In 1998, the U.S. Court of Appeals for the Federal Circuit decided a landmark case (State Street Bank & Trust Co. v. Signature Financial Group, Inc.) verifying that methods of doing business are subject to the same legal requirements for patentability as any other process or method. This holding resulted in a flood of patent applications being filed at the USPTO for methods of doing business. Many of the applications filed and examined following the guidelines set forth in the State Street decision have been granted as U.S. Patents. A recent decision by the CAFC casts uncertainty on the validity of these business method patents.
On October 30, 2008, the CAFC rendered an opinion (In re Bilski) clarifying whether certain methods and processes are patentable under 35 USC §101. The decision specifically addressed whether so-called business method patents are properly protected under §101 of the Patent Act. Following the Bilski decision, computer software and business methods remain patentable per se, subject to restrictions and guidelines set forth by the CAFC.
The patent application at issue in the Bilski decision was a hedging method for “managing the consumption risk cost of a commodity sold by a commodity provider at a fixed price.” The application was rejected by the USPTO and included method claims requiring the steps of initiating a series of transactions between the commodity provider and consumer, identifying market participants for the commodity having a counter-risk position to the consumers, and initiating a series of transactions between the commodity provider and the market participants. The business-method patent claims required little more than a series of steps that were not tied to any type of machine and merely manipulated an abstract idea and solved a purely mathematical problem.
In the decision rendered by the CAFC, the CAFC held that the method claims of the Bilski application did not satisfy the patentability subject matter requirements of §101.
In the opinion, the CAFC set forth a rigid two step test to determine whether subject matter is patentable under §101. For subject matter to be patentable under §101, the method or process must either 1) be tied to a particular machine or apparatus or 2) transform a particular article into a different state or thing. In rendering this two part test, the CAFC explicitly stated that the “useful, concrete and tangible result” test of State Street has been replaced by the machine-or-transformation test of Bilski for determining patent eligibility of processes under §101.
The Court in Bilski clearly stated that business method claims, and indeed all process claims, are eligible patent subject matter if the claims in such patents meet the machine-or-transformation test.
In currently pending applications, claims written under the old standard may be rejected under §101 based upon the Bilski decision. When addressing these §101 rejections or, when originally drafting claims, it is advisable to utilize language in the claims that tie elements of the method to some type of machine or apparatus, such as a computer or processor that is specifically programmed to carry out the steps of the method. In many cases, these additional elements that are required to address the new §101 standard can be added without significantly affecting the strength or scope of the claims.
When preparing and filing applications directed to methods of doing business or to protect a process, the specification should be written to be as specific as possible as to how the process or business method is being carried out on hardware, such as a computer. Further, if information required for the process or method is obtained from some type of hardware device, such as a sensor or database, details and limitations regarding the hardware device or the machine used to obtain information or data should be included in both the specification and the claims.
A more troubling result of the Bilski decision is how the machine-or-tranformation standard will impact the large number of issued patents that were allowed under the old, overruled useful, concrete and tangible result test. Many of these patents, which cover business methods and processes, issued with claims that no longer meet the §101 requirement following the Bilski decision. Patent holders that own these types of patents may want to conduct a “Bilski test” on the claims of the patent to determine whether the claims meet the machine-or-transformation test set forth by the CAFC. If the claims in these patents raise concerns, corrective action can be taken, such as by filing reissue applications or through continuation practice.
Following the Bilski decision, software, business methods and pure method patents are still available for patent applicants. However, additional care must be taken when drafting claims to address the machine-or-transformation test set forth by the CAFC.
Andrus, Sceales, Starke & Sawall is pleased to announce that Aaron T. Olejniczak, Peter T. Holsen and Christopher M. Scherer have become partners, effective January 1, 2009.


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Rau, D. Victoria & Meng-chien Yang. 2006. Digital transmission of language and culture. Paper presented at the Joint AAAL-ACLA/CAAL, Montreal, Canada, 6/17-20/2006.
Rau, D. Victoria & Hui-Huan Ann Chang. 2006. Chain Shift of /ay/ and /aw/ in Yami on Orchid Island. Paper presented at the Joint IACL 14 & IsCLL 10, Academia Sinica, Taipei, 5/25-29/2006.
Rau, D. Victoria and Hui-Huan Ann Chang. 2006. Phonological variation and sound change in Yami on Orchid Island. Paper presented at the 10-ICAL, The Philippines, 1/17-20/2006.
Rau, D. Victoria, Meng-chien Yang, and Maa-neu Dong. 2006. Endangered language documentation and transmission. Paper presented at the 10-ICAL, The Philippines, 1/17-20/2006.
Rau, D. Victoria and Hui-Huan Ann Chang. 2005. Think or sink: Chinese learners' acquisition of the English voiceless interdental fricative. Paper presented at the 22nd International Conference on English Teaching and Learning in the R.O.C., National Taiwan Normal University, Taipei, 6/4-5/2005.
Rau, D. Victoria. 2004. Iconicity and tense, aspect, and mood morphology in Yami. Paper presented at 9th International Symposium on Chinese Languages and Linguistics (IsCll-9), Taipei, 11/19-21/2004.
Chang, Ann Hui-Huan and D. Victoria Rau. 2004. Phonological variation of (th) among EFL learners in Taiwan. Paper presented at the AAAL 2004, Portland, Oregon, 4/30-5/2/ 2004.
Rau, D. Victoria. 2002. Auxiliary verbs, nominalization, and discourse functions in Yami, Paper presented at the 9th International Conference on Austronesian Linguistics (9ICAL), National Australian University, Canberra, 1/8-11/2002.
Rau, D. Victoria. 2000. Nominalization in Yami, Paper presented at the Workshop on Nominalization in Formosan Languages, Institute of Linguistics (Preparatory Office), Academia Sinica, Taipei, 10/21-23/2000.
Rau, Der-Hwa V. 1999. Word order variation and topic continuity in Atayal, Paper presented at the 7th Annual Meeting of the Austronesian Formal Linguistics Association (AFLA 7), Vrije Universiteit, Amsterdam, 5/11-13/1999.
Rau, Der-Hwa V. 1999. Yami, Chinese and English trilingual dictionary project: word frequency counts, Paper presented at the Ninth Annual Conference on Southeast Asian Language Teaching and Applied Linguistics, University of Oregon, Eugene, Oregon, 7/9-10/1999.
Rau, Der-Hwa V. 1997. A discourse analysis of Atayal word order variation, Paper presented at the Eighth International Conference on Austronesian Linguistics, Academia Sinica, Taipei, 12/28-30/1997.
Rau, Der-Hwa V. 1996. Applications of variation studies to Chinese language teaching (in Chinese). Paper presented at the Journées d'étude internationales sur l'enseignement du chinois moderne, Association Francaise des Professeurs de Chinois, Paris, 2/2-3/1996.
Rau, Der-Hwa V. 1005. Yami language vitality (in Chinese), Paper presented at the Conference on Language Use and Ethnic Identity, Institute of Ethnology, Academia Sinica, Taipei, 6/16/1995.
Rau, Der-Hwa V. 1995. Using computerized speech lab to help Chinese students master English palato-alveolar fricative and rhythm, Paper presented at the 12th Annual R.O.C. TESOL Conference, Tunghai University, Taichung, Taiwan, 5/20/1995.
Rau, Der-Hwa V. & Jessica Li. 1994. Phonological variation of (ts), (tsh), and (s) in Mandarin Chinese, Paper presented at the 23rd Annual Conference on New Ways of Analyzing Variation (NWAV), Stanford University, 10/20-23/1994.
Rau, Der-Hwa V. & Joseph Grimes. 1994. Transitivity and discourse grounding in Atayal, Paper presented at the 7th ICAL, Leiden University, The Netherlands, 8/22-27/1994.
Rau, Der-Hwa V. 1994. Language policy on Taiwan Southern Min Dialect: lessons from Quebec (in Chinese), Paper presented at the Conference on Taiwan Southern Min Dialect, National Tsing Hua University, Taiwan, 6/3-5/1994.
Rau, Der-Hwa V. 1994. The scientific and social principles for orthography development: a case study of Atayal (in Chinese). Paper presented at the Conference on Taiwan Austronesain Language Maintenance and Development, Academia Sinica, Taipei, 5/20-22/1994.
Rau, Der-Hwa V. 1993. Linguistics and literature in English language teaching (in Chinese), Paper presented at he 5th National Conference of English and American Literature, National Chengchi University, Taipei, 11/20/1993.
Chu, Judy & Der-Hwa V. Rau. 1993. A pragmatic study of newspaper headlines on political news, Paper presented at the 22nd Annual Conference on New Ways of Analyzing Variation (NWAV), University of Ottawa, Canada, 10/14-17/1993.
Rau, Der-Hwa V. 1991. The role of grammar in teaching Indonesian based on the notion of communicative competence. Paper presented at the 6th ICAL, University of Hawai'i at Manoa, August 1991.
Rau, Der-Hwa V. 1987. Sociolinguistic variable rule analysis of -nya in Indonesian, Paper presented at the 16th Annual Conference on New Ways of Analyzing Variation (NWAV), University of Texas, Austin, October 1987.

