Littérature scientifique sur le sujet « Lost profits damages – European Union countries »

One of the main goals of intellectual property rights is to ensure financial protection of intellectual property rights of the rightsholder in case of violation. The article analyses the international experience of damages valuation criteria application for measuring losses through illegal exploitation of intellectual property (patents, trademarks, copyrights, etc.). The ability to make preliminary damage measuring due to the illegal use of intellectual property helps make better litigation choices. It is crucial to understand the basic approaches and damages valuation criteria in determining material loss. On the one hand, it helps the rightsholder make an informed and optimal decision to recover a reasonable amount of compensation in court. On the other hand, understanding the approach to determining damages affects the type and number of witnesses, facts, and experts involved in defending the case. Authors consider approaches and damage criteria for assessing the loss caused to rightsholders on the example of the European Union, the United States, and Colombia. It is shown that the same criteria are used in different countries for damages: lost benefit of the rightsholder; the profit of the offender; lump sum damage and/or hypothetical (“reasonable”) royalties; compensation established by law; coverage of other indirect losses. However, applying these criteria in different countries is different for the reimbursement of different types of intellectual property rights. The international experience analysis of damages valuation criteria application for measuring losses through intellectual property illegal exploitation allows to improve the normative-legal field in Ukraine and create a national methodology of damages measuring caused by illegal exploitation of the intellectual property.

The article considers the problematic issues of civil liability for misuse of a trademark on the Internet, namely: insufficient legal regulation of civil relations in the field of trademark use on the Internet; lack of a clear mechanism for establishing the owner of a website on which a trademark is illegally used; lack of a clear mechanism for determining the amount of non-pecuniary damage caused by the improper use of a trademark on the infringer’s website; lack of a clear mechanism for determining the amount of damages and lost profits for improper use of the trademark on the infringer’s website. It is proposed to solve these problems by making changes and additions to current legislation and the adoption of new regulations, as well as by creating a Unified State Register of website owners, following the example of the WHOIS database. Variants of illegal use of the trademark in the technical part of the website, namely in the meta tags keywords, title, description, are considered. In addition, special attention is paid to the analysis of the provisions of the Association Agreement between Ukraine, on the one hand, and the European Union, the European Atomic Energy Community and their Member States, on the other, which revealed two approaches to calculating the amount of damage determining the amount of damages caused by a civil offense. Also, the analysis of the norms of the Civil Code of Ukraine, the Law of Ukraine “On protection of rights to marks for goods and services”, the Law of Ukraine “On protection of personal data”, which regulate this industry. Also, doctrinal researches of scientists concerning compensation of moral damage and losses, ways of illegal use of a trademark on the Internet are considered. Thus, within the framework of consideration of the specifics of moral damage, the subjective side is analyzed, namely the guilt of the offender. Problematic issues are considered, namely the violation of the violator’s illegal behavior and cases of creating a website on request.

The article examines the theoretical approaches of scientists to the definition of the concept of "commercialization of innovations" by individual scientists and researchers. It has been established that a single approach to the interpretation of the concept of "commercialization of innovations" has not yet been formed in the scientific literature, therefore this problem has not lost its relevance and as of today requires research and generalization. The fact that the commercialization of innovative products is one of the most important stages of innovative activity is emphasized, as due to the competent commercialization the innovations enter the market. It is emphasized that the commercialization of innovations acts as an important "intermediary" between scientific and technical development and the object of purchase and sale and is an effective lever with assistance of which the newly created innovative development brings the profit. Therefore, the commercialization of innovations is a kind of intermediary activity that connects scientific and technical and commercial activities. Despite the fact that the commercialization of innovative products is a complex and time-consuming process, its main advantage is the fact that it brings significant profits to the enterprise and improves its competitive capabilities. On the basis of the analyzed works, the factors that directly affect the commercialization of innovations are identified, namely: factors of direct influence (legislative changes; changes that occurred in the tax or budget systems; the growth of corruption, etc.); mediated factors (aggravation of political or military situations; environmental and natural disasters, etc.). Based on the conducted research, the following was confirmed: the commercialization of innovations is the most important element of the innovation process, as it represents the process of transforming the results of scientific and technical activities into products and their further effective implementation on an industrial scale. It has been established that commercialization takes the form of a kind of intermediary activity that connects scientific, technical and commercial activities and ensures the development of market relations and reflects their state as a catalyst. It was concluded that despite the significant complications of domestic economic development, the commercialization of innovations is able to provide the outlined tasks regarding the course of Ukraine to participate in the highly competitive environment of the European Union and other countries of the world.

Photo by Agni B on Unsplash ABSTRACT The number of scientific articles published per year has been steadily increasing; so have the instances of misconduct in medical research. While increasing scientific knowledge is beneficial, it is imperative that research be authentic and bias-free. This article explores why fraud and other misconduct occur, presents the consequences of the phenomenon, and proposes measures to eliminate unethical practices in medical research. The main reason scientists engage in unethical practices is the pressure to publish which is directly related to their academic advancement and career development. Additional factors include the pressure to get research funds, the pressure from funding sources on researchers to deliver results, how scientific publishing has evolved over the years, and the over-publication of research in general. Fraud in medical research damages trust and reliability in science and potentially harms individuals. INTRODUCTION Since the introduction of Evidence-Based Medicine (EBM) in the early 1990s, scientific articles published per year have increased steadily. No one knows the exact number of scientific articles published per year, but several estimates point to around 2,000,000.[1] EBM aims to integrate the clinical experience and the best available scientific knowledge in managing individual patients.[2] The EBM model is based on the accumulation of as much clinical and research data as possible, which has propelled a significant rise in research. Unfortunately, its incentive structure has also led to a rise in research misconduct. “Fraud in science has a long history.”[3] Cases of misconduct began to surface in the late 1980s and increased during the 1990s. Experts suggest that today fraud is “endemic in many scientific disciplines and in most countries.”[4] In recent reporting, the majority of cases of scientific fraud involved falsification and fabrication of the data, while plagiarism was much less frequent. 8 percent of scientists and 10 percent of medical and life-sciences researchers admitted to falsifying data at least once between 2017 and 2021 in a Dutch study of 6,813 researchers, while more than half engaged in at least one questionable research practice.[5] Questionable research practices include research design flaws or unfairness in decisions surrounding publication or grants.[6] In an older study, closer to 2 percent of those surveyed reported having engaged in falsification or fabrication,[7] while in a more recent survey of 3,000 scientists with NIH grants in the United States, 0.3 percent of the scientists responding admitted fabricating research data and 1.4 percent of them admitted plagiarizing.