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  • Kari, Markus (Into Kustannus Oy, 2016)
    Why did the norms governing the Finnish financial markets changed fundamentally over the 1980 s? To answer, this study applies the methodological framework of contemporary legal history: legal change is being placed to its relevant societal contexts. The 1980 s is a central decade in the transformation of the post-war Finnish society known as the Second republic to the Third republic, integrated to Europe. Also the nationalistic Finnish financial system characterized by regulation of interest rates, foreign exchange controls, and bank-centrality was transformed by creating new financial markets. The economic decision makers began to see Finland in the reference group of industrialized western or Nordic nations. The first perspective to the legal change is deregulation: dismantling the controls over interest rates and foreign exchange. Deregulation was in essence a long line of minor decisions taken by Bank of Finland. As a result, the law regarding finance was on a change. The second perspective to the change is reregulation: the birth of laws governing new markets and reformation of existing financial market laws. Such process was led by the senior officials of ministry of justice and ministry of finance. Reregulation was needed to create new financial markets. Such development was accepted by the main stream politicians. The process of change can be divided into three phases. The prime operator during the first period (end of the 1970 s around 1985) was Bank of Finland. Based on the analysis done by its economists, the central bank allowed more room for the private actors in the market. There is no evidence suggesting that Bank of Finland communicated its market creating plans to other economic policy makers or the general public. During the second period, (about 1986 87) two consecutive majority governments gave the mandate of legislating the stock markets and the option markets. Bank of Finland continued its deregulation. During the third period (from around 1988), the deregulation was finalized by Bank of Finland. A new round of legislation was passed, following closely the example of the European Communities. The third period can be labeled pre-integration, as Europeanization of the market took place before any political decisions to join the accelerating integration were taken. The three periods of legal change reflect pragmatic reactions to the 1980´s grand political changes in Finland and in Europe. The economic and political force of the Soviet Union was diminishing and European integration was accelerating. By the end of the decade a hubris of European integration existed in the Finnish society. A change parallel to the change in the financial markets can be seen within the human rights paradigm: Europeanization and more international perspective caused fundamental changes.
  • Sallila, Jussi (Helsingin yliopisto, 2016)
    This dissertation investigates the history of bankruptcy law in Sweden and Finland from the late seventeenth century to the 1860s. Because of the long time frame, the study focuses on fundamental questions of bankruptcy law. One can distinguish three such questions. First, the law must balance the possibility of giving the debtor a fresh start against the need to uphold creditor interests. Second, the legislation must determine the extent of public control of the management of insolvencies and the scope of the private autonomy of creditors. Third, when the proceeds of the insolvent estate are distributed, a balance must be struck between equal distribution and the differentiated treatment of creditors. The study focuses primarily on the treatment of the insolvent debtor, which was the most controversial question when Finland reformed its bankruptcy legislation in the 1860s. The new legislation differed from contemporary foreign models in that a composition accepted by the majority of the creditors could not limit the liability of the insolvent debtor by. Critics of the legislation argued that the possibility of a fresh start for the debtor was important for the needs of commerce and industry, and limiting such relief to cases where all creditors were unanimous conflicted with the standards of the civilized world. However, the legislation was defended with arguments underlining the sanctity of property rights and individual freedom. The drafters of the legislation also valued historical continuity, building on the tradition of Swedish law before 1809, when Finland was part of the Swedish realm. In Sweden, new bankruptcy legislation enacted in 1862 had departed from this tradition. In order to explain why Finland did not follow the example of other countries it is necessary to study the history of bankruptcy law over long haul, an analysis which reveals the ideological contrast between commercial utility and principles of justice in its social and political context. The main sources used in this study are the preparatory materials of Swedish and Finnish legislation, including proposals that did not go beyond the drafting stage. Parliamentary debates, newspaper commentary and legal literature have also been used. In a comparative perspective, one of the striking characteristics of early modern Swedish bankruptcy law was its uniformity. Attempts to establish special jurisdictions managing insolvencies did not lead to lasting results, and legislation was applied in general courts in both rural and urban areas. In most European countries, bankruptcy law had emerged as a special regime for persons engaged in commerce in a legal environment characterized by a plurality of jurisdictions and legal sources. In the nineteenth century, this commercial approach to insolvency was modernized, as commercial law and commercial jurisdiction began to regulate business transactions in a depersonalized sense. In such settings, regulating insolvency was also a matter of commercial utility. Sweden s decision to adopt the commercial model of bankruptcy law was criticised by high-ranking judges. The arguments of the Swedish reformers and critics resembled those in Finland a few years later and were indeed used as source material by the Finns. However, the relative influence of people promoting commercial utility and the standards of the civilized world was greater in Sweden than in Finland, while jurists upholding the strictly legal principles of individual rights were in a weaker position. The difference between the two countries is explained by the economic and political setting. Sweden was more closely connected to the expanding world trade, and commercial interests could shape legislation through public debate. In Finland, government policy was not similarly challenged by public opinion. Legal authorities had greater political influence, partly because of the importance of the legal tradition as a cornerstone of Finnish autonomy within the Russian Empire.
