The subject developed in my thesis relates to the "Exclusions from prohibition of quantitative restrictions". The origin of these exclusions can be found in the internal market law and more precisely in the free movement of goods. The free movement of goods is one of the four fundamental freedoms on which is based the internal market of the European Union. The free movement of goods is ensured by removing fiscal and non-fiscal barriers that hinder trade between Member States and which are prohibited between Member States. The fiscal barriers involve the prohibition between Member States of customs duties, all charges having equivalent effect and other fiscal barriers such as internal taxations. The non fiscal barriers involve direct quantitative restrictions which are quotas and bans, as well as measures having equivalent effect to quantitative restrictions (MEE). These non fiscal barriers are prohibited but they can be justified in some cases. Direct quantitative restrictions almost disappeared while measures having equivalent effect to quantitative restrictions may exist in various forms and variations. Measures having equivalent effect on imports are prohibited by the article 34 of the Treaty on the Functioning of the EU. Moreover, measures having equivalent effect on exports are prohibited by...

Thèse en cotutelle : Université Laval, Québec, Canada et Université Toulouse 1 Capitole Toulouse, France / En plus des impératifs de l'ordre public et la morale, la technique et le fonctionnement de l'assurance ne permettent pas de garantir tous les risques susceptibles d'être présentés à l'assureur. En tant que technique de gestion des risques par mutualisation, il ne peut y avoir d'assurance sans exclusion de garantie et ce, aussi bien en droit français qu'en droit québécois. La fonction de cette exclusion de garantie est de fixer les limites de l'assurabilité du risque à travers les exclusions légales et délimiter l'étendue de la garantie à travers les exclusions conventionnelles. C'est pourquoi tout contrat d'assurance comporte nécessairement des clauses d'exclusion conventionnelle de garantie qui viennent s'ajouter aux exclusions prévues par la loi. Mais malgré sa nécessité pour la technique et bon fonctionnement de l'assurance, la notion d'exclusion n'est pas définie par les législateurs français et québécois. Ce qui dans la pratique, rend difficile la distinction entre exclusion de garantie et les notions voisines comme la condition de garantie et la clause définissant le risque couvert. En outre, malgré le fait que le régime juridique de l'exclusion de garantie résulte principalement de la loi, son caractère contraignant et son application généralisée fait qu'il se retrouve à son tour au cœur des débats sur la qualification d'exclusion de garantie. C'est à la lumière de ce constat et à contre-courant d'un mouvement général de confusion et d'incompréhension, qu'a été réalisée cette thèse. La première partie consacrée à la détermination de la raison d'être de l'exclusion de garantie, a permis de démontrer qu'elle est à la fois un effet de la technique d'assurance et une nécessité pour son bon fonctionnement. Quant à la seconde partie qui est consacrée aux difficultés et perspectives de solutions de l'exclusion de garantie, elle a permis de mettre en lumière ses lacunes pour lesquelles des solutions ont été envisagées. / In addition to the requirements of public order and morality, the technique and operation of insurance do not cover all the risks that may be presented to the insurer. As a technique of risk management by mutualisation, there can be no insurance without exclusion of guarantee, both in French law and in Quebec law. The function of this exclusion of cover is to set the limits of the insurability of the risk through the legal exclusions and to delimit the scope of the cover through the conventional exclusions. This is why any insurance contract necessarily includes contractual exclusion clauses in addition to the exclusions provided for by law. However, despite its need for the technical and proper functioning of insurance, French and Quebec legislators do not define the notion of exclusion. In practice, this makes it difficult to distinguish between exclusion of guarantee and related concepts such as the guarantee condition and the clause defining the risk covered. In addition, despite the fact that the legal regime governing the exclusion of warranty results mainly from the law, its binding nature and its generalized application means that it in turn finds itself at the heart of the debates on the qualification of exclusion of warranty. It is in the light of this observation and against a general trend of confusion and misunderstanding that this thesis was carried out. The first part devoted to determining the reason for the exclusion of warranty, demonstrated that it is both an effect of the insurance technique and a necessity for its proper functioning. As for the second part, which is devoted to the difficulties and prospects for solutions to the exclusion of warranty, it has made it possible to highlight its shortcomings for which solutions have been considered.