[8] These numbers are almost certainly not reflective of the true incidence of fraud as many scientists admitted that they engaged in a range of behaviors beyond fabrication, falsification, and plagiarism that undermine the integrity of science, such as changing the results of a study under pressure from a funding source or failing to present data that contradicts one’s previous research. It is also unclear whether surveys are the best method to investigate misconduct because a scientist answering the survey may be unsure of anonymity and may not be truthful. This article explores why misconduct occurs, presents the consequences, and proposes measures to eliminate unethical practices in medical research. In the 1999 Joint Consensus Conference on Misconduct in Biomedical Research, “scientific fraud” was defined as any “behavior by a researcher, intentional or not, that falls short of good ethical and scientific standards.”[9] ANALYSIS l. The Scientific Publishing Landscape There are several reasons scientists may commit misconduct and engage in unethical practices. There is an increasing pressure to publish, which the motto "publish or perish reflects.”[10] The number of scientific papers published by a researcher is directly related to their academic advancement and career development. Similarly, academic institutions rely on scientific publications to gain prestige and access research grants. Pressure to get research grants may create environments that make it challenging to research integrity. Researchers are often tempted to alter their data to fulfill the desired results, separately report the results of one research in multiple end publications, commonly referred to as “salami publication,” or even simultaneously submit their scientific articles to more than one journal. This creates a vicious cycle in which the need for funding leads to scientific misconduct, which in turn secures more research funding. Meanwhile, the pressure from the funding sources cannot be overlooked either. Although researchers must report the role of the funding sources, selection and publication bias often may advantage articles that support the interests of the financial sponsor. Disclosure does not alter the conflict of interest. The growing number of scientific articles published per year has practically overwhelmed the peer-review system. Manuscript submissions are often reviewed superficially or assigned to inexperienced reviewers; therefore, misconduct cases may go unnoticed. The rise of “predatory” journals that charge authors publication fees and do not review work for authenticity and the dissemination of information through preprints has worsened the situation. The way that profits influence scientific publishing has very likely contributed to the phenomenon of misconduct. The publishing industry is a highly profitable business.[11] The increased reliance on funding from sources that expect the research to appear in prestigious, open-access journals often creates conflicts of interest and funding bias. On the other hand, high-impact journals have not given space to navigate through negative results and previous failures. Nonsignificant findings commonly remain unpublished, a phenomenon known as “the file drawer problem.” Scientists often manipulate their data to fit their initial hypothesis or change their hypothesis to fit their results, leading to outcome-reporting bias. ll. Misconduct Concerning the Reporting and Publishing Data The types of misconduct vary and have different implications for the scientist’s career and those relying on the research. For example, plagiarism is generally not punished by law currently unless it violates the original author’s copyright. Nevertheless, publishers who detect plagiarism implement penalties such as rejection of the submitted article and expulsion of the author. While plagiarism can be either accidental or deliberate, in either case, it is a serious violation of academic integrity as it involves passing off someone else’s “work or ideas” as one’s own.[12] Plagiarism can be “verbatim” (copying sentences or paragraphs from previously published work without using quotation marks or referencing the source) or rephrasing someone’s work or ideas without citing them. In “mosaic” plagiarism, the work plagiarized comes from various sources. “Self-plagiarism” is defined as an author’s reproduction of their previous publications or ideas in the same or altered words. According to most scientific journals, all authors of an article in part must have contributed to the conception and design of the study, drafted the article, revised it critically, or approved of its final version.[13] The use of a ghost author (usually a professional writer who is not named an author) is generally not ethical, as it undermines the requirement that the listed authors created the article. Moreover, wasteful publication is another practice that contributes to misconduct. Wasteful publication includes dividing the results of one single study into multiple end publications (“salami slicing”), republishing the same results in one or more articles, or extending a previously published article by adding new data without reaching new conclusions. Wasteful publication not only skews the scientific databases, but also wastes the time of the readers, the editors, and the reviewers. It is considered unethical because it unreasonably increases the authors’ citation records. Authors caught engaging in such behaviors may be banned from submitting articles for years while the submitted article is automatically rejected. Wasteful publication is an example of how the pressure to publish more articles leads to dishonest behavior, making it look like a researcher has conducted more studies and has more experience. Conflicts of interest are not strictly prohibited in medicine but require disclosure. Although disclosure of financial interests is a critical step, it does not guarantee the absence of bias. Researchers with financial ties to a pharmaceutical company funding their research are more likely to report results that favor the sponsor, which eventually undermines the integrity of research.[14] Financial sponsors should not be allowed to influence publication; rather authors need to publish their results based on their own decisions and findings. lll. Misconduct in Carrying Out Scientific Research Studies Common forms of fabrication include concealing negative results, changing the results to fit the initial hypothesis or selective reporting of the outcomes. Falsification is the manipulation of experimental data that leads to inaccurate presentation of the research results. Falsified data includes deliberately manipulating images, omitting, or adding data points, and removing outliers in a dataset for the sake of manipulating the outcome. In contrast to plagiarism, this type of misconduct is very difficult to detect. Scientists who fabricate or falsify their data may be banned from receiving funding grants or terminated from their institutions. Falsification and fabrication are dangerous to the public as they can result in people giving and receiving incorrect medical advice. Relying on falsified data can lead to death or injury or lead patients to take a drug, treatment, or use a medical device that is less effective than perceived. Thus, some members of the scientific community support the criminalization of this type of misconduct.[15] Research involving human participants requires respect for persons, beneficence, justice, voluntary consent, respect for autonomy, and confidentiality. Violating those principles constitutes unethical human experimentation. The Declaration of Helsinki is a statement of ethical principles for biomedical research involving human subjects, including research on identifiable human material and data. Similarly, research in which animals are subjects is also regulated. The first set of limits on the practice of animal experimentation was the Cruelty to Animals Act passed in 1876 by the Parliament of the United Kingdom. Currently, all animal experiments in the EU should be carried out in accordance with the European Directive (2010/63/EU),[16] and in the US, there are many state and federal laws governing research involving animals. The incentives to compromise the ethical responsibilities surrounding human and animal practices may differ from the pressure to publish, yet some are in the same vein. They may generally include taking shortcuts, rushing to get necessary approvals, or using duress to get more research subjects, all actions that reflect a sense of urgency. lV. Consequences of Scientific Misconduct Fraud in medical research damages science by creating data that other researchers will be urged to follow or reproduce that wastes time, effort, and funds. Scientific misconduct undermines the trust among researchers and the public’s trust in science. Meanwhile, fraud in medical trials may lead to the release of ineffective or unsafe drugs or processes that could potentially harm individuals. Most recently, a study conducted by Surgisphere Corporation supported the efficacy of hydroxychloroquine for the treatment of COVID-19 disease.