Oikeustieteellinen tiedekunta

 

Recent Submissions

  • Talus, Anu (2019)
    In essence, the transparency and data protection regimes draw from different grounds. The aim of the research was to first identify and analyze the different requirements of the transparency and data protection regimes and thereafter seek the solution for balancing the said requirements. The rules examined in this research regulate the disclosure of information and processing of personal data by the EU´institutions. However, the solution for the tension is sought from the European law in a wider perspective. The analysis of the colliding rules draws from normative legal analysis. Critical legal positivism considers the rules only examples of issues pertaining to the surface level of law and this research draws essentially from the separation of rules and principles based on the doctrines elaborated by such scholars as Ronald Dworkin and Robert Alexy. The requirements drawing from the data protection legislation and the transparency legislation are contradictory to a certain extent and the tension on the level of rules is apparent. The most apparent contradiction relates to the purpose limitation principle, which closely relates to the further processing of personal data and the requirements to reason the disclosure of personal data. Simultaneously, the public access regime builds on a basis where applications for the requests of information do not need to be reasoned. However, the collision of rules does not necessarily reflect a collision of the underlying principles and the research will seek the balance between the examined rules by reconciling the underlying principles of the data protection and public access to documents regimes. After the essence of the examined rights has been identified, it will become clear that the collision does not exist on the level of principles. Besides privacy and self-determination, the requirement to have legal basis is considered to form the hard core of protection of personal data. This element also separates it from privacy. It follows that the right to protection of personal data can be reconciled with the right to public access to documents while the essence of both rights are preserved. A suggestion how to reconcile the examined rights will be given and the concluding analysis will also provide tools for balancing the said rights in the current legal framework by interpretation. There has been earlier study in this field of law. However, this study dates from 2007 and significant changes have taken place after that. A recast process on the Regulation 1049/2001 on public access to documents has been launched and a vast EU data protection reform was finished in the spring 2016. Also, the Court of Justice of the European Union has delivered significant decisions concerning the relationship between protection of personal data and transparency after 2007. Besides providing a new angle for seeking the solution by balancing the underlying principles, this research also provides first analysis of the relationship between protection of personal data and transparency in the current legal framework. Keywords data protection, privacy, personal data, transparency, purpose limitation, further processing, block exemption, democracy
  • Wasastjerna, Maria (Unigrafia, 2019)
    This doctoral thesis examines the role of privacy in competition law in the age of digitalization and big data. It explores the growing significance of data protection and looks at the interlinkage between privacy and competition policy, thereby testing conventional boundaries and expanding horizons. With the transition to the data-driven economy, our society has grown to rely on products and services that are free of charge to consumers, but because they have no monetary price, there is hesitation whether, and how, action should follow. The thesis questions whether competition policy is too fixated on the idea that the only real harm to consumers consists of rising prices. Consumers pay for online services with time and data. When many products and services seem free in today’s online markets, with user data as the invisible cost, looking only at price effects in competition analysis is misleading. The thesis asserts that an overly price-centered approach to competition policy risks overlooking welfare harms that relate to significant non-price dimensions, such as privacy and consumer choice. The research objectives and questions explored in the thesis can be summarized by way of sub-questions, namely what is the role (if any) of personal data and privacy in competition law? Should competition policy protect privacy among its objectives, and if so - how? The findings point to current shortcomings in competition law and propose a rethinking of competition policy for the data economy. This includes a proposal to expand horizons beyond a static price-centric approach, incorporating a privacy dimension to competition law and exploring a conjoined policy approach. Here, competition law is examined not only from a strictly legal perspective, but in a wider context, including elements that are societal, political, economic, historical and cultural. The thesis emphasizes that over time, many different values have been advocated in the name of competition law and depending on the interests that are being promoted, different objectives are put forward as a driver for law enforcement. This is all the more true today when observing the public discussion and politics around competition in digital markets and companies’ use of data as market power, think only of the Cambridge-Analytica scandal and Facebook’s handling of personal information. The topic of the thesis is timely and highly relevant. By providing a comprehensive insight into competition policy in the digital economy, and especially the role of personal data in this context, the thesis offers important contributions and policy considerations to the current debate. Readers are provided with an overview of the contemporary interplay between competition, data and privacy in the digital economy, including implications for business practice, reflections on the way forward and suggestions for future research.
  • Scherleitner, Moritz (2019)
    In many different circumstances, hybrid financial instruments (HFIs) can be an appealing source of finance. At the same time, however, such instruments may also be used in tax planning. Its differential treatment in the affected jurisdictions can give rise to double non-taxation of a payment. Exploiting this allows for significant reductions in the corporate tax liability. In the aftermath of the recent financial crisis, such “tax arbitrage” has increasingly entered debate within the G20, OECD, EU and UN. As a result various concepts of how to engage with the problem were developed. Besides these, some states already rely on provisions that can be of relevance in this context. Starting from these developments, the objective of the monograph is to help those in charge of solving the problem to make a more educated decision. As such, it addresses tax policymakers around the world. For the sake of reaching its goals, the thesis applies a socio-legal method. This should acknowledge that tax policymakers design rules in a context that is broader than existing tax law. They have to consider the traditional principles of tax policy, including tax competition constraints, as well as legal dogmatic restrictions – and does this thesis. Against this background, the dissertation is structured in the following way: In chapter 1, the reader is introduced into the topic and the design of the research. In chapter 2, HFIs are shed light on from the perspective of tax law, corporate finance and economics. The goal is to understand their role in reality. In chapter 3, the guiding principles for company taxation are reviewed. Contemporary tax research relies on the triumvirate: (i) equity, (ii) efficiency and (iii) administrability. So does this thesis. The literature on these issues is considered in sufficient depth, but with a strong focus on the research objectives. Chapter 4 builds the bridge between the above preparatory part and the core research. This happens by working out the non-legal concerns attached to tax arbitrage with HFIs. They include three from an inter-taxpayer equity perspective, three from an inter-nation equity perspective and two from an efficiency perspective. This is the problem definition. Chapters 5¬8 investigate how four approaches address these concerns. These are the “OECD approach”, the “low tax approach”, the “UN approach” and the “recharacterisation approach”. The focus will be on tax arbitrage transactions with HFIs that rely on a qualification conflict and substitute transactions with financial instruments that reach the same, or a similar, result. The research on these approaches also takes into account their administrability and legal dogmatic considerations. In doing so, the collateral damage caused by the rules is assessed as well. Also this happens from a multi-disciplinary perspective. In chapter 9, the author presents his own thoughts on what developed and developing countries may want to consider in dealing with the problem of tax arbitrage with HFIs. The author is aware of tax arbitrage with HFIs only being a part of the challenges tax policymakers have to deal with. In an attempt to consider this, the discussion is put into a broader context. As a direct consequence thereof, the thesis also lacks a clear solution. Rather, it aims to provide information that should improve tax policymakers´ ability to address the issue. It is left up to them to trade-off equity, efficiency and administrability considerations, paying attention to what is possible de lege lata.
