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On March 8 Slawomir Lisiecki, a Founding Partner of the Galt law firm, was elected to the Supervisory Board of LOT Aircraft Maintenance Services, which Galt describes as “an individual provider of services related to technical service of aircrafts.”

At Galt, Lisiecki coordinates ongoing and transaction advisory services for companies, with a primary focus on the real estate market. He specializes in transactions, lease agreements, and the investment process, as well as on financing and corporate issues. Prior to founding Galt in 2010 he worked with PwC, CMS Cameron McKenna, and Clifford Chance.

In its recent judgment Barbulescu v. Romania, the European Court of Human Rights (“ECHR”) considered an employer’s right to monitor an employee’s work computer and an employee’s right to privacy.

Although the ECHR ruled in the case that Article 8 of the European Convention of Human Rights (“Convention”) which provides for the right to privacy was not breached, the judgment should not be interpreted broadly as grounds for surveillance of employees in all situations, as was recently stressed by Slovenian Information Commissioner. The Slovenian Information Commission further reiterated that the right to privacy in Slovenia is a strict one since Article 37 of the Slovenian Constitution states that only the law may prescribe the suspension of the right to the protection of the privacy of correspondence and other means of communication for a set time on the basis of a court order.

The facts in Barbulescu v. Romania were somewhat different than in previous privacy cases heard by the ECHR which held that Article 8 of the Convention was breached through the monitoring of employee communications at work. In the case of Barbulescu v. Romania, the employer banned any use of a work computer for private purposes. When the employer suspected that Barbulescu was not complying with this policy and informed him of its suspicion, Barbulescu denied the breach of the policy. Only after that did the employer obtain and present Barbulescu with a transcript of his Yahoo Messenger communications, from which it was evident that Baarbulescu had used his Yahoo Messenger account for private purposes, although the employee had to use the services on his work computer for communicating with clients. The employer argued that Barbulescu violated the workplace prohibition on the use of work equipment for private purposes as well as his contractual employment obligations. The ECHR agreed with the finding of the domestic court that the surveillance was legitimate as the employer acted within its disciplinary powers in accessing the Yahoo Messenger account, on the assumption that it was being used for professional purposes only. Furthermore, the use of the transcript was limited since the identification of the people involved was kept confidential. The ECHR also decided that monitoring of Barbulescu’s communications was limited in scope and proportionate as only communications on Yahoo Messenger were examined, while other data and documents, stored on Barbulescu’s computer were not subject to the surveillance. It was also clear that Barbulescu did not have any reason to use Yahoo Messenger for private purposes at work.

The ECHR did not assess the employer’s actions and whether they were justified, but it did address Romania’s positive obligation to protect an employee’s right to privacy. The ECHR ruled that Barbulescu’s right to privacy was sufficiently protected since the content of the transcript was not disclosed and the names of the people involved in the private conversations were not revealed. Furthermore, the ECHR did not address at what point in time Barbulescu should have been informed of the surveillance – either before or after the surveillance took place, although this was an issue between the employer and Barbulescu.

The Barbulescu v. Romania judgment has not fully addressed all relevant issues in relation to surveillance of an employee’s data and communications leaving several questions open. In light of this decision, we recommend that any surveillance of an employees’ communications be limited to the minimum extent necessary, under the condition that consent of the employee is obtained up-front and that internal rules governing such surveillance are put in place in order to mitigate the risks of a potential breach of privacy rights. 

By Marko Ketler, Partner, Karanovic & Nikolic

Oguzkan Guzel has left Turk Telekom, where he was the Director of Regulation and Competition Law (TT Group) to establish two new firms: Fidecon Regulation&Competition Consulting Inc. and Guzel Law Office.

Guzel was promoted to his previous role with Turk Telekom in March 2015 after working for over 5 years for the company as its Consultant/Group Manager of Regulation and Competition Law. Before going in-house he worked for legacy firm SNR Denton as a Lawyer from January 2008 to May 2009, preceded by 10 years as a Competition Expert with the Turkish Competition Authority. Earlier experience includes working as an Inspector for Turkiye Emlak Bankasi and as an Intern Lawyer with Mahmut Varol Avukatlik Burosu.

At his new Guzel Law Office he is joined by Of Counsel Ali Ulusoy and Academic Consultant Fuat Oguz. Fidecon, which he co-founded, provides advice on “major issues on areas of regulation and competition policy.” Ulusoy and Oguz are a part of the Fidecon team in the same roles as well, and Fidecon’s Managing Partner (and co-founder) is Ismail Koksal.

Sorainen’s Latvian office is representing VMF Latvia, a Latvian company specializing in evaluating “forest-related raw material”, in a dispute with an employee in a case regarding employment termination, suspension from work, and recovery of lost wages.

The firm’s team is led by Partner Eva Berlaus, Senior Associate Andis Burkevics, and Associate Maris Simulis.

