REPORT ON THE EXCHANGE AND SUMMARY

Transcription

1 REPORT ON THE EXCHANGE AND SUMMARY Instructions: 1. The report must be sent to the EJTN within one month after the exchange. 2. Please use the template below to write your report (at least 4 pages). 3. The report must be filled in English or French. If not possible, the report could be written in another language but the summary must be in English or French. 4. Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report. 5. The summary (1-2 pages) shall contain a synthesis of the most important information of the report. 6. If you agree for your report and/or summary to be published on the EJTN website, please tick the relevant box below. Identification of the participant Name: First name: Nationality: Italiana Functions: judge Length of service: 24 Identification of the exchange Hosting jurisdiction/institution: District Court of Frederiksberg City: Copenhagen Country: Danemark Dates of the exchange: 7.3/ Type of exchange: group exchange general exchange Authorization of publication I undersigned hereby authorize the publication of this report and/or summary on the website of the. In Rome On 23 apr. 10 Signature REPORT / (aisbl) Rue du Luxembourg 16B, B-1000 Bruxelles; Tel: ; Fax: ; exchanges@ejtn.eu

2 I- Programme of the exchange General introduction to the Danish Court system with the President of the Court, the judge head of the secretariat, two deputy judges and a principal of the Court administration. After an introduction on criminal cases and jury trial system and having assisted to a jury trial, discussion of the case with the President of the Court ; opportunity to exchange opinions with the lawyer of the defendant and the public prosecutor too. Visit to the Danish Administration Court with a wide explanation of the judges recruitment system and to the Supreme Court with a detailed explanation of the duties and the rules of trials in front of the Supreme Court. Meating with a Leading public Prosecutor with an introducion to the work of the Danish prosecuting service and the Danish Police work. General introduction of the national and international arbitration system in Denmark by a professor of the Business School of Copenhagen. Visit to the private solicitor s firm who represents the Danish State in almost all the civil lawsuits. Meeting with a judge and a deputy judge on the way they usually deal with simple civil lawsuits. «Cases of the day». Visit of the Frederiksberg Prison with a detailed explanation of the system of «scontare le pene sia in carcere che al di fuori di esso» Introduction to the Danish Labour Law and meeting with representatives of the solicitors of the law firm «Gorrisen, Federspiel and Kierkegaard». II - The hosting Institution The District Court of Frederiksberg is one of the 24 Danemark District Courts after the reforme of 31 st dicember 2006 (before that, in Danemark there where 82 District Courts). The Court is one of the two District Courts in Copenhagen, is situated in the burrough of Frederiksberg and has jurisdiction on a part of the city. It is a first instance District Court. It is composed by a President, 12 appointed judges and 15 deputy judges. In the district Court they manage with all civil and criminal cases. Before 2006 in the district court they would treat civil law suites till a maximum amount of DKK and all the criminal cases in which the defendant pleads guilty or the maximum penalty is no more than four years of imprisonment. Nowdays, after 2006 reform of the judiciary system, in district court you will have all civil cases and all criminal cases in first level. Just in case of a very complicated civil lawsuit it can be filed in front of the High Court. In Danemark there are two High Courts (one is in Copenhagen and the other one is in Vyborg). The High Court decides all lawsuites in appeal. The Supreme Court, composed of 19 judges, is divided in two «chambers». Each chamber decides in a composition of minimum five judges to a maximum of nine. The President, choosen among the judges of the Supreme Court by themselves, seats always in the first chamber. There is a staff of deputy judges endowed to prepare report for the court, studying each juridical question in the case. The Supreme Court decides cases in a second appeal, already decided by the High Court, only if it is an important question of interpretation of law (even if there is a contrast among the decisions of the High Court on the same subject) To have a second appeal you need to be approved by a board composed of a judge from the Supreme Court a professor in law and a Lawyer. The Supreme Court is required to judge either on the interpretetion of the law or on facts. If it is necessary to listen to witnesses, a deputy judge is asked to do that and report to the Court. In the public hearings in front of the Supreme Court, after having heard the lawyers of the plaintiff and of the defendant (or the public prosecutor appointed to the S.C. in criminal cases) the decision is taken by the judges with «closed doors». They don t discuss the decision all together, before voting the final decision.