[17] The scientific article that presented the results of the study was retracted shortly after its release due to concerns raised over the validity of the data. Scientific misconduct is associated with reputational and financial costs, including wasted funds for research that is practically useless, costs of an investigation into the fraudulent research, and costs to settle litigation connected with the misconduct. The retraction of scientific articles for misconduct between 1992 and 2002 accounted for $58 million in lost funding by the NIH (which is the primary source of public funds for biomedical research in the US).[18] Of retracted articles, over half are retracted due to “fabrication, falsification, and plagiarism.”[19] Yet it is likely that many articles that contain falsified research are never retracted. A study revealed that of 12,000 journals reviewed, most of the journals had never retracted an article. The same study suggests that some journals have improved oversight, but many do not.[20] V. Oversight and Public Interest Organizations The Committee on Publication Ethics (COPE) was founded in 1997 and established practices and policies for journals and publishers to achieve the highest standards in publication ethics.[21] The Office of Research Integrity (ORI) is an organization created in the US to do the same. In 1996, the International Conference of Harmonization (ICH) adopted the international Good Clinical Practice (GCP) guidelines.[22] Finally, in 2017 the Parliamentary Office of Science and Technology (POST) initiated a formal inquiry into the trends and developments on fraud and misconduct in research and the publication of research results.[23] Despite the increasing efforts of regulatory organizations, scientific misconduct remains a major issue. To eliminate unethical practices in medical research, we must get to the root of the problem: the pressures put on scientists to increase output at the expense of quality. In the absence of altered incentives, criminalization is a possibility. However, several less severe remedies for reducing the prevalence of scientific misconduct exist. Institutions first need to foster open and frank discussion and promote collegiality. Reducing high-stakes competition for career advancement would also help realign incentives to compromise research ethics. In career advancement, emphasis should be given to the quality rather than the quantity of scientific publications. The significance of mentorship by senior, experienced researchers over lab assistants can bolster ethical training. Adopting certain codes of conduct and close supervision of research practices in the lab and beyond should also be formalized. The publication system plays a critical role in preserving research integrity. Computer-assisted tools that detect plagiarism and other types of misconduct need to be developed or upgraded. To improve transparency, scientific journals should establish clear authorship criteria and require that the data supporting the findings of a study be made available, a movement that is underway. Preprint repositories also might help with transparency, but they could lead to people acting on data that has not been peer-reviewed. Finally, publishing negative results is necessary so that the totality of research is not skewed or tainted by informative studies but does not produce the results researchers hoped. Consistently publishing negative results may create a new industry standard and help researchers see that all data is important. CONCLUSION Any medical trial, research project, or scientific publication must be conducted to develop science and improve medicine and public health. However, the pressures from the pharmaceutical industry and academic competition pose significant threats to the trustworthiness of science. Thus, it is up to every scientist to respect and follow ethical rules, while responsible organizations, regulatory bodies, and scientific journals should make every effort to prevent research misconduct. - [1] World Bank. “Scientific and technical journal articles”. World Development Indicators, The World Bank Group. https://data.worldbank.org/indicator/IP.JRN.ARTC.SC?year_low_desc=true. [2] Masic I, Miokovic M, Muhamedagic B. “Evidence Based Medicine - New Approaches and Challenges.” Acta Inform Med. 2008;16(4):219-25. https://www.bibliomed.org/mnsfulltext/6/6-1300616203.pdf?1643160950 [3] Dickenson, D. “The Medical Profession and Human Rights: Handbook for a Changing Agenda.” Zed Books. 2002;28(5):332. doi: 10.1136/jme.28.5.332. [4] Ranstam J, Buyse M, George SL, Evans S, Geller NL, Scherrer B, et al. “Fraud in Medical Research: an International Survey of Biostatisticians, ISCB Subcommittee on Fraud. Control Clin Trials. 2000;21(5):415-27. doi: 10.1016/s0197-2456(00)00069-6. [5] Gopalakrishna, G., Riet, G. T., Vink, G., Stoop, I., Wicherts, J. M., & Bouter, L. (2021, “Prevalence of questionable research practices, research misconduct and their potential explanatory factors: a survey among academic researchers in The Netherlands.” MetaArXiv. July 6, 2021. doi:10.31222/osf.io/vk9yt; Chawla, Dalmeet Singh, “8% of researchers in Dutch survey have falsified or fabricated data.” Nature. 2021. https://www.nature.com/articles/d41586-021-02035-2 (The Dutch study’s author suggests the results could be an underestimate; she also notes an older similar study that found 4.5 percent.) [6] Chawla. [7] Fanelli D. How many scientists fabricate and falsify research? A systematic review and meta-analysis of survey data. PLoS One. 2009;4(5):e5738. doi:10.1371/journal.pone.0005738 [8] Martinson BC, Anderson MS, de Vries R. “Scientists behaving badly” Nature. 2005;435(7043):737-8. https://www.nature.com/articles/435737a. [9] Munby J, Weetman, DF. Joint Consensus Conference on Misconduct in Biomedical Research: The Royal College of Physicians of Edinburgh. Indoor Built Environ. 1999;8:336–338. doi: 10.1177/1420326X9900800511. [10] Stephen Beale “Large Dutch Survey Shines Light on Fraud and Questionable Research Practices in Medical Studies Published in Scientific Journals,” The Dark Daily, Aug 30, 2021. https://www.darkdaily.com/2021/08/30/large-dutch-survey-shines-light-on-fraud-and-questionable-research-practices-in-medical-studies-published-in-scientific-journals/ [11] Buranyi S. Is the staggeringly profitable business of scientific publishing bad for science? The Guardian. June 27, 2017. https://www.theguardian.com/science/2017/jun/27/profitable-business-scientific-publishing-bad-for-science [12] Cambridge English Dictionary. https://dictionary.cambridge.org/us/dictionary/english/plagiarism [13] International Committee of Medical Journal Editors. Defining the Role of Authors and Contributors http://www.icmje.org/recommendations/browse/roles-and-responsibilities/defining-the-role-of-authors-and-contributors.html [14] Resnik DB, Elliott KC. “Taking Financial Relationships into Account When Assessing Research.” Accountability in Research. 2013;20(3):184-205. doi: 10.1080/08989621.2013.788383. [15] Bülow W, Helgesson G. Criminalization of scientific misconduct. Med Health Care and Philos. 2019;22:245–252. [16] Directive 2010/63/EU of the European Parliament and of the Council of 22 September 2010 on the protection of animals used for scientific purposes. Official Journal of the European Union. https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:276:0033:0079:en:PDF [17] Mehra MR, Desai SS, Ruschitzka F, Patel AN. “RETRACTED: Hydroxychloroquine or Chloroquine with or without a Macrolide for Treatment of COVID-19: a Multinational Registry Analysis.” The Lancet. 2020. doi: 10.1016/S0140-6736(20)31180-6. [18] Stern AM, Casadevall A, Steen RG, Fang FC. “Financial Costs and Personal Consequences of Research Misconduct Resulting in Retracted Publications,” eLife. 2014;3:e02956. doi: 10.7554/eLife.02956. [19] Brainard, Jeffrey and Jia You, “What a massive database of retracted papers reveals about science publishing's ‘death penalty': Better editorial oversight, not more flawed papers, might explain flood of retractions,” Science, Oct 25, 2018 https://www.science.org/content/article/what-massive-database-retracted-papers-reveals-about-science-publishing-s-death-penalty [20] Brainard and You. [21] Doherty M, Van De Putte Lbacope. Guidelines on Good Publication Practice; Annals of the Rheumatic Diseases 2000;59:403-404. [22] Dixon JR Jr. The International Conference on Harmonization Good Clinical Practice Guideline. Qual Assur. 1998 Apr-Jun;6(2):65-74. doi: 10.1080/105294199277860. PMID: 10386329. [23] “Research Integrity Terms of Reference.” Science and Technology Committee, 14 Sept. 2017, committees.parliament.uk/committee/135/science-and-technology-committee/news/100920/research-integrity-terms-of-reference/.