  • Tolonen, Hannele (Suomalainen Lakimiesyhdistys, 2015)
    This dissertation, which belongs to the field of procedural law, focuses on the procedural standing of children in custody proceedings and care proceedings. In the Finnish legal system, these proceedings are allocated to separate court systems. This study investigates the effects of this dual court system in situations where child welfare measures and the determination of custody, residence or contact overlap. The dissertation has two main goals: to systemize and compare the legal framework on children s standing in these court proceedings and to evaluate the procedural rights and the right to protection in each proceeding. The research is mainly based on legislative material, case law from the European Court of Human Rights and the national courts, and legal scholarship. In order to examine the effects of overlap of the proceedings at the level of individual cases and to illuminate children s participation in detail, court documents from 34 custody proceedings and 32 care proceedings were qualitatively studied. One of the main results of the study is that the overlap in the proceedings may cause several complications at the level of individual proceedings. In the cases that were studied, many children were affected by both the child welfare system and custody proceedings. In an acute situation, where concerns are raised for the safety of the child, but where the private and public parties disagree on the course of action, the dual process system adds to the complexity. The dual role of social agencies seemed problematic in the overlapping cases, where strong claims of partiality were voiced by the parties in the custody proceedings. In the studied care proceedings, the children who were assisted by a legal counsel participated most effectively and directly. To ensure that children are able to participate effectively in legal decision making, assistance should be provided for them in care proceedings. Especially for older children and in cases where the measures are motivated by the child s conduct, a lawyer should be appointed for the child. In the studied custody proceedings, children rarely participated directly in the proceedings. To enable individual assessment of the means of participation in light of the circumstances in each case, a more flexible approach should be adopted in determining children s procedural standing in custody proceedings. The need for impartial assistance should be considered, for example, in complicated custody cases or when a child is claimed to be at risk.
