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The Complainant is Control Techniques Limited of London, United�Kingdom of Great�Britain and Northern�Ireland, represented by Baker�&�McKenzie, of United�Kingdom of Great�Britain and Northern�Ireland.
The Respondent is Lektronix Ltd. of Aldridge, United�Kingdom of Great�Britain and Northern�Ireland.
The disputed domain names <controltechniques-repairs.com> and <controltechniques-spares.com> are registered with CSL Computer Service Langenbach GmbH d/b/a Joker.com.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the�“Center”) on August�18,�2006. On August�21,�2006, the Center transmitted by email to CSL Computer Service Langenbach GmbH d/b/a Joker.com a request for registrar verification in connection with the domain names at issue. On August�22,�2006, CSL Computer Service Langenbach GmbH d/b/a Joker.com transmitted by email to the Center its verification response. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the�“Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the�“Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the�“Supplemental Rules”).
In accordance with the Rules, paragraphs�2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September�1,�2006. In accordance with the Rules, paragraph�5(a), the due date for Response was September�21,�2006. The Response was filed with the Center on September�18,�2006.
The Center appointed The Honourable Neil Anthony Brown QC as the sole panelist in this matter on October�4,�2006. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph�7.
The Complainant is the UK subsidiary of the United States company Emerson�Electric�Co., which is incorporated under the laws of the State of Missouri. It�is in the business of designing, producing and marketing of electronic drives for electric motors, which it does under the name CONTROL TECHNIQUES. Amongst other activities, it operates a website, the address of which is “www.controltechniques.com” on which it offers servicing, repairs and supply of spare parts for its products. It also owns several other domain names and websites incorporating the CONTROL TECHNIQUES name in various countries.
The Respondent is a major industrial electronic repair company in many countries throughout the world. It registered the domain name <controltechniques-repairs.com> and <controltechniques-spares.com> on February�9,�2005.
The Complainant alleges that the disputed domain names <controltechniques-repairs.com> and<controltechniques-spares.com> should no longer be registered with the Respondent but that they should be transferred to the Complainant.
It contends that this should be done because, within the meaning of paragraph�4 of the Policy, the domain names are identical or confusingly similar to the Complainant’s unregistered and common law trademark CONTROL TECHNIQUES, that the Respondent has no rights or legitimate interests in the domain names and that the domain names have been registered and subsequently used in bad faith. The�Complainant maintains that it can prove all three of these requirements and that the appropriate remedy is to transfer the domain names to the Complainant.
In support of its case on the first of these three elements, the Complainant contends that common law trademark rights are sufficient to found a Complaint under the UDRP and that it has acquired a common law trademark in the name CONTROL TECHNIQUES because of its long use in the Complainant’s business and its exclusive association with the Complainant’s name. It then says that the two domain names are confusingly similar to the trademark because they include the principal words of the trademark and then, in each case, have merely had added to it, one other word which is descriptive of the business of the Complainant’s business, which must create confusion as to whether the website of that name is operated by the Complainant.
The Complainant then contends, to establish the second element, that the Respondent has no rights or interests in the domain names because the Respondent is not authorized in any way to use its trademark and because the facts show an obvious intention by the Respondent to benefit from the reputation of the CONTROL TECHNIQUES mark, which was established before the domain names were registered.
Furthermore, the Complainant contends that the Respondent has been using the domain names to promote not only the products of the Complainant but also the products of its rivals, which is not a bona fide offering of goods and services.
The Complainant also argues that the Respondent is not named CONTROL TECHNIQUES and that, accordingly, it cannot bring itself within the provisions of paragraph�4(c)(ii) of the Policy.
Finally, the Complainant contends that the domain names were registered and are being used in bad faith. It contends that this is so because, first, the Respondent’s practice of registering a long series of domain names incorporating famous products and then claiming that it can service and provide spare parts for those products, shows that the Respondent registered the contentious domain names to prevent the Complainant from reflecting the trademark in a corresponding domain name, in breach of paragraph�4(b)(ii) of the Policy.
Secondly, the Complainant says, it is clear that the Respondent registered the domain names primarily for the purpose of disrupting the business of a competitor, because its intention was to divert to its own website potential customers of the Complainant. The Complainant alleges that this fact brings the Respondent within the provisions of paragraph�4(b)(iii) of the Policy.
By the same means, the Respondent has been attracting business by creating confusion as to whether its website and the goods and services promoted on it are being offered by the Complainant. This, the Complainant alleges, also establishes bad faith by virtue of paragraph�4(b)(iv) of the Policy.
Lektronix is increasingly reliant on utilising the Internet to generate new business and inform potential customers the range of equipment we repair. To this end we have a main website under the banner of Lektronix.co.uk plus a number of feeder sites that specifically describe the business we carry out. These generally name the company concerned and then add ‘repairs’ or ‘spares’ to the address.
To this end it says that it has had no objections from any other company in the Complainant’s position about the way it attracts its business, other than from the Complainant. Its service is popular because it receives about 350,000 hits per month on its various websites.
Turning to the specific allegations in the Complaint the Respondent says that the Complaint must fail because “Control Techniques” is not a trademark. As it puts it, the Complainant has argued that “the name Control Techniques is a trademark and that we have no right to use it in any way at all. But it is not a trademark; it is simply two words joined together. In all of the cases quoted in the complaint the entire list of domain names referred to registered trademarks Accordingly the Respondent cannot be infringing a trademark”.
Furthermore, there are many companies that undertake work on Control Techniques products and say so openly, for the Complainant has a poor reputation for after sales service.
Moreover, the Respondent alleges, the domain name cannot be confusingly similar to the CONTROL TECHNIQUES name because the Respondent makes it clear on its websites that it is not connected to the Complainant. It is therefore “… not passing ourselves off to be Control Techniques” and is independent of the Complainant and the other companies whose products it services.
The intention of these sites was to make it clear to Internet users that the Respondent could repair and provide spares for Control Techniques equipment, which, although placing it in direct competition with the Complainant, would never result in a prospective customer being in any way misled by Respondent’s websites.
We have been undertaking work on Control Techniques equipment for many years and have a reputation in the market place for offering high quality repairs. In many instances we will offer to repair equipment that Control Techniques themselves deem to be too old to repair. Without our assistance the user of the equipment would have no alternative but to purchase a new replacement unit of a more modern specification. This can cause huge disruption to companies and unnecessary expenditure. In many cases we have had customers contacting us to ask if we will repair equipment that Control Techniques have turned away.
As to the disclaimer on its websites the Respondent says that it offered to add to the home page of its two websites whatever wording the Complainant wanted to reinforce the fact that it has no connection with the Complainant, but had received no response.
This is very strange as in the past Control Techniques has referred some of its customers, with older equipment that they cannot service, to us for assistance. Also we have, a few years ago, tendered to Control Techniques for the provision of repair services on their older product that they no longer wish to support. Finally, we are a customer of Control Techniques and buy equipment and spare parts off them on a regular basis.
We submit that the complainant is simply utilising this mechanism as a way of stopping us undertaking lawful business in competition with them. They wish to ensure that any customer of theirs remain ignorant of the fact that there are other companies able to offer a better service than they can. Surely this goes directly against the whole concept of a free Internet where no company, however large, can dictate to the market”.
The onus is on the Complainant to make out its case and it is apparent, both from the terms of the Policy and the decisions of past UDRP panels, that the Complainant must show that all three elements set out in paragraph�4 (a) of the Policy have been established before any order can be made to transfer a domain name. As the proceedings are civil, the standard of proof is the balance of probabilities.
The Complainant must first establish that there is a trademark or service mark in which it has rights. It is here that the first dispute arises in the present case, for the Complainant concedes that it does not have a registered trademark or service mark with which the domain name is confusingly similar and the Respondent contends that that being so, the Complaint must fail, for the Policy specifically provides that there must be a trademark. To this, the Complainant replies that it is enough that it has an unregistered trademark. The first question is therefore whether an unregistered or common law trademark is sufficient to give the Complainant standing to bring a UDRP complaint.
The answer to this question is that a series of UDRP decisions have held and it is now well established that the Policy protects rights in unregistered trademarks: for example, see: Bennett Coleman & Co. Ltd. v. Steven S. Lafwani, WIPO Case No.�D2000-0014, SeekAmerica Networks Inc. v. Tariq Masood, WIPO Case No.�D2000-0131, and the cases cited by the Complainant, Brisbane City Council v.Warren Bolton Consulting Pty Ltd., WIPO Case No.�D2001-0047 and Imperial College v. Christopher Dessimoz, WIPO Case No.�D2004-0322.
However, the fact that an unregistered trademark is sufficient to bring the proceedings does not mean that a Panel will automatically accept that there is an unregistered trademark in any particular case simply because a Complainant asserts that there is.
What evidence, then, will a panel expect to find before it is able to conclude that the evidence establishes the existence of an unregistered trademark?