  • Noparast, Zahra (Helsingin yliopisto, 2019)
    The UN peacekeeping missions have constituted a substantial part of international attempts for maintaining and restoring international peace and security. The missions have been deployed in almost every part of the world to control conflict situations and keep the adversaries apart. In some cases the operations held all the hallmarks of an enforcement action and did not observe the three pillars of the UN peacekeeping action. The deployment of forces in "peace enforcement", dominantly after the Cold War with questionable legal basis led to unfortunate outcomes. Furthermore, non-stop reports of alleged crimes committed by military, and civil peacekeeping personnel tarnished the image of the organization as a peace-broker. It seems that the organization is unable to solve the problems attached to the deployment and conduct of the operations. Having said that one has to acknowledge that during last seven decades the organization has set up many panels, committees, commissions which led to the publication of lengthy reports with different titles for overcoming those problems, but the recommendations fell on deaf ears, and the member states did not comply with them, because it was not legally binding. The best example was the Zied report, which was published after the widespread alleged atrocities of the peace personnel in Congo in the early 1990s. Since these political attempts did not yield any tangible results, the legal approach to remove the problems so as to have successful missions seems inevitable. According to paragraph 1(a) of article 13 of the UN Charter, The General Assembly is entrusted to encourage "…the progressive development of international law and its codification…" The organization has been successful in this field and sponsored the adoption of many legal instruments such as the four Geneva Conventions of 1949. Moreover, the UN General Assembly established a permanent subsidiary organ, namely; the International Law Commission to enhance the process of law-making, but all the attempts have been for bringing law and order only among member states. The organization itself is not a party to those legal instruments, and this situation caused many difficulties for the international community, specifically as far as legal successful conduct and command of UN peace operations are concerned. Since the UN peace operations under any title are the only mechanism at the service of the international community, revisiting the causes of the failure of the missions in number of cases is indispensable. Therefore, this dissertation presents a thorough research of the organization's record of observing international law in terms of establishing, conducting, commanding and financing the peace missions. The main question of this research is how to make the UN peacekeeping operation more successful while the rules of international law could be observed in every step of establishing a mission. In this research the connection between the major problems that the organization has experienced and the absence of UN conventional obligation is scrutinized to the point of conclusion that each problem could be overcome if the international community adopts a comprehensive legal convention on peacekeeping. To the author of this thesis, the suggested convention would comprise existing legal instruments such as the four Geneva Conventions, and adaptation of them to the status of the UN as an international organization. However, new codifications are necessary where there are no legal international instruments for removing the ever-lasting problems of deploying a peace operation. The main areas which require new codification are as follows: giving the peace enforcement action a proper legal basis; determining the effective command and control of forces by the organization, or establishing dual responsibility of force-contributing states; establishing an effective, and authentic accountability mechanism for the prosecution of the alleged criminal acts of peace personnel by either national states, or an international tribunal; setting up a proper mechanism for monitoring justifiable financial contribution of all member states to the cause in a way that no state, large or small could withhold their assessed share of contribution; and finally observing well-functioning of the Secretariat which has played a defining role in the outcome of every peace operation. The proposal in this dissertation may be materialized if some countries take the initiative and put it on the Agenda of the General Assembly for discussion. Let's hope there will be enough volunteers who consider the lawful and orderly manner of deploying peacekeeping missions as an urgent and vital step for having a peaceful world which would be beneficial for all member states. .
  • Hokkanen, Marja (Hokkanen Marja, 2019)
    If derivatives are capable of destabilizing the world economy, they are too powerful a tool to be ignored in European value added tax (VAT). That said, while certain types of derivatives, such as gold derivatives and certain options, are currently regulated under the EU VAT Directive (2006/112/EC), the lack of regulation in respect of derivatives in general has led to individual EU Member States treating derivatives very differently. The distinct lack of regulation on an EU level brings uncertainty as to how these instruments should be treated and the resulting inconsistencies and lack of guidance at a national level has effectively jeopardized any prospect of achieving neutrality and equality of treatment across the EU derivatives market. The European Commission published its proposal for a Council Directive amending Directive 2006/112/EC on the common system of value added tax in 2007. These proposals also included regulation on derivatives. However, a final compromise was never reached and the proposals were finally withdrawn by the Commission in April 2016. The challenge to define derivatives in the scope of the European VAT System is not easy because of the diversity of derivatives. At the same time, the European VAT System sets challenges to the analyze phenomena as legal tender, consideration or reciprocal supplies which have a special role in the world of derivatives, just to name few. The aim of the research is to define the most common types of derivatives i.e. commodity and financial options, futures, forwards and swaps in terms of the European VAT system and to bring clarity to the EU area regarding their VAT treatment on the basis of the VAT Directive, the primary purpose being to give concrete answers as to how derivatives should be treated with specific reference to the scope of the VAT system as defined under Articles 1 and 2(1) of the Directive. In addition to the supply of commodities, interesting questions arise regarding whether derivative trading can be considered an economic activity as defined under Article 9(1) of the VAT Directive. Fundamental questions include whether the VAT system itself effectively conspires to exclude derivatives from its scope; whether derivatives traders effectively act as taxable persons under the VAT system; whether derivatives as financial instruments or contracts represent transactions in goods or services in VAT terms; or, whether the underlying transactions in goods and services should provide the sole focus for VAT. In addition, the nature of derivatives as financial instruments raises questions as to whether derivatives should also be entitled to the exemption afforded financial and insurance services under Article 135(1) of the VAT Directive. Other pertinent questions arising concern are what, if anything, constitutes consideration under a derivative as well as when VAT becomes due, i.e. when the chargeable event takes place. In addressing the research question, the doctrinal method is appropriate in bringing clarity to the definition of the scope of VAT as a key first step. The interpretation of Articles 2(1)(a) and (c), 9(1) and 135(1) of the VAT Directive are crucial in this regard and effectively forms the basis for the research. A testbed created from the key features (building blocks) of the VAT system forms the basis for the systems thinking. These key features are the role of VAT as a tax on consumption, the wide scope of VAT, the narrow interpretation of exempt supplies as well as the principle of neutrality in terms of similar supplies.