Individual performance, as one of the productivity components, is determined mainly by appropriate knowledge and skills, high work motivation, and good health status. At the enterprise level, productivity levels depend on many factors, including market forces, company policies, seasons, or societal situations such as the pandemic we are currently facing. Health is only one factor, interacting with other factors and influencing performance and ultimately, productivity. A person in a healthy state who has physical and emotional abilities, accompanied by a desire to work, will show high performance. Individual performance measures are generally based on time measures, namely absenteeism, which is not coming to work due to health problems, and presentism, namely unproductive time at work due to health problems. High worker performance will lead to higher productivity because it can produce better goods and services, more creativity and innovation, high intellectual capacity, and reliable resilience. High productivity can lead to higher profits. Many health conditions and health risks affect the decline in performance. The Healthy Workplace framework showed a high association between health conditions and health risks with absenteeism and presentism.1 Health risks associated with absenteeism include lack of physical activity, high stress, and diabetes. Diabetes is the highest risk factor for absenteeism, which increases the chance of absenteeism by 2.3 times (OR=2.29, 95% CI 1.17, 4.47). Stress most increased presentism odds (OR=2.09; 95% CI 1.65, 2.63), followed by unmet emotional needs (OR=1.93, 95% CI 1.52, 2.44). Other health risks were associated with presentism, including poor nutrition, body mass index and low physical activity.2 Chronic diseases such as hepatic disorders are a risk factor for young mining workers.3 WHO's Global Health Estimates provide the data that seven of the top ten causes of death globally are non-communicable diseases. Ischaemic heart disease, stroke, and chronic obstructive pulmonary disease are the leading causes of death in high-income and lower-middle-income countries.4 The other study found that smoking, occupational risk, and air pollutants were high rank of COPD risk factors. These diseases generally occur in the working-age group, indicated by the prevalence of smoking, which is 31%, the prevalence of hypertension at the age of >18 years, which is 31.3% in men and 36.9% in women.5 The main nutritional problems in the working-age group based on the Indonesian Basic Health Survey 2018 were obesity (prevalence 21.8% at age >18 years), anemia (48.9% in pregnant women), and chronic energy deficiency (32%). The other health problems in this working age group were mental-emotional disorders (9.8%) with an increase compared to 6% in the Basic Health Survey 2013.5 The prevalence of anemia and chronic energy deficiency is still high in women of childbearing age who are also included in the productive age group.6,7 With a high participation rate of female workers and a high prevalence of chronic energy deficiency and anemia, nutritional problems are immense. In low-income countries, Infectious diseases, especially tuberculosis (TB) and HIV/AIDS, are also a health problem in the working-age population.4 Tuberculosis has a considerable impact on families. Studies in Indonesia show that although treatment is guaranteed through the National Health Insurance, households affected by TB still face the risk of poverty. Impoverishment occurs due to additional expenses outside of treatment for treatment, including reduced income due to not coming to work.8 The effect of health problem on worker productivity is getting bigger, along with the increasing risk of work accidents. The cost of per work accidents case in Europe is high; highest for The Netherlands (€ 73,410) and the lowest for Poland (€ 37,860). The total costs ranged from 2.9% of gross domestic product (GDP) for Finland to 10.2% for Poland. The cost calculation considered three categories: direct healthcare, indirect productivity, and intangible health-related quality of life costs.9 The most significant work accidents came from the construction and manufacturing sectors (32%), followed by the transportation sector (9%), forestry (4%), and mining (2%). Unfortunately, there is no exact data on the magnitude of occupational diseases. Indirect costs related to lost workdays, costs for absenteeism payments, and worker presentism were considerable. In addition, the burden of personal expenses incurred by workers for transportation costs and other costs to obtain health services decreases productivity. Medical, social and economic consequences of non-communicable diseases, occupational accidents and diseases, and nutritional problems lead to public health problems in the working population. The workplace-based intervention to overcome the workers' health problem by integrating occupational health services is a method of choice.10 Since 2007, the World Health Organization (WHO) has launched Workers' Health: A Global Plan of Action. The action plan responds to the importance of workers' health as a prerequisite for productivity and economic development through increasing access to health services for workers and building a healthy workplace.11 Furthermore, WHO introduced the Healthy Workplace Framework as practical guidance. A healthy workplace is a place where workers and managers work together continuously to make improvements to protect and promote the health, safety, and welfare of workers and workplace sustainability. There are four interrelated factors: a) health and safety in the physical environment, b) health, safety, and wellbeing in the psychosocial environment, including workplace organization and work culture, c) health resources in the workplace; and d) workplace community participation to improve the health of workers, their families, and the surroundings.1 The implementation of the healthy workplace program needs supporting evidence on workplace-based intervention through relevant research. This is what this special issue on Occupational Health of the Acta Medica Philippina is facilitating. Prof. Muchtaruddin Mansyur, MD, PhDDepartment of Community Medicine Faculty of Medicine Universitas Indonesia REFERENCES Burton J. WHO Healthy Workplace Framework and Model: Background and Supporting Literature and Practices. Geneva: World Health Organisation; 2010. p. 123. Available from: https://www.who.int/occupational_health/WHO_health_assembly_en_web.pdf Boles M, Pelletier B, Lynch W. The relationship between health risks and work productivity. J Occup Environ Med. [Internet]. [cited 2021 Aug 24]. Available from: doi: 10.1097/01.jom.0000131830.45744.97 PMID: 15247814. Mansyur M, Jen Fuk L. Mining workers, administrative task, obesity, hypertriglyceridemia, and young workers increased risk liver function elevation among Indonesian male workers April 201875(Suppl 2):A244.2-A244 DOI: 10.1136/oemed-2018-ICOHabstracts.697. BMJ Occup Environ Med [Internet]. [cited 2021 Aug 24]. 2018;75(Suppl 2):224. Available from: https://oem.bmj.com/content/75/Suppl_2/A244.2 World Health Organisation. Top Ten Cause of Death 15 August 2007 [Internet]. [cited 2021 Aug 24], Geneva: World Health Organisation. Available from: https://www.who.int/news-room/fact-sheets/detail/the-top-10-causes-of-death Badan Penelitian dan Pengembangan Kesehatan Kementerian Kesehatan. Hasil Utama Riskesdas 2018 [Internet]. [cited 2021 Aug 24]. Kementerian Kesehatan RI; 2019. 