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Enea SA has hired Radoslaw Radowski in Poznan as the Legal Advisor to the Management Board. Radowski explained to CEE Legal Matters that his primary role is to advise the newly elected Board on a strategically important projects.

The state controlled (52% stake belongs to the State Treasury) Polish energy enterprise employs over 15,000 people and has a distribution network that covers 20 percent of the country.

Prior to joining Enea, Radowski was the Managing Director of the Legal Department – Business Units’ Support at Bank BPH. Before that he worked for Grupa Strategia as a Partner, Legal and Compliance area, and for Ciech as the Group Chief Legal Officer and Company Secretary. 

Radowski’s earlier experiences revolved around the banking sector and included roles with Getin Noble Bank (where he was Advisor to CEO on legal and compliance), Get Bank (Board Member, Legal & Compliance Division), Allianz Bank Polska (Managing Director, Board Member, Legal & Compliance Division), Polbank (Chief Legal Officer), Bank Millennium (Head of Legal Department), and Bank Austria Creditanstalt Poland (Lawyer).

Goltsblat BLP, the Russian practice of Berwin Leighton Paisner, has advised the major Russian car dealer Rolf Group in relation to its business consolidation with another auto trader, Pelican-Auto.

In a statement released by Goltsblat BLP, Igor Salita, Rolf Group Chairman, commented on the deal: “I am grateful to Goltsblat BLP seniors and the team for the highly professional legal support they provided to our M&A team in this strategically important deal, which strengthened our leading position on the Russian car market and set up a unique platform for further consolidation of car dealers.”

That same statement included a joint statement by Goltsblat BLP Managing Partner Andrey Goltsblat and Partner Anton Sitnikov: “We are happy that our vast M&A experience, particularly in car retailing, made us eligible to contribute to this landmark transaction on the Russian car market and act for our client Rolf Group, with which we are pleased and honoured to have worked for many years now. We hope this transaction will further strengthen our client’s position on the market and push up its profitability level.”

The Goltsblat BLP corporate team was led by Head of Group Anton Panchenkov, while Head of Corporate Partner Anton Sitnikov performed overall project coordination. Senior Associates Nikolay Kholshev and Andrey Neminuschiy, as well as Junior Associate Mikhail Filatov, were also on the team.

When contacted by CEE Legal Matters, a Goltsblat BLP representative said that she had no information about counsel for Pelican-Auto.

On February 1, attorney Reka Berekmeri-Varro joined Deloitte Legal in Budapest as a Partner Associate.

Berekmeri-Varro — who specializes in pharmaceutical law — joins from Jeantet (the former Budapest office of Gide Loyrette Nouel) where she was an Attorney-at-Law and Head of Competition & Regulatory. Berekmeri-Varro told CEE Legal Matters that her new role at Deloitte Legal is to build and lead the healthcare and pharmaceuticals team.

Berekmeri-Varro joined the office — now Jeantet, then Gide — in September 2013. Before that she worked for Baker & McKenzie from September 2006 to August 2013.

The newly opened Budapest office of Jeantet recently also announced the hire of Kornel Szabo, who will be stepping in as the Head of Competition. 

In a previous article we revealed how, through the amendment of article 17 from GEO no. 77/2009, the Surveillance Committee of NOG acquired the discretionary right to suspend the gambling operators’ activity, until the situation is clarified”.

Nevertheless, the main purpose of this authority should be the one to ensure a favorable and predictable framework for operators to perform gambling activities. The recent law amendments will probably complicate the various situations that may occur in the relationship between NOG and the gambling operators rather than clarify such situations.

1. From an institutional void to one of the most active control institutions

While until 2013 the gabling market had no institution with specific control prerogatives, in less than 2 years NOG became one of the most dynamic control institution from Romania. From tens of thousands who are finable and up to international gambling operators whom activity was interrupted, the last few months revealed unprecedented alert rhythm of NOG activity.

The reputation of proactive and impartial authority was questioned by the recent corruption scandal from NOG Suceava, where an inspector was arrested, being charged for 11 alleged offences of bribery. In this case, according to the news, in exchange of the received amounts of money, the NOG inspector has acted for the elimination of the competition from the market with the purpose to create a monopole on the local gambling market for two companies from the local gambling market¹.

