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  • Sankari, Suvi (2011)
    This study in EU law analyses the reasoning of the Court of Justice (the Court of Justice of the European Union) in a set of its preliminary rulings. Preliminary rulings are answers to national courts questions on the interpretation (and validity) of EU law called preliminary references. These questions concern specific legal issues that have arisen in legal disputes before the national courts. The Court of Justice alone has the ultimate authority to interpret EU law. The preliminary rulings bind the national courts in the cases giving rise to the preliminary reference, and the interpretations of EU law offered in the preliminary rulings are considered generally binding on all instances applying EU law. EU law is often described as a dynamic legal order and the Court of Justice as at the vanguard of developing it. It is generally assumed that the Court of Justice is striving to realise the EU s meta-level purpose (telos): integration. Against this backdrop one can understand the criticism the Court of Justice is often faced with in certain fields of EU law that can be described as developing. This criticism concerns the Court s (negatively) activist way of not just stating the law but developing or even making law. It is difficult to analyse or prove wrong this accusation as it is not in methodological terms clearly established what constitutes judicial activism, or more exactly where the threshold of negative activism lies. Moreover, one popular approach to assessing the role of the Court of Justice described as integration through law has become fairly political, neglecting to take into consideration the special nature of law as both facilitating and constraining action, not merely a medium for furthering integration. This study offers a legal reasoning approach of a more legalist nature, in order to balance the existing mix of approaches to explaining what the Court of Justice does and how. Reliance on legal reasoning is found to offer a working framework for analysis, whereas the tools for an analysis based on activism are found lacking. The legal reasoning approach enables one to assess whether or not the Court of Justice is pertaining to its own established criteria of interpretation of EU law, and if it is not, one should look more in detail at how the interpretation fits with earlier case-law and doctrines of EU law. This study examines the reasoning of the Court of Justice in a set of objectively chosen cases. The emphasis of the study is on analysing how the Court of Justice applies the established criteria of interpretation it has assumed for itself. Moreover, the judgments are assessed not only in terms of reasoning but also for meaningful silences they contain. The analysis is furthermore contextualised by taking into consideration how the cases were commented by legal scholars, their substantive EU law context, and also their larger politico-historical context. In this study, the analysis largely shows that the Court of Justice is interpreting EU law in accordance with its previous practice. Its reasoning retains connection with the linguistic or semiotic criteria of interpretation, while emphasis lies on systemic reasoning. Moreover, although there are a few judgments where the Court of Justice offers clearly dynamic reasoning or what can be considered as substantive reasoning stemming from, for example, common sense or reasonableness, such reasons are most often given in addition to systemic ones. In this sense and even when considered in its broader context, the case-law analysed in this study does not portray a specifically activist image of the Court of Justice. The legal reasoning approach is a valid alternative for explaining how and why the Court of Justice interprets EU law as it does.
  • Castrén, Lalli (Suomalainen lakimiesyhdistys, 2012)
    This study examines the unbreakable limit of liability of an air freight carrier, an important departure from general contract law principles unique to air law. An unbreakable limit of liability is a monetary limitation of liability originating in an international convention, which cannot be broken even when the damage has been caused intentionally or recklessly and with knowledge that damage would probably result. The breakability of limitations of liability can be traced back to Roman law, and can be described as a significant principle common to the whole of Europe. The unbreakable limit is examined first in the context of general contract law, taking into account the criticism leveled at the intent/gross negligence sabre normally accepted for piercing limitations of liability. Secondly, the development of air transport law conventions, namely the Warsaw and Montreal conventions, is examined to discover why such a radical decision was reached precisely in this system. Since the conventions, in nearly unique fashion, cover both the transport of passengers and cargo, the reasons why it only entered into force internationally for cargo, and not also for damage caused to passengers as originally envisioned by its drafters, should be examined. The discussion and legal and practical argumentation leading to the adoption of the convention are covered in as much detail as possible. The reach of the unbreakable limit also deserves special attention. While, in theory, limited simply to transportation by air, the scope of the Montreal convention may possibly extend its reach into other forms of transport, nominally governed by other conventions and national legislation with differing limits and liability systems. Some of this supplementary or conflicting legislation is of European origin, which is why the role of the European Union vis-à-vis air and transport law is also examined. Past EU legislation and jurisprudence represent significant threats or opportunities, depending on one s viewpoint towards the unbreakability of the limit. Fundamentally, the unbreakable limit of liability is the result of a convoluted international political process, characterized by an almost complete focus on the carriage of passengers, with the cargo rules generally only following on as an afterthought. Specifically, it is not unreasonable to describe the limit as a convention-based rule for the division of the parties duty to insure the cargo, with the limit representing the maximum insurance coverage required by the air carrier, thus leaving it to the consignor to either procure additional insurance or contract a higher limit of liability from the carrier, if needed.
  • Korkka, Heli (Suomalainen Lakimiesyhdistys, 2015)
    The proceeds of crime shall be ordered forfeit to the State (Penal Code Chapter 10 Section 2 subsection 1). Crime shall not pay. Therefore, the offender or another person or entity that benefited from the offence must be ordered to forfeit the illegal proceeds. This doctoral thesis establishes a theoretically justified model on how the amount of the illegal proceeds should be quantified (the Theoretical Model). The doctoral thesis also demonstrates how the Theoretical Model functions in practice. The thesis analyses forfeiture in the context of corporate crime. A corporate offence is defined as an offence committed within legitimate business operations or in a business environment, for example, in the securities market. Forfeiture plays an important role as a consequence of a corporate offence, as the offence type typically generates considerable economic benefit. An activity qualifying as a corporate offence often produces both legal and illegal benefit. The Theoretical Model adopted in the doctoral thesis separates legal and illegal benefit and, thus, enables limiting the forfeiture to the illegal benefit only. The thesis is divided into three parts. The first part (Presentation of the Research Problem) sets out the regulatory basis of the Theoretical Model. Chapter 1 considers relevant regulation and the related main rules of interpretation. Chapter 2 analyses the nature of forfeiture as sanction by comparing forfeiture and punishment. The comparison is useful as, under the Finnish law, forfeiture cannot be used as a punishment. Chapter 3 establishes an interpretation method applied in the thesis. The provision on forfeiture entails an interpretative tension. On the other hand, forfeiture must not be used as a punishment (forfeiture must be limited to the benefit generated by an offence and not by other factors related to an offence), but, on the other hand, the crime cannot pay (forfeiture must cover all benefit an offence has generated, including indirect benefit). This tension between restrictive and expansive interpretation is managed in the thesis by forming two principles of interpretation: the prohibition of enrichment and the prohibition of punishment. The balance of the principles is relevant throughout the thesis, as it helps to calibrate the set of differing arguments applicable in a concrete situation. The second part of the thesis is devoted to the construction of the Theoretical Model. The model consists of four criteria: the causality requirement between an offense and benefit (Chapter 5), deductibility of expenses resulting from an offence (Chapter 6), estimation of the amount of the illegal proceeds (Chapter 7) and adjustment of forfeiture (Chapter 8). Amongst the criterion, the causality requirement is the most essential, as the causation criteria defines the subject of the forfeiture, i.e. the property a priori considered illegal proceeds to be ordered forfeit. The doctoral thesis adopts a two-phase causality model. At the first phase, the factual causality analyses empirically observable events. The aim is to establish what has happened and which factor in the surrounding world has had such a strong impact for the resulting event (here, illegal proceeds) that the factor can be considered a cause to the consequence. The latter phase analyses to what extent the factual causal connection established at the first phase is judicially relevant (the judicial relevance of the factual causality). At the second phase, the factual causal connection between the offence and the benefit is assessed against the objectives of the provision on forfeiture in order to establish whether the factual causal connection is relevant and, thus, whether the benefit qualifies as illegal proceeds under the Penal Code and, therefore, can be ordered forfeit. The third part of the thesis contextualises the Theoretical Model to the connection of selected corporate offences, i.e. abuse of insider information (Chapter 10) and environmental offences (Chapter 11). The aforementioned offences are selected due to their distinct nature as corporate offences. Abuse of insider information is committed in the business environment, i.e. in the securities market, whereas the environmental offences are most often committed within legal business operations. The contextualisation demonstrates the functionality of the Theoretical Model in practice. The different operational environment of the offences also entails diverging mechanisms of profit generation, which enables an analysis on how the theoretical model works in context of different types of offences. Through the Theoretical Model and its contextualisation, the doctoral thesis establishes that the forfeiture of proceeds of crime can and should be applied in accordance with certain general principles that are neutral as to the type of offence in question however, taking into account the diverging mechanisms of profit generation in different types of offences. The thesis guides the expedient and efficient application of the forfeiture of criminal proceeds, as well as furthers the consistency of legal practice in this respect.
