WELMA's Newsletter no. 1 - 2016 - Special Edition
Dear newsletter reader
This issue of our special-edition newsletter includes among other things descriptions of new Ph.D.-projects in Danish Health Law and Taxation. Another new and interesting feature of this newsletter is the shadow judgment in section 2, which also includes an introduction to the feminist shadow judgment project, and the method applied in shadow judgment writing.
We hope you will enjoy this special edition and find it informative and inspiring.
Prof. dr. jur. Mette Hartlev, Head of Centre
In this issue
1. Research trends, PhD-projects
2. Shadow judgements
3. Selected case law: C-67/14 Alimanovic
4. New Publications
1. Research Trends
Socio-legal research project on discrimination and stigmatization of psychiatric patients in Danish health law
By PhD Scholar Annika Frida Petersen
This cross-disciplinary research project examines the issue of discrimination and stigmatization of persons with mental illnesses within Danish health law. The main research question is, to which extend the legal framework of Danish health law contribute to discriminate and stigmatize persons with mental illnesses. The project places the question of stigmatization and discrimination in a human rights context drawing upon selected international human rights conventions such as the UN Convention on the Rights of Persons with Disabilities.
The thesis will examine mental illness as a discriminatory status and will focus on various types of discrimination including direct and indirect discrimination as well as legal and structural discrimination. Building on the results of the aforementioned analysis the thesis will examine the extent and character of discrimination on the grounds of mental illness within Danish health law.
Relying on sociological theories regarding text analysis and reconstructive language analysis, selected sources of law and other legal documents will be analyzed with the purpose of disclosing to what extend different sources of law contribute to establish and sustain various stereotypical and stigmatizing views of persons with mental illnesses. The project also entails the execution of qualitative empirical socio-legal research consisting of participant observation and semi-structured interviews, which will work to explore and exemplify the process of stigma.
Though the project will be written in Danish, the research results and knowledge produced during the project will be sought disseminated in relevant international journals.
An increased focus on research indirect and indirect taxation at WELMA
By Assistant Professor Karina Kim Egholm Elgaard, PhD Fellow Signe Wesenberg-Lund and PhD Fellow Jesper Buus
From a legal, political, sociological and economic point of view, direct and indirect taxation have always comprised numerous interesting topics and issues.
However, since the financial crisis in 2008, the direct and indirect taxation of companies and individuals – cross-border transactions in particular - have moved to the absolute top of the political agenda around the world. The primary background for this "new" interest in tax matters is quite clear: All countries need to fund their operations and activities, and in this respect the collection of taxes play a very significant role as basis for the welfare system etc.
On this background, there is an enormous research potential on tax law topics, which the tax group at Welma proves as the current research projects cover a wide range of major aspects of tax law including taxation of individuals, taxation of corporations, EU-taxation, international taxation, VAT, tax litigation and tax administration.
The three current PhD-projects in tax law at Welma are:
The relationship between tax practice and other legal sources – The Impact and the conditions
By PhD Fellow Signe Wesenberg-Lund
The subject of the PhD thesis is the administrative practice of the Danish tax authorities. This practice has a great impact on tax case law, consequently, a great impact on taxpayers who are subject to the tax case law.
However, it is a diverse legal source that the tax authorities determine themselves, as part of the tax authorities’ internal rules. Such internal rules being rules, which typically in a detailed manner qualify specific acts and events in a tax law context.
The purpose of the thesis is to examine different types of the practice of the tax authorities. The project aims to provide an overview of how administrative practices of tax authorities affect the outcome of tax case law.
The practice of the tax authorities has not yet been theoretically categorized and examined separately in order to determine under what specific conditions and on what legal basis and to which scope different types of administrative practice of the tax authorities work in relation to taxpayers, courts and the tax authorities themselves.
The project will include an analysis and assessment of what the administrative practice of the tax authorities actually is from a substantive tax law, administrative law and constitutional law perspective.
In the twilight zone between debt and equity – Qualification of hybrid financial instruments for Danish tax purposes
By PhD Fellow Jesper Buus
The subject of this PhD thesis is the taxation of hybrid financial instruments and the overall purpose is to study how certain hybrid financial instruments should be qualified for Danish tax purposes. The studies are funded by the Innovation Fund and KPMG Acor Tax under the Industrial PhD-program. This program entails a collaboration between the Innovation Fund, KPMG Acor Tax and Copenhagen University.
In Danish tax law there is a basic distinction between debt and equity and generally, the taxation of securities comprised with each of these categories (shares, bonds etc.) is quite clear although various interpretation issues may, of course, arise occasionally. However, certain securities – so-called hybrid financial instruments - resembles equity in some situations and debt in others. For instance, this is the case for some convertible bonds and for loans with a maturity of 1000 years. The qualification of such instruments for Danish tax purposes is, however, not clear (i.e. should they be treated as equity or debt?).
