Different Courts, Different Viewpoints: Article 26 of the Law on Enforcement and Security
Sunday, 26 March 2017
The improvement of efficiency and speeding up of enforcement proceedings were among the top priorities emphasized as justification for the enactment of the new Law on Enforcement and Security (Official Gazette of the Republic of Serbia, No. 106/2015 and 106/2016, hereinafter referred to as: “the Law”). Among the provisions intended to serve those goals was the rule set up by the Article 26 of the Law, providing that when deciding on objections and appeals, the court may not remand the first instance ruling and return the case for reconsideration.
Despite the clear and unambiguous wording, the Article 26 caused incoherent case law and the Supreme Court of Cassation was required to resolve the following issue:
Whether the higher court, as the court of second instance, is entitled to remand a ruling and return a case to the first instance court for reconsideration when deciding on an appeal of the enforcement creditor against the ruling by which the enforcement creditor’s motion to enforce has been rejected or dismissed?
The Civil Department of the Supreme Court of Cassation, at its session held on 23 January 2017, gave the following ruling thereon:
When deciding on an objection or an appeal, the court is not entitled to remand a first instance ruling and return a case for reconsideration, but rather to affirm the ruling and reject the appeal, to reverse the ruling by substituting its own decision, or to annul the ruling without referring the case for reconsideration.
The Civil Department of the Supreme Court of Cassation held that the provision prohibiting courts to remand the first instance rulings and return cases for reconsideration applies not only to rulings on enforcement, but also to other decision of the courts of first instance, e.g. rejections or dismissals of the motions and emphasized that rule prescribed by the Article 26 of the Law, due to its imperative character, linguistic clarity and lack of conflict with other provisions is to be interpreted based on its literal reading.
However, even though it looks that sticking to the ordinary meaning of the legal text and the ruling of the Supreme Court of Cassation might save one from ensuing conundrum, things are not that simple. For example, a case might happen where judge dismisses motion for enforcement, the enforcement creditor files an objection, the panel of judges considers the objection to be justified and thus a ruling on enforcement should be rendered.
The Commercial Disputes Department of the Commercial Appellate Court, at its session held on 7/8 November 2016, held that the panel of judges cannot reverse the ruling on rejection of the motion for enforcement by substituting its own ruling on enforcement, since that would deprive the enforcement debtor of his right to file an objection against such ruling to the panel.
[/vc_column_text][/vc_column][vc_column width=”1/2″][vc_column_text]The Commercial Appellate Court considered the Article 26 of the Law inoperable in such cases and suggested the panels, instead of reversing the rulings on rejection of the motions for enforcement by substituting its own rulings on enforcement, to remand the rulings and return cases for reconsideration by a judge, since only that would allow the enforcement debtors to exercise their right to file the objections.
As a conclusion, notwithstanding the linguistic clarity of the Article 26 of the Law, we do lack the answer on how is that Article to be implemented in different situations. This is even more the case due the different viewpoints of the Commercial Disputes Department of the Commercial Appellate Court and the Civil Department of the Supreme Court of Cassation. While the former insist that the implementation is impossible in several scenarios, the latter offers different solution for the case in which the second instance court is not able to conclude reliably whether an appeal is well founded and doubts whether it is possible to return the case for reconsideration. The second instance court should, first, consider on whom is the burden of proof and, if that is not sufficient, also hear the parties and participants in accordance with the Article 14 of the Law, in order to reach the decision.
It is, thus, questionable, whether the Law managed to improve the efficiency and sped up enforcement proceedings by obliging the second instance courts (or the first instance court panels in case of objections) not to return a case for reconsideration when reversing the ruling. This is even more the case since efficiency should rather be a means to achieve goals than a goal in itself.
