David Cameron seeks to restrict access to websites with adult content by default, blocking these web sites from computers, tablets or smartphones and beginning in 2014. The Prime Minister proposes a general block on pornographic web pages, a measure which in Spain would clearly be against free competition, as well as the right to privacy and freedom of expression.
This initiative, which aims to protect children, has created a stir, since it directly attacks the right to privacy of the users, since users who wish to access these types of websites must expressly request the deactivation of this tool from their Internet Service Provider. In effect, the British Government will have created a kind of register for people who decide to open up access to adult websites on their computers.
As of yet, Cameron´s announcement is only a project, albeit one that appears to discriminate against a legal industry and produce censorship on the net. It is worth noting that, up until now, censorship on the internet has been associated with topics like the promotion of terrorism or works protected by copyright laws and did not have a social or ideological motivation.
However, it is doubtful that such legislation could come into force in Spain. Many articles of the Spanish Constitution protect the freedom of expression (20), freedom of enterprise (38) and the prohibition on censorship without a prior judicial decision (20.5).
Article published by Mark Athos Franklin, native English lawyer at the Rodriguez Bernal legal practice.
The art market is a prime example of British achievement in a highly competitive global environment. Britain has 29% of the global art and antiques market and is the second largest market in the world, second in size only to the United States. The British art and antiques market generated £7.7 billion in sales and directly supported over 60,000 jobs in 2009.
This success is based, above all, on a fiscal and regulatory environment that has enabled the UK to attract the greatest works of art for sale because this market is highly dependent on crossborder trade: in 2009 art to the value of £2 billion was imported into the UK and exports totalled £2.2 billion.
In contrast to other regulations on continental Law, like Spanish, French or Italian, which are characterized by rigidity, UK legislation on cultural goods are more flexible and less protective that the first ones.
The comparative chart below despictes the differences between Spanish and English Regulations on Cultural Goods and explains itself why the English market of works of art is so relevant in the world.
COMPARATIVE CHART OF ENGLISH AND SPANISH REGULATIONS ON CULTURAL GOODS
|UNITED KINGDOM / FLEXIBLE SYSTEM||SPAIN / RIGID SYSTEM|
|NATIONAL TRADE||GENERAL RULE||-Free trade||-Right of first offer-Right of repurchase|
|EXCEPTIONS||-Treasure finds||Free trade: Goods non registered in Public Registries created for this purpose (Inventario General de Bienes Muebles e Registro de Bienes de Interés Cultural)|
|INTERNATIONAL TRADE||EXPORT LICENSE||-Certain cultural objects more than 50 years of age and valued above specified financial thresholds.||-For those cultural goods belonging to Spanish Heritage and:-More that 100 years of age-or registered in Inventario General de Bienes Muebles or in the process to be included in it.-Unexportable goods: Cultural goods registered in Registro General de Bienes de Interés Cultural or in the process to be included in it.|
|TERM TO GRANT||-In case it is considered the object does not satisfy any of the Waverley criteria, the licence can be granted in about 2 weeks.||–About 3 months.|
|CRITERIA TO GRANT||An object does not satisfy any of the Waverley criteria.-History–Aesthetics-Scholarship||-Undetermined criteria|
|IRREVOCABLE OFFER||NO. If export license is refused applicant continues being owner.||YES. State can acquire the cultural goods within the term of 3 months from the day of application submit in exchange for paying the value declared by the applicant.|
|INFRIDGEMENT||-Subject to penalties including criminal prosecution under the Customs and Excise Management Act 1979.-Subject to seizure under the provisions of the same Act.||-Subject to penalties including criminal prosecution under Criminal Code.-Subject to seizure under Spanish Heritage Act (Ley 16/1985, de 25 de junio, del Patrimonio Histórico Español)|
Free trade as rule, restraints as exception
Finds found in England, Wales or Nothern Ireland
With the exception of Treasure finds all archaeological finds found in England , Wales or Northern Ireland are normally the property of the landowner. If the object has been recently discovered and the person selling the object is the finder, then they will need to have the permission of the landowner on whose land the object was found before they can sell it.