  • Tapola, Diana (Painosalama Oy, 2015)
    Scope of thesis lies in recognition and enforcement issues of foreign courts judgments and arbitral awards in Russia regarding commercial matters, which are arising from disputes between parties regarding their economic, trade, business and other commercial activities and resolved by a foreign court or arbitral tribunal. The thesis does not entail an actual discussion of the execution process conducted by a bailiffs service but presents: a background and introduction into Russian legal and judicial systems; consideration, analysis and systematization of legal grounds for enforcement of foreign judgments and arbitral awards; different enforcement regimes providing for manner of enforcement; requirements for enforcement leave and a competent authority for that; consideration, analysis and classification of grounds for refusals to enforce; review of judicial practice and its current tendencies. The thesis offers a deeper look into the most unusual and complicated issues of recognition and enforcement of foreign judgments and arbitral awards. To name few: to what extent a foreign judicial or arbitral act is empowered with the legal force of a national judicial act; correlation between international and national norms; if there is no particular specialized international treaty providing for those, what other treaties would suffice; on what grounds and how are recognition and enforcement possible in absence of international treaties; whether principles of comity and reciprocity are applicable in Russia and whether such application is imposed by international obligations. A part of the thesis addresses issues of enforcement leave and deals with some non-standard situations and their management in accordance with Russian law and practice. Several examples include issues when a foreign judgment, enforcement of which is sought in Russia: was already enforced or refused to be enforced in a third state; or if it is irreconcilable with another earlier judgment issued in Russia or another state; or the same dispute is currently under consideration by Russian or another foreign court; or if a party seeks enforcement of a court injunction of interim measure; or if it is required within the arbitral procedure. A substantial part of the thesis covers grounds for refusals to recognize and enforce foreign judgments and awards, where those are identified, analysed and grouped in accordance with the provisions of international and national legislation. The biggest part of the work is dedicated to the public policy. Despite guidance and interpretation of public policy in the international arena, the final word is after a national legislature. An attempt is made here, to describe a present situation and understanding of a public policy clause within the meaning of Russian legislation. A moderate part of the thesis is allocated to setting aside foreign arbitral awards and application of Article V(1)(e) of the New York Convention of 1958 on recognition and enforcement of foreign arbitral awards in Russia, the last part of which wording under law of which may cause a problem.
  • Tuunainen, Pekka (Talentum Oyj, 2015)
    The thesis Inheritance, testaments and debts covers both inheritance law and debt recovery law. The investigation method is based on law. It serves the interpretation and systematization of current legislation. The thesis constitutes an investigation of several branches of law. Recommendations for interpretation have been considered and evaluated in the light of general principles in various branches of law. A central theme of investigation is the compromise between the conflicting interests of an indebted heir and his/her creditors. For an excessively indebted person an inheritance evidently constitutes an increase of property, which could be used for satisfying the creditors. However, an indebted heir might wish to dispose of his/her inheritance in such a way that it is not used for satisfying the creditors interests. At the present time inheritances are economically important, because annually property to a value of approximately four billion euro is transferred in this way. Approximately 140 000 persons annually receive inheritances and it is evident that among them there are excessively indebted persons who receive inheritances of considerable economic value. I have examined the question how to dispose effectively of a future inheritance in relation to the creditors and after the decedent s death of a heir s share of the estate and how and at what stage his/her creditors can intervene in in this process. Another more extensive question from both the debtor s and the creditors point of view concerns the more advanced situation where the debtor s rights to the estate are subject to distraint, i.e. when his/her share of the estate has already been distrained. Private persons bankruptcies are rare in Finland and therefor I have left bankruptcy procedures outside the scope of this thesis. My examination concerns mainly situations where no partition of the estate has been made, i.e. the property is still subject to joint administration by the heirs and by the beneficiaries of the testament. In relation to a debtor s creditors he/she can in an effective way waive his/her right of inheritance and accept the decedent s testament. However, this has to be made in the proper and correct form. The debtor does not enjoy any period of protection for the waiver. The question is who reacts faster; the debtor by waiving his/her right of inheritance or the distraint officer by distraining the share of the