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Today, the Court released its opinion in one of the more controversial cases of the Term, Gonzalez v. Oregon (04-623), the Oregon assisted suicide case. In a 6-3 decision, the Court, led by Justice Kennedy, found that the Attorney General lacks authority under the Controlled Substances Act ("CSA") to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicides in accordance with state law (here, Oregon's Death With Dignity Act ("ODWDA"). The AG had issued an Interpretive Rule concluding that the term "prescription" requires a "legitimate medical purpose" for the drug, that "assisting suicide is not a ‘legitimate medical purpose' . . . and that prescribing, dispensing, or administering federally controlled substances to assist suicide violates the [CSA]." If the Rule was valid, Oregon doctors prescribing lethal doses of controlled drugs under ODWDA would likely have their federal registration to prescribe controlled drugs revoked as inconsistent with "the public interest," and face criminal prosecution for violating the CSA. Oregon, along with a physician, pharmacist and terminally ill state residents filed suit to challenge the Rule. The District Court permanently enjoined its enforcement, and the Ninth Circuit invalidated it altogether.
After pages of decidedly dry discussion regarding the different levels of deference accorded agency interpretation (if you need a primer on Auer, Chevron, and Skidmore deference, this is a good place to look), the Court agreed with the Ninth Circuit. The Court found the AG's Interpretive Rule was subject only to Skidmore deference – that is, only as much deference as it had "power to persuade," and the Court was not persuaded. The CSA is designed to regulate and deter recreational use of drugs, but not to infringe on a state's right to regulate medicine absent a positive conflict between the CSA and state law. While the AG's interpretation of "prescription" was not unreasonable, the Court would not read into the CSA a fundamental alteration of this balance between the federal government and the states based on the vague word "prescription" (or the fact that the AG could deny registration of a physician based on the "public interest"). As the Court put it, Congress "does not, one might say, hide elephants in mouse holes." The majority also seemed to find it notable that an attempt to amend the CSA to expressly prohibit physician assisted suicide did not pass, although this was not a cornerstone of the Court's analysis. (Justice Scalia certainly would not abide such logic, which he likely would view as akin to the "dog that didn't bark.") Perhaps the most surprising part of the majority's decision is the fact that it assumed that Congress could have prohibited the conduct at issue under its Commerce Clause authority – it just didn't do so here.
Scalia dissented, joined by Thomas and the Chief (in his first dissent). They would have afforded the AG's Interpretive Rule Auer or Chevron deference and, even absent deference, agreed that the AG's interpretation is the most logical one. Thomas wrote a separate dissent to say that he believes the CSA should be interpreted consistent with principles of federalism – thus his dissent in Gonzalez v. Raich, the medical marijuana case – but having just decided Raich (which found that the CSA constitutionally could regulate medical marijuana grown and used within one state), that issue was "water over the dam." Absent a constitutional challenge (not made here), Thomas found no problem with the AG's interpretation in this case.
Next, in the somewhat less riveting case of Wachovia Bank, N.A. v. Schmidt (04-1186), the Court unanimously held that, for purposes of diversity jurisdiction in federal courts, a national bank is a "citizen" only of the state where its main office is located. Justice Ginsburg wrote for the 8-0 Court (Justice Thomas did not participate). For those who want more detail than just the holding, the opinion turned on the meaning of 28 U.S.C. § 1348, which provides that federally chartered national banks are citizens of "the States in which they are respectively located." In this case, the Fourth Circuit had held that national banks were citizens of every state in which they had branches, a holding that would restrict dramatically the banks' access to federal courts (since diversity jurisdiction requires that plaintiff and defendant be from different states). The Court reversed, on the ground that nothing in the statute indicates that Congress intended to depart from the norm for jurisdiction: individuals who reside in more than one state are citizens of only one, and a corporation is a citizen only of its state of incorporation and principal of place of business. National banks should be no different – otherwise, they would be "singularly disfavored" entities. The Court also criticized the Fourth Circuit's application of venue case law to the meaning of "located" for jurisdictional purposes, quoting a law journal article for the ominous notion that assuming that a word has the same meaning in different rules used for different purposes "has all the tenacity of original sin and must constantly be guarded against."
Today's order list contained no new cert grants – in fact, it contained no action at all on one of the bigger petitions of the term, the Padilla v. Hanft (05-533) case challenging the President's authority to seize American citizens in civilian settings and detain them as "enemy combatants" in the war on terror. That case was conferenced last week, and presumably has been relisted for further consideration.
On Friday, however, the Court did grant cert in one new case, Dixon v. United States (05-7053), in which the Court will decide who bears burden of persuasion on a defense of duress or coercion to a federal criminal charge – the prosecution or the accused.
Finally, today the Court released a rare dissent from a denial of cert, by Justice Breyer in Allen v. Ornoski (05-8639), in which the petitioner challenged his death sentence. Breyer dissented from the denial, and would have granted a stay of execution, on the ground that Allen, who is 76, blind, diabetic, and wheelchair-bound, raised a significant question as to whether his execution would be cruel and unusual punishment.
We're expecting more opinions tomorrow. Until then, thanks for reading!


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The German Red Cross e.V. is legally represented by Christian Reuter, General Secretary and Chairman of the Board of Management.
The DRK e. V. assumes no liability for the topicality, correctness, completeness or quality of the contents provided. Liability claims against the DRK e. V. relating to damage of a pecuniary or non-pecuniary nature caused by the use or non-use of the information presented or as a result of erroneous and incomplete information, are generally excluded, insofar as there is no demonstrable fault of an intentional or grossly negligent nature on the part of the DRK e. V.
The responsibility of the service provider pursuant to § 7 Para. 1 TMG is limited exclusively to the content provided by the service provider. In addition, the website also contains correspondingly marked references or links to third party websites. The DRK e. V. has no influence on the current and future form, the content or authorship of the linked/referenced sites. The respective provider of the site is solely responsible for the content of the site, which is why the DRK e. V. does not assume any responsibility for this.
The DRK e. V. hereby expressly declares that, at the time of placing of links, no illegal content was found on the linked pages. Continuous monitoring of the content of linked pages is not, however, reasonable without specific indications of a legal violation. Upon notification of such legal violations, we will remove such links immediately.
The DRK e. V. endeavours to observe the copyright of all the images, graphics, audio files, video sequences and texts used in all publications and to use its own images, graphics, audio files, video sequences, and texts, or to rely on licence-free graphics, sound files, video sequences and texts.
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This article rounds out – for the time being – Dikaios’ series on the legal representative (LR) for Civilly Recognised Ecclesiastical Entities (“CREE”), which, in addition to dioceses, parishes, etc., also includes generalates, curias, provinces, local communities, houses and other emanations of religious congregations.
In order to accomplish his or her duties correctly, it is necessary that the Legal Representative of a CREE be aware of the series of duties and responsibilities arising from various statutory and regulatory provisions, which ever increasingly apply also to CREE’s.
For many years, the management of CREE’s has been considered a mere “local” formality, in comparison to the broader and more significant management of the Congregation, and indeed, the Legal Representative a mere figurehead while the real decisions were taken by other officials of the Congregation. This attitude still persists to this day, witness the vast majority of CREE’s that still do not have Statutes or financial statements. Times are changing, however, and, in line with a general trend towards entity transparency and responsibility, sooner or later the CREE’s will also have to adjust to these requirements, either voluntarily, for reasons of convenience, or under the constraint of the law (see the new legislation on “third sector” non-profit entities), on pain of losing important tax and other advantages, to cite just one example.
This article aims to give a broad overview of the principal duties and responsibilities incumbent upon the LR of a CREE deriving both from canon law and from civil law. These requirements need not be in conflict. For example, with respect to the alienation of real property, the 1985 modifications to the Lateran Treaties (Art. 7 of Law 121/1985) provide specifically that, in addition to the rules and controls of canon law, a CREE shall also be subject to the provisions of Italian law applicable to civil entities generally.
Specifically, with respect to persons who manage or administer the temporal goods of the Church, and this includes the Legal Representative of a CREE, Canon 1284, §1 sets the general standard to be respected in carrying out his or her duties: “diligentia boni patris familias”.
This standard of care is common in legal parlance, even if there is no specific definition of this standard. One can say, however, that it means the diligence of the “average” householder. The “prudent head of household” thus discharges duties in a wise and judicious manner, because the household is dependent on him/her. It is evident that, the exact outlines of this “judicious” conduct must be assessed on a case-by-case basis and will depend on what duties are to be performed, and which tasks carried out.
In line with the duty of care required under canon law, Art. 28 of the Code of the Non-Profit Sector (Legislative Decree no. 117, 3 July 2017) provides that “the directors, general managers, members of the governing body, and the party mandated to audit the books will be liable as against the entity, its partner-creditors, the founder, the affiliates, and any third parties, under Articles 2392, 2393, 2393-bis, 2394, 2394-bis, 2395, 2396 and 2407 of the Civil Code, and Article 15 of Legislative Decree no. 39 (27 January 2010), to the extent applicable.
Moreover, Art. 2392 of the Civil Code contemplates that “directors shall discharge the duties assigned to them by statute or by the articles of association with the standard of care required by their office and their particular expertise”.
Thus, the Civil Code likewise cites “due care” as an indispensable characteristic of a good director and the focus is on a general duty of trust with vis-à-vis the owners or the beneficiaries of the property or goods managed.
After setting the general standard of care applicable to administrators, Canon 1284 in detail the duties of the LR of administrators of religious institutes in general, including the LR of a CREE. As we shall see, these duties all have a counterpart in Italian civil law.
One caveat, however: duties arising from the office of director/LR can certainly not be limited to the list of operations of Canon 1284 as detailed below, which is not exhaustive.
