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THE CONCEPT OF WORKER (IN ARTICLE 45 TFEU)

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By Mpia Tsolaki, Lawyer** Freedom of movement for workers is founded on Article 45(1) TFEU and enshrined in fact in the abolition, set out in its second paragraph, of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment[1]. That prohibition has been regarded since the beginnings of the establishment of the single European Market as an indispensable corollary to its full integration since it has crucially promoted mobility of the workforce throughout the European Union (hereinafter EU)[2]. From that point of view, it is therefore of outmost importance for ascertaining its ambit to determine at the outset the concept of "worker", which is not defined by neither the primary nor the secondary EU legislation. As expected, the Ariadne’s thread has been offered by the European Court of Justice (hereinafter ECJ) that has been constantly producing an ample case-law, which keeping pa…

Court rejects complaint about conviction for homophobic hate speech

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In its decision in the case of Carl Jóhann Lilliendahl v. Iceland (application no. 29297/18) the European Court of Human Rights has unanimously declared the application inadmissible. The decision is final. The case concerned the applicant’s conviction and fine for homophobic comments he had made in response to an online article. The Court found that the applicant’s comments had amounted to hate speech within the meaning of its case-law. It accepted the Icelandic Supreme Court’s finding that the comments had been “serious, severely hurtful and prejudicial”, and that the decision which had originally sparked the debate, concerning measures to strengthen education in schools on lesbian, gay, bisexual or transgender matters, had not warranted such a severe reaction. The domestic courts’ decisions in the case, taken after an extensive balancing exercise between the applicant’s right to freedom of expression and the rights of gender and sexual minorities, had therefore been reasonable and j…

Indefinite retention of DNA, fingerprints and photograph of man convicted of drink driving breached his privacy rights

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An important decision was issued recently by the European Court of Human Rights regarding the indefinite retention of personal data (DNA profile, fingerprints and photograph) of a man who had a spent conviction for driving with excess alcohol in Northern Ireland. In the case Gaughran v. the United Kingdom (application no. 45245/15) the Court held, unanimously, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. The Court underlined that it was not the duration of the retention of data that had been decisive, but the absence of certain safeguards. In the applicant’s case his personal data had been retained indefinitely without consideration of the seriousness of his offence, the need for indefinite retention and without any real possibility of review. Noting that the technology being used had been shown to be more sophisticated than that considered by the domestic courts in this case, particularly rega…

EU law does not preclude Member States from providing for civil proceedings for confiscation which are unrelated to a finding of a criminal offence (ECJ)

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The European Court of Justice in its Judgment in Case C-234/18[1] ruled that EU law does not preclude Member States from providing for civil proceedings for confiscation which are unrelated to a finding of a criminal offence. Such proceedings are not covered by the Framework Decision on the confiscation of property. BP, the Chair of the supervisory board of a Bulgarian bank was subject to criminal proceedings for having incited others, from December 2011 to 19 June 2014, to misappropriate funds belonging to that bank in the sum of approximately €105 million. The criminal proceedings are pending and have not yet given rise to a final judgment. Independently of those criminal proceedings, the Bulgarian Commission for the combatting of corruption and for the confiscation of assets found that BP and members of his family had acquired assets of a considerable value whose origin could not be established. That commission therefore brought civil proceedings before the Sofiyski gradski sad (Sof…

Seeking justice in multi-jurisdictional fraud, creditors must be prepared for the long haul

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By Chris Iacovides and Andri Antoniou- joint Liquidators* According to a press release issued by the Cypriot police, on 31st January 2020, a 42-year-old Ukrainian national had been arrested in Budapest pursuant to a European arrest warrant, extradited to Cyprus and remanded in custody, in connection with financial fraud totaling $92m, orchestrated through Cypriot-registered companies. The individual arrested was the CFO of Mriya Agro Holding Public Ltd (“Mriya”), the Cypriot holding company of what was once one of Ukraine’s largest agricultural groups. Others wanted in connection with this matter are in hiding in Switzerland, where the authorities are known to be slow in executing international arrest warrants. This is the outcome of a lengthy investigation by the Cypriot police following a criminal complaint made by the Liquidators of Mriya 4 years ago and vindicates what has recently been identified in a report of the Council of Europe’s anti money laundering body, Moneyval, publishe…

ECHR: The pre-trial detention of a judge breached the Convention

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Ιn its judgment (3.3.2020) in the case of Baş v. Turkey (application no. 66448/17) the European Court of Human Rights held: by six votes to one, that there had been a violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights as regards the alleged unlawfulness of the applicant’s initial pre-trial detention; unanimously, that there had been a violation of Article 5 § 1 of the Convention on account of the lack of reasonable suspicion, at the time of the applicant’s initial pre-trial detention, that he had committed an offence, and unanimously, that there had been a violation of Article 5 § 4 (right to speedy review of the lawfulness of detention) on account of the length of the period during which the applicant had not appeared in person before a judge. The case concerned the pre-trial detention of Mr Baş, a judge at the time, following the attempted coup of 15 July 2016. The Court found that according to the case-law of the Court of Cassation…

Coronavirus as force majeure event - The impact on contracts

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by George Kazoleas, Lawyer LL.M The rapid spread of coronavirus worldwide has crucial effects in social and economic life. The regularity of transactions has been disrupted and the normal evolution of many aspects of economic and commercial activity has been reversed. According to the World Health Organization, coronaviruses are a large family of viruses that can cause disease in animals or humans. In humans, several coronaviruses cause respiratory infections, influenza and more serious illnesses such as the Middle East Respiratory Syndrome (MERS) and Severe Acute Respiratory Syndrome (SARS). The most recently discovered coronavirus causes COVID-19. Coronavirus as force majeure It depends on the circumstances if the spread of the virus can be regarded as a cause of force majeure that prevents or inhibits the fulfillment of contractual obligations. The European Commission states that there is force majeure if the incident or its non-fulfillment "is due to circumstances other than tho…

