Juridica

What Flexibility Does an Employee with Autonomous Decision-making Powers Bring into the Employment Relationship?

Merle Erikson — 2024-05-23 16:14:08

Pursuant to Article 17 (1) a) of the Working Time Directive 93/104/EC, adopted by the Council of the European Union in 1993, the provisions on working time and rest periods laid down in the Directive could not apply to persons with autonomous decision-making powers. This rule is also included in the same wording in the current EU Directive 2003/88/EC regulating working time and rest periods (the Working Time Directive).

Article 17 (1) a) of the Working Time Directive provides that ‘with due regard for the general principles of the protection of the safety and health of workers, Member States may derogate [...] when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves, and particularly in the case of [...] managing executives or other persons with autonomous decision-taking powers’. Thus, the Working Time Directive gives the employer the possibility not to apply the rules on working time and rest periods as a whole to persons with autonomous decision-making powers, which allows for a more flexible organisation of work. In Estonia, the exception for employees with autonomous decision-making powers is provided for in the Employment Contracts Act and the Sport Act.

The objective of the article is to find an answer to the question of what flexibility the regulation of an employee with autonomous decision-making powers provides to the employment relationship. In order to achieve the objective, the author examines which employee has autonomous decision-making powers, what is the arrangement of their working and rest time, and how do the rules of the Employment Contracts Act relate to the Working Time Directive and the Sport Act.

Private Copying Fee and Its Distribution Challenges

Aleksei Kelli, Age Värv, Kärt Nemvalts — 2024-05-23 16:14:39

Subsection 26 (1) of the Copyright Act permits the reproduction of audiovisual works or sound recordings of such works for private use; the holder of the rights (the author, the producer of phonograms and producer of the first fixation of a film), however, has the right to obtain equitable remuneration for such use. It is an indemnity known as the ‘private copying fee’ (also known as ‘blank cassette remuneration’) and is intended to compensate rightholders for the harm they suffer as a result of such reproduction of works (in particular, such harm being the lost profit of the rightholder).

Today’s general framework for the regulation of the private copying fee derives from European Union law, more specifically the InfoSoc Directive. Under Article 5 (2) b) of the Directive, Member States may provide for exceptions to the reproduction right [...] ‘in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation’. The Court of Justice has emphasised the considerable discretion of the Member States in determining the elements of a system of fair compensation, including the determination of the category of persons liable for and entitled to compensation, as well as the form and amount of the compensation and the arrangements for collecting and paying the compensation. Due to the active exercise of this discretion, there are considerable differences between the private copying fee systems in place in the Member States of the European Union.

The article analyses the system of distribution of private copying fees in different countries and compares it with the Estonian system, with the aim of serving as an inspiration to finding the best solution in this dynamic field.

Presenting an Individual for Identification in a Line-up in Criminal Proceedings

Meris Sillaots — 2024-05-23 16:14:50

As the law is rather vague on the requirements for presenting an individual for identification in a line-up, this article will focus on the relevant requirements to be followed with regard to the manner of presenting an individual for identification in a line-up, and in the preparation and presentation of an individual for identification in a line-up. These requirements are important because a failure to comply with them may render the result of the submission for identification in a line-up unreliable or untrustworthy.

In general, repetition of the presentation for identification in a line-up is unnecessary, as only the first result of the presentation for identification in a line-up will normally be taken into account as evidence. The question posed by the prosecutor to a witness during the examination of the evidence, as to whether he or she recognises the perpetrator of the offence in the accused or whether the perpetrator is present in the courtroom, is irrelevant. It is the submission of a repeat and individual identification in a line-up.

Case law could be shaped in such a way that the court could rely on the fact of identification in a line-up as recorded in the report of an identification line-up, even if the witness’s testimony in court on cross-examination as to the characteristics of recognition diametrically contradicts the testimony given in the pre-trial investigation. Thus, statements made during pre-trial proceedings in connection with the submission of testimony regarding an identification line-up could also be considered reliable. In order to safeguard the report of an identification line-up as evidence, the defence counsel could be given the opportunity to review the report of an identification line-up during pre-trial proceedings and then to question the witness or the injured party about the circumstances surrounding the identification line-up. The questions of the defence counsel and the responses of the witness could be entered in the report of an identification line-up.

