MIGRATION OF TAX DATA

The financial crisis of Western democracies is producing largely unfamiliar effects. Worldwide, data protection and privacy protection are virtually nothing but mere theory when it comes to taxes and finances.

Global initiatives driven by the OECD, G8 and G20 states are being thoroughly and extensively implemented in the European Union.

Did you know that the Foreign Account Tax Compliance Act (FATCA) makes it man-datory for European member states to exchange information with the USA? Information in the field of taxation is subject to this automatic exchange of data – this information is likewise exchanged electronically between the member states of the European Union.

In order to further intensify this global exchange of tax information, the proposal to amend Council Directive 2011/16/EU on the obligation to the automatic exchange of information in the field of taxation was approved by the European Parliament.

As a consequence, information on dividends, capital gains, other financial income, bank balances and deposits will soon be revealed among member states as well as with the USA. Credits, debits and swells in accounts must all be reported.

The European Commission has been granted sole competence to conduct negotia-tions with third countries regarding the conclusion of such agreements on information exchange! For this reason, bilateral agreements in the field of taxation and on the transfer of financial data between the Republic of Austria and third countries are no longer enforceable. Data on taxes and finances will migrate, even without our intervention.

Michael AUER

THE FBE WILL KEEP ITS PRESENCE ON THE TRIAL AGAINST THE ISTANBUL BAR THROUGH THE TURKISH-SPEAKING OBSERVER BANU KURTULAN

On January 7th 2014, Banu Kurtulan, an Austrian Lawyer of Turkish origin, was sent as official representative of the FBE to observe the course of the hearing against Ümit Kocasakal, President of the Istanbul Bar, and nine members of its Board.

At the same time, a press release was sent to the European press regarding her commission, which was widely distributed.

The fact of her being one of the few international observers who spoke Turkish made of her a privileged witness of the proceedings, which she summarized for the FBE in the following report:

Her presence was specially underlined by the European press, who interviewed her and reported her presence. Moreover, the FBE was clearly and expressly pointed at as “the European Bar”.

Given the effectiveness of her performance, the FBE Presidency has decided to commission her again to attend the adjourned hearing that will take place on February 24th.

Mag. Kurtulan will duly report to the FBE the course of the process, which we again demand to be conducted respecting the principles of separation of powers and the rule of law.

THE EUROPEAN BARS FEDERATION WILL CLOSELY WATCH THE TRIAL of 7 January 2014…

THE EUROPEAN BARS FEDERATION WILL CLOSELY WATCH THE TRIAL of 7 January 2014 AGAINST LAWYERS OF THE ISTANBUL BAR ASSOCIATION

• Mr. Ümit Kocasakal, President of the Istanbul Bar Association and nine Board members are being prosecuted for their fight to guarantee the right of defense in Turkey

• The European Bars Federation (FBE), representing 250 European Bars with more than 800.000 European lawyers sees the process as an attack against the principles of separation of powers and the rule of law

• Ms Banu Kurtulan, a Turkish-speaking Austrian Lawyer, will attend the hearing of January 7 2014 in Silivri/Turkey and all future court sessions as official representative and observer of the European Bars Federation (FBE)

• The FBE is an official adviser of the Council of Europe

Ten members of the Board the Istanbul Bar are being charged with attempting to influence the members of judiciary and, if found guilty, may face imprisonment for up to 4 years. The facts behind this trial are that the Istanbul Bar intervened during a famous process, the Bayloz case, in April 2012 when some Turkish lawyers could no more exercise their constitutional duty to defend their clients. This kind of intervention of the Bar is allowed by the Turkish Law on Attorneyship, No. 1136.

Consequently, the European Advocacy, embodied by the FBE, sees the prosecution of the head of the Istanbul Bar as a political undue influence in the judiciary and as a pretext of the Turkish Government to launch an attack against the principles of separation of powers and the rule of law, legal values that the Turkish Advocacy and the FBE defend all over Europe.

For more information:

• Mr. Javier Diago, Secretary General of the FBE: tel.0034620886208,Email: fbe.secretariogeneral@javierdiago.es

• Ms. Banu Kurtulan, FBE official representative: tel. +43 01/2126116, fax +43 01/212611611 Email: office@kurtulan.at

• FBE website: www.fbe.org

The Governmental Committee of the European Social Charter authorizes the FBE…

The Governmental Committee of the European Social Charter authorizes the FBE to lodge collective complaints against alleged violations of the European Social Charter

While the European Convention on Human Rights guarantees what are referred to as civil and political rights (freedom of religion, freedom of association, right to a fair trial, etc.), the function of the European Social Charter is to guarantee social rights (housing, health, education, employment, etc.). Signed in Turin in 1961, the Charter has undergone numerous revisions.

