Friday 30 June 2017

Our NHS.

This proposal if passed by EU Parliament (Parliament has never voted against the Commission) will allow companies to sue The NHS, with severe penalties of set at a level of not below 10% of world turnover. The proposal offers leniency for those that comply with the decision of the National Competition Authorities within a two year time-frame - The Commission will grant a thumbs up or down decision

To empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market.
Companies cannot compete on their merits where there are safe havens for anti-competitive practices. They therefore have a disincentive to enter such markets and to exercise their rights of establishment and to provide goods and services there. Consumers based in Member States where there is less enforcement miss out on the benefits of effective competition enforcement against anti-competitive practices.

Article 14
Maximum amount of the fine
1. Member States shall ensure that the maximum amount of the fine a national competition authority may impose on each undertaking or association of undertakings participating in an infringement of Articles 101 or 102 TFEU should not be set at a level below 10% of its total worldwide turnover in the business year preceding the decision.
2. Where an infringement by an association of undertakings relates to the activities of its members, the maximum amount of the fine shall not be set at a level below 10 % of the sum of the total worldwide turnover of each member active on the market affected by the infringement of the association.

FINAL PROVISIONS
Article 32
Transposition
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [two year period for transposition] at the latest. They shall forthwith communicate to the Commission the text of those provisions.
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

The complete proposal can be read here: Antitrust

Wednesday 28 June 2017

Mariners' code.

In the strong and ancient code that binds seafarers, coming to the aid of those in danger is perhaps the most fundamental imperative. Captains and their crews are obliged to respond to distress calls and mount rescue efforts, so long as they do not endanger themselves or their vessel.
This tradition has, to some extent, been converted into laws. Several countries with long seafaring traditions, including Australia, Germany, Norway, the United Kingdom, and the United States, may actually press criminal charges against captains who fail to render assistance.
Today, international maritime law codifies the obligation to render assistance in such instruments as the UN Convention on the Law of the Sea (1982) and the International Convention on Maritime Search and Rescue (1979). The obligation to extend aid applies without regard to the nationality, status, or circumstances of the person or people in distress. Under these rules, ship owners, ships masters, coastal nations, and flag states (the states where ships are registered) all have responsibilities for search and rescue. The Annex of the Search and Rescue Convention provides that "a situation of distress shall be notified not only to consular and diplomatic authorities but also to a competent international organ if the situation of distress pertains to refugees or displaced persons."
Safe Harbors?
While the obligation of seafarers to rescue people in peril is clear in legal documents, what happens next is murkier. The Convention on Search and Rescue mandates that a rescue is not complete until the rescued person is delivered to a place of safety. That could be the nearest suitable port, the next regular port of call, the ship's home port, a port in the rescued person's own country, or one of many other possibilities.
When refugees or asylum seekers are among those rescued at sea, however, the list of options is narrowed. A refugee must not, under international law, be forcibly returned to a country where his or her life or freedom would be endangered — or, by extension, to a country where he or she would not be protected against such return.
Allowing a refugee or asylum seeker who has been rescued at sea to disembark on one's territory triggers a specific set of obligations on the part of the authorities of the receiving state. They cannot simply send the refugees home, as they would be able to do with other travelers. The 1951 Convention relating to the Status of Refugees, which is the cornerstone of refugee protection, provides that "No contracting party shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of a territory where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." As a result, many states are reluctant to accept refugees, and they are under no positive obligation to open their doors.
A Rock and a Hard Place
The intersection of maritime law and refugee law thus leaves ship owners, masters, and crews in a quandary. They must pick up refugees and asylum seekers whose lives are in danger, but no state is required to take them in.
The ship itself cannot be considered a "place of safety" -- indeed, carrying a large number of unscheduled passengers may endanger the crew and passengers themselves, owing to overcrowding, inadequate provisioning, and the tensions of life in close quarters. The inability to disembark rescued passengers in a timely fashion and return to scheduled ports of call creates a profound disincentive for the maritime industry to engage actively in search and rescue missions.
As the number of incidents of this type has increased, states have become more and more determined to deter and divert ships that might bear asylum seekers toward their shores. States have reacted slowly, and at times without good will, to the increasing numbers of would-be migrants and refugees who have met disaster at sea. The United States intercepts boats in the Pacific and the Caribbean, as do Italy and France in the Mediterranean, and Australia in the Indian Ocean. Accusations of standing by while passengers drown have been leveled at both Italian and Australian naval vessels.
U.S. authorities have justified a policy of summary return or mandatory detention of Haitian boat people on the grounds that such actions will discourage people from putting themselves at risk. Screening to detect refugees among the passengers and prevent refoulement is part of the interception procedure, although many refugee protection advocates find it inadequate.
In perhaps the most notorious interception incident, the Norwegian container ship Tampa, en route to Australia, picked up 438 people, mostly from Afghanistan, from a sinking boat in the Indian Ocean in August 2001. Australia refused to allow the ship to dock in an Australian port or to unload its passengers. Eventually, it forcibly transferred the rescued passengers first to warships and then to island possessions or neighboring states such as Nauru and Papua New Guinea for processing of their asylum claims.
In this long process of frustrated attempts to disembark the rescued passengers, the owners and agents of the Tampa incurred substantial losses in an industry where profit margins are razor-thin. The UN High Commissioner for Refugees gave the captain, crew, and owner of the Tampa its highest award for work on behalf of refugees for their principled actions in the face of such disincentives.
Conclusion
The question remains of who has responsibility for accepting asylum seekers rescued at sea, adjudicating their claims, and providing a place of safety for those who are confirmed in their need for international protection does not have a clear answer in existing law. States that refuse to relieve rescuing vessels of their unanticipated passengers not only place an unfair burden on the seafarers (who, after all, have taken the rescued people into their living quarters — their homes, in effect), but also threaten the conventions that have long upheld the system of rescue at sea.
These dilemmas call for cooperation among all the parties -- states, the shipping industry, and international organizations such as UNHCR and the International Maritime Organization -- to uphold the humanitarian practices that are an honorable part of maritime tradition. As long as there is violence and repression and people determined to escape it, asylum seekers will be found among those who encounter danger on the high seas.
Looking to the future, the kind of negotiations and arrangements that defused the crisis of rescue in the South China Sea in the 1970-1980s could be codified into more general responsibility-sharing arrangements for the protection of refugees rescued at sea. This way, the shipping industry along with the masters and crews of ships would not be required to bear alone the burdens of applying international humanitarian laws and standards.
Troubled waters.