Voodoo Economics

It is difficult to know where to begin to decry what is happening in the Commission of the European Union. I am referring to the review of the National Asset Management Agency (“NAMA”) by the Commission. A good point of departure is that we do not know what is happening there. The Commission makes no (perceptible) effort to tell us and our Government likewise tells us nothing [useful].

The missing information is of economics [and consequent policies] following the disastrous property bubble here in Ireland. That bubble has caused havoc with the economy; it has driven unemployment upwards; it has destroyed pension plans; it has blighted the work prospects or careers of many young people.

Let’s start with something most people did not know; at least two of Ireland’s banks were and are too big to fail. That innocent phrase implies that we the citizens are to those banks as one conjoined twin is to another. We risk death if the bank expires, it is implied.

If true, how did we permit such a relationship with a private institution?

Leave all that aside. What should we do to “save” the banks?

The Government’s plan is NAMA. That plan is flawed. It has been changed more than once. We know that it has been mis-sold to the citizens of Ireland by the Government; it claimed the purpose of NAMA was to facilitate lending by the Banks to businesses. That is not true and never was, to the knowledge of the Government.

Now the plan is under consideration by the EU Commission. Specifically it is being considered by Joaquin Almunia the new Commissioner for Competition. He is in fact not all that new; he used to be Commissioner for Economics and Monetary policy. The bad news is, he is not good at his job. He failed to spot the Greek crisis that has hit the EU with the force of a runaway train; it was his job to see that problem. Instead he was in Dublin, cheerleading for the Government where he publicly endorsed NAMA. We learned his communication skills tend to emulation of an Electromagnetic Pulse.

Of course, no skills are needed if the EU “review” is just for the “optics” of the process. The heart of NAMA dictates that the citizens of Ireland will pay [consciously] way over the odds for the “impaired assets” of the banks. The pseudo words of justification for this are, “long–term economic value”. There is no such thing.

It’s voodoo economics.

Hints have been given by the Government as to the high price they intend to saddle the citizens of Ireland with. If the hints are correct, we are about to agree to pay €54 billion for these “assets”. We know for sure that this is not the value of these assets. What is the value of the assets? We must look to the cases coming before the Commercial Court. On 19th February 2010, in one case alone the asset had fallen in value from €31 million to €600,000 in a period of just over 3 years. The judge remarked that in his opinion, assets had fallen by 70% to 80% in value. He had previously guessed a fall of 50%. In short, the values are still falling. Let’s take the price of €54 billion; assume that is the book value of these bank assets. A fall of 80% would mean they are worth [now] €10.8 billion. If the case of 19th February 2010 represents the full general fall in value, the €54 billion is worth “just” €1.08 billion.

One sometimes thinks that the true home and centre of he European Union is on the heights above Prague and its poet is Franz Kafka, but a better perspective is to realize that some human capacities are not as general as might be thought. Why do we think that Mr. Almunia must be capable? What if the genius of Keynes is like visuospatial ability? People without the capacity do not know of what they are bereft, and those with the capacity cannot conceive of a person who lacks it.

Wake up Joaquin Almunia!

Mode of Business

We learn from the Sunday Business Post that NAMA may pay less than it previously indicated for the Irish Banks’ loans to be handed over to it (starting this very month, reputedly). We do not know anything further about this. We do not know if the report is accurate. We do not know if the report is a malicious falsehood leaked to the SBP to mislead critics of NAMA.

NAMA is a scandal. It is a scheme to transfer taxpayers’ money to private institutions without a rational justification. The irrational justification (“long-term economic value”) was mooted by the EU Commission, but it hedged it about with many conditions. We have no idea if the Irish Government and the Irish Banks have complied with those conditions. The EU did not mandate secrecy like this.

That the SBP can publish its, presumably, bona fide report and miss the real story; that its sources are unreliable and clearly manipulative of public opinion; that NAMA clearly thinks it is acceptable in this polity to behave in such a fashion and is to be condemned for it (rather than facilitated) and that covert administration is Wednesbury irrationality and a basis for Judicial Review of NAMA is a howler of a journalistic error.

O’Leary’s Benefaction

There seems to be no end to the debt of gratitude the Irish (and now, the English) legal profession owe to the managing director of Ryanair.