220 p. Available from: https://kesmas.kemkes.go.id/assets/upload/dir_519d41d8cd98f00/files/Hasil-riskesdas-2018_1274.pdf Reskia RN, Hadju V, Indriasari R, Muis M. Anemia, chronic energy deficiency and their relationship in preconception women. Enfermería Clínica. 2020; 30 (Suppl. 6):76-80 Msemo OA, Bygbjerg IC, Møller SL, Nielsen BB, Ødum L, Perslev K, et al. (2018) Prevalence and risk factors of preconception anemia: a community-based cross-sectional study of rural women of reproductive age in Northeastern Tanzania. PLoS ONE 13(12): e0208413. doi:10.1371/journal.pone.0208413 Fuady A, Houweling TAJ, Mansyur M, Richardus JH. Catastrophic total costs in tuberculosis-affected households and their determinants since Indonesia’s implementation of universal health coverage. Infect Dis Poverty. 2018; 7(1). Tompa E, Mofidi A, van den Heuvel S, van Bree T, Michaelsen F, Jung Y, et al. Economic burden of work injuries and diseases: a framework and application in five European Union countries. BMC Public Health. 2021; 21(49). doi:10.1186/s12889-020-10050-7 Mansyur M, Khoe LC, Karman MM, Ilyas M. Improving workplace-based intervention in Indonesia to prevent and control anemia. J Prim Care Community Heal. 2019; 10. World Health Organization. Workers’ health: global plan of action. In: Sixtieth World Health Assembly Agenda. 23 May 2007 [Internet]. [cited 2021 Aug 24]. Geneva: World Health Organisation; 2007. p. Available from: https://www.who.int/occupational_health/WHO_health_assembly_en_web.pdf

Photo by Ishan @seefromthesky on Unsplash ABSTRACT A strike to highlight the plight facing contract doctors which has been proposed has received mixed reactions from those within the profession and the public. This unprecedented nationwide proposal has the potential to cause real-world effects, posing an ethical dilemma. Although strikes are common, especially in high-income countries, these industrial actions by doctors in Malaysia are almost unheard of. Reviewing available evidence from various perspectives is therefore imperative to update the profession and the complexity of invoking this important human right. INTRODUCTION Contract doctors in Malaysia held a strike on July 26, 2021. COVID-19 cases are increasing in Malaysia. In June, daily cases ranged between 4,000 to 8,000 despite various public health measures. The R naught, which indicates the infectiousness of COVID-19, remains unchanged. During the pandemic, health care workers (HCWs) have been widely celebrated, resulting in a renewed appreciation of the risks that they face.[1] The pandemic has exposed flawed governance in the public healthcare system, particularly surrounding the employment of contract doctors. Contract doctors in Malaysia are doctors who have completed their medical training, as well as two years of internship, and have subsequently been appointed as medical officers for another two years. Contract doctors are not permanently appointed, and the system did not allow extensions after the two years nor does it offer any opportunity to specialize.[2] Last week, Parliament did decide to offer a two-year extension but that did not hold off the impending strike.[3] In 2016, the Ministry of Health introduced a contract system to place medical graduates in internship positions at government healthcare facilities across the country rather than placing them in permanent posts in the Public Service Department. Social media chronicles the issues that doctors in Malaysia faced. However, tensions culminated when and contract doctors called for a strike which ended up taking place in late July 2021. BACKGROUND Over the past decade, HCW strikes have arisen mostly over wages, work hours, and administrative and financial factors.[4] In 2012, the British Medical Association organized a single “day of action” by boycotting non-urgent care as a response to government pension reforms.[5] In Ireland, doctors went on strike for a day in 2013 to protest the austerity measures implemented by the EU in response to the global economic crisis. It involved a dispute over long working hours (100 hours per week) which violated EU employment laws and more importantly put patients’ lives at risk.[6] The strike resulted in the cancellation of 15,000 hospital appointments, but emergencies services were continued. Other major strikes have been organized in the UK to negotiate better pay for HCWs in general and junior doctors’ contracts specifically.[7] During the COVID-19 pandemic, various strikes have also been organized in Hong Kong, the US, and Bolivia due to various pitfalls in managing the pandemic.[8] A recent strike in August 2020 by South Korean junior doctors and medical students was organized to protest a proposed medical reform plan which did not address wage stagnation and unfair labor practices.[9] These demands are somewhat similar to the proposed strike by contract doctors in Malaysia. As each national health system operates within a different setting, these strikes should be examined in detail to understand the degree of self-interest involved versus concerns for patient’s welfare. l. The Malaysia Strike An anonymous group planned the current strike in Malaysia. The group used social media, garnering the attention of various key stakeholders including doctors, patients, government, and medical councils.[10] The organizers of the strike referred to their planned actions as a hartal. (Although historically a hartal involved a total shutdown of workplaces, offices, shops, and other establishments as a form of civil disobedience, the Malaysian contract doctors pledged no disturbance to healthcare working hours or services and intend a walk-out that is symbolic and reflective of a strike.)[11] The call to action mainly involved showing support for the contract doctors with pictures and placards. The doctors also planned the walk-out.[12] Despite earlier employment, contract medical doctors face many inequalities as opposed to their permanent colleagues. These include differences in basic salary, provisions of leave, and government loans despite doing the same job. The system disadvantages contract doctors offering little to no job security and limited career progression. Furthermore, reports in 2020 showed that close to 4,000 doctors’ contracts were expected to expire by May 2022, leaving their futures uncertain.[13] Some will likely be offered an additional two years as the government faces pressure from the workers. Between December 2016 and May 2021, a total of 23,077 contract doctors were reportedly appointed as medical officers, with only 789 receiving permanent positions.[14] It has been suggested that they are appointed into permanent positions based on merit but the criteria for the appointments remain unclear. Those who fail to acquire a permanent position inevitably seek employment elsewhere. During the COVID-19 pandemic, there have been numerous calls for the government to absorb contract doctors into the public service as permanent staff with normal benefits. This is important considering a Malaysian study that revealed that during the pandemic over 50 percent of medical personnel feel burned out while on duty.