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The PPP specific law in Tunisia is: Law n. 2015-49 dated 27 November 2015 related to contracts between the public and the private sector (PPP) and published in the Official gazette dated 1st December 2015 (Hereinafter the PPP Law). The implementing decrees are the following: - Decree No. 2016-771 of 20 June 2016, about the composition and prerogatives of the Strategic Council for Public Private Partnership - Decree No. 2016-772 of 20 June 2016, about the conditions and procedures for the award of public-private partnership contracts. - Decree No. 2016-1104 of 4 July 2016 fixing the conditions and procedures for determining the consideration paid by the public party to the project company and determining the terms and conditions for the assignment or Pledging of receivables under public-private partnership contracts. - Decree No. 2016-1185 of 14 October 2016, laying down the organization and powers of the general public-private partnership. Additionally, Decree No. 2014-1039 covers both PPPs and concession contracts. Although PPP and Concession contracts are both governed by the same Unit (l'Instance nationale des PPP), this new law still coexist with the previous concession laws: In fact, PPP in Tunisia was previously governed by Law No. 2008-23 dated on April 1st 2008 relating to the concessions regime (referred to as the "Concessions Law"). Based on such law, decrees were enacted in order to describe the Concessions procedures and regime: (i) the Concession Procurement Decree No. 2010-1753 of July 19, 2010 setting the conditions and procedures of grant of the concessions complemented by Decree No. 2013-4631; (ii) Decree n 2008-2965 dated 8 September 2008, on the establishment of a unit in charge of the follow-up on concessions, (iii) Decree No. 2013-4631 amending Decree No. 2010-1753, and (iv) Decree No 2013-4630 of November 18, 2013 creating the Concessions Follow-up Unit within the Government Presidency (Unité de Suivi des Concessions au sein de la Présidence du Gouvernement), that substituted and repealed the original Decree No. 2008-2965 of September 8, 2008, creating the Concessions Follow-up Unit.
The PPP specific law in Tunisia is: Law n. 2015-49 dated 27 November 2015 related to contracts between the public and the private sector (PPP) and published in the Official gazette dated 1st December 2015 (Hereinafter the PPP Law).
- Decree No. 2016-772 of 20 June 2016, about the conditions and procedures for the award of public-private partnership contracts.
- Decree No. 2016-1104 of 4 July 2016 fixing the conditions and procedures for determining the consideration paid by the public party to the project company and determining the terms and conditions for the assignment or Pledging of receivables under public-private partnership contracts.
- Decree No. 2016-1185 of 14 October 2016, laying down the organization and powers of the general public-private partnership.
Additionally, Decree No. 2014-1039 covers both PPPs and concession contracts. Although PPP and Concession contracts are both governed by the same Unit (l'Instance nationale des PPP), this new law still coexist with the previous concession laws: In fact, PPP in Tunisia was previously governed by Law No. 2008-23 dated on April 1st 2008 relating to the concessions regime (referred to as the "Concessions Law"). Based on such law, decrees were enacted in order to describe the Concessions procedures and regime: (i) the Concession Procurement Decree No. 2010-1753 of July 19, 2010 setting the conditions and procedures of grant of the concessions complemented by Decree No. 2013-4631; (ii) Decree n 2008-2965 dated 8 September 2008, on the establishment of a unit in charge of the follow-up on concessions, (iii) Decree No. 2013-4631 amending Decree No. 2010-1753, and (iv) Decree No 2013-4630 of November 18, 2013 creating the Concessions Follow-up Unit within the Government Presidency (Unité de Suivi des Concessions au sein de la Présidence du Gouvernement), that substituted and repealed the original Decree No. 2008-2965 of September 8, 2008, creating the Concessions Follow-up Unit.
2. Decree No. 2016-772 of 20 June 2016, laying down the conditions and procedures for the award of public-private partnership contracts.
4. Decree No. 2016-1104 of 4 July 2016 concerning the fixing of the conditions and procedures for determining the consideration paid by the public entity to the project company and determining the terms and conditions for the assignment or Pledging of receivables under public-private partnership contracts.
5. Decree No. 2016-1185 of 14 October 2016, laying down the organization and powers of the general public-private partnership body.
(1) Art. 6 of Decree No. 2016-1185 of October 14, 2016: »The control and monitoring unit of public-private partnership contracts is responsible for studying and issuing a preliminary opinion on: - the preliminary study and the form description justifying the use of the method of partnership contract, - the reports on the recounting of technical and financial offers, - the statement of reasons justifying the use of direct negotiation for the conclusion of a partnership contract, - the reports statement of reasons justifying the use of the competitive dialogue for the conclusion of a partnership contract, - draft partnership contracts to be concluded in accordance with law n ° 2015-49 of 27 November 2015, on public partnership contracts private, - draft annexes to partnership contracts. "
- establish a general annual census of concession contracts and partnership contracts.
A General Commission is set-up with the Prime ministry which reviews the documentation and assists the public entity entering in a PPP by providing technical support and help in the preparation of partnership contracts (as well as for the conclusion and the implementation of such contracts). The General Commission gives a binding opinion regarding the PPP project.
Articles 7 of the PPP law No. 49-2015 provides that: "For a project intended to be carried out in the form of a partnership contract, the public authority is required to study the various legal, economic, financial, social and technical aspects. Furthermore, it should provide evidence that the environmental impacts justify the recourse to this form of contract, (instead of other contractual forms available) ... The study is presented to the General PPP Committee (referred to in Art. 38), with a description of the project. The opinion given by the Committee must be reasoned and motivated. If approval is given, the evaluation (referred to in the second paragraph of the article) is submitted for the approval of the Minister of finance, whose opinion will be motivated.
Article 19al1 of the PPP law 49-2015 provides that the PPP contract is presented to the General Commission before its signature in order to express an opinion confirming that of the procuring authority, no later than one month from the date of presentation .
According to Article 32 of the PPP Law, besides the control operations that could be indicated in the PPP contract, the procuring authority has to complete, among other operations, the designation (if need be), of specialized and independent experts in order to control the execution of the contract. Furthermore, Article 38.3 of the PPP Law provides that the commission can be assisted by experts (or expert offices), within the framework of its missions, according to the principles of transparency, competition, equal opportunities and in accordance with procedures established by government decree.
If yes, please specify and provide the relevant legal/regulatory provisions (if any): The PPP projects are intended to be included in the national investment and development strategy.
The PPP projects are intended to be included in the national investment and development strategy.
The article 4 of the PPP law states that the projects to be concluded under the PPP form must comply with the needs of the public entities previously set according to the national and local priorities and to the goals set by the development plan.
The PPP projects under the new specific PPP legal framework, are being prioritized in practice, in accordance with the provisions of the regulatory framework in Tunisia.
Article 7 of the PPP Law No. 49-2015 provides that: The procuring authority should subject the PPP project to a study of the legal , economic, financial , social and technical aspects, as well as to an environmental influence study in order to justify the choice of the PPP model over other contractual forms.
Article 7al 2 of the law 49-2015 provides that the procuring authority must prepare an assessment study of the effects of completion of the PPP project on the public balance, as well as on the financial situation of the public person and the availability of appropriations necessary to accomplish the project .
Art. 5 of the decree n ° 2016-772 of June 20th, 2016 provides: "The procuring authority must prepare a study of evaluation of the impacts of the realization of the project in the form of partnership contract on the public budget, the financial situation of the public person and the availability of program credits for its implementation and the evaluation of its own ability to finance the project throughout the duration of the contract. In addition, this study must include a statement on the essential data on the possible structure of the project financing, mentioning in particular the following elements: - an estimate of the overall cost of the project on the basis of an overall evaluation of the programming expenditure, design, financing, implementation or modification, maintenance and commissioning of the project for the public body and the private partner, highlighting its evolution throughout the contract, - an estimate of the ancillary fees if they have taken place and the possible remuneration that the public person will have to pay to the private partner. - an overall estimate of the discounting transaction based on the periods and percentages adopted, - an estimate of the net present value, for the transaction of expenditure under each contractual form for the public body. "
Art. 27 of the law n ° 2015-49 of November 27, 2015 provides that: "The partnership contract does not exempt the obtaining of all authorizations or to comply with the specifications in relation with its execution required under the legislation in force. "
Art. 3 decrees no. 2016-1104: "If the partnership agreement included an authorization to the project company to carry out and operate certain annexed activities related to the main project, it is necessary in this case to stipulate in the contract the expected revenues from its direct exploitation. and the rate going back to the public person of these revenues. "
Art. 25 of the law n ° 2015-49 of November 27th, 2015 provides that: "When the contract carries occupation of the public domain, it is worth authorization of occupation of this domain for its duration. The tenure, the related obligations and the rights deriving therefrom are governed by the stipulations of the partnership agreement and in accordance with the legislation in force. "
Art. 27 of the law n ° 2015-49 of November 27, 2015 provides that: "The partnership contract does not exempt the obtaining of all authorizations or to comply with the specifications in relation with its execution and exigible under the legislation in force. "
8. Senior Officer of the Unit for Monitoring and Follow-up of Partnership Contracts.
Article 10 of the Decree No. 2016-772 provides: "The general call for applications is published through the press or any other means of material or online and this twenty (20) days before the deadline for the receipt of applications".