He has clarified the words of a suitable jurisdiction clause on websites to confer jurisdiction within the EU. See HERE for how he did it. (This writer has adapted those words below to accommodate his purposes and intentions. Feel free to appropriate the clause without attribution, but on terms of repudiation of liability by this writer for such use).

He, (we are now back talking about the managing director; (see what happens when you eschew words like “aforesaid”)) has promoted (indirectly) the use of interrogatories in Irish practice and procedure.

He has generated legal work for members of the profession (with more to come in England).

These are not insignificant benefits. Why is the Chairman of the Bar Council silent in the presence of such merit?

The words:

Disputes arising from the use of this website and the interpretation of these Terms of Use of the McGarr Solicitors website are governed by Irish Law. All disputes relating to these Term of Use and the use of the McGarr Solicitors Website are subject to the exclusive jurisdiction of the courts of Ireland.”

Contaminated Irish Pork Products: Addendum

A blog is just a blog and is rarely definitive. I missed two elements of the post relating to the contamination of Irish pork products.

A. Irish farmers sell their pigs to factory processors; it is from the processor that the supermarket/retailer gets supplies. (So too, will a secondary processor such as a sausage maker). So, the retailers will have a claim against the processors; the processors will have claims against the farmers.

B. My post assumed delivery of the oil at its source. If delivery is at and to the Irish pig feed manufacturer in Ireland, Council Regulation 44/2001 will apply. Jurisdiction in those circumstances will be Ireland, not the place of the location of the supplier of the oil.

Details of the indemnity to the factory processors, by the Irish Government, are not to hand. Accounts suggest it is not a full indemnity. If so, the processors will be able to properly claim the balance from the farmers, who will in turn be able to make a claim against the pig feed supplier.

A sensible arrangement for the Government indemnity would have made provision for Ireland to be entitled to receive a proper portion of compensation recovered from farmers and/or the pig feed supplier.

A matter of great interest is the level of insurance cover of the farmers and the pig feed supplier. As always, the practicality of litigation is important.

Yet again we see the urgent necessity of legislation in Ireland to provide for Third Party rights under insurance and other contracts.

In the UK they have had that for 70 years and do not appear to have had any problems. What’s keeping us, (besides ineptness)?

The Intoxication of Government

Is the Cabinet drunk?

Minister Coughlan seems shocked by the implied suddenness of a proposed EU directive to protect consumers. (See what she says HERE).

Did nobody tell her of the EU strategy for consumers? (See it HERE).

And what of this item of bluster from her press release?:

…the current body of legislation is a mix of the 1893 pre Independence legislation and the 1980 Act together with secondary legislation deriving from EU Directives. This has made it difficult for consumers and businesses to understand their rights and obligations.”

From a consumer point of view there is no need to go back to 1893. We purported to update the 1893 Sale of Goods Act 1893 with the Sale of Goods and Supply of Services Act 1980 and to benefit Irish consumers thereby.

It’s just guff to try to blame Britain (specifically Gladstone, in fact!) for yet another Irish Government failure.

And what are we to make of the expert group? We already pay for the personnel of the Law Reform Commission. Why should we have to pay for another group of persons duplicating its work?

Is there a special agenda that the Law Reform Commission does not know of and cannot be trusted with?

Perhaps the Commission is in the dog-house because of its proposal to facilitate multi-party litigation? Does the Government not know that that is where the EU is going? (See it HERE).

What specific document has the Government received from the EU? Minister Coughlan will be at the Council of Ministers that ultimately approves/disapproves the draft directive. Has she received better notice than the public has? (See the EU proposal HERE).

If Irish consumers are uncertain what Minister Coughlan’s expert group are looking at, send an email to EU consumer commissioner Maglena Kuneva HERE.

Maybe, just maybe, she will tell us.

The Picture of Dorian Grey

I worry I have been sleeping on my rights.

It has been the practice of art galleries in Ireland to keep the very identity of purchasers secret from the artists that the gallery “represents”.

Now as a consequence of Directive 2001/84EC and The European Communities (Artist’s Resale Right) Regulations (SI 312 of 2006), we artists are entitled to information from the gallery which will enable us to enforce our claims for a percentage of any money generated on a resale of our work.

I must urgently write to my gallery for the names and addresses of my buyers.