estate. But on the other hand, a debtor can accept a testament that violates his/her right of inheritance without any time limit. This competition in the waiver of an inheritance may lead to problems of interpretation when the salient question is whether or not a heir has received his/her inheritance before waiving it. After the reception no waiver is possible and in that case the creditors can intervene in a disposal in the form of a donation and to revoke it by means of recovery. This demonstrates that although it is possible to waive an inheritance in an effective way in relation to the creditors, the general rules of property law otherwise apply to an inheritance, for example in relation to the creditors. In this respect the distinction is very strict, because the donation of an inheritance, where the creditors can intervene, from the parties point of view seems to be practically the same thing as a waiver of the inheritance, which is valid in relation to the creditors. My thesis demonstrates that a testament is an effective way of organizing an inheritance in such a way that the creditors cannot benefit from its value. The effectiveness of a testament is further emphasized by the circumstance that the separation in a testament of the rights of possession and of ownership in practice prevents the use of the inheritance to satisfy the claims of the creditors of both the owner and the possession holder. Also the fact that the debts of private persons are definitely time barred after a certain period (depending on the case either 15 years after a court payment order, or at the latest 25 years after the due date), makes testamentary arrangements a very effective way of protection against the creditors claims. It is also possible by a testament to separate possession and ownership for a certain period of time, or to postpone the time of transfer of ownership until the claims are time barred, in which case no effective recovery is possible any more. This is evidence of the conflicting objectives of different branches of law. The purpose of the legislator is naturally to protect the will of the testator in relation to other interested parties. My thesis also demonstrates that the distraint of the rights of one co-heir of the estate has extensive consequences for its administration. This constitutes a problem for the other co-heirs, who are external third parties in relation to the indebtedness of one of them. In the consideration of the legal consequences of the distraint of a share of an estate, the rights of the co-heirs of the debtor must also be taken into account. All in all, the use of property acquired by inheritance for the payment of a heir s personal debts seems to constitute a multidimensional whole and to require compromises between conflicting interests. Mostly compromises have been successful, but the problems of interpretation become more complicated and they affect more numerous interested parties when a part of an estate is distrained. These problems of interpretation can be solved by argumentation based on solid and reliable knowledge of several branches of law. The purpose of this thesis is to satisfy that need.
  • Vesala, Juha (IPR University Center, 2015)
    Innovation the development of new or improved products and technologies is a major source of economic welfare and growth. Due to its advantages, policy-makers seek to promote innovation in markets by addressing market failures that threaten innovation, such as the risk of free-riding through grant of intellectual property rights ( IPRs ) and concerns raised by market power in antitrust law. This article-based dissertation examines how antitrust (Articles 101 and 102 of the Treaty on the Functioning of the European Union) could treat certain practices involving IPRs in a way amenable to innovation. This poses a major challenge because practices often simultaneously involve aspects that are desirable for innovation (e.g. as a means of recouping investments) and harmful to it (e.g. lessening competitive pressures to innovate). Therefore, trade-offs are required between these conflicting aspects. However, as many innovation aspects are theoretically and empirically ambiguous, antitrust choices must be made under considerable uncertainty. Using methods of theoretical legal dogmatics and arguments from economics, the study develops approaches for the antitrust treatment of certain practices involving IPRs (misuse of IPR application procedures, enforcement of standards-essential patents, and conditions of licensing). As its main result, the study offers analytical approaches and antitrust standards that allow courts, authorities and firms to assess practices. The study finds, for instance, that although antitrust normally does not limit enforcement of IPRs, recourse to injunctive relief by essential patent holders can violate antitrust due to the specific context of standard-setting in which failure to uphold promises to license essential patents threatens competition, standardization and innovation. The study also presents broader observations on the role of antitrust protection of innovation. EU antitrust breaks new ground in extending its scrutiny to conduct in IP application and enforcement procedures, but this does not diverge from the established premise of antitrust only exceptionally intervening in the core of IPR. While conventionally antitrust has mostly been seen as limiting the exercise of IPRs, some practices examined interestingly highlight the possibly increasing role of antitrust in protecting IP holders interests and safeguarding rewards of innovators.