Article 10 of the Decree No. 2016-772 provides that "The general call for applications is published through the press or any other means of material or online and this twenty (20) days before the deadline for the receipt of applications".
Article 8 of the Decree 2016-772 provides that: Partnership contracts are awarded by competitive bidding. They could also be awarded in exceptional cases through competitive dialogue or by direct negotiation in accordance with conditions set out in this Act.
The first phase includes a general call to application opened on the basis of a Regulation which precisely sets the conditions for the participation, methodology and criteria for pre-selection of candidates.
Article 14 b) of Decree N. 2016-772 provides that the tender documents should provide references such as conditions of participation, criteria and methodology of pre-selection.
Generally, the selection process is transparent and trustworthy, and therefore, the prequalification criteria specified in the tender documents shouls be respected in practice in Tunisia. However, according to some of our contributors, since the PPP contracts in their specific form as stated by the new PPP specific law are unprecented, there are no relevant track record that can be drawn yet.The process is still under elaboration.
Article 67 of the Public Procurement Decree No. 2014- provides that Control Commission must submit an evaluation report containing, among other things, the presentation of questions raised by participants about the content of the tender documents as well as any clarifications made to such documents Decree No. 2010-1753 provides in its Article 11 that the regulation of pre-qualification will specify "the conditions and deadlines available to the candidates to ask the clarifications on the pre-qualification process". Additionally, it provides in its Article 13, that the regulation of the invitation to tender will specify in particular "the method to be followed by the tenderers to present their comments and observations concerning the projects of contractual documents of the concession and their proposals for amendments as well as the method of notification of these proposals to the conceding party and the response of the latter".
Article 6 of the Public Procurement Decree provides that, among the principles to be followed, is informing the candidates by sharing the answers and clarifications to the observations and questions submitted by other candidates, at least ten days before the expiration of the deadline to receive offers. Furthermore, Article 3 of the Decree No. 2010-1753 provides: "In application of the principles mentioned in article 2 of the decree herein, it is advisable to comply with the rules of nondiscrimination between the candidates, of autonomy of the conceding parties, of adoption of clear, detailed and objective procedures of all the stages of grant of the concessions, of generalization of the communication of the answers and explanations to all the candidates, as for the requested observations and clarifications".
If no, please elaborate: The PPP Law and the Decree n 2016-772 mention only the requirement to submit the financial proposals.
The PPP Law and the Decree n 2016-772 mention only the requirement to submit the financial proposals.
There is no provision that expressly require the bidder to submit a financial model however such condition may be eventually required in the regulation of the invitation to tender.
Article 34 of the Decree 2016-772 provides that the commission responsible for the preparatory stages of the PPP call for tender (as created by article 25 of the same Decree) proceed to the assessment of the candidacies in compliance with the conditions and criteria set by Article 59 of the same Decree and mandatorily mentioned in the call for tender .
Furthermore, Article 13 of the Public Procurement Decree No. 2015-49 provides that the procuring authority should evaluate the proposals according to a predefined evaluation criteria stated in the tender documents (and it also adds specific criteria to be followed to select the best bid) Furthermore, Article 20 of the Decree No 2010-1753 provides that: " (...) Each special sub commission created in accordance with article 8 of the Decree herein analyzes the tenders while referring in the conditions and criteria fixed by the regulation of the invitation to tender (...)".
Article 16 of the PPP Law No. 2015-49 provides that the procuring authority should publish its decision to assign the PPP contract on the website of the concerned procuring authority (and an additional hardcopy publication should be made on designated boards in their respective spaces for eight days from the publication on the website).
Article 42.2 of decree N. 2016-772 provides that the procuring authority should inform the non selected candidates and indicate the notifs of their non-selection.
Article 49 of the Decree n 2016-772 provides that the procuring authority is bound to inform the non selected bidders.
In addition it must answer to any request for information addressed to it as specified in Article 50 of the Decree.
Furthermore (in Article 63 of the decree) the procuring authority must draft an extract of the granted PPP contract and address it to the IGPPP to be published on its website.
The mandatory information and the model of publication of such extract are set by Article 63 of the Decree 2016-772.
Article 63 of the Decree n 2016-772 provides that the procuring authority must draft an extract of the granted PPP contract and address it to the General Instance of PPP to be published on its website.
The mandatory information and the model of publication of such extract are set by the same Article.
- establish a general annual census of concession contracts and partnership contracts. The Synthesis, Monitoring and Audit Unit is headed by a cadre with the rank and benefits of the Director General of Central Administration.
the selection rules for tenders restricted by a pre-selection.
- draft annexes to concession contracts.
Article 12 of Government Decree No. 2016-1185 of 14 October 2016, setting out the organization and powers of the general public-private partnership authority, provides in paragraph 2 that the commission for the control and monitoring of concession contracts and partnership agreements "consists of the following members: - an administrative judge having the rank of advisor to the administrative tribunal, - a representative of the Presidency of the Government, - a representative of the Ministry of Finance, - a representative of the Ministry of Development and investment, - a representative of the ministry in charge of the equipment, - a representative of the central bank of Tunisia, - the first person in charge of the unit of control and follow-up of the contracts of concessions, - the first person in charge the control and monitoring unit of the partnership contracts. The members of the commission not belonging to the instance are appointed by order of the head of the government on proposal of the structures concerned, and for a period of 5 years renewable once, the renewal of the aforementioned members is carried out by half every 5 years. "
If yes, please provide the relevant legal/regulatory provisions (if any): Articles 31 and 32 of the Law N. 2015-49 provide for the control of execution of partnership contracts.
Articles 31 and 32 of the Law N. 2015-49 provide for the control of execution of partnership contracts.
Art. 31 provides the following: The project company is required to periodically communicate to the procuring authority all legal, accounting, financial and technical aspects of the project in accordance with the terms of the partnership contract, as well as technical studies, and the standards required by the public authority.
The project company is also required to submit an annual report determining the progress of the implementation of the project and the respect of society for the project commitments.
The project company should facilitate the tasks of control officers referred to in Article 32 of this Act.
-the monitoring of the company's compliance with the contractual conditions relating to subcontracting small and medium-sized enterprises, the use of domestic labor and the use of of domestic products. A report must be submitted presented to the national public partnership body private.
Article 31 al 1 of the PPP law 49-2015 provides that PPPCo should provide all the accounting and financial documents, required in the PPP contract, to the procuring authority on a regular basis on a regular basis. PPPCo should also submit any additional technical studies and examples and specifications that the public party might require. Additionally, Article 33 of the PPP law n 2015-49 mentions that besides the control of the administration that could be mentioned in the PPP contract, the administration must follow-up the bidder commitments and especially the activity reports mentioned in article 31 of the law, review the documents presented by the bidder, control the works on site, compliance with the provisions of the contract, appoint an expert for checking the project and present an annual report of the performance of the contract. This information is administrative information that is protected by confidentiality except for the Parliament and the Government.
According to Article 31 of the PPP Law,PPPCo must submit an annual report to the procuring authority showing the progress of the completion of the project and the fulfillment of the company's obligations. Furthermore, Article 32 of the Law provides that the procuring authority must make sure it receives the annual reports from PPPCo, study them and confirm thair accuracy.
Article 21 of the PPP law No. 49-2015 requires that any change of shareholding in the project company must be priorly approved by the regulatory authority.
Additionally, Art. 28 provides: The partnership contract may be transferred to third parties during its execution only after obtaining the prior written agreement of the public body and in accordance with the contractual conditions. The third party assignee of the contract must present all necessary legal, financial and technical guarantees which prove his capacity and ability to continue to perform the contract.
Article 28 of law n. 49-2015 provides that the third party assignee of the contract must present all necessary legal, financial and technical guarantees which prove his capacity and ability to continue the performance of the contract.
The article 62 of Decree n 2016-772 listing the mandatory clauses of the PPP contracts mentions between them the procedures of modification of the contract in course of execution.
 the selection rules for restricted invitations to tender preceded by a pre-selection.