  • Sund-Norrgård, Petra (IPR University Center, 2011)
    Loyalty in Licensing Agreements The purpose of the dissertation is to analyse the impact of the principle of loyalty on licensing agreements from the viewpoint of Finnish law using the traditional legal method (Rechtsdogmatik) combined with empirical data in the form of licensing agreements. The need for good licensing agreements is crucial. One should avoid mechanical and stereotyped agreements in favour of more conscious and goal-oriented ones. When the parties' will and goals have been made clear, the drafting technique should be chosen accordingly. The importance of the principle of loyalty in the interpretation of licensing agreements varies according to their degree of relationality. This is a concept originating in the relational contract theory, more precisely Ian Macneil's spectrum of contracts, where contracts can be placed on an axis according to their degree of relationality. In the dissertation different factors are used to conclude whether the licensing agreement at hand is to be placed on the axis closer to the transactional pole or closer to the relational pole. A conclusion of the dissertation is that few licensing agreements can be placed so close to the transactional pole, that the principle of loyalty lacks importance altogether. The impact of the principle of loyalty the main focus of which is on fostering the contracting parties to behave in accordance with best practices, not for example on altering contract terms is analysed in different situations where the parties' interests typically collide. These situations are discussed from the point of view of three patent and knowhow licensing agreements that differ as to their degree of relationality. A balance needs to be struck between freedom of contract and relational needs. Especially when interpreting more modern licensing agreements, one should not focus on the written document alone, as is often recommended in the literature on Nordic intellectual property law. Neither is the principle of caveat emptor a proper starting point. Moreover, where the parties are of equal bargaining power, one should not assume that the grants in licensing agreements are to be interpreted narrowly. Focus in the interpretation should instead be on the entirety of the circumstances.
  • Huomo, Laura (Suomalainen lakimiesyhdistys, 2013)
    PROJECT FINANCING OF NATURAL GAS PIPELINES A STUDY ON NATURAL GAS PIPELINE PROJECT FINANCING UNDER FINANCIAL LAW AND LAW OF SECURITY INTERESTS. 1 Object and methods of the study Currently, Russia is the only supplier of natural gas to Finland. This study investigates how can the natural gas markets in Finland be opened by constructing a natural gas pipeline from Norway through Sweden to Finland in a manner that would be beneficial under financing laws and the law of security interests. Answers have been sought applying traditional analytical doctrine, utilizing as far as possible the questions enabled by the doctrine. In places where the answers have not been found applying traditional analytical doctrine, Juha Karhu s contemporary approach to the law of security interests has been applied. This study discusses various issues under financial law and law related to security interests related to property located in Finland, Sweden and Norway. The main purpose of this study is to examine whether a project company, as the borrower under a project loan, or the shareholders of a project company, could provide sufficient collateral for loan for a natural gas pipeline project. The legal literature used and discussed in this study includes a large variety of Nordic monographs and general property law books. In addition, Nordic case law concerning certain legal questions about which no literature is available has been studied in detail. 2 Structure of the study The study is divided into sections based on the type of collateral for the project loan. In addition, the study includes a short financing section in which the elements of a natural gas pipeline feasibility study are described, studied and applied to a hypothetical natural gas pipeline project. The discussion of the collateral for the project loan is divided into sections: (i) the property law-related issues concerning the construction of the pipeline and the possibility of pledging real estate owned, leased or expropriated by the project company as collateral for the project loan; (ii) the nature of the intercreditor agreements entered into among the members of the banking syndicate under Finnish, Swedish and Norwegian law; (iii) how the so-called earnings principle would affect the structure of the construction agreement for the natural gas pipeline and the effectiveness of the pledge of natural gas transportation fee receivables in the Nordic countries; (iv) how the pledgee could use the control factor related to a share pledge when the shareholders of the project company pledge the project company s shares as collateral for the project loan. 2.1 Real property required to construct the natural gas pipeline Due to its length, the natural gas pipeline would be built on real property owned by other parties than the project company. The project company would receive the right to use this property through an expropriation procedure. One of the most valuable assets of the project company has is the turbines that are located at the compressor stations. In order to ensure that the natural gas flowing through the pipeline remains pressurized, it must periodically be compressed along the pipeline at the compressor stations. This section examines the land codes of Finland, Sweden and Norway and discusses the possibilities for the project company to delineate which machine or facility is, or is not, part of a real estate through registration. This registration has proven useful in determining the scope of the real estate mortgage vis-à-vis the scope of a business mortgage established to the project company s assets. The registration should be used to designate that the turbines, for example, are part of the project company s real estate, and therefore, pledged under the real estate mortgage. If this registration is not carried out, there is a risk that the turbines will be considered to be pledged as a part of the business mortgage established to the project company s assets. In Finland, a business mortgage lender may only recover 50 percent of the enforcement proceeds and the remainder is divided among all creditors. 2.2 Intercreditor agreements t is customary for the members of the banking syndicate that finance a project loan to enter into an intercreditor agreement. This agreement regulates, among other things, the relationship between the senior and junior creditors regarding the terms of loan repayment and the payment order regarding the payment received from the enforcement of the project collateral. In Finland, the Act on Creditors Payment Order (1578/1992, as amended) regulates the payment order in a debtor s bankruptcy or foreclosure. Similar acts are in force in Sweden and Norway. However, it is possible for the parties to agree on an alternative payment order and these agreements are binding inter partes. In Finland, in order for the obligations of an intercreditor agreement to bind third parties, the agreement must be construed as a pledge or transfer of receivables with the intention of securing payment to the senior creditor. It may also be construed as a new financing form to which the Finnish Promissory Notes Act (487/1987, as amended) would be applied by analogy. 2.3 The effects of the so-called earnings principle on the collateral securing the repayment of the project loan and on the construction agreement Due to the scale and complexity of natural gas pipeline projects, the construction of a natural gas pipelines usually takes years to complete. The so-called earnings principle affects the structure of the construction agreement. The question discussed in this section is whether it is advisable for the project company to allow the constructor to build the pipeline on its own account or whether the project company would benefit from an agreement under which the pipeline would be constructed in parts and the ownership of individual segments of the pipeline would be transferred to the project company upon their completion. If the constructor files for bankruptcy, this above-mentioned framework could serve as a basis for concluding which parts of the unfinished pipeline would be part of the project company s or the constructor s bankruptcy estate and which part will be covered by a business mortgage established to the project company s or the construction company s assets. In addition, the earnings principle affects the effectiveness of the pledge of natural gas transportation fee receivables in the Nordic countries. If the pledged receivable is not divisible, and the pledgor was unable to earn the receivable before the pledgor s bankruptcy, the pledgor s bankruptcy estate has the right to terminate the underlying pledge agreement, rendering the pledge null and void. If the bankruptcy estate continues the pledgor s business, it is entitled to the pledged assets because no part of the pledge was earned by the pledgor prior to its bankruptcy. If (a) the pledged agreement is divisible, (b) the estate continues the pledgor s business and (c) the estate is unable to terminate the portions of the pledge already earned, the earnings principle divides the pledge into two parts: the pledgee will receive the part of the pledge earned prior to the bankruptcy and the bankruptcy estate is entitled to the part earned after bankruptcy. This study raises arguments against the contemporary view accepted in legal literature in relation to the pledging of future receivables. The contemporary view is to consider that the earnings principle is taken into account when the pledge is established. The view presented in this study is that the earnings principle does not come into effect prior to the execution phase of the pledge agreement. 2.4 Pledging of the project company s shares The shareholders of a project company usually pledge the project company s shares as collateral for the project loan. The study analyses in detail the problems related to the control function and the collateral function of a share pledge. The control function related to a share pledge affects the possession of the shares from the establishment of the share pledge to the enforcement of the pledge. The thorough examination of the parties risk positions serves as an interesting starting point. The section discusses how the composition of a project company s board of directors may affect the decisions the project company makes and the claw back of the company s pledge/mortgage agreements to the project company s bankruptcy estate. There are jurisdictions in which a project company s sponsors are unable to pledge the project company s shares to the banking syndicate as collateral for the project loan. In such jurisdictions, a floating charge as found in English law may prove a useful tool due to the fact that it covers all of a company s assets (including real property). In such cases, the floating charge would de facto have the same characteristics as a share pledge in terms of controlling the project.