That task, on its face, imposes an actual duty on the LR to liaise with insurance companies where necessary. This imposes on the LR the obligation to ascertain when such insurance coverage should be obtained.
In fact, for any incident, the burden will be on the LR to show he or she used the care of a “prudent head of household” and did everything possible to avoid harming or prejudicing the CREE.
Furthermore, in reading the law we note that, albeit not expressly stated, it is prudent to secure insurance coverage not only for property damage to Church or Institute assets, but liability coverage as well (think, for instance, of crumbling mortar falling from CREE buildings onto a passer-by).
It would also be prudent to look into coverage for the LR in terms of errors and omissions while in office. It is possible that the administrator’s own efforts or lack thereof cause harm to the entity. For those cases, insurance coverage should be sought that is quite similar in nature to that of a corporate director (Directors and Officers Policy).
With this regulation, the CJC imposes a duty on the LR/director to secure ecclesiastical property as against the community at large.
Indeed, real property owned by the CREE may have a defect on the title. This may include a deed not properly transcribed into the real-estate registers. This implies that the LR has knowledge of the legal status of the properties and of whether these comply with the laws and regulations in force with respect to questions of zoning and cadastral compliance.
There is, therefore, a series of duties through which the assets themselves are guaranteed, providing greater legal clarity with respect to the same.
The LR shall therefore abide not only by the provisions of canon law, but also be familiar with civil law regulations, which must be complied with.
The volume of legislation produced today could well overwhelm even the most prepared and the shrewdest of administrators. In such cases, the assistance of an expert will be helpful to allow for a more solid interpretation of the law, and clarity regarding legal compliance. The recent privacy reform under the GDPR is one example in point.
Naturally, along with the aforementioned laws and regulations, the will of the founder or donor (if any) for one or a series of transactions shall be respected as well.
It is also important to note that in addition to the administrator’s complying a particular law or regulation, the wise administrator will attempt to structure standard operating procedures for entity operations, in order to make the entity itself as “compliant” as possible.
In that respect, it would be a good idea to establish an internal organisational structure not unlike the one required for privacy or occupational-safety purposes. Such procedures are intended to ensure a legally compliant decision-making and operational infrastructure.
It is no coincidence, that Art. 2381, paragraph 5 of the Civil Code specifies that the director shall ensure “the organisational, administrative, and financial/accounting infrastructure is sufficient given the nature and size of the enterprise”.
That infrastructure would allow the LR to be able to prove he/she took proper care in administering the CREE.
The mission of the Church cannot do without financial and other resources, allowing activities to continue effectively and for the benefit of the community at large. Thus, the CREE would by well-served by the LR’s monitoring its financial assets and other sources of income. Those resources can fund programming that CREE intends to carry out according to its Congregation’s mission.
If, on the one hand, financial assets must be monitored, on the other it is crucial that debts be repaid. Thus, for example, if a mortgage is taken out to purchase real estate or for a remodelling project, one must carefully bear in mind the instalment-payment deadlines on the same. The auto-pay method of payment is one way to ensure that important payments are not “forgotten”.
Occasionally the CREE has surplus funds with respect not only to the needs of ordinary administration, but also beyond what is needed for programming (social welfare or mission work).
In such cases, the LR may use such funds for the mission of the Church or the CREE in question.
For such operations – even for entities that are not particularly complex, from an accounting standpoint, like the Religious Institutes – having a qualified accountant or other accountancy expert is now a practical requirement. That professional can assist the CREE with the proper bookkeeping.
Furthermore, for those entities to which non-profit (third sector) rules apply, where they carry out “their operations exclusively or predominately as a commercial entity, they shall make those accounting entries as required under Article 2214 of the Civil Code”, that is, the journal, inventory book, as well as a general ledger.
At the end of each fiscal year, the LR/director shall provide a list of all income and expenses, and any other information relating to the CREE’s balance sheet, with the funds available (including any reserves) which must be expressed in a manner that allows for immediate verification.
It is thus a good idea to maintain an accounting register and a financial summary, as well as a succinct management report, with a notation of any pending transactions or issues. Accounting entries and supporting documents shall be retained for ten years from the date of recording.
Furthermore – again with a view toward harmonising canon law and civil law regulations – we should take into consideration the fact that Art. 13 of the Non-Profit Code sets forth that “non-profit entities shall generate financial statements composed of a balance sheet, income statement, with a notation of the entity’s income and expenses, and a report on the mission illustrating the items on the balance sheet, the entity’s economic and financial performance, and how the mission is being pursued”.
Those financial statements “shall be generated in compliance with the format established by the Ministry of Labour and Social Policy, with the input of the national non-profit board”.
If the entity is predominately commercial in nature, one must generate and officially file (with the business register) financial statements for the fiscal year generated pursuant to Article 2423 et seq., Art. 2435-bis, or Art. 2435-ter of the Civil Code.
Regardless of the nature of the activity provided, the Non-Profit Code contemplates that the entities with “revenue, income, proceeds, or other intake of money however named in excess of 1 million Euro shall file, with the national centralised non-profit register, and post (to their official website) the entity’s financial statements”.
In any case, it is generally good practice, and in line with the general principles of transparency and responsibility, even if not strictly required, for all CREE’s to have yearly financial statements.
“Properly catalogue documents and instruments on which the rights of the Church or the Institute regarding the assets rests, keeping them on file in an accessible, suitable archive; then, where it can be done conveniently, file the originals with the Curia”.
The last duty enumerated in canon law involves the aforementioned “prudent head of household” standard. In any event, one can be a wise director by keeping the CREE’s files in an organised and systematic way.
If you would like to explore any issue presented in this article further, we invite you to contact us at info@dikaios.international or ring us on +39 06 36712206. We are here to help.


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In an action to recover damages for personal injuries and wrongful death, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County (Rosengarten, J.), entered August 19, 2010, as, upon an order of the same court dated June 24, 2010, denying their motion for summary judgment on the issue of liability against the defendant Pami Construction Corp. and granting those branches of the motion of the defendant Pami Construction Corp., and the separate motion of the defendant Sophia Popovic, individually and as executor of the estate of Jacob Popovic, which were for summary judgment dismissing the complaint insofar as asserted against each of them, is in favor of those defendants and against the plaintiff, dismissing the complaint insofar as asserted against them.
ORDERED that the judgment is affirmed insofar as appealed from, with one bill of costs.
On February 21, 2007, during the construction of a single‑family house and attached garage owned by Sophia Popovic and Jacob Popovic (hereinafter together the Popovics), the plaintiffs' decedent fell from the roof of the house. The plaintiffs subsequently commenced this action against, among others, Sophia Popovic, individually and as executor of the estate of Jacob Popovic, and Pami Construction Corp. (hereinafter Pami), the construction manager hired by the Popovics, to recover damages for personal injuries and wrongful death, alleging causes of action sounding in common‑law negligence and violations of Labor Law Secs. 200, 240(1), and 241(6).
The Supreme Court properly granted that branch of the motion of Sophia Popovic, individually and as executor of the estate of Jacob Popovic, which was for summary judgment dismissing the complaint insofar as asserted against her. With respect to the causes of action alleging violations of Labor Law Secs. 240(1) and 241(6), Sophia Popovic made a prima facie showing that the work was performed at a one‑family dwelling and that the Popovics did not direct or control the work (see Rodriguez v. Gany, 82 A.D.3d 863, 864-865, 918 N.Y.S.2d 187; Chowdhury v. Rodriguez, 57 A.D.3d 121, 126, 867 N.Y.S.2d 123). With respect to the causes of action alleging common‑law negligence and a violation of Labor Law Sec. 200, Sophia Popovic made a prima facie showing that the Popovics did not have the authority to supervise or control the decedent's work (see Ferreira v. City of New York, 85 A.D.3d 1103, 1106, 927 N.Y.S.2d 100; Ortega v. Puccia, 57 A.D.3d 54, 61-63, 866 N.Y.S.2d 323). In opposition, the plaintiffs failed to raise a triable issue of fact.
The Supreme Court also properly granted that branch of Pami's motion which was for summary judgment dismissing the complaint insofar as asserted against it. The evidence submitted by Pami showed that, prior to the date of the accident, safety equipment, including planks and brackets, had been removed from the main roof of the house and placed on the roof of the garage in anticipation of the completion of the installation of the garage roof. The evidence also showed that, on the date of the accident, the decedent was instructed to work only on the garage roof, and was not instructed to do any work on the main roof. Under the circumstances of this case, Pami established, as a matter of law, that the decedent's decision to climb onto the roof of the main house, where there was no safety equipment, was the sole proximate cause of his injuries (see Robinson v. E. Med. Ctr., LP, 6 N.Y.3d 550, 554-555, 814 N.Y.S.2d 589, 847 N.E.2d 1162; Montgomery v. Fed. Express Corp., 4 N.Y.3d 805, 806, 795 N.Y.S.2d 490, 828 N.E.2d 592; Capellan v. King Wire Co., 19 A.D.3d 530, 532, 798 N.Y.S.2d 76; Misirlakis v. East Coast Entertainment Props., 297 A.D.2d 312, 312-313, 746 N.Y.S.2d 307). In opposition, the plaintiffs failed to raise a triable issue of fact.

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Argued: March 6, 7, 1939.
Mr. Irwin Arnovitz, of Salt Lake City, Utah, for petitioners.
Mr. W. Q. Van Cott, of Salt Lake City, Utah, for respondent.