2. Necessary decisions or a potential abuse?

Besides the isolated case from Suceava, NOG makes itself remarked through very dynamic control actions on the gambling market, these actions being also encouraged by extensive prerogatives which were granted through the recent law amendments. These extensive control prerogatives on a certain field represent also a high responsibility for the public servants from the respective authority. In certain cases, public servants from institutions with extensive control prerogatives were charged for certain actions that were committed precisely in the exercise of their attributions (the case of the National Audiovisual Council’s President or the case of National Agency for Integrity’s President are only a few notorious examples). Being confronted with this situation, the following question arise: where is the border between a tough, but necessary action, which comply with the law in its form and in its substance and an action which passes the ,,red line” of the criminal law?

If we take a look at the provisions of GEO no. 42/2015, which amended article 17 of GEO no. 77/2009, by granting the discretionary right to suspend operators’ activity ,,until the clarification of the situation”, it seems that NOG is the one who ,,throws the dices”. Nevertheless, since the dices are not always lucky, a suspension which does not represent the consequence of a breach of the law by the operator’s activity could represent, in certain conditions, the content of the offence of abuse of office, which is punished, in accordance with the Romanian New Criminal Code, with prison ranging from 2 to 7 years and prohibiting the exercise of certain rights for a determined period.

The abuse of office is an offence committed with intention, which represents “the action of the public servant that, in exercising its office responsibilities, does not fulfill an act or fulfills it defectively thus causing a damage or harming the legitimate rights or interests of a natural person or those of a legal entity” (article 297 Criminal Code). Additionally, pursuant to article 13 2 of Law no. 78/2000, if the public servant aimed at obtaining for him or for another person an undeserved gain, the sanction limits are increased by one third.

For instance, in a situation similar to that occurred in Suceava, when applying the legal provisions NOG would suspend the activity of a gambling operator or would take other measures that would affect the operator’s right without the actual existence of a “situation” requiring clarifications and only for advantaging other competitors, the conditions for retaining the abuse of office offence could be fulfilled even if an eventual bribery could not be demonstrated. Whilst as regards operators the requested result consisting in the creation of a damage obviously results from the economic consequences of suspending activity, as regards players the damage could result from the application of a fine that manifestly breaches legal provisions.

Article 298 in the New Criminal Code also regulates the offence of office negligence, that actually represents an abuse of office committed by negligence (Romanian: din culpa), meaning a legal responsibility that was not fulfilled or was wrongly fulfilled, however with no intention of committing such a deed. In a non-legal definition of negligence, this seems to be in full accordance with one of the explanations of the current president of NOG in a recent interview, regarding an activity unsatisfactorily carried out by the public servants of the authority: “We also make errors sometimes as we are humans“².

From this perspective, it should be noticed that the appraisal of negligence as regards criminal law does not substantially differ from negligence in contraventional (tort liability) law, despite the double standard that seems to be applied by NOG in relation to the recently sanctioned players for the negligence of having bet on websites in relation to which NOG argues that would be unauthorized in a certain period, as opposed to its own public servants within NOG, whose negligence benefits from the clemency of an “errare humanum est” on part of the authority’s president.

As a matter of fact, any public servant, likewise those within NOG, must be held responsible in accordance with criminal or civil law for the error committed in exercising its office responsibilities, as thousands of people are currently at risk of being sancti oned for the error of having confided in the notorious information at the time.