1.7 What needs to be shown for the complainant to successfully assert common-law or unregistered trademark rights?
Consensus view: The complainant must show that the name has become a distinctive identifier associated with the complainant or its goods and services. Relevant evidence of such “secondary meaning” includes length and amount of sales under the mark, the nature and extent of advertising, consumer surveys and media recognition. The fact that the secondary meaning may only exist in a small geographic area does not limit complainant’s rights in a common law trademark. Unregistered rights can arise even when the complainant is based in a civil law jurisdiction.
Uitgeverij Crux v. W. Frederic Isler, WIPO Case No.�D2000-0575, Transfer Skattedirektoratet v. Eivind Nag, WIPO Case No.�D2000-1314 Transfer Amsec�Enterprises, L.C. v. Sharon McCall, WIPO Case No.�D2001-0083, Denied.
Australian Trade Commission v. Matthew Reader, WIPO Case No.�D2002-0786, Transfer.
Answering this question is a matter of considering all of the evidence and applying it to the words that are said by the Complainant to constitute the trademark. The task is made more difficult when the words, as in the present case, are generic words and not obviously created or invented.
In the present case, the Panel finds that the Complainant has established, to paraphrase the words of the WIPO Overview, that the name CONTROL TECHNIQUES has become a distinctive identifier associated with the Complainant or its goods and services. That is so for the following reasons: the Complainant has been selling its products worldwide under the name CONTROL TECHNIQUES since 1985, it has advertised extensively under that name, its products are recognized by consumers and the media, it has adopted the name as its company and business name, its domain names have adopted the name around the world, its publications use the name and it continues to spend large sums of money on advertising and promoting the name at exhibitions and conferences.
Just as importantly for present purposes, it uses the same name in promoting its business of servicing and repairing the electric drives that it makes.
Moreover, there is no evidence to suggest that there is a company or business other than the Complainant that uses the name in the same area of industry as the Complainant.
The Panel is therefore satisfied that CONTROL TECHNIQUES is an unregistered trademark owned by the Complainant.
The next question is whether the domain names are confusingly similar to the trademark. The answer is that they are. The domain names consist, first of all, of the entirety of the trademark. Secondly, the domain names do not have any additional words as part of them that detract from or minimize the effect and dominance of the trademark in the domain name. Thirdly, the words that have been added to the trademark to comprise the domain name, “repairs” and “spares” respectively, do not lessen any confusing similarity that there is, but add to it. That is so because, once it is known by a potential market that CONTROL TECHNIQUES is in the repair and servicing of electric drives, which we now know that it is, the objective bystander would naturally assume that the Control Techniques referred to in the domain names and offering repairs and spares for Control Technique products is the same as Control Techniques itself.
This is exactly the same as the situation in Dr. Ing. h.c. F. Porsche AG v. Kentech, Inc. a.k.a. Helois Lab a.k.a. Orion Web a.k.a. Titan Net a.k.a. Panda Ventures a.k.a. Spiral Matrix and Domain Purchase, NOLDC, Inc., WIPO Case No.�D2005-0890, where the domain name <porsche-repair-parts.com> was held to be confusingly similar to the trademark PORSCHE.
Under paragraph�4(a)(ii) of the Policy, the Complainant has the burden of establishing that the Respondent has no rights or legitimate interests in respect of the domain names.
The Complainant has set about it the task of showing that the Respondent has no right or legitimate interest in the domain names by arguing and tendering evidence in support of its submissions, to the effect that the Respondent has been given no right to use the CONTROL TECHNIQUES trademark and in particular no right to use it to promote the products of the Complainant’s competitors. Consequently, it is said, the Respondent cannot have been using the domain name for a bona fide offering of goods and services.
The Respondent, however, counters this argument by saying that on a proper analysis it is entitled to rely on sub-paragraph�(i) and it contends that it was using the domain name in connection with a bona fide offering of goods and services before the dispute was brought to its notice, which appears from the evidence to have occurred on or about May�5,�2006.
“We specialise in offering to large manufacturing companies a repair service that is independent of the original equipment manufacturer.
We repair equipment manufactured by all of the large automation companies worldwide. This includes Control Techniques.
This process is beyond doubt the offering of both goods and services.
But is it a bona fide offering of goods and services?
At one time, it was generally thought that such a practice could not be bona fide because the party in the position of the Respondent was simply making an unauthorized use of the other party’s trademark to promote its own business and that such conduct was certainly not bona fide.
2.3 Can a reseller have a right or a legitimate interest in the disputed domain name?
Majority view: A reseller can be making a bona fide offering of goods and services and thus have a legitimate interest in the domain name if the use fits certain requirements. These requirements include the actual offering of goods and services at issue, the use of the site to sell only the trademarked goods and the site accurately disclosing the registrant’s relationship with the trademark owner. The respondent must also not try to corner the market in domain names that reflect the trademark.
Minority view: Without the express permission of the trademark holder the right to resell the trademark holder’s products does not create a right to use the trademark as the basis for a domain name.
Dr. Ing. h.c. F. Porsche AG v. Del Fabbro Laurent, WIPO Case No.�D2004-0481 and, Denied.
As will be seen from the cases cited in the Overview, the OKI Data principles have even been applied where there has been no contractual relationship between the domain name registrant and the trademark owner, despite the fact that in Oki Data itself, the Respondent was an approved Oki Data representative.
- Respondent must use the site to sell only the trademarked goods; otherwise, it could be using the trademark to bait Internet users and then switch them to other goods. Nikon, Inc. v. Technilab, WIPO Case No.�D2000-1774 (February�26,�2001) (use of Nikon-related domain names to sell Nikon and competitive cameras not a legitimate use); Kanao v. J.W. Roberts Co., Case No.�0109 (CPR July�25,�2001) (bait and switch is not legitimate).
In other words, the domain name registrant will be using the trademark for a legitimate purpose if it uses it to promote solely the goods of the trademark owner, but if it uses the trademark in a domain name as a guise to promote other goods and services which will not be in the interests of the trademark owner, that use of the trademark will be wholly illegitimate.
Applying the Oki Data principles and this important qualification on those principles, to the facts of the present case, it is clear that the Respondent cannot rely on it to show a bona fide offering of goods and services, or, consequently, a right or legitimate interest in the domain name.
If the user clicks on one of those names, it is directed away from the “controltechniques” sites and to a site in the particular rival manufacturer’s name, one of the sites that the Respondent describes as its “feeder sites” and then on to the Respondent’s own site where the services are ordered. Thus, the CONTROL TECHNIQUES trademark is being used by the Respondent on its websites to promote the wares of these other companies and also to promote the services of the Respondent itself in servicing those other brands, none of which can benefit the Complainant or be with its approval.
Moreover, the home page of the websites invites the user to “Click Here for Control Techniques Spare Parts”, but when one does, the user is directed not only to Control Techniques products, but also to a choice of what seems like dozens of other brands as well as Control Techniques. So even seeking out Control Techniques does not necessarily lead to Control Techniques products or services.
“Q: What equipment can you repair?
“We repair equipment manufactured by all of the large automation companies worldwide. This includes Siemens, Rockwell, Mitsubishi, ABB, Fanuc, Danfoss, Group Schneider, Cegelec, Alstom, etc. etc and Control Techniques”.
It is clear, therefore, that the Respondent cannot bring itself within the Oki Data principles, for it is trading on the Complainant’s trademark to promote its own services and to enhance the products of business rivals of the Complainant by offering to service their competing products and sell their competing spare parts.
The Respondent is also outside the Oki Data principles because the disclaimer on its home page is inadequate. What little of the disclaimer can be read, announces that the Respondent is not affiliated with Emerson Electric Co., which of course is correct, but it does not disclaim a connection with Control Techniques, as it should, if it wishes to avoid inevitable confusion with the Complainant and the suggestion that Control Techniques approves of its sale and servicing of its rivals’ products.
For these reasons, the Respondent has not been able to show a bona fide offering of goods and services before the dispute was brought to its notice. It therefore cannot avail itself of the benefit of paragraph�4(c)(i) and, as it does not rely on and could not bring itself within either of the other provisions of that paragraph, it has been unable to show that it has a right or legitimate interest in the domain names.
The starting point in this inquiry must surely be that the Respondent, like everyone else in its industry, must have known of the Complainant’s prominent CONTROL TECHNIQUES mark. That being so, it could not have chosen or subsequently used the word “controltechniques” in its domain names for any reason other than to trade on that name and to confuse Internet users and by that means to attract them to a website with a name which is the same as that of the prominent mark. That is, in itself, evidence of bad faith, both generally and specifically within the meaning of paragraph�4(b)(iii) and�(iv).
The Complainant relies on sub-paragraphs�4(b)(ii), (iii) and (iv) to make out its case of bad faith. The Panel’s view is that the facts bring the case clearly within paragraph�4(b)�(iii) and (iv).