We have now re-examined and overruled the doctrine of New York ex rel. Rogers v. Graves in Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 59 S.Ct. 595, 83 L.Ed. -, this day decided. Salaries of employees or officials of the Federal Government or its instrumentalities are no longer immune, under the Federal Constitution, from taxation by the States. Whether the Utah income tax, by its terms, exempts respondent, can now be decided by the State's highest court apart from any question of Constitutional immunity, and without the necessity, so far as the Federal Constitution is concerned, of attempting to divide functions of government into those which are essential and those which are non-essential.
Revised Stat. of Utah, 1933, 80-14-4, (2)(g).
305 U.S. 592, 59 S.Ct. 358, 83 L.Ed. -.
Miller v. Anderson, Miller's Executors v. Swann, 150 U.S. 132, 136, 14 S.Ct. 52, 54, 37 L.Ed. 1028; Interstate Consol. St. Railway Co. v. Massachusetts, 207 U.S. 79, 84, 28 S.Ct. 26, 52 L.Ed. 111, 12 Ann.Cas. 555; Louisville & Nashville Railroad Co. v. Western Union Telegraph Co., 237 U.S. 300, 302, 35 S.Ct. 598, 599, 59 L.Ed. 965; cf. Carmichael v. Southern Coal Co., 301 U.S. 495, 507, 57 S.Ct. 868, 871, 81 L.Ed. 1245, 109 A.L.R. 1327.
Abie State Bank v. Bryan, 282 U.S. 765, 773, 51 S.Ct. 252, 255, 75 L.Ed. 690.
Cf. Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 120, 44 S.Ct. 274, 275, 276, 68 L.Ed. 582; Tipton v. Atchison, T. & S.F. Ry. Co., 298 U.S. 141, 152, 153, 56 S.Ct. 715, 719, 80 L.Ed. 1091, 104 A.L.R. 831; Illinois Cent. R. Co. v. Messina, 240 U.S. 395, 397, 36 S.Ct. 368, 369, 60 L.Ed. 709.
Patterson v. Alabama, 294 U.S. 600, 607, 55 S.Ct. 575, 578, 79 L.Ed. 1082.
THREE AFFILIATED TRIBES OF the FORT BERTHOLD RESERVATION, Petitioners v. WOLD ENGINEERING, P.C., et al.
Anthony Leo STUTSON v. UNITED STATES. Alexis LAWRENCE, Guardian and Next Friend on Behalf of Kemmerlyn D. LAWRENCE, a Minor, v. Shirley S. CHATER, Commissioner of Social Security.
ST. MARTIN EVANGELICAL LUTHERAN CHURCH and Northwestern Lutheran Academy, Petitioners, v. State of SOUTH DAKOTA.
PARKER et al. v. LOS ANGELES COUNTY et al. STEINER v. LOS ANGELES COUNTY et al.
CALIFORNIA, Petitioner, v. Judith KRIVDA and Roger T. Minor.
PEARSON, State Treasurer of Oregon, v. McGRAW et al.
STATE OF MINNESOTA v. NATIONAL TEA COMPANY et al.
NotFound v. CENTRAL R.R. OF NEW JERSEY.
HYSLER v. STATE OF FLORIDA.
PEOPLE OF STATE OF NEW YORK ex rel. WHITMAN v. WILSON, Warden.
DEPARTMENT OF MENTAL HYGIENE OF CALIFORNIA, Petitioner, v. Evelyn KIRCHNER, Administratrix of the Estate of Ellinor Green Vance.
E. S. EVANS et al., Petitioners, v. Charles E. NEWTON et al.
RAYONIER INCORPORATED, a Corporation, Petitioner, v. UNITED STATES of America. Arthur A. ARNHOLD et al., Petitioners, v. UNITED STATES of America.
PERKINS v. BENGUET CONSOLIDATED MINING CO. et al.
Nick JANKOVICH and Paul Jankovich, Co-Partners, doing business as Calumet Aviation Company, Petitioners, v. INDIANA TOLL ROAD COMMISSION.

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DECISION ACCEPTED FOR CONSIDERATION THE APPLICATION BY CSX TRANSPORTATION, INC. TO CONTINUE TO LEASE APPROXIMATELY 137.33 MILES OF RAIL LINE OF THE WESTERN AND ATLANTIC RAILROAD FROM THE STATE OF GEORGIA. THE BOARD DETERMINED THAT THIS IS A MINOR TRANSACTION AS DEFINED BY THE BOARD’S REGULATIONS AND ADOPTED A PROCEDURAL SCHEDULE.
Digest: This decision accepts for consideration the application by CSX Transportation, Inc. to continue to lease approximately 137.33 miles of rail line of the Western and Atlantic Railroad from the State of Georgia. The Board determines that this is a minor transaction as defined by the Board’s regulations and adopts a procedural schedule.
ACTION: Decision No. 1 in FD 36220; Notice of Acceptance of Application; Issuance of Procedural Schedule.
SUMMARY: The Surface Transportation Board (Board) is accepting for consideration the application submitted on October 22, 2018, by CSX Transportation, Inc. (CSXT). CSXT seeks Board approval under 49 U.S.C. § 11323 to continue to lease from the State of Georgia (Georgia) approximately 137.33 miles of rail line of the Western and Atlantic Railroad (W&A), a non-operating carrier owned by Georgia, acting by and through the State Properties Commission, between milepost 0 at Central Avenue in the City of Atlanta, Ga., and milepost 137.28 at the centerline of Interstate 24 in the City of Chattanooga, Tenn. (the Line). On November 2, 2018, Georgia, acting by and through the State Properties Commission, filed a letter in support of CSXT’s application.
The Board finds that the proposed transaction (the Lease) is a “minor transaction” under 49 C.F.R. § 1180.2(c) and that the application is complete. The Board adopts a procedural schedule for consideration of the application, under which the Board’s final decision would be expected to be issued by April 19, 2019, and would become effective by May 19, 2019.
DATES: The effective date of this decision is November 21, 2018. Any person who wishes to participate in this proceeding as a party of record (POR) must file a notice of intent to participate no later than December 5, 2018. All comments, protests, requests for conditions, and any other evidence and argument in opposition to the application, including filings by the U.S. Department of Justice (DOJ) and the U.S. Department of Transportation (DOT), must be filed by January 4, 2019. Responses to comments, protests, requests for conditions, and other opposition on the transportation merits of the Lease, and rebuttal in support of the application must be filed by February 1, 2019.
The Board expects to issue its final decision by April 19, 2019, and to make the decision effective by May 19, 2019. For further information respecting dates, see the Appendix to this decision.
ADDRESSES: Any filing submitted on the transportation merits in this proceeding must be submitted either via the Board’s e-filing format or in the traditional paper format. Any person using e-filing should attach a document and otherwise comply with the instructions found on the Board’s website at www.stb.gov at the “E-FILING” link. Any person submitting a filing in the traditional paper format should send an original and 10 paper copies of the filing (and also an electronic version) to: Surface Transportation Board, 395 E Street, S.W., Washington, DC 20423-0001. In addition, one copy of each filing in this proceeding must be sent (and may be sent by e-mail only if service by e-mail is acceptable to the recipient) to each of the following: (1) U.S. Secretary of Transportation, 1200 New Jersey Avenue, S.E., Washington, DC 20590; (2) Attorney General of the United States, c/o Assistant Attorney General, Antitrust Division, Room 3109, Department of Justice, Washington, DC 20530; (3) Louis E. Gitomer (representing CSXT), Law Offices of Louis E. Gitomer, LLC, 600 Baltimore Avenue, Suite 301, Towson, MD 21204; and (4) any other person designated as a POR on the service list notice (as explained below, the service list notice will be issued as soon after December 5, 2018, as practicable).
FOR FURTHER INFORMATION CONTACT: Lisa Novins, (202) 245-0389. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.
APPLICATION ACCEPTED. A transaction that does not involve the control or merger of two or more Class I railroads is not of regional or national transportation significance, and therefore is classified as “minor” if: (1) the transaction would clearly not have anticompetitive effects, or (2) any anticompetitive effects would clearly be outweighed by the transaction’s contribution to the public interest in meeting significant transportation needs. A transaction not involving the control or merger of two or more Class I railroads is “significant” if neither of these determinations can be clearly made. See 49 C.F.R. § 1180.2(b), (c).
Based on a review of the application, the Board finds that the proposed Lease would be a “minor transaction” under 49 C.F.R. § 1180.2(c). Nothing in the record thus far suggests that the Lease would have anticompetitive effects, because the Lease proposes to generally maintain the status quo by allowing CSXT to continue operating over the Line as it and its predecessors have done since 1890. The application indicates that, not only would CSXT continue to operate over the Line, but NSR and GNRR would “retain their existing rights.” (Appl. 6.) It does not appear, under the terms of the proposed Lease, that any shipper would have fewer competitive rail alternatives as a result of the transaction.
The Board’s finding regarding competitive impact is preliminary. The Board will give careful consideration to any claims that any potential anticompetitive effects of the Lease would not be outweighed by its potential benefits.
The Board accepts the application for consideration because it is in substantial compliance with the applicable regulations governing “minor transactions.” See 49 C.F.R. § 1180; 49 U.S.C. §§ 11321-26. The Board reserves the right to require the filing of supplemental information as necessary to complete the record.