On the other hand, the appeals were reintroduced in the enforcement proceedings for the purpose of uniform application of the law in court proceedings, both in front of general jurisdiction and commercial courts. Having in mind the different viewpoints of the Commercial Disputes Department of the Commercial Appellate Court and the Civil Department of the Supreme Court of Cassation, that goal is yet to be achieved and would probably require changes to the wording of the statute itself. Those changes would have to provide explicit answers to the following questions:
- how to proceed when the motion for enforcement is dismissed and the second instance court or the panel of the first instance court deciding upon the objection, considers the objection justifiable to the extent that the enforcement ruling is to be reached, and
- should the same legal remedies also be available to the enforcement debtor in case when the panel reversed the ruling on rejection of the motion for enforcement by substituting its own ruling on enforcement.
If you have any questions regarding the above, please contact Živković Samardžić Dispute Resolution Senior Associate Marko Trišić (marko.trisic@zslaw.rs), or any of your regular contacts at Živković Samardžić.
[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]Click here to read this insight in Serbian.
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Waste-to-energy legal regime in Serbia
Sunday, 25 September 2016
While the European Commission has noted, in its 2015 assessment report, that Serbia is still at an early stage of aligning policies and legislation with the environment and climate change acquis, even though some progress in further aligning was made, the Serbian Government has, according to the Post-Screening Documents, undertook to fully harmonize its national legal and regulatory framework with respect to the environmental issues by 2018.
A right to a healthy environment is provided as a human right in the Serbian Constitution. The Law on Environmental Protection is a basic law in the environmental legal framework and it sets forth the integrated system of environmental protection composed of measures, conditions and instruments for sustainable management, preservation of nature balance, integrity, diversity and quality of natural values and conditions for survival of all living beings and prevention, control, reduction and rehabilitation of all kinds of environmental pollution. Waste management is defined as implementation of prescribed measures for handling with waste as a part of collection, transport, storing, treatment and disposal of waste, including supervision over those activities and care for waste management facilities upon their closure.
The Law on Waste Management sets forth types of waste and its classification, waste management planning, stakeholders, obligations and liability with regard to waste management, specific waste streams management, requirements and procedures for the issuance of permits, transboundary waste movements, reporting, waste management financing, supervision and other relevant aspects of waste management. Waste management, according to the Law, is based on the best practicable environmental option, self-sufficiency, proximity and regional approach to waste management, waste hierarchy, responsibility and polluter-pays principles.
Waste management institutional framework is composed of the National Assembly and the Government of the Republic of Serbia, that are providing the legal framework for sustainable waste management, economic instruments for waste management implementation. The National Assembly and the Government are also influencing the development of public awareness and setting-up a dialogue between the interested parties, aiming to set-up a waste management partnership. Competent authorities and organizations responsible for waste management are the ministry in charge of the environmental protection and other competent ministries, competent authorities of the autonomous province and the local self-government units, Environmental Protection Agency, Environmental Protection Fund and professional waste testing organizations.[/vc_column_text][/vc_column][vc_column width=”1/2″][vc_column_text]Some of the waste energy generating management options recognized by the Serbian Waste Management Strategy includes waste incineration, pyrolysis, gasification, use of waste with high thermal potentials instead of conventional fuels. In practice, in Serbia, waste with high thermal potentials is used instead of conventional fuels in cement production, where high temperatures and long periods of energy retaining ensure a complete burning of waste. Typical waste burnt in these processes includes municipal waste, tires, used solvents, refinery waste, fat bone powder, etc. According to the available data, by May 2015, the competent authorities released six licenses with the aim of utilization of the thermal energy. Out of six issued licenses, four were related to cement production.
Pursuant to the Law on Energy, in order to perform energy-related activities, one would need an energy license issued by the Energy Agency of the Republic of Serbia, and in order to construct energy facilities, an energy permit issued by the Ministry of Mining and Energy or the local self-government unit (depending on the type and power of the facility in case). Besides the energy license and energy permit, in order to construct energy facilities, it would be necessary to obtain a building permit, pursuant to the Law on Planning and Construction, from the ministry in charge of urban planning, an Autonomous Province authority or a local self-government authority (depending on the type, power and the location of the facility in case).