  • Soirila, Ukri (Helsingin yliopisto, 2018)
    The 1990s and the first years of the twenty-first century witnessed the sporadic emergence of a new vision of global law – one based on the human individual and humanity at large. Although it has taken many different forms, this vision has been uniform in its push to radically alter how we understand international law by seeking to posit the human as the primary subject of the international legal order and humanity as its main source of legitimacy. The vision is spelled out rather explicitly in some academic works, hinted at in others, and pops up here and there in international legal practice. Together, the thesis calls these instances “the law of humanity project”. The thesis provides an immanent critique of that project. In particular, it focuses on the outcomes of the project, asking how might the circulation of the humanity language, and in particular the claim that we are or should be moving towards law of humanity, produce and sustain such relations of power which are inimical to the aims of the project? In so doing, the thesis proceeds through three steps. Part I situates the emergence of the law of humanity project in a specific historical and theoretical context in the post-Cold War period and analyses its different academic manifestations. The central finding is that the project seeks to achieve its goals by increasing the importance and circulation of certain key concepts which are assumed to change the way we perceive international law. Three such concepts are identified, namely human rights, human security and human dignity. Part II challenges the underlying assumption of the law of humanity project that the increased relevance of the aforementioned concepts would necessarily change international law to the direction desired by the proponents of the project. Addressing each of the concepts individually, the Part argues that due to their indeterminacy, all of the concepts can be used for myriad purposes, some of which can be entirely opposite to the aims of the law of humanity theorists. Part III shifts gear and focuses on how humanity rhetoric has actually been used in action, and with what outcomes. The Part makes two key arguments for the entire thesis. The first is that although the humanity rhetoric has been impressive, it is not clear that it would have increased the well-being of individuals or empowered them. Where the rhetoric has clearly made an impact, however, is in disciplining the state and in allowing deep-penetrating interventions into what goes on within states and how they are organized. The second key argument is that the law of humanity project may operate like an ideology, obscuring how the humanity rhetoric can be used to produce and sustain relations of power by presenting all uses of rhetoric as further steps in a rather linear story culminating in the emergence of “law of humanity”. In so doing, it may enable such relations of power which are inimical to the main ideas of the law of humanity project and which are difficult to reconcile with the humanity rhetoric. This is so in particular because of forms of power/knowledge which may greatly benefit from the law of humanity project disciplining the state.
  • Männistö, Eero (Helsingin Kamari Oy, 2018)
    The title of this doctoral dissertation is the acceptability of retroactive tax legislation. Acceptability is examined particularly in the context of EU law, human rights and fundamental rights. The main question concerns whether the Constitution of Finland should expressly prohibit retroactive tax legislation. The current Constitution includes no such prohibition. The research analyses retroactive tax legislation particularly in the context of harmonised consumption taxation, where the passing-on doctrine is very important. Retroactive tax legislation can cause various disturbances to this doctrine in consumption tax situations. Similar problems can also arise in direct taxation, and therefore the dissertation also discusses direct taxation issues. The methodology of the dissertation is legal dogmatic and partly related to taxation policy. The dissertation includes a theoretical framework for analysing the research questions, and it seeks to clarify the current situation in Finland regarding the acceptability of retroactive tax legislation. It also examines the situations and conditions in which the use of retroactive tax legislation might be acceptable in Finland. The research includes a legal comparison between conditions in Finland, Sweden and Germany. The most significant research finding of the dissertation is that there may be flaws in the current situation in Finland regarding the acceptability of retroactive tax legislation. These flaws are mainly due to the lack of any express prohibition of retroactive tax legislation in the Finnish Constitution. This lack of protection can cause serious difficulties for taxpayers, because they can never be certain that they will not be taxed retroactively. The lack of protection is also evident from an EU law perspective, because protection based on the CJEU case law is rather limited. This also applies to the case law of the European Court of Human Rights, where in only a few cases has the court accepted that retroactive tax legislation infringes the protection of property doctrine. The Charter of Fundamental Rights of the European Union may also only bring more protection in the future, because the role of the Charter is only beginning to develop in the field of taxation. The dissertation also reveals that the level of protection in domestic situations may not always be sufficient in Finland. Under the Finnish system, the parliamentary Committee for Constitutional Law monitors retroactive tax legislation in advance and the courts then exercise a supervisory role after the legislation has been enacted. This approach may not always be enough to protect the final consumer or taxpayer. This dissertation finds that there may be good reasons to consider introducing an express prohibition of retroactive tax legislation in the Constitution of Finland. This consideration should be done comprehensively within the theoretical framework of the dissertation, meaning that any such prohibition should allow the legislator to take active measures, for example against tax avoidance, even retroactively. The main issue nevertheless remains one of finding the right balance between the rights of taxpayers and the public interest.
  • Jansson, Julia (Unigrafia, 2018)
    Most past definitions of terrorism have included a political element. What would terrorist acts be without the political/ideological element? Mass killings, hijackings, bombings... 'Common' crimes, combined with often uncommonly destructive elements. Regardless of this inherent political element, the last decades have seen a global trend of depoliticising terrorism for the purpose of international collaboration. My thesis describes and discusses this trend and the reasons behind it. Following a thorough analysis of international conventions and treaties as well as bilateral extradition treaties from the 1800s until the early 2000s, it suggests that terrorism has been depoliticised due to the existence of the so-called political offence exception to extradition that emerged in extradition treaties in 1834. Because of the exemption, a widely accepted spawn of the revolutionary era, political offenders, in some cases including terrorists, were for a long time protected from extradition. The aim of the depoliticisation formula was to protect ‘legitimate’ political offenders, but exclude terrorists from the protection of the political offence exemption. Alongside the depoliticisation of terrorism, the political offence exemption was growingly limited since the emergence of the modern terrorist threat in the 1970s. In addition to the depoliticisation of terrorism, we have witnessed a contradicting trend of what I call repoliticisation, where special laws and tribunals have been set to deal with the terrorist threat. The new laws, contrary to the depoliticisation strategy, underline the political nature of terrorism by criminalising acts such as the glorification of terrorism. My thesis examines these contrasting trends and takes a critical look at the various implications of both the depoliticisation of terrorism and underlining the political element of it. One of these implications is the decreasing global protection for non-violent political offenders.