On this background, the more detailed purpose of the thesis is to analyze the concept of debt from a tax perspective and then apply the derived debt concept on certain hybrid financial instruments by way of a confrontation. The analysis will take the influence from both EU-law and international law into due consideration.
At this early stage of the process, the success criteria of the thesis is to develop a general theory on the qualification of hybrid financial instruments for Danish tax purposes - a theory which can be applied on any hybrid financial instruments to be developed in the future.
The Interaction between VAT Law and Income Tax Law in Respect of Legal Base and EU Law – The Danish Example
By Professor Assistant Karina Kim Egholm Elgaard
The subject of the PhD thesis which will be finalized end of October 2015 is the legal study of the interaction between VAT (value added tax) law and income tax law, more precisely the examination of the different forms of interactions between VAT law and income tax law which can be demonstrated in Danish regulation and case law in relation to the interpretation and application of similar (in the sense of almost identical wording) VAT and income tax concepts.
The purpose of the thesis is to examine whether the actual interactions between VAT law and income tax law which can be established in Danish regulation and case law are in conflict with current valid VAT law and income tax law and/or in conflict with EU law especially EU VAT law. Conflicts with EU law are likely to arise in cases of interaction between VAT law and income tax law as VAT law is primarily based on EU law whereas income tax law primarily is based on national tax law. Thus, the influence from nationally based income tax law to EU-based VAT law will as a main rule be legally unacceptable. Considering the EU context the findings of the thesis on the interaction between VAT law and income tax law are relevant for all EU Member States as other Member States probably face the same problems as Denmark in that regard.
2. Shadow judgement
2.1. Introduction to Shadow Judgments
By PhD fellow Freya Semanda
Shadow judgment writing is a legal method whereby judgments are rewritten. Women's Court of Canada (2006)1 Feminist Judgments Project (2010)2 and
In Women’s Court of Canada (2006) a group of scholars rewrote decisions from the Canadian Supreme Court in order to show how the equal treatment provisions could have been applied more effectively.4 In the Feminist Judgments Project (2010) the method of shadow judgment writing was used to demonstrate what UK cases could have looked like from a feminist perspective. In Diversity and Human Rights judgments from the European Court of Human Rights were rewritten to highlight the position of non-dominant groups. As more shadow judgments projects emerge5 and that the method is increasingly used as a tool at Law faculties around the world, it becomes appropriate to talk about a shadow judgments movement.6
Shadow judgments projects come with a great diversity but the main idea is to rewrite a judgment or a decision under the same rules as the court. Since there is more than one way to apply the law, the method of shadow judgment writing can be used to illustrate alternatives to the original judgment.7 Shadow judgment writing is therefore suited to elucidate arguments, perspectives, minority issues or human rights violations that have been overlooked.
1 Women’s Court of Canada: http://www.thecourt.ca/decisions-of-the-womens-court-of-canada/
2 Hunter, McGlynn, Rackley (eds.): Feminist judgments. From theory to practice. Hart publishing. Oxford, Portland, Oregon. 2010.
3 Brems, Eva: Diversity and European human rights - Rewriting judgments of the ECHR. Cambridge. 2013.
4 Majury, Diana: Introducing the women’s Court of Canada. Canadian Journal of women & Law. No. 1. 2006. Page 11.
5 Northern/Irish Feminist Judgments Project: http://www.feministjudging.ie/, The U.S. Feminist Judgments Projects: http://sites.temple.edu/usfeministjudgments, Feminist International Judgments Project: http://ilg2.org/2014/01/16/invitation-to-participate-in-the-feminist-international-judgments-project/
6 Davis, Margarat: The Law becomes us: Rediscovering judgments. Review article, Hunter, McGlynn, Rackley (eds.): Feminist Judgments. From theory to practice (2010). Feminist legal studies. 20:167-181. 2012.
7 Hunter, Rosemary: The power of feminist judgments? Feminist Legal Studies. 20:135-148. 2012. Page 140.
2.2. Shadow judgement on breastfeeding in public
This shadow judgement is based on the Danish Equality Board’s decision, decided on 8th may 2013. The Equality Board found, a restaurant’s ban on breastfeeding to be direct discrimination against women. However, this discrimination could be justified by legitimate aims; privacy and decency. The ban on breastfeeding was appropriate and necessary to avoid the inconveniences that breastfeeding caused to other customers. On this basis the Equality Board concluded that, the Gender Equality Act was not breached.
By shadow judge Tine Pedersen (LL.M) Translated by project student Stina Hansen.
107/2013, decided on 13th April 2015
Plaintiff filed a complaint against not being allowed to breastfeed her 9-month-old daughter.