Projets the draft annexes to the concession contracts.
The Concession Control and Monitoring Unit is headed by a senior executive with the rank and benefits of Chief Administrative Officer.
Article 17 al 2 of the PPP law No. 49-2015 provides that, as a general rule, the PPP Contract is not renewable, except in exceptional cases where an extension is needed to ensure the continuity of the public utility, or in case of force majeure, or upon the occurrence of unexpected events. In ant case, the extension cannot exceed a maximum period of 3 years, and it needs the approval of the General Authority for partnerships between the public and the private sector.
Article 17 al 2 of the PPP law No. 49-2015 provides that, as a general rule, the PPP Contract is not renewable, except in exceptional cases where an extension is needed to ensure the continuity of the public utility, or in case of force majeure, or upon the occurrence of unexpected events. In ant case, the extension cannot exceed a maximum period of 3 years, and it needs the approval of the General Authority for partnerships between the public and the private sector. In fact, Article 282 of the Tunisian Civil Code (code des obligations et des contrats) defines force majeure as "any fact that a human being cannot prevent such as natural phenomena, enemy invasion, Acts of Government and making impossible the performance of the obligation. Consequently, force majeure includes an adverse government action.
Article 22 of Law No. 2015-49 about the procedures established by the partnership contract, provides: - The project company must execute the contract directly. It can subcontract parts of its obligations, if the contract authorizes it, after obtaining the prior authorization of the public party. However, under no circumstances may the project company subcontract all or a majority of its obligations under the contract. In all cases, the project company remains directly liable to the public entity and third parties for the fulfillment of all obligations imposed on it by the contract.
Furthermore, Article 62 of the Decree n 2016-772 listing the mandatory clauses of the PPP contracts mentions that the procedures of outsourcing must be determined in the contract.
Article 30 of the PPP law No. 49-2015 requires the parties, in the case of a dispute resulting from the implementation of the PPP contract, to recourse to an amicable period for settlement where conciliary efforts should be made before resorting to the judiciary or to the arbitration. If the parties end up chosing the arbitration path, the contract has to state that the mandatory applicable law is the Tunisian law.
Article 33 of the Tunisian arbitration code provides: The arbitral award may be enforced spontaneously by the parties or executed by order of the president of the court of first instance within the jurisdiction where the award is made, ... However, if the dispute is pending before a court of appeal, then only the president of this court is competent to make the order of exequatur.
According to Article 36 of the PPP law No. 49-2015, the private partner would lose its right to the contract in case it defaults on its obligations and fails to fulfill them by the expiration of the notice period given by the public authority. In such case, the lenders are advised and they can propose a replacement to the private partner, that would need the approval of the procuring authority.
The PPP contract may be terminated by the will of parties before its term for various raisons: *the negligence of either contracting party; * the repurchase of the concession by the conceding party after expiry of a period determined in the contract. The principles effects of the PPP contract termination is meanly the return to the conceding part of the properties used by the concessionaire during the PPP execution. PPP Law No. 2015-49 provides: (1) in its Article 34, that the PPP contract is normally terminated by the end of the contract life. However, exceptionally, the contract can be terminated prematurely in circumstances provided for in Article 35: the PPP contract can be terminated by mutual agreement or for circumstances agreed upon in the contract. The procuring authority can unilaterally decide to terminate the contract if the private party committed a serious mistake, or if the public interest requires termination of the contract.
Article 55 of the decree No 2016-772 of june 20, 2016 provides that : "The private person can present a unsolicited proposal to the procuring authority for the realisation of a project in the context of a PPP contract….".
According to Article 7 of Law No. 2015-49: "The procuring authority is required to submit the partnership project, to study the various legal, economic, financial, social and technical aspects , the environmental impacts and the elements justifying its use in this form instead of other contractual forms.
The public entity is also required to draw up a study to evaluate the impact of the implementation of the project in the form of a partnership contract on the public budget, the financial situation of the public entity and the availability of appropriations for its production. The study provided for in the first paragraph of this Article shall be accompanied by a description of the project for the opinion of the general public private partnership referred to in Article 38 of this Law. The notice of the proceeding must be reasoned and binding. In the event of approval of the proceeding, the evaluation study referred to in the second paragraph of this Article shall be submitted to the Minister for Finance for advice. His opinion shall be motivated ".
- analysis of the risks associated with the project. And any other data allowing the evaluation of the spontaneous offer. Each unsolicited tender must be deposited at the office of the public authority against discharge or sent by registered post with acknowledgment of receipt or by rapid post.
Furthermore, Article 56 of the decree No 2016-772 provides that The procuring authority that receives an unsolicited proposal has to examine the possibility of carrying out the project which is the object of this offer, in the context of a PPP contract, from a legal, economic, financial and technical points of view.
Finally, Article 7 paragraph 2 of the PPP Law No. 49-2015 provides that the procuring authority has to elaborate a study of evaluation of project realisation impacts under the form of a partnership contract on the public budget, financial situation of the procuring authority, as well as the availability of necessary appropriations for its realisation.
And: Article 11 of Law No. 49-2015 provides that the unsolicited proposal must present a comprehensive study that will be reviewed by the procuring authority. The latter has the discretionnairy authority to accept or refute the unsolicited proposal.
Article 57 of the decree No. 2016-772 provides that "In case the unsocilicited proposal is accepted by the procuring authority, this proposal will be submitted to the article 7 of PPP Law No. 49-2015".
Article 7 paragraph 2 of the PPP Law No. 49-2015 provides that the procuring authority has to elaborate an evaluation study of the project realisation impacts -under the form of a partnership contract- on the public budget, the financial situation of the procuring authority, as well as the availability of necessary appropriations for its realisation.
Article 7 paragraph 4 of the PPP Law No. 49-2015 provides that "In case of approval by the general instance, the mentioned study at paragraph 2 must be submitted to the Minister of finance for opinion.
Article 11 al 6 of the PPP law No. 49-2015 provides that the procuring authority initiates a competitive PPP procurement procedure when proceeding with the unsolicited proposal . Additionally, Article 58 of the Decree No. 2016-772 provides that: "In the case of a call for tender for the conclusion of a partnership contract concerning the project which is the subject of the unsolicited proposal, the offeror of the unsolicitied proposal is granted a 2% margin of preference.

matches:
Art. 6
Art. 38
Art. 5
Art. 27
Art. 3
Art. 25
Art. 27
Art. 31
Art. 28


The following lawsuit was submitted by lawyer Dr. Pier Stolle to the Berlin administrative court on 24 January against the Federal Interior Ministry. It appeals for “the defendant to be ordered to cease distributing, allowing the distribution of, or enabling access to the Verfassungsschutz (Federal Office for the Protection of the Constitution) Report 2017 as published by them in digital, written, or any other form, so long as the Socialist Equality Party (Sozialistische Gleichheitspartei—SGP) continues to be mentioned in it.” A statement by the SGP on the lawsuit can be found here.
In February 2017, the plaintiff changed its name from the “Partei für Soziale Gleichheit” (Party for Social Equality) to “Sozialistische Gleichheitspartei, Vierte Internationale” (Socialist Equality Party, Fourth International).
The plaintiff is the German section of the International Committee of the Fourth International (ICFI). The SGP works to win workers in Germany to the programme of socialist internationalism, and hopes on the basis of this programme to unite the workers and mobilise them to take political power and establish a workers’ state. Its goal is to create the objective conditions for the building of a “truly democratic, egalitarian and socialist society,” according to the party’s statement of principles.
To achieve this goal, the SGP focuses chiefly on holding informational events and lectures, and publishes articles daily on the World Socialist Web Site (www.wsws.org) analysing world political and economic developments.
In its statement of principles, the plaintiff elaborates further that it advocates the nationalisation of the productive forces, the abolition of national borders and the creation of a rationally-planned, globally integrated economy, as well as the united socialist states of Europe.
It is also noted in the statement of principles that the plaintiff's most important tool to develop socialist consciousness in the working class is the World Socialist Web Site. With its daily analysis of global political and economic developments, exposures of the social reality of capitalism, comments on important cultural questions, discussions of philosophical and historical issues and investigation of critical questions of revolutionary strategy, tactics, and practice, this website will play a critical role in establishing a contemporary global Marxist movement.
The plaintiff stands in elections, including the federal election and the European elections in May 2019. In the manifesto for this election, it opposes militarism and war, poverty and exploitation, and calls for a socialist Europe, social equality, and the defence of democratic rights.