[15] This effort might be side-lined as the government prioritizes curbing the pandemic. As these issues remain neglected, the call for a strike should be viewed as a cry for help to reignite the discussions about these issues. ll. Right to strike The right to strike is recognized as a fundamental human right by the UN and the EU.[16] Most European countries also protect the right to strike in their national constitutions.[17] In the US, the Taft-Hartley Act in 1947 prohibited healthcare workers of non-profit hospitals to form unions and engage in collective bargaining. But this exclusion was repealed in 1947 and replaced with the requirement of a 10-day advanced written notice prior to any strike action.[18] Similarly, Malaysia also recognizes the right to dispute over labor matters, either on an individual or collective basis. The Industrial Relations Act (IRA) of 1967[19] describes a strike as: “the cessation of work by a body of workers acting in combination, or a concerted refusal or a refusal under a common understanding of a number of workers to continue to work or to accept employment, and includes any act or omission by a body of workers acting in combination or under a common understanding, which is intended to or does result in any limitation, restriction, reduction or cessation of or dilatoriness in the performance or execution of the whole or any part of the duties connected with their employment” According to the same act, only members of a registered trade union may legally participate in a strike with prior registration from the Director-General of Trade Unions.[20] Under Section 43 of the IRA, any strike by essential services (including healthcare) requires prior notice of 42 days to their employer.[21] Upon receiving the notice, the employer is responsible for reporting the particulars to the Director-General of Industrial Relations to allow a “cooling-off” period and appropriate action. Employees are also protected from termination if permitted by the Director-General and strike is legalized. The Malaysian contract healthcare workers’ strike was announced and transparent. Unfortunately, even after legalization, there is fear that the government may charge those participating in the legalized strike.[22] The police have announced they will pursue participants in the strike.[23] Even the Ministry of Health has issued a warning stating that those participating in the strike may face disciplinary actions from the ministry. However, applying these laws while ignoring the underlying issues may not bode well for the COVID-19 healthcare crisis. lll. Effects of a Strike on Health Care There is often an assumption that doctors’ strikes would unavoidably cause significant harm to patients. However, a systematic review examining several strikes involving physicians reported that patient mortality remained the same or fell during the industrial action.[24] A study after the 2012 British Medical Association strike has even shown that there were fewer in-hospital deaths on the day, both among elective and emergency populations, although neither difference was significant.[25] Similarly, a recent study in Kenya showed declines in facility-based mortality during strike months.[26] Other studies have shown no obvious changes in overall mortality during strikes by HCWs.[27] There is only one report of increased mortality associated with a strike in South Africa[28] in which all the doctors in the Limpopo province stopped providing any treatment to their patients for 20 consecutive days. During this time, only one hospital continued providing services to a population of 5.5 million people. Even though their data is incomplete, authors from this study found that the number of emergency room visits decreased during the strike, but the risks of mortality in the hospital for these patients increased by 67 percent.[29] However, the study compared the strike period to a randomly selected 20-day period in May rather than comparing an average of data taken from similar dates over previous years. This could greatly influence variations between expected annual hospital mortality possibly due to extremes in weather that may exacerbate pre-existing conditions such as heart failure during warmer months or selecting months with a higher incidence of viral illness such as influenza. Importantly, all strikes ensured that emergency services were continued, at least to the degree that is generally offered on weekends. Furthermore, many doctors still provide usual services to patients despite a proclaimed strike. For example, during the 2012 BMA strike, less than one-tenth of doctors were estimated to be participating in the strike.[30] Emergency care may even improve during strikes, especially those involving junior doctors who are replaced by more senior doctors.[31] The cancellation of elective surgeries may also increase the number of doctors available to treat emergency patients. Furthermore, the cancellation of elective surgery is likely to be responsible for transient decreases in mortality. Doctors also may get more rest during strike periods. Although doctor strikes do not seem to increase patient mortality, they can disrupt delivery of healthcare.[32] Disruptions in delivery of service from prolonged strikes can result in decline of in-patient admissions and outpatient service utilization, as suggested during strikes in the UK in 2016.[33] When emergency services were affected during the last strike in April, regular service was also significantly affected. Additionally, people might need to seek alternative sources of care from the private sector and face increased costs of care. HCWs themselves may feel guilty and demotivated because of the strikes. The public health system may also lose trust as a result of service disruption caused by high recurrence of strikes. During the COVID-19 pandemic, as the healthcare system remains stretched, the potential adverse effects resulting from doctor strikes remain uncertain and potentially disruptive. In the UK, it is an offence to “willfully and maliciously…endanger human life or cause serious bodily injury.”[34] Likewise, the General Medical Council (GMC) also requires doctors to ensure that patients are not harmed or put at risk by industrial action. In the US, the American Medical Association code of ethics prohibits strikes by physicians as a bargaining tactic, while allowing some other forms of collective bargaining.[35] However, the American College of Physicians prohibits all forms of work stoppages, even when undertaken for necessary changes to the healthcare system. Similarly, the Delhi Medical Council in India issued a statement that “under no circumstances doctors should resort to strike as the same puts patient care in serious jeopardy.”[36] On the other hand, the positions taken by the Malaysian Medical Council (MMC) and Malaysian Medical Association (MMA) on doctors’ strikes are less clear when compared to their Western counterparts. The MMC, in their recently updated Code of Professional Conduct 2019, states that “the public reputation of the medical profession requires that every member should observe proper standards of personal behavior, not only in his professional activities but at all times.” Strikes may lead to imprisonment and disciplinary actions by MMC for those involved. Similarly, the MMA Code of Medical Ethics published in 2002 states that doctors must “make sure that your personal beliefs do not prejudice your patients' care.”