Transcript

Host: Hello and welcome to Prevention and Protection, the United Educators Risk Management Podcast. Today’s discussion on study abroad risk management is hosted by Justin Kollinger of United Educators’ Risk Management department. Justin is Senior Risk Management Consultant and is joined by Gian Franco Borio, attorney at law and member of the Florence Bar. Borio has served as legal counsel to the Association of American College and University Programs in Italy since 1994 and to the European Association of Study Abroad, as well as Technical Counsel for Italy at the Federation of EU CPA’s FEE, to the European Union Commission on Corporate and Tax Law SMEs. A reminder to listeners that you can find other UE podcasts as well as UE risk management resources on our website, www.ue.org. Our podcasts are also available on Apple Podcasts and Spotify. As a reminder, this is a risk management podcast, and nothing in this podcast should be considered legal advice. Now, here’s Justin. 

Justin Kollinger: Thank you. Study abroad risk was one of UE’s most common question topics in summer 2022. Sometimes it seems like every year is a challenging one in study abroad, but this academic year we’ve already heard enough stories that emphasize the importance of risk management in your study abroad program. Today, we are very lucky to have Gian Franco Borio with us to discuss study abroad risk management. Gian Franco is an Italian attorney who has been working in study abroad law in Europe since 1994 and has worked with many schools and colleges to resolve incidents that occur in Europe. Thank you, Gian Franco, for joining us. 

Gian Franco Borio: Thanks to you. Thanks for this invitation. I’m very, very happy and proud to be with you today. 

Kollinger: There are three main areas I’d like to discuss with you today. Compliance with local laws and regulations, student housing, and current risk trends.  

Let’s start with that first one. I worked with several UE members in 2020 and 2021 that reviewed and modified their study abroad program while operations were on pause during the pandemic. Some started from an interesting and wise question: “How do we operate legally in these countries in terms of local immigration rules and employment laws?” I know that this is a focus of yours, Gian Franco. How can listeners start to investigate whether they are operating legally in other countries? 

Borio: Sure. This is, I believe, of course, the key question. The first question that anyone who is planning a study abroad program in any country in the world, of course. I will be focusing on Europe and if I am allowed to on my country, which is Italy, of course. But this is the key question: “How can our institution legally and therefore safely operate in that country?”  

By definition, study abroad is something that takes place abroad. So in a different country, and it should be automatic for anyone who is dealing with these matters to think that, well, there may be in other countries, different regulations, different practices, different approaches. And all these must be known as much as possible in advance so that the operations can be planned appropriately, and then they can be followed and implemented in the best possible way. This will only save money and trouble. I say it from the very beginning. This is the best takeaway that people can take from this conversation. 

The first aspect of all this is something that usually is not adequately planned and implemented at the beginning. Well, study abroad. What’s the meaning of study abroad? Going to another country, sending students and faculty and even staff, of course, to another country for a limited period of time so that the students can take courses and take experiences such as internships in the other country, gain credits from that activity, and then come back home. This is something that in all countries, of course, will be welcomed because this brings investments, this brings money, this brings culture and social exchange. However, each country may have — and normally has — some kind of regulation, national regulation, which will tell whether this activity, it’s not only legitimate. Even some constitutions protect educational activities like this. Italy is one of them, of course, but then mandate some kind of formalities to keep the legal status of these operations on the right side.  

And the risk is one and one only, and as usual is a tax risk. There’s always taxes at the end. Once that an operation like this becomes stable — stable means that it recurs every year, every semester, every academic year I’m sending students to a certain location — this becomes a stable presence of the foreign institutions in that country. Even if this is an indirect presence, for instance, courses are offered and held at a third-party location by local provider, by another university. But if this becomes permanent, becomes something that is offered on a permanent, stable basis under international tax law and normally domestic law of the single countries, this becomes or may become as the so-called permanent establishment of the foreign institution. And this will be liable for local taxes.  

And normally, this becomes a conflict with the home institution, which usually is a not-for-profit and a university, a college, of course. Now how to solve it? Well, institutions must carefully and in advance check with local counsel, of course, whether there are specific regulations on this and then comply with them. Normally, there will be the need of a registration with some local authorities. That could be the ministry of education, it could be the local city council. It depends. In Germany, it’s for instance, on a land basis. Each land, which is similar to the United States state, has different regulations. In Italy, for instance, we are lucky enough that we have a dedicated legislation specifically on study abroad. So if foreign institutions follow that legislation and therefore register with the appropriate authority, their operations will be deemed not-for-profit and therefore tax free in a sense. So this is going to be the first check that institutions have to follow. 