3 Each judge, first of all express the vote and immediatly after explain the reasons that support the decision. They vote starting from the younger judge in order not to have his decision influenced by the most experienced one. If the other judges agree to the reasons already exposed they just vote in one sense or the other. In the final decision both the majority and the dissenting opinions are reported. Deputy judges : appointed by a specific board of the Court Administration composed by a judge, an administrative employee of the Court and a Lawyer. They undertake an interview that is supposed to test the attitude of managing with people arguing in Court with order and «equilibrio». The decision of the Board is based on the «curriculum vitae» of each candidate. During the first three years the appointed judge is in a training program and has to pass a certain number of tests. The first one after a year and a half. They practice in the different «brands» of law (civil e criminal law), starting from very small cases. They seat in Criminal Courts as lay judges and in smaller cases they take their own decisions, signing them, enjoinig the constitutional indipendence of appointed judges which means «they shall obey the law only». They can be dismissed only by a judgement of a Special Court ; the same one competent with regard to disciplinary mesaures against appointed judges. They become appointed judge after an averege period of 14 years (more or less around their forty s). Appointed judge : to become appointed judge they have to discuss a case in front of a Judicial Appointed Council. The same Council is endowed to decide if a judge of a District Court can became a component of one of the two High Courts in Danemark. Formally the Judges are appointed by the Ministry of Justice. If the Ministry does not want to follow the recomandation of the Council, he has to brief his reasons to the Parliament. III - The law of the host country Danish employment and labour law: Danish labour law system is based on collective bargaining agreements. The origin of the current system is the 1899 September settlement between thw Danish Employer s Confederation (DA) and the Danish Confederation of Trade Union (LO). It provides a set of basic rights and obligations to be respected by the parties including: - the employees right to form trade unions - the employer s right to manage and control the work - the right to take industrial action (strikes and lockouts) - the peace obligation: general principle which states that where a collective bargaining agreement has been concluded, the peaceful course of work must not be disrupted while the agreement remains in force Those four principle are still valid and are included in the General Agreement between DA and LO. Other rules included in the General Agreement: - Shop steward - Dismissal of employees and shop stewards - Duration and termination of collective bargaining agreements - Breaches of collective bargaining agreements The basic principle set forth in the General Agreement are developed further in collective bargaining agreements and, of course, in legal usage.

4 The Cooperation agreement ensures that employees have influence on and knowledge about the employer s management of business. The fundamental idea is that information sharing and cooperation between employers and employees improve the productivity and competitiveness of companies and increase job satisfaction. If the company enters into a Cooperation Agreement the agreement replaces the Danish Act on Information and Consultation of Employees. The most relevant characteristic of the Danish labour law system concerns the way disputes can be solved. In Labour law disputes are excluded from the jurisdiction of the ordinary courts and handled within a special industrial dispute system consisting of the Danish industrial Tribunal, the Industrial Arbitration Tribunal and the Conciliation Board. The Industrial Tribunal has jurisdiction in dispute concerning breach of collective bargaining agreements. The Industrial arbitration Tribunal have jurisdiction in disputes concerning the interpretation of collective bargaining agreements. In front of both Tribunal parties are represented by the labour market organisations. The Conciliation Board is charged to conciliates the parties in connection with the renewal of collective bargaining agreements. Generally speaking then, the Danish Model, that is ruling the Danish labour market since 1899, is a negotiation model. This means that major employment terms are fixed by labour market parties while trough Europe is mainly ruled by legislation. The mandatory Danish Legislastion forms the outer frame of the Danish Model. Moreover EU Directives covering the Labour Market are implemented trough both collective bargaining agreements and legislation. The three elements of the Danish Model: 1.- flexible rules on termination 2.- favourable unemployment benefits 3.- active labour market policy 1.- flexible rules on termination: Termination rules depend on collective bargaining agreements, individual agreement or legislation. White collar employee can typically be dismissed with three months notice. Blue collar employee can typically be dismissed with 1-70 days notice Rarely an employee can reject a dismissal and reclaim his position when dismissed 2.- favourable unemployment benefits If unemployed in Denmark the unemployment support will amount approximately 2000,00 per month ( DKK) The unemployment support can be earned in a 48 months period. If unemployed after 48 months, governmental support may be available. 3.- active labour market policy Job offer from the Job Center. Counselling from the Job Center. Participation in educational activities. Even though the employer is free to hire, promote and fire, each of his employees however nondiscrimination principles prevail.

