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The Royal Baby Bill May Have Not-So-Royal Implications for the Canadian Constitution

Filed Under: European Union, Gender, Uncategorized, United Kingdom by MMC — Leave a comment
February 3, 2013

British Prime Minister David Cameron set in motion a change to the 300 year-old rules governing heirs to the throne by proposing a bill (hereinafter the Royal Bill) to modify the Royal line of Succession. The modification would eliminate the preference for men over women as heirs to the throne. As the rule currently exists, a female heir may only take the throne if she does not have any brothers – older or younger. However, in October 2011 at the Commonwealth Heads of Government meeting, all 16 countries agreed to modify the centuries-old succession rules.

While all 16 Commonwealth countries have provided written agreements to modernize the rules, each country is still subject to its own legislative procedures. However, this has presented some legal issues for passage in the Canadian Commonwealth. Under Canadian jurisprudence, as quoted by CBC News, the 1701 Act of Settlement is “part of the laws of Canada” and the rules of succession are “by [necessity] incorporated into the Constitution of Canada.” The Canadian Constitution requires that an amendment regarding “the office of the Queen” can only be made when the House, the Senate, and the legislative assembly of each province agree.

This constitutional provision raises several interesting questions.  Does this bill concern the office of the Queen? Or is it just concerning the succession to the throne? One argument proposed by Saskatchewan, as reported by CBC News, claims the Canadian Constitution is only defining the monarch as the monarch of England – whoever that may be. Under this view, the only change that would require unanimous provincial support would be changing this definition. On the other hand, some argue that if the provinces allow the government to “overlook their constitutional right to weigh in on this matter” they may be fundamentally limiting their constitutional right to weigh in on future issues. Any attempt to amend the rules of succession without provincial support may prompt a judicial challenge to the limits of the young Canadian Constitution (patriated in 1982).

However, any delay in passage by one or more Commonwealth Countries will not delay the effective date of the bill.  Any change to the rules of succession will apply to any baby born after the October 11, 2011 agreement. Once passed, the effects of the Royal Bill will be imposed on the unborn child of Prince William and Catherine, Duchess of Cambridge. As a result, if William and Kate have a little girl, their daughter cannot subsequently be bypassed in line as heir to throne if they later have a son.

 

 

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The Selective-Sex Abortion Ban Debate in the United States

Filed Under: Uncategorized by BJK — 1 Comment
January 22, 2013

The debate over selective-sex abortion bans remains a contentious issue in state legislatures across the country. On January 16, 2012, Republicans in the Colorado state senate proposed outlawing abortions that are performed based on the sex of the fetus. The proposed legislation defines sex-based abortion as one “undertaken for purposes of eliminating an unborn child of an undesired sex.” Similar legislation has been considered in the past decade on both the national and state level. Arizona, Oklahoma, Pennsylvania, and Illinois have passed statutes banning the procedure in recent years. In May 2012, the U.S. House of Representatives rejected the Prenatal Nondiscrimination Act (PreNDA) that would have imposed fines and prison terms on doctors who perform sex-selective abortions. In a statement opposing the legislation, Representative Diana DeGette, a Democrat from Colorado, said, “I don’t support abortion for gender selection…I don’t know anyone who does. Maybe that’s because there is no problem in this country of abortion for gender selection.”

Supporters of legislative bans on selective-sex abortions argue that there is evidence of the practice in the U.S. among certain ethnic groups from countries where there is a traditional preference for male children, most notably India and China. U.S. Congressman Christopher Smith, a co-sponsor of the PreNDA, argues that the selective-sex abortion procedure “is part of a deliberate plan of population control” and “is the real war on women.” However, critics of the PreNDA argue that conservative Republicans are targeting a non-issue and have effectually created a staw man.

The selective-sex abortion ban debate implicates some serious constitutional and policy concerns. The chief concern is that the legislation would restrict women’s access to abortion by requiring women to disclose why they are choosing abortion. Similarly, there is a concern that the legislation intrudes on a woman’s relationship with her doctor. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the U.S. Supreme Court held that regulations that place a substantial burden on a woman’s right to have an abortion are unconstitutional. Requiring women to disclose why they are choosing abortion and the imposition of fines and prison terms on doctors would likely be deemed an undue burden on abortion rights. Furthermore, critics assert that legislation could lead to racial profiling of Asian-American women. The constitutional and policy concerns certainly seem to weigh against the selective-sex abortion bans.