The provisions of article 28 paragraph 5 of GEO no. 77/2009 seem to try to exonerate the members of the Surveillance Committee from criminal or civil liability, where ,,the courts find that the fulfilling or the omission to fulfill by them with good faith and without negligence of any act in connection with the fulfillment of the prerogatives granted by the law”. Although, by the look of it, this article seems to be meant to en sure to the members of the Surveillance Committee the comfort of a strength exercise of their prerogatives, being defended by a presumptive reason of exemption of criminal or civil liability, in fact this article has no practical role. Actually, this article does not modify at all the general regime of the criminal or civil liability, being absolutely useless for this purpose. Under these circumstances, if the members of the Committee fulfill/do not fulfill their prerogatives with ,,good faith”, meaning without intention, or ,,without negligence”, meaning without fault, of course that the members of the Committee will not have to bear the criminal liability for the offence of abuse of office or office negligence, but not due to this article. The reason for the lack of any criminal liability is the one that the action was committed without the guilt requested by the law, case which prevents the initiation and the exercise of the criminal action, according to the provisions of the article 16 paragraph 1 letter b of the Criminal Procedural Code. In this case, it is no longer necessary to go with the criminal trial in a criminal court to have a decision regarding how the public prerogatives where fulfilled, the renouncement at the criminal charges for these actions being the sole prerogative of the prosecutor. On the other hand, the legal provision indicated is in obvious contradiction with the criminal procedural provisions regarding the effects of a civil decision in the criminal trial provided by article 28 paragraph 2 of the Procedural Criminal Code. Hence, an eventual final decision of a civil court which would settle that the members of the Committee acted in good faith and without negligence regarding a certain act or fact could not exonerate them from criminal liability, because it does not have the power of a settled litigation in front of criminal judicial authorities, regarding the existence of the criminal act, the person who committed it or his/her guilt.

3. How expensive is an error and who is held responsible for it?

The simplest answer: in case of the abuse of office, the error costs between 2 and 7 years of prison, and in case of office negligence the error costs between 3 months and 3 years of prison or alternatively a fine could be applied ranging from 1,800 RON to 150,000 RON. As regards NOG, it cannot be held responsible from a criminal perspective given that as per the Romanian criminal law the state and public authorities are exempted from criminal liability (article 135 New Criminal Code), the state not being able to sanction itself from a criminal standpoint for its own errors. As such, only public servants within NOG can be held liable as regards criminal offences. A somehow particular situation is that of the NOG president and vice president, who are public dignitaries and have the rank of state secretary, respectively state sub-secretary. Given such titles, the competence as regards criminal prosecution shall fall to the Prosecutor’s Office near the High Court of Cassation and Justice. In what the other public servants within NOG are concerned, for the criminal prosecution as regards the crimes of abuse of office, respectively office negligence the Prosecutor’s Office near the Local Court having jurisdiction to rule upon the alleged offence shall be competent, and the latter shall have competence to solve the file in first instance. Furthermore, should article 13² of Law no. 78/2000 be applicable, if the public servant aimed at obtaining for him or for another person an undeserved gain, National Anticorruption Department will be competent for the criminal prosecution.

Regarding the civil liability, NOG shall be liable pursuant to the provisions of Law no. 554/2004, which stipulates that the person that suffered a damage through an administrative act contrary to the legal provisions has both the right to annul the act, as well as the right to request compensation of damages. Moreover, in the same trial the public servant who took the decision of issuance of that act may also be introduced and in this scenario the authority and the public servant can be held jointly liable. In this situation, if the damage will be reimbursed by NOG, the authority may turn against the public servant, in order to recover the amounts paid, proportionally with their contribution to the unlawful act. Disregarding the certain consequences related to civil or criminal liability, the eventual appearance of criminal law cases on the gambling market might represent a significant challenge for prosecutors and judges, in a field which until recently did not have a specific framework, which precluded the development of significant jurisprudence. This challenge shall be mainly focused on the necessity to guide NOG’s actions towards the purpose for which it was created, namely to ensure a predictable legal framework and the full protection of the rights of players and of gambling operators.

1. http://www.gandul.info/stiri/inspectorul-onjn-suceava-si-cei-doi-oameni-de-afaceri-retinuti-de-dnaau-fost-arestati-preventiv-14887562.

2. http://www.hotnews.ro/stiri-esential-20572244-investigatie-rise-project-casa-pariuri-familieighita.htm

By Alexandru Arjoca, Counsel, Criminal Law Expert, and Matei Stefanescu, Junior Associate, DLA Piper Dinu SCA

Sayenko Kharenko has advised AerSale on the lease of an aircraft engine to Ukraine International Airlines, Ukraine’s leading airline.

According to Sayenko Kharenko, “AerSale is a global leader in the supply of aftermarket commercial jet aircraft, engines, OEM used serviceable material and maintenance, repair & overhaul (MRO) services to passenger and cargo airlines, government entities, leasing companies, multinational OEMs and independent MROs.”

