EALG BRIEFING APRIL 2005 VOL. 2 NO. 1
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AUSTRIA BELGIUM PORTUGAL
UNITED
STATES ABOUT THE EURO-AMERICAN LAWYERS GROUP (EALG) LEGAL ASPECTS OF INTERNET HYPERLINKING UNDER AUSTRIAN LAW Anyone familiar with using the Internet, including readers of this Briefing, knows that the hyperlinking of websites is what enables what is known as "Internet-surfing." While the popularity and usefulness of the Internet can be directly "linked" to the ability to hyperlink, each setter of hyperlinks runs the risk of infringing applicable laws in at least two different ways: On the one hand either the setting of the hyperlink itself or the referenced web-site may contravene competition laws or infringe copyrights, trademarks etc. On the other hand the targeted website may contain illegal content that the setter of the hyperlink may unwillingly or unintentionally reference. In the attached article, EALG Austrian member firm Dallmann & Juranek provides a short overview on the leading cases and the restrictions of liability under Austrian law for link-setters. For further details, please contact Armin Dallmann, Partner, Dallmann & Juranek, Vienna, Austria; a.dallmann@dallmann.cc; http://www.dallmann.cc NON-PROFITS HAVE AN EXTRA YEAR TO COMPLY WITH NEW LAWS GOVERNING THEIR OPERATIONS The law of 2 May 2002 introduced a number of changes in Belgian law regulating the organization and activities of non-profit organizations, including international non-profit organizations. Under the revised law, all existing non-profit organizations were required to modify their articles of associations no later than 1 January 2005 to ensure compliance with the new law. However, the Government announced late last year that the January 1, 2005 deadline would be postponed. The new deadline for ensuring compliance with the new laws governing non-profits is 1 January, 2006. For further details, please contact Robbie Tas, Partner, Maxius, Louvain, Belgium; robbie.tas@maxius.be; http://www.maxius.be PORTUGAL Any business must take into consideration direct and indirect taxes. Tax planning should bring benefits and competitive advantage to a business. As the Internet grows as a viable means for conducting e-commerce sales and services, businesses must consider the tax ramifications of their e-commerce operations. Madeira provides an attractive location from which businesses can establish and conduct their e-commerce services. In the attached article, EALG Portugal Member Firm Barros, Sobral. G. Gomes e Associados provides a brief summary of some of the legal issues governing the provision of e-commerce services in Europe and the advantages for providing such services in Madeira. For further details, please contact Nuno Telleria, Barros, Sobral. G. Gomes e Associados, Lisbon, Portugal; law@bsgg.pt; http://www.bsgg.pt CONSUMER CREDIT APPLICATIONS MAY BE COMPLETED ONLINE As of December 31, 2004, consumer credit applications have been capable of being completed over the Internet. Until the change in regulation, UK consumers could make applications for credit online, but the agreement could only be completed when the consumer had signed a paper copy. The move comes as part of the UK government's reform of consumer credit law. Under the Consumer Credit Act 1974 (Electronic Communications) Order 2004, consumers have a fourteen day "cooling-off" period during which they can cancel agreements entered into online. However, lenders are still obliged to communicate with borrowers by post in certain circumstances, including when payments are missed or the agreement is canceled. For further details, please contact David C.H. Ross, Biggart Baillie, Glasgow, Scotland; dross@biggartbaillie.co.uk; http://www.biggartbaillie.co.uk
The activities of advising on, arranging and entering into mortgage contracts became regulated by the UK Financial Services Authority ("FSA") last Fall. This brings the provision of mortgage advice within the scope of the Financial Services and Market Act 2000, and the FSA has amended its Handbook of Rules and related guidance. In particular, the FSA has produced a new sourcebook, entitled the Mortgage Conduct of Business Sourcebook. As well as being subject to additional rules in terms of the manner in which they conduct their business, those carrying out regulated mortgage activities have to be approved by the FSA. All applications for approval will require to satisfy the FSA on a number of issues, including such matters as having a viable business plan and employing suitable individuals to carry out controlled functions. The regulation of mortgage contracts has important practical implications for both lenders and mortgage advisers. The necessary changes to infrastructure and compliance policies will result in increased administrative costs. Furthermore, lenders will require to ensure that every person involved in the course of selling a mortgage product must be authorised, or risk that mortgage contract being unenforceable. For further details, please contact David C.H. Ross, Biggart Baillie, Glasgow, Scotland; dross@biggartbaillie.co.uk; http://www.biggartbaillie.co.uk UNITED KINGDOM - SCOTLAND Some of the most extensive changes in Scottish property law for centuries took effect on late last year, when the Abolition of Feudal Tenure etc (Scotland) Act 2000, the Title Conditions (Scotland) Act 2003 and the Tenements (Scotland) Act 2004 all came into force. The first two pieces of legislation have the ultimate effect of removing the feudal system of landownership, whereby feudal "superiors" had the right to control certain aspects of the use of land owned by another person. In addition, these superiors had the right to claim certain feudal fees from landowners. For example, the Church of Scotland was receiving around £30,000 a year from feudal fees. However, former feudal superiors still have the right to claim certain levels of compensation for loss of their rights as set out in the Abolition Act. The Tenements Act will have great practical significance to individuals who own properties which form part of a larger building (for example flats or apartments). In particular, this Act will make it easier for owners to arrange repair or renewal of the buildings of which their property forms part. For further details, please contact David C.H. Ross, Biggart Baillie, Glasgow, Scotland; dross@biggartbaillie.co.uk; http://www.biggartbaillie.co.ukback to top