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Archdiocese of Philadelphia: No Girls Allowed

Filed Under: Uncategorized by MRB — Leave a comment
January 20, 2013

Caroline Pla is a 5-foot-3 sixth grader who loves the sport of football. She has been playing football since kindergarten and has been playing tackle football with the Catholic Youth Organization since the fifth grade.

Recently the Archdiocese of Philadelphia enforced its “boys only” policy for football, which sent Caroline to the sideline. With two games played in Caroline’s second season, Jason Budd, the deputy secretary for Catholic education for the Archdiocese contacted Caroline’s coach notifying him that since football is a full-contact sport, Caroline could no longer compete.

Caroline’s coach, Chip Ross, was very disappointed and insisted that Caroline was able to compete with the boys and had proven herself as an “All-Star” guard and a defensive end. Caroline’s father stated, “Girls playing football is not something new” and that children should be allowed to pursue their passions, whether that is theater or football.

In an effort to not disrupt the team during the season, Caroline’s parents pleaded with the Archdiocese to let her finish the season, which resulted in her being able to do so. Although she could finish the season, Caroline said, “I’m just really mad that we (girls) don’t get the same opportunity as boys, just because we’re not a boy.” Caroline added, “not only am I not going to be able to play, but girls from all over are not going to be able to sign up, and that’s not fair.”

The Archdiocese argued that the decision to implement the policy and not allow girls to play full-contact sports was for the safety of Caroline and other girls. The Archdiocese stated, “Traditionally, football is a boys only sport due to its full contact nature, and that most parents and players have preferred this but that some now disagree.” In an attempt to re-evaluate the current policy not allowing girls to participate in full-contact sports, an Archdiocesan panel of coaches, pastors, parents and experts in sports medicine will evaluate the current policy.

While the Archdiocese of Philadelphia policy banning girls from participating in full-contact sports serves as their attempt to protect girls like Caroline, opponents of the policy believe it limits the opportunities of girls to participate in activities that are of interest to them.

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Dependent on the European Union for Independence

Filed Under: European Union by BJL — Leave a comment
November 14, 2012

The Kingdom of Spain is facing another major crisis on top of its economic difficulty as the region of Catalonia threatens to secede and form its own independent democratic nation.  If Catalonia secedes, Spain will be losing one of its most economically prosperous regions, further driving Spain into impoverishment.  Catalonia seeks recognition from the European Union to establish its autonomy.  Catalonia claims that it is already a member of the EU because it is a region of the member state, Spain.  The region of Catalonia’s main issue is its status in the European Union, whether or not it is an automatic member or will be required to apply for membership.

If not accepted as an automatic member of the EU, Catalonia will need to fulfill conditions under the Copenhagen criteria in order to join the EU.  This requires a political, economic, and finally the fulfillment of the Maastricht Treaty; requiring each current member state as well as the European Parliament must agree to any enlargement.  Catalonia is a democracy that supports the Euro, is regionally wealthy, and therefore already meets most of the requirements to join the EU.  Catalonia faces difficulties dependent on whether or not the EU would automatically accept it as a member state if it does secede.

The ability to join automatically or require formal application and acceptance is a critical issue for the European Union.  If the EU were to allow the automatic acceptance of a member state’s regions, this acceptance authorization could cause serious division amongst the member states.  The automatic acceptance of a member state’s region into the EU would particularly affect Great Britain, Belgium, and Germany as each nation consists of regions with historically independent cultures.  On November 7th the Catalan President Artur Mas confronted the EU’s hesitant position by saying it would be “illogical” not to accept small, rich, pro-EU Catalonia as an automatic future member if it splits from Spain.  The EU is abstaining from discussing this issue until after the Catalan elections which will take place on November 25th 2012.