On page 127 under the subheading IV “Left-wing extremist party spectrum,” it is further stated that their goal is the creation of a socialist order so as to establish a communist classless society, although they make use of legal methods, such as the participation in elections. In contrast to “militant left-wing extremists,” they would only consider the use of violence as legitimate in principle and unavoidable in a revolutionary situation.
With respect to the plaintiff, it is then noted on page 131 that according to its own records, it has 261 members, follows the traditional Trotskyist theory of the socialist revolution as a permanent global process led by workers councils, and secured 931 first ballot votes and 1,291 second ballot votes (0.0 percent) in the federal election on 24 September, 2017.
Furthermore, on page 148, it is noted with respect to the plaintiff that the plaintiff’s programmatic “agitation” is directed against the existing state and social order invariably slandered as ‘capitalism’, against the EU, supposed nationalism, imperialism, and militarism, as well as against Social Democracy, the trade unions, and the Left Party. The party attempts to gain publicity for its political ideas by participating in elections and organising lecture series, continues the report.
In a letter of 11 December, 2018, the undersigned, exercising the rights of the plaintiff, called upon the defendant to cease distribution of the Verfassungsschutz Report 2017 published by them, so long as the plaintiff is mentioned in it.
In the letter, a deadline of 6 p.m. on 29 December, 2018, was set. No response was received from the defendant.
A lawsuit was therefore necessary.
The mentioning of the plaintiff in the Verfassungsschutz Report 2017, which is published by the defendant and the subject of this proceeding, is unlawful, because the preconditions for including the plaintiff in the report are not met.
A Verfassungsschutz report is not merely an arbitrary product of public service work. The naming of a natural or legal person in a secret service report goes well beyond the mere participation of state officials in public controversies, or the creation of a sufficient basis of information to aid independent decision-making by citizens, since it arises from a specialist set of powers to protect against a specific, narrowly defined set of threats, and results in a burdensome, negative sanction for the person named (consider BVerfG, NJW 2005, 2912 ).
In compiling a secret service report—and especially when determining which persons or groups of persons are to be included in it—special standards of care must be observed. The secret service report amounts to a warning signal. The naming of a person or group of persons in the secret service report is at the same time in effect the issuing of an order to the public not to support this group of persons, not to join the group, and not to accept its offerings—whatever they may be. It is designed to prevent citizens from engaging with or even joining this group of persons. The secret service report is regularly reported on in the media and discussed in public, ensuring it has a widespread impact. The result of this is that by being named in the secret service report, (potential) collaborative partners will be reluctant to cooperate, making it more difficult for the affected group of persons to enter into business, cultural, social, or other relations with others. Being named in the secret service report is thus linked to a considerable negative stigma in public life (consider OVG Berlin-Brandenburg, U. v. 06.04.2006 - OVG 3 B 3.99).
Furthermore, with the inclusion of a person or group of persons in a secret service report, the general legal discretionary limits apply, among which is the principle of proportionality. The naming is therefore only permissible if it is in fact necessary and proportionate in the strict sense of the term (BVerfG, a. a. O.).
The legal basis for the publication of a so-called Verfassungsschutz report is § 16 subparagraph 2 BVerfSchG. It is set out there that the defendant informs the public about attempts and activities according to § 3 subparagraph 1, insofar as sufficient, weighty, actual evidence to do so exists, at least once annually in a summary report focusing particularly on current developments. It is therefore essential whether attempts according to § 3 are being undertaken by the plaintiff.
A. There is clearly no evidence of attempts by the plaintiff to oppose the free democratic constitutional order.
The activity of a group of persons must aim at suspending fundamental constitutional principles, which are contained in paragraph 4, subparagraph 2 BVerfSchG. It therefore requires the conclusion that those types of activities are actually initiated by the group of persons.
Attempts are those politically-defined types of behaviour directed by a person or group of persons towards the goal and purpose of overturning or restricting one of the constitutionally protected principles. In this context, overturning means the full restriction or partial abolition of a constitutionally-protected good. Rendering a good inapplicable takes place when the constitutionally-protected good is not formally abolished, but is in effect overturned or is not enforced (Roth, in: Schenke/Graulich/Ruthig, SicherheitsR des Bundes, §§ 3, 4 BVerfSchG Rn). 10). The overturning or restriction must be the essential goal of the group of persons.
Attempts to oppose the free democratic constitutional order according to § 3 1 No. 1 1 BVerfSchG are only given if, beyond the mere criticism of the constitutional values and principles, activities are developed aimed at overturning them, or at transforming the state and social order into an order that is incompatible with the basic principles of the free democratic constitutional order (BVerwGE 137, 275, Rn). 40; Roth, in: Schenke/Graulich/Ruthig, SicherheitsR des Bundes, §§ 3, 4 BVerfSchG Rn 53).
B. The defendant has not demonstrated this in the case. Neither ‘capitalism’, nor the EU, nationalism, imperialism, militarism, the Social Democracy, trade unions, or the Left Party are constitutionally protected goods according to paragraph 4 1c) i.V.m. paragraph 2 BVerfSchG. The advocacy of a democratic, egalitarian, socialist society does not contradict the Basic Law’s core values.
There is also no indication in the conducting of meetings, documenting of reports and analyses, and the participation in federal and European elections of behaviour directed towards the goal or purpose of overthrowing or transforming the state and social order to establish an order that is incompatible with the free-democratic principles of the constitutional order.
The naming of the plaintiff is also unnecessary for appropriately informing the public.
The plaintiff’s predecessor, the Partei für Soziale Gleichheit, has existed since 1997. It was not named in the defendant’s previous reports.
The wide-ranging impacts of the Verfassungsschutz Report must be taken into account. The organisations named there are designated “extremists” and thus officially enemies of the constitutional order. With its inclusion, an organisation is declared to be an enemy of the constitution and the state. Along with its function of issuing warnings, the Verfassungsschutz Report also serves to brand and sanction. The official designation as an enemy of the constitution is the basis for social exclusion bound up with broad-ranging consequences. These persons and groups of persons should be and will be socially isolated (vgl. Murswiek, NVwZ 2004, 769 ff.).
The naming is therefore only permissible if it is in fact necessary and proportionate in the strict sense of the term (BVerfG, a. a. O.). This is also legally based on paragraph 16, subparagraph 2, section 1 BVerfschG, according to which informing the public is only possible if sufficient and substantive evidence is presented; considered alongside subparagraph 3, according to which personal data can only be published if the publication is necessary for an understanding of the context, or the presentation of organisations or unorganised groups, and general public interest outweighs the right of the person concerned to protect their privacy.
These requirements are not met in the present case. The naming of the plaintiff is unnecessary. This is particularly so since the plaintiff is a party which, among other things, intends to participate in the European elections in May 2019. The naming of the plaintiff in the report that is the subject of this case is apt to deter eligible voters from voting for the plaintiff.
The naming of the plaintiff in the subject of this case also interferes with some of the plaintiff’s protected rights.
This concerns the general right to publicity, which according to Art. 19 subparagraph 3 GG, the plaintiff can invoke as a legal person within the scope of its activities. This comprises protection from declarations by the state that would be apt to have a negative effect on the affected person’s public image. This includes the right of disposal and right of self-determination over one’s own public portrayal, as well as the protection of the claim of validity, the so-called “external honor,” the reputation in the eyes of others (BayVGH, B.v. 23.9.2010 – 10 CE 10.1830).
The naming in a Verfassungsschutz Report, regardless of in which form, exposes the plaintiff to the effects of the report’s negative stigmatisation.
The suit must therefore be upheld.
Additionally, an application is made for the entire administrative procedure and the technical files associated with the case to be consulted, and following consultation, for the undersigned to be granted access to the files.
Following the completion of the examination of the files, further grounds in support of the suit will be provided.


Allstate Ins. v. Pooltime Products, Inc.
F. Otway Denny, III, Porteous, Hainkel, Johnson Sarpy, New Orleans, LA, for plaintiff.
Esmond Phelps, II, James Richard Swanson, and Elizabeth M. McCarron, Stone, Pigman, Walther, Wittmann Hutchinson, New Orleans, LA, for defendants.
Before the court is a Motion for Summary Judgment, which was filed by Defendants and which was noticed for a hearing on Wednesday, January 5, 1994. Plaintiff has filed an opposition to the pending motion which is before the court on briefs without oral argument.
