Browsing by Subject "EU law"

Sort by: Order: Results:

Now showing items 1-19 of 19
  • Neuvonen, Päivi Johanna (2020)
    The mainstream democratic critique of EU law rejects the argument that standard EU citizenship rights have a democracy-enhancing effect within the EU Member States. This Article shows how the democratic critique can benefit from a critique of critique that is missing in the discussion on the democratic effects of EU law. From this perspective, the Article makes an original contribution to critical EU legal studies at three levels. First, the critique of essentialist binary oppositions revisits what is political in the interests protected under EU citizenship rights. Second, the Article demonstrates how an Arendtian theory of political judgment counteracts the mainstream democratic critique in assessing the effects of EU citizenship law on democratic politics. Finally, reopening the question of what the conditions for democracy are translates into a methodological argument that rejectionist critique must yield to a more developed critical methodology in EU legal studies.
  • Havu, Katri Annikki (2019)
    This article analyses EU case law concerning damages liability for non-material harm. The focus here is on recent case law, most of which concerns EU liability. The contribution first provides an overview of cases that deal with non-material damage. Secondly, it explores important themes that emerge from the case law, such as the necessity of monetary reparation, the conditions for harm and causation, and the amounts of compensation granted. Particular attention is paid to the topical notion of reputational harm. Claims concerning damage to reputation or image have frequently emerged in EU liability cases, but compensation has not been readily awarded. The European Court of Justice has, however, relatively recently upheld a decision awarding damages for unjustified and prolonged inclusion on a “sanctions list” (Safa Nicu (C-45/15 P)). The problem of distinguishing between non-material and economic harm under EU law is also discussed.
  • Addiscott, Kate (Helsingin yliopisto, 2022)
    More and more often in the digitalised world, consumers come into contact with undertakings operating within the zero-price market. That is, where the product or service is offered to the consumer at a price of zero. Examples of zero-priced markets are numerous, from shopping malls, to social media and credit cards. This market type is not an insignificant one, with Facebook and Google, two of the largest internet companies offering zero price goods, having a market capitalisation of $1,645 billion as of June 2020. The topic of data driven digital zero-price markets has been receiving increasing amounts of attention in recent years. The OECD, Commission, national competition law authorities and academics have increasingly been considering this market type. It is often said that the consumer pays to use these digital services with their person data. In online transactions, essentially all transactions require at least some disclosure of the user’s personal data. This personal data is highly valuable to undertakings, with companies willing to receive consumers data instead of being paid by them with money. Overall, the question which I pose is whether EU competition law can deal with the unique characteristics of these digital zero-price markets. The economic and consumer welfare grounding of Article 102 means that it is adaptable to zero-price markets, and the special characteristics of zero-price markets are to an extent already considered in a competition law analysis. This market type is unique and significantly different to the traditional market types that EU competition law has been faced with in the past. For one, these markets operate largely on the digital sphere, meaning that they are characterised by competition for the market, exceedingly fast innovation and unique barriers to entry. These markets are multisided, with consumers, advertisers, merchants and the undertaking all operating on unique parameters but interacting with one-another. Finally, the goods/services are provided at zero-price, which traditional economic analysis struggles to adapt to, whilst consumers are faced with alternative costs through their attention and information (data) and reduction of quality. The Google Search (Shopping) case shows these characteristics in action, and demonstrates the challenges which EU competition law faces when applied to this market type. It also shows the current capabilities of the law in dealing with this market type. There are ways that the law can be adapted, utilising new tests which focus on other cost parameters than price, putting more weighting on factors other than monetary price and looking at different competitive parameters such as quality. This thesis does not seek to criticise EU competition law as a whole. It is limited to considering specifically digital zero-priced markets. It is concluded that more can be done to ensure that its unique characteristics can be included in a competition law analysis. In this respect, the EU can become a leader, laying the groundwork for the future competition law treatment of these undertakings, and ensuring that it is properly recognised that consumers can face competitive harms even if it is not based upon a monetary price.