An additional protocol providing for a system of collective complaints came into force in 1998. Since then, trade unions and non-governmental organisations have been able to lodge complaints alerting the European Committee of Social Rights to possible breaches of the Charter. The Committee then has to verify whether the domestic situation complies with the Charter. If a lack of compliance is observed, the affected states must take the necessary measures to align themselves with the Charter.

This procedure may result in the adoption of a solemn but non-coercive recommendation. However, the Charter does have a binding force on signatory states, which must agree to be monitored and assessed by an independent authority regarding compliance with the rights it upholds.

The Committee of the European Social Charter and the European Code of Social Security, at its 127th meeting, approved admission of the European Bars Federation to the list of INGOs authorized to lodge collective complaints against alleged violations of the European Social Charter, for the period of 1 July 2013 to 30 June 2017.

The FBE supports the Istanbul Bar Association

The President and nine board members of the Istanbul Bar Association were charged with attempt to influence members of the judiciary, after intervening in the Balyoz trial in April 2012. This highly controversial trial aimed to establish whether or not some soldiers of the Turkish army attempted a putsch against the government. After two years of trial, 326 soldiers were found guilty of plotting to overthrow the Turkish government.

The rights of defense were trampled during the trial, indeed, the defense lawyers asked several times the judge to review some of the proof considering that they could be a complete fabrication. Their requests were all rejected by the judge. The defense lawyers then decided not to attend the trial anymore as a sign of protest. That is why the president and nine board members of the Istanbul Bar association intervened during the trial.

The President of the Istanbul Bar association, Ümit Kocasakal, explained that it is because the defense lawyers could not carry on their work that they have spoken before the court; in order to protect the respectability of their profession. The attorneyship Law n° 1136 allows them to do so. The ten lawyers, including the president of the Istanbul Bar Association are facing between two and four years of imprisonment as well as disbarment if they were to be found guilty. The trial has been postponed until the 10th of October 2013.

The general assembly of the European Bars Federation meeting in Frankfurt-Am-Main the 1st of June 2013 adopted the following resolution:

The Presidency of the FBE, meeting in Frankfurt-Am-Main the 30th of May 2013, is concerned about the reported situation of the operation of the Courts in Turkey, particularly in Istanbul and the political influence in the exercise of judicial function.

The FBE is especially concerned about the unlawful proceedings filed against the President and Board members of the Istanbul Bar Association, which is a founding member of the FBE representing 800 000 lawyers.

It calls upon the Turkish Government and Minister of Justice and the Judges Councils to recognize the principles of separation of powers and the rule of law and to allow the lawyers independently to exercise their constitutional duty to defend fully those indicted before any Court.

The General Assembly of the FBE meeting the 1st of June 2013 resolved to support the Presidency’s statement.

THE FBE SUPPORTS THE SPANISH ADVOCACY BY CALLING FOR THE ABOLITION OF THE LAW ON LEGAL COSTS BY THE SPANISH GOVERNMENT

The FBE President, Lutz Simon, sends a letter of complaint to the Minister of Justice, the Prime Minister, the President of the Constitutional Court and the King of Spain.

The high amount of the legal costs prevent the access to Justice to the majority of the citizens.

The enactment of the Law on Legal Costs on 20th November 2012 has mobilized the Spanish Advocacy, which considers that the high amount of legal costs represents an insurmountable obstacle for the access to Justice of the majority of the Spanish population may resort to its justice system, especially in the present days of economic crisis.

Confronted to the seriousness of the situation, the FBE Secretary General, Javier Diago, speaking before the Annual Conference of the General Council of the Spanish Advocacy (Consejo General de la Abogacía Española – CGAE) on December 13th 2012, announced that the FBE would adopt several measures, including the sending of four letters of complaint to the Minister of Justice, the Prime Minister, the President of the Constitutional Court and the King of Spain. With the exception of the Prime Minister, the other addressees of the letters attended the celebration acts of the 20th anniversary of the FBE in February 2012, in Barcelona.

http://www.diariojuridico.com/actualidad/noticias/la-abogacia-europea-presentara-una-queja-formal-contra-las-tasas-judiciales-que-se-empiezan-a-pagar-hoy.html

http://www.abogacia.es/2012/12/14/la-federacion-de-colegios-de-abogados-europeos-presentara-una-queja-formal-ante-el-gobierno-por-la-ley-de-tasas/

The four letters, delivered mid-April, mentioned in detail the concerns of the Spanish Advocacy with regard to the Law on Legal Costs and other legislative projects that violate the right of access to effective judicial protection and are considered a regression in the administration of Justice.