The case comes within paragraph�4(b)(iii) because the Respondent is using the domain name to run a business in open competition with the Complainant in the repair of Control Techniques equipment and the sale of Control Techniques spare parts. Such a business is lawful in itself, but it is contrary to the Policy to conduct it by using domain names that have been registered primarily to disrupt the rival’s business. It is clear that the Complainant wants customers to come directly to it and it is equally clear that the Respondent is trying by means of the domain names to divert or siphon off as many of them as it can and to get the business for itself. That is clearly disrupting the business of a competitor, for it is interrupting the progress of that business.
The case also comes within sub-paragraph�4(b)(iv) for the following reasons. First, the Respondent does not deny, but positively asserts in its submission, that the way it conducts its business is to attract Internet users to its website so that it can get business from them. Secondly, the way it is doing this is to create the impression through its domain name that it is operating under the imprimatur or, as the Policy puts it, “the sponsorship, affiliation or endorsement” of Control Techniques. The Respondent could always have used its own name and then announced on its website that it sold spare parts for and serviced Control Techniques equipment. Instead of doing that, it has attracted potential customers by using and promoting the Complainant’s trademark without consent and creating the impression in the minds of at least some potential customers that it has the endorsement of the Complainant.
“Paragraph�4(b) of the Policy cites four non-exclusive circumstances that indicate bad faith in registering and using a domain name. The fourth is strikingly apposite here: using a domain name intentionally to attract Internet users to a site for commercial gain, by creating a likelihood of confusion with the complainant’s mark (Policy, paragraph�4(b)(iv)). The Respondent confusingly employs the Complainant’s marks in the Domain Names to attract Internet users to the Respondent’s commercial site, where the Respondent attempts to sell Complainant’s parts, as well as those of its competitors, evidently for commercial gain. This constitutes bad faith under paragraph�4(b)(iv) of the Policy. See�Toyota Motor Sales U.S.A., Inc. v. I.E. Mann d/b/a Everything Internet, FA0411000370902 (Nat. Arb. Forum, January�11,�2005), <autotoyotaparts.com> (respondent “commercially benefits from this diversion by selling products and services to Internet users who are searching under Complainant’s mark”); Toyota Motor Sales U.S.A., Inc. v. Indian Springs Motor, FA0305000157289 (Nat.�Arb.�Forum, June�23,�2003), <glennstoyota.com> and <usedtoyotalexus.com> (bad faith may be inferred where a respondent profits from its “diversionary use” of the complainant’s mark in a domain name that resolves to a commercial website and the respondent fails to respond with a plausible good-faith reason for using the mark)”.
Those observations are equally applicable to the present case and show that, within the meaning of paragraph�4(b)(iv), there has been bad faith registration and use.
We think this case is rather important to the future of, not only our business, but of the independence of the web as a whole. By using these websites we are simply attempting to inform users of a service that is available to them. We are not trying to deceive them into thinking anything other than the truth.
It is true that the independence of the web is a high priority and that there should be as few restraints as possible on the use of the web to inform users of services that are available to them. The Policy is not designed to frustrate either of those objectives. But the same objectives can be achieved without transgressing the rights of the owners of trademarks who often have a very substantial investment in the integrity of their names and who have a right to expect protection of their trademarks. It is also important that, as far as possible, users of the web are not mislead or misdirected.
In the present case, the Panel hopes that the Respondent understands that it is not the business it conducts or the promotion of it which is the subject of concern, but using the Complainant’s trademark, albeit an unregistered trademark, without permission and using it to promote the Respondent’s business so that at least some users are likely to be mislead into thinking that the services offered are those of the Complainant or that they are being offered with some sort of endorsement by the Complainant.
For all the foregoing reasons, in accordance with paragraphs�4(i) of the Policy and 15�of the Rules, the Panel orders that the domain names <controltechniques-repairs.com> and <controltechniques-spares.com> be transferred to the Complainant.

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The precise force of this reservation is discussed in detail in Chapter V.
 I also omit those which have no special relevance to the German Settlement. The second of the Fourteen Points, which relates to the Freedom of the Seas, is omitted because the Allies did not accept it. Any italics are mine.
 Part VIII. Annex III. (1).
 Part VIII. Annex III. (3).
 In the years before the war the average shipbuilding output of Germany was about 350,000 tons annually, exclusive of warships.
 Part VIII. Annex III. (5).
 Arts. 121 and 297(b). The exercise or non-exercise of this option of expropriation appears to lie, not with the Reparation Commission, but with the particular Power in whose territory the property has become situated by cession or mandation.
 Art. 297 (h) and para. 4 of Annex to Part X. Section IV.
 In 1871 Germany granted France credit for the railways of Alsace-Lorraine but not for State property. At that time, however, the railways were private property. As they afterwards became the property of the German Government, the French Government have held, in spite of the large additional capital which Germany has sunk in them, that their treatment must follow the precedent of State property generally.
 Arts. 55 and 255. This follows the precedent of 1871.
 Part X. Sections III. and IV. and Art. 243.
 The interpretation of the words between inverted commas is a little dubious. The phrase is so wide as to seem to include private debts. But in the final draft of the Treaty private debts are not explicitly referred to.
 Part X. Section IV. Annex, para. 10: "Germany will, within six months from the coming into force of the present Treaty, deliver to each Allied or Associated Power all securities, certificates, deeds, or other documents of title held by its nationals and relating to property, rights, or interests situated in the territory of that Allied or Associated Power.... Germany will at any time on demand of any Allied or Associated Power furnish such information as may be required with regard to the territory, rights, and interests of German nationals within the territory of such Allied or Associated Power, or with regard to any transactions concerning such property, rights, or interests effected since July 1, 1914."
 "Any public utility undertaking or concession" is a vague phrase, the precise interpretation of which is not provided for.
 Art. 141: "Germany renounces all rights, titles and privileges conferred on her by the General Act of Algeciras of April 7, 1906, and by the Franco-German Agreements, of Feb. 9, 1909, and Nov. 4, 1911...."
 Art. 148: "All treaties, agreements, arrangements and contracts concluded by Germany with Egypt are regarded as abrogated from Aug. 4, 1914." Art. 153: "All property and possessions in Egypt of the German Empire and the German States pass to the Egyptian Government without payment."
 Part IV. Section IV. Annex, Chap. III.
 "We take over the ownership of the Sarre mines, and in order not to be inconvenienced in the exploitation of these coal deposits, we constitute a distinct little estate for the 600,000 Germans who inhabit this coal basin, and in fifteen years we shall endeavor by a plebiscite to bring them to declare that they want to be French. We know what that means. During fifteen years we are going to work on them, to attack them from every point, till we obtain from them a declaration of love. It is evidently a less brutal proceeding than the coup de force which detached from us our Alsatians and Lorrainers. But if less brutal, it is more hypocritical. We know quite well between ourselves that it is an attempt to annex these 600,000 Germans. One can understand very well the reasons of an economic nature which have led Clemenceau to wish to give us these Sarre coal deposits, but in order to acquire them must we give ourselves the appearance of wanting to juggle with 600,000 Germans in order to make Frenchmen of them in fifteen years?" (M. Hervé in La Victorie, May 31, 1919).
 This plebiscite is the most important of the concessions accorded to Germany in the Allies' Final Note, and one for which Mr. Lloyd George, who never approved the Allies' policy on the Eastern frontiers of Germany, can claim the chief credit. The vote cannot take place before the spring of 1920, and may be postponed until 1921. In the meantime the province will be governed by an Allied Commission. The vote will be taken by communes, and the final frontiers will be determined by the Allies, who shall have regard, partly to the results of the vote in each commune, and partly "to the geographical and economic conditions of the locality." It would require great local knowledge to predict the result. By voting Polish, a locality can escape liability for the indemnity, and for the crushing taxation consequent on voting German, a factor not to be neglected. On the other hand, the bankruptcy and incompetence of the new Polish State might deter those who were disposed to vote on economic rather than on racial grounds. It has also been stated that the conditions of life in such matters as sanitation and social legislation are incomparably better in Upper Silesia than in the adjacent districts of Poland, where similar legislation is in its infancy. The argument in the text assumes that Upper Silesia will cease to be German. But much may happen in a year, and the assumption is not certain. To the extent that it proves erroneous the conclusions must be modified.
 German authorities claim, not without contradiction, that to judge from the votes cast at elections, one-third of the population would elect in the Polish interest, and two-thirds in the German.