Shock Imprisonment and Probation

Jaan Sootak — 2024-05-23 16:15:02

Subsection 73 (1) of the Penal Code provided, in its original version, that the court may order suspension of the imprisonment or pecuniary punishment on probation in full or in part. In the case of partial non-enforcement of a sentence, the court determined, pursuant to subsection (2) of the same section, which part of the sentence was to be borne or paid immediately and which part was suspended on probation. Probation is not an independent type of punishment, but one of the ways in which the sentence is individualised. Shock imprisonment must contribute to the successful completion of the period of probation. Thus, shock imprisonment has not been intended to increase the repressive nature of the sentence, but as part of the release on probation mechanism. The purpose of this mechanism was to avoid the harmful effects of a custodial sentence, and shock imprisonment was intended to contribute to alleviating its effects.

The well-intentioned construction of the legislator and the case-law was cancelled out by the laws of 14 June 2017 and 20 February 2019. These amendments introduced the obligation of the court to apply shock imprisonment in certain cases. The author criticises the significant reduction of the court’s margin of discretion and considers that the legislator has jettisoned all the considerations of applying or not applying shock imprisonment.

Public Interest, Interest of the Public, and Protection of Personal Data

Geili Keppi — 2024-05-23 16:15:13

The right to the protection of personal data is a fundamental right that has, inter alia, been established by the General Data Protection Regulation (GDPR) since May 2018, and specified in Estonia by the Personal Data Protection Act, which entered into force on 15 January 2019. Both of these legislative acts use the concept of ‘public interest’ in different contexts. The GDPR has also listed various situations that may concern public interest.

It is probably no surprise that ‘public interest’ and ‘interest of the public’ are not synonyms. However, ‘public interest’ may cover completely different situations even within a single Act, therefore placing those who interpret and implement the law in a difficult position. A balance needs to be found within fundamental rights in a situation in which the legislator has not expressed their will and purpose with sufficient clarity. The protection of personal data (the right to privacy), however, is everyone’s fundamental right, and any processing of such data infringes upon that right to a larger or smaller extent. This infringement must be regulated by law, while being clear, precise, and foreseeable for the persons towards whom the legislation is implemented.

When analysing what is defined in the General Data Protection Regulation as public interest or a task in the public interest, interpretations of Estonian law, case law, or jurisprudence cannot be used as a starting point. However, the Estonian interpretations may be used as a source of inspiration because generally, the Court of Justice aims to base its positions on the common understanding and constitutional principles of the Member States. Ultimately, however, the right to furnish the concept and draw the lines remains with the Court of Justice.

Transfer of Personal Data to Third Countries or International Organisations. Example of the General Data Protection Regulation and the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data

Kirsika Berit Reino — 2024-05-23 16:15:58

In the globalised world, the free movement of data is inevitable and necessary. Such data also includes personal data which have been subject to an increasing number of requirements as regards their transfer. Several international or regional organisations have developed the principles for transfer of personal data that must be followed when transferring personal data outside the organisation. This article provides an overview of the possibilities of transferring personal data under two respective legal instruments – the General Data Protection Regulation of the European Parliament and of the Council, and the Convention for the Protection of Individuals with regard to automatic Processing of Personal Data of the Council of Europe.

In-house Transaction and Control Criterion in Public Procurement Law: Supreme Court Judgment in Administrative Case 3-20-1313

Carri Ginter, Mari Ann Simovart — 2024-05-23 16:16:33

In recent administrative case 3-20-1313, the Supreme Court ruled on a dispute as to whether and under what conditions a local government can appoint its own company as a provider of district heating services in a situation where there is real competition on the market for the provision of that service. As such, it was a classic issue about the choice of an administrative body to do by itself or to outsource – a topic that is relevant both in procurement practice and in legal literature.

More specifically, the commented judgment concerned the so-called ‘in-house transaction’ of a local government. The exception for an in-house transaction (also known as the in-house exemption or the in-house entity exception) has been clarified by the Court in the Stadt Halle case. This is a situation where, instead of outsourcing the services, the contracting authority can provide the services itself using its own administrative, technical and similar resources and does not have to use third parties outside its sphere of influence. In the case of an in-house transaction, the service is purchased from a separate legal entity, but the contracting authority controls that person, like its own department, and that entity is principally engaged in the provision of services to the contracting authority.

The article explains to what extent commented case 3-20-1313 is significant for the resolution of ‘do it yourself or outsource’ cases and the application of the in-house transaction standard in the Estonian legal system. It also looks at the signal given by the decision on in-house transactions with private limited companies and how it affects the lawyers’ toolbox.