Whatever is the age of these objects can be sold in England or Wales without almost any obstacle. Non-Treasure finds found in England or Wales may have been recorded with the Portable Antiquities Scheme (a voluntary scheme to record archaeological objects found by the public) and therefore documentation may exist to show where an object was reported as being found and whether it has been properly recorded. It is convenient to do this in order to justify the provenance and the legal title to sell the object later.
According to Treasure Act 1996 and Treasure (Designation) Order 2002: the following finds are Treasure, if found after 24 September 1997 (or, in the case of category 2, if found after 1 January 2003 ): Mainly, some kinds of metallic objects (normally coins) with a certain age and proportion of precious metal.
Rest of works of art
Rest of works of art enjoy (pictures, sculptures, etc) this same freedom of trade.
On the contrary, in Spain it is set up a right of first offer and repurchase (derecho de tanteo y retracto) in favour of State and Region -Comunidad Autónoma- in respect to those cultural goods registered in Public Registries created for this purpose (Inventario General de Bienes Muebles e Registro de Bienes de Interés Cultural). Both public bodies have the term of two month as to decide whether they acquire the cultural property. So this proceeding complicates remarkably commerce and dissuades from purchasing cultural properties.
The export licensing controls for objects of cultural interest are designed to balance the need to keep nationally important objects in this country, the rights of owners and the encouragement of a thriving art trade. the rights of the owner selling the goods; the exporter or overseas purchaser; and the position and reputation of the UK as an international art market.
When must we apply for an individual export license?
Certain cultural objects more than 50 years of age and valued above specified financial thresholds will require an individual licence for export out of the United Kingdom whether on a permanent or temporary basis.
However, if you can provide evidence with your licence application that the object arrived in the UK within the last 50 years, your application will not normally be referred to an Expert Adviser. If there is no referral to an Expert Adviser, the licence can normally be granted within five working days from receipt of the application.
It must be applied export license for those cultural goods belonging to Spanish Heritage with more that 100 years of age or registered in Inventario General de Bienes Muebles or in the process to be included in it.
Cultural goods registered in Registro General de Bienes de Interés Cultural or in the process to be included in it are unexportable.
Term to decide: 3 month
Tax: from 5 up to 30% of the declared value.
Cultural good of national importance
An Expert Adviser may object to the granting of a licence if he or she believes that an object satisfies one or more of the Waverley criteria. If the Expert Adviser objects, the Export Licensing Unit refers the licence application to the Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest. If no objection is lodged, the export licence will normally be granted. Usually, Expert Advisers collectively object to the granting of licences for about 25 to 50 objects each year out of a total of approximately 3,000 applications (covering approximately 20,000 items) referred to them.
In Spain, the concept “Spanish Heritage” is a very broad concept which comprise almost any good with a simple relevance although is of foreign provenance.
Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest
The Reviewing Committee is a non-statutory independent body set up to advise the Secretary of State on whether a cultural object which is the subject of an application for an export licence is of national importance under the Waverley criteria.
What are the Waverley criteria
Objects are assessed against the following three criteria (named after the 1950 committee chaired by Viscount Waverley which was appointed to consider and advise on an export policy).
History: Is it so closely connected with the UK history and national life that its departure would be a misfortune? Waverley 1
Aesthetics: Is it of outstanding aesthetic importance? Waverley 2
Scholarship: Is it of outstanding significance for the study of some particular branch of art, learning or history? Waverley 3
The three Waverley criteria which are used to measure an item’s importance are not, and never have been, mutually exclusive, nor is any one criterion more important than the others. All items that meet the Waverley criteria are designated national treasures whose departure from the country would be a misfortune. An object need only meet one criterion to be deemed of Waverley standard.
Meeting is convened
When an export licence application is objected to by an Expert Adviser it is referred to the Reviewing Committee. Prior to the meeting the applicant is invited to submit a written statement to the Committee giving reasons why, in his or her opinion, the object does not satisfy any of the Waverley criteria. The Expert Adviser likewise submits a written statement as to why he or she believes the object satisfies one or more of the Waverley criteria. The Secretary to the Committee ensures that all parties see both statements one week before the meeting.
Appearing at the hearing
Applicant and one expert chosen can appear at the hearing, submit question and be asked.
Offer to purchase
If the Committee finds that the piece satisfies some of the Waverley criteria, it recommends to the Secretary of State that a decision on the licence application should be deferred for a specified period to enable an offer to purchase to be made at or above the fair market price, which will also be recommended by the Committee. (Normally an item is deferred for between two and six months although the Committee can recommend a longer or shorter deferral period).