The Companies (Audit, Investigations and Community Enterprise) Act 2004, which was given Royal Assent on 28 October 2004, introduced a new corporate form to the UK, to be known as the Community Interest Company, or CIC. This new type of company is designed for use in by social enterprises that want to take advantage of the nature and flexibility of the corporate form while ensuring that their profits are applied for the benefit of the community. CICs will be obliged to report to an independent regulatory body with regard to the manner in which they are providing benefit to the community and to what extent they are involving relevant stakeholders. The Department of Trade and Industry intends that the relevant provisions of the Act will come into force in order to allow registration of CICs from July 2005. For further details, please contact David C.H. Ross, Biggart Baillie, Glasgow, Scotland; dross@biggartbaillie.co.uk; http://www.biggartbaillie.co.uk LAWSUIT REFORM LEGISLATION BECOMES LAW In what is widely anticipated as being the first in a series of major pieces of pro-business legal reform legislation, President Bush has signed into law the "Class Action Fairness Act of 2005." Proponents of the new law claim that it will reduce the ability of plaintiff attorneys to bring frivolous class action lawsuits against businesses operating in the United States. In the United States, class action lawsuits are a form of litigation wherein one or more named plaintiffs claim to represent the legal interests of a class of similarly situated plaintiffs having identical claims against the defendants. Once certified by the court, the ultimate outcome of the litigation is binding upon members of the class, unless they choose to opt out of the case and pursue their own claims. Critics of such lawsuits claim that they frequently result in disproportionately large jury verdicts or court settlements. They also claim that the suits are abusive and primarily benefit attorneys as opposed to consumers. Supporters of class action lawsuits claim that they are the only effective way by which individual consumers can seek recourse against large companies for legal wrongs. Under the new law, class action lawsuits with aggregate claims of more than $5 million dollars will be removed from state court to federal court. In addition to lawsuits with aggregate claims of less than $5 million dollars, the new law contains exemptions to the mandatory federal court jurisdiction. The most notable of these is a provision that lawsuits involving claims in which at last 2/3 of the class members are from a single state would remain in state court under certain circumstances. The new law also contains provisions curtailing the award of attorneys fees in certain circumstances. The new law is intended to create a more uniform and predictable legal environment for businesses. Federal courts are generally perceived as having more uniform national procedural and legal standards governing such lawsuits. In addition, federal judges are considered to be less likely to certify class actions or to favor plaintiffs over defendants. Businesses believe that limiting the ability to bring class actions in state courts will result in lower costs, including lower insurance costs. Automakers; drug manufacturers; technology companies; financial institutions; and insurance companies are among the industries that are expected to be beneficiaries of the new law. The new law is considered to be landmark legislation because it is likely to be the first of several new federal laws demonstrating the new, pro-business atmosphere in Washington. Other pieces of business legislation currently before this Congress include bankruptcy reform and monetary caps on medical malpractice. Proponents of litigation reform in the United States perceive these bills as being crucial components in creating a more predictable and business friendly legal environment. For additional details, contact Andrew M. Danas, Partner, Grove, Jaskiewicz and Cobert, Washington, D.C. 20036; adanas@gjcobert.com; http://www.gjcobert.com. The Euro-American Lawyers Group (EALG) is an association of Law Firms founded in 1985. The members of the EALG believe that they can best serve their clients' interests overseas by co-operating with like-minded firms who have local knowledge of, and immediate access to, the legal system operating in their own jurisdiction. EALG's philosophy is that local representation is vital in today's dynamic market where both legislation and commercial practice is changing regularly at both the national and international levels. The EALG has steadily developed since its inception in 1985. It now comprises twenty seven (27) law firms working in 20 different jurisdictions. Each member has their own network of local contacts. With member firms throughout Europe, the United States, and Asia, the EALG provides excellent communications to many of the important commercial centres of the world and access to hundreds of lawyers. For further information about the EALG and its member law firms, please visit our website at http://www.ealg.com.
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