According to the recently adopted Decree on incentive measures for renewable energy sources power production and high efficiency combined heat and power production, incentives are provided, until the end of 2018 for hydro, wind, solar and geothermal power plants, biomass, biogas, landfill and sewage gas power plants and waste fired power plants. Incentive measures include the incentive period of 12 years, guaranteed feed-in tariff, no balancing responsibility and no balancing costs and free of charge access to the power transmission, i.e. distribution system.
Živković Samardžić overview on waste-to-energy legal regime in Serbia was recently published in OGEL 3 (2016) Special on Waste-to-Energy (WtE). To receive electronic off-print of the article, please subscribe to our newsletter via form provided on this page. You can also subscribe to the Oil, Gas & Energy Law (OGEL) peer-reviewed academic journal covering all aspects of law pertaining to oil, gas, and energy in general, where our article was originaly published, here.
For more details or any questions, please contact Slobodan Kremenjak at slobodan.kremenjak@zslaw.rs, Miloš Stojković at milos.stojkovic@zslaw.rs, or any of your regular contacts at Živković Samardžić.[/vc_column_text][/vc_column][/vc_row]
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Serbia’s new Advertising Law effective as of May 6, 2016
Friday, 05 February 2016
The new Advertising Law is applicable to all forms of commercial advertising, irrespective of medium used. It covers print, outdoor and online advertising and incorporate the rules regulating audiovisual commercial communications that were harmonized with the EU Audiovisual Media Services Directive in the 2014 Law on Electronic Media („Official Gazette of RS“, No. 83/2014). The Law shall enter into force on February 6, 2016, but will be effective as of May 6, 2016.
Below are some of the noteworthy changes:
Definitions and scope
For the purposes of the Law, ‘advertising’ is defined as the making of a representation in any form in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations. The definition is taken verbatim from the Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. However, it is provided that the same set of rules applies to:
- personal advertisements and other ads posted by individuals and not in connection with their trade or business,
- public service announcements made by public authorities, state owned and publicly funded entities,
- political advertising,
- promotional activities of associations, trade unions and other entities not intended to promote the supply of goods or services, and
- dissemination of information related to activities of socially responsible behaviour in cases that are not considered sponsorship.
Self-regulation and Co-regulation
For the first time in history of Serbian advertising legislation, the Law recognizes the importance of self-regulatory and co-regulatory mechanisms. Industry self-regulation is encouraged, as long as it is within the rules that are set in the Law. As for co-regulation, it is provided that media services providers should develop, subject to the broadcasting regulator’s consent, codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended.
Misleading, Surreptitious and Comparative Advertising
Misleading advertising, i.e. advertising which in any way deceives or is likely to deceive the person to whom it is addressed and which, by reason of its deceptive nature, is likely to affect their economic behaviour and/or injure the competition is prohibited.
Comparative advertising, which was prohibited according to the old law, is now allowed; under the conditions equal to those provided in the Article 4 of the Directive 2006/114/EC, i.e. if, as far as the comparison is concerned:
- it is not misleading;
- it compares goods or services meeting the same needs or intended for the same purpose;
- it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price;
- it does not discredit or denigrate the trademarks, trade names, other distinguishing marks, goods, services, activities or circumstances of a competitor;
- for products with designation of origin, it relates in each case to products with the same designation;
- it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products;
- it does not present goods or services as imitations or replicas of goods or services bearing a protected trademark or trade name;
- it does not create confusion among traders, between the advertiser and a competitor or between the advertiser’s trademarks, trade names, other distinguishing marks, goods or services and those of a competitor.
In addition, Law introduces new remedies to those affected by the misleading or unlawful comparative advertising.
Surreptitious advertising, understood as the representation of goods, services, the name, the trade mark or the activities of a producer of goods or a provider of services that is intended to serve as advertising and might mislead the public as to its nature, is prohibited. Any such representation shall, in particular, be considered as intentional if it is done in return for payment or for similar consideration. However, advertising shall not be deemed surreptitious if the recipient is duly informed, by optical or acoustic means, that particular representation serves as advertising.