Plaintiff's complaint alleges that Plaintiff is entitled to recover damages for payments it made to its insured which resulted from a fire allegedly caused by the combustion of chlorine tablets manufactured by Pooltime Products, Inc. ("Pooltime") and purchased from Home Depot U.S.A., Inc. ("Home Depot"). Allstate's complaint alleges that it paid $130,827.88 to Louis and Patricia Daigle, its insured, and that it is subrogated to the rights of the Daigles against Pooltime and Home Depot. In its original state court petition, Plaintiff alleged three theories of failure to warn and one theory of defective packaging as the basis for recovery. Plaintiff amended its complaint by adding four paragraphs which provided, in essence: (1) that the product was in an unreasonably dangerous and defective condition; (2) that the manufacturer failed to comply with the requirements of 7 U.S.C. § 136 and other applicable statutes (a defective packaging claim); (3) that the container used for the product at issue was either improperly designed, manufactured with inferior or improper materials or otherwise improperly manufactured, causing or allowing a chemical reaction to start a fire; and (4) that Plaintiff realleges all the allegations in its original petition.
Plaintiff originally filed its petition in state court on March 8, 1993. Defendants timely removed this action to federal court on April 1, 1993.
4. Failure to recall the product which was dangerous due to inadequate warnings and/or packaging and/or product contamination.
The Pooltime product in question, Spa-Time Chlorinated Concentrate, is a registered pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136, et seq., and bears EPA registration number 5185-316-43973. Defendants seek summary judgment by arguing that all of Plaintiff's failure to warn and defective packaging claims are preempted by FIFRA and that Plaintiff has offered no evidence to support a products liability claim. After reviewing the arguments of counsel, the record, and the applicable law, this court finds Defendants' arguments to be meritorious and herein grants Defendants Motion for Summary Judgment.
A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.
Such State shall not impose or continue in effect any requirements for labelling or packaging in addition to or different from those required under this subchapter. (emphasis added).
The Supreme Court has recently construed the word "requirements" found in the Public Health Cigarette Smoking Act in a failure to warn case involving preemption. Therein, the Supreme Court recognized that the word "requirements" included state law actions for damages. Cipollone v. Liggett Group, Inc., ___ U.S. ___, ___, 112 S.Ct. 2608, 2620, 120 L.Ed.2d 407 (1992). Therefore, Plaintiff's claims alleging failure to warn and improper packaging of the product in issue are expressly preempted under FIFRA.
See also Papas v. Upjohn Co., 985 F.2d 516 (11th Cir. 1993); Arkansas-Platte Gulf Partnership v. Van Waters Rogers, Inc., 981 F.2d 1177 (10th Cir. 1993); and Shaw v. Dow Brands, Inc., 994 F.2d 364 (7th Cir. 1993).
Plaintiff states for the first time in its Supplemental Memorandum in Opposition to the Motion for Summary Judgment that it is relying upon res ipsa loquitur as a method of proving its claims. Id. at 2. While the record is unclear as to exactly when the product in question was purchased and stored by the Daigles, Defendants correctly point out that the record does reveal that the Daigles had both control and management of the alleged defective product at the time that the fire occurred. Because Defendants did not have the requisite custody and control over the product in question, the court finds that res ipsa loquitur is not applicable to the present facts.
IT IS ORDERED that the Motion for Summary Judgment filed by Defendants, Pooltime Products, Inc. and Home Depot U.S.A., Inc., be and is hereby GRANTED, DISMISSING all of Plaintiff's claims with prejudice.
IT IS ORDERED, ADJUDGED AND DECREED that Judgment be entered herein in favor of Defendants, Pooltime Products, Inc. and Home Depot U.S.A., Inc., and against Plaintiff, Allstate Insurance Co., DISMISSING Plaintiff's claims with prejudice and at its cost.


Introduction & Background – Gives an introduction to the provision and the issue being addressed by the rule.
Design Guidance – Uses a question and answer format, in most provisions, to address the interests of product designers. This section provides further technical information and gives measurable targets. Where applicable, examples of implementation methods are given. It is imperative that Federal agencies understand that these methods illustrated are not the only approaches for reaching accessibility goals.
Provision Requirementsare design elements necessary for product conformance to the Section 508 provision.
Recommended Practices are design approaches that augment or exceed the 508 provision requirement and enhance usability and accessibility.
Telecommunications: The transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.
Customer premises equipment: Equipment employed on the premises of a person (other than a carrier) to originate, route, or terminate telecommunications. Telecommunications equipment: Equipment, other than customer premises equipment, used by a carrier to provide telecommunications services, and includes software integral to such equipment (including upgrades). Telecommunications service: The offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.
Again, products generally have primary functions that will be covered by one of the six technical areas in Subpart B. However, products often have features that may be covered in other sections of Subpart B as well as Subpart C. Some examples of how the Telecommunications Products provisions should be applied will now be given to assist in further clarifying the correct application of these provisions. Three types of products will be used to illustrate how the provisions should apply. The first example is a typical desktop telephone with answering machine capability. The second is a self-contained, single-function FAX machine. The third is a complex “All-in-One” machine that includes FAX, scanner, copier, and printer. The unit connects to a personal computer and contains software to be loaded on the personal computer. 1. A typical desktop telephone with answering machine is clearly covered by section 1194.23 because its primary function is to provide telecommunications functionality. All parts of 1194.23 apply to this product, as do all parts of 1194.31. Provisions from other technical sections of 508 may also apply based on the telephone design and features.
From the 1194.25 provisions, ‘a’, ‘b’, ‘c’, ‘g’, ‘h’, and ‘i’ apply to this product. Provision ‘d’ does not apply because no biometric form of identification is being used in this particular example. Provision ‘e’ does not apply because the product does not deliver voice output. Provision ‘f’ does not apply because there is no voice output for purposes of a conversation. Provision ‘j’ does not apply because this is not a freestanding product. Provisions ‘c’, ‘h’, and ‘i’, may not apply depending on whether the product has a display and on the type of display. A third example is an “All-in-One” machine connected to a personal computer that includes a FAX, scanner, printer, and copier. This product does not support voice calls. The product includes software to be loaded on the personal computer. Therefore, this software must meet the requirements for software (1194.21). The unit itself is similar to the one in the second example and is covered under the telecommunications products (1194.23) and self contained, closed products (1194.25) provisions, as well as the 1194.31 functional performance criteria. To determine exactly which provisions apply to this “All-in-One” product, the same kind of analysis performed in the example of the stand alone FAX machine would be performed. §1194.23 ProvisionsThe following table quotes verbatim the telecommunications accessibility provisions found in §1194.23, Telecommunications Products. Headings by each provision are hyperlinked to the discussion of that provision in the document.
§1194.23(b) Telecommunications products which include voice communication functionality shall support all commonly used cross-manufacturer non-proprietary standard TTY signal protocols.
§1194.23(c) Voice mail, auto-attendant, and interactive voice response telecommunications systems shall be usable by TTY users with their TTYs.
§1194.23(d) Voice mail, messaging, auto-attendant, and interactive voice response telecommunications systems that require a response from a user within a time interval, shall give an alert when the time interval is about to run out, and shall provide sufficient time for the user to indicate more time is required.
§1194.23(e) Where provided, caller identification and similar telecommunications functions shall also be available for users of TTYs, and for users who cannot see displays.
§1194.23(f) For transmitted voice signals, telecommunications products shall provide a gain adjustable up to a minimum of 20 dB. For incremental volume control, at least one intermediate step of 12 dB of gain shall be provided.
§1194.23(g) If the telecommunications product allows a user to adjust the receive volume, a function shall be provided to automatically reset the volume to the default level after every use.
§1194.23(h) Where a telecommunications product delivers output by an audio transducer which is normally held up to the ear, a means for effective magnetic wireless coupling to hearing technologies shall be provided.
§1194.23(i) Interference to hearing technologies (including hearing aids, cochlear implants, and assistive listening devices) shall be reduced to the lowest possible level that allows a user of hearing technologies to utilize the telecommunications product.
§1194.23(j) Products that transmit or conduct information or communication, shall pass through cross-manufacturer, non-proprietary, industry-standard codes, translation protocols, formats or other information necessary to provide the information or communication in a usable format. Technologies which use encoding, signal compression, format transformation, or similar techniques shall not remove information needed for access or shall restore it upon delivery.
§1194.23(k) Products which have mechanically operated controls or keys, shall comply with the following:(1) Controls and keys shall be tactilely discernible without activating the controls or keys.(2) Controls and keys shall be operable with one hand and shall not require tight grasping, pinching, or twisting of the wrist. The force required to activate controls and keys shall be 5 lbs. (22.2 N) maximum.(3) If key repeat is supported, the delay before repeat shall be adjustable to at least 2 seconds. Key repeat rate shall be adjustable to 2 seconds per character.(4) The status of all locking or toggle controls or keys shall be visually discernible, and discernible either through touch or sound.
