1. COMPETITION - McCarthy TÃ©trault

More documents

Recommendations

Info

mentioned above, each of the parties should have entered into a legally binding agreement to act as a single unit in managing the matters of the applicant company. To prevent control by foreign companies and to ensure that the spirit of the uplinking norms is maintained the following requirements have also been brought in: DISCLOSURES At the time of filing of application, the applicant is required to make full disclosure of Shareholders Agreements, Loan Agreements, and such other Agreements that are finalized or proposed. Any subsequent changes having bearing on these agreements must be disclosed to the Ministry of Information and Broadcasting (the "I&B") within 15 days. The applicant is required to provide the names and details of (i) proposed directors who are not resident Indians, (ii) any foreigners/NRIs to be employed or engaged by the company as either consultants (or in any other capacity) for more than 60 days in a year, or as regular employees. Prior permission for alteration of shareholding pattern and agreements: Company must obtain prior permission from I&B before effecting any alteration in the foreign shareholding patterns and the shareholding of the largest Indian shareholders, or any alteration in any other Agreements. THOSE IN CONTROL SHOULD BE RESIDENT INDIANS At least 3/4th of the Directors of the company and all key Executives and Editorial staff, CEO of the applicant-company, and/ or head of the channel are required to be resident Indians. REPRESENTATION ON BOARD The representation on the Board of Directors of the company should as far as possible be proportionate to the shareholding. Applicant company to retain control: • all appointments of key personnel (executive and editorial) are to be made by the applicant company without any reference from any other company, Indian or foreign. • the applicant company should have complete management control, operational independence and control over its resources and assets and must have adequate financial strength for running a news and current affairs TV channel. These safeguards appear to have been considered, in the wake of a controversial uplinking application, by STAR News. STAR News and its group companies are facing allegations that a foreign company is using "shell companies" and "dummy investors" to exercise proxy editorial and financial control. STAR News, whose application is pending approval, has been given time until 28th September 2003 to comply with the new Guidelines. Currently, Star is negotiating with prospective local partners to finalize the dominant Indian partner as required by the new Guidelines and have sought an extension of the compliance deadline. The Government has also decided in principle to rework the print medium FDI norms, so as to bring them at par with the electronic medium, wherever necessary. For more information please contact: vaibhav@nishithdesai.com 1<strong>1.</strong> PRIVACY ARGENTINA COURTS ADDRESS THE USE OF LABOR E-MAIL ACCOUNTS The Secretariat of Communications, relying upon its Executive Power, is currently working on a project bill identified as Legal Protection of E-mails (the "Project"). Section 3 of the Project establishes that: • e-mail accounts provided by an employer for an employee as a consequence of a labor relation shall be considered to be the employer's property, and • the employer shall have the right to access and control the information of such e-mail accounts, if the terms and conditions of use and access have been notified to the employee. Two labor courts recently addressed the issue of e-mail accounts provided by an employer for an employee, and ruled under the same line of reasoning as the Project. However, the courts arrived at different results due to the particular facts and evidence of each case. In the first case, Labor Court of Appeals 9 held that the termination of the labor relation of an employee who had used the labor e-mail account for personal benefits was not a reasonable cause to fire the employee. The court took into account the fact that the employer had not notified or communicated to the employee the terms and conditions of use and access of the labor e-mail, as suggested by the Project. Accordingly, the employee's use of the e-mail account for personal matters was not sufficient to warrant a termination of employment. On the other hand, in a separate case, a First District Labor Court held that reasonable use of labor e-mail did not include receiving and forwarding pornographic texts or images. Here, the Court affirmed that the employee had been advised on several occasions about the labor e-mail policies, which opposed the employee's conduct. In spite of the different results, both courts coincided on the need to notify or communicate labor e-mail policies to employees, while emphasizing the validity and enforceability of those policies, as well as the employer's right to control the e-mail accounts. For more information please contact: gonzaloz@mille.com.ar ITALY NEW CODE FOR PRIVACY PROTECTION On 30th June 2003, the Italian Council of Ministers finally approved a new personal data protection code (the "Code") that will take effect on 1st January 2004. The new text unifies fragmented provisions from amended and integrated Law 675/1996, the Italian framework on personal data protection, which introduced several innovations in line with the Personal Data Protection Authority case law ("Garante per la protezione dei dati personali"), and European Directive 2000/58, regarding privacy and the Internet. The body of rules maintains an opt-in regime. However, the notification system represents an important innovation. While the current regime requires every party that is not specifically exempted to provide notice to the Authority, the new Code reverses the approach by enumerating specific cases that will require notification. Further, the Code, in line with the European trend, reduces to thirty months the maximum conservation term ISSUE 22 SEPTEMBER – OCTOBER 2003 10