  • Belinskij, Antti; Iho, Antti; Paloniitty née Korvela, Tiina; Soininen, Niko (2019)
    Animal agriculture is shifting toward larger farms and regional agglomerations in many countries. In step with this development, manure nutrients have started accumulating regionally, and are leading to increasing eutrophication problems. Nevertheless, the same trend may also prompt innovations in manure treatment. For example, Valio Ltd (the largest dairy processer in Finland) is planning a network of facilities that would remove water from manure, fraction the nutrients in it, and produce biogas from the excess methane. One of the main hurdles in developing this technology is that the current regulatory framework does not support a shift from diffuse loading, which is seen in the traditional application of manure on fields, to point-source loading; the regulations may even prevent such a change. This article analyzes a governance framework that addresses this dilemma in EU–Finland, and discusses how the governance described could curtail the nutrient loading of agriculture to waters. The approach is based on adaptive governance theory. We argue that traditional top–down regulation, which emphasizes food security, contains serious shortcomings when it comes to managing agricultural nutrient loading to waters, and that the current regulatory framework does not necessarily have the adaptive capacity to facilitate new, bottom–up solutions for manure treatment. Interestingly, the strict water quality requirements of the EU Water Framework Directive (2000/60/EC) open new windows of opportunity for such solutions, and thus for improving the overall sustainability of animal agriculture.
  • Koulu, Riikka (2020)
    In this article I problematize the use of algorithmic decision-making (ADM) applications to automate legal decision-making processes from the perspective of the European Union (EU) policy on trustworthy artificial intelligence (AI). Lately, the use of ADM systems across various fields, ranging from public to private, from criminal justice to credit scoring, has given rise to concerns about the negative consequences that data-driven technologies have in reinforcing and reinterpreting existing societal biases. This development has led to growing demand for ethical AI, often perceived to require human control over automation. By engaging in discussions of human-computer interaction and in post-structural policy analysis, I examine EU policy proposals to address the problematizations of AI through human oversight. I argue that the relevant policy documents do not reflect the results of earlier research which have undeniably demonstrated the shortcomings of human control over automation, which in turn leads to the reproduction of the harmful dichotomy of human versus machine in EU policy. Despite its shortcomings, the emphasis on human oversight reflects broader fears surrounding loss of control, framed as ethical concerns around digital technologies. Critical examination of these fears reveals an inherent connection between human agency and the legitimacy of legal decision-making that socio-legal scholarship needs to address.
  • Saarikoski, Atlas (Helsingin yliopisto, 2020)
    In March 2016, the EU and Turkey agreed on ending irregular migration from Turkey to the EU through the adoption of the EU-Turkey Statement. Even though the EU-Turkey Statement has been one of the key measures of implementing the EU’s external asylum and migration policy, the legal nature of the measure is far from clear. This became apparent when three asylum seekers brought an action of annulment in accordance with Article 263 to the General Court of the European Union and challenged the legality of the EU-Turkey Statement. The General Court found that the EU-Turkey Statement was not an EU measure, but a measure between the Member States and Turkey, and therefore it did not have jurisdiction to review the matter. The cases were appealed to the ECJ that rejected the appeals as inadmissible. The thesis assesses the legal nature of the EU-Turkey Statement under EU law. The research question of the thesis is whether the statement is an EU measure or a Member State measure. The thesis asks if it is possible for the Member States to make commitments with third states in the field of EU exclusive competence and to involve the EU institutions in the process, yet leaving the instrument itself out of reach of the CJEU and the Treaties. The method of the thesis is legal dogmatic research. The thesis aims to answer its research question through assessing case law of the CJEU on external competence of the Member States and on the possibilities of the Member States to confer powers to the EU institutions outside the Treaties. The thesis concludes that the adoption of the EU-Turkey Statement by the Member States was against CJEU case law especially concerning the principal of conferral and the principle of sincere cooperation. This is because significant parts of the fields where the statement is