The second part of the initial question, “Am I legally operating in that country?”, regards people who are involved in study abroad. So certainly students, faculty, and staff. And the first step is to consider immigration regulations. Why immigration? Well, because normally these people, students and faculty and staff, may spend a sizable period of time in that country — in the foreign country. There is the magic rule of 90 here in the United States and Canada and Australia, which are the main suppliers of students for Europe, have bilateral agreements where there are visa waiver provisions and normally up to 90 days people who can come to Europe or to those countries without any kind of visa up to 90 days. But otherwise, the student visa will be master, will be necessary, it will be mandatory. And the work visa or faculty visa may be also mandatory for if you are sending faculty. So professors, teachers who accompany the students or stay here for even a longer period for research purposes or of their own study purposes. That if they exceed the 90 days for sure, they will need a visa. 

And this will not normally be a student, of course, for a study visa. It will be a work visa because this is a paid working activities taking place in our countries here. And getting a work visa sometimes can be very challenging because now here we enter into the employment area at large and the procedures and the rules are much more complex than the ones for student visas. So again, things must be planned with you [in] advance. And of course, with the advice of a local professional. 

Kollinger: We’ve talked about the rule of 90, and we often think about stays in countries as 90 consecutive days or more. Are there considerations for faculty who are spending, say, 60 days in the spring and then another 60 days in the fall, all in the same year? 

Borio: Yeah, there is a rule which is mandated by the Schengen Agreement, which says that the visa free period of 90 days can be, of course, split into different periods, but no one can exceed 90 days in total in any 180-day period. This means that, just give an example, if a faculty has spent 60 days between January and May of a given year, in the same year, if he comes, or he or she comes back to the Schengen area in the following September, well, that faculty cannot then exceed another 30 days because the total would make 90. So one has to be very careful in planning in advance these dates. It could be that after 90 days of leave from the Schengen area, the Schengen territory, then the faculty can come back for an additional 90 days, again, on a visa free period. So things can be adapted in a sense, but people must be very careful. 

If I may turn to employment law as such, clearly the study abroad programs will need the people who will work for them. And this again can be people seconded, posted from the states, from the home institution. Faculty, but also staff. And when operations become a little bit larger, in a sense, there will be the need of local people, local staff, or local faculty who can be hired to teach to their students. Well, again, employment law is an area where the utmost care must be in place by the study abroad institutions. Why? Because in Europe, especially in civil law countries like Germany, France, Spain, Portugal, Italy, and the like, little less in the UK and in Ireland, well in civil law countries, there is a very strong protection, legal protection for the local employee, for anyone who is hired under whatever kind of contract, but is an employee, basically, is a dependent worker of someone else. 

This for historical and political reasons, of course, but the rules can be and are really, really different from what the U.S. and Canadian institutions are normally used to. Just to give some examples, European law and then the domestic national law gives a lot of protection to women during maternity period at large. Much longer and stronger protection than in the United States. And maybe the U.S. institution doesn’t know of this in advance, and then there is a surprise.  

There are different rules on termination. Termination by the employer cannot be at will in general. There must be a just cause. There are a lot of restrictions here, which end up normally in terminating the relationship, but paying a lump sum as a severance, which is mandated by the law. And again, the home institution must know all this in advance. 

Normally, the greater number of litigation of disputes that we see in study abroad in Europe related to employment matters are simply because there is this big difference between the U.S. and North American systems in general and the European ones and the home institutions normally I see is not that aware in advance. Things can be planned and must be planned in advance, and at the end everything is doable. We have, for instance, only in Italy 150 stable programs. It means that it can be achieved and done safely. 

Kollinger: Gian Franco, we’ve now spoken about taxes and registration for your programs. We’ve spoken about employment and visas. One of the other things that I’ve been hearing from our members at UE is that they have had to change their arrangements for housing, particularly for students but also sometimes for staff with their programs. How do institutions manage the risks and compliance related to housing for students and staff? 

Borio: That’s another very, very important aspect of study abroad in Europe in general. For students, there is the usual choice between housing the students with local families, the so-called home stays, which has been very popular in the past. Clearly, with the pandemic and after the pandemic this is something that is under scrutiny, but I know for sure that is coming back. Otherwise, the other option is, of course, to rent local apartments and then allocate the students in those apartments. More or less the same for staff, of course. Normally staff or faculty go to locally rented apartments. 

Well, there is one big rule that has to be taken into due consideration, and this is that these places — apartments and family places — must be safe. And safe not only from a concrete and practical viewpoint, but also from a legal technical viewpoint. So there are normally specific requirements on, for instance, how many people can be housed in a given apartment. If the apartment is relatively small and has only two bathrooms, for instance, no more than four or five can be legally housed, placed in that apartment. The same for, of course, the families. 