If an owner receives an offer to purchase from a public body, he or she is free to accept or reject it. There is no compulsion on an owner to sell. However, where an owner does not accept an offer from a public body, the Secretary of State will take the existence of the offer into account when making a decision on the licence application, and will normally refuse a licence. Similarly, where an owner makes known his or her intention to refuse an offer from a public source, the Secretary of State will normally refuse a licence.
If an owner receives a private offer to purchase, again he or she is free to accept or reject it. There is no compulsion on an owner to sell. However, where an owner does not accept an offer from a private source, the Secretary of State will determine whether to grant the licence. In so doing, the Secretary of State will normally take the existence of an offer into account only where the private offer is combined with a signed undertaking that the offeror guarantees reasonable public access and satisfactory conservation and security arrangements. It is for the Secretary of State to decide whether the undertaking is adequate, but as a guideline, the following will be expected: a) reasonable public access to the object in a public institution. As a guideline, access for a minimum of 100 days a year (except in exceptional circumstances) will normally be considered to constitute reasonable public access; b) satisfactory conservation conditions and security arrangements; c) agreement not to part with ownership within ten years without obtaining an undertaking from the purchaser guaranteeing comparable requirements on access, conservation, security and re-sale; and d) confirmation by the public body concerned that it will facilitate the access guaranteed by the undertaking.
If the applicant accepts an offer to purchase, from either a public body or private source, your licence application will automatically be treated as withdrawn.
The value declared in the application will be considered as irrevocable offer in favor of State. In the term of three months this offer could be accepted.
Export licence should be granted
If the object does not satisfy any of the Waverley criteria, the Committee recommends that the export licence should be granted.
If the applicant does not receive an offer to purchase, your export licence will normally be granted at the end of the deferral period, although in some circumstances the Secretary of State may decide to defer a decision on your licence application for a further period.
If an object is presented to Customs for export without an export licence where one is required, the exporter and any other party concerned with the unlicensed exportation may be subject to penalties including criminal prosecution under the Customs and Excise Management Act 1979. The unlicensed object may also be subject to seizure under the provisions of the same Act.
- Treasure Act 1996: There is a legal obligation for all finders of Treasure to report these to a coroner within 14 days of making the find, or realising the find was Treasure. Penalty: imprisonment for up to 3 months and/or a fine up to £5,000.
- Dealing in Cultural Object (Offences) Act 2003: It is illegal to knowingly sell, buy or deal in tainted cultural objects (objects of historical, architectural or archaeological interest) illegally excavated or removed after 30 December 2003 . Penalty: imprisonment for up to 7 years and/or an unlimited fine (in the Crown Court).
- The Theft Act 1968 and Trespass may also be applicable.
- Customs and Excise Management Act 1979.
- Ley 16/1985, de 25 de junio, del Patrimonio Histórico Español.
Sevilla Appeal Court (Civil Division) handed out an overwhelming judgment against abusive bank activity. The judgment contains a declaration of nullity of a contract “swap” (called “Clip Bankinter”) and condemn the bank to refund the client in 52.000,00 € and pay all the costs.
The AC judgment includes many interesting pronouncements as we summarize below:
Bank must justify client was duly informed on all essential elements of the contract. Bank must be sure that the client has understood all possible risks involved.
The contractual clauses referred to risks are very confused and ununderstandable.
Whereas the bank had reserved the right to terminate the contract in case of variation of circumstances taken into account to enter into the contract, the client had not similar right, whereupon the relationship was unequal.
Whereas the bank hardly assumed any risk, the client assumed serious ones. In fact, so it happened and the client was seriously damaged.
Absolute imbalance between bank and client.
Judgment describes the contract as “case paradigmatic of abuse of dominant position of the bank in relation to the client”.
Contractual good faith is a special requirement that must be always observed in bank activity.
Finally, this is one of few judgments in Spain which expressly says the swap was sold as a mere insurance contract by the branch manager. A clear case of negligent or fraudulent misrepresentation.
Antonio Pedro Rodríguez Bernal was the plaintiff’s lawyer in all instances of this civil proceeding. This judgment has already become unappealable.
Read the complete article in Spanish.