<p>Patent law has during time evolved from industrial inventions to also include intellectual inventions. Patentability has as well changed with time. For technology to be patentable it must be considered to be a technical solution to a problem, and today genetic inventions are considered to be such a technical solution. From the beginning plants and animals were not considered as inventions; however, technology progress urged modifications of existing legislation to meet development progress within technology. European as well as international harmonization have been carried out in this field to ensure uniformity.</p><p>The exclusion from patentability for plant and animal varieties can be found in several sources of law; this study focuses on the exclusions in Article 4 of Directive 98/44/EC on the legal protection of biotechnological inventions, as well as in Article 53b of the European Patent Convention. After two specific cases from the European Patent Office the scope of the exclusion from patentability for plant and animal varieties was questioned. The two cases ONCO-mouse and Plant Genetic Systems had different outcomes, patent was granted in one case and not in the other; and that raised confusion as to the definition of plant and animal varieties, as both cases concerned genetic modification.</p><p>Although there is no clear definition of plant and animal varieties, case law provides guidance to a certain extent, the reasoning in the case law also gives guidance as to where the judiciary is heading in its interpretation. There is more legislation concerning plant varieties, and the definition of this term might be considered to be clearer. The general opinion seems to be that what is said about plant varieties should be applied mutatis mutandis to animal varieties, and vice versa, however this may be questionable in some cases. The lack of a clear definition of the terms plant and animal varieties might result in a lack of legal certainty in this field, as demonstrated by the questioning of the two contradicting cases mentioned above.</p><p>Rapid developments in the field of biotechnology imply that the patentability of plants and animals will be assessed on other grounds in the future. As biotechnology is an expanding area, the acceptance of new controversial inventions may occur on a more regular basis. Time will tell if this is the case.</p>

Patent law has during time evolved from industrial inventions to also include intellectual inventions. Patentability has as well changed with time. For technology to be patentable it must be considered to be a technical solution to a problem, and today genetic inventions are considered to be such a technical solution. From the beginning plants and animals were not considered as inventions; however, technology progress urged modifications of existing legislation to meet development progress within technology. European as well as international harmonization have been carried out in this field to ensure uniformity. The exclusion from patentability for plant and animal varieties can be found in several sources of law; this study focuses on the exclusions in Article 4 of Directive 98/44/EC on the legal protection of biotechnological inventions, as well as in Article 53b of the European Patent Convention. After two specific cases from the European Patent Office the scope of the exclusion from patentability for plant and animal varieties was questioned. The two cases ONCO-mouse and Plant Genetic Systems had different outcomes, patent was granted in one case and not in the other; and that raised confusion as to the definition of plant and animal varieties, as both cases concerned genetic modification. Although there is no clear definition of plant and animal varieties, case law provides guidance to a certain extent, the reasoning in the case law also gives guidance as to where the judiciary is heading in its interpretation. There is more legislation concerning plant varieties, and the definition of this term might be considered to be clearer. The general opinion seems to be that what is said about plant varieties should be applied mutatis mutandis to animal varieties, and vice versa, however this may be questionable in some cases. The lack of a clear definition of the terms plant and animal varieties might result in a lack of legal certainty in this field, as demonstrated by the questioning of the two contradicting cases mentioned above. Rapid developments in the field of biotechnology imply that the patentability of plants and animals will be assessed on other grounds in the future. As biotechnology is an expanding area, the acceptance of new controversial inventions may occur on a more regular basis. Time will tell if this is the case.