applied is under EU’s exclusive competence. CJEU case law also forbids the EU institutions to participate in Member State action that encroaches on EU’s exclusive competence. When the General Court did not consider these questions that follow from the CJEU’s interpretation of the Treaties, its orders that became final led to the creation of an inconsistent legal situation of EU law. Through the assessment of the EU-Turkey Statement, the thesis brings forward the development that has led to agreements adopted in accordance with Article 218 TFEU being replaced with informal agreements. The other conclusion of the thesis is that the bypassing of the procedural rules of the Treaties on the conclusion of agreements leads to the weakening of legal guarantees of the Treaties, especially when commitments are made similarly as in the EU-Turkey Statement. The thesis suggest that the assigning of measures that implement EU policies, and that are intended to be binding, as unofficial agreements of the Member States can lead to a development where it is increasingly difficult for the CJEU to make sure that the law is observed in the interpretation and application of the Treaties. Even though the General Court orders are final, the ECJ has not reviewed the EU-Turkey Statement in substance. It is therefore possible that the Court will still rule on the question of the EU-Turkey Statement or a similar measure. The thesis suggests that the partly incoherent state of EU law can be solved using the meta-teleological approached used by the CJEU. By recognizing the connection of a single decision to the entire system of EU law and its development, it is possible to avoid the risk of a creation of a parallel legal sphere, where EU policies are applied, but legal protection is not available.
  • Sorvaniemi, Saara (Helsingin yliopisto, 2020)
    The Energy Charter Treaty (ECT) is one of the most frequently invoked international investment treaties. Characteristically to modern international investment law, it provides for investor-state dispute settlement (ISDS). The ECT is a multilateral treaty to which the EU, EU member states (with the exception of Italy) and several non-EU states are parties. Therefore, it entails the possibility of settling intra-EU disputes, that is disputes between EU based investors and EU member states, by international arbitration. Before the Treaty of Lisbon and the inclusion of foreign direct investment in the common commercial policy of the EU, international investment law was the main tool of investment policy in Europe. For decades, international law and EU law were able to coexist and to harmonically interact. However, since the enlargement of the EU to the East, issues between EU law and international investment law and arbitration have preoccupied investors, EU member states and the European Commission. EU member states have argued since 2007 that intra-EU bilateral investment treaties have been superseded by EU law. In 2018, the claim was partially successful when the CJEU concluded in its Achmea judgement that ISDS arbitration clauses in intra-EU bilateral investment treaties are precluded by EU law. Under the ECT, the intra-EU jurisdictional objections have also been made since 2007, but ECT tribunals have consistently rejected them. The study examines the ECT panels’ jurisdiction in investor-state arbitration in an intra-EU context. As the Achmea judgement has been the most important recent development relating to the issue of jurisdiction of investment tribunals in intra-EU cases, the thesis examines especially how arbitral tribunals under the ECT have assessed the intra-EU jurisdictional objection before and after Achmea. Because the aim of the thesis is to identify relevant legal norms and to clarify their content in the light of recent case law, a doctrinal method is assumed. The study is conducted from a public international law perspective with limited elements of EU law. Hence, the doctrine of legal sources is crucial. The most relevant sources for the study are: 1) the ECT, Article 26(1) of the treaty in particular, as the jurisdictional basis of an arbitral tribunal and 2) ECT case law relating intra-EU disputes as it is what translates treaty language into operative law. Since the power to determine the extent of jurisdiction lies with the arbitral tribunal itself, jurisdictional issues in particular should be examined in the light of case law. In addition, customary international law regarding treaty conflict and treaty interpretation are included in the study as treaty-based rules have to be understood in the context of general rules of international law. In order for an arbitral tribunal to have jurisdiction under Article 26(1) ECT, five conditions must be met: 1) there must be a dispute concerning an alleged breach of an obligation under Part III of the ECT by a contracting party; 2) the dispute must relate to an investment as defined by the ECT; 3) the investment must be in the area of a contracting party; 4) the claimant