  • Paloniitty, Tiina (Juvenes Print Oy, 2018)
    The EU has taken a multi-faceted approach in addressing agricultural runoff, specifically with regards to the eutrophication of the Baltic Sea. The approaches are studied in this thesis resulting in the outcome that when the deliberate regulative attempts fail, the issue in all its complexity is left for the scientists to untangle. The work abides by Martin and Craig’s epistemology of environmental law, and consists of policy analysis, doctrinal research, and jurisprudential examination. When required, the administrative-legal system of Finland is used as an example. The first three instruments examined are the Common Agricultural Policy (the erratic regulator), the Nitrates Directive (the naïve regulator) and the EU Strategy for the Baltic Sea Region (the candid regulator). The closest examination is given to the ambitious regulator who takes the demands for adaptive and integrated water management seriously and issues the Water Framework Directive, which was vested with new normative clout by the CJEU in 2015 (the Weser ruling). The suggested reading of the post-Weserian Directive distinguishes between its internal and external influence, the latter extending to all undertakings with water impacts. The assessment of forbidden derogation partly draws on meticulous scientific analysis that encompasses axiological considerations. Thus in the absence of a determinate and efficient regulator the decision-making territory is conquered by the scientists, whose considerations shirk judicial review—even in the example country where the scope of review is otherwise broad and scientific expertise readily available. The example emphasizes the significance for the legal to properly understand the manner in which scientific knowledge of the environment is produced. When it comes to the predominant paradigm of environmental studies, adaptive management, what is legally speaking normative may have already been decided upon when the legal begins to examine the ‘facts‘ and ’norms’ of the matter. The thesis analyses the relevance and consequences of adaptive management’s socio-ecological aspects from the viewpoint of the regulator / the adjudicator after which the examination continues to the legal sphere, scrutinizing the requirements the scientific reality presents for the legal. The conclusion is that rational natural resources governance only begins when administrative-legal systems are considered contingent on the scientific examination: successful regulation is to be anticipated only when the legal acknowledges the socio-ecological management of complex systems as it is and understands itself as a part of the adaptive cycles, not as a separate decision-making entity.
  • Gurkov, Aleksandr (Unigrafia, 2017)
    The dissertation is focused on the analysis of Russian regulations on arbitral awards deciding over relationships that are subject to competition law rules. This thesis investigates whether such relationships are arbitrable in Russia; in case these disputes can be resolved in arbitration, are there any additional requirements for arbitrators in such cases to secure state competition law policies; and finally, how can a public authority verify that antitrust policies were upheld in an arbitral award? To answer these questions, the research uses a doctrinal methodology, analyzing norms of Russian law. To support the study and make the answers more concrete, judicial practices of Russian courts are analyzed. The structure of this dissertation reflects the study’s set goals. After an introduction to the research, Chapter 2 provides a brief overview of some of the aspects of the Russian legal system that are relevant for the further study. Chapter 3 addresses arbitrability of disputes in question in Russia. Chapters 4, 5, and 6 deal with different aspects of public policy concept application in arbitration in Russia in the targeted group of cases. In particular, Chapter 4 focuses on the general characteristics of the public policy concept of arbitration in Russia, while Chapter 5 tackles more specifically a correlation between a prospective violation of competition law rules and public policy infringement in Russia. Finally, Chapter 6 addresses the extent of court review of arbitral awards and the possibility of such review in awards that could potentially violate Russian antitrust law provisions. Correspondingly, the study provides the following conclusions: 1) disputes involving competition law regulations are arbitrable in Russia, except for those disputes originating from public procurement contracts; 2) violation of Russian competition law can be considered as a violation of Russian public policy, if such violation evidently breaches the prohibition to engage in economic activity aimed at monopolisation and unfair competition; 3) Russian law does not allow substantive review of arbitral awards, even in cases where public policy could be at stake; at the same time, courts do not always follow this rule and sometimes take a closer look at the relations between parties and re-evaluate findings of arbitrators on matters of law.
  • Vasara-Aaltonen, Marianne (Helsingin yliopisto, 2017)
    This research examines the studies of Swedish jurists abroad from ca. 1630 to 1800. The focus is on students of the Academy of Turku with the help of its online database of matriculation records, which also contains biographical information on the students. Thus it has been possible to search among the students for those future jurists who had also studied at foreign universities. The research period covers a good century-and-a-half during which Sweden underwent many profound political and societal changes. The study journeys of the jurists are put into context with these developments. The main research questions are: 1) When were studies abroad most popular and what changes occurred over the period? 2) At which foreign universities did these students enrol? 3) What kind of careers did these men have? 4) Why did aspiring Swedish jurists travel abroad to study? 5) Why did the jurists’ studies abroad change over time? 6) What do these developments reveal about the Swedish legal profession? The study shows that the most popular foreign universities among these Swedish students were the Dutch University of Leiden and the German universities of Rostock, Jena, Halle, and Greifswald. Travels abroad were most common around the middle of the seventeenth century but slowly began to decline in the second half of the century. By the middle of the eighteenth century, these journeys had almost completely stopped. Over half of the students going to Leiden were of noble origin, whereas students at the German universities came from a wider variety of backgrounds. Furthermore, the study illustrates how future jurists did not necessarily study (only) law, but could opt for a variety of subjects. This was especially the case for the noble students. Most of the students held positions within the judiciary during their careers. Especially at the beginning of the research period these careers were often combined with other posts in the civil administration. During the seventeenth century many of the students, especially those who had studied in Leiden, ended up working at courts of appeal, but this was no longer the case after the turn of the eighteenth century. Careers in town judiciaries could be found carrying on longer into the eighteenth century. The rush of Swedish students to foreign universities in the first half of the seventeenth century was linked to the growing administration and especially the founding of the courts of appeal. A great need arose for trained officials, but domestic universities could not yet fulfil that need. The role of the higher nobility was crucial for the development of jurists’ studies abroad in the seventeenth century. Tradition, confessional questions, and political relations affected the choice of university for those travelling abroad. Especially around the middle of the seventeenth century, networks and patronage also played an important part in these study journeys. The turn in the popularity of studies abroad in the seventeenth century is connected to the shift in the position of the higher nobility. The lessening of jurists’ studies abroad in the eighteenth century can be seen in context with paths of advancement within the Swedish administration becoming more regulated and the legal sphere becoming more national. These circumstances made studies abroad less appealing than they had been during the previous century. The decrease was also part of a general decrease in European student migration.