A standard, non-acoustic connection for TTYs should be provided.
The user should be able to turn microphones on and off, so as to intermix speech with TTY signals.
This provision does not require a telephone to have built-in TTY functionality. For example, an analog telephone port that allows connection to a TTY is perfectly acceptable to provide assistive technology compatibility.
It is possible to provide equivalent facilitation using TTY emulating software in a personal computer (equipped with a microphone and speakers), but only if the VCO requirement is addressed in the solution.
Although this provision does not specifically address the issue of quality necessary for effective communication, voice and TTY signals could be capable of being mixed without garbling of TTY text or reduction of speech quality.
Where an analog RJ-11 connector is provided for TTY connectivity, a ring equivalence of 1 is commonly provided (in addition to the 1 ring equivalent provided for the telephone).
If the port connects directly to the PSTN, it should conform to the standards for an analog PSTN telephone line (FCC Part 68).
Although one of the purposes of this provision is to ensure good signal quality, a TTY direct connection has a secondary benefit of supporting the auto answer ability of TTYs with that feature. Designers should note that TTYs connected through an audio jack cannot act as answering machines – even if they have answering machine features in them (that work when they are connected through an RJ-11 jack). To answer a telephone (or act as an answering machine) TTYs need to have a direct connection to the telephone line.
It is important that telephones, which provide audio connection points, pass through the ring signal to the connector so that TTYs with built-in signal capability can detect the ringing. The telephone set-up for a TTY needs to be able to activate a flashing light (or, in the case of portable/wireless telephones, vibrating) feature or third party device in order for a TTY user with a hearing loss to know when the telephone is ringing.
It would be helpful for there to be a standard mechanism for TTYs to answer the telephone when connected through a 2.5 mm audio connection point so that TTY auto-answer or answering machines can work.
508 Provision §1194.23(b) Telecommunications products which include voice communication functionality shall support all commonly used cross-manufacturer non-proprietary standard TTY signal protocols. Introduction & Background A two-way, real-time text-based telephone service for people with communication disabilities, based upon TTYs, was developed from teletype machines in the 1960s. The purpose of this provision is to ensure that TTY compatibility (with the signal, not just the connection point) is not overlooked. Specifically, this provision requires that mainstream telecommunications products be compatible with the traditional or standard TTY code of 45.5 baud Baudot. Design Guidance • Is my product affected by this provision? This provision applies to all telecommunications products that support 2-way voice communications. For example, a fax machine with a line monitoring speaker only (but no handset with microphone, and no speakerphone functionality) is only one-directional and therefore, not covered, even though it emits speech and sounds of the person at the other end of the call. However, a fax machine with handset and microphone, enabling a two-way conversation, would be covered. • What is a TTY and how does it work? A TTY is a text communication terminal that allows people with hearing or speech disabilities to use the telephone. TIA/EIA 825-A, “A Frequency Shift Keyed Modem For Use On The Public Switched Telephone Network” is the basic standard defining the Baudot TTY. TTYs (transmitting in 45.5 baud Baudot) that conform to TIA/EIA 825-A are silent when not transmitting.
Unlike fax machines and computer modems, these TTYs have no "handshake" procedure at the start of a call, nor do they have a carrier tone during the call.
Although this approach tends to limit the speed of transmission, it has the advantage of permitting TTY tones, DTMF (Dual Tone Multi-Frequency signals, also known as "touch tones"), and voice to be intermixed on the same call. It also allows TTY calls to be put on hold and to be transferred.
When transmitting in 45.5 baud Baudot, there is no automatic mechanism that lets TTY users know when a character they have typed correctly has been received incorrectly.
Each TTY character consists of a sequence of seven individual tones.
The first tone is always a "start tone" at 1800 Hz.
This is followed by a series of five tones, at either 1400 or 1800 Hz, which specify the character.
The final tone in the sequence is always a "stop tone" at 1400 Hz. The "stop tone" is a border that separates this character from the next.
Provision Requirements • Telecommunications products which include voice communication functionality should support all commonly used cross-manufacturer non-proprietary standard TTY signal protocols. Recommended Practices • There is no single protocol for testing TTY signals within mainstream telecommunications systems. For example, there are different issues for TTY over wireless networks than for TTY over VoIP. However, for evaluating TTY error rates on digital wireless telephones, consider testing protocols developed by the TTY Forum. See: http://www.atis.org/atis/tty/ttyforum.htm.
Voice mail, auto attendant, and interactive voice response systems should be usable by TTY callers, both to leave and retrieve messages, as well as to use the system features. This accessibility allows TTY users to navigate the systems independently without relying on a telecommunications relay service because the systems will directly send and receive TTY signals.
Timing should be a consideration when designing the system to be “usable” as the provision requires. TTY users need sufficient time to read and respond prior to the system timing-out. Also, see 1194.23 (d).
Since the voice mail system of the agency should be completely TTY compatible, TTYs with answering machine functionality should not be needed (though the voice mail may or may not be easier to use), since TTY users could have their telephone answered by the central voice mail system like everyone else.
The TTY character error rate would ideally be no greater than that experienced by non-TTY users. The benchmark used for wireless TTY compatibility is an average error rate no higher than 1%.
When a TTY accessible answering machine is used, instead of TTY accessible voice mail, only answering machines with high enough fidelity to accurately record and play back TTY tones should be used (i.e., many of the modern digital recorders would not work). It is important that the machines also not mistake TTY tones for dial or other system tones and cut off recording of the TTY signals. Designers should be clear that the availability of a TTY answering machine (assistive technology) is not considered a method of making a voice mail, auto attendant or interactive voice response system TTY-accessible.
It would be helpful if voice mail, auto attendant, and interactive voice response systems would either accept TTY Baudot tones or make it clear that the numbers that should be pressed are the ones on the telephone keypad (especially when they are talking to the user using Baudot).
Read the IVR Accessibility Forum Disability Implications Matrix, which provides the industry with information about the barriers and advantages of IVR Systems for people with disabilities. See: http://www.atis.org/atis/ivr/ivrhom.htm. The information is presented in three ways. The application view is by product or industry, the interface view shows each step required by a user, and the disability view shows interface implications for specific disability categories. All views include links to definitions in the IVR Forum’s Accessibility Glossary. Note that some recommendations listed go beyond what the 508 Standard requires.
When a response time is used, the user should be alerted, as the end of the time interval is approaching, and be allowed to indicate that additional time is required.
Minimize the use of timed responses.
A minimum of 5 seconds could be given to the user to indicate that additional time is needed.
Some people with partial hearing loss only recognize some of the words in a message and may require that the message be repeated, repeated more loudly, or may simply require more time to comprehend what is being said. Providing a way for users to repeat or slow down the message would be helpful.
Note that although not required under this provision, time-out warnings could be sent in the same sensory mode as the mode in which the conversation is transmitted. In fact, multiple sensory methods can be used to alert users that the end of a response period is approaching. For example, an audible alert alone may not inform a user with a hearing disability that a time-out is about to occur, but a visual alert (on a display) could accompany the audible alert on a closed system. If required for operation, such measures would be required under 1194.3 functional performance criteria.
Products and/or services that deliver, support, or provide special information functions, such as Caller ID, in a visual mode should make the information available in at least one non-visual mode or make it available to assistive technology that will be present and that can display it in a non-visual mode.
Telecommunications function information, such as Caller ID, available to other users of the same system should be provided to TTY users of that system as well.
Most commonly, the non-visual format for presenting telecommunications information is audio.
Presenting telecommunications information through the integration of telecommunications equipment and information technology is one way of meeting this provision because it enables a user to attach assistive technology to access the telecommunications information. Currently, this method is only available on landline telephones.
When telecommunications function information is time sensitive, such as with a caller identification function, it could be made immediately available to the user without requiring user action to access. As an example, the user would be able to have the callers’ identity announced immediately, if it is immediately displayed for other users. This feature should be user selectable.
The acoustic output should be controllable by the user.
For incremental volume control, at least one intermediate step of 12 dB of gain should be provided.
The maximum volume setting should reach at least 20 dB above the default volume setting.
Recommended Practices The intention of this requirement is that a usable signal be available at the maximum volume setting. Commonly accepted frequency responses and distortion/clipping levels could be accomplished within acceptable range at maximum volume setting.
508 Provision §1194.23(g)If the telecommunications product allows a user to adjust the receive volume, a function shall be provided to automatically reset the volume to the default level after every use.