The Catalan elections occurring on November 25th are critical for Spain, the European Union, Catalonia, and restless regions of other EU member nations because the elections will force the European Union to take a position on regionalism.  President Artur Mas will seek to secede if his party wins the election, “The question will be if the EU is prepared to offer solutions to countries such as Catalonia, that have the will to be in Europe, that have the same rights as European citizens and that … only to change their political status.”

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Police Misconduct – Solicitation in “Burn Notice”

Filed Under: Entertainment law by ABM — Leave a comment
November 13, 2012

The USA Network’s spy-drama series, Burn Notice, has resumed airing episodes for its sixth season. The series focuses on the life of Michael Westen, a former CIA spy who was “blacklisted” because of a burn notice. Due to his inactive status in the CIA, Michael was forced to move back to his hometown of Miami, Florida. Furthermore, in order to earn money Westen helps citizens of Miami deal with issues that they cannot handle themselves. These issues include, but are not limited to: going undercover to thwart crimes, attorneys having their children kidnapped, and neighborhoods being terrorized by gangs. In order to complete these tasks, Westen enlists the help of: Sam (Westen’s best friend/ex-Navy SEAL), Fiona  (Westen’s girlfriend/former Irish Republican Army agent) and Jesse (Westen’s friend/ex-spy).

In the mid-season premiere episode, Desperate Measures (which aired on November 8, 2012), Ayn, an ex-convict, requests Westen’s help to deal with a crooked detective, Detective Garza, who planted false evidence on her. Furthermore, Ayn informs Westen that Garza looks for gang members to help him plant false evidence on ex-convicts, who Garza believes should not have been released from prison. Thus, Westen gets Jesse to pose as a gang member and approach Garza. Jesse subsequently approaches Garza and, after interviewing Jesse, Garza tells him that he needs help planting false evidence on a local crime boss. Garza further explains to Jesse that he wants to question the crime boss about his involvement in a recent string of crimes committed in the city, but that he has no justifiable reason to take the crime boss into custody. Thus, Garza wants Jesse to plant the false evidence on him. Additionally, Garza meets with Jesse a second time to tell Jesse what he has planned. Garza tells Jesse that he will give Jesse some marijuana to give to the crime boss, and Garza will subsequently pat down and arrest the crime boss, upon finding the marijuana. However, when Jesse meets Garza to obtain the marijuana, Garza tells him that he can’t go against his morals as a police officer. Thus, Garza decides against having Jesse plant the false evidence on the crime boss and tells Jesse that he never wants to see him again.

The legal issue raised by the above events is whether Detective Garza solicited Jesse to commit a crime. Burn Notice is set in Miami, Florida. Thus, Florida law applies.

In Florida, statute 777.04(2) states: “A person who solicits another to commit an offense prohibited by law and in the course of such solicitation commands, encourages, hires, or requests another person to engage in specific conduct which would constitute such offense or an attempt to commit such offense commits the offense of criminal solicitation…”

The first element of the crime is soliciting another to commit an offense prohibited by law. In the episode, Garza told Jesse that he would give him marijuana and have Jesse deliver the marijuana to the crime boss. Under Florida’s statute 893.13(1)(a), it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. Furthermore, one of the controlled substances listed by Florida statute 893.03(1)(c) is Tetrahydrocannabinol, the psychoactive element of cannabis/marijuana. Thus, when Garza asked Jesse to deliver the marijuana to the crime boss, Garza was soliciting Jesse to commit an offense prohibited by law.

Moreover, the second element of the crime is that the solicitor must command, encourage, hire or request another to engage in specific conduct that would constitute the offense. The second element is met because in Garza’s initial meeting with Jesse, Garza requested that Jesse help him plant marijuana on the crime boss. Furthermore, Garza had a second meeting with Jesse in which he told Jesse specific actions to take in delivering the marijuana to the crime boss. In each of these meetings, Garza communicated his desire to have Jesse deliver the marijuana to the crime boss. Garza explicitly requested Jesse to deliver marijuana to the crime boss, on more than one occasion. Hence, the second element of requesting another person to engage in speficic conduct, which constitutes a crime, is met.

