, Transparency International website (Oct. 30, 2012).)

The new law also provides for the establishment of a national anti-corruption authority and other related bodies, in implementation of article 6 of the United Nations Convention Against Corruption of October 31, 2003 (U.N. Office on Drugs and Crime website) and articles 20 and 21 of the Criminal Law Convention on Corruption of January 27, 1999 (Council of Europe website) (Bill No. 4434-B).

Earlier in October, the government had made public a draft proposal that would establish the post of an anti-corruption commissioner, imbued with investigative powers. It had also announced constitutional amendments aimed at reasserting control over spending by regional governments reported to have been at the heart of several recent cases of alleged corruption. (Pullella, supra.) Transparency International, a civil society organization that monitors corruption worldwide, has urged Italy to create an independent anti-corruption agency. (Id.)

According to news reports, a study by the Court of Accounts (Corte dei conti) has indicated that corruption costs Italy some €60 billion (about US$78 billion) a year. (Delaney, supra.) The Court of Accounts "is responsible for the 'a priori' audit of the legality of Government acts, and also for the 'a posteriori' audit of the State Budget's management." (The Role of the Italian Corte dei Conti, Court of Accounts website (last visited Nov. 2, 2012).) In February 2010, the Court had announced that the number of corruption cases in Italy had increased by 229% over 2009, and Court President Tullio Lazzaro, expressing concern over the significant rise in public corruption scandals in the previous year, from 2008 to 2009, had stated "legal sanctions are no longer a sufficient deterrent to criminal behavior." (Carrie Schimizzi, Italy Court Says Corruption Cases Have Dramatically Increased over Past Year, PAPER CHASE NEWSBURST (Feb. 17, 2010); for an overview of Italy's anti-corruption legislation, see Italy AC Brief 2012, International Bar Association website (Apr. 20, 2012) [search by title].)

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France: Payment for Abortions and for Contraceptives for Minors

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(Nov 07, 2012) On October 26, 2012, the National Assembly, the lower house of France's legislature, approved a bill to extend government payment for abortions to all French women. Previously, only minors and low-income women were eligible for reimbursement for the costs of abortions. The payment would be up to €450 (about US$582) for each procedure. Abortion has been legal in France since 1976. In addition, the bill extends free contraception to all minors aged 15 to 18. The bill is expected to pass in the Senate, the upper house of the legislature. (Jaimie Cremeans, France Lawmakers Approve Bill to Pay for Abortions, Contraceptives for Minors, PAPER CHASE NEWSBURST (Oct. 27, 2012).)

The bill was included in the 2013 social security budget and reflects a promise made by President Francois Hollande before his election. (France's Lower House Approves Free Abortions Bill, FRANCE 24 (Oct. 26, 2012).)

The goal of putting greater free access to contraception in place is to reduce the number of unwanted pregnancies, and thus the number of abortions, in France. Martine Hatchuel, the president of a French association that counsels women on reproductive issues, praised the passage of the bill, stating, "[m]inors should have access to contraception and it should be free and anonymous." (Id.) However, she went on to suggest that the free access to contraception should be extended to age 25, stating that "just because a girl reaches 18 doesn't mean she is out of the woods … ." (Id.)

Others have argued that price is not the only barrier to abortion access, stating that too few doctors perform the procedure and information about which doctors do perform abortions is not easily available. The new program, once enacted, will cost an estimated €31.7 million (about US$41 million) in the first year. (Id.)

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European Union / Faroe Islands / Iceland / Norway: Dispute over Mackerel Fishing Not Resolved by Talks

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(Nov 07, 2012)

On October 22-24, 2012, representatives of Iceland, Norway, the Faroe Islands, and the European Union met in London to discuss the sustainable management of mackerel fishing off their shores, but failed to reach an agreement. (Coastal States' Talks Fail to Reach a Mackerel Quota Agreement, FIS WORLD NEWS (Oct. 29, 2012).)

Richard Lockhear, the Scottish Fisheries Secretary, expressed his disappointment that a solution was not found, stating:

We need an international deal that will see the mackerel stock sustainably fished – something that has regrettably not been the case over the past four years, with the Faroes and Iceland pursuing their own irresponsible quotas. It's disappointing that these talks have failed to achieve a deal, which is clearly in the interests of all parties who share the fishery. (Id.)

Struan Stevenson, a Scottish Member of the European Parliament, also criticized the Faroe Islands and Iceland, stating that it was "[t]ime for tough sanctions" against them and adding that "[t]hese two bandit nations will wipe out the shared mackerel stock due to their greed." (Id.) Stevenson is theSenior Vice President of the European Parliament Fisheries Committee. He stated that the EU could no longer tolerate the "unsustainable ravaging of a shared fish stock in this way." (Time for Sanctions Against Iceland and the Faroes, Says Struan Stevenson MEP, Scottish Conservatives European Parliament website (Oct. 25, 2012).)

Steps toward sanctions were taken in September 2012 via a vote in the European Parliament to approve a framework for such sanctionsagainst nations considered to have unsustainable fishing practices. The sanctions available for use range from restrictions on importation of fish products of certain species to prohibitions on chartering agreements with businesses from countries that allow non-sustainable fishing. (European Parliament Approves Framework for Sanctions Against Countries Allowing Unsustainable Fishing, Maria Damanaki European Commission Member website (Sept. 13, 2012).)

Iceland's chief negotiator, Sigurgeir Þorgeirsson, also issued a statement on the need for coastal states to resolve the mackerel issue. Because consensus was not reached at the London meeting on sharing the catch, Iceland proposed that the total amount of fish harvested by the coastal states and the Russian Federation for the year 2013 be reduced by 15% compared with the amount caught in 2012. That would make the total mackerel catch for this year 542,000 tons. Although this goal was proposed by the International Council for the Exploration of the Seas (ICES), the London meeting participants did not reach agreement on the plan. (Press Release, Iceland Statements Concerning Coastal States Negotiations on Sustainable Fishing of Mackerel, ICENEWS (Oct. 24, 2012).)