New Insolvency Measures Introduced by the British Government Bring Relief to UK Companies and their Directors

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By Chris Iacovides & Andri Antoniou* Whilst the UK is taking proactive measures to aid ailing companies and businesses from the aftermath of the coronavirus outbreak, one cannot help but wonder what the Cyprus government will do since the Examinership regime introduced as part of the rescue culture in 2015, failed miserably. The UK may have been slower off the mark than many other countries in their fight against coronavirusnevertheless, the authorities have now ramped up the speed and scale of the measures being implemented to protect their national health system and the economy. On Friday 27 March 2020, the British Government went to the extent of introducing more flexible insolvency procedures to help businesses. According to Alok Sharma, UK’s Business Secretary, the following measures will take effect retrospectively from March 1st for 3 months during the coronavirus pandemic. Under the plans, new restructuring tools will be added to the UK’s Insolvency Framework including: A morat…

E-Trials & Virtual Courtrooms: A possible solution to Court Lockdown

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Editor: Anastasios Tsanakas, Lawyer Numerous Jurisdictions, including the Republic of Cyprus have decided as part of their measures for the prevention of Covid 19 transmission, the suspension of Court operations. Nevertheless and for obvious reasons there can be no universal lockdown to the administration of justice. A possible solution to the imposed restrictions that inhibit justice accessibility is the development and establishment of “e-trials”. In the UK, an entire trial is being conducted over Skype in a legal first that lawyers say could be a model way to ensure court business continues during the Covid-19 pandemic. The Judge, is asked to decide whether it is in the best interests of a 70 years old man that suffered a major stroke in 2016 to have the clinically assisted nutrition and hydration he receives through a tube, withdrawn. The patient’s daughter and GP disagree over his treatment and the local clinical commissioning group has asked the court to determine the course to take…

A passenger who reserved his or her flight through a travel agency may bring an action for compensation for a long flight delay against the air carrier before the courts of the place of departure of the flight

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Ιn its Judgment in Case C-215/18 Libuše Králová v Primera Air Scandinavia A/S, ECJ ruled that a passenger who reserved his or her flight through a travel agency may bring an action for compensation for a long flight delay against the air carrier before the courts of the place of departure of the flight. Notwithstanding the absence of a contract between that passenger and the carrier, such an action comes within ‘matters relating to a contract’ within the meaning of the regulation on jurisdiction, with the result that it may be brought before the courts of the place of supply of the air carriage service. Ms Libuše Králová entered into a package travel contract with a Czech travel agency consisting of, first, carriage by air between Prague (Czech Republic) and Keflavík (Iceland), operated by the Danish air carrier Primera Air Scandinavia, and, second, accommodation in Iceland. Ms Libuše Králová’s Prague-Keflavík flight, of 25 April 2013 was delayed by four hours. She subsequently broug…

Brexit: Consequences for the Court of Justice of the European Union

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The Court of Justice takes formal notice of the fact that the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the EU has the effect of bringing to an end the mandates of the British Members of the Institution with effect from 31 January 2020 at midnight.  The number of Judges of the Court of Justice and of the General Court, fixed at one for each Member State for the Court of Justice and two for each Member State for the General Court, is therefore reduced with immediate effect at the time of the UK’s withdrawal from the EU.  On the other hand, in accordance with the declaration of the Conference of the Representatives of the Governments of the Member States of 29 January 2020 on the consequences of the UK’s withdrawal from the EU for the Advocates General of the Court of Justice, the number of Advocates General of the Court of Justice, fixed at eleven by the Council Decision of 25 June 2013(2013/336/EU: Council Decision of 25 June 2013 increasing the number …

Rule of law in Poland and Hungary has worsened

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The EU’s discussions with Poland and Hungary have not yet led these countries to realign with the EU’s founding values, Parliament warned last January. In a resolution adopted with 446 votes to 178 and 41 abstentions, MEPs note that reports and statements by the Commission, the UN, OSCE and the Council of Europe indicate that “the situation in both Poland and Hungary has deteriorated since the triggering of Article 7(1)”. MEPs point out that the hearings organised by the Council under Article 7 of the Treaty are neither regular nor structured. They call on the Council to address concrete recommendations to the countries concerned, including deadlines, to ensure EU law is respected. “The failure by the Council to make effective use of Article 7 continues to undermine the integrity of common European values, mutual trust and the credibility of the European Union as a whole”, claims the EP. The text also urges the Commission to use all tools at its disposal to prevent a serious breach of com…

Registration of a Company of Foreign Interests in Cyprus and employment of third country nationals

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Author: Maria Rousia, Associate Lawyer at Dionysiou & Partners LLC (Cyprus) Introduction Although generally a Cyprus company must give priority in employment recruitment to Cypriots and EU nationals before attempting to employ third country nationals, there is an exception enabling companies of foreign interests to give priority to the employment of third country nationals instead of locals and EU nationals, provided that certain requirements are met. The main aim of the above exception was the attraction of foreign investments. The criteria that companies must meet in order to benefit from this decision, the categories of staff and the maximum numbers of third country nationals who can be employed in each category of staff are described below. Eligible Companies The company must be a private company and third country shareholders should own the majority of the company’s shares (percentage equal or more than 50% of the total share capital). It is important to note that a company is con…