Easier Cross-Border European Contracts?

The European Commission has undertaken a consultation into how contract law could be harmonised within the EU.  This is aimed at removing the barriers of cost and legal uncertainty which presently impede cross-border trade within the EU.  This is of particular concern to small and medium sized businesses who either cannot afford advice on the legal implications of cross-border contracts and expose themselves to risk as a result, or incur unwanted costs getting appropriate advice.  In July 2010, the Commission identified seven options for harmonisation. These ranged from creating legislative ‘tool boxes’ for Member State governments to draw upon when drafting their own laws through to establishing a single mandatory system of European contract law.

The Commission’s preference is for an ‘optional instrument’, a comprehensive, stand-alone body of rules which parties could nominate to govern their contract in place of the laws of any one Member State.  On the surface, such an idea could be attractive: the same rules could apply wherever you do business – which would go some way towards the law catching up with internal market in which we operate.  However there would be massive upheaval required to implement this. For instance, some basic principles of contract law vary between Member States, so questions on pre-contractual issues or on the very existence of a contract could well stray into difficult gray areas without extensive legislation.

The Commission is not expected to formally table their proposal until autumn, so actual legislation is not likely to surface for some years.  Many questions on both the technical and practical aspects of the proposal remain to be answered, yet events are in motion and the way in which business is conducted within the EU might well change substantially, and for the better, in the years to come.

Stewart Dunbar
Trainee Solicitor

The data sharing code of practice – a smarter way to share

The Information Commissioner published a statutory Code of Practice on Data Sharing on 11 May 2011.  When launching the Code, the Commissioner noted that “organisations that don’t understand what can and cannot be done legally are as likely to disadvantage their clients through excessive caution as they are by carelessness”.  Accordingly, the Code is aimed at improving understanding and increasing efficiency within the field of data processing.  The law has not changed: this is simply a model for good practice.

The Code provides guidance on two particular types of data sharing: ‘routine’ sharing, where the same organisations frequently swap or pool information for a certain purpose, and ‘one off’ instances, which could include sharing of information in an emergency.  The kind of practical tips offered by the Code hint at the broad approach that the Commissioner expects data handlers to adopt.  For instance, they advise organisations that share data with each other to ensure that information is held in a standardised way and that their respective processing systems are wholly compatible.  This is to ensure that data is not corrupted or inadvertently altered; a useful reminder that the Data Protection regime is not just about guarding against unauthorised leaks of information, but also about maintaining the accuracy and usefulness of data within today’s ‘information society’.

The Code also provides case studies which illustrate what organisations can and cannot do when presented with particular problems.  Even those already familiar with the letter of the Act may find these useful in finding better ways to comply.  The Code of Practice and the accompanying summary checklists can be found at the ICO’s website: www.ico.gov.uk.

The corporate and commercial team at Blackadders is on hand to assist those looking to re-evaluate their data protection procedures in light of the Code.

Stewart Dunbar
Trainee Solicitor

Paternity leave – more reform on the horizon

The Additional Paternity Leave Regulations 2010 came into force on 6 April 2010 and offered fathers the opportunity to become more involved in their child’s upbringing. Essentially, these regulations allow mothers to transfer part of their maternity leave to their partner or the child’s father. The UK Government is now proposing further reform on this topic in the form of a new system of flexible parental leave from 2015. The Government has launched a consultation on its proposals. Ministers say that the aim is to help both parents and employers by allowing them greater choice and flexibility than is afforded by the current regulations which are said to be too rigid and reflect outdated notions of parenting. The proposals provide for parents sharing any leave allowance remaining after the early weeks of paternity and paternity leave have expired. This shared leave could be taken in different chunks and, unlike the current system, parents could both take leave simultaneously. However, if agreement as to the timing of leave is not possible, employers would be able to require leave to be taken in one continuous period. Employers would also be able to ask staff to return from leave temporality to meet any peaks in their business requirements. The aim is to provide greater flexibility to allow for paternity arrangements which suit mothers, fathers and employers. The proposal also details the Government’s intention to extend the right to request flexible working to all employees. The current system offers this right to parents of children under 17, of disabled children under 18, and to certain carers. On another related issue, the consultation also sets out proposals to amend the UK Working Time Regulations 1998 (WTR) to comply with recent decisions of the European Court of Justice. These European decisions have held that where an employee is on sick leave, they are entitled to be reimbursed for any holiday entitlement which they have missed during the period of absence. This could mean carrying the leave forward to the next leave year which is currently prohibited by the WTR. The proposals recommend amending the WTR to the affect that where an employee has been on sick leave, the 4 weeks basic leave entitlement could be carried forward to the next leave year. However, the additional 1.6 weeks and any further contractual leave could not be carried forward. The consultation document is at http://c561635.r35.cf2.rackcdn.com/11-699-consultation-modern-workplaces.pdf.

Jack Boyle
Trainee Solicitor