(For reasons currently unknown to me I am unable to link to SI 312 of 2006 because Statutory Instruments for 2006 are missing from the website of the Attorney General and BAILII).

NOTE for naive artists; terms and conditions apply

Devaluation

Ireland and Slovakia sent their Justice ministers to the Council of Ministers. Each Minister cast a veto on a vote to introduce Directive 2006/24/EC.

Neither Minister noticed, as Advocate-General Bot now says, that he was attending a Community institution, as opposed to a Union institution.

Each had, of course, read the draft Directive (presumably) and there they saw it was replete with material proper to the Union (and not the Community). It was, in short all about “police and judicial cooperation in criminal matters”. It was expressly proposed by Charles Clarke in the light of the London bombings.
Terrorism, no less.
No common market in terrorism, then.
Right, definitely a matter for Title VI of the EU Treaty.
No, said the Commission Staff. It’s all about a level playing field in the world of commerce.

Ireland and Slovakia have a vote, but not a veto. Done and dusted, then.

What-ho, Advocate-General Bot says the same.

In fact, Directive 2006/24/EC is all about facilitating surveillance by Member governments through the telecoms system. It places a burden on the telecoms and that burden has a cost. But any police activity has a cost, and nobody has yet tried to argue that the cost of a social issue renders it an economic issue.

Bot and the Commission define things by their form, not their substance.

A small state in the EU has no veto if the Commission wishes to deny it a veto.

An institution that loses integrity is a lost cause. When the current Commission is gone from office matters like this will surface and destroy its successor.

Digital Rights Ireland Ltd – Judgment reserved

THE HIGH COURT
2006 No. 3785P

 

Between

 

DIGITAL RIGHTS IRELAND LIMITED

Plaintiff

And

 

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

Defendants

UPDATE (16/7/2008)

1. Judge McKechnie has reserved judgment on the remaining issues before the Court.

2.The Plaintiff has asked the Court to refer the issue of the validity of Directive 2006/24/EC to the ECJ. The State had brought this question to the ECJ. (The hearing began in the ECJ the very morning the Motions opened before Judge McKechnie). The Plaintiff endorses the State case but goes further; it says the Directive is not valid, not simply on procedural grounds, but on substantive grounds of breach of human rights and the fundamental law of the EU. This is a very important difference between the State and the Plaintiff on the Directive point.

3. The State had asked the Court to deny locus standi to the Plaintiff and, in default of success on that request, asked that the Court order the Plaintiff to furnish security for costs to the State. Judgement on these points has also been reserved.

4. At time of writing, no reply has been received from Hans-Gert Pottering, the President of the EU Parliament to the letter McGarr Solicitors sent to him.

Digital Rights case (continued)

THE HIGH COURT
2006 No. 3785P

 

Between

 

DIGITAL RIGHTS IRELAND LIMITED

Plaintiff

And

 

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

Defendants

UPDATE (7/7/2008)

1. Three Motions are (or were) before the High Court. One, that of the Irish Human Rights Commission, was promptly decided by the judge in favour of the IHRC. The IHRC is now a “party” to the proceedings as “amicus curiae”.

2. The State challenged the locus standi of the Plaintiff to brings its proceedings. The IHRC has supported the right of the Plaintiff to bring its proceedings. The Defendants are denying that right but have made concessions in the hearings.

3. The State claims that the Plaintiff should furnish security for costs.

4. The Plaintiff’s current application is for a reference by the High Court to the European Court of Justice for a ruling from the ECJ on the validity of Directive 2006/24/EC.

5. The hearing of the Motions has continued before Judge McKechnie in the High Court and is now adjourned to 11th July 2008 at 10.30 am.

Digital Rights Ireland case

THE HIGH COURT
2006 No. 3785P

 

Between

 

DIGITAL RIGHTS IRELAND LIMITED

Plaintiff

And

 

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

Defendants

UPDATE (27/6/2008)

Digital Rights Ireland Ltd. has taken a case against the Irish Government as seen HERE.

DRI has brought an application to the High Court to seek a ruling from the ECJ on an EU law issue. The state has responded with its motion challenging DRI’s right to bring the proceedings. The Irish Human Rights Commission has applied for leave to make submissions in the proceedings. These Motions will (it is believed) be heard in the High Court on 1st July 2008. See the letter to Dr. Hans-Gert Pöttering for the context for this.