  • Erkkilä, Ville (Helsingin yliopisto, 2017)
    This dissertation is a history of the ideas of German legal historian Franz Wieacker. The broader aim of this study is to analyze the intellectual context in which Wieacker’s texts were situated, thus the German legal scientific discourse from 1933 to 1968. In this study Franz Wieacker’s texts are analyzed in the light of his correspondence and the broader social historical change of the twentieth century Germany. The study concentrates on the intertwinement of his scientific works with the contemporary society, as well as on the development of his personal perception of continuity and meaning in history. The theoretical framework of the dissertation derives from conceptual history and hermeneutics of historiography. As objects of analyze I have picked two concepts which Franz Wieacker often utilized in illuminating European legal history: Rechtsbewusstsein (legal consciousness) and Rechtsgewissen (legal conscience). These concepts were the key terms in his attempt to analyze the themes of justice and the rule of law in European history. In concrete terms, the change in the meanings of Wieacker’s concepts Rechtsgewissen and Rechtsbewusstsein is being tracked in reference to paradigmatic changes in continental legal science and social historical development of Germany. The analysis conducted in this dissertation proves Franz Wieacker’s continuous and firm belief in the necessity of the distinct social position of legal scholars in society. The prestigious status of the ‘juridical estate’ was a premise for social justice. Furthermore, Wieacker’s view on society was shaped by his unconditional trust on the values concerning learnedness and higher education. This preconception was due to his upbringing and attachment to the values of Weimar Republic Bildungsbürgertum, ‘learned bourgeoisie’. As a result, in the later scientific production of Franz Wieacker, the themes of ‘communality’ as the context of legal scholarship and ‘elastic creativity’ as the aim of legal science were significantly important. Wieacker explained the diverse social breaches and recent crises of Germany through a vast narrative of European legal culture, which he constructed with the means of concepts. Despite the radical changes brought about the National-Socialist seizure of power of 1933 and the end of the Second World War in 1945, the core of his scholarly identity remained the same from Weimar to the Federal Republic of Germany.
  • Mäihäniemi, Beata (University of Helsinki, 2017)
    The role of information intermediaries has grown significantly in recent years, due to an increased importance of information as an industry input. It seems that posting any information, independently of using a dominant online platform, may be detrimental to one’s business. Such companies can be considered as unavoidable trading partners, which may enable them to manipulate information and possibly exclude or damage effective competition. These intermediaries may block access to, or bias, the quality of information. The main reason why competition law would be interested in regulating the access to information is that where information is controlled by one network-based dominant undertaking — significant competition problems may occur. Firstly, access to the market may be prevented due to indirect network effects, such as consumers preferring a particular network because of its good reputation or everybody else using it and due to the fact that some networks may give preference to its own complementary services. Secondly, companies that control information may also affect the quality of information provided and this may, in turn, affect consumer welfare. Finally, in some cases, where information is created by means of complicated and costly research, but where it is unprotected by an intellectual property right, the danger of free riding may arise. Therefore, competition law should be extremely careful in granting access to information that constitutes a basis for some business models (e.g. trade secrets), even where such information belongs to a dominant company. One of the findings of this study is that special responsibility should not be extended outside competition law to include general fairness considerations in order to allow access to information. Special responsibility should still, as it has been perceived by conventional competition analysis, only be imposed where the company in question is dominant and where it behaves anticompetitively. On the contrary, business justifications could be increasingly used by the dominant company to show that the dominant undertaking competed on merits and did not resort to anticompetitive practices. Abuse of dominance that occurs in digital markets does not always fit into criteria that were crafted for physical inputs, however this does not denote that the conventional way of conducting an analysis of an abuse of dominance should undergo a total makeover. The Commission should not therefore aim at long-term changes; instead, it should acknowledge how characteristics of digital markets affect analysis of competition law. Law on abuse, as applied to situations where access to information is refused or granted on discriminatory terms, should accommodate rapid technological change; preserve incentives to invest and innovate; focus on consumer harm in the analysis of abuse of dominance and grant a larger role to objective (business) justifications provided by dominant companies. The above-mentioned theoretical findings are applied to a case study on one of the most recognised online platforms that is Google Search investigations in the EU which have recently proceeded to the Commission’s decision, however one that is not yet publically available. The initial outcome of the investigations has been as follows: Google has been fined €2.42 billion for abusing its dominant position as a search engine by granting illegal advantage to another of its products - own comparison shopping service. The thesis analyses two of the practices Google has been initially involved in namely, search bias and restrictions on portability of online search advertising campaigns. These are analysed in detail as to whether they are in fact anticompetitive and can be addressed with a valid theory of harm. The thesis in question confirms the Commission’s findings on Google’s dominance, however it offers alternative arguments for the appropriate theory of harm as to the abusive practice of search bias.
