Five days ago the Rajoy Government approved the preliminary draft of the Law for the Protection of the Life of the Conceived and of Pregnant Women’s Rights.

It is a controversial project, in as much as it collides with the socialist reform of 2010, which regarded abortion as a “woman’s right”, and that did little to emphasize the importance of the designed child.

Zemanta Related Posts ThumbnailThe most recent judgements of the Spanish Constitutional Court have therefore been recognized by the Parliament, guaranteeing the “nasciturus” the right to life which is established in article 15 of the Spanish Constitution. However, this new legal consideration of the fetus cannot be assimilated fully to that of a human being after birth, insofar as it continues to recognize certain legal cases in which an abortion would be allowed.

The most important aspects to be aware of in the proposed reform are that a woman can only abort her child within 12 weeks of gestation is case of rape and within 22 weeks in case of serious danger to the health or life of the woman. In the first case a report of sexual assault is required, while in the second it is mandatory to provide a report from two physicians that indicates danger for the woman.

Article by Mark Athos Franklin, English lawyer at the Rodriguez Bernal law firm.
 
For more articles on criminal law or for more articles in English, click the links provided.
 
Antonio Pedro Rodríguez Bernal
At the Rodriguez Bernal law firm we have a department specialised in criminal law that is highly experienced in assisting clients from many countries and nationalities.
 
For more information about the services we offer on criminal issues, visit our web site or contact us directly.
Email: info@rodriguezbernal.com

Three days ago a Royal Decree-Law was passed aimed at implementing measures to promote labour stability and improve the employability of workers.

It is another initiative aimed at promoting a “flexible” labour market, giving companies a series of recruitment formulas that allow them to save on spending.

com-extHow will the labor reform benefit businesses and to what extent will it negatively affect the rights of workers?

Below, we summarize the most relevant reforms:

1) The possibility of part-time workers receiving overtime has been eliminated, promoting instead the legal figure of “supplementary hours.”

2) The trial period of fixed-term contracts may not exceed one month, unless a labour collective agreement provides for a greater time period. In any case, this period shall not exceed six months.

3) The age of children who can justify a reduction in working hours with proportional reduction of salary has been increased from eight to twelve years.

4) Temporary work companies will be able to give work experience employees to other companies

5)The transformation of these work experience contracts into fixed contracts will be subsidised.

6) The social security contribution rate is reduced by 1% for part-time employees.

Without a doubt, these measures will facilitate business activity. However, it is not so clear that the preference shown by the Government for part-time recruitment is well thought out, given the job instability that it cannot fail to produce. From this page, we will keep our readers informed on future developments…

Article by Mark Athos Franklin, English lawyer at the Rodriguez Bernal law firm.
 
For more articles on Business law or for more articles in English, click the links provided.
 
Antonio Pedro Rodríguez Bernal
At the Rodriguez Bernal law firm we have a department specialised in company law that is highly experienced in assisting clients from many countries and nationalities.
 
For more information about the services we offer on business issues, visit our web site or contact us directly.
Email: info@rodriguezbernal.com

The eagerness of the Government to introduce reforms in business matters has manifested itself once again with a draft for a “Law for the Improvement of the Corporate Governance of Companies”.

Comercio ExteriorThe areas that the law intends to reform include general meeting of shareholders, conflicts of interest, the management of the company, votes, appeals against company agreements and the salaries of the directors, among others.

However, the most relevant modifications relate to three topics: shareholders will approve the policy of remuneration at least every three years, the capital necessary to exercise the rights of minority shareholders is reduced from 5% to 3% and the post of administrator should be held for a maximum period of four years, instead of the current six.

It remains to be see how the subsequent parliamentary processing of the draft will affect it´s content.

Article by Mark Athos Franklin, native English lawyer at the Rodriguez Bernal legal practice. For more articles on business law orfor more articles in English, click the links provided. 
 
Antonio Pedro Rodríguez Bernal
Lawyer and experienced professional in business law. He has participated continuously in company operations for the last 15 years of his legal career, assisting business owners and the self-employed from many different countries and nationalities.
For more information on the services our firm provides in business matters, visit our web page or contact us directly.
 
Email: info@rodriguezbernal.com

justiciaAfter the release of Inés del Río, after the recent and controversial judgment of the European Court of Human Rights on the “Parot doctrine”, it seems that Spanish society has been somewhat disappointed with the functioning of Justice in its country. Not only has a woman condemned to 3.828 years in prison for having committed 24 murders been let out on street, but the Spanish State has also been forced to pay 30,000 euros in compensation (which finally will go to satisfy the civil liability of the crimes). Moreover, the Council of Europe has celebrated compliance with their revision of the Parot doctrine and the release of 69 inmates, 61 of them members of the ETA.