  • Nordberg, Eero (Suomalainen Lakimiesyhdistys, 2009)
    This dissertation on the environmental liability of agriculture first provides information about the circumstances and specific nature of the agriculture as an occupation and as elementary production, as well as its connection to certain basic human rights, and generally looks at rural law and environmental law and their intertwined relationship in current agricultural policy in addition to the relationship between agri-environmental liabilities and property rights. The study then concentrates on the legislative environmental directing of agricultural activities especially within cultivation and the various relevant principles represented in the agri-environmental sector of law. The last part is comprised of the main results of the study with some de lege ferenda proposals for addressing obvious shortcomings in the efficiency of current agri-environmental legislation. The dissertation adopts a broad concept of agricultural environmental liability that includes both compulsory and voluntary based legal obligations to prevent and minimize pollution, and to compensate for environmental damage or restore contaminated or polluted environments. Elements of the environment subjected to pollution include surface and ground water and soil, as well as air and even climate. Agricultural activities causing pollution are mainly fertilizing, manure spreading and storage, cattle pasturing and the use of pesticides. For watercourses it is mostly a diffuse type of pollution, appearing as eutrophication, and for ground water and soil it is usually point source pollution and contamination. Environmental protection has since 1980s and 1990s significantly modified the Common Agricultural Popolicy (CAP) of the EU and its legislation. The CAP was strongly shaped by the Uruguay Round with its WTO Agricultural Agreement, and is still under the influence of the prolonged Doha Round, which aims to renegotiate that agreement for the further liberalization of trade. The latest reform of the CAP created the Single Payment System (SPS) by Council Regulation (EC) 1782/2003, with the aim of decoupling the CAP supports from production. The SPS includes additional aid conditions the purpose of which are to ensure that fields are kept in good condition with regard to the environment and further cultivation. In addition, special agri-environmental supports – also of a voluntary nature, though based on legislation – have alongside LFA aid and special national support allowed to Finland after joining the EU in 1995, played a central role in the national adaptation to the CAP. The compulsory agri-environmental legislation, based on the targets and principles of article 174 of the EC Treaty, is mainly comprised of the measures of Directive 91/676/EEC that concerns the protection of waters against pollution caused by nitrates from agricultural sources. It is implemented nowadays in pursuance to the Environmental Protection Act (86/2000, EPA) by Government Decree 931/2000, which stipulates that the actions in it, including instructions for good agricultural practices, refer to the Nitrate Directive´s action programme. The programme is being put into effect throughout the country. Finland thus chose to free itself from the obligation to identify specific vulnerable zones in accordance with article 3(5) article of the directive. The provisions of the Nitrate Decree concern the volume and other conditions for storage of animal manure, and the use of manure and nitrogen fertilizers having seasonal, areal and quantitative restrictions. For instance, animal manure may be applied on a field as fertilizer equivalent to a maximum of 170 kg/ha/year of nitrogen. The use of maximum amounts of nitrogen on fields as fertilizer, contained in mineral fertilizer, animal manure and organic fertilizers, is allowed, for example, as follows: for grassland and pasture, silage and horticultural plants, 250 kg of nitrogen/ha/year (highest); for winter cereals, up to 200 kg of nitrogen/ha/year, of which normally 30 kg are used in the autumn and 170 kg in the spring; and for spring cereals, sugar beet, oilseed crops and other crops, up to 170 kg /ha/year. In addition, Annex 3 of the decree makes some special recommendations on procedures related to the use of animal manure. The Nitrate Directive is now connected to the water policy framework Directive 2000/60/EC (with its planning system and action programmes) which is implemented mainly by the Act on Arrangement of Water Management (1299/2004). This system does not hinder the developing and tightening of the rules of the nitrate legislation also separately, if needed. The role of private law measures is restricted in the agricultural sector mainly to the Act of Compensation for Environmental Damage (737/1994) and the Adjoining Properties Act (26/1920). Both of these are based on objective liability. The principles in the Environmental Protection Act (86/2000) are not understood quite in the same way as the environmental principles in article 174(2) of the treaty. This particularly concerns the principle of caution and care in section 4.1.2 of the act compared to the precautionary principle of the treaty with its heavier weight and larger area of application, as conventionally interpreted in the European Court of Justice. Environmental principles, in any case, work very much towards common goals. From a systematic point of view it would be reasonable in Finnish law to combine the principle of prevention together with that principle of caution and care into a larger main principle, a “principle of prevention and precaution”, for instance. The results from agri-environmental measures in Finland have been insufficient. Although the use of nitrogen fertilizing has generally decreased – the average balance of nitrogen in fields been reduced from 80 kg to 50 kg per hectare and the nitrogen flow potential for watercourses has decreased especially in eastern and middle Finland – the least and most insufficient decrease has occured in the coastal areas, where in many rivers and especially in the Archipelago Sea and Gulf of Finland no reductions in the nitrogen load has been found. The reason is due to national circumstances, the overly high maximum amounts of nitrogen fertilizing allowed in the Nitrate Decree, actually already in the Nitrate Directive, and the fact that Finland by choosing to establish and apply the action programme relating to article 5 of the directive throughout its national territory exempted itself from the obligation to identify specific vulnerable zones. Additionally, the Nitrate Directive and Decree do not regulate or directly affect the use of phosphorous fertilizers. Therefore, reaching more concrete results in the protection of watercourses against eutrophication caused by agriculture is left to be managed by the agri-environmental aid scheme, which covers over 90 per cent of all active farms in Finland but has not in this respect been effective enough. Neither the polluter pay- principle and the precautionary principle nor the principle of prevention have sufficiently materialized for Finnish farming in terms of the protection of surface waters. Instead of the polluter pays principle prevails, through the scheme of agri-environmental aid the so-called provider gets principle. On the other hand, the ground water and soil situation is good, thanks to the ground water pollution and soil contamination prohibitions in section 7 and 8 of the EPA, as well as the prohibitions, warnings and measures prescribed for the use of plant protection and bioside products in accordance with the harmonized legislation in these areas. Still, a lack of harmony is noticeable between environmental aid payed on the basis of the “agreements for cultivation of ground water areas” and the groundwater pollution prohibition in the EPA. The recommendations forming part of the Nitrate Decrees regulations should be transformed into regulations. Limits for maximum nitrogen fertilization should be lowered in watercourse zones especially vulnerable to pollution, as well as to those parts of the country from which the heaviest loads still issue into the Archipelago Sea and Gulf of Finland. Conditions for all agri-environmental aid should include more onerous conditions for phosphorous fertilization. The aid should also be based more on agreements tailored and negotiated to fit the activities and special characteristics of each farm. There are also grounds for lowering the limits of livestock installations requiring environmental permits for their establishment or enlargement, and for placing on these permits – in accordance with the principle that damage should as a priority be rectified at the source, and to enhance agricultural structure – the condition of having in one´s possession, by ownership or long-term lease, sufficient field area for the application of manure near enough to the installation. One possible economical measure to alleviate the diffuse pollution into waters could be a payment system that would be based on the arable land area under active cultivation and each farm´s number of livestock and thus on the farm´s estimated yearly surplus balance of nitrogen and phosphorous fertilization. In general, it would be reasonable in terms of achieving a more genuine application of the polluter pays principle and also the principles of prevention and precaution to put more weight on using the compulsory legal measures and additional conditions in the CAP as well as national agri-aid instead of special agri-environmental aid. The trend of rising cereal prices, as well as possible increasing demand for other agricultural products, could help in the adoption of these measures. Agri-environmental aids should in the long run be mainly used temporarily and as an incentive during transitional periods for the implementation and adaptation of new and stricter legal environmental obligations.
  • Herler, Casper (Talentum Media Oy, 2008)
    Väitöskirja käsittelee maaperän ja pohjaveden pilaantumisen ympäristöoikeudellista ennallistamisvastuuta. Nykyinen ympäristöoikeudellinen lainsäädäntö sisältää erilliset pilaamiskiellot maaperän ja pohjaveden osalta. Mikäli näitä kieltoja on rikottu, voi ympäristöviranomainen kohdistaa pilaajaan tai nykyiseen alueen haltijaan vaatimuksia alueen pilaantuneisuuden selvittämiseksi ja kunnostamiseksi. Aikaisemmin kyseisen kaltaisia nimenomaisia pilaamiskieltoja ja vastuusäännöksiä ei ole sisältynyt lainsäädäntöön. Maaperän ja pohjaveden pilaantumisen ilmetessä tavanomaisesti viiveellä, on pilaava toiminta usein ehtinyt joko päättyä tai sitä on ehditty harjoittaa jo pidemmän aikaa ennen kuin kunnostustarve ajankohtaistuu. Kunnostuskustannusten ollessa määriltään yleensä huomattavat, on huomio kohdistunut siihen millä edellytyksin vastuulainsäädäntöä vanhemmissa pilaantumistapauksissa voidaan asettaa taannehtivasti, eli toisin sanoen pilaantumisen jälkeen. Tämä on yksi väitöskirjan keskeisistä tutkimuskysymyksistä. Väitöskirjassa on tutkittu historiallisesti sitä, mitä aikaisemmin tiedettiin maaperän ja pohjaveden pilaantumisesta sekä minkälaista varhaista lainsäädäntöä tätä pilaantumista koskien aikaisemmin on ollut olemassa. Lisäksi kirjassa arvioidaan millaista painoarvoa voidaan tälle aikaisemmalle tiedolle ja lainsäädännölle antaa, kun nykyisin arvioidaan pilaajan vastuuta pilaantumisesta. Yhtenä osana tätä tutkimustehtävää kirjassa analysoidaan taannehtivuuskiellon ulottuvuutta rikosoikeudessa, siviilioikeudessa, vero-oikeudessa ja ympäristöoikeudessa. Tältä osin väitöskirjassa todetaan, että taannehtivalle lainsäädännölle ei rikosoikeuden ulkopuolella ole ehdotonta kieltoa. Sen sijaan muilla oikeudenaloilla kyse on periaatteesta, jonka punninnassa tulee huomioida yhtäältä vastuullisen luottamuksensuoja aikaisempaan tilanteeseen ja toisaalta vastuuta puoltavat seikat. Tutkimuksessa selvitetään myös seikkaperäisesti maaperän, pohjaveden ja rakennusten pilaantumista koskevaa lainsäädäntöä ja oikeuskäytäntöä. Yksi johtopäätöksistä on, että vuonna 1993 kumotun jätehuoltolain merkitystä vastuuperusteena vanhoissa pilaantumistapauksissa on ylikorostettu. Väitöskirjan jälkimmäisessä osassa arvioidaan mahdollisuutta kohtuullistaa kohtuutonta kunnostusvastuuta. Suomalaisessa julkisoikeudessa ei ole yleistä periaatetta julkisoikeudellisten velvollisuuksien kohtuullistamisesta subjektiivisesti, eli yksilön näkökulmasta katsottuna kohtuuttomien olosuhteiden vallitessa. Väitöskirjassa väitetään, että niin nykyisen alueen haltijan kuin pilaajankin vastuuta voidaan kohtuullistaa tiettyjen edellytysten vallitessa. Kohtuullistamismahdollisuuden arvioinnille on väitöskirjassa esitetty viisi arviointikriteeriä. Kriteerien soveltaminen on olennaisesti sidoksissa tilanteen kokonaisharkintaan. Kohtuullistamisen luonne on näkökohta, joka ei ole saanut suurempaa huomiota maaperän pilaantumisen vastuukysymyksiä koskevassa keskustelussa. Kohtuullistaminen merkitsee myös julkisoikeudellisessa asiayhteydessä sitä, ettei vastuuta tarvitse määrittää – joko tai – vaan se voidaan kohtuullistaa tietyksi – kohtuulliseksi – osaksi alkuperäisestä.
