Answers to the tutorial/training questions for the course Business Law and Ethics (6012B0428Y) offered at the UvA. The answers are clear and coherent and are based on the mandatory reading material and class discussions (e.g. Padlet). For each week you will find the material needed to be able to an...
Summary Law - Chapters 1 to 10 of International Law and Business
Samenvatting International Law and Business, ISBN: 9789001871574 Law & Ethics
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Business Administration
Business Law And Ethics (6012B0428Y)
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Business Law & Ethics (BLE): Tutorial Questions & Answers
Week 1 2
Material: International Law & Business A Global Introduction by Bart Wernaart (Chapters 1, 2, 3) 2
Question 1 2
Question 2 3
Question 3 4
Question 4 5
Week 2 5
Material: A Short History of Western Legal Theory by J. M. Kelly (Chapter 10) 5
Question 1 5
Question 2 7
Question 3 8
Week 3 9
Material: International Law & Business A Global Introduction by Bart Wernaart (Chapters 4.1, 5.3, 6, 7.1,
7.2) & Ethical Theory and Business by Denis G. Arnold, Tom L. Beauchamp, Norman E. Bowie (Chapter 9) 9
Question 1 9
Question 2 11
Question 3 12
Question 4 13
Week 5 13
Material: International Law & Business A Global Introduction by Bart Wernaart (Chapters 8, 11) & The
Essential Elements of Corporate Law by John Armour, Henry Hansmann, Reinier Kraakman 13
Question 1 13
Question 2 14
Question 3 15
Question 4 16
Week 6 17
Material: International Law & Business A Global Introduction by Bart Wernaart (Chapter 10) & Ethical
Theory and Business by Denis G. Arnold, Tom L. Beauchamp, Norman E. Bowie (Chapter 5) 17
Question 1 17
Question 2 17
Question 3 18
Question 4 20
Week 7 21
Material: International Law & Business A Global Introduction by Bart Wernaart (Chapter 12) & Handbook on
European Data Protection Law (Chapters 1, 2, 3, 4) 21
Question 1 21
Question 2 22
Question 3 23
Question 4 24
,Week 1
Material: International Law & Business A Global Introduction by Bart Wernaart (Chapters 1, 2, 3)
Question 1
a. Define the legal family of your country and describe an exemplary daily life situation for this definition
• Both Italy and the Netherlands use a civil law system which is driven by codified standards.
Written codes are the source of law, which strongly emphasises the legal positivist approach. This
means that in the Netherlands for example, if a citizen thinks his/her rights are being violated,
they can look up the laws in the Constitution of the Kingdom of the Netherlands.
b. Who (person or institution) is the highest in power in your country (Monarch, President, Prime Minister,
State, Religious Representation)?
• Italy is a republic whose president is Sergio Mattarella; however, the highest power is Mario
Draghi, the Prime Minister, who leads the Council of Ministers. The Netherlands is a monarchy
led by King Willem-Alexander; however, the King takes a ceremonial function. The highest power
is the Prime Minister, Mark Rutte, who is the head of the executive branch of the Government of
the Netherlands.
c. Does your country have a written constitution?
• The Constitution of the Republic of Italy
• The Constitution of the Kingdom of the Netherlands
d. Are the judges chosen or appointed? Describe the procedure
• In Italy, the Constitutional Court is composed of 15 judges for the term of service of nine years: 5
appointed by the President, 5 elected by the Parliament of Italy and 5 elected by the ordinary and
administrative supreme courts. Candidates need to be either lawyers with twenty years or more
experience, full professors of law, or (former) judges of the Supreme Administrative, Civil and
Criminal tribunals.
• In the Netherlands, the judiciary comprises eleven district courts, four courts of appeal, three
administrative courts of appeal (Central Appeals Tribunal, Trade and Industry Appeals Tribunal
and Council of State) and the Supreme Court. Judges are appointed by the Crown, under the
aegis of the Minister for Security and Justice, and only Dutch nationals can be appointed to the
office of judge. Individuals can be nominated for appointment to the judiciary only on
recommendation by a national selection committee, made up of members from the various
courts, the public prosecutor’s office and individuals active in society. A judge is appointed to
administer justice at a specific court, only if the court in question nominates the prospective
judge. These conditions are designed to make the appointment system as objective as possible.
Judges can remain in office until the age of 70. Before that, they can be removed from office
against their will only by the highest court in the Netherlands, the Supreme Court of the
Netherlands (Hoge Raad der Nederlanden), at the instigation of the procurator general
(procureur-general) of this court. This system provides appropriate protection against political
influence on appointments and removal from office.
e. How are the checks and balance of legislative powers and the executive powers organized?
• de Montesquieu argued that the best way to avoid power abuse was to implement a trias politica
model. In this model, the state is organised by separating the legislative, executive, and judiciary
powers. This separation of powers creates checks and balances that are set in place to reduce
mistakes, prevent improper behaviour, or decrease the risk of centralisation of power. This
means that all the branches have the power to check the other two branches and it ensures that
no branch has absolute control.
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,Question 2
Press release 27 January 2021 Brussels
Rule of Law: Commission adopts next step in the infringement procedure to protect judicial independence of
Polish judges
www.europa-nu.nl
Today, the Commission decided to send an additional reasoned opinion to Poland regarding the continued
functioning of the Disciplinary Chamber of the Supreme Court.
On 3 December 2020, the Commission sent an additional letter of formal notice to Poland, adding a new
grievance to the infringement procedure started on 29 April 2020. Poland's reply to the additional letter of
formal notice does not address the Commission's concerns. For this reason, today the Commission has decided
to advance with the next step in the infringement procedure by sending an additional reasoned opinion to
Poland.