So my first advice here, the preliminary advice is to spend some time and maybe some money in carefully checking the premises, which are about to be rented before signing anything which could be legally binding. You don’t want the surprise that then at the end the landlord tells you, “Well, this is the law. You had to inform yourself before signing.” Now you cannot have more than four students here where people had planned to house six or seven of them in that house. 

Clearly, there will be contractual agreements, contracts in general, and this must be legal. And here it’s impossible to check out on a county by county, but local council will be needed, will be required. One has to pay attention to some specific clause that sometimes are hidden or not written. If not written, then local law will be automatically applicable under our systems. For instance, the duration of the contract and the renewal. Sometimes there are automatic renewal closes. Unless the tenant, unless the institution sends a specific legal notice to terminate, well, the contract will be automatically renewed and you end up paying for a place that you don’t need any longer.  

Termination rules, deposits, normally landlords request very high deposits because students tend to destroy the apartments, they used to say. But nowadays with the big rise of the prices for utilities due to the energy crisis, the war in Ukraine, etc., well these deposits will be higher and higher and you have to consider them. You also have to consider there will be higher costs for the consumptions of water, electricity, heating, and the like in the next months and probably in the next couple of years. 

Specific contractual clauses may also be placed for the checks to be performed at the end of the contract to check which kind of damages have been caused to the place because you don’t want to end up paying damages that had already been caused by someone who was there before your students. So all these must be duly considered. Another big consideration, especially in historical cities — Rome, Florence, Venice, Paris, Madrid — you can have a big list, is that many, many, many buildings in the historical center of the city normally are under the restrictions of the local Fine Arts Authority, because they are very old, they are very important. Which means that, for instance, the restoration works may be much more expensive or sometimes impossible. There was a case where a institution wanted to put at its own cost smoke detectors in an apartment. Well, that was forbidden by the law because it was a restricted building under the restrictions of the Fine Arts Authority. So all these must be duly considered in advance. 

Kollinger: I just want to pause there, Gian Franco, because I think that’s a really good point. There can be a conflict in what we and the United States expect for certain levels of safety from housing versus what might be possible due to local restrictions. So I just wanted to underline that. I’m sorry to interrupt, but I felt that was a really important point. 

Borio: It is. That’s why before entering into any binding, legally binding agreement to have the place inspected by a local expert technician, it could be an architect, an engineer, who can tell you this is possible, this is not possible. These are the local restrictions. They may vary from city to city. So what is possible in Paris may not be possible in Montpelier. What is possible in Madrid may not be possible in Seville, and so on, on this aspect. 

It could be interesting, if I may switch to another area of risks that we have seen during the pandemic, of course, to give a few tips on health matters and the risks related to the health situation. Well, we have many lessons that have been learned from the pandemic, of course. The first one is that programs, institutions, must adequately plan and prepare their study abroad periods of their students in advance before coming to the place and study the local regulations that, again, may change. During the pandemic, we had this situation where, yes, the European Union gave general indications and rules, but then each country went on his own. Italy in a way, Spain in another one. Sometimes things were similar, but sometimes they were very different. So you need to know in advance, and there are many sources — the CDC website or the state Department, the local embassy of the country, and the like. 

And once there are rules in place, these rules are mandatory. We had too many cases of students, for instance, who violated the local quarantine rules simply because they wanted to go around, but they were positive to COVID. And that created, of course, not only danger, risk, to anyone, of course, but also was considered a crime by the local authorities with very, very unpleasant consequences.  

And last but not least, the need of ensure local health assistance. This doesn’t mean only in health insurance. Health insurance is absolutely mandatory. I say it very openly, but local assistance means to have people in place where students can go in case of an emergency. The emergency rooms are always open, but the public system cannot provide normally doctors, English-speaking doctors, for instance. But there are private institutions that can do that. And during the pandemic, we experienced the importance of having the possibility of local testing, rapid testing, cheap testing. And then vaccination, even local vaccination. We were able to offer vaccination to American students if they came here without being boosted or even vaccinated from Day One. 

Kollinger: I’m glad you brought up that story of American students, or maybe I shouldn’t say American students, but students coming into Europe and not following local regulations. That was actually what inspired this conversation in the first place. And it was certainly a shocking story for me to hear, perhaps not surprising, but still it’s something that I think we need to be aware of when we send students abroad that it’s not just the traditional laws and regulations that we’re used to teaching students about. But this is a changing landscape and we need to have systems in place to make sure our students know what these changes are when they occur and not after the fact. So I really appreciate that story. Do you have any examples, Gian Franco, of how institutions can do better to make sure that they are complying with the regulations that you’ve mentioned so far? 