must be an investor of another contracting party; and 5) the events with which the claim is concerned must have occurred at a date such as to give the tribunal jurisdiction. In summary, EU actors have argued that as the investor in intra-EU disputes is not from another contracting party (but from the area of the EU) the investment relations are subject to the EU’s regulatory framework and that the ECT and EU law have conflicting rules warranting EU law to prevail in intra-EU relations. Based on the research, it is established that ECT panels have jurisdiction in intra-EU disputes. In terms of argumentation, the case law rejecting the intra-EU jurisdictional objection is consistent enough to form the following general level conclusions: 1) interpretation of Article 26(1) ECT in accordance with the interpretation rules of customary international law is clear in including intra-EU disputes; and 2) there is no conflict between ISDS under the ECT and EU law. What remains undecided is the potential status of EU law from the perspective of the ECT. Application of EU law could only be possible based on international law that requires it and while the tribunals have assessed applying EU law based on e.g. the lex specialis and lex posterior principles or an inter se agreement, they have not formed a single approach. In fact, by stating that the interpretation of Article 26(1) ECT is clear and that there is no conflict with EU law, the tribunals leave little chance for applying EU law and therefore, little chance for the Achmea judgement or potential future developments of EU law to have an impact on the tribunals’ jurisdiction. Consequently, for the time being, the intra-EU claims under the ECT remain arbitrable.
  • Zupancic, Neza; Havu, Katri Annikki (2017)
    This comment article discusses the Unfair Commercial Practices Directive in the context of pre-installed software. Moreover, the text analyses the interface between consumer and competition law as regards issues pertaining to tied-in software. The article presents critical remarks on the separate nature of the enforcement systems of EU consumer and competition law.
  • Juonala, Oona (Helsingin yliopisto, 2020)
    Online platforms have become a major actor in the EU Digital Single Market. They offer a wide range of services, such as social media and streaming services. The platform economy is in general perceived to have high growth potential in Europe. Despite the popularity and growth potential of online platforms, their regulation in the EU is fragmented. Online platforms are regulated on the EU level through, inter alia, the Electronic Commerce Directive. In addition, they might also be subject to regulation on a national level and in some cases, even on a local level. This fragmentation of the regulatory framework has resulted in an uncertainty of the applicable rules. addition, the regulatory environment of the EU is not favourable for online platforms to scale and develop in, which in turn has stifled innovation. The European Commission has addressed this issue in its various initiatives. As a response, it will publish a draft proposal on the new Digital Services Act in the fourth quarter of 2020 that will modernise the legal framework for online platforms. The purpose of this thesis is to examine how online platforms should be regulated on the EU level in light of the new Digital Services Act. This research is divided into two separate research questions: - How has the approach of the European Commission towards the regulation of online platforms evolved since 2015? - What kind of regulatory model should be adopted for the regulation of online platforms in the context of the upcoming Digital Services Act of the EU? In the first part of this research the author provides a background on the existing legislative framework applicable to online platforms. Policy papers by the European Commission are analysed in order to study its approach towards the issue. In the second part, the characteristics of different regulatory models are examined and their suitability for the regulation of online platforms in the context of the EU is analysed. The scope of research is narrowed down to the regulatory models of top-down regulation, co-regulation, self-regulation, transferring powers to existing regulatory authorities and creating a new centralised regulatory authority. Regarding the first research question, this study finds that the Commission has had an inconsistent approach towards the regulation of online platforms. It has highlighted the importance of platforms and their regulation but has avoided introducing concrete proposals until the Digital Services Act. Regarding the second research question, this study finds that online platforms are a new dynamic business model that top-down regulation is too inflexible to regulate. Taking into account the characteristics of online platforms and the division of competences in the EU, this study recommends co-regulation for the regulation of online platforms.