Protection of Minors
The new Advertising Law applies a system of graduated regulation to the protection of minors. The advertising rules surrounding children (up to 12 years of age) and young people (12-18 years) are deliberately stricter, aiming to protect minors against harmful or inappropriate advertising and abuse of their credulity.
Audiovisual Media Services
As already mentioned, the rules regulating audiovisual commercial communications that were harmonized with the EU Audiovisual Media Services Directive in the 2014 Law on Electronic Media, covering broadly, broadly, television advertising, sponsorship, teleshopping and product placement, are now incorporated into the new Law.[/vc_column_text][/vc_column][vc_column width=”1/2″][vc_column_text]However, there are some changes and the most important one prohibits insertions of local television advertising catering to Serbian audiences over the original advertising blocks in television channels licensed abroad and retransmitted in Serbia pursuant to the Council of Europe’s Convention on Transfrontier Television, ratified by Serbia in 2009 („Official Gazette of RS“, International Agreements, No. 42/2009).
Outdoor Advertising
Provisions dealing with outdoor advertising are mostly the same as they were in the 2005 Advertising Law. Additionally, the new Law specifically authorizes local authorities to regulate and assess amenity and public safety considerations for the outdoor advertising.
Online Advertising
Online advertising rules contained in the new Law are applicable on advertisements targeting audience in Serbia and under the condition that advertised goods or services may be bought, i.e. delivered in the territory of the Republic of Serbia. Since Serbia has harmonized its electronic commerce legislation with the EU’s Electronic Commerce Directive 2000, mere conduit principle for information society service providers apply. Notice and take down system is implemented in a way that information society service providers are obliged to take down non-compliant advertisements upon the ruling of the authorized authority.
Tobacco and Alcoholic Beverages
Advertising cigarettes and other tobacco products is prohibited. Same applies to electronic cigarettes as well. As for alcoholic beverages, the regime is actually liberalized, when compared to the 2005 Advertising Law. Advertising for alcoholic beverages is allowed:
- in print media, as long as the publication in case is not aimed at minors;
- in broadcast media, for beverages containing less than 20% alcohol by volume only after 6.00pm and before 6.00am, and for beverages containing more than 20% alcohol by volume only after 11.00pm and before 6.00am;
- online, for beverages containing less than 20% alcohol by volume only;
- outdoor, if not in the vicinity of kindergarten, school, health institution, or any other institution intended to minors, for beverages containing less than 20% alcohol by volume only;
- at sport events and in connection with the sports, for beverages containing less than 20% alcohol by volume only.
However, advertising for alcoholic beverages, even when it is allowed, must follow the rules designed to ensure that the content of such advertising is consistent with the need for demonstrating responsibility and moderation in consumption, and that it does not encourage consumption by minors. Finally, each advertisement needs to contain a warning message as a reminder that selling and serving alcoholic beverages to minors is prohibited, as well as responsible consumption reminder.
Nutrition and health claims
Nutrition and health claims must be based on relevant scientific justification or authorized and confirmed by existing regulations.
Gambling
All advertisements for gambling services or products, besides the number of restrictions, designed to encourage responsibility and protect minors, must contain a message as a reminder of gambling age restrictions. Finally, only duly licensed gambling operators are allowed to advertise.
Unsolicited Advertisements
Unsolicited advertisements addressing directly individuals, identified by name or otherwise, are conditioned by obtained consent (opt in) that may be revoked at any time (opt out).
Sponsorship
Sponsorship, as any financial or other contribution made by sponsor to a natural person or an undertaking, with a view to promoting sponsors name, trade mark, image, activities or products, has to be clearly identified as such. News and current affairs programmes may not be sponsored. Sponsorships by undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products, electronic cigarettes, alcohol beverages, or whose activities include the manufacture or sale of medicinal products and medical treatments, as well as gambling operators, are prohibited or restricted.