However, the fact that Garza ultimately thwarted the crime from being committed works in favor of a defense to solicitation. According to Florida’s statute 777.04(5)(b), if the solicitor solicits another to commit a crime, but the solicitor completely and voluntarily renounces his/her criminal intent and persuaded the other person not to commit the crime or prevented the crime, the solicitor has a defense to criminal solicitation. When Garza and Jesse met up to execute the plan, Garza stated that he could not have the crime committed because it goes against his morals. Furthermore, Garza told Jesse that he never wanted to see him again, and Jesse complied. Thus, it is possible that Garza’s actions may have made the defense, to solicitation, available to him.

The Desperate Measures episode sheds light on a real world problem. In contemporary news, police officers have been accused of planting false evidence to make arrests. Two of the most recent cases involve Illinois police. The first case, taking place in Chicago, involves a police officer that allegedly planted weapons at a residence and subsequently arrested the tenants for making bombs. The Chicago police involved in this case deny that they planted evidence.  Additionally, a police officer in Elgin confessed to planting a cell phone at the scene of a crime, in which the suspect was arrested for battery and robbery of a wallet and cell phone. Moreover, the Elgin officer acted as if he had discovered the cell phone at the scene, and alerted other investigators of his discovery. The officer involved in the Elgin case confessed that he planted the false evidence, so that he could repair his reputation as a police officer. These real world cases show the desperate actions that some police officers will take, in order to prove guilt or make an arrest (as Detective Garza did). Although, Burn Notice is a fictional show, the show’s writers may have attempted to make the audience aware that these issues really do occur.

 

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EU Visa Liberalization – Unequal Outsiders in the Eyes of the EU

Filed Under: Attorneys, European Union, Uncategorized by KBW — Leave a comment
November 12, 2012

Article 18 of the TFEU states that, “Any discrimination on the grounds of nationality shall be prohibited.”  A look at the EU’s recent decisions regarding visa restrictions for third-country nationals makes it clear, however, that this policy can be superseded by Article 77 of the TFEU which vests the European Parliament and the Council with decision-making power regarding the granting of visas to third country nationals. An example of this can be seen in the European Commission’s recent proposal to the European Parliament and Council to add sixteen island nations to the visa-free list, five countries from the Caribbean and eleven from the Pacific islands (see also).  This proposal would allow citizens with a valid passport from these nations to travel within the EU for a period of up to ninety days without the need for a visa.

EU Home Affairs Commissioner Cecilia Malmström and leader for this proposal articulated the rationale behind such measures: “To facilitate travelling for tourists willing to visit Europe, and to spend their time and money, is crucial for our economy, and this is particularly important in a time of crisis, like the one that we are experiencing now.”  A look at the numbers (see IP/12/1177) indicates just how important tourism is to the European Union economy – in 2011, tourism amounted to foreign visitor spending of over €330 billion in 2011 and is estimated to exceed €427 billion by 2022 under the current visa regulations.  Facilitation of tourism through liberalized visa regulations could potentially boost spending by as much as €60 billion.

While this proposal probably came as welcome news to the citizens on the visa-free list, one cannot imagine that all other countries would necessarily share the enthusiasm.  Citizens of Turkey have in the past felt particularly discriminated against by the EU’s visa regulations towards them and have previously petitioned the Commission to adopt a long-term plan to liberalize the EU-Turkey visa requirements. Currently, the visa regulations between the two countries are notably lopsided, with Turkey allowing entry to EU citizens through the simple purchase of a low-cost visa at the border but the EU requiring significantly more extensive documentation, such as airline reservations, proof of insurance and proof of income, and even then, does not ensure entry.  Given the size of the Turkish economy as compared to that of any of the newly proposed island states, it is apparent that economic stimulus was not the only factor at play in the Commission’s proposal.  The EU Commission’s silence with regard to Turkey in this most recent proposal speaks louder than words ever could – that equality and economy must at times yield more immediate concerns.

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Scotland: Independence and EU Membership

Filed Under: European Union by KLJ — Leave a comment
October 31, 2012

An imminent issue is whether Scotland, if it becomes independent, would automatically keep its European Union membership after seceding from the UK. This issue is being raised because there are clear accession rules as to how a State can join and withdraw from the European Union.