During her time at the restaurant the plaintiff breastfed her 9-month-old daughter. This led to a waiter informing her that it was not allowed for women to breastfeed in the restaurant.
Plaintiff left the restaurant.
Statements of parties
Plaintiff claims that the Gender Equality Act was breached.
Plaintiff believes that she is disproportionately disadvantaged by the restaurant's ban on breastfeeding compared to the inconveniences that breastfeeding causes to other guests.
Plaintiff mentions that it is not an option for a breastfeeding woman not to feed their child. The consequence of such a ban is that breastfeeding women always have to ask for permission when they are out in public.
The National Board of Health encourages women to nourish their children by breastfeeding. Therefore, the plaintiff believes that women should not be banned from public spaces on pretence that their behaviour is offensive.
Defendant 1, a restaurant in a department store, argues that it is the act of breastfeeding that is banned from the restaurant. It is not breastfeeding women as a group that is banned. Therefore, there is no differential treatment or discrimination.
Defendant 2, the department store where the restaurant is located, states that the restaurant is the concessionaire and should therefore comply with the concept and profile as defined by the department store.
Breastfeeding customers are welcome in the department store. Following the incident and to solve the problem, the department store allocated an area to breastfeeding.
The department store denies that breastfeeding women are not welcome in the restaurant.
The shadow court's reasoning and decision
According to the Gender Equality Act there shall be no direct or indirect discrimination based on gender.
Plaintiff was not allowed at a restaurant because she was breastfeeding. The shadow court finds that Plaintiff has established facts which support the presumption of discrimination.
On this basis, it falls on the defendant to prove that the discrimination is justified.
Council Directive 2004/113 implementing the principle of equal treatment between men and women in the access to and supply of goods and services forms the basis of the Gender Equality Act.
The starting point is that discrimination is contrary to the Directive. Recital 16 includes a narrow exception under which discrimination can be accepted if justified by a legitimate aim. Any limitation should nevertheless be appropriate and necessary.
The shadow court finds that breastfeeding in itself is not an act of indecency. An act of indecency has a sexual nature. In this society, it is accepted and normal that women breastfeed their children. Also, it is noteworthy that the National Board of Heath is encouraging women to breastfeed their children, preferably until the age of 12 months. As such, it is not rare to see women breastfeed in public.
An infant's need for food can be felt at any time, and it would be unreasonable to both child and mother to deny it. An infant needs to be breastfed frequently, and the mother should not be put in a situation where she is forced to deny that to her own child. If the mother is banned from breastfeeding, the infant is discriminated against by association (discrimination by association). Had it been a man bottle-feeding an infant he would be able to do it, since there is no ban on bottle-feeding in a restaurant. Because it is only the mother who can breastfeed, and this is banned, the infant is discriminated against based on the mother's gender.
The exception in recital 16 must be interpreted narrowly. The principle of non-discrimination is undermined if an exception is interpreted broadly which restricts the protective scope of a right. On that basis, the exception is not applicable and, as such, there is a finding of direct discrimination.
Furthermore, the Shadow Court refers to CEDAW, mainly article 5.
Mothers have the right to participate in society on the same terms as everyone else. A ban on breastfeeding can have an inhibitory effect, by making it difficult, if not impossible, for these women to move outside their private sphere. As a Member State of the EU, Denmark has a duty to ensure women’s participation on the same terms as men.
A ban on breastfeeding has the opposite effect. Women cannot participate in society on the same terms as men due to motherhood. Motherhood is an important social function and should be recognized as such; it should be met with acceptance and tolerance, and not with the charge that breastfeeding is an affront to public decency. Breastfeeding is a natural part of motherhood, and cannot be perceived as an act of a sexual nature or with sexual undertones.
A lactation room does not allow women to participate on equal terms with men. The Shadow Court finds that the fact of having such a room does not give the restaurant the right to ban women from breastfeeding in another section of the restaurant. It is segregation of women if they have to separate from the rest of the public, before being allowed to breastfeed. The lactation room might work as an option for women who wish to breastfeed in a separate room, for example if they feel that it is improper to breastfeed in public.
Based on this, the Shadow Court finds that breastfeeding cannot be regarded as indecency, and recital 16 of Directive 2004/113/EC cannot apply.
Therefore, the Shadow Court finds that there is direct discrimination. This can only be justified if there is a real qualification that attributes a certain benefit to the relevant gender group. This is not the case when the woman's right is restricted.
According to the Gender Equality Act, § 3, discrimination can be justified by a legitimate aim. Moreover, any limitation should be appropriate and necessary.
The Shadow Court does not find that there is a legitimate aim. The ban on breastfeeding is a breach of the Gender Equality Act.