  • Möller, Tia (Suomalainen Lakimiesyhdistys, 2017)
    The Europeanization of private international law is a well-recognized fact. The European Union (EU) has adopted a number of legal instruments in the field of private international law (PIL) in order to create a European area of justice, the objective defined by the EU Treaties. In addition to the Treaty provisions and the EU legislature there is also a third element influencing the Europeanization of PIL: multiannual programmes for the Area of Freedom, Security and Justice. These multiannual programmes have been adopted successively since 1998 (Vienna Action Plan 1998, Tampere Conclusions 1999, Hague Programme 2004, Stockholm Programme 2009, Strategic Guidelines 2014), and they have been adopted by the European Council, and thus by the Member States together with the Commission, and since the Lisbon Treaty, with the president of the European Council. This study analyses the impact of the multiannual programmes in the EU legislative process in the field of PIL and thus, their impact for the Europeanization of PIL. This is discussed from the various angles: the programmes’ relationship to the relevant EU Treaty provisions, concrete guidelines in the programmes for PIL (thus defining the vision of EU PIL) and the programmes’ influence on the EU legislative process. The latter aspect is analysed by examining all the EU PIL legislative acts adopted thus far. Moreover, possible future changes to the content and adoption procedure of multiannual programmes and their impact on future Europeanization of PIL are discussed. The study proposes that the vision of a European area of justice created by the multiannual programmes has played a central role not only in defining the direction of the Europeanization of PIL but also in its actual Europeanization, i.e. in the adoption of EU PIL instruments. In particular, in the area of family law, which varies widely between different legal traditions and legal cultures, the vision of a European area of justice has fostered a common understanding of the legislative work required, thereby furthering the Europeanization of PIL. The multiannual programmes have determined, prior to the formal EU legislative procedure, the PIL issues to be addressed by various legislative acts and also defined the general principles on which PIL cooperation should be based in the EU. The vision has brought real value to the EU Treaty provisions. However, the impact has been limited due to the general nature of the programmes and their limited possibilities in influencing the law on its different aspects. The study is based on the paradigms of legal dogmatics, i.e. legal positivism and the theory of the sources of law. The study uses methods from law and politics and legal history. The impacts of the programmes for the Europeanization of PIL are reflected on different aspects of law: legal order, judicial practices, the legal system and legal culture.
  • Tuori, Klaus (2017)
    The thesis assesses the constitutional implications of the Eurosystem’s changing role and measures during the crisis. It is a supranational central banking system that does not have the state’s economic and political will-formation as its counterpart and control, but rather the constitutional framework in which it was supposed to work, called the European economic constitution. The common macroeconomic policy was elevated to a constitutional level in the Maastricht Treaty and the underlying economic, political and even constitutional assumptions and constraints were agreed upon. The Eurosystem can be assessed as an economic policy actor. How it achieves its objectives and how it performs its tasks. As an independent EU expert institution it also needs to be assessed on the grounds of how it respects and advances the values it is supposed to protect and serve, which is a constitutional perspective. The main question is twofold: How should the legal mandate of the Eurosystem and the ECB be defined and how should the Eurosystem’s measures during the crisis be constitutionally assessed? In the first part, the thesis discovers the economic and institutional framework of the EMU, by reconstructing this economic framework as the European economic constitution. The new elements introduced in the Maastricht Treaty formed a new macroeconomic layer to it, named the European macroeconomic constitution. The EMU and the European macroeconomic constitution are based on three different foundations. The philosophical foundation was economic constitutional thinking largely based on the German ordoliberal approach to the economy. The economic foundation was built on the evolution in central banking and economics that culminated in some form of consensus towards the end of the 1980s. The institutional foundation was the economic, political and legal development in the EU that pave the way towards macroeconomic integration in the form of a common currency. These three different but interlinked foundations happened to share a common ground towards the end of the 1980s and early 1990s that made an agreement on the main elements of the Maastricht Treaty possible. The first part concludes with the forming of the key constitutional principles of the European macroeconomic constitution. The second part of the book places the principles to the test of reality, by analysing the common central banking system through the lens of the constitutional principles, including assessments of many unconventional and contested decisions and measures by the Eurosystem during the crisis. The final conclusions ask some simple questions that raise issues of the constitutional implications of the economic and constitutional crisis and particularly the Eurosystem’s responses to and during the crisis.
  • Marjosola, Heikki (Helsingin yliopisto, 2017)
    This dissertation studies the institutional transformation of the European Union s regulatory framework for financial markets and institutions. The dissertation is based on four articles, which deal with several challenges of the transformation: they analyse the economic rationale behind the institutional reforms; identify possible gaps, missing pieces, and problems that remain; and examine how the Court of Justice of the European Union (CJEU) has handled certain difficult questions about the legality of the new powers and institutional arrangements. The institutional innovations in the EU since the financial crisis have consisted primarily of increasingly hierarchical and supranational means of control, which have been buttressed by a far-reaching maximum harmonisation agenda. The dissertation argues that these choices have not been balanced with due consideration of their costs and trade-offs. Alternative governance strategies, such as the use of general courts as tools of ex post, principles-based enforcement, have been neglected. On the other hand, in certain critical areas of prudential financial regulation, the transfer of competences to the EU level seems incomplete. These arguments will be developed with the help of a novel approach to the study of financial regulation. Drawing on transaction cost economics and contract theory, the approach builds on the notion of law being incomplete and subject to various hazards of opportunism. Two specific governance problems will be examined, each of which can diminish the effectiveness of regulation and threaten the stability of the regulatory contract: (1) the problem of financial innovation, and (2) the problem of regulatory arbitrage and regulatory competition. Especially the latter can also lead to the underproduction of financial stability as a public good. The dissertation also considers the constitutional framework of the institutional transformation. Constitutional rules, whose function is to constrain the use of public power, limit the alternatives of policy-makers and regulators. However, the post-crisis case law of the CJEU, such as the fleshing out by the Court of new intervention powers from a vague Treaty basis, supports the view that the Lisbon Treaty can be seen as a type of highly adjustable relational contract. However, owing to the possibly conflicting relationship between the new financial stability oriented executive powers, and the more complete and directly effective free movement rights, the EU s economic constitution must deal with more fundamental design problems, which might jeopardise its consistency and continuity.