The CGAE immediately spread the information and published the four letters from the FBE President on its website (www.abogacia.es), which caused an unusually huge interest in the media.

http://www.abogacia.es/2013/04/24/la-federacion-de-colegios-de-abogados-de-europa-pide-al-rey-y-a-rajoy-la-derogacion-de-la-ley-de-tasas-judiciales/

http://www.elderecho.com/actualidad/tasas-Federacion-Colegios-Abogados-Europa-Rajoy-Rey-FBE_0_533625211.html

http://www.alhambranet.info/la-fbe-pide-la-supresion-de-la-ley-de-tasas/

http://www.expansion.com/2013/04/24/juridico/1366804497.html

http://www.abogadoencasa.info/procesal/fbe-pide-derogacion-ley-tasas/

http://www.abc.es/espana/20130425/abci-abogados-europeos-tasas-201304241852.html

http://www.elconfidencial.com/ultima-hora-en-vivo/2013/04/abogados-europeos-piden-rajoy-derogacion-tasas-20130424-133964.html

http://noticias.terra.es/espana/abogados-europeos-piden-al-rey-y-rajoy-la-derogacion-de-las-tasas-judiciales,a4cecdd88a83e310VgnCLD2000000ec6eb0aRCRD.html

http://www.pyramidconsulting.es/content/la-abogac%C3%ADa-europea-solicita-al-rey-y-rajoy-la-modificaci%C3%B3n-urgente-de-la-ley-de-tasas

The President of the Spanish Constitutional Court, Pascual Sala, replied two days later, emphasising that he shared the concerns of the FBE, and informing about the actions implemented by European Constitutional Courts to protect the interests of the litigants.

Some days later the answer of the King of Spain arrived, in Spanish and German, with an introductory letter, in German, from the Ambassador of Spain in Germany.

FBE Interview : Thorbjørn Jagland, Secretary General of the Council of Europe

1) What are the reasons that led you to take the post of Secretary General of the Council of Europe?

The Council of Europe has the longest history of all existing cooperating European organisations. It remains one of the most important government agencies in Europe and plays a unique role in safeguarding the rights of individual citizens by defending democracy, the rule of law and human rights throughout the European continent.

With its 47 member states (including Russia, Turkey and the Caucasus countries), the Organisation has a key role to play in maintaining peace and stability, and must consolidate its position among the European and international institutions.

The values that this organisation represents, defends and encourages have forged my character and guided my political life.

In 2009, the Council of Europe was faced with many difficulties: lack of political interest on the part of our capital cities, low budget and low visibility. The Council of Europe needed to better reflect the politics of Europe, to gain direct access to European leaders and to highlight the political relevance of its work. It was clear, the Organisation had to be positioned so as to best promote human rights, democracy and the rule of law. I was alternately Prime Minister, Foreign Minister, Speaker and Chairman of the Norwegian Nobel Committee for Peace (which is still the case), and I wanted to put my experience and convictions in the service of Council of Europe to meet all the challenges it faced.

When I was elected in June 2009, I stressed the need for reform and closer cooperation with the European Union and OSCE. Through the reforms, the Council of Europe has now become flexible and responsive, able to offer assistance when and where the need arises. Its approach, based on legal instruments and non-political, is the only way to help member states to progress.

Almost two years after taking office, I remain convinced that together we can ensure that, through the values it represents, the Council of Europe plays its legitimate role in shaping the new Europe – and the new world.

2) What do you see as the role that your organisation has to play in society?

The Council of Europe must remain the reference point for human rights in Europe. In a situation where new economic and technological forces and populist tendencies exert increasing pressure on their democracies, it is even more important to insist on respect for democratic standards and values and on a strict observance of all commitments made by our 47 member states.

In the future, the European integration project will continue to be severely tested. Therefore, the young people who surf the Internet, Facebook and Twitter should be involved in policy development. Indeed, Twitter and Facebook have real power to mobilise but they do not do the politics. If we can encourage young people to shape policy, it will be an asset for all our democracies. If we fail, the gap between those who govern and those who are directly affected will continue to widen. These issues will be important topics of the global democracy forum that we will launch in Strasbourg from 5 to 11 October.

Another consequence of the technological revolution is globalisation that has opened new prospects while generating new threats. It seems that more and more individuals define their own identity by opposing that of others. They think to protect their own religion or culture by preventing foreigners from entering their territory or by expelling them.

In this context, it is essential that we continue to follow up the report “Living Together” – developed by a group of eminent personalities, but also that we intensify our efforts to address the issue of migration. As the problems of discrimination and relations between majorities and minorities worsen, the need is felt to develop educational policies that address intercultural issues and seek to live together in promoting cultural diversity.