The Parot doctrine, simply explained, refers to a process of determination of the specific sentence that the convicted party will serve in prison. Put another way, our Penal Code sets maximum sentences that can be inforced (40 years, according to the text of the 2003 reform), according to which a conviction such as that of Inés del Río could never surpass this limit. On top of these limitations are the so-called “prison benefits”, among which is the possibility of reducing the sentence through hard work. To give a practical example, a serial killer, sentenced to hundreds of years in prison, would serve a maximum of 40 years and could see his sentence decreased by work done in the prison.

As a response to this mockery of the State’s punitive power, the Supreme Court issued the verdict 197/2006, which allowed the prisoners to reduce their sentences through work, but taking as reference the total sentence (often hundreds of years) and not the upper limit of 40 years. The result was a nearly complete serving of the upper limit allowed by the code and an effective failure to apply the prison benefit system to these criminals.

It seems obvious that the Spaniards have reason to feel betrayed by the recent acts of the criminal justice system, but should carefully consider who is really guilty of the current situation of impunity of the recently released parties. Ultimately, the interpretation that the Strasbourg Court has made seems the most rational and the most consistent with the constitutional principle of non-retroactivity, which does not allow us to apply a rule to criminal acts already produced before its entry into force.

Wouldn’t it be fairer, perhaps, to realize that the present situation has been caused, not by the judges, but by a negligence from our law makers in not reforming our criminal code on these issues and making it unnecessary to resort to formulas like the Parot doctrine by the judges

For more information about proposed reforms to the Spanish Criminal Code, click here.

Article by Mark Athos Franklin, English lawyer in the Rodríguez Bernal law firm.
Antonio Pedro Rodriguez Bernal has been practicing Law for over fifteen years and has extensive experience in criminal matters and in administrative procedures. For more information, visit our webpage’s related section or contact us directly at mathos@rodriguezbernal.com.

It has been three days since the presentation of the draft of the very controversial “Law of Public Safety” in the Council of Ministers. It is a reform that has left few people indifferent, since it affects acts such as insults to public authority or demonstrations without permission before the Congress, that may soon be punished with fines of thousands of euros.

In response to criticism from the public, various precepts of the first draft have been modified. For example, threats or insults to police officers were considered serious offenses in the early drafting of the project, and were punished with fines of up to 30,000 euros. Currently this conduct has been classfied as a minor offense and the fine has a ceiling of 1000 euros.

manifestacion-congresoSimilarly, protests outside the Congress, the Senate or the organs of Government of the Autonomous Communities are not now considered very serious infractions (with a fine of up to 600,000 euros), but they will be serious infractions (a fine of up to 30,000 euros).

There remain some offences punished as very serious, as it is the case of disturbances of security at public events, demonstrations in airports, stations and power plants.

However, the reform has not only been criticised for the severity of its sanctions. The idea of employing administrative sanctions for acts that many believe should only be prosecuted before the courts has also been questioned. It is what some legal experts call the “escape” of criminal law into administrative law, whereby the Government takes it upon itself to substitute judges in punishing criminal behavior. Moreover, when citizens want to appeal administrative penalties, they will have to pay court fees, effectively violating the right of citizens to have affordable access to justice.

Also troubling is the desire of the authorities to limit the right of citizens to organize demonstrations against the Government. While the new law does not directly criminalise demonstrations (which would be unconstitutional), it does foresee penalties for mere participants in such manifestations when they are not properly communicated to the authorities by the organizers. Such previsions create a state of intimidation in the public when it comes to exercising their right to protest.

It remains to be seen if further amendments will be introduced to the text of the preliminary draft. From this page we will keep you informed on the latest developments.

Article by Mark Athos Franklin, English lawyer in the Rodríguez Bernal law firm.
Antonio Pedro Rodriguez Bernal has been practicing Law for over fifteen years and has extensive experience in criminal matters and in administrative procedures. For more information, visit our webpage’s related section or contact us directly at mathos@rodriguezbernal.com.

Spain remains one of the most popular retirement destinations for British retirees and it is estimated that close to one million Britons currently live in Spain. Bearing this fact in mind, it is fundamental to understand something of how British pensions are obtained and taxed in Spain.

Voracidad recaudatoriaA British ex pat can still receive his or her UK state pension providing he or she informs the Department for Work and Pensions and has paid appropriate national insurance contributions, and it will increase in line with pensions paid in the UK. If he or she has ever worked in Spain, it will be necessary to apply to the Instituto Nacional de la Seguridad Social (INSS). However, in any other case, the application is made through the UK.

However, another issue to consider is how to receive a UK pension. Some opt to have their state pension paid directly into their Spanish bank account, while other prefer to have it paid into a UK bank. This choice is important, as having the payments paid directly into a Spanish bank may result in having an unfavorable exchange rate applied on the particular day of the exchange. It is more and more frequent for British permanent residents in Spain to employ companies like Smart Currency Exchange to capitalize on a favorable exchange rate for large sums of money.