Our Ref;EMcG Your Ref; 24th June 2008

Dr. Hans-Gert Pöttering
President,
European Parliament,
Paul Henri Spaak building
Brussels

Dear President,

1. I am the lawyer for Digital Rights Ireland Ltd. (“DRI?). DRI is a corporate body established to protect and vindicate the civil and human rights of mobile phone users in Ireland. DRI has issued proceedings in the Irish High Court to challenge the validity of aspects of Ireland’s data retention legislation. (“The DRI proceedings?).

2. I write to you, as a matter of urgency, because an aspect of that legislation is the subject matter of proceedings between, inter alia, Ireland and the European Parliament in the European Court of Justice. (C-301/06: Ireland v Council and Parliament “The ECJ proceedings?) Those proceedings are now listed for hearing on 1st July 2008.

3. As you probably know, the Irish High Court is empowered to rule on the validity of European Union law, where the matter is acte clair. DRI is seeking, among other things, a ruling or rulings from the High Court on the validity of Directive 2006/24/EC.

4. Because, in the opinion of DRI, that matter is not acte clair, DRI has requested a reference by the High Court to the European Court of Justice on the validity of Directive 2006/24/EC.

5. DRI understands that the validity of Directive 2006/24/EC is the issue in the ECJ proceedings.

6. However, DRI perceives that DRI and Ireland do not agree as to why Directive 2006/24/EC is invalid. Ireland, it is understood, believes it is invalid because it was adopted at a meeting of the Council of Ministers following a vote against it by Ireland. Ireland is of the view (as is DRI) that Ireland’s vote was a veto vote. Ireland believes this because the subject matter for decision in the Council of Ministers was a “Third Pillar? issue. Unanimity is required for such issues; there was none.

7. DRI believes that the grounds of invalidity of Directive 2006/24/EC are wider than that. Ireland does not agree, it appears, (given certain actions and expressions of view of Ireland).

8. DRI believes that the basis for a determination of the invalidity of Directive 2006/24/EC, by the European Court of Justice, is a very important matter. DRI wishes to ensure that the European Court of Justice has the benefit of a full examination of all the reasons why Directive 2006/24/EC is invalid.

9. DRI will shortly obtain a hearing by the High Court of its application for a reference to the ECJ. It is opposed by Ireland in its pleadings. Ireland has also objected to the High Court hearing submissions from the Irish Human Rights Commission on the issues that DRI has brought to the Court.

10. What is now clear is that, failing intervention, the hearing of the ECJ proceedings on 1st July 2008 will precede the DRI proceedings in the High Court in Dublin. That means that the ECJ will be deprived of the full examination of the reasons why Directive 2006/24/EC is invalid.

11. If DRI is successful in Dublin it will be anxious to ensure its proceedings, under the High Court reference, are heard before or at the same time as the ECJ proceedings. The European Parliament is a respondent in the ECJ proceedings. It is open to the EP to apply to the ECJ for an adjournment of those proceedings pending the outcome of the DRI proceedings in Dublin.

12. I write to you to ask you to procure the making of that application to the ECJ.

13. The benefits will be substantial, legally and politically. The perception of the European Union as a legal institution will be enhanced. The opportunity for the ECJ to rule on what is a human rights issue will be secured. The anxiety of the European Parliament to protect human rights will be demonstrated.

14. DRI’s objectives are supported by groups across Europe including: Privacy International, the European Foundation for a Free Information Infrastructure, the Czech civil rights group Iuridicum Remedium, Digital Rights (Denmark), the Belgian Liga voor de Mensenrechten (“League for Human Rights?), Electronic Frontier Finland, the UK Open Rights Group, the Italian group, ALCEI (“Electronic Frontiers Italy?), the French IRIS, the Internet Society – Bulgaria, German groups netzwerk Neue Medien (“New Media network?) and FITUG (Förderverein Informationstechnik und Gesellschaft e.V.), and the Austrian groups VIBE!AT (“Austrian Association for Internet Users?) and Quintessenz.

15. I am ready to furnish any further details or information you may wish to have. The Chairman of DRI and I will readily travel to meet you if you require.

16. For obvious reasons the matter is urgent and I await hearing from you by return.

Yours Faithfully,

____________________
Edward McGarr
McGarr Solicitors

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