PROCEDURAL SCHEDULE. Any person who wishes to participate in this proceeding as a POR must file a notice of intent to participate no later than December 5, 2018; requests for discovery from CSXT are due by December 5, 2018; CSXT’s discovery responses are due by December 19, 2018; all comments, protests, requests for conditions, and any other evidence and argument in opposition to the application, including filings by DOJ and DOT, must be filed by January 4, 2019; and responses to comments, protests, requests for conditions, and other opposition on the transportation merits of the Lease, as well as CSXT’s rebuttal in support of the application, must be filed by February 1, 2019. The Board reserves the right to adjust the schedule as circumstances may warrant. For further information regarding dates, see the Appendix to this decision.
NOTICE OF INTENT TO PARTICIPATE. Any person who wishes to participate in this proceeding as a POR must file with the Board, no later than December 5, 2018, a notice of intent to participate, accompanied by a certificate of service indicating that the notice has been properly served on the U.S. Secretary of Transportation, the Attorney General of the United States, and Mr. Gitomer (representing CSXT), as described above.
If a request is made in the notice of intent to participate to have more than one name added to the service list as a POR representing a particular entity, the extra name will be added to the service list as a “non-party.” The list will reflect the Board’s policy of allowing only one official representative per party to be placed on the service list, as specified in Press Release No. 97-68 dated August 18, 1997, announcing the implementation of the Board’s “One Party-One Representative” policy for service lists. Any person designated as a non-party will receive copies of Board decisions, orders, and notices but not copies of official filings. Persons seeking to change their status must accompany that request with a written certification that he or she has complied with the service requirements set forth at 49 C.F.R. § 1180.4, and any other requirements set forth in this decision.
SERVICE LIST NOTICE. The Board will serve, as soon after December 5, 2018, as practicable, a notice containing the official service list (the service list notice). Each POR will be required to serve upon all other PORs, within 10 days of the service date of the service list notices, copies of all filings previously submitted by that party (to the extent such filings have not previously been served upon such other parties). Each POR will also be required to file with the Board, within 10 days of the service date of the service list notice, a certificate of service indicating that the service required by the preceding sentence has been accomplished. Every filing made by a POR must have its own certificate of service indicating that all PORs on the service list have been served with a copy of the filing. Members of the United States Congress (MOCs) and Governors (GOVs) are not parties of record and need not be served with copies of filings, unless any MOC or GOV has requested to be, and is designated, as a POR.
ACCESS TO FILINGS. Under the Board’s rules, any document filed with the Board (including applications, pleadings, etc.) shall be promptly furnished to interested persons on request, unless subject to a protective order. 49 C.F.R. § 1180.4(a)(3). The application and other filings in this proceeding are available on the Board’s website at www.stb.gov under “E‑LIBRARY/Filings.” In addition, the application may be obtained from Mr. Gitomer at the address indicated above.
1. The application in FD 36220 is accepted for consideration.
2. The parties to this proceeding must comply with the procedural schedule adopted by the Board in this proceeding as shown in the Appendix and must comply with the procedural requirements described in this decision.
October 22, 2018 Application filed.
December 5, 2018 Notices of intent to participate in this proceeding due.
Discovery requests due to CSXT.
December 19, 2018 CSXT’s responses to discovery requests due.
January 4, 2019 Comments due from all parties, including the U.S. Secretary of Transportation and the Attorney General, on the transportation merits of the Lease.
February 1, 2019 Responses to comments on the transportation merits of the Lease due.
CSXT’s rebuttal in support of the application due.
March 6, 2019 Close of record on the transportation merits.
April 19, 2019 Date by which a final decision will be served.
May 19, 2019 Date by which a final decision will become effective.
 CSXT does not indicate whether it interchanges traffic with NSR at these locations.
 As of the decided date of this decision, CSXT has not filed for abandonment authority for this line.


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Last week, Massachusetts' highest court, the Supreme Judicial Court ("SJC"), came down with a decision that has left police officers and other law enforcement scratching their heads. In order to stop a vehicle, law enforcement must have "reasonable suspicion" (i.e. articulable facts and reasonable inferences drawn therefrom, other than a "mere hunch") that a crime or civil motor vehicle infraction has been committed in order to stop a vehicle. In Commonwealth v. Rodriguez, SJC-11814, the SJC held that the smell of burnt marijuana, alone, is insufficient to establish reasonable suspicion in order to effect a traffic stop, "because there is no obvious and direct link between enforcement of the civil penalty for marijuana possession and maintaining highway safety." In other words, even if a police officer can smell the joint in a suspect's vehicle, they cannot pull that person over unless they have more information suggesting a crime (or a civil motor vehicle infraction) has been, or is being, committed.
To some extent, that the SJC has moved in this direction is unsurprising in light of their recent decisions since the possession of less than an ounce of marijuana was decriminalized by voter referendum in 2008. For example, in Commonwealth v. Cruz, 459 Mass. 459, 470 (2011), the SJC held the smell of either burnt or unburnt marijuana, alone, is insufficient to order a person out of their vehicle after a lawful stop. Similarly, in Commonwealth v. Overmyer, 469 Mass. 16, 23 (2014), the SJC held that the odor of burnt or unburnt marijuana, alone, is insufficient to establish probable cause to search a vehicle without a warrant. The rulings in Cruz, Overmyer, and more recently in Rodriguez, are in line with recent Supreme Court decisions which have limited law enforcement's ability to search vehicles and any closed containers found therein. See Arizona v. Gant, 556 U.S. 332 (2009) (Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest); United States v. Jones, 565 U.S. ___ (2012) (holding that a warrant is required if police wish to install a GPS unit on an individual's vehicle).
As a criminal defense attorney who routinely handles these types of cases, I'm pleased the SJC appears committed to showing an unwillingness to accept knee-jerk recognition of the concept that the inherent mobility of a vehicle renders it wholly vulnerable/susceptible to warrantless intrusion. Still, as a former state and federal prosecutor, I can also see why law enforcement is upset by it. Driving under the influence is still a crime in MA and drunk/intoxicated driving remains a huge public safety issue. From police's perspective, what could provide more reasonable suspicion to believe someone might be operating under the influence of marijuana than seeing/smelling a waft of smoke emanating from their idling vehicle?
The SJC's answer to this exact question seems specious and non-persuasive; indeed, they address the issue merely in a footnote to their opinion. The Court begins by paying lip service to the threat of OUI by saying, "[d]riving while under the influence of marijuana is a serious offense that may well present safety hazards requiring the immediate involvement of police." But the Court goes on to say the mere fact that a vehicle driver or passenger possesses marijuana does not mean that the driver has been operating while impaired." That's it? Is that really the strongest argument the highest court in the Commonwealth can muster to justify their position that the smell of burnt marijuana does not lead one to reasonably suspect that the driver is operating their vehicle impaired? Does this now mean that the "mere odor" of alcohol cannot justify a stop based on OUI, and isn't there now an inherent inconsistency since the Massachusetts Appeals Court previously held, in Commonwealth v. Bazinet, 76 Mass. App. Ct. 908 (2010) that the "mere odor of alcohol [is] sufficient [to establish] reasonable suspicion"? Has Bazinet now been abrogated, and if so, why did the SJC fail to mention it in their opinion? Does this now open the door further to defense attorneys like me who routinely handle OUI cases to argue that a visible open container violation doesn't provide probable cause either?
I'm not arguing that the smell of burnt marijuana, alone, cannot lead one to reasonably believe the vehicle's operator isn't under the influence. It certainly can. The operator's person may have been exposed to second-hand marijuana smoke just having come from a party where others were smoking; perhaps his passenger was the one who had been smoking. I know I for one, would argue just this, and forcefully, were I representing a person in the same situation. But in Rodriguez, the police officer in question could actually smell the burnt marijuana emanating from a moving vehicle! Now don't get me wrong. As a criminal defense attorney, I'm all for courts expanding Constitutional protections and guarding against unreasonable government intrusion and violation(s) of our sacred privacy rights. Because of my job, I enthusiastically applaud the SJC's willingness to tip the scales in favor of individual freedoms and create more opportunities for us defense attorneys to protect and defend our clients. However, because I have to drive, a lot, to do my job, I also can't help but be a little concerned that law enforcement's ability to ensure the roads are safe for all of us has just been slightly undermined.

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Spending a whole day with friends and distinguished academics discussing the RegioPost judgment and its implications for the enforcement of labour law standards in public procurement settings under EU law proved to be both intellectually challenging and very rewarding. I am sincerely grateful to all speakers and participants for the excellent exchange of ideas (the event was definitely not short on controversy ...).
It will take us some time to get the formal publication of the proceedings of the conference in place, so I thought it would useful to advance here some of the most salient issues discussed at the event. These are my (lengthy) personal notes and, even if I tried to capture the essence of the speakers' presentations, they may not represent their views and they do not bind them in any way; all mistakes in these notes are my own.
Joanne Conaghan gave us a very warm welcome (literally, for it was a really hot day in Bristol after the gorgeous weekend weather) and stressed the relevance of putting the discussions to be held in the broader context of the constant struggle of harmonising economic and social considerations in any regulatory and policy framework.
With this in mind, the discussions for the day were organised around four panels, covering in turn different perspectives of the RegioPost judgment and, more generally, the difficulties and challenges in enforcing labour standards through public procurement.
Phil Syrpis' paper addressed the constitutional framework considering the dynamic relationship between secondary and primary EU law, and in particular how the posting of workers directive (PWD) impacts on provision of services in the EU. Two constitutional visions: a) all secondary legislation is under the Treaties and, consequently, secondary law cannot have any influence on the way the CJEU interprets primary law; b) more organic or heterarchical model, the CJEU’s monopoly on the interpretation of primary law is necessarily complemented by legislative action whereby the legislative institutions provide input on the context of the rights and, consequently, the CJEU should take this into account when interpreting rights under the Treaties.