Borio: Well, the big difficulty for at least some institutions, think of a small college or … someone who has not enough experience of study abroad is finding the right resources and the right places were to find information. Well, in many European countries there are national associations of American study abroad programs. So these exist in Italy, in Spain, in France, in Germany, in Ireland, in Greece, in Czech Republic, in Switzerland as well. Well, these are very important resources and one can find all those. 

There is a European network of these, which is called European Association of Study Abroad. We call it the EU-ASA. And euasa.org is their website. So one can find reliable sources there. One can join the national association and really, really receive a lot of information and also a lot of help because people will help each other. Resident directors will exchange information and there will be common resources. And one single voice in case of an emergency. I believe that finding the right resources is the best tip we can give. And we had examples of these. Working with the foreign consulates is another example. So that’s the first and most important step I would strongly recommend to all and any study abroad advisor. 

Kollinger: Thank you. As we’re now recovering in the study abroad landscape and more and more students are traveling again, what are some of the risks that you’re now watching for 2023 and beyond? 

Borio: Nothing different from the past, in a sense. We are talking about the post-pandemic scenario. Hopefully, no more health risks than normally. The students and their institutions, of course, in my opinion, must be very careful in checking in advance any possible immigration restriction that can be introduced here and there. If they have a student visa, they can freely travel, for instance, throughout the Schengen Agreement, but first during the pandemic and now that we have a war very close to our countries, there could be, all of a sudden, some restrictions.  

We had travel restrictions during the summer because of the big storms that have occurred and to which Europe is not used to. In the United States, unfortunately, you are used to hurricanes and tornadoes. We are not, but the climate emergencies is something that is coming and we have to deal with that. We have to live with that. So this is something, again, that has to be planned. Well, you cannot plan in advance, but at least be aware that this can happen. So traveling is always welcomed, but there are some precautions that have to be taken. 

Kollinger: Yeah, thank you for mentioning the climate. I think we often look to the past to understand what risks we might see in the future, but as the climate changes, we can be a little bit less certain about the weather and how that might present challenges for our trips abroad. 

I’d like to end on partnerships between American institutions and Italian or European host institutions. We’ve mentioned third parties in passing here, but as you know, who is liable for an incident is often a matter of contracting. In your experience, what are some of the common contracting weaknesses, and how can our listeners improve their partnerships? 

Borio: Yeah, the issue is that whenever something happens, we have a principle in Europe, which normally supersedes any private agreement on this. And the principle is the territoriality principle. If something happens in Spain, an accident for instance, well, it will be Spanish law to rule how to determine who is liable and tort law will be the local tort law, for instance. And then the parties can privately try to circumvent these in a legitimate way. But this is going to be very difficult. And if in an accident, for instance, there is someone who is local, who is involved, well this will not work. So insurance coverage, deposits, and local insurance as well would be very, very important to have. Clearly, any contractual agreement has a history on itself. One has to consider it on a case by case. 

One point that I want to underline because it’s normally not enough considered by the U.S. counterparts, is the regulation about privacy and the protection of personal data. I refer to the European GDPR. Why? Well, simply because this gives a lot of protection to individuals whenever they are on the soil of Europe, of the territory of Europe. And when students and faculty come to Europe and stay here, even for very few days, well, they are covered by the GDPR automatically, irrespective to their passport. Which means that their personal data, which come from the name and passport number, but then also the health situation, the personal religious belief, etc., etc., are automatically protected by our GDPR and the national regulations that come from the GDPR. And the local institutions, but also the foreign institutions, need to be aware of that. 

I’ll give you one example. When people unfortunately got positive to COVID, well, this was health information, personal information, a sensitive one under the GDPR. And under the GDPR, that could not be transferred back to the States. So the local staff of an institution could not inform the home office about the positivity of one student unless the student gave express, andgranular, specific consent to this. Violating this is a big violation of the personal right of the student who may, or the family may, one day raise a claim against the institution and get a big fine against the institution and damage recovery from the institution. So the GDPR and these rules must be duly considered. 

When negotiating and contracting with a local counterpart there might be standard contractual clauses to be introduced, normally the U.S. institution will be the data controller and the local provider will be the data processor. Everyone has his own technical obligations to protect, store the data adequately. And then collect consent from the individuals, from students in this case, but also from staff and from faculty, before handling, before dealing with this data. Something that nowadays is quite normal here in Europe, but I see still some difficulty from the U.S. institutions. 

Kollinger: Thank you, Gian Franco. Before we finish today, would you please share your email address with listeners in case they’d like to reach you? 

Borio: So my direct email address [is] gfborio@dinonet.it. And I will receive it personally. Thank you. Thank you very much. 

Kollinger: Great. Thank you, Gian Franco, for joining us today. 

Host: From United Educators Insurance, this is the Prevention and Protection Podcast. For additional episodes and other risk management resources, please visit our website at www.ue.org.