 It must not be overlooked, however, that, amongst the other concessions relating to Silesia accorded in the Allies' Final Note, there has been included Article 90, by which "Poland undertakes to permit for a period of fifteen years the exportation to Germany of the products of the mines in any part of Upper Silesia transferred to Poland in accordance with the present Treaty. Such products shall be free from all export duties or other charges or restrictions on exportation. Poland agrees to take such steps as may be necessary to secure that any such products shall be available for sale to purchasers in Germany on terms as favorable as are applicable to like products sold under similar conditions to purchasers in Poland or in any other country." This does not apparently amount to a right of preemption, and it is not easy to estimate its effective practical consequences. It is evident, however, that in so far as the mines are maintained at their former efficiency, and in so far as Germany is in a position to purchase substantially her former supplies from that source, the loss is limited to the effect on her balance of trade, and is without the more serious repercussions on her economic life which are contemplated in the text. Here is an opportunity for the Allies to render more tolerable the actual operation of the settlement. The Germans, it should be added, have pointed out that the same economic argument which adds the Saar fields to France allots Upper Silesia to Germany. For whereas the Silesian mines are essential to the economic life of Germany, Poland does not need them. Of Poland's pre-war annual demand of 10,500,000 tons, 6,800,000 tons were supplied by the indisputably Polish districts adjacent to Upper Silesia. 1,500,000 tons from Upper Silesia (out of a total Upper Silesian output of 43,500,000 tons), and the balance from what is now Czecho-Slovakia. Even without any supply from Upper Silesia and Czecho-Slovakia, Poland could probably meet her requirements by the fuller exploitation of her own coalfields which are not yet scientifically developed, or from the deposits of Western Galicia which are now to be annexed to her.
 France is also to receive annually for three years 35,000 tons of benzol, 60,000 tons of coal tar, and 30,000 tons of sulphate of ammonia.
 The Reparation Commission is authorized under the Treaty (Part VIII Annex V. para. 10) "to postpone or to cancel deliveries" if they consider "that the full exercise of the foregoing options would interfere unduly with the industrial requirements of Germany." In the event of such postponements or cancellations "the coal to replace coal from destroyed mines shall receive priority over other deliveries." This concluding clause is of the greatest importance, if, as will be seen, it is physically impossible for Germany to furnish the full 45,000,000; for it means that France will receive 20,000,000 tons before Italy receives anything. The Reparation Commission has no discretion to modify this. The Italian Press has not failed to notice the significance of the provision, and alleges that this clause was inserted during the absence of the Italian representatives from Paris (Corriere della Sera, July 19, 1919).
 It follows that the current rate of production in Germany has sunk to about 60 per cent of that of 1913. The effect on reserves has naturally been disastrous, and the prospects for the coming winter are dangerous.
 This assumes a loss of output of 15 per cent as compared with the estimate of 30 per cent quoted above.
 This supposes a loss of 23 per cent of Germany's industrial undertaking and a diminution of 13 per cent in her other requirements.
 The reader must he reminded in particular that the above calculations take no account of the German production of lignite, which yielded in 1913 13,000,000 tons of rough lignite in addition to an amount converted into 21,000,000 tons of briquette. This amount of lignite, however, was required in Germany before the war in addition to the quantities of coal assumed above. I am not competent to speak on the extent to which the loss of coal can be made good by the extended use of lignite or by economies in its present employment; but some authorities believe that Germany may obtain substantial compensation for her loss of coal by paying more attention to her deposits of lignite.
 Mr. Hoover, in July, 1919, estimated that the coal output of Europe, excluding Russia and the Balkans, had dropped from 679,500,000 tons to 443,000,000 tons,--as a result in a minor degree of loss of material and labor, but owing chiefly to a relaxation of physical effort after the privations and sufferings of the war, a lack of rolling-stock and transport, and the unsettled political fate of some of the mining districts.
 Numerous commercial agreements during the war ware arranged on these lines. But in the month of June, 1919, alone, minor agreements providing for payment in coal were made by Germany with Denmark, Norway, and Switzerland. The amounts involved were not large, but without them Germany could not have obtained butter from Denmark, fats and herrings from Norway, or milk and cattle from Switzerland.
 "Some 60,000 Ruhr miners have agreed to work extra shifts--so-called butter-shifts--for the purpose of furnishing coal for export to Denmark hence butter will be exported in return. The butter will benefit the miners in the first place, as they have worked specially to obtain it" (Kölnische Zeitung, June 11, 1919).
 What of the prospects of whisky-shifts in England?
 As early as September, 1919, the Coal Commission had to face the physical impracticability of enforcing the demands of the Treaty, and agreed to modify them as follows:--"Germany shall in the next six months make deliveries corresponding to an annual delivery of 20 million tons as compared with 43 millions as provided in the Peace Treaty. If Germany's total production exceeds the present level of about 108 millions a year, 60 per cent of extra production, up to 128 millions, shall be delivered to the Entente and 50 per cent of any extra beyond that, until the figure provided in the Peace Treaty is reached. If the total production falls below 108 millions the Entente will examine the situation, after hearing Germany, and take account of it."
 21,136,265 tons out of a total of 28,607,903 tons. The loss of iron-ore in respect of Upper Silesia is insignificant. The exclusion of the iron and steel of Luxemburg from the German Customs Union is, however, important, especially when this loss is added to that of Alsace-Lorraine. It may be added in passing that Upper Silesia includes 75 per cent of the zinc production of Germany.
 In April, 1919, the British Ministry of Munitions despatched an expert Commission to examine the conditions of the iron and steel works in Lorraine and the occupied areas of Germany. The Report states that the iron and steel works in Lorraine, and to a lesser extent in the Saar Valley, are dependent on supplies of coal and coke from Westphalia. It is necessary to mix Westphalian coal with Saar coal to obtain a good furnace coke. The entire dependence of all the Lorraine iron and steel works upon Germany for fuel supplies "places them," says the Report, "in a very unenviable position."
 Arts. 264, 265, 266, and 267. These provisions can only be extended beyond five years by the Council of the League of Nations.
 Art. 268 (b) and (c).
 The Grand Duchy is also deneutralized and Germany binds herself to "accept in advance all international arrangements which may be concluded by the Allied and Associated Powers relating to the Grand Duchy" (Art. 40). At the end of September, 1919, a plebiscite was held to determine whether Luxemburg should join the French or the Belgian Customs Union, which decided by a substantial majority in favour of the former. The third alternative of the maintenance of the union with Germany was not left open to the electorate.
 The occupation provisions may be conveniently summarized at this point. German territory situated west of the Rhine, together with the bridge-heads, is subject to occupation for a period of fifteen years (Art. 428). If, however, "the conditions of the present Treaty are faithfully carried out by Germany," the Cologne district will be evacuated after five years, and the Coblenz district after ten years (Art. 429). It is, however, further provided that if at the expiration of fifteen years "the guarantees against unprovoked aggression by Germany are not considered sufficient by the Allied and Associated Governments, the evacuation of the occupying troops may be delayed to the extent regarded as necessary for the purpose of obtaining the required guarantees" (Art. 429); and also that "in case either during the occupation or after the expiration of the fifteen years, the Reparation Commission finds that Germany refuses to observe the whole or part of her obligations under the present Treaty with regard to Reparation, the whole or part of the areas specified in Article 429 will be re-occupied immediately by the Allied and Associated Powers" (Art. 430). Since it will be impossible for Germany to fulfil the whole of her Reparation obligations, the effect of the above provisions will be in practice that the Allies will occupy the left bank of the Rhine just so long as they choose. They will also govern it in such manner as they may determine (e.g. not only as regards customs, but such matters as the respective authority of the local German representatives and the Allied Governing Commission), since "all matters relating to the occupation and not provided for by the present Treaty shall be regulated by subsequent agreements, which Germany hereby undertakes to observe" (Art. 432). The actual Agreement under which the occupied areas are to be administered for the present has been published as a White Paper [Cd. 222]. The supreme authority is to be in the hands of an Inter-Allied Rhineland Commission, consisting of a Belgian, a French, a British, and an American member. The articles of this Agreement are very fairly and reasonably drawn.
 Art. 365. After five years this Article is subject to revision by the Council of the League of Nations.
 The German Government withdrew, as from September 1, 1919, all preferential railway tariffs for the export of iron and steel goods, on the ground that these privileges would have been more than counterbalanced by the corresponding privileges which, under this Article of the Treaty, they would have been forced to give to Allied traders.
 Questions of interpretation and application are to be referred to the League of Nations (Art. 376).
 Art 371. This provision is even applied "to the lines of former Russian Poland converted by Germany to the German gage, such lines being regarded as detached from the Prussian State System."
 Arts. 332-337. Exception may be taken, however, to the second paragraph of Art. 332, which allows the vessels of other nations to trade between German towns but forbids German vessels to trade between non-German towns except with special permission; and Art. 333, which prohibits Germany from making use of her river system as a source of revenue, may be injudicious.
 The Niemen and the Moselle are to be similarly treated at a later date if required.
 Art. 344. This is with particular reference to the Elbe and the Oder; the Danube and the Rhine are dealt with in relation to the existing Commissions.
 Art. 358. Germany is, however, to be allowed some payment or credit in respect of power so taken by France.


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If the conditions formulated by the Court of Justice of the European Union in its judgment of 16 June 2015 (C-62/14) and intended to limit the scope of the OMT programme are met, the complainants’ rights under Art. 38 sec. 1 sentence 1, Art. 20 secs. 1 and 2 in conjunction with Art. 79 sec. 3 of the Basic Law (Grundgesetz – GG) are not violated by the fact that the Federal Government and the Bundestag have not taken suitable steps to revoke or limit the effect of the policy decision of the European Central Bank of 6 September 2012 concerning the OMT programme. Furthermore, if these conditions are met, the OMT programme does not currently impair the Bundestag’s overall budgetary responsibility. Such was the decision of the Second Senate of the Federal Constitutional Court in a judgment pronounced today. If interpreted in accordance with the Court of Justice’s judgment, the policy decision on the OMT programme does not “manifestly” exceed the competences attributed to the European Central Bank. Moreover, if interpreted in accordance with the Court of Justice’s judgment, the OMT programme does not present a constitutionally relevant threat to the German Bundestag’s right to decide on the budget.