The major political forces in Europe must unite to find a way to fight against hatred incitement and to agree on a common language to convey to public opinion, a message conveying the idea that diversity is our common way of life.

3) What do you think will be the biggest challenge for your organisation in the years to come?

We must preserve and strengthen the system of a balance of power that is essential for the normal functioning of democracy. Although the problems and threats vary from one country to another, there are three categories of issues that, in my opinion, we should focus on in 2012 and in the coming years, namely the holding of free and fair elections, protection of media freedom and the promotion of an effective and independent judiciary.

While evoking the system of a balance of power at the national level, we must not forget its European dimension that represents the European Convention on Human Rights and the European Court of Human Rights. This Court is the ultimate guarantor of the system of rule of law throughout the continent. We must at the end of the historical process and necessary reform of the Court safeguard the right of individual petition.

We must also safeguard the principle that, under the Convention, all member states are equal. It is certainly true that some member states are more advanced than others in integrating the Convention standards in their legislation. However, new political disturbances may also occur at home. Someone must have the right to intervene.

The Court has a dual role: to assist member states, which have not yet done so, to adapt their legislation to the Convention, on the one hand, and prevent any return to undemocratic practices, on the other. This was the real purpose of the Court when Winston Churchill took the initiative to create it.

The reform of the Court operates in parallel with another historically important process, namely the EU membership to the European Convention of Human Rights. When this membership becomes effective – and the Court has been reformed, the pan-European mechanism of democratic checks and balances will have reached its final stage and be fully functional. All difficulties are not yet ironed out, but if the political will exists, they can be quickly overcome.

To those who are reluctant to submit the EU to the same obligations and to the same Court as the members of the Council of Europe, let me say this: do not expect, in this case, to have much weight when you criticise some member states that do not meet common standards.

If our action is successful and we obtain concrete and measurable results for these priorities, the vision of an ambitious Europe, peaceful, prosperous and forward looking, comprising united countries and open to their neighbours, will have a chance of becoming reality.

Europe’s Lawyers demand that the Rule of Law be re-established in Romania

A letter of «strong condemnation» has been sent by the European Bars Federation to the Romanian Prime Minister, Victor Ponta

The organisation representing European Lawyers has asked the Romanian Government to re-establish the Rule of Law: one of the fundamental founding principles of the European Union. The European Bars Federation, which groups together 250 Bars with more than 800,000 Lawyers, has sent a collective letter, in Romanian, to Prime Minister Victor Ponta to «unconditionally» condemn his country’s continued infringements of the fundamental principles of democracy, the Rule of Law and the separation of powers.

The President of the Federation, the German Professor and Doctor in Law, Lutz Simon justifies the request by virtue of the adoption by the Ponta Government of emergency decrees which drastically curtail the rights of Romania’s Constitutional Court and the «Peoples’ Lawyer».

As far as he is concerned, the revocation of the top magistrates in the country, declared persona non grata, is also in contravention of the Rule of Law in Europe. The situation is further aggravated by the Government’s summary dismissal of the country’s democratically elected President. Furthermore, the Presidents of the upper and lower Parliaments have also been removed, as well as the Regional Prefects and the heads of the State Television and other State owned companies.

Professor Lutz Simon is also President of the Frankfurt-am-Main Bar. Contact details for further question or comments: President of the European Bars Federation and President of the Frankfurt-am-Main Bar Prof. Dr. Dr. Dr. Lutz SIMON Tel: +49(0)69552037 Fax: +49(0)69551756 dr.simon@rano-prof-simon.de

FBE-Interview : Martin SCHULZ, President of the European Parliament

1. Quelles sont les raisons qui vous ont amené à prendre la fonction de Président du Parlement Européen?

Both because of my family experience and because of where I was born, I realised early in my life the necessity, the strength and the beauty of the European ideal. My interest in Europe was not motivated simply by the effort to avoid the replication of the fratricide history of the first half of the 20th century, I was also fascinated by the philosophy which sustained it throughout the centuries: from Dante to Kant, from Victor Hugo to Coudenhove-Kalergi.

Yet, I wanted to channel this interest in Europe into an active force. I felt that it was necessary to bridge the gap between the theory and practice in European integration and I thought that one of the best way of doing this was through European politics: there is not a better place for European politics than the European Parliament, where issues which concern all Europeans are actively and passionately debated.

To a large extent the reason for my bid to the Parliament Presidency was motivated by Willy Brandt’s famous dictum: “Wir wollen mehr Demokratie wagen” let’s dare more democracy. This is true not only at the national level, but even more so at the European one. A strengthened European democracy cannot but pass through a strong European Parliament. That is both my objective for the next two years and the reason for which I sought to become President.