With regards to the different classes of pension, it is worth bearing in mind the following:

1. Pension Lump Sums: Note that pension lump sums are tax-free in the UK, but are taxable in Spain if received whilst Spanish tax resident.  That is why it is far more  tax-efficient to take the lump sum prior to becoming Spanish tax resident.

2. Occupational and State Pensions – Occupational and State pensions are only taxable in Spain if you are resident here, and are taxed as a part of your general income. A deduction of between €2,652 and €4,080 is available against such income (the higher the income, the lower the deduction, although it cannot be reduced below €2,652)  in calculating the taxable income.  This income is then taxed at the progressive scale rates from 24% to 43%.

3. Government Service Pensions: Government service pensions (e.g. civil service, local authority, fire service, police, armed forces, and certain teachers, but not NHS pensions) remain liable only to UK tax and are not taxable in Spain.

Transactions on works of art of great value, though lucrative, are often a source of concern for all parties involved, who may not be sure if their efforts will come to fruition. In response to certain irregularities in these operations, a legal figure has appeared at the international level whose presence is increasingly desired in the Spanish territory: the “escrow”.

The so-called escrow contract allows two parties to buy and sell goods or services with security, providing a easy-to-use, safe and cost-effective payment option both for the buyer and for the seller.

Therefore, the escrow agent forms a separate trust account that provides financial protection for the buyer and the seller. An escrow transaction can be started both by the buyer or the seller.

The objective, as is easy to deduce, is to give the customer the peace of mind that their money is safe by keeping his or her funds in the custody of a neutral third party. Once the customer receives the goods or services that have been agreed upon and the agreed terms have been fulfilled, then, and only then, are the funds released to the seller.

GoyaThe escrow process is generally used to disburse cash, but can also be used for exchanging other items of value, such as manuscripts, art objects, and software codes. An escrow can be used in any transaction in which it is important to ensure that all aspects of the contract or any other agreement are met before making a final disbursement.

Antonio Pedro Rodríguez Bernal
Lawyer and renowned specialist in the law applicable to the art market, historical heritage and antiques. He has participated in numerous international transactions of valuable works of art, either as a lawyer of the parties or of the participating dealers. He is frequently invited to radio programmes or interviewed in the press to discuss current issues relating to the Law of art, historical heritage and antiques.
Email: info@rodriguezbernal.com

images (5)As one of the few Spanish law offices that specialises in Art Law, we can confirm that the intervention in the complex world of Works of Art and Cultural Goods  necessarily requires expert advice. In this field of expertise, several areas of practice are involved: Criminal Law (smuggling, crimes against Historical Heritage and crimes against Intellectual Property); Private Law (cultural goods conveyancing and use and enjoyment of cultural goods); International Private Law (international conveyancing of cultural goods, export and import of cultural goods); Administrative Law (procedure of sanctioning dockets, administrative authorizations) and Intellectual Property Law (especially with regards to the works of living authors).

It is our experience that many clients that arrive at our office are unaware of the existence of such strict rules governing Cultural Goods. In fact, it is unfortunate that many only became aware of these rules once they were already iinvolved in contraband crimes or in expropriations proceedings.

The Market of Works of Art and Cultural Goods (movable or unmovable ones) is a market with an important volume of business. Cultural Goods reach astronomical prices in auctions or in merchant conveyancings. The possession, moving, conservation and conveyancing of these kinds of goods must be accompanied by intelligent decisions. This is why the intervention of a lawyer should be mainly preventive.

We work together with real estate appraisers, art appraisers, economists and, of course, other legal experts, both Spanish and from other nationalities. Our field of work is the whole of Spain, although frequently we make business visits to other countries, especiallywithin the European Union or Switzerland.

Our professional intervention is designed to include integral legal advice, both to institutions (museums, foundations, corporations, etc.) and to private individuals, in those matters in which cultural goods (and works of art) are involved. We act in all jurisdictions in Spain.

As a legal specialist in the Art Market, Antonio Pedro Rodriguez Bernal has taken part in many international transactions on behalf either of the parties or the art dealers, contributing to their successful completion with regular advice, negotiation, document and contract-drafting, and revision.
He is frequently invited to radio programmes or interviewed in newspapers to discuss current issues related to the Art Law, Heritage and Antiquities and has solid knowledge not only of Spanish Law but also of those legal systems often applied to art transactions, such as English and Swiss Law.
We offer the services of escrow agents for those cases in which the work is and could be inspected in Spain or, exceptionally, in London.
 