The constitutional complaints and the application for Organstreit proceedings [proceedings relating to disputes between constitutional organs] challenge two programmes aimed at the purchase of government bonds of Member States of the Euro zone on the secondary market by the European System of Central Banks (“ESCB”).
For further information please refer to press releases nos. 29/2013 of 19 April 2013 (available in German), 9/2014 of 7 February 2014, and 3/2016 of 15 January 2016.
1. The constitutional complaints and the Organstreit proceedings are partially inadmissible. In particular, the constitutional complaints are inadmissible to the extent that they directly challenge acts of the European Central Bank. To that extent those acts cannot be challenged before the Bundesverfassungsgericht (German Federal Constitutional Court).
2. To the extent that the constitutional complaints and the application for Organstreit proceedings are admissible, they are unfounded.
a) By empowering the Federation to transfer sovereign powers to the European Union (Art. 23 sec. 1 sentence 2 GG), the Basic Law also accepts a precedence of application of European Union law (Anwendungsvorrang des Unionsrechts). The legislature deciding on European integration matters may not only exempt institutions, bodies, offices and agencies of the European Union from being comprehensively bound by the guarantees of the Basic Law but also German entities that implement European Union law.
However, the precedence of application of European Union law only extends as far as the Basic Law and the relevant Act of Approval permit or envisage the transfer of sovereign powers. Therefore, limits for the opening of German statehood derive from the constitutional identity of the Basic Law guaranteed by Art. 79 sec. 3 GG and from the European integration agenda (Integrationsprogramm), which is laid down in the Act of Approval and vests European Union law with the necessary democratic legitimacy for Germany.
b) The fundamental elements of the principle of democracy (Art. 20 secs. 1 and 2 GG) are part of the constitutional identity of the Basic Law, which has been declared to be beyond the reach both of constitutional amendment (Art. 79 sec. 3 GG) and European integration (Art. 23 sec. 1 sentence 3 in conjunction with Art. 79 sec. 3 GG). Therefore, the legitimacy given to state authority by elections may not be depleted by transfers of powers and tasks to the European level. Thus, the principle of sovereignty of the people (Volkssouveränität) (Art. 20 sec. 2 sentence 1 GG) is violated if institutions, bodies, offices and agencies of the European Union that are not adequately democratically legitimised through the European integration agenda laid down in the Act of Approval exercise public authority.
c) When conducting its identity review, the Federal Constitutional Court examines whether the principles declared by Art. 79 sec. 3 GG to be inviolable are affected by transfers of sovereign powers by the German legislature or by acts of institutions, bodies, offices and agencies of the European Union. This concerns the protection of the fundamental rights’ core of human dignity (Art. 1 GG) as well as the fundamental principles that characterise the principles of democracy, of the rule of law, of the social state, and of the federal state within the meaning of Art. 20 GG.
When conducting its ultra vires review, the Federal Constitutional Court (merely) examines whether acts of institutions, bodies, offices and agencies of the European Union are covered by the European integration agenda (Art. 23 sec. 2 sentence 2 GG), and thus by the precedence of application of European Union law. Finding an act to be ultra vires requires – irrespective of the area concerned – that it manifestly exceed the competences transferred to the European Union.
d) Similar to the duties to protect (Schutzpflichten) mandated by the fundamental rights, the re-sponsibility with respect to European integration (Integrationsverantwortung) requires the constitutional organs to protect and promote the citizens’ rights protected by Art. 38 sec. 1 sentence 1 in conjunction with Art. 20 sec. 2 sentence 1 GG if the citizens are not themselves able to ensure the integrity of their rights. Therefore, the constitutional organs’ obligation to fulfil their responsibility with respect to European integration is paralleled by a right of the voters enshrined in Art. 38 sec. 1 sentence 1 GG. This right requires the constitutional organs to ensure that the drop in influence (Einflussknick) and the restrictions on the voters’ “right to democracy” that come with the implementation of the European integration agenda do not extend further than is justified by the transfer of sovereign powers to the European Union.
In principle, duties to protect are violated only if no protective measures are taken at all, if measures taken are manifestly unsuitable or completely inadequate, or if they fall considerably short of the protection’s aim. This means for the responsibility with respect to European integration (Integrationsverantwortung) that, if institutions, bodies, offices and agencies of the European Union exceed their competences in a manifest and structurally relevant manner or violate the constitutional identity in other ways, the constitutional organs must actively work towards respect of the European integration agenda. They may – within the scope of their competences – be required to use legal or political means to work towards revocation of measures that are not covered by the European integration agenda as well as – as long as the measures continue to have effect – to take suitable measures to restrict the national effects of such measures as far as possible. Just like the duties of protection inherent in fundamental rights, the responsibility with respect to European integration (Integrationsverantwortung) may in certain legal and factual circumstances concretise in such a way that a specific duty to act results from it.
3. According to these standards and if the conditions listed below are met, the inaction on the part of the Federal Government and of the Bundestag with regard to the policy decision of the European Central Bank of 6 September 2012 does not violate the complainants’ rights under Art. 38 sec. 1 sentence 1, Art. 20 secs. 1 and 2 in conjunction with Art. 79 sec. 3. Furthermore, the Bundestag’s rights and obligations with regard to European integration (Integrationsverantwortung) – including its overall budgetary responsibility – are not impaired.
a) The Federal Constitutional Court bases its review on the interpretation of the OMT decision formulated by the Court of Justice in its judgment of 16 June 2015. The Court of Justice’s finding that the policy decision on the OMT programme is within the bounds of the respective competences and does not violate the prohibition of monetary financing of the budget still remains within the mandate of the Court of Justice (Art. 19 sec. 1 sentence 2 TEU).
The Court of Justice bases its view to a large extent on the objectives of the OMT programme as indicated by the European Central Bank, on the means employed to achieve those objectives, and on the programme’s effects on economic policy, which – according to the Court of Justice – are only indirect in nature. It bases its review not only on the policy decision of 6 September 2012 concerning the technical details, but derives further framework conditions – in particular from the principle of proportionality –, which set binding limits for any implementation of the OMT programme. Furthermore, the Court of Justice affirms that acts of the European Central Bank are not exempt from judicial review, in particular regarding whether the principles of conferral and proportionality are complied with.
b) Nevertheless, the manner of judicial specification of the Treaty (Treaty on the Functioning of the European Union) evidenced in the judgment of 16 June 2015 meets with serious objections on the part of the Senate. These objections concern the way the facts of the case were established, the way the principle of conferral was discussed, and the way the judicial review of acts of the European Central Bank that relate to the definition of its mandate was conducted.
Firstly, the Court of Justice accepts the assertion that the OMT programme pursues a monetary policy objective without questioning or at least discussing and individually reviewing the soundness of the underlying factual assumptions, and without testing these assumptions with regard to the indications that evidently argue against a character of monetary policy.
Furthermore, – despite its own belief that economic and monetary policy overlap – the Court of Justice essentially relies on the objectives of the measure as indicated by the organ on review as well as on the recourse to the instrument of the purchase of government bonds enshrined in Art. 18 of the ESCB Statute when qualifying the OMT programme as an instrument belonging to the field of monetary policy.
Lastly, the Court of Justice provides no answer to the following issue: that the independence granted to the European Central Bank leads to a noticeable reduction in the level of democratic legitimation of its actions and should therefore give rise to restrictive interpretation and to particularly strict judicial review of the mandate of the European Central Bank. This holds all the more true if the principles of democracy and sovereignty of the people (Volkssouveränität) are affected – and thereby the constitutional identity of a Member State, which the European Union is required to respect.
c) Despite these concerns, if interpreted in accordance with the Court of Justice’s judgment, the policy decision on the OMT programme does not – within the meaning of the competence retained by the Federal Constitutional Court to review ultra vires acts – “manifestly” exceeds the competences attributed to the European Central Bank. Although – unlike the Senate – the Court of Justice does not question the indicated objectives and evaluates each of the signs that the Sen-ate holds to argue against the alleged objectives in an isolated manner instead of performing an overall evaluation, this is acceptable because on the level of the exercise of competences the Court of Justice has essentially performed the restrictive interpretation of the policy decision that the Senate’s request for a preliminary ruling of 14 January 2014 held to be possible.