2. Quelle est, à votre sens, le rôle que votre institution est amenée à jouer dans la société?

I think that the European Parliament has essentially one over-arching objective which is the consolidation of our common European identity which must be based on a set of values and practices to be debated openly and democratically. The European Parliament has the crucial role of translating into practical policies and legislations concepts such as: solidarity, anti-totalitarianism, human rights, equality, freedom and security. These debates have very practical implications whether we look at the distribution of funds in cohesion policy, the rescue programme for Greece or reversing the worrying signs which we witness in Hungary.

Moreover, I would like to single out three macro-areas which will according to me serve as battle-grounds in the actions of the European Parliament: making Europe fit for globalisation, reinforcing the rule of law within and outside Europe and fine-tuning the balance between freedom and security.

On the first point, a strong and cohesive EU makes the aggregate power of its Member States larger whether we are looking at negotiations with third parties on trade, environmental protection or foreign policy issues. This points to one of the fundametal rasion d’être of the European Union: making Europe fit for globalisation, but also making globalisation fit for Europe. Globalisation is not a panacea. It has brought opportunities, but also threats to many of our achievements from the environment to security. In this sense the EU provides a mutualisation of the risks which we incur in a globalised world, and at the same time aims to tame some of its worst excesses by persuading the rest of the world to compete in a level-playing field with us.

An example might be needed in this respect. Take a factory which does not respect any environmental standards, which can export to foreign markets which are open, but at the same time it is insulated by competition by protectionist laws in its own country. The same factory is also helped by the local authorities thanks to a loose competition policy, no labour protection, friendly state aid and a currency which is kept artificially low. Competition with a firm which externalises the costs and internalises the profits is difficult for law-abiding European industries. Our firms are not afraid of competition, they are rightly afraid of unfair competition. It is the role of the EU and of the EP to help rectifying these imbalances favouring world integration in an inclusive fashion.

This leads me to my second consideration on the rule of law. The European Union is a light administration: it relies on Member States to enforce its policies and legislation. It is a political project which has grown out of the smart idea of pulling together the management of resources in coal and steel. Yet to this day, the main trait-d’union which keeps the EU functioning is the rule of law, the European Union is first and foremost a legal Union relying both on the watchdog activity of the European Commission, but also on the mutually strengthening interaction between EU citizens, national courts and the European Court of Justice, acting on the basis of the treaties and secondary legislation

We should take stock of this success and state clear that our objective for our Union both at home and abroad is a fair, equal and binding application of the rule of law. The EU needs to continue to fight corruption, maladministration, delays and costs of justice so as to make sure that the EU is the best and most transparent place to live and make business in the world. This principle should also guide us in our external action as economic development without rule of law is both ephemeral and easily reversible.

The third macro-area which my institution has to confront everyday is the delicate fine-tuning between contrasting, and – to an extent – legitimate demands. The most pressing of these dichotomies is the one between individual liberty and security: we have experienced this when we voted on the SWIFT agreement, when we vote on the protection of passengers’ data, when we look at extradition demands or lately when we look at issues such as the Anti-Counterfeiting Trade Agreement. The issues touched here are often very technical, but they ultimately boil down to the burning issue of how high, or how low we want to set the bar.

3. Quel sera, à votre avis, le plus grand défi de votre institution dans les années à venir?

I have no doubt that the greatest challenge of the European Parliament in the years to come has all to do with increasing its standing both among the people and within the structure of the European Union.

I am very aware of all the arguments involved in the democratic deficit debate. I find most of them over-blown as the EU is not an unchecked leviathan, it is not a mammoth administration: it is subject to a continuous system of checks and balances and also the incessant scrutiny of informed stakeholders which have contrasting views on the subject and keep a close eye on the legislative process: from its conception until the final vote in Parliament.

Yet, as the EP discusses more and more crucial issues, vital to the very survival of the EU and its long term future, the EP has to further consolidate its standing as the cornerstone of democracy at the EU level – not just in the EU architecture, but also and most importantly in the eyes of the citizens. In this sense I foresee two main developments.

The first is the direct involvement in the European Council debates, in its preparatory work and also in its deliberations. This would not be simply in the interest of the EP, but also of the Heads of State and Governments who often take hugely important decisions, with little accountability neither at home nor at the EU level.

The second development is obviously a reversal in the tide of abstentionism and anti-Europeanism which partly marks European elections. I believe the best way of reversing this trend is by making the European elections more political and less national, increasing the link between European political parties and the formation of the President of the Commission.