Alex Salmond, the First Minister of Scotland, announced his plans to hold a referendum in the fall of 2014 about Scotland leaving the UK and gaining independence. This announcement by Salmond created conflict between Edinburgh and London. Scotland and England were joined by the Act of Union, passed in 1707, which created the UK (which also includes Wales and Northern Ireland). As of today, the head of state of Scotland is Queen Elizabeth II and Scotland has its own government, legal system, and legislature along with representatives in the UK Parliament. The British government has stated that Scotland’s powers do not include constitutional issues and, therefore, a referendum on independence would be illegal. Regardless, the referendum would push the British government to meet with the Scottish government to further discuss the issue of Scotland’s plan for independence.

“A new state, if it wants to join the European Union, has to apply to become a member of the European Union like any state,” said European Commission President, Barroso. To join the EU, the applicant country must meet membership conditions (which include a free-market economy, a stable democracy and the rule of law, and the acceptance of all EU legislation, including of the euro), and then implement all EU rules and regulations. The process is explained in Article 49 of the TFEU. All current EU States must agree that the applying State may join the EU.

In addition to the legal and political issues surrounding Scotland’s independence, Scotland will face other obstacles trying to gain EU membership. The Scottish National Party (SNP) believes that Scotland will keep its current EU membership after its breakaway from the UK. Regional entities do not retain “special status under EU law”. Scotland now has imputed EU membership because the UK is an EU member state and Scotland is a regional entity of the UK. If Scotland secedes from the UK then it will no longer have EU membership and will have to apply for membership like any other county. Obtaining EU membership may be difficult for Scotland because Scotland would need the approval of the current member states including the UK. How likely is this? One cannot predict whether the UK would block Scotland’s entrance into the EU.

 

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Newly Revised EU Financial Regulation Emphasizes Fiscal Accountability in Member States

Filed Under: European Union by CJB — Leave a comment
October 30, 2012

In the midst of the ongoing reforms to the Eurozone in response to the economic crisis, the second, and newest, revision of the Financial Regulation was ushered into existence on October 27, 2012. The Financial Regulation governs core principles of the EU budget and expenditures of EU funds. It originated in 2002, but has been modified only once until now.

This most recent version was designed to simplify the process by which the EU funds European businesses, towns, individuals, students, and other recipients, as well as make the funding process more efficient and accessible by reducing the administrative burden.  Specifically, it promotes innovative measures such as EU trust funds, a greater emphasis on lump sums and flat rates in the grant program, the use of loans, equities, and guarantees to increase the impact of EU funds, and more advanced information technology.

More crucially, however, is the emphasis on fiscal and budgetary accountability. This newest revision of the Financial Regulation coincides with the unprecedented expansion of the Union’s authority over fiscal matters as a reaction to the Eurozone crisis. The destabilization of the Eurozone has led to a consolidation of power in EU institutions in an effort to resolve the crisis and prevent future recurrences, such as the European Stability Mechanism. Accordingly, an official European Commission press release published on Monday links the new Regulation with the crisis, stressing the need for more centralized oversight and accountability over the expenditure of EU funds. Thus, the new revisions correspond to a heightened sense of fiscal responsibility in the Union, such as the tentative plans to impose strict budget deficit limits on member states.  Reflecting this trend towards responsibility, the new Financial Regulation implements more thorough oversight on the budgetary management by the member states. Member states, who manage up to 80% of EU budget expenditure, must now produce annual management declarations which state that funds have been used correctly and are subject to independent audit.

The fact that the Financial Regulation has only been modified twice subsequent to its adoption indicates that changes to it do not come lightly or frivolously. As evident from the contemporaneous economic climate, as well as the content of the Regulation, the Commission deliberately crafted these changes as a reaction to the Eurozone crisis. They signify a larger shift in the EU framework to a more economic centralized authority where member states must further delegate sovereignty over economic matters to EU institutions in order to guarantee the future stability of the EU.