  • Knuutinen, Reijo (Suomen Lakimiesyhdistys, 2009)
    In tax literature the phrase form and substance is often used in the context of tax avoidance. There the question often arises of whether the legal form of the transaction or the economic substance of the transaction is relevant in determining the tax treatment. In this book the relationship of form and substance is understood in a much broader way. The writer argues that there is a tension between form and substance throughout the entire system of income taxation. The main justification for this view is that taxable income is understood, defined and measured in a way that deviates from the economic concept of income. The subject is examined at three levels. Firstly, most or even all the issues of form and substance have some background at the law-making level. The economic concept of income is the natural starting point for tax statutes. However, exceptions to that concept are made in many ways and for many different reasons, all of which are reviewed in the study. Secondly, the subject is considered at the level of interpretation. Tax statutes are in written form, and language is not as exact as mathematical numbers. Interpretation is needed to give those words meaning. Thirdly, a special question of tax avoidance is considered. In Part I the subject is reviewed generally and theoretically, and the framework of the study is developed. The natural starting point in income taxation is the idea that taxable income reflects a person s economic income. Yet deviations from that principle are made for different reasons. First, people have different philosophical ideas about what is or should be classified as income. Furthermore, deviations and distinctions are usually made for policy or political reasons, either for tax policy or for other political purposes. For those reasons, the taxable income which I call statutory-formal income to emphasise its decision-based political nature does not always reflect the economic income. This is the basic tension between form and substance, and it has implications at all levels and stages of income taxation. Tax planning and tax avoidance are themselves based on the deviations between economic and taxable income. Traditionally, the questions and problems of tax law are described in dualistic terms: form and substance, legal or economic substance, prevalence of private law or tax law, legal or commercial concept, beneficial or legal owner, and so on. As a matter of fact, the relationships are not dualistic, but there is a tripartite or trialistic relationship among economics, private law and tax law. The object of income tax law is basically an economic phenomenon; taxation itself means transferring economic resources from the private sector to the public sector. However, in practise taxation is related to circumstances and transactions defined in private law. There is nothing new in this. On the contrary, this trialistic relationship has always been right before our eyes. Instead, the new point in my argument is that this trialistic set-up is connected with most or even all the issues of form and substance in tax law. This trialism can be seen at all levels of income taxation and in all the countries and tax system under research here. The classical tax policy problems, for instance, regarding hybrid and synthetic financial instruments, thin capitalization issues or dividend-stripping transactions can all be described in a trialistic way. In Part II a comparative approach is used. The subject is examined vis-à-vis tax systems in the United States, the United Kingdom, Germany, Sweden and Finland. Interpretive tradition and style vary among different states and tax systems. In some countries, such as the United States, the principle of substance over form prevails; in other countries, such as the United Kingdom, the tradition is more formal. In Germany, for instance, constitution and basic rights are relevant in tax law; in other countries these factors are not very relevant in practise. Tax avoidance is a problem everywhere. However, its prevention varies. In countries such as Germany, Sweden and Finland there are statutory general anti-avoidance rules; elsewhere, for example, in the United States, there are court-based anti-avoidance rules. In the United Kingdom, by contrast, the fight against tax avoidance is carried on with a huge amount of exact and specific legislation. Part III is devoted to the discussion of selected issues that can be classified as form-and- substance issues on the basis of tax law literature or as defined in the general portion of the study. In Chapter 7 hybrid financial instruments and thin capitalization are analysed. Chapter 8 deals with issues of equity, debt and derivative instruments. In Chapter 9 wash-sales transactions and dividend-stripping transactions are discussed. Taxable income strongly deviates from economic income. The results of this study suggest that the most important exceptions are made because of the realization requirement in defining and measuring income, different tax treatments of equity and debt and the inattention to inflation in the tax base. Yet it is not always very easy to fill these gaps in practise. While taxation is about balancing the objectives and requirements of equity, certainty and efficiency, from a broader perspective taxation is also about economics, law and politics. Equity in taxation should be measured in economic terms: according to horizontal equity, every dollar, pound or euro should be taxed equally, independent of the source, only once and in real terms. But the restrictions and requirements of efficiency must also be taken into account in tax policy decisions. The law and its formalities are needed to give certainty to that process. But legal forms have no absolute value; they have no such specific aim. Rather, the legal forms should be seen as a way to implement equity and efficiency in taxation.
  • Helwegen, Wim (2013)
    Experiences from ICT and biotechnology have shown that the current patent system has increasing difficulties with the numbers and complexity of patent applications. As a result, the patent system, which ultimate goal is to promote technological innovation and to reward the inventors, has been the subject of increasing criticism. Despite being in an early stage of development, nanotechnology is already the subject of a high amount of patents, and as noted by the European Parliament, the current nanotechnology patent landscape is not sufficiently transparent and general reforms of the patent system are needed. Reforming the patent system is a challenging and delicate task that requires a precise study of the various differing interests that need to be balanced. As part of the next generation of enabling technologies, the technological properties of nanotechnology as well as the properties of the nanotechnology industry are a likely and important factor in the debate on the reform of the patent system. Because nanotechnology is one of the most promising and most far reaching technologies of this age, the debate on reforming the patent system would not be complete without taking into regard the effects of the patent system on research and development in nanotechnology. The dissertation studies the patentability of nanotechnology subject matter, the effects of the external patentability requirements on nanotechnology research and development and explores the thresholds for patentability of nanotechnology in the light of the established practice and whether or not this requires exceptions to be made. Given the scarcity of existing studies, case law, and thus, theories, surrounding the patents in the nanotechnology sector, the methodological approach followed in this study will be mainly inductive. The context within which the materials will be discussed consists of developments that have occurred the ICT industry and the biotechnology industry. The study shows that although a technology-specific patent system has obvious advantages in theory, the difficulties in the practical implementation of such a system, as well as the direction of science and technology, indicate that a one-size fits all system is to be preferred. Nevertheless, it is advised to change several aspects of the current system in order to increase the value of patents and the efficiency of the entire system for the public as well as inventors. The study recommends, inter alia, measures to increase the efficiency at the patent office, a redefining of the research exemption and the introduction of a grace period in Europe.
  • Korkea-aho, Emilia (2011)
    The dissertation examines the role of the EU courts in new governance. New governance has raised unprecedented interest in the EU in recent years. This is manifested in a plethora of instruments and actors at various levels that challenge more traditional forms of command-and-control regulation. New governance and political experimentation more generally is thought to sap the ability of the EU judiciary to monitor and review these experiments. The exclusion of the courts is then seen to add to the legitimacy problem of new governance. The starting point of this dissertation is the observation that the marginalised role of the courts is based on theoretical and empirical assumptions which invite scrutiny. The theoretical framework of the dissertation is deliberative democracy and democratic experimentalism. The analysis of deliberative democracy is sustained by an attempt to apply theoretical concepts to three distinctive examples of governance in the EU. These are the EU Sustainable Development Strategy, the European Chemicals Agency, and the Common Implementation Strategy for the Water Framework Directive. The case studies show numerous disincentives and barriers to judicial review. Among these are questions of the role of courts in shaping governance frameworks, the reviewability of science-based measures, the standing of individuals before the courts, and the justiciability of soft law. The dissertation analyses the conditions of judicial review in each governance environment and proposes improvements. From a more theoretical standpoint it could be said that each case study presents a governance regime which builds on legislation that lays out major (guide)lines but leaves details to be filled out at a later stage. Specification of detailed standards takes place through collaborative networks comprising members from national administrations, NGOs, and the Commission. Viewed this way, deliberative problem-solving is needed to bring people together to clarify, elaborate, and revise largely abstract and general norms in order to resolve concrete and specific problems and to make law applicable and enforceable. The dissertation draws attention to the potential of peer review included there and its profound consequences for judicial accountability structures. It is argued that without this kind of ongoing and dynamic peer review of accountability in governance frameworks, judicial review of new governance is difficult and in some cases impossible. This claim has implications for how we understand the concept of soft law, the role of the courts, participation rights, and the legitimacy of governance measures more generally. The experimentalist architecture of judicial decision-making relies upon a wide variety of actors to provide conditions for legitimate and efficient review.