  • Howells, Geraint; Twigg-Flesner, Christian; Wilhelmsson, Thomas (Routledge, 2017)
    In Rethinking EU Consumer Law, the authors analyse the development of EU consumer law on the basis of a number of clear themes, which are then traced through specific areas. Recurring themes include the artificiality of the EU’s consumer image, the problems created by the drive towards maximum harmonisation, and the unexpected effects EU Consumer Law has had on national law. The book argues that EU Consumer Law has the potential of enhancing the protecting of consumers throughout the EU and could offer a model for consumer law elsewhere in the world, but in order to unlock this potential, there needs to be a rethink with regard to the EU’s approach to consumer law and policy.
  • Hancher, Leigh; Talus, Kim; Wüstenberg, Moritz (2021)
    The continual availability of energy is economically and socially essential, but is primarily reliant on private operators and investments to be maintained and developed. Investments in the energy sector are typically highly capital intensive and require long payback periods. This in turn calls for legal and regulatory stability for such investments by the legislator. While changes to laws are inevitable, such changes should be implemented prospectively and take into account the legitimate expectations attached to existing investments. In this article we analyse the recent practice of the EU to retrospectively apply legal rules in the energy sector. Our research shows that it has been common practice of the EU to grant transitional periods and grandfathering rights to allow market participants to adapt to the ‘new rules of the game’. However, while this represents common practice, our research shows that this practice is applied with discretion and can even be misused in the pursuit of political objectives, violating established legal principles including legitimate expectations and legal certainty.
  • Pohjankoski, Pekka Sakari (2021)
    Does the EU have enough leverage to police the rule of law in Member States? This article first outlines how the infringement procedure is functionally adequate to address breaches of the rule of law. It argues that EU law entails “structural obligations” for Member States to uphold the rule of law within their legal systems. To the extent respecting such structural obligations is indispensable for observing specific EU law rules, their breach can be the target of infringement proceedings. The article then analyses the EU’s leverage to guarantee the authority of EU law in case of Member States’ non-compliance with fines imposed in that procedure. The article concludes that the recovery of fines by set-off against EU money enables effective policing if respect for the rule of law is deficient, and constitutes, therefore, an essential constitutional guarantee of the EU legal order.
  • Fichera, Massimo (2020)
    This article claims that, despite its ambivalent relationship with the heterarchical paradigm, A Union of Peoples is a truly innovative contribution to the complex debate on the European project, especially in the current troubled climate. Its ability to dismantle the prevailing positivist understanding of the interaction between legal orders and to stand out from the overwhelming and often repetitive literature on the philosophy of EU law should be praised. What is especially noteworthy is the idea of “corrective justice.” This notion explains very well the adoption of financial assistance measures as expression of a new form of solidarity, based on the notion of fair redress for a committed wrong, namely the structural deficiencies detectable in the design of the eurozone.
  • Heikura, Henri Hannu Juhani (Helsingin yliopisto, 2021)
    Tämä tutkielma käsittelee rahanpesun ehkäisemistä ja etenkin raportointivelvollisten yritysten ja yksityissektorin roolia siinä. Tutkielma käsittelee rahanpesua yleistasolla, moderneja rahanpesun muotoja, ja vaikutuksia yhteiskunnalle. Tämän lisäksi tutkielma esittelee EU-lainsäädäntöä aiheeseen liittyen erityisesti EU:n neljättä, viidettä ja kuudetta rahanpesudirektiiviä, ja niiden asettamia vaatimuksia. Tutkielma esittelee ja arvioi yritysten AML-compliance prosesseja kuten asiakkaan tunnistamista, riskiarvion tekemistä, tilitapahtumien seurantaa sekä epäilyttävien tapahtumien raportointia. Tämän lisäksi, tutkielma arvioi rahanpesun ehkäisemistä corporate governance – näkökulmasta, sekä arvioi compliance-prosessista syntyviä kuluja sekä riskejä yrityksille, sekä näiden perusteella rahanpesun ehkäisemisen tehokkuutta. Johtavatko nämä varsin tiukat vaatimukset ja korkeat compliance-kulut tehokkaaseen lopputulokseen? This master’s thesis discusses and analyzes the topic of anti-money laundering, and especially the role of obliged entities and private sector. The thesis will introduce the general topic of money laundering, its modern methods, impact to the society and why preventing money laundering is of utmost importance. The thesis will present the relevant EU legislation, from which the obligations for obliged entities spring from, mainly, the fourth, fifth and sixth anti-money laundering directives. In addition to presenting the phases of companies’ compliance processes such as know your customer, risk assessment, transaction monitoring and suspicious activity reporting, the thesis will analyze the issue from a point of view of corporate governance and evaluate the costs and risks for obliged entities, and on the basis of these, the efficiency of the framework and process for prevention of money laundering. Do strict requirements towards obliged entities and their high compliance costs lead to an efficient result in preventing money laundering.