Fines
Those responsible to monitor the implementation of the new Law, include the Ministry of Trade, Tourism and Telecommunications, Regulatory Authority for Electronic Media and local authorities. Officials responsible for investigating violations of the Law, will be entitled to temporary prohibit publication of certain advertising message and institute proceedings at the Minor Offences Court. Minor Offences Court may impose fines to undertakings starting from 300,000.00 RSD up to 2,000,000.00 RSD and to responsible managers, entrepreneurs and public officials starting from 50,000.00 RSD up to 150,000.00 RSD. Even more, the Minor Offences Court may beside the fine, prohibit undertaking or an entrepreneur to conduct certain business activities for up to one year, or bar a manager from holding managerial position for up to one year, as well.
As there may be additional areas requiring further explanation or clarification, it is recommended that businesses conduct thorough compliance reviews of their advertising activities in Serbia.
If your business is affected by the changes of the advertisement rules, or you have any questions regarding the above, please contact Živković Samardžić Technology, Media and Telecommunications associate Miloš Stojković (milos.stojkovic@zslaw.rs), who was the member of expert group set up by the Ministry of Trade, Tourism and Telecommunications, to provide advice and expertise in relation to the preparation of new Advertising Law, or any of your regular contacts at Živković Samardžić.[/vc_column_text][/vc_column][/vc_row]
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Personal Data Transfers from Serbia in view of the Schrems Ruling and invalidation of the Safe Harbor Decision
Monday, 12 October 2015
Decision 2000/520 of the European Commission (the Safe Harbor Decision), which stated that Safe Harbor certified US companies provide adequate protection for personal data transferred to them from the EU, was ruled invalid by the European Court of Justice (ECJ) on October 6th, 2015, in its Case C‑362/14 – Schrems v [Irish] Data Protection Commissioner judgment.
Safe Harbor certification does not ensure an adequate level of protection!
Following the Snowden revelations in 2013, that private data stored on servers in the United States, owned or controlled by a range of companies active in the internet and technology field, was made available on a large scale to the United States intelligence services, Austrian privacy activist Maximilian Schrems made a complaint to the Irish Data Protection Commissioner, claiming, in essence, that the law and practices of the United States offer no real protection of the data kept in the United States against state surveillance and asking the Commissioner to prohibit Facebook Ireland from transferring his personal data to the United States.
The Commissioner rejected the complaint and argued that the Safe Harbor Decision prevented him from examining whether an adequate level of protection was ensured or not. Mr. Schrems brought proceedings before the High Court for judicial review and the High Court decided to stay proceedings and to refer to the ECJ for a preliminary ruling the question whether the Commissioner is absolutely bound by the Community finding contained in the Safe Harbor Decision, that United States ensures an adequate level of protection under the safe harbor scheme, or the Commissioner may and/or must conduct his or her own investigation, in the light of factual developments in the meantime since the Safe Harbor Decision was first published.
On September 23rd, Advocate General Yves Bot delivered an opinion in the Schrems case, arguing that the existence of a decision adopted by the European Commission finding that a particular third country ensures an adequate level of protection, does not have the effect of preventing a national supervisory authority from investigating a complaint alleging that a same third country does not ensure an adequate level of protection of the personal data transferred and, where appropriate, from suspending the transfer of that data. In addition, Advocate General Bot proposed the ECJ to invalidate the Safe Harbor Decision. The ECJ, in its October 6th judgment found that the Commission in the Safe Harbor Decision failed to duly state reasons that the United States in fact ‘ensures’ an adequate level of protection. Furthermore, the ECJ found that the Commission exceeded the power which is conferred upon it by denying the national supervisory authorities the powers to examine, with complete independence, any claim concerning the protection of a person’s rights and freedoms in regard to the processing of personal data relating to him, i.e. the powers to examine whether a particular third country ensures an adequate level of protection of the transferred personal data.