Not clear how secondary law in conflict with previous case law of the CJEU should be dealt with, as both models are in tension. The case law of the CJEU is inconsistent and the Court has not clarified what is the right approach in cases of conflict between secondary law and previous case law interpreting primary law. As an aside – these issues raise important points for Brexit, particularly when some directives create individual rights, as well as the possibility for MS to shape social and citizenship rights and influence the case law of the CJEU.
Initial reaction to RegioPost is that it clarifies some issues, but it confuses others too. Essentially, the question was about compatibility with Art 56 TFEU for the regional government to insist on compliance with regional minimum wage. Usefully, the CJEU distinguished between exhaustive and non-exhaustive harmonisation. Where there is exhaustive harmonisation, the framework provided by the secondary legislation displaces that of the Treaty. From a constitutional perspective, that is the easy case. However, Art 26 Dir 2004/18 does not lay down exhaustive rules on contract performance and, consequently, the analysis of legality needs to be carried out under primary law—ie Art 56 TFEU. Moreover, Art 26 explicitly required for contract compliance clauses to be in compliance with Union Law.
However, in para 60 of RegioPost, despite saying they would assess under primary law, the Court actually assessed compliance with the PWD, which is a measure of non-exhaustive secondary legislation as well. In the light of the relationship between primary and secondary law, this approach is strange and complicates the issue of what the hierarchies are. The provision of regional law was determined to be compatible with EU law due to compliance with Art 3 PWD, rather that Art 56 TFEU, which is unusual and confusing.
Distinction between exhaustive and non-exhaustive harmonisation presupposes that most initiatives by the EU legislator will be of exhaustive harmonisation. However, exhaustive harmonisation is never the case, particularly in areas such as social or environmental law. This requires a more sophisticated approach to what to do in these areas in terms of compatibility with EU law.
PWD and Dir 2004/18 seem to be in a strange relationship because the legality under Dir 2004/18 ends up depending on the interpretation of the PWD—does this trigger a privileged position of the PWD over the procurement rules? RegioPost suggests that the CJEU’s controversial interpretation of the PWD is more important to the CJEU than the interpretation of the procurement rules. That is odd. What should the relationship between particular directive and the CJEU’s interpretation of the Treaty? ‘Provided they are compatible with the Treaties’ should imply some independent analysis of compatibility with Art 56 TFEU itself, almost regardless of compatibility with other rules of secondary EU law.
For the future: what is the likely impact for changes in the public procurement rules? Art 26 Dir 2004/18 vis-à-vis Arts 18(2) and 70 Dir 2014/24. Does the subtle wording in Dir 2014/24 alter the position of the procurement rules? Also, in view of the proposals for the revision of the PWD, there are queries as to the permeability of procurement rules to that reform. Finally, it is also unclear to what extent these changes in secondary law are likely to affect the CJEU’s case law and interpretation of primary law (will it reflect the organic model?).
Piotr Bogdanowicz stressed that RegioPost has been described as the gold standard for the social protection of workers performing public contracts. However, there was no reference to proportionality in the judgment. Generally, there is a three step methodology in this area: restriction, justification and proportionality assessment. It is surprising that RegioPost does not engage in this three-step analysis because it had been used in Ruffert and Bundesdruckerei. The lack of this analysis is a shortcoming of this Judgment and, unfortunately, another case challenging the coherence of the case law of the CJEU.
Why should proportionality apply to RegioPost? Because Art 56 TFEU should apply, mainly due to the fact that procurement rules are a fundamental expression of free provision of services, as well as the fact that the fundamental freedoms are the legal basis for the adoption of the Directives. Furthermore, due to the lack of exhaustive harmonisation.
The analysis is odd because, should Art 26 Dir 2004/18 not have required compatibility with EU law, would this have been an issue? This is particularly relevant because Art 70 Dir 2014/24 does not require it. In Piotr's opinion, there is no need for this requirement to be written in secondary law because it derives simply from supremacy of EU law. And, in order to assess such compatibility, the three-step approach needs to be followed. Restrictions are easy to prove and the CJEU rarely rejects the public interest reasons raised by the Member States, so proportionality ends up being the key issue of analysis in almost all cases.
In procurement, proportionality is particularly relevant because it has been included from the early generations of public procurement directives. Proportionality has always been applied in the procurement setting as a general principle of EU law. It was applied in the case law anticipating RegioPost (Ruffert and Bundesdruckerei) and in both cases the CJEU found that national measures did not pass the proportionality test. The importance of proportionality is also reflected in Art 18(1) Dir 2014/24, where it is explicitly consolidated.
Why did the CJEU not apply proportionality? It is difficult to identify the reasons why, mainly because it derives from the construction of the judgment itself. In para 67, the CJEU stresses that interpretation of Art 26 Dir 2004/18 is supported by Art 56 TFEU, which is a strange argument. That is why the abrogation of the proportionality analysis is an odd analytical strategy. In Ruffert, the CJEU had gone the same way but did apply proportionality to assess compatibility with EU law (after the restriction was demonstrated under the PWD). Even if the CJEU wanted to distinguish RegioPost from Ruffert, it ought to have carried the proportionality analysis. As it is now, it seems that the PWD offers a safe haven for national law, which could have been done 8 years ago (in Ruffert), but not now because Art 26 Dir 2004/18 applied to the case and this should have triggered a different analysis.
This adds complication under Dir 2014/24 because of Art 70 + 18(1), which change wording and potentially the test. The case law of the CJEU shows that the more politically sensitive the case, the less intrusive the scrutiny seems to be. ‘Indulgent’ scrutiny was advocated for by AG Mengozzi because the measure is applicable to workers assigned to public contracts rather than workers in the private sector—this raises an issue of conflict between economic and non-economic goals (competition v social protection). This, however, should trigger a strict proportionality test.
The implications of lack of proportionality in RegioPost are severe. A recent report by Bruegel showed that there is 1.2 million posted workers in the EU, 40% come from Eastern countries (20% come from Poland). The CJEU seems to have adopted a more careful approach to the PWD and this may improve the situation for posted workers. This is something that requires further case law from the CJEU.
focused on complex issues around the way the preliminary reference ‘framed’ the CJEU’s assessment and why the CJEU ‘abrogated’ alternative analyses such as non-discrimination or split of competences. The discussion also covered the difficulty of applying proportionality in fields where we are dealing with incommensurate values. Moreover, this is complicated by the lack of clarity and consistency of the recitals in specifying what specific secondary law interventions aim to achieve—which is particularly muddy regarding Dir 2014/24.
Nina Boeger shared some thoughts beyond RegioPost and an enquiry into two developments arising from the financial crisis: a) rise of polarisation of corporate governance models with, on the one hand, market responses to financial crisis that persevere on traditional approach to maximisation of return on investment and, on the other hand and as a counterbalance, new or revived corporate models, such as social enterprise, cooperative enterprise and commons-oriented enterprise; b) rise of sustainable or smart procurement driven by austerity politics and cuts on public budgets, which is also becoming polarised with, on the one extreme, traditional or economically-driven procurement, with focus on immediate value for money obtainable from service outputs and very much focussed on price and concrete delivery and, on the other extreme of the spectrum, smart / sustainable procurement that aims to change perspective of procurement and commissioning practices and moving towards longer-term perspectives on triple bottom line for the communities that are relevant for the procurement or commissioning body, as well as process sensitivity and long term relationships with providers of services.
Smart procurement involves a recognition of the risk that contracting with shareholder-driven corporations entails (large corporations are “too big to fail” and the risk of failure that the public sector faces requires a more diffuse provider base), as well as the passing on of costs to the tax payer. There is also a concern on the risks of insufficient specification (under-specification) and uncertainty, which is an integral part of procurement and commissioning. Corporate governance and the way they are structured will affect the way they deal with these issues of risk and how they will respond. Alignment of corporate governance and risk issues is necessary and contracting authorities are searching for trust and reliability in addition to capacity. New corporate models (such as social enterprises) that are struggling to make their business sustainable are dying to access public demand, both to raise funds for their sustainability and to raise social awareness.
In view of these trends, it looks like there are promising possibilities in procurement in aligning two very important structural developments: emergence of new corporate forms and the development of smart procurement. The question now is whether there is enough flexibility in the legal regime to allow public authorities to procure in this way? [this looks like a watershed moment for EU public procurement law, which is still fulfilling a traditional role of non-discrimination, transparency and workable market openness; but is also fulfilling the role of a change agent by supporting the development of those new models—the tension is not anymore on what the EU / the MS can do, but rather about thinking about new structures of capitalism].
The issue of flexibility then hinges on certain aspects of Dir 2014/24, such as market engagement (Art 40), the possibility of reserving non-profit contracts (Spezzino), grounds for exclusion also help some experimentation (Art 57), reservation of contracts for employee-led organisations (Art 77—which is incredibly narrow) … but the main problem for the development of ‘corporate governance’ clauses in procurement is the requirement of link to the subject matter (LtSM), which has been extended massively compared to Dir 2004/18. This poses the question how do we make sure that we can distinguish corporate governance requirements linked to the provision of the service from the limits on mandating general corporate policies. It is necessary to have these conversations so that the developments can move forward.