The Court of Justice differentiates between the policy decision of 6 September 2012 on the one hand and the implementation of the programme on the other. With a view to the proportionality of the OMT programme and the fulfilment of the obligations to state reasons, it specifies additional compelling restrictions that apply to any implementation of the OMT programme and exceed the framework conditions indicated in the policy decision. Against this backdrop, one must assume that the Court of Justice considers the conditions it specified to be legally binding. In using procedural means to limit the ECB’s competences by reviewing whether the principle of proportionality has been observed, the Court of Justice takes up the issue of the nearly unlimited potential of the decision of 6 September 2012. The restrictive parameters developed by the Court of Justice do not completely remove the character of the OMT programme insofar as it encroaches upon economic policy. However, together with the conditions prescribed by the decision of 6 September 2012 – in particular the participation of Member States in adjustment programmes, Member States’ access to the bond market, and the focus on bonds with a short maturity – they make it appear acceptable to assume that the character of the OMT programme is at least to the largest extent monetary in kind.
d) If interpreted in accordance with the Court of Justice’s judgment, the policy decision on the technical framework conditions of the OMT programme as well as its possible implementation also do not manifestly violate the prohibition of monetary financing of the budget. Although the Court of Justice considers the policy decision to be permissible even without further specifications, its implementation must fulfil further conditions in order for the purchase programme to not violate Union law. Thusly interpreted, and when comprehensively assessed and evaluated, the OMT programme fulfils the requirements formulated by the Senate’s order of 14 January 2014 requesting a preliminary ruling by the Court of Justice.
• purchases are restricted or ceased and purchased bonds are remarketed should continuing the intervention become unnecessary.
f) Their responsibility with respect to European integration does not require the Federal Government and the Bundestag to take action against the OMT programme in order to protect the overall budgetary responsibility of the Bundestag. If interpreted in accordance with the Court of Justice’s judgment, the OMT programme does not present a constitutionally relevant threat to the Bundestag’s right to decide on the budget. Therefore, it can currently also not be established that implementation of the OMT programme would pose a threat to the overall budgetary responsibility.
g) However, due to their responsibility with respect to European integration (Integrationsverantwortung), the Federal Government and the Bundestag are under a duty to closely monitor any implementation of the OMT programme. This compulsory monitoring shall determine not only whether the abovementioned conditions are met, but also whether there is a specific threat to the federal budget – deriving in particular from the volume and the risk structure of the purchased bonds, which may change even after their purchase.
By christoph in Constitutional, Federal Constitutional Court on June 22, 2016 .

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Art. 20
Art. 79
Art. 79
Art. 79
Art. 79
Art. 20
Art. 38
Art. 20
Art. 38
Art. 38
Art. 20
Art. 79
Art. 18


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Present: CHAPMAN, C. J., GRAY, JR., WELLS, COLT, & MORTON, JJ.
At the trial of a married woman for an assault committed in the immediate presence of her husband, the defendant asked the judge to instruct the jury that she was presumed to act under her husband's control; but the judge refused, and instructed them that, if they were satisfied that she did the acts proved, of her own free will, free from the coercion or influence of her husband, they would be warranted in convicting her. Held, that the refusal to give the instruction asked for was erroneous.
The omission of the complainant's name from the body of a complaint signed by him does not affect the jurisdiction of the court, and cannot, therefore, under the St. of 1864, c. 250, § 3, be taken advantage of in arrest of judgment.
COMPLAINT "to the justice of the municipal court at Taunton, in the county of Bristol: , of Taunton, in the county of Bristol, in behalf of the Commonwealth of Massachusetts, complains" that Michael Eagan, Mary Eagan and John Eagan made an assault and battery on Patrick Saxton. The complaint was signed "Willis Potter," and the clerk indorsed thereon that it was received and sworn to on August 3, 1869. Michael Eagan was acquitted; Mary Eagan, who was his wife, and John Eagan, who was their son, were convicted; and Mary Eagan appealed.
control of her husband, and should be acquitted; but the judge declined, and instructed the jury that, if they were satisfied that she did the acts proved of her own free will, free from the coercion or influence of her husband, they would be warranted in convicting her."
The defendant was found guilty and moved in arrest of judgment, "because it does not appear in the body of the complaint who was the complainant, and that such defect is apparent, and is in matter of substance and not of form." The motion was overruled, and the defendant alleged exceptions.
J. Brown, for the defendant.
G. Marston, for the Commonwealth, to the point that the instructions were right, cited The King v. Stapleton, Jebb, 93; Commonwealth v. Lewis, 1 Met. 151 ; Wagener v. Bill, 19 Barb. 321; 3 Greenl. Ev. § 7.
MORTON, J. The assault of which the defendant was convicted was committed in the immediate presence of her husband. The presumption of law is, that she acted under his coercion. Commonwealth v. Gannon, 97 Mass. 547 . Commonwealth v. Burk, 11 Gray 437 . It was a right of the defendant to have this principle of law stated to the jury Her counsel asked the court to instruct the jury "that the presumption was that she acted under the coercion and control of her husband, and should be acquitted." If there was evidence in the case to rebut the presumption in favor of the defendant, the court was justified in refusing to instruct the jury that she should be acquitted; but we think that the first part of the instruction requested should have been given. The instructions actually given would have been accurate if the court had also instructed the jury as to the presumption above stated, but by the refusal to do so the defendant was deprived of the benefit of this presumption as one of the elements proper for the consideration of the jury in determining her criminal liability.
The motion in arrest of judgment, being for a cause existing before verdict, and not affecting the jurisdiction of the court, must be overruled. St. 1864, c. 250, §§ 2, 3.

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Why does the legislature want cameras in special education classrooms?
SB 507 seeks to protect non-verbal special education students from abuse or neglect that may occur in certain classrooms. Governor Greg Abbott signed the bill into law on June 19, 2015. It is codified in § 29.022 of the Texas Education Code.
When does SB 507 go into effect?
Although SB 507 was signed into law on June 19, 2015, it did not go into effect until the beginning of the 2016-2017 school year.
What triggers the duty to place, operate, and maintain video cameras?
• A member of the school District's Board of Trustees.
In order to make a request, a Request for the Installation of Video and Audio Recording Equipment form must be completed and turned in to the campus principal. This form can be found in the links on the right.
What type of camera equipment must be installed?
The cameras must be capable of covering all areas of the classroom, except a bathroom or changing area. They must also be capable of recording audio from all areas of the classroom, including the changing area.
What type of classrooms or settings require cameras?
29.022 sets out the criteria for the type of classroom eligible for installation of audio and video recording equipment. Generally, the law requires that the classroom be self-contained with a majority of the students who regularly attend the class being provided special education services more than 50% of the instructional day. In KISD, the classrooms that meet eligibility are Communication, Academic, and Social Development (CASD), Functional Skills, Positive Behavior Support (PBS), Preschool Program for Children with Disabilities (PPCD), Skills I & II, and Therapeutic Learning Classroom (TLC).
Does the school need consent from all parents in a classroom before it can record students?
No. Texas Education Code § 29.022 requires school districts to record students without parental consent because the purpose of the recording is student safety, even if the parent of another student in the classroom does not want his/her child to be recorded.
Can the classroom teacher object to recording equipment being installed in his/her classroom?
No. The law makes no provision for a teacher or other District employee to object to the installation of a camera in a classroom.
How will parents know if there is recording equipment in their child's classroom?
(2) The parents of all students receiving special education services in the classroom for which the request was made.
All staff in the school, as well as all students in the classroom where recording equipment will be installed, will receive written notice prior to the installation. Additionally, a sign will be posted outside of the classroom informing visitors that recording equipment is in operation.
How long does the school have to keep the video and audio recordings?
Killeen ISD will retain the recordings for three months after the recording date.
Is someone keeping a constant watch on the video once it has been installed in the classroom?
No. Killeen ISD is prohibited from regularly monitoring the recordings. The law is very restrictive on who may view the video and under what circumstances it may be viewed.
Can the recordings be used for teacher evaluations?
No. A school official may not use the recordings for teacher evaluations. However, they may be used in an employee disciplinary proceeding such as a teacher termination hearing or teaching license revocation hearing.
Yes. The general public, parents, and school staff are prohibited from viewing or having access to the recordings. However, there are some limited circumstances under which the recordings may be viewed.
What are the circumstances under which the recordings can be viewed?
• As part of an investigation conducted by the Texas Education Agency or the State Board of Educator Certification.
An "incident" is defined by Texas Administrative Code Chapter 103.1301(b)(9). To be an "incident", an event or circumstance on the recording must involve alleged "abuse" or "neglect" as defined by Texas Family Code §261.001 of a student by an employee OR alleged "physical abuse" or "sexual abuse" as defined by Texas Family Code §261.410 of a student by another student; AND the event or circumstance must have occurred in a self-contained classroom or other special education setting in which video surveillance under §29.022 is conducted.
Who can view the recording?