The Commission considers that Poland violates EU law by allowing the Disciplinary Chamber of the Supreme
Court – the independence and impartiality of which is not guaranteed – to take decisions, which have a direct
impact on judges and the way they exercise their function. These matters include cases of the lifting of
immunity of judges with a view to bringing criminal proceedings against them, and the consequent temporary
suspension from office and the reduction of their salary. The Disciplinary Chamber is also deciding on matters
related to labour law, social security and the retirement of Supreme Court judges.
By giving the Disciplinary Chamber powers that directly affect the status of judges and the exercise of their
judicial activities, the Polish legislation jeopardises the ability of the respective courts to provide an effective
remedy, as required by the second subparagraph of Article 19(1) TEU. The mere prospect for judges of having
to face proceedings before a body whose independence is not guaranteed creates a ‘chilling effect' for judges
and can affect their own independence.
Poland has one month to reply to this additional reasoned opinion and to take the necessary measures to
comply with EU law, otherwise the Commission may refer the case to the Court of Justice.
Background
A law of 20 December 2019 amending a series of legislative acts governing the functioning of the justice
system in Poland, entered into force on 14 February 2020. On 29 April 2020, the Commission sent a letter of
formal notice to Poland regarding this law on the judiciary. On 30 October 2020, the Commission moved
forward with the infringement procedure by sending a reasoned opinion. The Commission is currently
assessing the reply received from Poland.
The additional reasoned opinion adopted today follows on the additional letter of formal notice adopted on 3
December 2020, which has added a new grievance to the infringement procedure started on 29 April 2020. It
does not replace the initial grievances already included in the reasoned opinion, which the Commission sent to
Poland on 30 October 2020.
a. Explain why the introduction of the Disciplinary Chamber that gives it powers to directly affect the status
of judges and the exercise of their judicial activities could be a jeopardy to the checks and balances of the
trias politica?
• The introduction of the Disciplinary Chamber that gives it powers to directly affect the status of
judges and the exercise of their judicial activities jeopardises the check and balances of the trias
politica because there is no longer a balance of power. Because the independence of this body is
not guaranteed, it can affect the independence of the judges if they have to face proceedings
before this body.
b. Why does the European Union have the right to question any domestic law that Poland declares to
organize their own judicial system, since it concerns only the accountability of the Polish judges? Is this
not a matter of sovereignty of the Polish government?
• Because Poland signed and ratified the Treaty on the European Union and is thus part of the EU,
the EU has the right to question Poland’s domestic laws. By becoming an EU member state,
Poland gave away part of its power and sovereignty and must therefore ensure the full
3
, application of EU law. The Court of Justice of the European Union requires that judges be
independent (under Article 19 TEU) to ensure effective judicial protection.
c. Would it make any difference if Poland would have a monistic or a dualistic system? Explain the
difference.
• In a monistic system, once a treaty is signed and ratified, its content automatically becomes part
of the member country’s domestic law. Any contradicting national rules will, from that moment
on, no longer apply. In a dualistic system on the other hand, once a treaty is signed and ratified,
its content first needs to be transformed into domestic law before it becomes part of the
member country’s legal order. As the content of the treaty is adopted, any contradicting
domestic rules will be altered to be in line with the treaty. Poland is monistic and so EU law is
automatically adopted as domestic law. Moreover, EU law has supremacy over domestic law and
EU law is directly applicable in its member states, so it would not have made a difference if
Poland was dualistic.
d. Explain how the checks and balances is applied in a purest form of trias politica.
• In the purest form of trias political, the three branches – legislative, executive, and judiciary –
have the power to check each other. This means for example that the legislative power who is
responsible for law making is checked by the executive power who is responsible for executing
the law in practice and by the judiciary power who is responsible in settling legal disputes.
Question 3
Read the Judgment of Court of 9 July 2015
a. The underneath Judgement of the Court is a preliminary ruling. Under point 28 very important principles
of EU law is mentioned. Which principles are mentioned here?
• Under point 28, the principle of legal certainty and the principle of the protection of legitimate
expectations are mentioned. The principle of legal certainty holds that every citizen and relevant
government should be able to know the legal consequences of their actions beforehand, and not
afterwards. This implies that to a certain extent; law should be predictable. The principle of the
protection of legitimate expectations holds that an individual may have a reasonable expectation
on how they will be treated by administrative authorities because of consistent practice in the
past or an express promise made by the authority in question. These two principles give citizens
some protection against the abrupt change of the rules.
b. The principle of legal certainty is a function of law, what does this principle entail in general?
• The principle of legal certainty is the expression of legality in a given society and holds that the
legal consequences of a citizen’s or government’s actions should be known beforehand, and not
afterwards.
c. Do the principles of EU law only need to be observed by the EU institutions?
• Some of the principles of EU law include the principles of legal certainty, equal treatment,
proportionality and respect for fundamental rights. The principles of EU law need to be observed
by the EU institutions (such as the European Parliament, the European Council, the Council of the
European Union) as well as the national courts of the member states. The EU institutions and
member state governments are bound to follow the EU law.
d. The concept of legal certainty is recognised as one of the general principles of EU law by the European
Court of Justice since the 1960's. What does the principle of certainty mean in EU law?
• The principle of legal certainty in EU law means that EU legislation must be certain and its
application foreseeable to those who are subject to it. This means that EU law must be clear and
precise, and the extent of the obligations (and rights) imposed by law are precisely known to
those concerned.
e. The court in this case formulated that something needs to be determined in order to give a judgement on
the question if the principle of legal certainty was correctly upheld, what is it that needed to be
determined?
• In order to give a judgement on the question if the principle of legal certainty was correctly
upheld, it was necessary to “determine whether the conduct of an administrative authority has
given rise to a reasonable expectation in the mind of a prudent and well-informed trader and, if it
did, the legitimate nature of that expectation must then be established” (line 45).
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