  • Marttunen, Matti (Oikeuspoliittinen tutkimuslaitos, 2008)
    Research questions and used data The aim of my thesis is simple but extensive. In addition to exact research aims I have analysed how the Finnish juvenile justice system differs from systems in which there is a juvenile court institution. A detailed comparison is made between Finland, England and Wales, and Germany. Research questions are as follows: Which typical questions arise when we are discussing juvenile crime? What are the special characteristics of juvenile criminal justice especially when compared with adult criminal justice? What are the main principles on which special arrangements concerning juvenile crime are based? How does offender s young age and his characteristics influence the types of punishments and other form of sanctions? What is the division of labour between criminal law and child welfare? What role does diversion play in each system and what does it concretely mean? What is the distribution of punishment types given to juveniles? The used data is extensive. It consists of legislation, official documents, and jurisprudential, criminological and comparative criminal policy literature. In empirical parts of the study statistics, enforcement documents, criminal records and court decisions (as well as empirical data from my previous research) are used. On comparative parts of the study I have been forced to settle for secondary sources. Findings At the beginning of the 21st century a heated parliament debate concerning the age of criminal responsibility took place in Finland. The claim was to lower it. The results of this study suggest (as has been claimed several times before by specialists) that there are practically no reasonable grounds to reform. Finnish juvenile criminal justice has little to offer to minor s dysfunction and social problems on which childrens´ crime are mainly due to also since the child welfare authorities deal with these cases. Changes to age categories would only be reasonable if the orientation of juvenile criminal justice would be changed in favour of child welfare aspect. This would mean that a part of the tasks nowadays handled by the child welfare authorities would be reassigned to the juvenile criminal justice system. However, criminological research and experiences in other countries do not support this view either. The vast majority of penalties imposed by courts for all age-groups consist of fines in Finland. The younger the offender the higher the share of fines (75 % in age-group 15 17, 60 % in 18 20 and 55 % for offenders over 20 years). This is a quite exceptional characteristic in international comparison. In Germany the corresponding percentage of fines for juveniles is 11 and in England and Wales 20. Among the use of different community sanctions (fines not included) are huge differences between compared countries. In Finland the share of community sanctions is 24 %, in Germany 78 % (leisure-time arrest and short-term arrest included) and in England and Wales 74 %. Respectively the share of imprisonment is in Finland 1 %, in Germany 11 % (prison and long-term detention) and 7 % in England and Wales. However, the number of juveniles getting some kind of criminal sanction (diversion included) is somewhat higher in Finland than in England and Wales or in Germany. In England and Wales the relative figure (per 100 000, relevant population) of sanctioned juveniles is 7087 (2004), in Germany 8495 (2004) and in Finland 9311 (2004). This analysis tried to figure out the number of children 10 17 years who are placed in child welfare institution against their own will and with a background of delinquent history in Finland. It was estimated that there are about 100 (10 14-years) and 150 (15 17-years) delinquents minor in child welfare institutions. At the same time there are only few (typically 2 7) juvenile prisoners. In England and Wales and in Germany number of juvenile prisoner (aged 15 17, per 100 000 relevant population) is much higher than in Finland. In England and Wales the relative figure (per 100 000 relevant population, including remand) of juvenile prisoner is 124 (2006), in Germany 64 (2005) and in Finland 4 (2006). In Finland, overall prison rate is about 70 prisoner per 100 000 inhabitants. Difference between juvenile prison rate and overall prison rate is huge. In England and Wales and Germany there are no great differences on this matter. However, these figures are misleading because of the differences between systems. There are much more (about 150) delinquent juveniles placed in child welfare institutions in Finland than there are juvenile prisoners. The child welfare institutions in Finland are very small and home-like in contrast to juvenile prisons in Finland but especially in England and Wales, or in Germany. When child welfare figures are added to juvenile prisoners figures, we find that there are about 77 juveniles (per 100 000, relevant population) placed outside their home because of their delinquent behaviour in Finland. The corresponding figures are about 150 in England and Wales, and 73 in Germany. The German figure would double if we took into account the juveniles placed in youth detention centres. The conclusion follows; taking into account child welfare side of Finnish system the differences are reasonable and comparable. In Finnish juvenile justice system the child welfare measures are far more commonly used way of control juveniles than utilising punishments. One could characterize Finnish juvenile justice system compared to England and Wales and Germany as follows: there are no juvenile courts, the use of monetary penalties is high, the significance of prior sanction in sentencing is quite low, community penalties are not very intensive, sanctions concerning violation of the conditions of community sentences are quite lenient and the parents are not held responsible for their child s crimes. Maybe the most important feature is to react on juvenile crimes more in the context of child welfare instead of criminal justice. The comparison of juvenile justice systems without taking into consideration both criminal justice and child welfare systems is misleading.
  • Vepsä, Iisa (Suomalainen Lakimiesyhdistys, 2009)
    Iisa Vepsä: The Seekers of Justice. A Study on the Establishment and the early Activity of the Appeal Court of Vaasa. Gustav III established a new appeal court in the city of Vaasa in 1775, during his visit to Finland. The first two research questions of the dissertation centre on the problem of the founding of the new appeal court: why was it established and did the reform turn out to be useful? The reasons given at the time can be found in the document that established the court, as well as the many speeches made during the inauguration ceremony in Stockholm in 1776. These have been used as the starting point in searching for the reasons for the court s establishment, which can be tied to goals typical of the Enlightenment. These goals included the ensuring of external and internal safety, the increase of the population, the improvement of industry and agriculture as well as services to improve public well-being. The court s establishment as well as the impressive new court building increased the enlightened reputation of the king, but after the lavish inauguration ceremonies the everyday life of the new appeal court started. This is what the third research question focuses on. How did an appeal court function in practice at the end of the eighteenth century? This question has been approached keeping in mind the stated interest in improving the "access to justice". This is why the focus of the dissertation is especially on the appeal function of the new court whilst its other tasks have not been researched as closely. The activities of the Vaasa appeal court have been studied with the help of archive material for this period. Three years have been chosen to get a look at the court in action after its establishment: 1780, 1790 and 1800. There is sufficient source material to provide us with a picture of the workings of the appeal court in the late eighteenth century. From the data it is possible to gain some idea as to the type of people who used the court. Justice was sought by people from all strata of society: from nobles to vagrants, from clergy to servants, from merchants to peasants. The peasants, who formed the largest part of the population, also dominated the list of appellants. The source material provides a good picture of what the appeal court did in practice. The largest category of incoming matters involved administrative issues. The declining number of the cases submitted indicates that this method of controlling the lower courts activities was probably on the decline. Also the number of prosecution cases (which nearly always involved cases of misconduct by lower court judges) had diminished somewhat by 1800. The role of the Vaasa appeal court as a court of first instance was minimal. Nearly all of the cases of first instance involved bankruptcy cases of the nobility and gentry. The number of appeal cases however more than doubled during this twenty-year period. The caseload was clearly increasing and this was especially true of civil cases. The activity of the court shows that there was also a need to revise cases: in about forty percent of the cases the appeal court approved the lower court s verdict. Approximately the same amount of verdicts were however either revised or overturned. The rest of the cases were partially revised, settled, dropped or lost on procedural grounds. As an appeal instance the court dealt predominantly with cases that can be divided into three main categories: (1) crime and policy issues, (2) the possession and ownership of land and (3) liability for debts and other commercial matters. The number of these cases shows that there was a need for a new appeal court and that these were the areas where the administration of justice needed to be strengthened. The other reforms made to improve commerce and agriculture could be effective only if the judiciary and law enforcement operated properly.
  • Lehtinen, Lasse (2014)
    The purpose of this research is to compare the rights and duties of a legal counsel in legal aid cases. The main principle concerning the rights and duties of the counsel is that there must be a balance between these rights and duties. The counsel has a right to charge a reasonable fee for legal work in the case, and has a duty to carry out this work with such care expected of a professional lawyer. The counsel's duty must be to act in a way that benefits the client and ensures his or her rights. This dissertation focuses on the question of how the rights of the counsel to reasonable remuneration for necessary actions, lost time and expenses are actually realised. A comparison is made of the ways in which the principles of reasonable fee compensation for necessary actions is realised in chargeable cases, when courts have determined what amount the losing party is ordered to pay to cover the winning party's legal costs. The results of this research show that the most important criterion in Finland for reasonableness of the fee is the present general attorney fee level. This has caused a countinuing rise of counsels' fees because lawyers are charging rates at the top attorney fee level. Therefore no fee competition exists between lawyers in Finland. Neither there are fixed tables or even recommendations which could guide the courts in determining limits for reasonable fees in cases of other than legal aid. The lack of competition and fixed tables means that nothing prevents lawyers from charging higher and higher fees when claiming client costs from the opposing party in cases where their clients are without legal aid. In legal aid cases the counsel has the right to charge 110 /hour plus Vat as a reasonable fee for necessary actions, lost time and expenses. Absolute reasonableness requires that the legal aid lawyer shall receive such fees that he can run his law office and have an income equal to the general lawyer salary level in Finland. This research shows that legal aid lawyers earn a much lover income compared to the fee level, what absolute reasonableness requires. In same type of court case, but instead involving legal aid, the fee that the legal aid counsel is able to charge, can be much lower that the above-mentioned compensation for lawyers in chargeable cases. Therefore legal aid lawyers may be paid less than what relative reasonableness requires. Legal aid lawyers have similar legal duties as lawyers in non-legal aid cases. This research shows that despite purpose of the law, a balance between the rights and duties of legal aid lawyers does not exist in practice. This is creating a contradiction between legal aid lawyers' rights and duties.
