Directive

About: Directive is a research topic. Over the lifetime, 5695 publications have been published within this topic receiving 56084 citations.

New Challenges to Data Protection Study - Working Paper No. 2: Data Protection Laws in the EU: The Difficulties in Meeting the Challenges Posed by Global Social and Technical Developments

Abstract: This the second of two working papers produced for the "New Challenges to Data Protection" study, commissioned by the European Commission. This paper discusses the difficulties that arise if one tries to apply the main EC Directive on data protection (Directive 95/46/EC) and the data protection laws in the EU Member States that implement it, as currently drafted, to the new global social and technical context described in Working Paper No. 1, by Dr. Ian Brown. It does this by means of a comparative-legal analysis, taking into account the six European and five non-European countries studied: Czech Republic, Denmark, France, Germany, Greece, United Kingdom, USA (Federal, California and New Jersey), Australia, Hong Kong, India and Japan. NB: Working Paper No. 1, on "The Challenges to European Data Protection Laws and Principles," can be found on Ian Brown's ssrn webpage: http://ssrn.com/author=892424. The findings of the paper presented here are summarised in another document: "Comparative Chart: Divergencies Between Data Protection Laws in the EU," which can be separately downloaded from the present ssrn page, as can the country reports on France, Germany and the UK, also written by Douwe Korff.

Sui Generis database right: ripe for review?

Abstract: In a digital era unoriginal collections of data, particularly those in electronic form, have new significance and value. Digital technology also renders such collections of information uniquely vulnerable to copying. The Directive on the legal protection of databases created a new sui generis right for databases in which there has been (qualitatively or quantitatively) substantial investment in obtaining, verifying or presenting the contents against unauthorised extraction or re-use of the whole or a substantial part. However, over-protection of such databases may remove essential information from the public domain, particularly where it constitutes an exclusive source. Under protection may be equally damaging, if the incentive to collate information is undermined by free-riding competition. It is as necessary, therefore, to strike as careful a balance of protection for unoriginal databases as for other intellectual property rights. The case of British Horseracing Board Limited v William Hill Organisation (2001) confirms infinitely extendable protection for dynamic databases, and their contents. The information at issue lay within the public domain, however the database maker constituted its only effective source. Fears of inhibiting information flow have contributed to debate over database protection in the United States, where copyright and unfair competition provide a lesser degree of support to database makers. Consequently, whether the new right encourages investment in creating databases as well as allowing access to database-stored information, is questionable. The question is timely for the Directive is due for review. At the same time both WIPO and the US are debating new provisions, and the Court of Appeal has referred questions of interpretation of the Directive to the European Court of Justice. It is time to reconsider, in particular, the draft Directive's proposed compulsory licences for the sui generis right. Alternatively, the exceptions to infringement could be better adapted to allow for private uses of information, or a better solution might lie in a form of unfair competition law restricted to parasitic conduct and unjust enrichment, without protection for the underlying information content.

The eu Seasonal Workers Directive: When Immigration Controls Meet Labour Rights

Abstract: The Seasonal Workers Directive combines immigration law, which regulates entry and stay in a territory, with labour law, which governs the rights of workers. The different interests and expertise of the various eu institutions involved in the Directive’s drafting and adoption exacerbated the tension between these two legal fields. In turn, this tension compromised the achievement of several of the eu’s explicit objectives, namely, creating a level playing field for the recruitment of seasonal migrant workers across the Member States, instituting a circular migration program, and protecting migrant workers from economic and social exploitation. This article focuses on the extent to which the Directive has the capacity to protect seasonal migrant workers. To do so, it sketches the history of the Directive and discusses some consequences of its treaty basis, which provides the context for our analysis and evaluation of the substantive provisions of the Directive.

The European Commission's Proposal for a Directive on Preventive Restructuring Proceedings

Abstract: On 22 November 2016 the European Commission (EC) published a proposal for a directive on preventive restructuring proceedings (COM(2016) 723 final. The proposed directive, when adopted, will require the Member States of the European Union (EU) to introduce preventive restructuring proceedings into their national systems. This will drastically change the restructuring and insolvency landscape of Europe and have a profound impact on how international restructurings with a European nexus will be dealt with in the future. The preventive restructuring procedure that the EC seeks to introduce can perhaps best be described as a light-touch “stand alone” pre-insolvency plan procedure available outside the context of traditional more heavy-handed insolvency proceedings. The proposed plan procedure is strongly inspired by the English scheme of arrangement and the plan procedure contained in Chapter 11 of the US Bankruptcy Code and features elements of both. A majority within a class will be able to bind a minority within the same class. The procedure will also feature the ability to impose a plan over the objections of one or more dissenting classes subject to certain requirements (cram down). In a number of ways the procedure proposed by the EC will, however, be more efficient and streamlined than its existing English and American counterparts. This paper offers a discussion and critique of the restructuring procedure set forth in the proposed directive. It discusses the relevant provisions of the EC’s proposal and offers an in-depth discussion of certain more fundamental aspects, including i) the justification for and nature of the proposed proceedings, ii) the question who should have the right to propose a plan and when, iii) the distribution rules that should apply upon cram down and iv) the protection of the rights of creditors who would be entitled to a distribution in cash upon liquidation. The conclusion is that the proposal contains a number of fundamental architectural flaws that make it unsuitable for implementation in current form. However, if the required corrections are made, the Member States of the European Union will have a blueprint for a restructuring procedure that could very well out-perform its existing English and American counterparts. Where the EC has drawn on proven mechanisms in certain jurisdictions, jurisdictions outside the EU may, conversely, also find useful features to draw on in the EC proposal. In particular, the US may wish to consider the introduction of modern light-touch pre-insolvency proceedings as envisaged by the EC, as an alternative to the more “old school” heavy-handed and very costly court-driven process of Chapter 11.