  • Creutz, Katja (Hakapaino, 2015)
    This thesis explores the law of state responsibility in international law from a critical standpoint. The main argument is that there are no longer justifications for holding state responsibility as the foremost responsibility system in international law. The importance of state responsibility has diminished; state responsibility has moved from a paradigm to the periphery in the international legal order. The thesis advances on two fronts to prove the veracity of the argument. First, it evaluates the law of state responsibility as adopted in the International Law Commission s 2001 Articles on State Responsibility in order to pinpoint problems in the general state responsibility rules. Second, the thesis explores how alternative constructions of responsibility, that is international liability and international criminal law, have overtaken portions of the state responsibility domain. Functionality is presented as the most suitable appraisal framework for an analysis of how state responsibility rules respond to challenges such as globalization and its actors, the diversity of responsibility ideas, and the normative fragmentation of responsibility in international law. The thesis thus prioritizes the practical usefulness of a responsibility regime in international law rather than abstract system-building functions. The exploration into the functionality of rules for state responsibility is preceded by an excursion into the evolution of state responsibility. The historical outlook will reveal how the rules developed, what dilemmas have characterized the state responsibility project and how these tensions have affected the formation of the ILC state responsibility rules. The critical appraisal of the general rules of state responsibility addresses a range of problems that relate to legal pluralization, form, function and implementation. It is argued that the state responsibility rules are unable to respond to the multi-actor and multi-issue world, to norm differentiation, and to the diversity of function, all of which contributes to the marginalization of the law of state responsibility. The thesis contends that the decision to create one all-embracing responsibility system for all kinds of violations of international law in order to build a credible international legal order actually led to lessened functionality. Real-world problems of crucial importance to the international community cannot be effectively handled under the state responsibility regime. From the demerits of state responsibility, the thesis proceeds to explore particularized responsibility regimes that have developed and strengthened as alternatives to state responsibility. International liability and international criminal law rules are explored from specific points of functionality that state responsibility is ill-suited to handle, i.e. social control, collectivity and the signalling effect. It is submitted that their particularity is an asset that allows regimes to deal with real problems in flexible and creative ways. They have thus effectively contributed to the side-tracking of state responsibility.
  • 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.
  • Mutanen, Anu (2015)
    This dissertation analyses state sovereignty from the point of view of national constitutions in the context of the constitutional pluralism of the EU. The research questions of the study are threefold. 1. What changes has the European Union caused in the conceptions and theories of state sovereignty? 2. How do the constitutions of the EU Member States regulate sovereignty? 3. How have these sovereignty provisions been interpreted in Finland, Germany, Denmark, Sweden, and Estonia in a selection of EU-related national treaty processes? These questions are examined with a combination of theoretical and genealogical methods as well as contextual legal dogmatics and legal comparison. The dissertation demonstrates that the EU, and European constitutionalism in general, has profoundly affected state sovereignty as a matter of national constitutional law. The concept of state sovereignty has met with increasing criticism. Particularly the idea of absolute sovereignty has faced its demise in the EU Member States. Nevertheless, the general scholarly take within constitutional law still holds on to the concept, but provides it with increasingly relative content expressed in different theories of delegated or shared sovereignty. The texts of the EU Member State constitutions, however, still hold on to rather absolute formulations of state sovereignty and are still silent on the EU despite its far-reaching effects on sovereignty. As a result the constitutional provisions on sovereignty have been subject to dynamic interpretation in order to enable the domestic ratification of the EU treaties and their amendments without jeopardising the EU s development. Germany belongs to the group of states whose constitutions do not contain a sovereignty clause and which have well-established empowerment clauses. The interpretations provided by the German Constitutional Court in regard to the EU treaties have at times been very EU critical, and influential: Sweden, for example, has clearly developed its EU regulation through the model provided by Germany. Sweden does not mention state sovereignty in its Constitutions, and its constitutional interpretation has been integration friendly. Denmark has an EU-minimalist Constitution, the rigidity and the strong built-in referendum institution of which has enabled it to negotiate opt-outs to the EU treaties, allowing it to escape certain significant consequences for sovereignty. Estonia is situated at the apex of sovereignty protectionist constitutions, but on the other hand its Supreme Court has adopted a very pro-EU manner of interpretation. Finland used to have one of the most sovereignty-oriented constitutions in the EU. However, during the country s EU membership the constitutional interpretation has shifted from a rigid and formalistic approach to state sovereignty towards emphasising and easing Finland s EU activities and other international cooperation. This development was codified in 2012 in the Constitution of Finland in the form of an EU clause and empowerment clauses. When considering both the textual level of sovereignty regulation and its interpretation in connection to the national EU treaty ratification procedures, the current Finnish constitutional understanding of sovereignty is more integration friendly than that of Germany, Denmark, Sweden, or Estonia. This dissertation argues in favour of a pluralistic understanding of state sovereignty for resolution of the problems related to sovereignty within the EU. In the new pluralistic understanding of state sovereignty, national conceptions of sovereignty are recognised in that they also contain within themselves the possibilities for international cooperation and EU membership, with the accompanying transfer of powers and widening of competences, in order to engender truly pluralistic interaction between the EU and its Member States.