of phone traffic data for use in crime assessment and prevention and introduces new dispositions concerning the privacy of the parties to a legal proceeding. Finally, the Code includes a regime of detailed new safety measures intended to safeguard databanks. The different measures are divided into three categories: dispositions applicable to processing with electronic instruments; dispositions to protect sensitive information or judicial acts; and minimum measures for all kinds of data processing. For more information visit: www.garanteprivacy.it or please contact: f.cugia@lexjus.com 12. TARIFFS UK POLICY STATEMENT FOLLOWING REVIEW OF TWO- PART CHARGING The Director General of Telecommunications has concluded his review into the feasibility of establishing a system of two-part charging for wholesale interconnection and issued his final statement on 1st September 2003. The Director General has concluded that the introduction of two-part charging is not appropriate in light of the costs and uncertain benefits it offers. Two-part charging involves the levying of separate tariffs for the setting up of a call (call set-up) and the maintaining of the connection for the duration of the call (call duration). Currently, BT averages the cost of both of these elements of call interconnection and charges a single, blended rate, levied on a pence per minute (PPM) basis. The issue of two-part charging has been considered by OFTEL on a number of occasions during the period since 1999. It was argued that twopart charging provided a more efficient means of aligning cost recovery for each call against its cause. In the consultation document, Policy review of two-part charging, issued in January 2003, the Director General indicated that he would only consider adopting two-part charging if the benefits of the approach significantly exceeded the direct costs of implementation. However, the Director has determined that, in fact, the potential costs of developing, implementing and maintaining a system to account for two-part charging would exceed the benefits likely to result to consumers, and would add a further burden on OFCOM at a time of considerable regulatory change. The Director General also considered that several of the proposed benefits of two-part charging were uncertain, including whether any resulting benefits would flow through to the retail level and uncertainty about the proper split between the call set up and duration components of the charge. For these reasons, the Director General concluded that it was not clear that any potential benefits of two-part charging, which would be derived at the wholesale level, would outweigh the costs of setting up and monitoring this approach, which BT estimated at approximately £5 million over the next five years. For more information please contact: colin.long@olswang.com 13. TAX BRAZIL ISS ON IP-RELATED SERVICES On 1st August 2003, Supplementary Law No. 116 came into force in Brazil, and amended the current regulations on the Tax on Services (the "ISS"). Besides adding several services to the list of ISS triggering events, Supplementary Law 116/03 establishes that the ISS will be levied on all services rendered to Brazilian entities, even if such services are fully or partially provided abroad. Where services are rendered abroad, the ISS will be paid by the principal instead of the service provider. Accordingly, the ISS may be assessed at a rate of up to 10% on services rendered by a foreign entity to a Brazilian company in the following areas, among others: information technology; licensing and assignment of rights to use software or trademarks; agency of industrial property, artistic, and literary rights; photographic, phonographic, and cinematographic work; technical and administrative assistance, even where it involves the assignment of personnel or technicians to Brazil; franchising; press agency, journalism and public relations; and art work. For more information please contact: rapdecunto@pinheironeto.com.br INDIA MAINTENANCE OF PCS NOT SUBJECT TO SERVICE TAX The Ministry of Finance (the "Ministry") has issued a series of notifications to clarify the scope and taxability of some of the new services that have been brought within the service tax net. The Indian industry had been anxious about the scope of these new services, and hence representations were made to the Ministry to obtain clarity on the same. Some of the important clarifications are discussed hereunder. From 1st July 2003, maintenance or repair services under contracts became subject to service tax at the rate of 8%. Pursuant to the bid made by Indian corporations, the Ministry has, in public interest, exempted maintenance and repair of computers, computer systems, and computer peripherals from the levy of service tax by Notification No. 20/2003, dated 21st August 2003. Clearly all IT companies engaged in maintenance and repair services will benefit from this decision. Additionally, the Ministry has also made it clear in Circular No. 62/11/2003, dated 21st August 2003, that maintenance or repair services (other than maintenance and repair of computers, computer systems, and computer peripherals) rendered prior to 1st July 2003 will not be taxable irrespective of when the bills are raised or payments are made. The Ministry clarified under a separate Notification No. 19/2003, dated 21st August 2003, that in the case of the new category of service "commissioning or installation of plant, equipment, or machinery," where there is a turnkey contract - involving commissioning or installation along with supply of plant, machinery, or equipment - the assessee will have the option to pay the service tax either on 33% of the gross amount charged, or on the actual amount of service fee billed to the client. The Ministry also clarified by Notification No. 20/2003, dated 21st August 2003, the scope of IT service under business auxiliary service. Thus, any service of back office processing that primarily relates to the operation of a computer system will be considered as IT services and will be exempt from ISSUE 22 SEPTEMBER – OCTOBER 2003 11
Page 1 and 2: Click on a table of contents entry
Page 3 and 4: Telsim had 3,633,398 subscribers, d
Page 5 and 6: issuance of a certificate; provide
Page 7 and 8: United Phosphorous had already rece
Page 9: decided at the interim stage itself
Page 13 and 14: its intention as expressed in the e
Page 15 and 16: ITALY THE TELECOMMUNICATIONS CODE O
Page 17 and 18: have given their prior consent. Reg
Page 19 and 20: TABLE OF CONTENTS BY COUNTRY NEWS I

1. COMPETITION - McCarthy TÃ©trault

Create successful ePaper yourself

Delete template?

Save as template?