(1) The volume reset override switch shall be labeled as such and located on the telephone in such a way as to not be accessible to accidental engagement; (2) A bright indicator light shall be prominently displayed on the front of the telephone and shall light up when the override is engaged and the telephone is placed in an off-hook condition; (3) Next to the light shall be a warning that the amplification is at a high level; (4) A caution on the use of the volume reset override switch shall be included in the users’ manual; and (5) The telephone shall include a warning printed in Braille that can be securely attached to the back of the handset, or, if the telephone has only a headset, above the dial buttons, to indicate that a high volume setting may be engaged.
A function may be provided that allows a user to override the automatic reset.
Phones that permit and override of automatic volume reset should comply with the terms in the FCC Report and Order discussed above.
The default level could be set anywhere by manufacturer or users within the acceptable ranges described in the appropriate standards.
A visual indicator of volume setting that can be read prior to picking up the handset can be provided. This is especially important in telephones that use the push of a button to increase volume via software internal to the telephone. This display design contrasts with telephones, which use dials, slides or other mechanical volume controls that can be easily viewed.
The signal provided could be within the useful range prescribed by the applicable industry standards in order to assure good reception with the wide variety of hearing aids.
Wireline telephones could comply with the requirements of FCC Part 68.316 (EIA RS-504).
Reduce interference to hearing technologies to the lowes Arial">t possible level that allows a user of hearing technologies to utilize telecommunications products, while at the same time maintaining desired performance of those telecommunications products.
Consider applying methodologies outlined in ANSI C63.19 to inform the product design process. ANSI C63.19-2001 may be used to help attain the lowest level of RF emissions from digital wireless/cellular telecommunications handsets. The Alliance for Telecommunications Industry Solutions (www.atis.org) is currently (2003) determining whether revisions to the standard will be recommended to the standards body.
Apply information learned from the ICDR Summit on interference (discussed above).
Positioning the antenna away from the ear area.
Modifying the antenna to reduce RF currents in the area near the user’s ear.
Using a clamshell design that moves the antenna away and partially shields it.
Providing the user with ability to turn off backlighting.
Inserting shielding in the wireless/cellular digital telephone.
Replacing an omni-directional antenna with a directional antenna.
Study the effects of cordless (landline) telephone products on hearing technologies and ameliorate interference. Digital cordless phones have been reported to interfere with some hearing aids. Specifically, vendors could test products and report on the extent to which they result in interference to hearing technologies when the cochlear implant or hearing aid is in microphone mode, and when it is in telecoil mode.
Products that transmit or conduct information or communication, should pass through cross-manufacturer, non-proprietary, industry-standard codes, translation protocols, formats or other information necessary to provide the information or communication in a usable format.
Technologies which use encoding, signal compression, format transformation, or similar techniques should not remove information needed for access or should restore it upon delivery.
Recommended Practices Federal procurement officials need to understand that each product in the transmission path must be examined for compliance with this provision. The overall telecommunications system (both services and hardware) must be selected to ensure that valid signals will not be corrupted along the way to the user.
(1) Controls and keys shall be tactilely discernible without activating the controls or keys. (2) Controls and keys shall be operable with one hand and shall not require tight grasping, pinching, or twisting of the wrist. The force required to activate controls and keys shall be 5 lbs. (22.2 N) maximum. (3) If key repeat is supported, the delay before repeat shall be adjustable to at least 2 seconds. Key repeat rate shall be adjustable to 2 seconds per character. (4) The status of all locking or toggle controls or keys shall be visually discernible, and discernible either through touch or sound.
Consider placing tactile marks on top of the keys, not beside them, and raising the marks a minimum of 0.5 mm.
On telephone keypads, the “5” key could have a tactile marker, such as a “nib” or “bar”, on the top surface of it.
On QWERTY keyboards, the “F” and “J” keys could have a raised bar on them.
Recessed keys or keys with concave tops can be an aid to users operating them with a mouth stick or head stick. Raised keys aid users with visual disabilities to locate keys.
To help people with fine motor control problems, a key guard or overlay option could be provided when practical.
Making other important keys tactilely distinct (shape, size, spacing, tactile markings) can make them easier to remember and find.
Controls and keys should be operable with one hand.
Controls and keys should not require tight grasping.
Controls and keys should not require tight pinching.
Controls and keys should not require tight twisting of the wrist.
The force required to activate controls and keys should be 5 lbs. (22.2 N) maximum.
Just as simultaneous two-handed operation is prohibited, multiple fingers, and simultaneous operations of all types should be avoided and are prohibited by 1194.31e which prohibits simultaneous actions and applies to all products.
Using controls and latches which require light pressure to operate, such as push buttons, up/down control buttons, instead of side to side control buttons, concave rocker switches, or sliding controls would make it easier for users with different types of physical disabilities.
It is recommended to avoid using controls that must be held down for a period of time if the period exceeds 5 seconds and there is no other way to achieve the function.
It is recommended that an option be provided to disable the key repeat function.
It is recommended that an option be provided to set a key acceptance rate (how long the key must be depressed before being recognized).
It is recommended that if the intention of repeating a key is to reach a target goal, then an alternate way of entering that target be provided. For example, if a person were to increase volume from 1 to 20 by depressing a key 20 times, it would be easier to simply (or alternatively) press the numbers 2 and 0 to enter 20.
Using two different types of feedback, such as a combination of tactile, audible, and visual feedback helps make products easier for people with sensory disabilities to use.
When using audio feedback, consider associating intuitively meaningful sounds with actions. For example, try using increasingly high-pitched sounds with increasing amplitude. Use cascading sounds with rotary or slide controls with the pitch associated with the change in control.
Audio indication of a toggle status, instead of being a continuous signal, could be sufficiently long to alert the user to the position of the toggle switch.
 36 CFR 1194, Electronic and Information Technology Accessibility Standards, Architectural and Transportation Barriers Compliance Board, Published in the Federal Register on December 21, 2000.
 Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., (ADA).
 The 508 provisions, §1194.22(p) and §1194.25(b), are identical or have substantial overlap with this provision. The guidance provided for those sections may provide additional insight on this requirement.
The provisions contained in §1194.25(c), §1194.26(a) and §1194.26(b) are identical or have substantial overlap with this provision. The guidance provide for those sections may provide additional insight on this requirement. The provisions contained in §1194.25(c), §1194.26(a) and §1194.26(b) are identical or have substantial overlap with this provision. The guidance provide for those sections may provide additional insight on this requirement.


§119.5 Certifications, authorizations, and prohibitions.
§119.9 Use of business names.
§119.21 Commercial operators engaged in intrastate common carriage and direct air carriers.
§119.23 Operators engaged in passenger-carrying operations, cargo operations, or both with airplanes when common carriage is not involved.
§119.25 Rotorcraft operations: Direct air carriers and commercial operators.
§119.35 Certificate application requirements for all operators.
§119.36 Additional certificate application requirements for commercial operators.
§119.37 Contents of an Air Carrier Certificate or Operating Certificate.
§119.39 Issuing or denying a certificate.
§119.43 Certificate holder's duty to maintain operations specifications.
§119.47 Maintaining a principal base of operations, main operations base, and main maintenance base; change of address.
§119.49 Contents of operations specifications.
§119.53 Wet leasing of aircraft and other arrangements for transportation by air.
§119.55 Obtaining deviation authority to perform operations under a U.S. military contract.
§119.57 Obtaining deviation authority to perform an emergency operation.
§119.59 Conducting tests and inspections.
§119.61 Duration and surrender of certificate and operations specifications.
§119.65 Management personnel required for operations conducted under part 121 of this chapter.
§119.67 Management personnel: Qualifications for operations conducted under part 121 of this chapter.
§119.69 Management personnel required for operations conducted under part 135 of this chapter.
§119.71 Management personnel: Qualifications for operations conducted under part 135 of this chapter.
§119.73 Employment of former FAA employees.
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The question of stateless individuals who have claimed refugee status in Canada has been subject to a vigorous legal debate in Canada over the past number of years both at the Immigration and Refugee Board and also at the Federal Court. Generally speaking the International Community has had difficulty dealing with stateless individuals in a world governed by nation states and strict rules governing citizenship.
It is interesting to note that Palestinians, the largest group of stateless individuals, were originally excluded from the 1951 Geneva Convention. To quote Article 1(D) Exclusion Clause of the 1951 Convention dealing with "Persons already receiving United Nations protection or assistance."
1(D) This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commission for Refugees protection or assistance.
The definition of "Convention refugee" is contained in subsection 2(1) of the Immigration Act.
It will be noted that not all stateless persons are refugees. They must be outside the country of their former habitual residence for the reasons indicated in the definition. Where these reasons do not exist, the stateless person is not a refugee.