Conclusion of the Shadow Court
The Shadow Court decides in favour of the Plaintiff and orders the payment of a compensation of 2500 DKK.
3. Case Law
Further limits to Union citizens’ equal treatment rights
Ruling in Case C-67/14 Alimanovic, delivered on 15 September 2015
By PhD Fellow Katrina Hyltén-Cavallius
The Court of Justice of the European Union’s ruling in case C-67/14 Alimanovic, decided in Grand Chamber and delivered on 15 September 2015, confirms and continues the rationale of the much debated ruling in Case C- 333/13 Dano (read previous WELMA comment on Dano in the WELMA Newsletter)
Like Dano, the Alimanovic-ruling concerns the extent of a migrant Union citizen’s right to equal treatment to the nationals of the host Member State, for access to social assistance. In Alimanovic (para. 49-50), the Court confirms its rule in Dano that a host Member State may lawfully refuse social assistance to non-economically active Union citizens who do not fulfil the requirements for lawful residence under the Free Movement Directive 2004/38. The Court then furthers its emphasis on the Directive’s explicit conditions for a right to equal treatment and rules that social assistance may be denied Union citizens who are lawfully residing in the host Member State but whose status has changed from being “workers” to “job-seekers”.
The two applicants in Alimanovic were Swedish nationals who had worked in the host Member State Germany, but were now without employment and looking for work. Art 24 (2) of the Directive entitles Member States to refuse social assistance to Union citizens who are job-seekers, and the Court rules that this lawful refusal applies also to persons in a situation like the applicants in Alimanovic. While they may be residing lawfully in Germany in accordance with the Directive, their right to equal treatment to the host State’s own nationals in respect of access to minimum welfare may be limited.
Although the outcome of the ruling followed the rationale of cases like C-140/12 Brey and Dano, there are two noteworthy points in the Court’s reasoning that set the Alimanovic-ruling apart. Firstly, the Court refrains from extending the scope of who can retain the status of being a worker beyond the wording of Article 7(3) in the Directive. This contradicts its ruling in case C-507/12 Saint-Prix. Failing being employed for more than 12 months, the applicants in Alimanovic could not maintain their status as workers beyond six months after the employment ended. As a consequence, they fell into the category of job-seekers again and lost their right to equal treatment.
Secondly, and most noteworthy, the Court finds that, while an assessment of the individual situation of the Union citizen with due regard of the principle of proportionality is necessary for the State’s withdrawal of a right of residence or an expulsion measure, such individual regard is not necessary for the issue of a Union citizen’s equal treatment rights for access to social assistance. The Court holds that the Directive contains sufficient consideration of individual circumstances and an adequate level of legal certainty, which allows for a more categorical assessment of Union citizens’ right to social assistance (para 58-61).
Alimanovic thereby furthers the trend in the Court’s recent case law, affirming that a non-economically active Union citizen’s legal standing in a host Member State is conditioned primarily or solely by Directive 2004/38 and less by the Union citizenship provisions of the Treaties and general principles of EU law.
4. New Publications
Jens Kristiansen: The growing conflict between European uniformity and national flexibility
There is a crowing conflict between European uniformity and national flexibility. This book examines the pressure put on the flexible labour law system by EU directives and the case law of Court of Justice of the European Union (CJEU)
Katarina Hyltén-Cavallius: The Use of Personal Identity Numbers in Sweden and Denmark: A Barrier to Union Citizens’ Enjoyment of Free Movement Rights?
Ida Helene Asmussen: Performing Absolution Narratives in Restorative Justice" in the Routledge Journal, Restorative Justice - An International Journal, vol. 3 (1), 2015, p. 28-48.
Mette Hartlev: “Genomic Databases and Biobanks in Denmark”, Journal of Law, Medicine and Ethics, 2015, pp. 743-753.
The article maps and explores and the complexity of the Danish legal landscape regarding biobank research and discusses the suitability of the current legal framework in light of developments in genetic research.
Henriette Sinding Aasen, Mette Hartlev and Anne-Mette Magnussen: “The right to hospital care and prioritisation from a law and policy perspective: The experiences of Norway and Denmark”,European Journal of Social Security, Vol 17 (4), 2015, p. 409-435.
The article analyses the regulation of access to hospital care in Norway and Denmark, from a law and politics perspective. It explores similarities and differences between the two countries with respect to the objectives of the regulation and formulation of the right to hospital care, and how the interplay between law and politics – and juridification and politicisation – is expressed and managed in the regulation. The article concludes that even though there are differences between the two countries in the extent of juridification, the regulation in both countries still leaves room for continued political governance of issues related to the prioritisation of health care services.
WELMA - CENTER FOR LEGAL STUDIES IN WELFARE AND MARKET
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Sendt d. 28. januar 2016