Other mechanisms for international transfers of personal data available under EU data protection law
European Commission’s First Vice-President Frans Timmermans stated that both the protection of personal data transferred across the Atlantic and the continuation of transatlantic data flows, with adequate safeguards, are amongst Commission’s priorities. This is of extreme importance for more than 4,000 US companies that were relying on Safe Harbor. Commissioner Vera Jourová added that the EU data protection rules provide for several other mechanisms that provide safeguards for international transfers of personal data and that data flows can continue without the Safe Harbor.
Firstly, the Directive 95/46/EC (the Data Protection Directive) itself allows transfers to a third country which does not ensure an adequate level of protection on condition that the data subject has given his consent unambiguously to the proposed transfer, or if the transfer is:
- necessary for the performance of a contract, or
- necessary or legally required on important public interest grounds, or
- necessary in order to protect the vital interests of the data subject.
Other mechanisms for international transfers of personal data available under EU data protection law include model contractual clauses and binding corporate rules. Article 26 (2) of the Data Protection Directive provides that an EU member state may authorize personal data transfer to a third country which does not ensure an adequate level of protection, where the controller adduces adequate safeguards. Such safeguards may in particular result from appropriate contractual clauses. The European Commission has so far issued two sets of standard contractual clauses for transfers from data controllers to data controllers established outside the EU/EEA and one set for the transfer to processors established outside the EU/EEA. Binding Corporate Rules, on the other hand, are internal rules adopted by multinational group of companies which define its global policy with regard to the international transfers of personal data within the same corporate group to entities located in countries which do not provide an adequate level of protection and which are then approved by one lead EU data protection authority. The lead authority handles the EU co-operation procedure with the other relevant data protection authorities i.e. data protection authorities of those countries from where entities of the group transfer personal data to entities located in countries which do not ensure an adequate level of protection.
Finally, restructuring data storage architecture by migrating data servers to European countries to ensure that European data remains in Europe is always an option, but may add significant cost.
How concerned should you be for personal data transfers from Serbia?
Even though not a member-state of the EU, Serbia is a party to the Council of Europe’s Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data and its Additional Protocol regarding supervisory authorities and transborder data flows. According to the Article 2 of the Additional Protocol, Serbia may allow a transfer to a third country that is not party to the Convention only if that country ensures an adequate level of protection. By way of derogation from that rule, Serbia may allow for the transfer of personal data if domestic law provides for it because of specific interests of the data subject, or legitimate prevailing interests, especially important public interests, or if safeguards, which can in particular result from contractual clauses, are provided by the controller responsible for the transfer and are found adequate by the competent authorities according to domestic law.
Serbian Law on Personal Data Protection provides that data may be transferred from Serbia to a country that is not a party to the Convention, if such country has a regulation or a data transfer agreement in force which provides a level of data protection equivalent to that envisaged by the Convention. Authorization for transfer needs to be obtained from the Data Protection Commissioner, who issues such authorization upon consideration whether the requirements are met and safeguards put in place for the transfer. Limited number of submitted requests and authorizations issued allowing transfer to US, serve as an indication that most of transatlantic data flows from Serbia are actually illegal.
Invalidation of the Safe Harbor Decision, even though the Serbian Data Protection Commissioner was never bound by it, shall have its consequences in Serbia, as well. The Commissioner himself issued a statement on October 7th, praising the Schrems Ruling and insisting on Serbia’s obligation to provide its citizens and residents a level of data protection envisaged by the Constitution, the Law on Personal Data Protection and the Convention that Serbia is a party to, same as each and every EU country. That obligation to be fulfilled will require strict supervision and strict supervision may lead to the suspension of unauthorized transfers, imposition of fines and even criminal prosecution of those responsible for unauthorized transfers.
We will monitor further developments and explore how data flows from Serbia will be affected by ECJ’s ruling. For information on data protection related matters in Serbia, please do not hesitate to contact Slobodan Kremenjak (slobodan.kremenjak@zslaw.rs), Vesna Živković (vesna.zivkovic@zslaw.rs), Miloš Stojković (milos.stojkovic@zslaw.rs), or any of your regular contacts at Živković|Samardžić.
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