BASEAK — the Turkish arm of Dentons — has advised the Vardar family on its sale of minority interests in Jolly Tur and Gordion Teknoloji to the Goldman Sachs Group. The buyer was advised by Yazici Legal (on Turkish law) and Herbert Smith Freehills (on English law).

Jolly Tur is a tourism, leisure, events, and travel technologies company in Turkey, established in 1987 by Sinan Vardar. The group has over 600 sales points and 3,500 employees under the management of Mete Vardar and Mert Vardar, the Chairman and Vice-Chairman of the board, respectively.

The BASEAK team working on the deal was led by Partner Dogan Eymirlioglu and included Partner Semih Sander, Counsel Tulu Harsa, and Associates Ali Goren and Fulya Gorer. Acting as English law advisors to the sellers, the Dentons UK – Milton Keynes team included Dentons UK – Milton Keynes Managing Partner Andrew Harris, Partner Peter Cox, and Managing Associate Gary Smith.

The Yazici Legal team which advised the Goldman Sachs Group consisted of Managing Partner Hakan Yazici, Partner Onur Ergun, Senior Associate Gokhan Ozmen, and Associate Gizem Sirer. 

Herbert Smith Freehills declined to confirm its involvement.

A recent bill on wind power plant investments, sponsored by MPs of the Law and Justice party, is very controversial to say the least.

In its current wording, the proposal will certainly decrease both the feasibility and profitability of wind power plant investments in Poland. Investors in this sector are particularly disappointed with the minimum distance restrictions, the increased real estate tax burden, the significant costs of obtaining and renewing the new operational permit and the zoning requirements.

FEASIBILITY

The bill proposes that the distance between new wind power plants and residential areas, protected areas and forest areas must be at least ten times the height of the turbine. In practice, this means that new wind power plants will need to be located approximately 1.5-2 km from these areas. This proposal is not as extreme as a previous bill submitted by the Law and Justice party which had set the minimum distance of at least 3 km. Nonetheless, it is still a very severe proposal for the wind power sector when compared to other EU countries which either do not have such restrictions or have less restrictive non-binding guidelines (e.g., four times the height of the wind turbine in Belgium, 300-1,000 meters in Germany, and 500-1,000 meters in Spain).

Additionally, if the proposal stands it will only be possible to build wind power plants (with the exception of micro-installations) in areas designated for this purpose in the local zoning plans. This will mean that wind power plants will only be erected in areas which have adopted a local zoning plan. This would be fine if most of the Polish territory was in fact covered by local zoning plans, but this is not the case.

PROFITABILITY

Adoption of the bill will also result in wind farm developers being subjected to a higher real estate tax. At present, this tax is imposed only on the value of the tower and the foundations but not the technical structures. Under the bill these technical structures will no longer be exempt from the real estate tax as the new definition of a wind power plant would include them.

The bill also adds the regulatory requirement of obtaining an additional operational permit (in addition to the occupancy permit) prior to the commencement of operations of a new wind power plant occurring within one year of the legislation coming into force. The operational permits will need to be renewed every two years as well as following repairs or modernizations. The Technical Supervisory Authority will issue and renew these permits following a review of technical documentation, assessment of its compliance with the factual situation, and participation of the authority in relevant startup tests. The fees to be charged by the Technical Supervisory Authority for the issuance and renewal of operational permits will be established in secondary legislation subject to a statutory maximum of 1% of the value of the wind power plant investment. This statutory maximum will be the applicable fee until the secondary legislation is implemented.

Given the strong industry opposition to this draft bill, we expect some of these controversial provisions to be watered down during the legislative process. Hopefully, the final version of the law will not mean that investments in the Polish wind energy sector will be gone with the wind!

By Loredana Allegranza, Counsel, and Marek Wladzinski, Counsel, Wolf Theiss

In the case B?rbulescu vs Romania on 12 January 2016 the European Court of Human Rights (the “Court”) adopted a decision in which it ruled that there had been no violation of the right to respect for private and family life (Article 8) of the European Convention of Human Rights.

Namely, the case concerned Mr B?rbulescu’s (the “Applicant”) dismissal in 2007 by his employer, a private company, for having used the company’s internet for personal purposes during working hours. He was dismissed for breaching the company’s internal regulations prohibiting employees from using the company’s computers and resources for personal purposes which stated: “It is strictly forbidden to disturb order and discipline within the company’s premises and especially… to use computers, photocopiers, telephones, telex and fax machines for personal purposes.”

In the present case, the Applicant had been using Yahoo Messenger on the company’s computer to chat with his professional and personal contacts. In his petition to the Court, he claimed that the company’s decision on dismissal should be declared null and void on the grounds that his right to respect for his private life was violated.

As stipulated in the decision, the Court was assessing whether the Applicant retained a reasonable expectation that his communications would not be monitored in view of the general prohibition imposed by his employer.