Study One: Study one aimed to understand the perceptions and attributions of LAC fixed term excluded (FTE) from school on multiple occasions. This was carried out with reference to resilience, and an understanding of the possible protective and risk factors were also sought. Concepts of resilience (Prince-Embury, 2008; Gilligan, 2009) and attribution theory (Heider, 1958) provided a broad theoretical framework for the research. Methods: The study followed a mixed method design (carried out simultaneously). One aspect involved semi-structured interviews being undertaken using interpretive phenomenological analysis (IPA) (Smith & Osborn, 2007; 2008) in attempting to generate understanding of the thoughts and feelings of LAC going through the process of being FTE. The second aspect involved the resilience of the LAC being psychometrically measured using the Resilience Scales for Children and Adolescents (RSCA) as a way of validating and contextualising data deriving from the interviews. Results: Teachers acting as confidants and providing emotional containment appeared to significantly enhance resilience. Opportunities for dialogue and a focus on aspects to be developed in a supportive and positive manner was also important. The majority of the LAC had an external locus of control, appearing to serve them adaptively, allowing them to alleviate negative emotions relating to their behaviour. FTEs generally were causally attributed as stable and global, appearing to derive from entrenched thoughts, feelings and behaviours. The process of FTE appeared to compromise aspects of resilience as well as little positive effect being found in terms of learning and development. Study Two: Study two aimed to understand how teachers perceived the LAC participating in study one, and providing comparison with perceptions of the LAC of aspects such as FTEs. The study also sought to provide an understanding as to the causal attributions made by teachers related to LAC. Specifically, how these attributions affected their thoughts, feelings (Weiner, 1985) and practice relating to LAC. Methods: The study followed a mixed method design (carried out sequentially). A survey (SDQ) was used to provide the sample of teachers. Semi-structured interviews were carried out with eight teachers, using IPA as the method of analysis. The Modified Attribution Questionnaire with integrated vignettes was also undertaken by teachers to elicit more stable attributions relating to LAC. Results: Data deriving from interviews found support for Weiner’s (1985) cognitive-emotional-action model. Attributions of high controllability and locus increased teachers’ feelings of anger and frustration relating to the causes of the LAC’s behaviour. Empathy towards the LAC was affected by; collaboration with colleagues and professionals, understanding the needs of the child, ethos of the school, a child centred approach and the LAC’s behaviour deriving from their care background. Further key findings are discussed from a theoretical perspective with implications for practice proposed.

Na atual economia de mercado, mostra-se cada vez mais relevante a estruturação equilibrada do sistema de patentes, em razão das controvérsias geradas em torno do pêndulo: estímulo à inovação e desenvolvimento técnico-científico de um lado, e ônus sociais, de outro. Isso porque, o direito de exclusividade sobre a invenção - que envolve o desenvolvimento técnico com base em conhecimentos pré-existentes - gera custos sociais, uma vez que a sociedade, como um todo, fica impedida de usufruir dos avanços tecnológicos durante um período de tempo (prazo da patente), bem como fica submetida aos preços e à forma de exploração econômica ditada pelo titular. O sistema de patentes precisa ser minuciosamente equacionado de maneira a lidar com os benefícios do titular da patente e da sociedade. Nesse contexto, surge a importância de dois institutos jurídicos: a exclusão ao patenteamento (ou proibição do patenteamento de determinadas matérias) e a exceção ao exercício do direito de exclusividade do titular da patente (ou limitação do direito de patente). O presente estudo tem por objetivo analisar, no Direito Comparado (tratados internacionais, tratados regionais e legislações estrangeiras), os institutos das exclusões e das exceções ao direito de patente diante, principalmente, dos novos desenvolvimentos em áreas como engenharia genética, biologia molecular e informática, a fim de verificar se há uma harmonização internacional; se há diferença em posições adotadas de acordo com o nível de desenvolvimento do país; e a regulamentação dessas hipóteses no Brasil. Ao final, pôde-se verificar, com base na análise de Direito Comparado, como os países estrangeiros lidam com as novas invenções, as diferentes posições adotadas na legislação ou na contrução jurisprudencial, o que torna qualquer intenção de harmonização um caminho ainda longe de ser alcançado; e o posicionamento adotado no Brasil e eventual proposta de interpretação. / The market economy today has evidenced the increasing importance of a structured and balanced patent system in view of the controversy that has arisen, creating a pendulum that swings between the stimulus for technological-scientific innovation and development on the one end, and the resulting social burden on the other. This is because the right to exclusivity of an invention which involves technological development based on preexisting knowledge - generates social costs since the society at large is impeded from enjoying technological advances during a certain period of time (the patent term), and moreover is submitted to prices and methods of economic exploitation determined by the patent holder. The patent system must be thoroughly restructured to deal with the patent holders benefits versus the demands of society. Within this context, the importance of two legal principles emerges: patenting exclusions (or prohibited patenting of certain items) and exceptions and limitations on the exercise of the right to exclusivity granted the patent holder (or limitation of the patent right). The purpose of this study is to analyze from the standpoint of Comparative Law (international treaties, regional treaties and foreign legislation) the principles of exclusions and exceptions and limitations on patent rights, mainly considering the new developments in areas such as genetic engineering, molecular biology and information technology to confirm whether there is international harmonization; whether there is a difference in the stands adopted according to the level of development in the country and regulation of these events in Brazil. Finally, based on Comparative Law it can be seen how foreign counties deal with new inventions, the different stands adopted in their laws or in construction of case law, all of which make any intention for attaining harmonization a long path to be tread; and to conclude the stand adopted in Brazil with proposals for interpretation.