5 In case of discriminating or unfair dismissal the employee can claim a compensation (from, two to twelve months salary) but cannot reclaim the job. Cases in which an employee is entitled to maintain or re-establish the employment: employee dismissed in violation of the act on protection against dismissal due to organisational matters that protects both positive or negative freedom of association. Dismissal in violation of equal remuneration or in coincidence with a claim for equal salary Recents law and Amendments: Danish Act on Employment Certificates (15 august 2007 n. 1011) employer is obliged to draw up an employment certificate containing the most important terms of employment (name. address of employer and employee, address of the place of work or detail of the main place of work, description of work or indication of the title, rank, position or job profile, date of commencement, duration in case of a fixed term, paid holydays, length of the notice period on both sides, salary and other benefits, daily or weekly working hours etc). In case of non compliance with the Act (employer s duty) the employee can ask for compensation. Danish Act on working hours ( n. 896) Not more then 48 hours, including over time, in a period of seven days calculated over a period of four months. At least 11 hours rest in 24 hours. Danish Act on working environment ( n. 268). Weekly day off preferably on Sunday. Danish Act on Fixed Term Employment ( n. 907) General rule of equal treatment among fixed terms and permanent employee Non compliance entitle to compensation Anti discrimination laws: Danish Act on Equal treatment of men and women ( n. 1095) Prohibits both direct and indirect discrimination on the ground of sex and counteracts sexual harassment Danish Act on Equal remuneration ( n. 899) Prohibits direct and indirect discrimination in elation to remuneration and salary on the ground of sex. Equal pay, equal conditions for the same work or for work given the same value. In order to comply this law employee is entitled to pass on information on his/her salary to third party. He shall be entitled to receive the difference. Dismissal in violation of the act entitles to reestablish the employment. IV- The comparative law aspect in the exchange There is a deep difference between the Danish and the Italian Model in labour law. Although both the Danish and the Italian model are both oriented on principles of cooperation and peace obligation, the first one is caracterised by a general method of sharing information among employees and employers in order to improve productivity and competitiveness of companies and increase job satisfaction. Moreover labour law disputes resolution, in the Danish model, are excluded from the jurisdiction of the ordinary courts and handled within a special industrial dispute system (Danish industrial Tribunal, the Industrial Arbitration Tribunal and the Conciliation Board). The normal remedy against illegal dimissal is compensation whatever is the dimension of the company. Employee are entitled to have the place of work back in very few cases based mainly on discrimination reasons (i.e. violation of the act on protection against dismissal due to

6 organisational matters that protects both positive or negative freedom of association. Dismissal in violation of equal remuneration or in coincidence with a claim for equal salary). On the other hand there is a strong public support to unemployed passing through a substantial economic help (aproximately 2000,00 per month during a period of 48 months); Job offer and counselling from the Job Center and a participation in educational activities. Though the employer is free to hire, promote and fire, each of his employees a strong social security net is provided and the working market, even during this period of crisis, appears more flexible than our. The European aspect of the exchange We didn t you have any opportunity to observe the implementation or references to Community instruments, the European Convention of Human Rights, judicial cooperation instruments apart from the general introduction to Labour law that is necessarily much more involved in E.U. dynamics. Suggestions It could be worth while to make the exchange less generalist concentrating the experience on the main fields of interest declared by each judges participating (in my case on civil and labour law). In that way the exchange can be shorter too. We should consider infact that an average period of a week could be, in this perspective, long enough to have a first adequate knowledge of the foreign system; at the same time it could be easier for each judge to organize the delay of the usual activity at home, with a lighter impact on the work already scheduled. SUMMARY During the exchange we had the opportuity to have different experiences in all the different fields of law : a general introduction to the Danish Court system; a wide explanation of the judges recruitment system; a general introduction in criminal law with a detailed explanation by a leading public prosecutor of the Danish prosecuting service and the Danish Police work ; assist to a jury trial, discussing the case with judges of the Court, the lawyer and the public prosecutor and to Visit of the Frederiksberg Prison. a general introduction of the national and international arbitration system in Denmark ; an introduction to the way the Danish State is represented in civil lawsuits ; assist to a civil trial dealing with simple civil lawsuits ; general explanation of the «Danish model» in Labour Law ; a detailed explanation of the duties and the rules of trials in front of the Supreme Court. District Courts (24 in all Denmark) manage with all civil and criminal cases in first level apart from the very complicated civil lawsuit that can be filed in front of the High Court (there are two High Courts, one in Copenhagen, the other in Vyborg). Generally High Court decides all lawsuites in appeal. The Supreme Court (composed by 19 judges) decides cases in a second appeal, on decisions of the High Court, when is involved an important question of interpretation of law or there is a contrast among decisions of High Court. Judge either on the interpretetion of the law or on facts. There is a board composed of a judge from the Supreme Court, a professor in law and a Lawyer that filters trials to the S.C.. The President is choosen among the judges of the Supreme Court by themselves.