After an "incident report" has been filed by a parent/guardian, trustee, or staff member who suspects an "incident", as defined by state law (see above), has occurred in the classroom, Killeen Independent School District Officials will view the recording. If it is determined that an incident is documented in the recording, the District will conduct an investigation to determine if any crime has been committed, as well as make any required reports to DFPS. The District will also notify other agencies that a possible crime or violation of District policy may have occurred. Depending on the nature of the alleged incident, the District may make a report to the State Board of Educator Certification or other regulatory agency. Generally, if the District/Police found an incident occurred and after they have completed their investigation, the recording may be made available for viewing to the parent/guardian, appropriate District and campus staff or other regulatory agencies such as DFPS or SBEC. If a recording does not document an "incident", no one, other than the Police can view the recording.
Where can I get an Incident Reporting Form?
Incident Reporting Forms are available on this website, at the campus and online on the Special Education Department website.
Is it possible to get a copy of a recording?
No. However, the recording could be released pursuant to a subpoena.
How does someone request to view the video?
After receiving notification that an "incident" was recorded, a parent, appropriate District staff, or regulatory agency may complete a Request to View Recording form and submit it to the Office of the Deputy Superintendent. Viewings of recordings will take place at the Killeen Independent School District Central Administration Building located at 200 N WS Young Drive, Killeen, TX 76543.
What happens if the child whose parent requested the camera installation moves to another classroom, campus or moves from the District?
Once a camera is installed in a qualifying classroom, it will remain in the classroom until that classroom no longer meets the criteria established under TEC §29.022. Recording equipment, once installed is not tied to a specific student. If a student moves to a new qualifying classroom or a new school that does not have recording equipment installed, the parent will have to submit a new request for the installation of recording equipment.
Will the District install cameras in an ESY classroom?
If the classroom meets the criteria established by state law and the District receives a request to place a camera in an ESY classroom from a parent, staff member or member of the District's Board of Trustees, the District will install recording equipment in an ESY classroom.
Do parents have to request for video/audio equipment annually?
The District's Operating Guidelines for Video Surveillance of Special Education Settings Implementing TEC 29.022, specifies that: a request for installation and operation of video/audio recording of a self-contained classroom or other special education setting should be renewed annually if operation of the video/audio equipment is desired for the subsequent school year.


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The assessee-company was engaged in the trading and investment in shares and securities, mutual funds and future & options, i.e., F & O trading in shares and securities. During the year, the assessee had carried out transactions in shares in cash segment as well as in derivative segment. The assessee had incurred losses of certain amount from F & O business, i.e., in derivative business and earned profits of certain amount from share trading in cash segment. Thus, while the assessee incurred losses in derivative segment, it had earned profits in cash segment, i.e., on account of ordinary action of purchase and sale of shares simplicitor. The assessee claimed set off losses arising from derivatives against business income.
On these facts, the Assessing Officer invoked the Explanation to section 73 and held that losses arising from derivative transactions were in the nature of speculative loss and, thus, not allowed to be set off against other streams of income reported in the return of income except income arising in cash segment of speculative nature.
On appeal, the Commissioner (Appeals) also sustained the action of the Assessing Officer towards denial of set off of losses arising in derivative segment from income arising in other streams of business except speculative income arising in cash segment.
Asian Financial Services Ltd. v. CIT  70 taxmann.com 9/240 Taxman 192 (Cal.) (para 9.2) followed.
CIT v. DLF Commercial Developers Ltd.  35 taxmann.com 280/218 Taxman 45 (Delhi) (para 9.2) distinguished.
CIT v. DLF Commercial Developers Ltd.  35 taxmann.com 280/218 Taxman 45 (Delhi) (para 3), Asian Financial Services Ltd. v. CIT  70 taxmann.com 9/240 Taxman 192 (Cal.) (para 7.1), ITO v. Upkar Retail (P.) Ltd.  94 taxmann.com 450/171 ITD 626 (Ahd. - Trib.) (para 7.1), CIT v. Darshan Securities (P.) Ltd.  341 ITR 556/206 Taxman 68/18 taxmann.com 142 (Bom.) (para 7.2), CIT v. HSBC Securities & Capital Markets India (P.) Ltd.  23 taxmann.com 377/208 Taxman 439 (Bom.) (para 7.2), A.K. Capital Markets Ltd. v. Dy. CIT  65 taxmann.com 62 (Delhi - Trib.) (para 7.2), Fiduciary Shares & Stock (P.) Ltd. v. Asstt. CIT  70 taxmann.com 23/159 ITD 554 (Mum. - Trib.) (para 7.3) and Jalan Cement Works Ltd. v. CIT  76 taxmann.com 230 (Kol.) (para 7.3).
S.N. Soparkar , A.R. for the Appellant. James Kurian, Sr. D.R. for the Respondent.
Pradip Kumar Kedia, Accountant Member - The captioned appeal has been filed at the instance of the assessee against the order of the Commissioner of Income Tax (Appeals)-7, Ahmedabad ('CIT (A)' in short), dated 07.12.2015 arising in the assessment order dated 31.12.2014 passed by the Assessing Officer (AO) under s. 143(3) of the Income-tax Act, 1961 (the Act) concerning assessment year 2012-13.
"1.	Ld. CIT (A) erred in law and on facts in confirming action of AO to treat business loss of Rs. 5,19,80,774/- as speculation loss by applying explanation to section 73 of the Act. Ld. CIT(A) ought to have considered submission of the appellant and ought to have treated business loss instead of treating same as speculation loss. It be so held now.
2.	Ld. CIT(A) erred in confirming action of AO in disallowing Rs. 5,09,728/- u/s. 14A of the Act ignoring fact that appellant suo-moto disallowed Rs. 1,35,183/- without recording satisfaction on his part. Ld. CIT(A) ought to have considered the submission of the appellant and ought to have deleted the disallowances. It be so held now.
3.	Ld. CIT(A) erred in law and on facts in confirming action of AO for inclusion of bank charges in calculating disallowance u/s. 14A. Ld. CIT(A) ought to have considered the submission of the appellant and ought not to have considered said amount in calculation. It be so held now."
3. Relevant facts relating to Ground No.1 are that the assessee-company is engaged in the trading and investment in shares and securities, mutual funds and future & options i.e. F&O trading in shares and securities. Thus, during the assessment year in question, the assessee has carried out transactions in shares in cash segment as well as in derivative segment. As noted by the AO, the assessee has incurred losses of Rs. 5,17,80,774/- from F&O business i.e. in derivative business and earned profits of Rs. 1,21,60,169/- from share trading in cash segment. Thus, while the assessee incurred losses in derivative segment, it has earned profits in cash segment i.e. on account of ordinary action of purchase and sale of shares simplicitor. On these facts, the AO invoked the Explanation to Section 73 and held that losses arising from derivative transactions are in the nature of 'speculative loss' and thus not allowed to be set off against other streams of income reported in the return of income except income arising in cash segment of speculative nature. For doing so, the AO relied upon the decision of the Hon'ble Delhi High Court in the case of CIT v. DLF Commercial Developers Ltd.  35 taxmann.com 280/218 Taxman 45.
4. Aggrieved, the assessee preferred the appeal before the CIT (A).
5. The CIT(A) re-visited the various submissions made on behalf of the assessee but, however, found no merit therein. The CIT(A) observed that the provisions of Section 43(5) of the Act which provides definition of 'speculative transaction' applies only for the purposes of Section 28 of the Act and does not extend to other sections of the Act. On the contrary, the Explanation to Section 73 of the Act creates a deeming fiction by which the assessee, which is a company, as indicated in the said Explanation dealing with the transaction of shares and suffering losses, such transactions should be treated as speculative transactions for the purposes of set off within the meaning of Section 73 of the Act notwithstanding the definition of speculative transaction specified in Section 43(5) of the Act. The CIT(A) accordingly sustained the action of the AO towards denial of set off of losses arising in derivative segment from income arising in other streams of business except speculative income arising in cash segment.
6. Further aggrieved by the action of Revenue authorities for treating the loss from derivative transactions as speculative loss for the purposes of set off under s.73 of the Act read with Explanation thereto, the assessee knocked the door of the Tribunal.
7. The learned senior counsel for the assessee reiterated the submissions made before the lower authorities and contended that business carried out in derivative segment is clearly a non-speculative business in view of the amendment carried out in Section 43(5) of the Act w.e.f. AY 2006-07. It was thus contended that where the derivative transactions are not be regarded as 'speculative transaction' defined under s.43(5) of the Act, it would inevitably follow that Explanation to Section 73 of the Act has no application in the facts and circumstances of the case. Elaborating further, it was submitted that in view of the exclusion made in sub-clause (d) to Section 43(5) of the Act which defines the expression 'speculative transaction', loss arising from derivative transactions are concerned, the trading in derivatives cannot be deemed to be speculative transaction at the first instance. Continuing further, the learned senior counsel for the assessee raised three broad legal contentions to prop up its case.
7.1 Firstly, Explanation to Section 73 of the Act cannot apply to loss in F&O activity which are expressly excluded from being regarded as 'speculative business' under s. 43(5)(d) of the Act. For this proposition, the learned senior counsel relied upon the decision in the case of Asian Financial Services Ltd. v. CIT  70 taxmann.com 9/240 Taxman 192 (Cal.) and ITO v. Upkar Retail (P.) Ltd.  94 taxmann.com 450/171 ITD 626 (Ahd. - Trib.).