Na atual economia de mercado, mostra-se cada vez mais relevante a estruturação equilibrada do sistema de patentes, em razão das controvérsias geradas em torno do pêndulo: estímulo à inovação e desenvolvimento técnico-científico de um lado, e ônus sociais, de outro. Isso porque, o direito de exclusividade sobre a invenção - que envolve o desenvolvimento técnico com base em conhecimentos pré-existentes - gera custos sociais, uma vez que a sociedade, como um todo, fica impedida de usufruir dos avanços tecnológicos durante um período de tempo (prazo da patente), bem como fica submetida aos preços e à forma de exploração econômica ditada pelo titular. O sistema de patentes precisa ser minuciosamente equacionado de maneira a lidar com os benefícios do titular da patente e da sociedade. Nesse contexto, surge a importância de dois institutos jurídicos: a exclusão ao patenteamento (ou proibição do patenteamento de determinadas matérias) e a exceção ao exercício do direito de exclusividade do titular da patente (ou limitação do direito de patente). O presente estudo tem por objetivo analisar, no Direito Comparado (tratados internacionais, tratados regionais e legislações estrangeiras), os institutos das exclusões e das exceções ao direito de patente diante, principalmente, dos novos desenvolvimentos em áreas como engenharia genética, biologia molecular e informática, a fim de verificar se há uma harmonização internacional; se há diferença em posições adotadas de acordo com o nível de desenvolvimento do país; e a regulamentação dessas hipóteses no Brasil. Ao final, pôde-se verificar, com base na análise de Direito Comparado, como os países estrangeiros lidam com as novas invenções, as diferentes posições adotadas na legislação ou na contrução jurisprudencial, o que torna qualquer intenção de harmonização um caminho ainda longe de ser alcançado; e o posicionamento adotado no Brasil e eventual proposta de interpretação. / The market economy today has evidenced the increasing importance of a structured and balanced patent system in view of the controversy that has arisen, creating a pendulum that swings between the stimulus for technological-scientific innovation and development on the one end, and the resulting social burden on the other. This is because the right to exclusivity of an invention which involves technological development based on preexisting knowledge - generates social costs since the society at large is impeded from enjoying technological advances during a certain period of time (the patent term), and moreover is submitted to prices and methods of economic exploitation determined by the patent holder. The patent system must be thoroughly restructured to deal with the patent holders benefits versus the demands of society. Within this context, the importance of two legal principles emerges: patenting exclusions (or prohibited patenting of certain items) and exceptions and limitations on the exercise of the right to exclusivity granted the patent holder (or limitation of the patent right). The purpose of this study is to analyze from the standpoint of Comparative Law (international treaties, regional treaties and foreign legislation) the principles of exclusions and exceptions and limitations on patent rights, mainly considering the new developments in areas such as genetic engineering, molecular biology and information technology to confirm whether there is international harmonization; whether there is a difference in the stands adopted according to the level of development in the country and regulation of these events in Brazil. Finally, based on Comparative Law it can be seen how foreign counties deal with new inventions, the different stands adopted in their laws or in construction of case law, all of which make any intention for attaining harmonization a long path to be tread; and to conclude the stand adopted in Brazil with proposals for interpretation.