  • Finell, Lisbe (2017)
    The overall aim of the Ph.D. research is to assess the risks of lifting the sector-specific competition provisions in European Union telecommunications from compliance theory perspective. The dissertation examines principally in which manner the competition law pillar at the European Union level, driven by the European Commission s policy, shape compliance with Article 102 of the Treaty on the Functioning of the European Union (TFEU) on abuse of a dominant position. The multiple factors affecting corporate misconduct are examined in the light of mainly seminal general Anglo-Saxon corporate compliance theories and empirical studies, which are completed with competition law specific respective material. Regarding specific analysis of the legitimacy of a certain Article 102 prohibition, a supplementary external benchmark is chosen from the European Convention on Human Rights provisions. The research data and analysis may be characterised as being legal, economic, and sociological. The research results show first of all that the recognisable industry related incentives and opportunities to breach Article 102 are generally high in European Union telecommunications. As to the regulatory response, the study emphasises that the content of regulatory objectives and the manner of their communication play an important part in grounding the various compliance motives of the target group members characterised as normative, economic, and social. Nevertheless, neither the content nor the prioritisation of Article 102 objectives, being able to lead to contradictory results, is clearly communicated overall within the European Union institutions. With respect to substantive legal norms, the clarity and administrability of a prohibition, both relating to ability to comply and awareness of risks of non-compliance, are further important for all three motivational categories. The level of precision of Article 102 prohibitions concerning exclusionary conducts has undoubtedly arisen by the issuance of the Commission Article 102 Guidance Paper. The current assessment criteria of Article 102 Guidance Paper seem, however, to raise still a concern about their level of clarity and easiness to apply even for exclusionary abuses. Regarding legitimacy aspects of the Article 102 regulatory regime, the study has focused on assessing the vast mandated access criteria set for former public utilities by the Article 102 Guidance Paper. The results show that these mandated access criteria do not have a full, unequivocal back-up from European Union Courts case-law. They, nonetheless, may be seen on a principle and general level to satisfy the minimum requirements contained in Article 1 of Protocol No. 1 of European Convention of Human Rights for property right interferences. The nature and level of expected sanctions as well as the enforcement pressure are traditional means to affect compliance. The overall research results show, nonetheless, that the Commission s expected sanctioning and enforcement policy do not, as such, give predominantly strong incentives to invest in compliance with the Article 102 regime. As a consequence, the risks of lifting the sector-specific competition provisions in European Union telecommunications from our research perspective are considered generally high in the short or medium term.
  • Pohjola, Annakaisa (Suomalainen Lakimiesyhdistys, 2017)
    DANGEROUS OFFENDER? A study on offender risk assessment within the Finnish penal system In certain situations, the Finnish Penal System requires a future dangerousness evaluation to be made of criminal offenders. A future dangerousness evaluation is a risk assessment of the probability of an offender guilty of a serious violent crime or sexual offence committing a similar crime in the future. In this multidisciplinary research, I critically examine and interpret the criminal law legislation concerning the risk assessment of offenders, the psychiatric-psychological and normative practices applied to evaluations, the relevant legal principles and basic and human rights as well as the challenges these might raise in this context. In addition, the research introduces empirical research data concerning especially (1) offenders who have been evaluated in terms of their dangerousness in Finland, (2) respective expert statements based on their risk assessments and (3) judgments and decisions where the court has taken into account the dangerousness of these offenders. A positive future dangerousness evaluation has considerable consequences on the right to liberty of an offender. A consequence of an attempt to prevent dangerous offenders from reoffending is that the offenders are required to serve their entire sentence in prison or are banned from getting on regular parole for a life or entire prison sentence. This means that the time to be served in prison is longer than in the case of a normal sentence given on the basis of act culpability and the principle of proportionality. Because an offender who is assessed to be dangerous is punished in part for something which he has not yet committed, the criminal law system requires strong justifiable criteria to be established for these risk assessments. Due to criminal law principles as well as basic and human rights considerations, evaluating the dangerousness of offenders is complicated, as it is necessary to weigh against each other the concrete elements of dangerousness, formal and substantive justice along with the overall legal safeguards of the justice system. This research shows the interconnectedness of different fields of science legal, psychiatric and psychological in evaluating dangerousness. In forensic psychiatry, the medical, especially psychiatric, and psychological aspects are in the foreground whereas in legal proceedings the matter is evaluated on legal grounds. These different approaches in the evaluation of dangerousness present the serious challenge of compatibility. It follows that forensic psychiatry specialists need to be aware of the relevant legal preconditions for a dangerousness assessment of an offender and, on the other hand, judges who evaluate the case in normative terms have to be familiar with the basic principles and premises of forensic psychiatry evaluations. Central to the attempt to assess the dangerousness of offenders and reduce their violent behaviour is to identify relevant risk and protective factors. The future violent behaviour of an offender is difficult to predict with certainty, as it often depends on the changeable situational context and various individual risk and protective factors, all of which have different weight in a risk assessment. The primary risk factors which can be used to predict reoffending include former violent behaviour, substance abuse, psychopathy, antisocial personality disorder and other mental disorders. Psychiatrists and psychologists usually cite these factors in their statements indicating a person s dangerousness. A future dangerousness evaluation is challenging in many ways. Particularly problematic is the possibility of false positive assessment, meaning that an offender is deemed dangerous when he actually is not. For this reason, carrying out a risk assessment requires special diligence, exactness and taking into account all relevant requirements during the entire evaluation process. There is a need for exact and comprehensive legislation which would define the requirements for conducting valid forensic psychiatric evaluations of the future dangerousness of offenders. In this way, the legal rights of offenders would be protected more effectively because there would be a greater certainty of forensic psychiatric evaluations of offenders being reliable in whatever situation. This research introduces a four-step scale for establishing risk levels for violence. It combines qualitative and numeric probabilities and thus defines the dangerousness of an offender taking into account all elements of dangerousness. This scale should be used in the assessments required by Finnish criminal law legislation. It can define the probability of serious violent behaviour of a person based on the risk and protective factors that the offender manifests. The four-step scale determines the risk of violence more accurately than the three-step scale, which means that the court receives more evidence to deliberate upon, which in turn lowers the possibility of erroneous dangerousness evaluations. This study shows that the statements provided by forensic psychiatry experts have gained a huge practical significance in judges work of normatively evaluating dangerousness, which is why the opinion of the court rarely differs from that given by experts. However, while the court is deliberating on the dangerousness evaluations made by forensic psychiatrists, it should consider all the evidence and make the decision on the question of dangerousness independently on normative grounds. Any evidence provided of the dangerousness of an offender is projected to the future, which is why it can never be certain. As a precondition for determining an offender to be dangerous, the court should apply a standard of proof which requires the risk of the offender s violent behaviour to be at least high if not absolute. In other words, the court requires the dangerousness of the offender to be shown with such a high probability that the offender s dangerousness is proven; otherwise, the offender cannot be deemed as dangerous. Therefore, more extensive pro et contra argumentation is recommended to the courts when ruling on the issue of dangerousness. As a statement of dangerousness is projected to the future and as the court has extensive powers of discretion, the court has an obligation to give detailed reasons for an evaluation of dangerousness.
