Juridica

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Katrin Prükk — 2011-12-30 10:47:20

Application of the European Data Protection Directive to Facebook Users

Chirag Mody — 2011-12-30 10:48:02

Protection of personal data is an important person\'s right in the EU, established under Article 8 of the Charter of Fundamental Rights of the European Union: everyone has the right to the protection of personal data concerning him or her. In order to guarantee this, directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data was adopted in 1995. Although this is not directly applicable to the Member States of the European Union, the regulation established under this directive has been incorporated into all national data protection laws.

Since the directive was developed in the early days of the use of the Internet and data was usually processed automatically by businesses, a situation in which large amounts of personal data is controlled, used and possessed by users of different Web sites could not be foreseen. Due to that, amidst new technologies, the directive does not give unambiguous and clear instructions on whether users of social networks could also be the persons to which the directive\'s numerous obligations concerning treatment of personal data apply, in addition to the operators of such networks.

This article analyses whether, firstly, the obligations related to processing of personal data under the directive could in principle also be applied to Facebook users and if yes, whether there are any exceptions that preclude or restrict application of these obligations under the directive: exception of personal and domestic purposes, exception of press, literary or artistic purposes, or the exception of the catch-all clause. In the end of the article, practical problems to the users are covered that may arise upon application of the obligations under the directive.

Principle of Equal Pay and Indirect Discrimination in the Case-law of the European Court of Justice

Reesa Paatsi — 2011-12-30 10:48:23

The Estonian media publishes more and more articles about the equal remuneration of people of different sexes. Also in European Union at large, equal pay for men and women continues to be newsworthy. This is regardless of the fact that the principle of equal pay has applied in the European Union for more than 50 years.

The European Court of Justice with its case-law has made a significant contribution to furnishing the principle of equal pay with content. In the case Gabrielle Defrenne v. Société anonyme belge de navigation aérienne Sabena, the Court of Justice established that the principle of equal pay, as laid down by Article 119 of the Treaty of Rome, is one of the foundations of the Community and, when submitting claims in national courts, individuals can rely on Article 119 of the Treaty of Rome if remuneration is not in accordance with the principle of equal pay in the same establishment or service, whether private or public.

There is no proper explanation to many causes of different remuneration to men and women these days. Partly, however, the gender pay gap is the result of discrimination in entire Europe. Discrimination comes in various forms. This article examines how to identify indirect discrimination on ground of sex on the basis of the three-level scheme evolved in the case-law of the European Court of Justice and how the levels of this scheme have been delimited in case-law. In the analysis presented, the identification of indirect discrimination has been associated with the principle of equal pay.

Potential Limitations on Intra-group Cash Pooling

Karl Kull — 2011-12-30 10:49:13

Cash pooling is a subdivision of financial management. Due to the operational nature and flexibility of the system, cash pooling is used for transferring cash above all in groups to where it is needed, as well as for paying loans and in situations in which additional investments are urgently needed. In addition, cash pooling can be used for removing assets from a subsidiary in bad faith or for entry into transactions within the framework of cash pooling, which are harmful to creditors. Larger banks in Estonia also offer a cash pooling service.

The article derives from the presumption that transfers made under cash pooling serve as a loan agreement although several German authors are of the opinion that transactions carried out within the framework of cash pooling serve as a deposit agreement or a contract sui generis.

The author first analyses the prohibited loans to a parent company and the potential violations of the prohibition as part of cash pooling. After that, he pinpoints circumstances which allow for identifying the breach of obligations of the parent undertaking via transactions carried out as cash pooling. The article discusses two important limitations on the use of cash pooling: prohibited loans set out in §§159 and 281 of the Commercial Code and the potential breach of the obligations of the parent company.

Most Economically Advantageous Tender and Tender Evaluation Criteria

Riina Karro — 2011-12-30 10:49:35

In a public procurement, a contracting authority cannot be solely guided by the goal of procuring service on the most favourable conditions, but care must also be taken to promote market development and competition by the acts of the contracting authority. The mutual competition of any other conditions besides the price competition is made possible by the criterion of the most economically advantageous tender. The European Court of Justice has expressed its opinion that the widest possible opening-up to competition is contemplated by Community law not only from the point of view of the Community interest in the free movement of goods and services but also the interest of the contracting authority concerned who has thus a greater choice as to the most advantageous tender which is most suitable for the needs of the public. The wording of §31 (3) of the Public Procurement Act indicates that a contracting authority must prefer the very criterion of the most economically advantageous tender. Regardless of that, the organisation of tenders is contrary to that. Out of the 5943 public procurements announced in 2010, only in 14.5% of the cases procurement contracts were entered into based on the most economically advantageous tender.