Sayenko Kharenko’s team was led by Partner Andrey Liakhov, and included Senior Associate Olexander Droug and Associate Vasyl Liutyi.

Sorainen Lithuania has advised Mistertango, Lithuania’s first payment initiation service provider, on matters related to its establishment as a legitimate provider of services in an unregulated market.

On October 8, 2015 the European Parliament voted to pass the revised Directive on Payment Services (the PSD2). However, Sorainen explains, “the PSD2 has not yet been implemented in Lithuanian legislation so that some legal uncertainty existed as to the legality of providing payment initiation services.”

Sorainen helped Mistertango to prepare legal arguments for Lithuanian commercial banks and the Bank of Lithuania (the country’s financial supervisory authority), with respect to the PSD2 and the legitimacy of payment initiation services during the transitional period pending implementation of the directive. As a result, on February 3, 2016 the Bank of Lithuania confirmed that payment initiation services indicated in the PSD2 are legal in Lithuania so that services provided by Mistertango cannot be restricted.

The SORAINEN team advising Mistertango was led by Partner Tomas Kontautas, with assistance from Associate Arturas Asakavicius and Legal Assistant Rimantas Bendorius.

Vasil Kisil & Partners has announced that, for the second consecutive year, the firm is acting as legal advisor to the Mystetskyi Arsenal National Art and Culture Museum Complex in Kyiv. The firm represents Mystetskyi Arsenal in copyright protection, licensing, and acquisition litigations, and advises it on public outreach and image-building projects.

“Works of art, both contemporary and historical, inspire us to new ideas and move us to action and creative work,” said VKP Counsel Vladyslav Podolyak, who heads the firm’s Intellectual Property Group. “It is our honor to represent Mystetskyi Arsenal – a cultural center that popularizes the works of Ukrainian artists, supports creative initiatives and promotes Ukrainian culture internationally. There are a number of image-building patriotic projects ahead, which we prefer to keep secret as of now.”

Tuesday’s announcements of the European Commission and the U.S. Department of Commerce of a new “Privacy Shield” for the transfer of EU personal data to the United States have been followed yesterday by a reaction from the EU Article 29 Working Party that is decidedly cautious.

What was announced on Tuesday are the broad outlines of the principles for the mechanism, not complete documentation. The Working Party, which comprises representatives of the EU data protection authorities (“DPAs”), the European Commission and the European Data Protection Supervisor, yesterday stated that it is withholding judgment, asking for the full text of the arrangement to be provided by the end of the month and, in the meantime, allowing companies to use other existing data transfer mechanisms.

WHAT IS THE PRIVACY SHIELD?

As compared to the Safe Harbor, which the European Court of Justice (“CJEU”) struck down last October, the Privacy Shield would enhance companies’ obligations to protect personal data of EU individuals transferred to the United States. It would require stronger monitoring and enforcement by the Department of Commerce and the U.S. Federal Trade Commission (“FTC”), including increased cooperation with the DPAs, and would provide multiple avenues for redress. The announced elements of the Privacy Shield include:

• U.S. companies to which personal data is exported from Europe will be required to commit to robust obligations on the processing of that data and the protection of individual rights.
• Companies’ commitments will be enforceable under U.S. law by the FTC. The Department of Commerce will monitor companies to ensure that they publish their commitments. Companies will need to commit to complying with decisions of the DPAs.
• Critically, given that the Snowden revelations formed the backdrop to the CJEU decision, the U.S. government has provided written assurances to the European Commission that access to personal data by U.S. authorities for law enforcement and national security purposes will be subject to limitations, safeguards and oversight mechanisms. Access will generally be permitted only to the extent necessary and proportionate. Indiscriminate mass surveillance of EU personal data is to be prohibited.
• EU individuals will have several new redress possibilities:
  • EU individuals will be able to complain directly to U.S. companies about the handling of their data. U.S. companies will have to meet deadlines to reply to such complaints. Companies will need to commit to participate in arbitration, free of charge to EU individuals, regarding such disputes.
  • The DPAs will be able to refer complaints to the Department of Commerce and the FTC.
  • Complaints from DPAs about access by U.S. national intelligence authorities will be handled by a new ombudsperson within the U.S. Department of State.
• The Department of Commerce, the FTC and the DPAs will hold annual meetings to discuss the functioning of and compliance with the Privacy Shield.