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Setting Fire in the Snow? – Arson in “South Park”

Filed Under: Entertainment law by ABM — Leave a comment
October 30, 2012

Comedy Central’s controversial animated series – “South Park” – has resumed airing episodes of its 16th season. The show is set in the eternally snowy fictional town of South Park, Colorado and centers around the antics of four elementary school aged boys: Stan Marsh, Kyle Broflovski, Eric Cartman and Kenny McCormick. South Park’s latest episode “A Nightmare on Face Time” , which aired on October 24, 2012, was a Halloween themed episode. The episode revolved around Stan’s father – Randy – purchasing a Blockbuster Video franchise. Randy enlists the help of Stan, Sharon (Randy’s wife/Stan’s mother)  and Shelly (Randy’s daughter/Stan’s sister)  to run the franchise’s daily operations. However, the family detests working at Blockbuster because it is a failing business, and never has any customers. Additionally, the family explains to Randy that few people rent movies from Blockbuster because of the advent of RedBox, Netflix, Hulu and other methods of streaming movies online. The failure of the business has a negative effect on Randy, who begins to see, and converse with, ghosts. The family’s hatred for their Blockbuster franchise culminates in Shelly burning down the building. Shelly’s actions raise the issue of whether she committed an act of arson? Because “South Park” is set in Colorado, Colorado law applies.

The Colorado Supreme Court stated, in Copeland v. People, that: “The statute punished [Fourth Degree] arson endangering a person as a felony, and arson endangering only property as a misdemeanor: (1) A person who starts or maintains a fire or causes an explosion on his own property or that of another, and by so doing places another in danger of death or serious bodily injury or places any building or occupied structure of another in danger of damage, commits fourth degree arson. (2) Fourth degree arson is a class 4 felony if a person is thus endangered. (3) Fourth degree arson is a class 2 misdemeanor if only property is thus endangered and the value of the property is one hundred dollars or more. (4) Fourth degree arson is a class 3 misdemeanor if only property is thus endangered and the value of such property is less than one hundred dollars.”

The first element, of starting a fire placing another person in danger of death or serious injury or placing in building in danger, is met because of the circumstances surrounding Shelly’s actions. Immediately prior to Shelly’s setting fire to the building, she is seen pouring gasoline onto the movie shelves in the Blockbuster. Randy then walks up behind Shelly and questions her actions, but Shelly claims that she is doing nothing. Additionally, Shelly subsequently lights a match and throws the match onto the gasoline. After setting the fire, Shelly continues to pour gasoline onto the fire, enhancing the fire’s strength. The aggregation of these actions shows Shelly’s intent to cause damage to the building, and perhaps injure her father.

The second, third and fourth sections of the arson statute are used to determine the severity of the punishment for committing the offense. In this instance, the third and fourth elements are unlikely to be applicable.

The third and fourth sections of the statute apply to situations in which the arsonist only places property in danger of being damaged. As the Colorado Supreme Court states in People v. Garcia, the language of the arson statute is not vague and not difficult to interpret. Additionally, the Colorado Supreme Court stated that the third and fourth sections, of the fourth degree arson statute, apply in situations where only a danger to property exists and there is no danger to human life. Additionally, if there is no danger to human life, and only danger to property, then the arsonist shall be charged with a misdemeanor as opposed to a felony. When applying these principles to Shelly’s burning of the Blockbuster franchise, it is unlikely that Shelly will be charged with misdemeanor arson. The fact that Randy was still present within the building, when Shelly set the fire, shows that Randy’s life was placed in danger by Shelly’s actions. Thus, because Randy’s life, as well as the Blockbuster franchise, was endangered the third and fourth sections cannot be applied to Shelly’s actions.

Finally, the second section of the statute is likely applicable because Shelly placed Randy’s life in danger. The Copeland case states that for fourth degree arson, intent to endanger the safety of another is not necessary. However, it is sufficient if the safety of another is endangered by conduct that is dangerous. Once Shelly set the fire to the Blockbuster building, while Randy was still inside of the building, she placed his life in danger. Furthermore, even if it was not Shelly’s intent to cause harm to Randy, the fact that she placed his life in danger is sufficient to find guilt under the arson statute. Additionally, it is possible that Stan and Sharon were still present in the building, although those facts are not known for certain because Shelly only interacted with Randy prior to setting the fire.  Thus, because Shelly knowingly set fire to the Blockbuster franchise building, and subsequently placed Randy’s life in danger, it is likely that she is liable for arson in the fourth degree.