The article examines the difference between the most economically advantageous tender and the tender with the lowest price and the general requirements for the content of the most economically advantageous tender as an evaluation criterion. It also examines the question of whether the application of conditions regarding qualification as an evaluation criterion is permissible or not.

Architect\'s Moral Right of Integrity of Work and Protection of Honour and Reputation

Eeva Mägi — 2011-12-30 10:49:53

Architecture differs from other areas of art by the fact that an architect cannot be absolutely free in his or her creative pursuits. An architect as an author must, from the very start, take into account that his or her work will be subject to change and supplementation.

The easiest way to enable the owner to freely change his or her building would be for the architect to issue a relevant licence. Yet the feasibility of licensing moral rights is questionable. There is no consensus on the permissibility of licensing moral rights in Europe. There is no unanimous opinion in Europe about the question whether any amendment of the work or supplementation of the work is absolutely prohibited without the author\'s consent, or the prohibition depends on certain additional conditions.

The article analyses the authorship rights of an architect in general but it mainly focuses on the moral rights of an author and the feasibility of licensing moral rights. The article draws on the comparison of Estonian, French, British and Dutch law to provide an overview of how the moral rights of an architect have been regulated in the country of droit d\'auteur, i.e., in France as well as in the UK and the Netherlands that represent the practical approach to authorship rights and have found a middle ground for regulating the moral rights of an architect. In order to give a better overview of why the countries have chosen the particular approach to the moral rights of an author, a short recourse will be taken to the authorship rights of an architect in general as well as the development and history of Article 6bis of the Berne Convention on Literary and Artistic Works.

Background to Reducing Number of Prisoners

Margo Põbo — 2011-12-30 10:50:09

The development plan of the Ministry of Justice until 2011, as approved in 2006, prescribed the reduction of the number of imprisoned persons as a strategic goal, and required the number of imprisoned persons to be 3800 by 2011 as an indicator. The goal to reach 3800 prisoners was achieved quickly. As of 7 November this year, the number of prisoners in penal institutions had decreased considerably in comparison with the period preceding the development plan, and had dropped to 3378 persons. It was a much better outcome than people had dared to predict when preparing the development plan. In fact, the goal was achieved already a while before the deadline, in 2007. The number of prisoners in penal institutions underwent a dramatic decrease during 2007.

This article analyses the potential reasons for the decrease in the number of prisoners and the performance of release mechanisms. The article analyses the amendments made to the procedure for release on parole made in 2007, supervision of conduct after release on parole, the role of the open prison in the release procedure as well as the regulation of the post-punishment supervision of conduct. The article examines the procedure for conditional release and issues regarding the post-release supervision of imprisoned persons, the feasibility of supervision and problems in exercising supervision. It also analyses the questions arising in connection with the release on parole of persons serving a life imprisonment.

Foundations for Assessing Risk of Recidivism and Practice in Estonian Prison System

Piret Liba — 2011-12-30 10:50:23

The concept of the penal law reform that started in Estonia in the middle of the 1990s prescribed a radical reform of the entire applicable criminal law in order to move towards the new European criminal law. The reform saw the adoption of a series of legislative acts, including the Imprisonment Act that brought the foundations of imposing imprisonment in Estonia into conformity with similar Acts of the other European countries, focusing mainly on resocialisation of imprisoned persons. It is emphasised that the objective of imprisonment is to organise the imprisonment in a way that prevents the imprisoned person from committing new crimes after his or her release. Already when imposing the punishment, the possibility of preventing the offender from committing offences in the future and the interest in protecting the legal order are considered, inter alia. Subsection 6 (1) of the Imprisonment Act prescribes as an objective of imprisonment to help prisoners lead law-abiding life, that is, such execution of the punishment that enables the imprisoned persons to manage in a socially responsible manner in the future without violating the legal order. This means the resocialisation of the person punished, his or her reintroduction to society at least to the extent that he or she will not commit further crime.

This article analyses modern scientific approaches to efficient measures of reducing recidivism, describes the method for assessing the risk of recidivism as well as the means to assess the risk and the practice used by the Estonian criminal justice system in assessing the risk of recidivism.

Students of the University of Tartu Law Faculty in the Summer School of European Private Law in Salzburg

Irene Kull — 2011-12-30 10:50:56

Since 1999, the summer school of European private law has been organised in the University of Salzburg. Estonian private law has been taught in the summer school of European private law since 2003. The article gives an overview of the summer school where the representation of the Faculty of Law of the University of Tartu has participated nine times already.