Abby Semple started off stressing that the discussion on the enforcement of labour (pay) standards needs to be more specific and we need a taxonomy that distinguishes minimum wage, sectoral minimum wage [in particular, wages specific to public contracts], collectively agreed wage and living wage (which is a voluntary undertaking to pay a wage above the legally-mandated minimum wage). There is also an interesting argument on whether requirements for fair trade that link to wages paid to producers can be included as part of the same analysis. She also stressed that minimum wages show great disparity in the 28 Member States, even when adjusted by parity of purchasing power. This raises significant practical difficulties.
What does RegioPost say? The CJEU distinguished the Ruffert case very strongly because it was then a non-universal collective agreement that set the minimum wage in dispute, whereas in RegioPost the minimum wage is a result of (regional) law, in which case it does not matter that it only applies to the public sector. The CJEU also acknowledged the social protection argument as potential justification (like in Bundesdruckerei), but did not engage in full proportionality assessment (maybe because it did not need to do so, but leaves RegioPost vulnerable to future case law where the CJEU may engage in proportionality review).
Proportionality review should be a mechanism of last resort because Dir 2014/24 sets precise rules and, if they were not shielded from proportionality review, then contracting authorities would have no liberty to rely on the secondary rules.
Interestingly, the CJEU did not distinguish from Bundesdruckerei. The CJEU did not make any assessment / statement on the issue of lack of a cross-border situation in RegioPost. This is important in itself. It is also relevant that the CJEU engaged with an analysis with the PWD, primarily because the referring court had raised it. Also because Art 26 Dir 2004/18 is an empty / reenvoi clause that required engaging with PWD (this is cross-referenced in Recital 34 of Dir 2004/18C and Recital 98 of Dir 2014/24).
It is also relevant to stress that RegioPost makes some conceptualisations of contract compliance / performance clauses problematic. Nord pas de Calais, which reinterpreted Beentjes, also created a circular self-justifying doctrine that indicated that contract performance clauses did not allow for exclusion of those that did not meet the requirements. The RegioPost judgment now allows for exclusion of tenderers that are not committing to comply with contract performance requirements, which conflicts with the Commission’s understanding under the previous case law.
Looking specifically at minimum wage clauses, it is relevant to look at the Fair trade coffee case (C-368/10), where the CJEU stressed that you could have fair trade as an award criterion. Fair trade includes, amongst other things, the payment of wage premia to producers—this creates a problem if a contracting authority can do it in a third jurisdiction, but not in its own jurisdiction. There is evidence that the Commission does not accept that payment of a living wage could be a pass/fail criterion (Scottish government sent repeated letters to the Commission, to which it replied in the negative). How to address living wage as an award criterion? Could you use the wages the tenderer is willing to pay as an award criterion? Semple does not see any reason why it is not possible.
Scenarios for further thought. 1. Could you have a maximum wage clause in the contract for cost-control purposes? 2. Where a contract is affected by TUPE, the obligation to apply same terms and conditions, as the contracting authority, you need to effectively require pre-existing terms and conditions including wages (and you NEED to do that, including where the incumbent is the contracting authority itself in case of outsourcing).
RegioPost allows for legally-embedded sectorial [public sector] minimum wages. It does not deal specifically with living wages but the argument can be made in light of fair trade coffee.
Albert Sanchez-Graells' presentation focused on the trade / social dumping rationale for minimum wage requirements, and I submitted that the PWD is the anti-dumping standard under EU economic law, so that no more demanding standard can be allowed without subjecting them to a very strict proportionality test. I also submitted that the approach of the CJEU to the interpretation of the PWD in the public procurement scenario does not make economic sense because it creates double standards for cross-border and inter-regional situations, which results in an impossible situation for contracting authorities that, at the time of tendering, cannot foresee whether they will manage a purely domestic or cross-border procurement project (as that depends on actual interest from cross-border tenderers).
On that basis, I discussed the problems of reverse discrimination and unforeseen consequences (anti-SME, pro-delocalisation, etc) that can derive from strict enforcement of the contradictory rules created by the Bundesdrukerei-RegioPost tandem. I moved on to stress the competition law implications that can result from this situation and the difficulties in capturing such anticompetitive effects with the competition law prohibitions in Arts 101 and 102 TFEU, included the supporting State action theory.
I finally tackled issues of application of State aid and submitted that the payment of above-market wages by the contracting authorities is an economic advantage that triggers the prohibition of Art 107 TFEU and, in turn, this cannot be justified either under the 2014 general block exemption regulation (it does not fit the regulated categories of disadvantaged/disabled employment, or creation of jobs), or the de minimis regulation (the aid is not transparent). Thus, I submitted that State aid enforcement in this area can raise difficult issues in the near future.
focused mainly on the issues of the social economy model and the extent to which competition law / State aid can apply to these issues at all, as well as the undesirability of a strict proportionality assessment that would kill innovation. It is also discussed to what extent a proportionality analysis is at all possible and whether social requirements are necessarily protectionist or not, and whether this should be dealt with as an issue of direct or indirect discrimination and how EU law would regulate them, which comes back to issues of proportionality of restrictions vis-à-vis their intended goals. The debate then also moved upwards and looked at the different treatment under WTO GPA and the EU rules, as well as the possibility to coordinate them. The issue of the heterogeneity of what is considered a ‘social consideration’ was also explored in some detail.
ACL Davies took a step back and looked at the discussion from first principles. Use of contracts to pursue contract-unrelated policy is controversial. It is useful to distinguish two dimensions: a) reinforcing existing legal requirements, and b) creating requirements that go beyond existing legal duties. a) may see superfluous but the leverage of contracting can make up for deficiencies in enforcement elsewhere (in the UK case, given the lack of labour inspectorate). b) has attracted significant opposition + international drive to reduce the use of contracting authorities’ discretion is a way of reducing the chance for them to adopt protectionist strategies, willingly or otherwise.
The justification for the use of procurement to enforce social goals is as follows: 1) consistency and trust in government (legislative process not only aspect of democratic mandate given to government), so if the government is committed to a public policy, it should enforce it through contracting (to show consistency and avoid silo mentality, all of these foster trust in government). This is linked to the doctrine of legitimate expectations to get government to follow promises made in the past. This use has a long tradition (government as a model employer, and procurement as an aspect of that). 2) stronger argument in modern times is to prevent the harm that competitive tendering can create. This is linked to ILO standards for government contracting. This is particularly relevant in labour-intensive services, where government can create a level playing field in terms of employment conditions, so that alternative providers compete on other dimensions and labour standards are taken out of competition.
Two issues with RegioPost: lack of understanding of procurement and lack of understanding of wage clauses in procurement. Before the negatives, RegioPost is generally welcome if nothing else because it reverses Ruffert on the basis of Art 26 Dir 2004/18.
Art 56 TFEU and its key test for determining whether something is restrictive requires to assess whether it ‘constitutes an additional economic burden that may prohibit, impede or render less attractive the provision of their services in the host Member State’. This is applied in RegioPost and the minimum wage is characterised as an additional economic burden that makes the activities less attractive. The cost linked to the minimum wage can be a burden, but the cost can be passed on to the government and, from that perspective, there is no impediment or restriction to the provision in another Member State because the additional cost is covered by government. However, the services can be less advantageous by limiting the profit that the provider could achieve. This disadvantage is very artificial because it does not carry a loss for the service provider, but merely a missed opportunity for a larger benefit. This should not be covered by Art 56 TFEU or, at least, given that the disadvantage is very marginal. Maybe it is State aid (the government pays for it and State aid can be discussed), but it cannot also be exclusionary. It is either one or the other.
From the perspective of minimum wages, we need to remind ourselves that EU law does not say a great deal about wages. The difficulty of regulating pay at an EU-wide level is significant. This does not stop the CJEU from scrutinising different issues regarding pay in the internal market perspective, but the CJEU lacks a point of reference in this setting. This is what leads it to rely on the PWD and the importance on the wage being a minimum wage. The interpretation of the PWD in Laval is a clear attempt to elevate the PWD to the standard applicable in terms of social dumping in the EU. What’s wrong with the emphasis on minimum wage? The issue is with the justification on worker protection as the justification for the measure discussed in RegioPost. Minimum wage is of course a protection. The elephant in the room is that the minimum wage is only for public contracts, which diminishes the relevance of the argument as compared with contexts of general economic regulation.
In the public procurement setting, minimum wage is not a concern as in the labour market as a whole, but a protection against the competitive nature of government contracts and the ensuing downward pressure on worker protection. So the analysis should be procurement context-specific.
So, upshot, it is better that Ruffert, but RegioPost misses the difference between procurement and regulation, procurement being the space where the government is ready to put its money where its mouth is. This ought to do with preventing the harm that procurement might otherwise cause.
Lisa Rodgers looked at labour law as an exception to economic rules and tried to see how far that helps us when thinking about labour standards in public procurement. It is worth stressing the link between economic and social law, and the theory of the ‘state of exception’ derived from neoliberal thought following the crisis. Labour law is an exception or concession against the basic economic foundation that we have. Following the crisis and austerity measures, this exceptionality has become more clear. The focus on procurement is an expression of this exceptionalism.
The state of exception is a theoretical perspective that uses the importance of the exception itself. The argument is that the ‘exception’ is the most important element in any system of regulation because it is at the edge of the legal system and it shows how politics get involved in the adjudication of legal issues. Used this way, it crowds out political considerations because the law starts covering it all.
Positive claims about inclusion of labour law in economic standards: 1) labour law’s concerns are included within the law; 2) labour law’s concerns become part of the economic paradigm; 3) law is subject to interpretation by favourable CJEU; 4) other Treaty provisions can help; 5) incorporation of international legal standards is facilitated.