The issue of arson is raised because Shelly intentionally started a fire, and property was damaged as a result of the fire. Furthermore, human life was endangered as a result of the fire. The burning of the Blockbuster franchise is likely a message, to the viewing public, that video/DVD rentals are becoming obsolete in this new age of technology. Websites like Netflix and Hulu, allow users to view movies and television shows on their computers, cell phones or gaming systems, which eliminates the need for physical copies of movies. Additionally, pricing has become a problem for Blockbuster. Blockbuster charges more for video/DVD rentals than RedBox (Blockbuster charges $1.99 or $2.99 for the first day/ RedBox charges $1.20 for the first day). As a result, more people may rent movies from RedBox because of the less expensive price. Thus, the creators of South Park are relaying a crude message that there is very little, if any, necessity for Blockbuster in this new age of technology.

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Gender Jousting in the EU Institutions

Filed Under: European Union, Uncategorized by KBW — Leave a comment
October 30, 2012

Article 21 of the EU Charter of Fundamental Rights, which is legally binding on all Member States under Article 6 of the TEU states that “[A]ny discrimination on the basis of sex…shall be prohibited.”  Recently, European Union institutions have had an opportunity to demonstrate their thoughts regarding the limits of Article 21 through the discussion of legislation proposed by the European Commission that would require gender quotas for all boards of publicly held companies in the European Union.  Viviane Reding, European Commission Vice President and Commissioner for Justice and Fundamental Rights initially proposed legislation that would require 40% of all publicly listed boards to be made up of women by 2020.

This goal of Reding’s proposal is to address the implied problem with regard to gender diversity in decision-making positions in the EU.  Currently in the EU, women make up only 12% of the boards of publicly traded companies even though 60% of university graduates are women. The implication that arises from these statistics is that gender discrimination is taking place in companies that promote significantly more men to top positions than women, in spite of the large body of women who are qualified.  Such gender discrimination is prohibited under Article 6 of the TEU, and under Reding’s rationale gender quotas would serve to level the playing field for women to gain access to decision- making positions.

While one may be tempted to think that support for this legislation would be divided down gender lines, there has not necessarily been such gender stratification regarding support for this bill.  For instance, Jose Manuel Barrosso, the head of the European Commission, made the decision to postpone a vote on the legislation that, if he had not postponed the vote until November, would have effectively doomed the passage of the bill.  Reding stated that she had support of the main finance commissioners themselves, including Barrosso, Joaquin Almunia, Laszlo Andor, Michel Barnier, Andris Piebalgs, Olli Rehn and Antonio Tajani, who all backed “an ambitious directive.”

On the opposing side, a number of female commissioners opposed the bill. Additionally, Luxembourg MEP Astrid Lulling explained that she was opposed because she thought candidates should be judged based on competency, not gender. She said that many countries, particularly in the Nordic region, had had problems with the quota system.  She cited instances of abuse, circumvention of national gender quota laws, and the fact that in decades past, many women did not study subjects such as economics, business administration or mathematics, which explains why there are fewer women in high-level business positions today.

An equally noteworthy debate was present in the European Parliament’s vote on the European Central Bank’s board nominee, Yves Mensch.  The European Parliament voted against Mensch’s nomination 325 to 300, on the grounds that that a woman should hold a post on what is currently an all-male board.  The European Parliament does not have the power to block Mensch from being appointed, but his rejection by the only EU institution that is elected by popular vote sends a strong message of disapproval to the European Council, the body that is ultimately in charge of filling the post.  Both the European Central Bank nomination rejection and the Commission’s gender quota bill indicate that there is a clear concern in European institutions for women to be part of decision-making bodies in Europe.  The question remains, however, as to how to best achieve this goal.

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