7.2 Secondly, Explanation to Section 73 of the Act does not also apply because income under the head 'income from business & profession' is less than income under the other head of income. For this legal proposition, the learned senior counsel relied upon the decision rendered in the case of CIT v. Darshan Securities (P.) Ltd.  341 ITR 556/206 Taxman 68/18 taxmann.com 142 (Bom.); CIT v. HSBC Securities & Capital Markets India (P.) Ltd.  23 taxmann.com 377/208 Taxman 439 (Bom.) & A.K. Capital Markets Ltd. v. Dy. CIT  65 taxmann.com 62 (Delhi - Trib.).
7.3 Adverting further, learned senior counsel raised third legal contention that amendment to Section 73 of the Act by the Finance Act (No.2), 2014 whereby the said Explanation is made inapplicable to the companies where principal business of the assessee is trading in shares, is essentially curative in nature and therefore has retrospective effect. For this proposition, the decision of the co-ordinate bench in the case of Fiduciary Shares & Stock (P.) Ltd. v. Asstt. CIT  70 taxmann.com 23/159 ITD 554 (Mum. - Trib.) & Jalan Cement Works Ltd. v. CIT  76 taxmann.com 230 (Kol.) was relied upon.
7.4 The learned senior counsel thus submitted that action of the Revenue has no legs to stand when tested on the touchstone on either of the legal position enumerated above. The learned senior counsel accordingly contended that both the AO as well as the CIT(A) misdirected themselves in failing to apply the position of law on the given set of facts. The learned senior counsel accordingly submitted the impugned action of the Revenue thus requires to be set aside and claim of the assessee requires to be allowed.
8. The learned DR, on the other hand, relied upon the order of the lower authorities.
9. We have carefully considered the rival submissions and perused the respective orders of the AO and CIT(A). The substantive question that arises for adjudication is whether loss incurred in eligible transactions i.e. derivative transactions within the meaning of Proviso (d) to Section 43(5) of the Act not involving any purchase or sale of shares per se can be regarded as speculative loss for the purposes of set off in view of Explanation to Section 73 or not. The controversy involved in the present case is thus essentially legal in nature.
9.1 In the present appeal, the assessee seeks set-off of losses arising from derivative losses as non-speculative business loss. In contrast, the Revenue has labelled the loss arising from derivative transactions as 'speculative loss' and has consequently denied set-off of such losses from regular income of non-speculative nature etc. by applying Explanation to Section 73 of the Act.
9.2 We first advert to the pivotal contention on behalf of the assessee that Explanation to Section 73 of the Act cannot apply to loss arising from derivative transactions which are categorically excluded from being regarded as speculative business as defined under s. 43(5) of the Act read with proviso (d) thereto. Identical issue arose before the Hon'ble Calcutta High Court in the case of Asian Financial Services (supra) relied upon. The Hon'ble Calcutta High Court held that once it is deemed to be a normal business loss on the basis of proviso appended to Section 43(5) of the Act, a question of applying Section 73 of the Act or the Explanation thereto for the purposes of refusing loss to be set-off against business income is wholly incorrect. The Hon'ble Calcutta High Court after taking note of the decision of Hon'ble Delhi High Court in DLF Commercial (supra) took a distinct stand that derivatives cannot be treated at par with shares for the purposes of Explanation to Section 73 of the Act because the legislature has treated it differently. Thus, in view of the aforesaid position enunciated by the Hon'ble High Court in Asian Financial Services (supra), we find good deal of force in the case of assessee. The claim of the assessee thus requires to be allowed on this ground alone.
9.3 In view of the resounding conclusion drawn in favour of the assessee on the aforesaid legal position, we do not consider it necessary to advert to other alternative contentions raised on behalf of the assessee.
10. In the result, Ground No.1 of the assessee's appeal is allowed.
11. Ground Nos. 2 & 3 concern disallowance under s.14A of the Act. The AO has disallowed an estimated expenses pegged at Rs. 5,09,728/- as attributable to exempt income by invoking Section 14A of the Act. The aforesaid action of the AO was confirmed by the CIT(A) in first appeal.
12. When the matter was called for hearing, the learned senior counsel for the assessee pointed out that the total exempt income by way of dividend was claimed at Rs. 6,13,133/- during the year. Against the aforesaid income, the assessee has suo motu disallowed an amount of Rs. 1,35,183/- out of expenses incurred. The AO has further disallowed Rs. 5,09,728/- by invoking Rule 8D of the Income Tax Rules. As a result, the disallowance has exceeded the exempt income itself in contradiction to the judicial precedents. In this regard, the learned senior counsel thereafter adverted our attention to the financial statement and submitted that the Revenue from operations of chargeable nature stands Rs. 406.59 Crores against which a paltry expense of about Rs. 9.63 Lakhs has been incurred. Therefore, any further disallowance out of such expenditure is evidently unjustified.
13. While appreciating the fact in perspective, we observe that against the total expense of Rs. 9.63 Lakhs, the turnover of the assessee in taxable stream stands at Rs. 406.59 Crores whereas the tax free income stands a meager amount of Rs. 6.13 Lakhs. Therefore, the suo motu disallowance by the assessee is prima facie sufficient to cover the possible expense attributable to tax exempt income. Needless to say, the operation of Rule 8D is not automatic. It is hedged by Rules. Likewise, Section 14A of the Act inheres in it the concept of reasonableness. It is unconceivable to say that assessee has incurred Rs. 6.44 Lakhs out of total expense of Rs. 9.63 Lakhs to earn a paltry dividend income of Rs. 6.13 Lakhs while the remaining expenditure attributes for generation of substantial revenue of taxable nature noted above. The action of the Revenue is therefore prima facie inexplicable. Consequently, we set aside and cancel the addition of Rs. 5,09,728/- made by the AO under s.14A of the Act.
14. In the result, the assessee gets relief as claimed in Ground Nos. 2 & 3 of its appeal.
15. In the result, appeal of the assessee is allowed.

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"In every case, my goal is to provide practical, cost-effective, and creative solutions both in and out of the courtroom to achieve the best result possible for the client. A thoroughly researched brief, a well-written mediation statement, or a meaningful discussion with opposing counsel can be just as effective at resolving disputes as a trial verdict."
Jaime handles a variety of civil litigation matters, with a particular emphasis on cases arising out of real property disputes, including land use, tax assessment, construction, and landlord/tenant litigation. Jaime also routinely assists clients with complex business and employment matters (e.g., wage and hour law, restrictive covenants, and employment policies and agreements).
Jaime has experience in both state and federal courts, as well as in alternative dispute resolution. Her work in multiple practice areas enables Jaime to formulate comprehensive legal and business strategies that not only achieve great results in the courtroom, but also allow her to assist clients in mitigating potential disputes.
CVAS Props., LLC v. City of Fredericksburg, No. 161541, 2017 Va. LEXIS 31 (Mar. 15, 2017).
Celebrate Va. S., LLC v. City of Fredericksburg, No. 161540, 2017 Va. LEXIS 32 (Mar. 15, 2017).
CVAS Parkway, LLC v. City of Fredericksburg, No. 161543, 2017 Va. LEXIS 34 (Mar. 15, 2017).
CVAS 2, LLC v. City of Fredericksburg, No. 161542, 2017 Va. LEXIS 35 (Mar. 15, 2017).
Celebrate Va. S., LLC v. City of Fredericksburg, No. 161544, 2017 Va. LEXIS 36 (Mar. 15, 2017).
CVAS 2, LLC v. City of Fredericksburg, 289 Va. 100, 766 S.E.2d 912 (2015).
Friends of the Rappahannock v. Caroline County Board of Supervisors, 286 Va. 38, 743 S.E.2d 132 (2013).
Represented employers in a FLSA collective actions involving overtime pay.
Handled multiple tax assessment appeals in cases involving taxes and special assessments in excess of $100 million.
Appealed zoning decisions of various Boards of Zoning Appeals.
Successfully defended a manufacturer in a product liability case.
Handled disputes concerning zoning, easements, adverse possession, and eminent domain.
Represented both landlords and tenants in commercial and residential lease disputes.
Defended a contractor in a breach of contract suit in federal court.
Defendant employers against complaints filed with the EEOC.
Jaime grew up in Richmond, and despite having left the area multiple times for stints in Washington, D.C. and Wheeling, West Virginia, she has always managed to find her way back home. Jaime is mom to two children under 2—Oscar and Adela—who keep her on her toes.
When she’s not wrangling small children, Jaime enjoys live music, camping, skiing, reading historical fiction, podcasts, and relaxing at Richmond’s many craft breweries. A lifelong athlete (and L.C. Bird Hall of Fame inductee), Jaime loves spending time outdoors with her family swimming, biking, and playing ball.
Law clerk for the Honorable Frederick P. Stamp, Jr. of the United States District Court for the Northern District of West Virginia.

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