Responses to the claims: 1) labour law is an exception or a concession, so it is included (by exclusion) as a discretion rather than a mandatory condition [eg Arts 56(1) and 57(4) Dir 2014/24] and some innovations do not include social/economic concerns [eg Art 68 Dir 2014/24]; 2) as an ‘exception’, labour law is only part of the economic paradigm, which weakens the political power of labour law institutions; 3) the CJEU has given broad discretion to consider employment and social considerations as part of the public procurement process (Beentjes), BUT the link to the subject-matter of the contract (LtSM) is an increasingly constraining economic test, which means that the contracting authority cannot influence the policy it applies; 4) relationship between labour standards, public procurement and other EU law provisions and policies (including soft law) show a shift in those instruments and a prevalence of macroeconomic policies that downgrades labour law standards’ relevance; 5) finally, there is a very limiting approach to the inclusion of international standards [narrow list included in Dir 2014/24 and NO reference to ILO convention 94 on public contracts) + Art 18(2)].
In conclusion, labour law is increasingly seen as important in the context of the public procurement directives, but there are some important risks if labour law is seen as an exception or a concession to economic law and economic goals. Labour standards are restricted because they need to comply with economic paradigms, there is a tendency to promote individual over collective rights, the institutions of labour law can find their power to challenge the law reduced.
Tonia Novitz looked at Laval and Ruffert and their impact on collective bargaining in public procurement, and positioned them in historical context (decided in 2007 and 2008), which has changed very significantly as a result of the economic crisis. Elektrobudwa and RegioPost indicate new horizons for trade union protection of posted workers and space for regional protection, but not for collective negotiation. This indicates stark shortcomings in proposals for the revision of the PWD.
Laval was a case of a trade union trying to improve conditions for a group of workers. This was generally seen as problematic. Collective negotiation and action could only be permitted in the context of social dumping. This is a very controversial judgment and has been heavily criticised. Laval had a negative impact on the ability of trade unions to call for action with cross-border effects. There is a strong clash between the EU approach and international standards, which cannot be easily reconciled.
Ruffert adopted the Laval approach whole-heartedly on the basis of another rigorous reading of the PWD and, in particular, about Art 3(8) setting out the ways in which collective agreements can be declared generally applicable. Ruffert failed to meet those. MS could exclude the construction industry from these requirements under Art 3(10) PWD, but that did not save the situation either. The imposition of such large limitations on the collective setting of rights for posted workers’ rights led to an understanding of the PWD as a ceiling rather than a floor of employment rights. This could not be overcome as a result of the Monti II Regulation, which was abandoned for different reasons.
It may be worth revisiting these issues by going back to the basics of the need for the PWD, particularly in view of the vulnerability of posted workers, which supports the case for their access to collective representation. It is also worth stressing that the capacity of labour inspectorates across the EU has been severely eroded as a result of the financial crisis. Additionally, memoranda and other crisis-related recommendations have been in line of flexibility and minimising collective negotiation to enterprise level-agreements. Overall, this makes the requirement of universal application stressed in Laval and Ruffert seems very outdated in the context of 2016.
Currently, the number of posted workers is at about 1.9 million and has increased by 49% compared to prior to the crisis. The treatment of posted workers is also reported to suffer from 51% lower wages, higher instances of work-related accidents and displacement issues. This can be triggering a mild shift of the case law regarding collective bargaining.
In Elektrobudwa, there was support for regional collective action on behalf of posted workers. This is linked to the issue of individual claims because in this specific case, there is direct representation by the trade union. There is nothing to indicate sympathy for collective bargaining for posted workers, but it could be seen as a first step in that direction. In RegioPost you can also identify a first step away from Ruffert, but they stress that there was no collective agreement and, therefore, the distinct treatment between public and private workers did not matter. However, none of these cases make significant inroads into collective bargaining in public procurement. RegioPost was very cautious in the way it treated collective agreements.
Commission’s proposals from February 2016 can potentially make a difference around collective agreements that could have a spillover effect on procurement. Of these proposals, the rules concerning subcontract chains, including those that foresee the posting of workers, can have significant effects. But, for this to be relevant, there has to be a move beyond ‘minimum rates of pay’ (absolute minimum) towards ‘remuneration’ (so as to cover a variety of different elements), which should then be equally applicable to all employees regardless of subcontracting chains. This has a connection with Art 71(6) Dir 2014/24 in terms of control of subcontracting chains. It is also a nod to international standards, but a timid one.
Overall, however, this seems very unlikely to be adopted in the near future, and it may well be only after a monitoring of the implementation of the PWD enforcement measures. However, a case could reach the CJEU on the basis of a case based on strike action including both posted and non-posted workers, which will trigger issues of evidence-based social dumping and may not allow the CJEU to set aside this type of collective action as easily as in the past.
focused on issues of localism and devolution, and the way that this can impact the use of procurement to enforce labour standards, particularly in the UK. It also explored the implications of the post-Lisbon social market economy on the issue of the ‘exceptionalism’ of labour law. The audience also questioned whether Laval is really not still the relevant standard and whether the restrictive approach to collective bargaining is not still the rule. There was also discussion on whether wage-based advantages deserve a different treatment where there are and where there are not posted workers, as well as what actually amounts as a restriction on the freedom of provisions of services in terms of two-tier employment scales and issues of discrimination / disadvantage of workers within one same undertaking.
Michael Ford focused on how non-pay labour standards (such as blacklisting [note: of workers involved in trade union activities, not of undertakings from public procurement procedures] or discrimination rules) can be applied in the public procurement setting. UK history shows that the underlying issues have been discussed repeatedly in the past. However, there have been significant developments, such as the use of procurement to promote non-discrimination law. Section 149 Equality Act 2010 (EA 2010) imposes an explicit duty on public authorities to prevent discrimination and give effect to advancing equality law. It is also important to stress the importance of sectoral collective bargaining and quasi-collective bargaining in the UK, which lead to legally binding pay rates and holiday terms. Currently, though, this has been discontinued and there is no legal mechanism for the determination of sectoral pay. Query is whether this will not change again in the future.
From a practical perspective, looking at procurement litigation, it is worth reminding that this is an area institutionally dominated by large commercial organisations with large budgets to litigate, which skews the litigation field. It is also affected by other pragmatic tensions, which raises issues of the different access to statutory review vs judicial review of procurement decisions. Pragmatically, it is also very difficult to apply standard legal tools (proportionality) to non-pay labour standards and, in particular, in issues of non-discrimination—not least due to the absolute protection of non-discrimination concerns over economic issues. Thus, even if it is fundamentally difficult, pay is relatively straightforward compared to non-pay labour standards.
The counterfactual question is, though, what would have happened in EU procurement law if there had been no PWD? Would the CJEU engaged in an untrammelled proportionality test based on ultimate considerations of discrimination? That would have been highly political and this is why the CJEU has sheltered behind the PWD, which has effectively provided the CJEU with a relatively easy answer compared to the alternative of having to legitimise its decisions. This is exemplified in Bundesdruckerei in that there was not AG Opinion to support the CJEU, which considered the use of the PWD straightforward.
However, let’s assume that the PWD is a useful point of departure. Can the government use 'administrative provisions' [which are not defined, under Art 3(1) PWD] to enforce pay policies, particularly reinvigorating sectoral rate setting mechanism? This raises a set of issues: would it still qualify as minimum wage of pay despite the existence of a lower universally applicable minimum wage? Yes, it would. Would it be possible to give legal effect to the result of the collective bargaining? Yes, it would because the rate, despite the collective bargaining origin, derives from law. Could you use a RegioPost type system where you already have a national minimum wage (ie creating a higher minimum wage only for public contracts)? It looks as if the CJEU considered it central that in RegioPost there was no minimum wage, but it is not clear why it would not be possible to go above that ceiling with a RegioPost-like mechanism.
An alternative to the legal enforcement of rates of pay, which is not in line with UK tradition, would be to rely on Art 70 Dir 2014/24 rather than on Art 3(1) PWD (ie base it on discretion of the contracting authority). However, this is still a confusing environment.
A connected issue is blacklisting, in relation with the ILO conventions, which is now illegal under UK law. However, this could be possible under Art 18(2), Art 57(3) and Art 70 Dir 2014/24 by focusing on the tender rather than the tenderer [as in the enactment of reg.56(2) PCR2015]. This should not be subjected to a proportionality analysis under Art 18(2) Dir 2014/24, which only requires proof of breach of any of the international standards.
Another issue is whether there is a tension between the public sector equality duty under the EA 2010 and public procurement. One difficulty is whether you can use procurement as a preference for undertakings that have equal opportunity policies, equal pay audits, etc. This would fit within Art 70 Dir 2014/24, complemented with the relevant ILO conventions. There is again a tension with the issue of minimum standards in the PWD or not.
The answer is that PWD, even when it applies, it does not give the answer—particularly outside the area of pay, it is very difficult to figure out how to effectively carry out a proportionality assessment when there are procurement measures that go beyond agreed (EU) standards.
Richard Craven presented preliminary findings of on-going research funded by the British Academy and Leverhulme, where he assesses practitioners’ reactions to existing rules on the possibility to enforce labour standards within the limits of discretion given to public procurement officers.
focused on the difficulties of extrapolating qualitative insights and the insufficiency of public procurement data, which could allow for complementary quantitative research.

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