7 There is a staff of deputy judges endowed to prepare report for the court and studying each juridical question in the case and listen to witnesses and report to the Court. They don t discuss the decision all together, before voting the final decision but each judge, starting from the younger one, expresses his vote and immediatly after explain the reasons that support the decision. The final decision reports both the majority and the dissenting opinion. District Courts are composed by deputy judges (appointed by a specific board of the Court Administration) (lay judge) choosen on their curricula and an interview. They attend a training program while working and deal with all different «brands» of law (civil e criminal law), starting from very small cases. They seat in Criminal Courts as lay judges and in smaller cases they take their own decisions, signing them, enjoinig the constitutional indipendence of appointed judges which means «they shall obey the law only». They can be dismissed only by a judgement of a Special Court ; the same one competent with regard to disciplinary mesaures against appointed judges. They become appointed judge after an averege period of 14 years (more or less around their forty s). To become «appointed judge» they discuss a case in front of a Judicial Appointed Council. The same Council is endowed to decide if a judge of a District Court can became a component of one of the two High Courts in Danemark. Formally appointed by the Ministry of Justice on recomandation of the Council. Danish employment and labour law: The origin of the current system is the 1899 September settlement between thw Danish Employer s Confederation (DA) and the Danish Confederation of Trade Union (LO). It is based on collective bargaining agreements and provides a set of basic rights and obligations to be respected by the parties (employee s right to form trade unions; employer s right to manage and control the work; right to take industrial action such as strikes and lockouts; peace obligation => pacta sunt servanda: when a collective bargaining agreement has been concluded, the peaceful course of work must not be disrupted while the agreement remains in force) The basic principle set forth in the General Agreement are developed further in collective bargaining agreements and, of course, in legal usage. The Cooperation agreement ensures that employees have influence on and knowledge about the employer s management of business (information sharing and cooperation between employers and employees improve the productivity and competitiveness of companies and increase job satisfaction). Cooperation Agreement replaces the Danish Act on Information and Consultation of Employees. Disputes are handled within a special industrial dispute system consisting of the Danish industrial Tribunal (breach of collective bargaining agreements), the Industrial Arbitration Tribunal (interpretation of collective bargaining agreements) and the Conciliation Board (renewal of collective bargaining agreements). Employment terms are generally fixed by labour market parties instead of legislation that forms the outer frame of the Danish Model toghether with the EU Directives that are implemented trough both collective bargaining agreements and legislation. The three elements of the Danish Model: 1.- flexible rules on termination (established by collective bargaining agreements, individual agreement or legislation). 2.- favourable unemployment benefits (approximately 2000,00 per month ( DKK) lasting 48 months.after that period a governmental support may be available). 3.- active labour market policy (Job offer, counselling and educational activities)

8 Special attention is deserved in cases of discriminating dismissals due to organisational matters that protects both positive or negative freedom of association and violation of equal remuneration or in coincidence with a claim for equal salary. There is an important improvement of legislation il labour law in the last years partly due to the E.U. Directive implementations (Danish Act on Employment Certificates,15 august 2007 n. 1011; Danish Act on working hours n. 896; Danish Act on working environment, n. 268; Danish Act on Fixed Term Employment, n. 907;Danish Act on Equal treatment of men and women, n. 1095; Danish Act on Equal remuneration, n. 899) There is a deep difference between the Danish and the Italian Model in labour law. Although both the Danish and the Italian model are both oriented on principles of cooperation and peace obligation, the first one is caracterised by a general method of sharing information among employees and employers in order to improve productivity and competitiveness of companies and increase job satisfaction. Moreover labour law disputes resolution, in the Danish model, are excluded from the jurisdiction of the ordinary courts and handled within a special industrial dispute system (Danish industrial Tribunal, the Industrial Arbitration Tribunal and the Conciliation Board). The normal remedy against illegal dimissal is compensation whatever is the dimension of the company.employee are entitled to have the place of work back in very few cases based mainly on discrimination reasons (i.e. violation of the act on protection against dismissal due to organisational matters that protects both positive or negative freedom of association. Dismissal in violation of equal remuneration or in coincidence with a claim for equal salary). Suggestions: Very interesting and usefull experience. All the same, it could be worth while to make the general exchange less generalist ; concentrating the offer on the main field of interest declared by each judge participating (in my case on civil and labour law) the stage could be shortened to an average period of a week. This way it could be easyer to balance the every day wider interest toward that training opportunity, with the obvious necessity for each participant to organize the delay of the work already scheduled.