The accumulated importance of the patent law morality exclusion over the recent decades has been prompted by the increased protection sought for biotechnological inventions. This raises specific ethical concerns such as the respect for human dignity. The morality exclusion is regarded as an indispensable safeguard in the patent system of the 21st century, but its application and scope remains unclear, not least due to a division of competence between the European Union (EU), the European Patent Organisation and national Member States. In addition, the international Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) under the auspices of the World Trade Organization (WTO) sets minimum standards for the operation of the morality exclusion. In this study the scope, interpretation and application of the morality exclusion in European and international patent law is described and analysed by applying the legal dogmatic method. The object of study is the European patent law morality exclusion in terms of Article 53(a) and Rule 28 of the European Patent Convention and Article 6 of Directive 98/44/EC on the legal protection of biotechnological inventions. A connected purpose of this study is to describe, problematize and analyse the compliance by the regional rules (EU, European Patent Organisation) with the international framework provided by Article 27.2 of the TRIPS Agreement. Although this study is not limited to specific technologies, the majority of issues raised are done so in relation to the morality exclusion concerning biotechnological inventions, which is reflected in this work. Furthermore, the theoretical framework is dependent on the functioning of the morality exclusion in the respective systems, both regional (EU, European Patent Organisation) and international (WTO). This approach necessitates a consideration of the characteristics of each legal system. This thesis uncovers the differences in the interpretation of the morality exclusion (both within as well as between the legal systems), which causes legal uncertainty in this particularly complex field where patent law and ethics interact. The effects of such variations on the scope and application of the morality exclusion are clarified and critically reviewed. According to the wording of the morality exclusion, the commercial exploitation of an invention with regard to morality or ordre public is a central prerequisite in the assessment of excluded subject matter. Consequently, the interpretation of this particular requirement is subject to critical review, since its implications are decisive for the scope of application of the morality exclusion. It is furthermore questioned whether the European morality exclusions are TRIPS-compliant, and the possible effects (and available remedies) of non-compliance for the EU legal order are analysed. This in turn involves issues of norm conflicts in international and EU law. The author presents a critical analysis, investigates the interaction between legal systems and suggests clarifications in order to attain the optimal functioning of the morality exclusion.

A growing pressure to fundraise at the school level in Ontario is a direct result of funding cuts by the Ministry of Education. The purpose of this study is to examine and analyze the kinds of different fundraising strategies principals use in select elementary public schools in a southern Ontario large city and to determine the positive and negative results of fundraising. Principals of eight elementary schools were interviewed from high and low fundraising schools. Five included school observation tours. The findings show a positive correlation between student achievement and fundraised amounts and utilization, but that the benefits of fundraising only apply to a small number of students. The findings also show that an equal educational opportunity is not being provided to all students, and that moral, civic and democratic values are being eroded. This study highlights the need for Ontario’s Ministry of Education to fully fund public education.

A growing pressure to fundraise at the school level in Ontario is a direct result of funding cuts by the Ministry of Education. The purpose of this study is to examine and analyze the kinds of different fundraising strategies principals use in select elementary public schools in a southern Ontario large city and to determine the positive and negative results of fundraising. Principals of eight elementary schools were interviewed from high and low fundraising schools. Five included school observation tours. The findings show a positive correlation between student achievement and fundraised amounts and utilization, but that the benefits of fundraising only apply to a small number of students. The findings also show that an equal educational opportunity is not being provided to all students, and that moral, civic and democratic values are being eroded. This study highlights the need for Ontario’s Ministry of Education to fully fund public education.