  • Malmgrén, Marianne (Edita Publishing Oy, 2008)
    1 Aim of the study and research methods The purpose of this study is to review the essential corporate income tax issues related to expanding the business of a company abroad from four basic points of view. These are: - State of residence as the basis for tax liability; - Permanent establishment ( PE ) and tax liability; - The tax liability of a CFC; and - The impact of tax liability and the change in tax liability on the taxation of a company. In the study, residence is reviewed from the point of view of European law, tax treaty provisions and domestic legislation. The European law review covers residence in the EC Treaty and the merger directive. Tax treaty provisions are reviewed based on the OECD Model Tax Convention ( MTC ). The review of the domestic legislation is fo-cused on Finland, but also covers Sweden, the United Kingdom, Germany, the Netherlands and the United States. The research methods used in the study are legal dogmatics, comparative legal research and tax policy. The tax planning point of view is also considered. 2 Major conclusions The EC Treaty can be referred to by companies or firms which are formed in accor-dance with the company legislation of a member state ( MS ). Tax residence does not limit the company s right to refer to the freedoms in the EC Treaty. The free move-ment of capital can also be referred to by non-EU residents. The companies qualifying for the application of the merger directive have to consider among other things tax residence according to the national tax legislation in a MS and the DTT ( double tax treaty ) residence. The companies covered by the merger direc-tive are much more limited than those covered by the EC Treaty. The EC treaty is primary law and the merger directive, like other directives, is second-ary law from the EC law point of view. In a conflict between the EC Treaty and the merger directive, the EC Treaty shall prevail. A company s domestic tax residence can be classified according to formal criteria, ef-fective activity, combination model and the residence state of the company owners or members of the board. In Finland, an entity is considered to be a tax resident, i.e., a domestic entity, when it is incorporated under domestic law or registered in Finland. A non-resident entity, i.e., a foreign entity, is an entity not considered to be domestic. The concepts of domestic and foreign entity are not defined in the Finnish Income Tax Act. The Income Tax Act should be amended accordingly to clarify and confirm the existing situation. It can be argued that it is difficult in practice to carry on business or trade in the man-ner stated in the Finnish Income Tax Act Section 10 so that the income from the busi-ness or trade was considered to be derived from a source in Finland, meaning it could be taxed in Finland in the hands of a non-resident. A PE is usually required in order for the non-resident to be taxed for business or trade income received from Finland. Because of the unclear legislation, the Income Tax Act should be amended by stating that a non-resident is liable for business income derived from Finland only where it has a PE in Finland. It is important to note that tax liability and taxable income is determined in the nation-al legislation. The DTT provisions may limit the right of a treaty state to tax income referred to in the DTT. The EC legislation rule of reason concept and the principle of proportion means that the non-discrimination provisions in a DTT may sometimes be broader than the corresponding provisions in the EC Treaty as there are no corres-ponding justifications in the DTTs which would limit the scope of the non-discrimination provisions.
  • Havu, Katri (Suomalainen Lakimiesyhdistys, 2013)
    This dissertation addresses the topic of compensating losses caused by infringements of EU competition law. In particular, the focus is on the relationship and on the “mixture” of EU and national law in that context. The topic is dealt with by studying, on the one hand, EU law and, on the other hand, Finnish law as a national legal order. The main method is the theoretical legal dogmatic method but some parts (for instance, Sections II–III and VII) are also characterized by the interpretive or practical legal dogmatic method. Additionally, law and economics and law and language approaches have had some impact on the work. In the absence of material EU rules on the matter, it is for national legal orders to provide remedies and procedures for safeguarding the rights conferred on individuals by EU law. This is, somewhat misleadingly, also called the procedural autonomy of the Member States. National law fills in the gaps left by EU law so that, for instance, the law applicable to a dispute involving damages claims related to infringements of EU rights is a mixture of EU law and national law. In addition to being a combination of material rules of different legal orders, the mixture is complicated by the fact that even when national rules apply, it may be necessary to adapt them to meet the requirements set by EU law. Regarding reacting to infringements of EU law in areas of law where the EU legal order does not legislate the means of reacting and procedures for doing so exhaustively – which is very often the case – it is not possible to easily discern the applicable material rules and their meaning. Instead of being a clear set of stable rules, the law applicable to compensating losses caused by infringements of EU competition law is a dynamic mass of principles and rules of both the EU and national legal orders. It can be noted in both European and Finnish legal discussion that great inability arises in pointing out the applicable rules of law and their meaning. For this reason, discussion and assumptions on the content of applicable rules are vague. Furthermore, statements made on the meaning of applicable law without paying attention to the conundrum of concurrent norms and principles of EU and national law may be incorrect. This dissertation aims to find a way or a model for structuring and discerning the applicable pieces of law, and finally: the content and meaning of law in a situation where damages are claimed (in Finland) in the context of infringements of EU competition law. To achieve this goal, EU requirements for national law that safeguards EU rights and regulates reactions to infringements of those rights is studied closely. Central issues for this work include so-called procedural autonomy case-law and other EU law on the interaction of EU law with national legal orders, and how all this is to be seen in the context of competition law infringements. In addition to principles and requirements of EU law, relevant material rules on damages must also be and are taken into account as a part of the whole of the relevant EU law. Moreover, because EU principles and requirements are content- or result-oriented, material national rules are studied in order to see how the combination of EU and national law is actually formed. Regarding the requirements that EU law sets for national law, it is of importance that the issue whether something exists that should be regarded as an EU right to damages under competition law, which would be subject to the EU requirements applicable to (upholding or maintaining) EU rights as defined in EU law, can be considered obscure. For instance, a plenitude of legal discussion is available that mentions the right to damages in this context and thus departs, either knowingly or not, from a rational starting point that damages actions or compensation should be regarded as something that is subject to the EU requirements that relate to remedies in situations where an EU right is infringed. The question as to under which EU law requirements the issue of competition infringement damages should be dealt with is a central one, since an alleged “right to damages under competition law” should, in national courts, be upheld as it appears in EU law – which might necessitate disapplying a great amount of national law. Moreover, the task of upholding would be quite challenging, since significant parts of such a “right” are not yet visible in EU law. If the EU requirements on remedies and procedural autonomy principles that regulate reacting to infringements of EU rights were to apply to compensating damages related to competition infringements, that is, if damages were to be considered a mere remedy from the point of view of EU requirements, there could also be some variation in deciding relevant competition infringement-related cases in national courts. National law could be applied as long as it were not contradictory in relation to the few material rules discernible in EU (case-)law and as long as national law were in accordance with the EU law requirements – in the context of remedies: principles of equality, effectiveness and of adequate judicial protection. In this dissertation, the issue whether the requirements for upholding EU rights or the requirements relating traditionally to (reactive or reparatory) remedies apply to damages under EU competition law is studied by analyzing the relevant concepts and requirements in EU case-law. Even though the concept of rights and their relationship to remedies are unclear issues in EU law, it is submitted that damages under EU competition law are to be evaluated according to the requirements applicable to remedies. Moreover, in competition infringement situations, the EU right that must be upheld is not that of damages but a right to a competitive and undistorted Internal Market. It is argued that the “rights language” of the Court of Justice of the EU in the context of competition infringement damages does not refer to a particular right to damages but represents standard language (not a particular legal definition) or refers to the above-mentioned right to competitive markets. The model for structuring and discerning the applicable law in competition infringement damages cases is constructed by distinguishing between EU law requirements for rights, (reactive or reparatory) remedies, and procedural rules, and viewing damages for competition infringements as a (reactive or reparatory) remedy. On the basis of the analysis, it is submitted that each sub-issue of a damages claim case, such as a condition for reparation (e.g., causal link), should be evaluated by first surveying the possibly applicable material EU law rules (both in the specific context of competition infringement damages and more broadly), and then analyzing the compatibility of national rules with the material rules. After this one should continue by surveying the discernible significance of the relevant EU law requirements in the context of that particular sub-issue, and then analyzing what the EU law requirements mean in the context of relevant and (taking into account the material EU rules) still eligible national rules, assessing whether the rules may be applied as such and whether, for instance, it is necessary to interpret them in a certain way to fulfill the requirements of EU law on remedies. The model for structuring and discerning the applicable law is applied for short and exemplary analyses of certain conditions for awarding damages, taking the reader through the relevant EU law and Finnish law as the model suggests. Conclusions of the research include the observation that structured and organized analysis of EU law and national law is possible and advisable in the context of competition infringement damages. Studying the combination of EU law and national law according to the model reveals that Finland’s, or any other Member State’s, law may be compatible with EU law also in such contexts where other descriptions of EU law and its requirements would have led to a different result. Requiring fault and law relating to it is an illustrative example of this. Regarding possible erroneous findings of incompatibility, also unnecessary adaption of national law “to suit the requirements of EU law” could constitute a problem in administration of justice, because it would lead to decisions that are not really based on law and which would, moreover, be problematic from the point of view of legal certainty. The applicable material rules and their contents vary over time but the basic principles for discerning the common meaning of EU and national law, as well as the fact that reacting to infringements of an EU right (to an undistorted Internal Market) is regulated by a combination of EU and national legal orders, are more permanent. The European Commission’s new (2013) proposal for a directive relating to competition infringement damages claims shows that many significant aspects of damages claims are going to be governed by national law and EU limits on national law – that is, a complex combination of EU law and national law – also in the future. Analysis based on a similar model as constructed in the dissertation is also likely to be useful, for instance, regarding other contexts where claims for damages are based on EU law in horizontal relationships.