  • Häkkänen, Martti (Suomalainen Lakimiesyhdistys, 2017)
    The Regulation of Building Rights A Study of the Municipal Land Use Planning Function and the Preconditions for Construction from the Perspective of the Landowner's Legal Position The research task is to examine building rights in various legal contexts and, based on this, to formulate general doctrines regarding the regulatory system. Special emphasis is placed on the legal relationship between the municipality as a regulatory authority and the private landowner. The primary objective of the study is to analyse some of the fundamental legal concepts of land use planning and landownership, such as the municipal planning monopoly and building rights, from the substantive law point of view. As a historical framework, the study highlights the manner in which the landowner's right to build has gradually transitioned from the early 20th century through to the 21st century from uncontrolled activity, to a rather strictly regulated one. During the same time period, the objectives for building restrictions have expanded in a remarkable way to encompass everything from the promotion of fire safety to the management of sustainable development. Furthermore, the so-called municipal planning monopoly has gained strength in a variety of ways, particularly in the course of the past decades, as have the expropriation measures available in relation to privately owned land. The land use planning system and building rights are fundamentally connected to the economic value of land. Thus building rights are often the most interesting land userelated factor from the landowner's perspective. At the level of general doctrines, the central question is how the connection between regulation and land value should be understood. The study asserts that land use planning should not be understood as the creator of economic values, but, rather, as the facilitator or inhibitor of the materialization of land values based on demand and supply. This premise has fundamental relevance in interpreting the legal provisions governing the economic rights and obligations of landowners. The study shows that the legal formation of building rights within the land use planning and building regulation system is both materially and procedurally a phased series of events. It is also contingent upon the legal reactions of various persons, namely, upon whether they also actually exercise their rights. The central critique of the study focuses upon the legal reasoning, where the landowner's right to build in this complex system may have been in some cases primarily deduced from the concepts of a subjective right or a municipal planning monopoly. Based on a substantive law examination, the study asserts that such a deduction method is likely to produce a blurred and even distorted picture of the substantive law governing the land use planning system. Instead of concepts, the legal assessment should be focused on the manner in which the substantive provisions, on the one hand, set objectives for, and on the other hand limit the municipality's administrative discretion as the regulator of building rights in the relevant case. For example, the study argues that the answer to the question of the landowner's right to compensation due to the prohibition of construction should not be deduced from the concept of a municipal planning monopoly or from the laconism that the landowner does not have the subjective right to build. On the other hand, as the provisions of the planning and building regulation system are conceptually vague, the formation of building rights is de facto significantly dependent upon the manner in which the municipality exercises its administrative discretion in practice. For instance, the level of land policy activity with which the municipality strives to purchase or expropriate land areas prior to the land being subject to local detailed planning, inversely restricts the possibilities of the private landowner to use their land for construction purposes. The study also discusses several other general doctrines associated with building rights. One of the most fundamental ones is the idea that a building right is formulated in the land use planning system without any charges and thus the legal nature of it is gratuitous. Inversely, it may have been deduced that building rights are not gained benefits, and therefore there is a possibility to weaken or remove them by altering the local detailed plan without compensating the landowner. However, the study asserts that the formation of building rights is in fact linked to a number of payment obligations attached to landownership. This calls for a revision of the doctrine of the gratuitous nature of building rights in such a manner that the formation of building rights can be seen performed for economic consideration. The study, furthermore, argues based on a substantive law examination that the doctrine whereby the weakening or removal of building rights is seen as not being subject to any compensation should be treated with caution. In addition to the formation of building rights, the study examines general doctrines also from the point of view of building, i.e. the exercise of building rights. In this respect, the study shows that despite the strong legal effects of a local detailed plan, several of the flexible norms included in a detailed plan are finally concretized in the building permit. In addition, it is possible to diverge from the defined building rights under restricted conditions. From this point of view, building rights are elastic. On the other hand, it is also brought forth that as such, it is possible to agree upon the exercise of building rights among private parties, but only on a limited basis. Building rights may not be sold or transferred from one property to another without the participation of the municipality.
  • Kivistö, Martti (Suomalainen Lakimiesyhdistys, 2016)
    This dissertation reconstructs the evolutionary journey of the general doctrine of Finnish copyright law, starting with the preparatory stages of the Decree of 1880 on the rights of author and artist and ending with the era of digital technology and European copyright law. The focus of the study is copyright as property, i.e. as a form of ownership that gives an author exclusive control over the use of his or her work. Parallel to the gradual build-up of the legal position of the author, the emergence of various public interest goals that offset this development and their impact on law is also monitored. The study primarily operates within the framework set out by the Nordic copyright law and scholarly doctrine. In terms of methodology, the study builds on the assumption of the legal system being a layered structure wherein the elements of general doctrine, that is, theories, concepts, and principles, reside within a level of legal culture beneath the surface level that consists of statutory law, jurisprudence, and doctrinal opinions. In the opening parts of the study, the evolution of the doctrine and amendments of statutory law are explored in parallel, while also linking both narratives to their contemporary philosophical, societal, and economic surroundings. As a result of this examination, a synthesis combining the doctrinal and legislative elements accrued until the Finnish Copyright Act of 1961 came into effect is first laid out. This general outline is followed by the introduction of four fundamental principles, each of which summarizes a set of qualities that are characteristic to copyright as property. In the next chapters, further development of Nordic and Finnish law-making and general doctrines is addressed to include the second decade of the 2000s. A strict positive law approach that underscores the supremacy of the legislator for setting the balance between author s entitlements and public interest goals has become the hallmark of Nordic copyright law. A reassessment of copyright law from a national fundamental rights perspective in the early 2000s was a distinct Finnish endeavour with no direct equivalence in other Nordic countries. In the wake of the fundamental rights reform of 1995, the constitutional protection of copyright as property has been reaffirmed, but at the same time the relevance of other fundamental rights vis-à-vis the property dimension of copyright has been both accentuated and clarified.

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