Administrative Interventions:
  • Export and Import of cultural goods.
  • Administrative proceedings relating to cultural goods (inclusion in official catalogues and registries).
  • Subsidies, tax subsidies, economic aid for restoration and maintenance.
  • Administrative authorizations: restorations, maintenance and change of use.

 

Conveyancing:
  • Title checking.
  • First steps of Conveyancing (rights of preemption and buyout).
  • Auctions.
  • Hidden defects liability.

 

Judicial Interventions:
  • Expropriation.
  • Plundering. Confiscation.
  • Administrative sanctioning proceedings.
  • Assistance in criminal proceedings.
  • Smuggling.

 

Legal Advice in Cultural and Art Law

 

Intellectual Property
Francis Bacon
Francis Bacon

The record achieved on November the 13th by a work of Francis Bacon, Three Studies of Lucian Freud (1969), in an auction held at Christie’s, New York, has caused widespread astonishment, featuring on the front pages of newspapers, and, above all, it has revealed to the public just how juicy the art business has become and to what extent it´s profits have and continue to increase even in these times of economic uncertainty.

The auction set an astronomical price, 142.4 million dollars, the highest ever paid at public auction, and the third highest throughout history, beaten only by The Card Players (Paul Cézanne, 1890), which sold for 191.6 million euros, and The Dream (Pablo Picasso, 1932), sold for 116 million euros, both works adquired by private sale.

Three studies of Lucien Freud (1969)
Three Studies of Lucien Freud (1969)

At the same time, the opening of new markets in the Far East as well as the multimillion-dollar promotion of new artists from those emerging countries deserve some considerations. Large auction houses open branches in continental China (Sotheby’s in September of 2012 and Christie’s a year later) that serve to raise altars to local artists. Perhaps more surprising than the auction of the Bacon, is the price reached in October 2013 for The Last Supper, by the Chinese artist Zeng Fanzhi (born in 1964), and based in Beijing, which recreates the homonymous painting of Leonardo da Vinci, where guests eat watermelons. The 23.3 million dollars paid in Hong Kong for the painting, through Sotheby’s, reveal that the art bubble is far from bursting and that, on the contrary, a gap has even opened for the works of “unknown” living authors.

The Last Supper by Zeng Fanzhi
The Last Supper by Zeng Fanzhi

It is significant that the same day that the news of the bankruptcy of Lehman Brothers became known, in September of 2008, the versatile British author Damien Hirst (born in 1965) established a record at Sotheby’s with the sale of 200 works for 177 million dollars.

All of this adds to the panic caused in some countries, such as Spain, by the excessive exportation of works of art, which disappear without a trace, lost due to the weakness of national economies and the thriving market of investors, eager collect new works. Not long ago, I was interviewed on this matter by the newspaper “Veinte Minutos” after the auction of a painting by Sorolla in London.

However, all this flow of capital has been of no benefit to the general public, whose opportunities to enjoy these works have declined drastically due to lack of public funding and private exhibition sponsorship. Carmen Giménez, curator of the Guggenheim in New York, said in an interview to the EFE agency, in August 2013, “to get 1 or 2 million dollars (0.7 or 1.4 million euros) for an exhibition is much more difficult now than ever before”.

The global economic crisis and the effervescence of the art market, even though they might appear to be contradictory events, are perfectly intertwined, as we will explain in part two of this article.

Three studies of Lucian Freud, Francis Bacon (1969)
Three studies of Lucian Freud, Francis Bacon (1969)
 
Antonio Pedro Rodríguez Bernal
Lawyer and renowned specialist in the law applicable to the art market, historical heritage and antiques. He has participated in numerous international transactions of valuable works of art, either as a lawyer of the parties or of the participating dealers. He is frequently invited to radio programmes or interviewed in the press to discuss current issues relating to the Law of art, historical heritage and antiques.
Email: info@rodriguezbernal.com

1384496866_566496332_1-Pictures-of--carpet-cleaningAs you may already know, the regulation of the work of household employees had already been modified by the Law 27/2011, of 1 August, which integrated these workers in the General System of Social Security. However, given the low success of this reform and the large numbers of employees who are still working irregularly, the Government issued the Royal Decree 29/2012, of the 28th December, that entered into force on the 1st of April.

The main innovation of the reform has been the reintroduction of the possibility that a household employee can register him or herself directly in the Social Security, facilitating the possibility that they can work for several employers at once. To do so, there must be an agreement between the worker and the employer and the monthly working time must not exceed 60 hours.

Similarly, the scale of contributions owed to Social Security and  introduced by the reform of 2011 has been simplified. Currently, the contribution rate will be 22 ‘ 90%, corresponding 19′ 05% to the employer and 3’ 85% to the employee.

For more information on the law governing domestic work, residence permits and work permits, visit http://www.rodriguezbernal.com/2011/index.php?lang=en or contact us directly at mathos@rodriguezbernal.com
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