According to its website, ICES "is a network of more than 1600 scientists from 200 institutes linked by an intergovernmental agreement," whose mission is to "advance the scientific capacity to give advice on human activities affecting, and affected by, marine ecosystems." (What Is ICES?, ICES website (last visited Oct. 29, 2012).)

The Minister of Industries and Innovation of Iceland, Steingrímur J Sigfússon, also issued a statement, expressing regret that agreement had not been reached in London. He said that Iceland would "remain willing to negotiate a solution that reduces the mackerel catch for all Coastal States, based on scientific evidence, and ensures a fair share for all while protecting the stock for future generations." (Iceland Statements Concerning Coastal States Negotiations on Sustainable Fishing of Mackerel, supra.)

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Sweden: Court Overturns Rape Case Decision

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(Nov 07, 2012) Sweden's Göta Court of Appeal overturned a previous decision in a rape case in which the victim was a transgendered woman. The October 2012 decision was issued a year after the crime and changed the July 2012 Örebro District Court determination in the case. In the appeal decision, the accused was sentenced to imprisonment for 15 months and ordered to pay compensation of SEK40,000 (about US$6,000). (Swedish Court Overturns Acquittal in Transgender Rape Case, ICENEWS (Oct. 23, 2012).)

The original district court decision had acquitted the defendant of the rape charge on the grounds that rape was not possible, because the victim had been born with male genitalia. Instead, the defendant was found guilty of assault. At that time he was given asentence of four months of imprisonment and ordered to pay SEK15,000 (about US$2,250) in compensation to the woman. (Man Beats Rape Rap After Victim Found to Be a Man, THE LOCAL (updated July 6, 2012).)

Speaking in July 2012, Judge Dan Sjöstedt of the Örebro District Court said that "[t]here are different theories about how this should be handled, and so we're looking forward to seeing the verdict from the Court of Appeals." He added that if he were either the prosecutor or the defense attorney in the case, he would pursue an appeal. (Id.) In Sweden, both sides, prosecution and defense, may appeal a district court decision in a criminal case. (See SWEDISH LAW: A SURVEY 511 (Hugo Tiberg, Pär Crohult, & Fredrik Sterzel eds. 1994).)

In the appeals decision, officials of the court argued that even though the previous judge was correct in saying rape physically could not have taken place, the offender did intend to sexually assault the victim and thus was guilty of attempted rape. The transgendered person was dressed in women's clothes and thus appeared to the assailant to be a woman. (Swedish Court Overturns Acquittal in Transgender Rape Case, supra.) Prosecutor Eva Grandestedt expressed relief that a conviction was obtained, adding that "the punishment is in line with what I had asked for. This ruling shows that you can convict for attempted rape regardless of the gender identity of the victim." (Id.)

The Swedish Penal Code specifies in chapter 23 that attempts to commit crimes are punishable. Chapter 6, section 12, specifically applies this standard to sexual crimes, including rape. (THE SWEDISH PENAL CODE, Ds1999:36 (published July 21, 2004, last updated Nov. 9, 2005), Government Offices of Sweden website.)

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European Court of Justice: Decision on Taxation of Non-Resident Companies

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(Nov 07, 2012) The European Court of Justice decided in favor of the European Commission on October 25, 2012, in a case involving a dispute over the way Belgium has taxed corporations. (Case No. C-387/11, European Commission v. Kingdom of Belgium (Oct. 25, 2012), EURLEX.)

The Court agreed with the Commission that the treatment of non-resident companies that lacked permanent establishments in Belgium was unfair and inconsistent with two treaties to which Belgium is a party. It determined that Belgium, by "maintaining different rules for the taxation of income from capital and movable property according to whether it is earned by resident investment companies or non-resident investment companies with no permanent establishment in Belgium," failed to live up to its obligations under articles 49 and 63 of the Treaty on the Functioning of the EU (TFEU) and articles 31 and 40 of the May 1992 European Economic Agreement (EEA). The Court further ordered Belgium to pay the court costs. (Id. ¶ 93.)

Article 49 of the TFEU specifies that "restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited," and that this freedom of establishment "shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms … ." (Consolidated Version of the Treaty on the Functioning of the European Union (TFEU), 2010 O.J. (C83) 47.) Article 63 prohibits restrictions on movement of capital between member states or between member states and third countries. (Id.)

Article 31 of the EEA echoes article 49 of the TFEU, and article 40 of the EEA has language parallel to that of the TFEU's article 63, requiring no restrictions "between the Contracting Parties on the movement of capital belonging to persons resident in EC [European Community] Member States or EFTA States and no discrimination based on the nationality or on the place of residence of the parties or on the place where such capital is invested." (Agreement on the European Economic Area Between the European Communities, Their Member States and the Republic of Austria, the Republic of Finland, the Republic of Iceland, the Principality of Liechtenstein, the Kingdom of Norway, the Kingdom of Sweden and the Swiss Confederation, 1994 O.J. (L1) 3, full text available from International Bureau of Fiscal Documentation (IBFD); the term "EFTA" refers to the European Free Trade Association.)

The heart of the decision was the finding that Belgium, by not allowing non-resident companies to recover the amount of withholding tax they paid on income from capital and moveable property, had imposed unequal treatment on companies based on whether or not they had permanent offices in Belgium. This was considered to be a violation of the two treaties. (Roberto Bernales, ECJ: Belgium Legislation on Taxation of Non-Resident Investment Companies Incompatible with EU Law, TAX NEWS SERVICE (Oct. 25, 2012), IBFD online subscription database.)

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