  • Azdajic-Gorjackovski, Agata (Helsingin yliopisto, 2021)
    This thesis aims to introduce the reader to the construct of the fashion industry, the historical relationship between fashion design and intellectual property (IP) frameworks, and future commercial benefits related to integrated legal legislation among international influencers such as the US and the EU. France and the UK's design legislation will be reviewed in addition to EU’s Member States protection under the Council Regulation on Community Design (EC) No 6/2002 and Directive 98/71/EC of the European Parliament and the Council on Legal Protections of Design. In comparison to Europe and its Member States, the US’s lax intellectual Property framework will be explored, with additional focus on failed attempts at Copyright legislation reform to include fashion through the Design Piracy Prohibition Act (DPPA) and Innovative Design and Prevention Act (IDPPA). Through thorough analysis, the author aims to establish the relevant need for design legislation within the US and outline the economic and commercial profit that harmonized protection will potentially bring to the industry on a global scale. Moreover, the author intends to shed light on potential new economic theories that may affect the current legal structure and hopefully push for modernization of both the fashion industry and the laws that aim to protect it. The first chapter’s main focus is to introduce the reader to the fashion industry, and define fashion design, fashion innovation, and outline the current hierarchical structure of the industry. Chapter two intends to provide historical context fashion has played within legal rhetoric and its introduction to IP frameworks. Chapter three will introduce the foundations of fast fashion through a business analysis of France and NYC during the interwar years. Furthermore, the first fashion lobbyist attempts will be explored, through the formation of The Fashion Originator’s Guild of America (FOGA), which would later inspire modern-day activist organizations such as the Council of Fashion Designers of America (CFDA) and American Apparel & Footwear Association(AAFA), which is explored in the final subchapter of Chapter three. Chapter four shall shed light on the influence of international treaties in regards to IP legislation and internationally trading countries. Moreover, the current complex issues related to lack of harmonization between the US and the EU will be exposed, and treaties that aim to provide relief to fashion’s international legal setbacks. Chapter five will introduce the US IP framework of the fashion industry, while also providing the current limitations traditional IP structure has when providing protections for the industry. Lastly, Chapter five will review modern attempts at copyright legislation, through the DPPA and IDPPA, which aimed at achieving a design law reform in the US for the fashion industry and provide a more inclusive legal structure. The fifth chapter shall be a comparative review and outline the lack of global immersion of a legal construct between the EU and the US and the potential global benefits the fashion industry shall gain from an international legal accord between the main markets related to this thesis Chapter six reviews current economic theories that have resulted from the US’s lax IP system, which includes the piracy paradox, and its controversial benefits to the fashion industry. Moreover, current economic theories such as circular economy will be highlighted as they may provide the change that fashion needs to open the grounds for design reform. Chapter seven outlines the European sector through the formation of domestic and EU legislation, and a highlighted look into Europe’s fashion capitals of France and the UK. Furthermore, EU regulatory law and directives will be defined, through the Council Regulation on Community Design (EC) No 6/2002 and Directive 98/71/EC of the European Parliament and the Council on Legal Protections of Design. This legal rhetoric will be explored through the scope of the fashion industry, and provide context to fashion’s benefits from design legislation in the European market. Chapter eight provides a final comparison of the two main fashion sectors, with a concluding argument highlighting the benefits of potential design reform in the US, as well as for the overall harmonization between the US and Europe.