The Court found that the employer acted within its disciplinary powers since, it had accessed the Yahoo Messenger account on the assumption that the information in question had been related to professional activities and that such access had therefore been legitimate. Also the Court noted that it was not unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours and that the employer’s monitoring was limited in scope and proportionate since the communications on Applicant’s Yahoo Messenger account were examined, but not the other data and documents that were stored on his computer.

The Court ruling leads to a conclusion that employers are entitled to perform internet surveillance in the workplace regarding professional activities. However, such actions are legitimate only if:

• the comprehensive internet usage policy is incorporated, and
• the employees are informed of the existence and content of such policy in a proper manner.

Nevertheless, it remains to be seen whether and how this decision will affect the internet monitoring practices and policies of employers in the future.

By Nikola Kasagic, Senior Associate, and Vanja Vujnovic, Associate, SOG / Samardzic, Oreski & Grbovic

Schoenherr Ljubljana has advised web-based crowdinvesting platform operator CONDA AG on a variety of legal aspects in relation to the successful roll-out and establishment of the first-ever Internet crowdinvesting platform in Slovenia.

According to Schoenherr, “since Slovenia has not yet adopted the special set of rules dealing with peer-to-peer financing, as some other EU countries have, the project had to be structured in accordance with (and assessed against) the existing regulatory framework that was not tailor-made for the respective financing regime (ie, regulation of financial services, payment services, banking activity, consumer protection etc). In this regard, Schoenherr held consultations with and obtained clearance from different regulatory and government bodies, which confirmed compliance of the contemplated structure with applicable legislation (without any specific license requirements).”

“By breaking the ice, this pioneering project has contributed immensely to market innovation in Slovenia and will pave the way for future alternative means of financing which are of utmost importance for the development of start-up entities in Slovenia”, Schoenherr attorney Branko Cevriz stated after the public announcement of the launch of CONDA’s crowd-funding platform on March 10, 2016.  Besides Cevriz, who advised CONDA on (banking) regulatory aspects of the project and led the negotiations with the relevant regulators and government bodies, the Schoenherr team involved in this project consisted of Partner Marko Prusnik, who was in charge of the corporate law aspects of the roll-out, Attorney Eva Mozina, and Associate Jelena Malnar.  

Schoenherr has been advising CONDA on the structuring of crowdinvesting models in various jurisdictions since 2013. In fall 2015, the firm advised it and the Austrian football club SK Rapid Wien on the Rapid InvesTOR project, allowing Rapid fans and other investors to participate in the financing of the football club’s new Allianz stadium in Vienna (as reported by CEE Legal Matters on November 27, 2015). 

DZP has persuaded the Supreme Court of Poland to uphold a judgment by the Court of Appeal of Warsaw, bringing to an end a long-running case involving conflicting rulings made by the Court of Arbitration at the Polish Chamber of Commerce in Warsaw in a dispute between client Taifun Real sp. z o.o. and Exatel SA. Taifun Real — an SPV which owns an office building in Poland — previously belonged to the Karimpol Group, and now belongs to the Immofinanz Group.

According to DZP Litigation Head Pawel Lewandowski, who led the firm’s team, the case involved an award by a tribunal at the Court of Arbitration, “which was afterwards (some years later) ignored by another Arbitral Tribunal [which was] ruling [on] a matter which had strong legal links to the first case (i.e., the first award had a prejudicial effect).” DZP challenged this second award, and, on February 24, the Polish Supreme Court dismissed the appeal, accepting DZP’s argument “that an arbitral tribunal is bound by [previous] arbitration awards having a prejudicial effect.”

The ruling brings to a close a matter which lasted over 6 years and was heard three times in the Supreme Court. According to a statement issued by DZP, the Court’s judgments in these cases, and its ruling that arbitration courts, like state courts, are bound by prior arbitration court awards, “is not only a resounding success for our team, it has also become a milestone in the development of arbitration in Poland.”

In addition to Lewandowski, the DZP team consisted of Partner Pawel Paradowski, Counsel Hanna Gajewska-Kraczkowska, and Senior Associate Lukasz Wojdalski.

White & Case has advised Yapi Kredi, Turkey’s fourth largest private bank, on the Rule 144A/Regulation S issue of USD 500 million, 8.5 percent Basel III-compliant fixed rate resettable Tier 2 Notes due 2026. Allen & Overy advised Joint Lead Managers Bank of America Merrill Lynch, Citigroup, Mitsubishi UFJ, and Unicredit. The Notes have been listed on the Irish Stock Exchange.

“Our cross-border deal team in London and Istanbul supported our long-standing client, Yapi Kredi, in bringing this transaction to a successful conclusion despite a highly volatile market environment,” said London-based White & Case Partner Doron Loewinger, who led the firm’s deal team. Loewinger was assisted by Istanbul Local Partner Derin Altan and Associates Joshua Van der Ploeg and and Nil Acar.

Allen & Overy did not reply to our inquiries on the matter.