  • Nenonen, Anne (Helsingin yliopiston oikeustieteellinen tiedekunta, 2014)
    Remedies in public procurement beyond the scope of the procurement legislation The subject-matter of the thesis concerns administrative appeal as a remedy in public procurement beyond the scope of the procurement legislation. This subject-matter is approached from three different perspectives. First, the traditional jurisprudential method is applied so as to examine the requirements of EU law, the European Convention on Human Rights and the Constitution of Finland as regards remedies in respect of public procurement beyond the scope of the procurement legislation. These requirements provide a background for evaluating how the domestic remedies provisions should properly be interpreted. The second perspective is that of the Europeanisation of the law and its impact on the interpretations of judicial review in procurement cases. And thirdly, the subject-matter is approached from a regulatory point of view, looking especially into the effectiveness of administrative appeal as an avenue of judicial review in procurement. There are differences in the scope and the preconditions of application of the basic rights provisions and human rights provisions on due process, which may lead to variation in the requirements for remedies in procurement cases. Where a procurement process falling beyond the scope of the procurement legislation nonetheless falls within the scope of EU law, it is necessary to provide an effective remedy for rights arising from the principles of equal treatment and transparency. In turn, procurement processes falling solely within the scope of domestic law are governed by the general principles of good government, which means that the tenderer acquires the procedural right to proper and equal treatment in the procurement process. The Human Rights Convention guarantees access to justice at least in cases of discrimination. As a matter of fact, there would be reason to adopt one and the same interpretation of when and how a procurement decision can be appealed, regardless of which basic right or human right is concerned or of which contracting authority made the decision in question. The assessment of avenues of appeal should be based on the nature of a procurement decision as a choice of supplier and on the aspects of public law governing this choice. The Europeanisation of law has increased the regulation of public procurement and emphasised the need for effective access to justice. In procurement beyond the scope of procurement legislation this means the application of the norms of judicial review to a new type of case. The thesis contains an examination of relevant cases from Finland, Sweden and the United Kingdom, concerning the application of general administrative judicial measures on a procurement case beyond the scope of the procurement legislation. The criteria that administrative appeal sets on an official decision that can be appealed, and the prohibition in municipal appeal to present new claims once the appeal deadline has passed may, in certain situations, result in problems as regards the requirement of effective remedies in EU law. Moreover, administrative appeal may prove ineffective in practice also because there are no remedies that would be in compliance with the procurement legislation and ensure the elimination of errors in procurement procedure. In order for judicial review beyond the scope of the procurement legislation to be equally effective as judicial review within the scope of that legislation, there would be need for more precise regulation of procurement procedures and also for the adoption of remedies regulations similar to those appearing in the procurement legislation. It would hardly be expedient to make the scope of the procurement legislation narrower and at the same time to create corresponding, but separate procedural provisions for procurement that falls beyond the scope of that legislation.
  • Pönkä, Ville (Edita, 2008)
    Objectives and Management of Validity of Shareholders Agreements A shareholders agreement is typically defined as a long-term co-operational contract made between the shareholders of a company limited by shares. These agreements (which are also known as voting agreements and consortium agreements) typically govern shareholders mutual relations and their rights and responsibilities in the company. Also, venture capitalists often use shareholders agreements to ensure the successful realisation of investments made in the target company. Furthermore, it is quite common that the company itself or its significant creditor engages with an agreement made between the shareholders. Shareholders agreements may comprise all or some of the shareholders of a company; a majority group or a minority. Shareholders agreements exist in a large number of Finnish companies. They are most common in small and medium-sized enterprises, but are also used in companies with more extensive shareholder structures. Shareholders agreements are not subject to formal legal requirements and they are regulated by principles of general contract law. Neither the Finnish Companies Act nor other Nordic Companies Acts recognize these agreements. However, company law also has an indirect effect on shareholders contractual freedom and several provisions of the Companies Act have to be taken into account when examining, for example, questions concerning the validity and interpretation of a shareholders agreement. This is why it is very important to pay close attention to the operational environment in which these agreements are made and enforced. The research question of this legal dogmatic thesis has been divided into two principle themes. First, I have examined different objectives of shareholders agreements, and secondly, different aspects concerning the binding force of these contractual arrangements. In the first part (chapter 2: Relation of Shareholders Agreements to the Companies Act, and chapter 3: Objectives of Shareholders Agreements) the main goal has been to determine the normative and actual extent of the shareholders contractual freedom. In other words, my purpose has been to examine what issues can and should be regulated by shareholders agreements within the normative boundaries set forth by the legislator. The next stage has been to examine different dimensions of the binding force of agreements made between shareholders (chapter 4: Management of the Validity of Shareholders Agreements). Firstly, I have determined the legal effects of these agreements in various relations; secondly, I have focused on different factors that may compromise the validity of these arrangements and finally, I have discussed the legal problems concerning the termination of the co-operational relationship. Although the research question of this thesis has been divided into two parts, the various legal problems discussed are connected with the same general theme: the freedom of contract and pacta sunt servanda principles. Conversely expressed, my main objective has been to determine the relevance of these fundamental contractual principles in the field of company law from the perspective of a certain type of contract. The source material of this research consists mainly of Danish, Finnish, Norwegian and Swedish legal writings and court practice. However, it should be noted that shareholders contractual relations have not been widely studied in Nordic literature. Also, court cases are quite scant, because shareholders contractual conflicts are usually resolved in arbitration proceedings. I have also made an empirical survey concerning agreements made by owners of municipal water management and waste disposal companies. The purpose of this data has been to provide concrete examples and information on shareholders agreements in practice.
  • Haapaniemi, Ossi (WSOY, 2006)
    1. Introduction The subject of this study is the tax treatment of share-based incentive schemes. The objective of the study is to establish the tax treatment of various share-based payment instruments including, among others, stock options, stock appreciation rights (SAR's), employee offerings and restricted stocks. The study covers both the tax treatment of employees and employers. The latter is more interesting as there are no earlier studies on this subject. In addition, the IFRS 2 has required the quoted companies to recognise all share-based payments at least in their consolidated accounts as of 2005. The approach of this study is primarily that of a traditional tax law study. The study considers primarily de lege lata treatment of share-based payment. However, especially concerning the tax deductibility of the share- based payments, the situation is also evaluated in the light of tax policy goals and has de lege ferenda considerations. The study includes also e.g. a wide accounting section and short company law and labour law sections. It has to be mentioned here that the Supreme Court (korkein oikeus) earlier this year found that also employee stock options are classified as salary under the labour law. The arguments used in favour of the corporate tax deduction on share-based payments are widely based on the IFRS 2. For equity-settled payment transactions, the IFRS 2 requires an entity to measure the fair value of the goods or services received, and corresponding increase in equity, either directly, at the fair value of the goods and services received, or indirectly, by reference to fair value of the equity instruments granted, whichever value is more readily determinable. 2. Corporate Tax Deduction The comparative method is used to evaluate the Finnish tax treatment especially concerning the tax deductibility of share-based payments. The countries covered in the comparison are the United States, the United Kingdom and Sweden. In each of those countries the share-based payments are generally tax-deductible. In Finland the Working Group 2005 set up by the Ministry of Finance proposed that the tax deduction on the share-based payments (other than cash payments to employees) should be totally abolished. Currently the corporate tax deduction is possible at least based on the use of old shares (in which case the tax basis of those shares is in practice deductible) or by the use of recharge by the parent company. It is, however, questionable whether the recharge based on the issue of new shares by the parent company is deductible. Just recently the Finnish Central Tax Board gave a negative advance ruling on this, but the case is now pending before the Supreme Administrative Court (korkein hallinto-oikeus). The arguments used by the Working Group were those already hammered by IASB in the past. The argument that there is no cost to the entity is unsound as every time an entity receives resources as consideration for the issue of equity instruments, there is no outflow of cash or other assets, and on every other occasion the resources received as consideration for the issue of the equity instruments are recognised in the financial statements; and the expense arises from the consumption of those resources, not from an outflow of assets. In Finland the Supreme Administrative Court has decided that the tax basis of assets received as contribution in kind is the fair market value of those assets despite the lower value potentially recorded in the accounts under the Finnish GAAP. There is no doubt that the company is able to depreciate in taxation e.g. machines and buildings received as contribution in kind. Why the situation should be any different when share-based payments are used to acquire services instead of machines? De lege ferenda, an answer may come from the state treasury. In Finland this is a question of billion euro which may even have reflections in the tax rates. In Finland the amount of earned income realised from employee stock options over the period of 1998-2005 was almost 4 billion euro. The tax deduction received by the employers is likely closer to zero than one billion euro which it should be. In the tax practice the corporate tax deduction has not been granted when new shares have been issued to employees e.g. based on employee stock options. However, this has never been tested in the court. The tax deduction can easily be received by the use of stock appreciation rights or phantom shares. There are various techniques to hedge those cash payments, either economically or in accounting or both. The whole share-based incentive scheme may also be purchased from a third party outside of the corporate group. The Ministry of Finance should look what happened in the United Kingdom and in Sweden before the corporate tax deduction was allowed. 3. Tax Treatment of Employees The taxation of restricted shares or performance shares is based on general tax rules. Based on the case-law any benefit from the subscription or purchase of shares is taxed as earned income when the subscription or purchase takes place despite any restrictions. There seems to be no differences whether those restrictions are just lock-ups or whether there is also substantial risk of forfeiture. De lege ferenda, this kind of distinction should be done as generally is the case in the United States, in the United Kingdom and in Sweden. According to the OECD report on taxation of employee stock options in cross-border situations, the employment benefit attributable to the stock option should be attributed to services performed in a particular country in proportion of the number of days during which employment has been exercised in that country to the total number of days during the employment from which the stock option is derived has been exercised (i.e. vesting period). According to the Finnish practice based on the case-law (related to the domestic law and tax treaties), the period up to the exercise of employee options has been taken into account. Under the current situation the employees may have an opportunity to choose the most beneficial method.