It would seem to be best in keeping with the intention of the drafters if in the greatest possible number of cases application of the term "country of former habitual residence" would lead to the same practical result as application of the term "country of nationality"
The Supreme Court in Ward found that it was necessary to find a fear of persecution against all countries of nationality. This principle does not, however, apply to stateless individuals in that a fear of persecution should not be required to be proved with respect to all countries of former habitual residence only for countries where the claimant has a legal right to return and has a meaningful right of protection. The key consideration is that there is legal right of return and that protection is available.
To quote Mr Justice Cullen in Maarouf "the claimant does not have to be legally able to return to a country of former habitual residence as denial of a right of return may in itself constitute an act of persecution by the state."  Accordingly the right of return was not determinative in granting refugee status.
After the Federal Court overruled Hathaway's interpretation on the requirement of returnability some members of the IRB interpreted Maarouf in a manner, which I believe, was not intended by the Federal Court. As a result, yet another, a legal dispute arose with respect to CFHR that was not explicitly dealt with in Maarouf. In particular the question was where there are more that one country of former habitual residence what CFHR was the reference country for the fear of persecution in order to determine eligibility for protection under the Geneva Convention.
This type of legal analysis where stateless individuals must prove a fear of persecution against all CFHR's was fundamentally flawed and created a legal absurdity in that it could create the legal result of returning a stateless refugee who could not prove a claim against one country of CFHR to a country where they could be returned and where they faced a genuine risk of persecution.
Thabet at the Trial Division this claimant could not qualify as a Convention refugee. To quote the CRDD Reasons for Decision.
A Consent Order and Direction issued by the Federal Court of Canada (Trial Division) is not considered a binding precedent on Immigration and Refugee Board or on other Judges at the Federal Court of Canada who have co-equal jurisdiction. A Consent Order even with Direction, and therefore, has no value as a precedent.  The Department of Justice, however, seemed to recognize that the law in Thabet was flawed and in a least three Orders from the Federal Court recognized that there was a problem with the legal reasoning in Thabet and that a refugee claim for a stateless individual should be accessed against one country of former habitual residence and not just the last CFHR.
The effect of the Thabet decision at the Federal Court Trial Division is precisely what the Convention seeks to avoid. As we saw in Kablawi where the claim failed against the last country of former habitual residence and since there was no consideration given to a second country of possible persecution. The claimant in that case was returnable to the second CFHR where he alleged a genuine fear of persecution the law as interpreted in the first Federal Court decision in Thabet placed Canada in violation of the prohibition on refoulement as set out in the Article 33 of the Geneva Convention where it is illegally to return a refugee to a country where they face persecution. This principle is adopted into law in Canada as part of our legal obligations under the 1951 Geneva Convention on Refugees.
It is the issue of protection that is the key consideration. Where there is nationality or defacto nationality and a legal right of return, protection is available and there is no requirement to provide international protection. Where there is a right of return, the claimant must exercise that right since as Ward states international protection is a surrogate where an individual "is unable" or "unwilling" to return to a country and the basis for this inability is a fear of persecution based on one of the five grounds set out in the Convention. Then and only then would a refugee be entitled to protection as a Convention refugee.
A parallel can be made to the applicability of the 1(E) Exclusion clause where a refugee claimant who has nationality or defacto nationality and cannot demonstrate a well-founded fear of persecution against the country of nationality or defacto nationality is then excluded under the Geneva Convention.
If a refugee claimant proves that there is a genuine fear of persecution under the terms of the Convention with respect to one country of former habitual residence then they should qualify for protection as a Convention refugee. Where there is no right of return there is no effective protection. The lack of protection is the "raison d'etre" behind the Convention and where a stateless individual cannot return and where there is a genuine fear of persecution under one of the grounds enumerated in the Convention then international law steps in and the refugee qualifies for protection as a Convention Refugee. Logic dictates that if grounds exist for a genuine fear of persecution for one CFHR then the Convention applies and there is no basis in law to exclude an individual who is stateless and has a genuine fear of persecution from one (or more) CFHRs if they have no right of return and no effective protection if they fail to prove a claim against all countries of former habitual residence.
It will suffice to show that one state is guilty of persecution, but that both states are unable to protect the claimant. Likewise, where a claimant has been resident in more than one country it is not necessary to prove that there was persecution at the hands of all those countries. But it is necessary to demonstrate that one country was guilty of persecution, and that the claimant is unable or unwilling to return to any of the states where he or she formerly habitually resided. While it may appear burdensome to impose this duty upon all stateless claimants, we must, in the light of Ward, properly take into account the situations where claimants have other possible safe havens.
For a claim to succeed a stateless individual should need only prove a claim against one country of former habitual residence and other countries of habitual residence are irrelevant to the refugee claim if there is no legal right to return to the country of habitual residence and if alternate protection is absent.
The Federal Court of Appeal finally resolved the legal debate over protecting stateless persons under the Convention on refugees and the CFHR issue. The Thabet decision is a sound one and provides a mechanism to protect stateless persons who have a genuine fear of persecution and who have no alternate place of safety. This approach is in keeping with the Supreme Court ruling in Ward and gives stateless individuals who can prove a genuine fear of persecution the protection they seek and maintains Canada's obligations under International law and our humanitarian tradition of offering refuge to those who need protection.
 "Stateless Persons and Their Lack of Access to Judicial Forums," Brooklyn Journal of International Law (Vol. X1:2 1985) pp.439-457 at 439.
 P. Weis, Nationality and Statelessness in International Law 161, (1979) p. 162, cited in Ibid p. 439.
 UNHCR HANDBOOK, para 141, p. 33.
 UNHCR HANDBOOK, para 142, pp. 33-34.
 James C. Hathaway, The Law of Refugee Status, (Toronto: Butterworths, 1991), pp. 205-209.
 UNHCR Handbook, para 143, p.34.
 Ward v. Attorney General of Canada, (Supreme Court of Canada), (June 30, 1993), 20 Imm. L.R. (2d) pp. 105-108.
Grahl-Madsen, The Status of Refugees in International Law (Vol.1, the Netherlands: A. W. Sijthoff-Leyden, 1966), at 162.
 Ward v. Attorney General of Canada (Supreme Court of Canada), (June 30, 1993), 20 Imm. L.R. (2d) at 105.
 Maarouf v. Canada 23 Imm. L.R. 163.
James Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991) at 61-63.
Guy Goodwin-Gill, "Stateless Persons and Protection under the 1951 Convention or Refugees, Beware of Academic Error!" (Unpublished Paper) Director, Legal Services, "Treatment of Stateless Refugee Claimants at CRDD," March 11, 1992.
 Maarouf v. M.E.I. 23 Imm. L.R. (2d) 163 at pp. 174-175.
 Maarouf v. M.E.I. 23 Imm. L.R. (2d) 163 at pp. 172.
 Abdel-Khalik v. Minister of Employment and Immigration 23 Imm. L.R. (2d) 262 at para. 3.
Also see Shaat v. Canada (Minister of Employment and Immigration)  F.C.J. No. 1149 (Action No. A‑539‑92 F.C.T.D.) August 4, 1994; See also Zdanov v. Canada (M.E.I) Action No. IMM-643-93 (F.C.T.D.) July 18, 1994; Ibrahim v. Canada (Secretary of State)  F.C.J. No. 1056, (Action No. Imm-4190-93 F.C.T.D.) July 8, 1994.
 Maarouf v. M.E.I. 23 Imm. L.R. (2d) 163 at p. 175.
 UNHCR Handbook on Refugees, para 104, p. 24.
 UNHCR HANDBOOK, paragraphs 104 and 105, p.24.
 Maarouf v. The Minister of Employment and Immigration 23 Imm. L.R. (2d) at 163.
 Thabet v. Canada (Minister of Citizenship and Immigration), (1995), 105 F.T.R. 49.
 CRDD Decision T94-02330 at 8-9.
 Ramadan v. Minister of Employment and Immigration, November 7, 1994 (IMM-3089-93).
 Kablawi v. Minister of Citizenship and Immigration (June 10, 1997), IMM-2371-96.
 Sayed v. Minister of Citizenship and Immigration (May 15, 1995) IMM-3398-94.
 Convention Relating to the Status of Stateless Persons (28 September 1954).
 Convention on the Reduction of Statelessness, UNHCR, New York, August 30, 1961.
Article I(E) of the 1951 Convention, Schedule 2(1) of Immigration Act.
 Thabet v. Canada (Minister of Citizenship and Immigration) 105 FTR 49 at 58 (TD).
 Thabel v. Canada (Minister of Citizenship and Immigration) 48 Imm. L.R.(2d) at 36.

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