WHAT ARE THE NEXT STEPS?

Following the advice of the Article 29 Working Party and consulting with a committee of EU Member State representatives, the European Commission will prepare a draft decision for adoption by the EU College of Commissioners (the Commission’s political leaders) that, with the Privacy Shield, the United States provides adequate protection for EU-originating personal data. The U.S. side will make the necessary preparations to put in place the new framework, the monitoring mechanism and the ombudsperson. These steps are expected to take at least several weeks, with a projection of three months before the new arrangement is fully in place.

The February 3 press release from the Article 29 Working Party mentions its concerns with respect to the current U.S. legal framework, especially regarding the scope of government agencies’ indiscriminate access to personal data and legal remedies of individuals. It called on the EU Commission to communicate all documents pertaining to the new arrangement by the end of February.

Privacy advocates in Europe, including Max Schrems, the Austrian student who brought the case challenging the Safe Harbor that culminated in the CJEU judgment, have indicated that the Privacy Shield itself might be challenged, as a derogation of the rights of the DPAs.

WHAT SHOULD COMPANIES DO FOR NOW?

Other existing mechanisms for transatlantic data transfers, such as the EU Commission’s Standard Contractual Clauses or Binding Corporate Rules, were not invalidated by the CJEU decision last fall and were not explicitly the subject of the EU-U.S. negotiations on the Privacy Shield. In its press release, the Article 29 Working Party stated that existing transfer mechanisms may still be used; however, in light of the CJEU judgment and continuing concerns regarding government access to data, such mechanisms will be scrutinized once the final arrangements for the Privacy Shield are known. Given the deadline at the end of February and the time required for the subsequent review, this situation is likely to continue for the near foreseeable future.

Whether companies that were Safe Harbor registrants will want to use the Privacy Shield when it becomes available is uncertain, at least until the details of the new arrangement are made known.

We will send a further note as soon as the final arrangements for the Privacy Shield are in place.

By Jeffrey P. Cunard, Partner, Jeremy Feigelson, Partner,  Thomas Schürrle, Partner, and Matthew Howard Getz, International Counsel, Debevoise & Plimpton

Turkish lawyer Ozlem Atak Cebeci has assumed the role of Head of Legal at Eczacibasi-Baxalta — the new 50:50 joint venture between Turkey’s Eczacibasi industrial group and Baxalta, Baxter International’s former innovative biopharmaceutical division that was spun off in July 2015 as an independent company.

Eczacibasi-Baxalta’s strategy is, according to its website, is to “increase the treatment options and standards for patients in Turkey with a portfolio of new and advanced therapies in the areas of hematology and immunology. Developed through extensive R&D, these biopharmaceuticals will reduce the life-threatening problems of people suffering from hemophilia and immunodeficiency and enable them to live as normal lives as possible. Another goal of the new company is to offer patients in Turkey a portfolio of innovative oncology products.” 

Cebeci has been a Legal Counsel with Eczacibasi since 2012. Before that she spent three and a half years as Healthcare Compliance & Legal Affairs Manager at Johnson & Johnson Medical Turkey, a year and a half as a lawyer with the Real hypermarkets chain, two years as Legal Counsel with Toyota, and two years as a lawyer with the Turkish Employers’ Association of Metal Industries. She received her law degree from the Faculty of Law of Ankara University in 2000, and followed it up with an LL.M. in Business Law from Bilgi University in 2009.  

“Eczacibasi”, in Turkish, means “chief pharmacist” — an honorary title and surname that, according to the Group’s website, “was given to the father of the Group’s founder at the turn of the last century in recognition of his continual efforts to improve the health of his community.” 

Lithuanian lawyer Vytis Leonavicius has become the Chief Lawyer at the Freight Transportation Directorate of JSC Lithuanian Railways.

In becoming the Chief Lawyer, Leonavicius moves from his previous position as Senior Lawyer at Lithuanian Railways, which he held since 2010. Before that he worked for a year as a Chief Specialist in the Law Division of the State Railway Inspectorate under the Lithuanian Ministry of Transport and Communications.

He graduated from the Mykolas Romeris University in Vilnius.