  • Wuolijoki, Sakari (Helsingin Kamari Oy, 2009)
    This doctoral thesis explores the bank s obligation to provide advice and information from a civil law point of view. In this context it must be noted that the concept of bank in the title does not exclusively refer to banks in possession of a Finnish banking licence. The notion also covers investment firms. In regard to the beneficiary of the information or advice the scope of this thesis covers both non-professional consumer customers and professional customers. The dissertation investigates the background as well as the underlying purpose of the obligation to provide information and advice (chapter 2). Thereafter the study reviews what general and specific information obligations banks have to meet in the provision of different services (chapter 3). These services are investment services, credit services, payment services, corporate finance services and legal services. Afterwards factors influencing the actual content of the advice or information are examined (chapter 4). Subsequently, the consequences of the negligence of these obligations are scrutinised (chapter 5). Finally, the thesis draws conclusions based on the findings in the previous chapters (chapter 6). In doing this, the doctoral thesis employs a legal dogmatic approach. Information asymmetry is a widely recognised problem which creates a lot of market failures. This has lead to a high number of statutory disclosure duties. On the other hand, information can be seen as a valuable good or as property. Because of this, the impacts of duties to disclose information free of charge should be assessed in order to avoid inappropriate disclosure obligations. In fact, disclosure duties can often be criticized since they easily lead to information overload. In addition to statutory disclosure duties, the court praxis and legal doctrine recognise other obligations to inform or advice, based e.g. on the loyalty principle. The problems of disclosure duties disincentive impact to information gathering and information overload should be kept in mind also when operating with the loyalty principle. As a rule, banks stand in a contractual relationship to their customers. Therefore the liability for neglect of the obligation to provide information or advice is usually contractual, and not tortuous. The customer will be entitled to the expectation interest. This means that he or she is to be put in as good a position as that which would have resulted, had the contract been performed. As initially stated, banks are subjected to a wide range of information obligations. Because of this, customers are in peril of being overloaded with information, especially when the information is provided in standardised form. The number of obligations to provide personal advice is lower, even if advice usually is of greater value than standard information for the customers. Since the providing of advice is rather cost-intensive from the bank s point of view, banks render this service mainly against payment only. In the provision of different services banks are primarily obliged to fulfil these duties only towards their consumer customers. However, the scope of the statutory obligations to provide advice and information is not always clear. In light of the purpose of the regime, every customer regardless of type should in every situation be able to make an informed decision based on all relevant facts. Where a statutory pre-contractual obligation does not exist, banks can therefore be obliged to advice or inform based on the general principles of law of contract, e.g. the principle of loyalty. The thesis includes also a more detailed summary in English.
  • Agovic, Amina (2011)
    Embryonic stem cells offer potentially a ground-breaking insight into health and diseases and are said to offer hope in discovering cures for many ailments unimaginable few years ago. Human embryonic stem cells are undifferentiated, immature cells that possess an amazing ability to develop into almost any body cell such as heart muscle, bone, nerve and blood cells and possibly even organs in due course. This remarkable feature, enabling embryonic stem cells to proliferate indefinitely in vitro (in a test tube), has branded them as a so-called miracle cure . Their potential use in clinical applications provides hope to many sufferers of debilitating and fatal medical conditions. However, the emergence of stem cell research has resulted in intense debates about its promises and dangers. On the one hand, advocates hail its potential, ranging from alleviating and even curing fatal and debilitating diseases such as Parkinson s, diabetes, heart ailments and so forth. On the other hand, opponents decry its dangers, drawing attention to the inherent risks of human embryo destruction, cloning for research purposes and reproductive cloning eventually. Lately, however, the policy battles surrounding human embryonic stem cell innovation have shifted from being a controversial research to scuffles within intellectual property rights. In fact, the ability to obtain patents represents a pivotal factor in the economic success or failure of this new biotechnology. Although, stem cell patents tend to more or less satisfy the standard patentability requirements, they also raise serious ethical and moral questions about the meaning of the exclusions on ethical or moral grounds as found in European and to an extent American and Australian patent laws. At present there is a sort of a calamity over human embryonic stem cell patents in Europe and to an extent in Australia and the United States. This in turn has created a sense of urgency to engage all relevant parties in the discourse on how best to approach patenting of this new form of scientific innovation. In essence, this should become a highly favoured patenting priority. To the contrary, stem cell innovation and its reliance on patent protection risk turmoil, uncertainty, confusion and even a halt on not only stem cell research but also further emerging biotechnology research and development. The patent system is premised upon the fundamental principle of balance which ought to ensure that the temporary monopoly awarded to the inventor equals that of the social benefit provided by the disclosure of the invention. Ensuring and maintaining this balance within the patent system when patenting human embryonic stem cells is of crucial contemporary relevance. Yet, the patenting of human embryonic stem cells raises some fundamental moral, social and legal questions. Overall, the present approach of patenting human embryonic stem cell related inventions is unsatisfactory and ineffective. This draws attention to a specific question which provides for a conceptual framework for this work. That question is the following: how can the investigated patent offices successfully deal with patentability of human embryonic stem cells? This in turn points at the thorny issue of application of the morality clause in this field. In particular, the interpretation of the exclusions on ethical or moral grounds as found in Australian, American and European legislative and judicial precedents. The Thesis seeks to compare laws and legal practices surrounding patentability of human embryonic stem cells in Australia and the United States with that of Europe. By using Europe as the primary case study for lessons and guidance, the central goal of the Thesis then becomes the determination of the type of solutions available to Europe with prospects to apply such to Australia and the United States. The Dissertation purports to define the ethical implications that arise with patenting human embryonic stem cells and intends to offer resolutions to the key ethical dilemmas surrounding patentability of human embryonic stem cells and other morally controversial biotechnology inventions. In particular, the Thesis goal is to propose a functional framework that may be used as a benchmark for an informed discussion on the solution to resolving ethical and legal tensions that come with patentability of human embryonic stem cells in Australian, American and European patent worlds. Key research questions that arise from these objectives and which continuously thread throughout the monograph are: 1. How do common law countries such as Australia and the United States approach and deal with patentability of human embryonic stem cells in their jurisdictions? These practices are then compared to the situation in Europe as represented by the United Kingdom (first two chapters), the Court of Justice of the European Union and the European Patent Office decisions (Chapter 3 onwards) in order to obtain a full picture of the present patenting procedures on the European soil. 2. How are ethical and moral considerations taken into account at patent offices investigated when assessing patentability of human embryonic stem cell related inventions? In order to assess this part, the Thesis evaluates how ethical issues that arise with patent applications are dealt with by: a) Legislative history of the modern patent system from its inception in 15th Century England to present day patent laws. b) Australian, American and European patent offices presently and in the past, including other relevant legal precedents on the subject matter. c) Normative ethical theories. d) The notion of human dignity used as the lowest common denominator for the interpretation of the European morality clause. 3. Given the existence of the morality clause in form of Article 6(1) of the Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions which corresponds to Article 53(a) European Patent Convention, a special emphasis is put on Europe as a guiding principle for Australia and the United States. Any room for improvement of the European morality clause and Europe s current manner of evaluating ethical tensions surrounding human embryonic stem cell inventions is examined. 4. A summary of options (as represented by Australia, the United States and Europe) available as a basis for the optimal examination procedure of human embryonic stem cell inventions is depicted, whereas the best of such alternatives is deduced in order to create a benchmark framework. This framework is then utilised on and promoted as a tool to assist Europe (as represented by the European Patent Office) in examining human embryonic stem cell patent applications. This method suggests a possibility of implementing an institution solution. 5. Ultimately, a question of whether such reformed European patent system can be used as a founding stone for a potential patent reform in Australia and the United States when examining human embryonic stem cells or other morally controversial inventions is surveyed. The author wishes to emphasise that the guiding thought while carrying out this work is to convey the significance of identifying, analysing and clarifying the ethical tensions surrounding patenting human embryonic stem cells and ultimately present a solution that adequately assesses patentability of human embryonic stem cell inventions and related biotechnologies. In answering the key questions above, the Thesis strives to contribute to the broader stem cell debate about how and to which extent ethical and social positions should be integrated into the patenting procedure in pluralistic and morally divided democracies of Europe and subsequently Australia and the United States.