[37] The MMA which is traditionally meant to represent the voices of doctors in Malaysia, may hold a more moderate position on strikes. Although HCW strikes are not explicitly mentioned in either professional body’s code of conduct and ethics, the consensus is that doctors should not do anything that will harm patients and they must maintain the proper standard of behaviors. These statements seem too general and do not represent the complexity of why and how a strike could take place. Therefore, it has been suggested that doctors and medical organizations should develop a new consensus on issues pertaining to medical professional’s social contract with society while considering the need to uphold the integrity of the profession. Experts in law, ethics, and medicine have long debated whether and when HCW strikes can be justified. If a strike is not expected to result in patient harm it is perhaps acceptable.[38] Although these debates have centered on the potential risks that strikes carry for patients, these actions also pose risks for HCWs as they may damage morale and reputation.[39] Most fundamentally, strikes raise questions about what healthcare workers owe society and what society owes them. For strikes to be morally permissible and ethical, it is suggested that they must fulfil these three criteria:[40] a. Strikes should be proportionate, e., they ‘should not inflict disproportionate harm on patients’, and hospitals should as a minimum ‘continue to provide at least such critical services as emergency care.’ b. Strikes should have a reasonable hope of success, at least not totally futile however tough the political rhetoric is. c. Strikes should be treated as a last resort: ‘all less disruptive alternatives to a strike action must have been tried and failed’, including where appropriate ‘advocacy, dissent and even disobedience’. The current strike does not fulfil the criteria mentioned. As Malaysia is still burdened with a high number of COVID-19 cases, a considerable absence of doctors from work will disrupt health services across the country. Second, since the strike organizer is not unionized, it would be difficult to negotiate better terms of contract and career paths. Third, there are ongoing talks with MMA representing the fraternity and the current government, but the time is running out for the government to establish a proper long-term solution for these contract doctors. One may argue that since the doctors’ contracts will end in a few months with no proper pathways for specialization, now is the time to strike. However, the HCW right to strike should be invoked only legally and appropriately after all other options have failed. CONCLUSION The strike in Malaysia has begun since the drafting of this paper. Doctors involved assure that there will not be any risk to patients, arguing that the strike is “symbolic”.[41] Although an organized strike remains a legal form of industrial action, a strike by HCWs in Malaysia poses various unprecedented challenges and ethical dilemmas, especially during the pandemic. The anonymous and uncoordinated strike without support from the appropriate labor unions may only spark futile discussions without affirmative actions. It should not have taken a pandemic or a strike to force the government to confront the issues at hand. It is imperative that active measures be taken to urgently address the underlying issues relating to contract physicians. As COVID-19 continues to affect thousands of people, a prompt reassessment is warranted regarding the treatment of HCWs, and the value placed on health care. [1] Ministry of Health (MOH) Malaysia, “Current situation of COVID-19 in Malaysia.” http://covid-19.moh.gov.my/terkini (accessed Jul. 01, 2021). [2] “Future of 4,000 young doctors who are contract medical officers uncertain,” New Straits Times - November 26, 2020. https://www.nst.com.my/news/nation/2020/11/644563/future-4000-young-doctors-who-are-contract-medical-officers-uncertain [3] “Malaysia doctors strike, parliament meets as COVID strain shows,” Al Jazeera, July 26, 2021. https://www.aljazeera.com/news/2021/7/26/malaysia-doctors-strike-parliament-meets-as-covid-strains-grow [4] R. Essex and S. M. Weldon, “Health Care Worker Strikes and the Covid Pandemic,” N. Engl. J. Med., vol. 384, no. 24, p. e93, Jun. 2021, doi: 10.1056/NEJMp2103327; G. Russo et al., “Health workers’ strikes in low-income countries: the available evidence,” Bull. World Health Organ., vol. 97, no. 7, pp. 460-467H, Jul. 2019, doi: 10.2471/BLT.18.225755. [5] M. Ruiz, A. Bottle, and P. Aylin, “A retrospective study of the impact of the doctors’ strike in England on 21 June 2012,” J. R. Soc. Med., vol. 106, no. 9, pp. 362–369, 2013, doi: 10.1177/0141076813490685. [6] E. Quinn, “Irish Doctors Strike to Protest Work Hours Amid Austerity,” The Wall Street Journal, 2013. https://www.wsj.com/articles/no-headline-available-1381217911?tesla=y (accessed Jun. 29, 2021). [7] “NHS workers back strike action in pay row by 2-to-1 margin,” The Guardian, 2014. https://www.theguardian.com/society/2014/sep/18/nhs-workers-strike-pay-unison-england (accessed Jun. 29, 2021); M. Limb, “Thousands of junior doctors march against new contract,” BMJ, p. h5572, Oct. 2015, doi: 10.1136/bmj.h5572. [8] J. Parry, “China coronavirus: Hong Kong health staff strike to demand border closure as city records first death,” BMJ, vol. 368, no. February, p. m454, Feb. 2020, doi: 10.1136/bmj.m454; “MultiCare healthcare workers strike, urging need for more PPEs, staff support,” Q13 FOX, 2020. https://www.q13fox.com/news/health-care-workers-strike-urging-need-for-ppes-risks-on-patient-safety (accessed Jun. 29, 2021); “Bolivia healthcare workers launch strike in COVID-hit region,” Al Jazeera, 2021. https://www.aljazeera.com/news/2021/2/9/bolivia-healthcare-workers-strike-covid-hit-region (accessed Jun. 29, 2021). [9] K. Arin, “Why are Korean doctors striking?” The Korea Herald, 2020. http://www.koreaherald.com/view.php?ud=20200811000941 (accessed Jun. 29, 2021). [10] “Hartal Doktor Kontrak,” Facebook. https://www.facebook.com/hartaldoktorkontrak. [11] “Hartal,” Oxford Advanced Learner’s Dictionary. https://www.oxfordlearnersdictionaries.com/definition/english/hartal (accessed Jun. 29, 2021). [12] “Hartal Doktor Kontrak,” Facebook. https://www.facebook.com/hartaldoktorkontrak. [13] R. Anand, “Underpaid and overworked, Malaysia’s contract doctors’ revolt amid Covid-19 surge,” The Straits Times, 2021. [14] Anand. [15] N. S. Roslan, M. S. B. Yusoff, A. R. Asrenee, and K. Morgan, “Burnout prevalence and its associated factors among Malaysian healthcare workers during covid-19 pandemic: An embedded mixed-method study,” Healthc., vol. 9, no. 1, 2021, doi: 10.3390/healthcare9010090. [16] Maina Kiai, “Report by the Special Rapporteur on the Right to Freedom of Peaceful Assembly and Association,” 2016. [Online]. Available: http://freeassembly.net/wp-content/uploads/2016/10/A.71.385_E.pdf. [17] ETUI contributors, Strike rules in the EU27 and beyond. The European Trade Union Institute. ETUI, 2007. [18] National Labor Relations Board, National Labor Relations Act. 1935, pp. 151–169. [19] Ministry of Human Resources, Industrial Relations Act 1967 (Act 177), no. October. 2015, pp. 1–76. [20] Article 10 of the Federal Constitution states that all citizens have the right to form associations including registered trade or labor unions. A secret ballot with two-third majority will suffice to call for a strike required for submission to the DGTU within 7 days as stated in Section 25(A) of the Trade Union Act 1959. [21] Ministry of Human Resources Malaysia, Guidelines on Strikes, Pickets and Lockouts in Malaysia. Putrajaya, 2011. [22] Ordinance Emergency which was declared in Malaysia since 12 January 2021. Under the Ordinance Emergency, the king or authorized personnel may, as deemed necessary, demand any resources. [23] “Malaysia doctors strike, parliament meets as COVID strain shows,” Al Jazeera, July 26, 2021. https://www.aljazeera.com/news/2021/7/26/malaysia-doctors-strike-parliament-meets-as-covid-strains-grow [24] S. A. Cunningham, K. Mitchell, K. M. Venkat Narayan, and S. Yusuf, “Doctors’ strikes and mortality: A review,” Soc. Sci. Med., vol. 67, no. 11, pp. 1784–1788, Dec. 2008, doi: 10.1016/j.socscimed.2008.09.044. [25] M. Ruiz, A. Bottle, and P. Aylin, “A retrospective study of the impact of the doctors’ strike in England on 21 June 2012,” J. R. Soc. Med., vol. 106, no. 9, pp. 362–369, 2013, doi: 10.1177/0141076813490685. [26] G. K. Kaguthi, V. Nduba, and M. B. Adam, “The impact of the nurses’, doctors’ and clinical officer strikes on mortality in four health facilities in Kenya,” BMC Health Serv. Res., vol. 20, no. 1, p. 469, Dec. 2020, doi: 10.1186/s12913-020-05337-9. [27] G. Ong’ayo et al., “Effect of strikes by health workers on mortality between 2010 and 2016 in Kilifi, Kenya: a population-based cohort analysis,” Lancet Glob. Heal., vol. 7, no. 7, pp. e961–e967, Jul. 2019, doi: 10.1016/S2214-109X (19)30188-3. [28] M. M. Z. U. Bhuiyan and A. Machowski, “Impact of 20-day strike in Polokwane Hospital (18 August - 6 September 2010),” South African Med. J., vol. 102, no. 9, p. 755, Aug. 2012, doi: 10.7196/SAMJ.6045. [29] M. M. Z. U. Bhuiyan and A. Machowski, “Impact of 20-day strike in Polokwane Hospital (18 August - 6 September 2010),” South African Med. J., vol. 102, no. 9, p. 755, Aug. 2012, doi: 10.7196/SAMJ.6045. [30] M. Ruiz, A. Bottle, and P. Aylin, “A retrospective study of the impact of the doctors’ strike in England on 21 June 2012,” J. R. Soc. Med., vol. 106, no. 9, pp. 362–369, 2013, doi: 10.1177/0141076813490685. [31] D. Metcalfe, R. Chowdhury, and A. Salim, “What are the consequences when doctors strike?” BMJ, vol. 351, no. November, pp. 1–4, 2015, doi: 10.1136/bmj.h6231. [32] D. Waithaka et al., “Prolonged health worker strikes in Kenya- perspectives and experiences of frontline health managers and local communities in Kilifi County,” Int. J. Equity Health, vol. 19, no. 1, pp. 1–15, 2020, doi: 10.1186/s12939-020-1131-y. [33] The study has shown that there were 9.1% reduction in admissions and around 6% fewer emergency cases and outpatient appointments than expected. An additional 52% increase in expected outpatient appointments cancelations were made by hospitals during that period. D. Furnivall, A. Bottle, and P. Aylin, “Retrospective analysis of the national impact of industrial action by English junior doctors in 2016,” BMJ Open, vol. 8, no. 1, p. e019319, Jan. 2018, doi: 10.1136/bmjopen-2017-019319. [34] D. Metcalfe, R. Chowdhury, and A. Salim, “What are the consequences when doctors strike?” BMJ, vol. 351, no. November, pp. 1–4, 2015, doi: 10.1136/bmj.h6231. [35] R. Essex and S. M. Weldon, “Health Care Worker Strikes and the Covid Pandemic,” N. Engl. J. Med., vol. 384, no. 24, p. e93, Jun. 2021, doi: 10.1056/NEJMp2103327. [36] M. Selemogo, “Criteria for a just strike action by medical doctors,” Indian J. Med. Ethics, vol. 346, no. 21, pp. 1609–1615, Jan. 2014, doi: 10.20529/IJME.2014.010. [37] Malaysian Medical Association, “Malaysian Medical Association Official Website.” https://mma.org.my (accessed Jun. 29, 2021). [38] M. Toynbee, A. A. J. Al-Diwani, J. Clacey, and M. R. Broome, “Should junior doctors strike?” J. Med. Ethics, vol. 42, no. 3, pp. 167–170, Mar. 2016, doi: 10.1136/medethics-2015-103310. [39] R. Essex and S. M. Weldon, “Health Care Worker Strikes and the Covid Pandemic,” N. Engl. J. Med., vol. 384, no. 24, p. e93, Jun. 2021, doi: 10.1056/NEJMp2103327. [40] M. Selemogo, “Criteria for a just strike action by medical doctors,” Indian J. Med. Ethics, vol. 346, no. 21, pp. 1609–1615, Jan. 2014, doi: 10.20529/IJME.2014.010; A. J. Roberts, “A framework for assessing the ethics of doctors’ strikes,” J. Med. Ethics, vol. 42, no. 11, pp. 698–700, Nov. 2016, doi: 10.1136/medethics-2016-103395. [41] “Malaysia doctors strike, parliament meets as COVID strain shows,” Al Jazeera, July 26, 2021. https://www.aljazeera.com/news/2021/7/26/malaysia-doctors-strike-parliament-meets-as-covid-strains-grow

Defence date: 10 January 2009
Examining Board: Professor Hanns Ullrich, EUI (Thesis Supervisor) Professor Hans-W. Micklitz, EUI Professor Barry Rodger, University of Strathclyde Professor Mario Siragusa, College of Europe
PDF of thesis uploaded from the Library digital archive of EUI PhD theses
The Thesis concerns the development of private enforcement of Community competition law following the judgment of the Court of Justice in Courage v. Crehan. The discussion focuses on the so-called 'Community right to damages' among individuals, established by the Court in that case. It begins with the Community statutory framework for private enforcement (the Treaty provisions and Council Regulation 1/2003) in the first chapter. Chapter Two continues with a brief history of the Community right to damages: from Van Gend en Loos through Francovich and Brasserie du Pêcheur and, finally, to Courage and, more recently, Manfredi. Chapter Three deals with ‘constitutional’ issues, mainly the competence of the Community to regulate actions for damages, not least in light of the ostensible principle of ‘national procedural autonomy.’ Chapter Four elaborates the meaning and content of the right to damages, with reference to case law of the Court. Chapter Five considers nullity and injunctions, as well as the unclear relationship between damages and restitution. Chapters Six and Seven address the problem of the ‘proper’ plaintiff. Finally, Chapter Eight tackles the relationship between decisions of competition authorities and civil proceedings, not least in light of the Commission’s recent proposal to introduce a 'binding effect' of decisions of national competition as a matter of Community law. The Commission’s recent White Paper on damages actions features prominently throughout. The author is broadly supportive of the Commission’s suggestions and considers that the Community does have competence to enhance the possibilities of private plaintiffs to enforce Community competition rules. The taboo of Community regulation of rules of enforcement (liability, remedies and procedure) is challenged and the idea that the Community is developing a private law of its own is endorsed. Similarly, the notion that the binding effect of decisions of competition authorities violates the separation of powers or the independence of the judiciary is dispelled, albeit with a caveat for proper safeguards for the rights of the defence. Generally, caution is recommended, as too much detailed regulation could stifle the flexible, creative development of the law. Lastly, it is noted that some potentially vital issues have been omitted by the Commission, while some of its proposed solutions may not be suitable for the competition context.