  • Walkila, Sonya (2015)
    The grounds for debate on fundamental rights in the European Union are currently more fruitful than ever. Following the entry into force of the Lisbon Treaty, not only did the Union avail itself with its own Bill of Rights , i.e., the Charter of Fundamental Rights of the European Union, but is also preparing for its accession to the European Convention on Human Rights. By the same token, the Charter was elevated to the same level as other primary EU law. The frequent horizontal effect of fundamental rights in recent case law of the Court of Justice of the European Union is an indication of a stronger presence and the increased significance of fundamental rights in the Union s legal order at the time when the boundaries between the public and private spheres are increasingly blurred. The Court of Justice strives to interpret and apply the law in a way which contributes to a build-up of a coherent case law and conforms to fundamental rights as closely as possible. The immediate source of the jeopardising act or degree of the incurred effects should not prove decisive. Rather, the horizontal effect of fundamental rights contributes to the primacy, unity and effectiveness of European Union law . This study suggests it is feasible to consider the horizontal effect of fundamental rights as they relate to situations where the legal positions of private parties are transformed in the Hohfeldian sense pursuant to the application of those rights by a court in a legal dispute before it. The incurring legal position depends in turn on the degree of enforceability of the fundamental right norm in question. Because of the semantic and structural openness of fundamental right norms they often necessitate the deduction of a more concrete normative content. This concretization of abstract norms makes adjudicating on the basis of fundamental rights a delicate matter, since it gives great power to the courts. Where this power is extended to the area which typically falls in the sphere of private law, it grows even stronger. Besides powerfully serving to enhance the inner coherence and consistency of Union law and offering feasible solutions to legal problems, the horizontal application of fundamental rights implies a move towards a strengthened constitutional phase of the integration process. Arguments on fundamental rights entail much more than just formal or dogmatic disputes over the scope of application of an act of EU law. They touch on fundamental questions relating to the functioning of the Union and its constitutional nature which pertains to the entire legal order of the EU.
  • Pohjanpalo, Maria (Unigrafia, 2015)
    This research investigates the interrelation of international investments and the environment. It is a study on fragmentation and how to potentially overcome it in practice through what is called a spectrum approach, in the field of international investment law and international environmental law. In particular the focus is on foreign direct investments. Three research questions are posed. First, why is there an increasing amount of investor-state disputes involving an environmental aspect? Second, is it possible to identify common elements, particular problems and specific rules regarding foreign direct investments which have an environmental aspect, from different sources of law, while also taking into account the element of liability? Finally, how could the risk of conflicts, disputes and any resulting liability be minimized? After the introductory Part I, Part II focuses first on the detailed substance of the research topic, placing it then in the theoretical framework, followed by systemizing the growing and changing regulatory and quasi-regulatory framework of it. In Part III on implementation, relevant existing cases are examined. A practical implementation exercise of the identified rules and elements to a foreign investment in the forest sector is included, to investigate if and how the identified rules and elements would apply. Finally in Part IV discussion on future developments and concluding remarks on the findings are presented. The end product of the research is a compact and practical indicative checklist for states and investors that could serve as a tool in order to minimize as far as possible the risk of disputes and liability. The study demonstrates that due to the fragmented nature of international law, in order to facilitate the functioning of the system there is not one, single solution available. This is particularly the case in relation to the third and final research question. Instead, actions by different actors, in different contexts, levels and temporal phases are required, while ensuring a sufficient dialogue and information flow between these actors.
  • 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.
  • 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.
  • Alén-Savikko, Anette (Anette Alén-Savikko, 2014)
    This doctoral dissertation focuses on audiovisual sport coverage in the new media landscape and provides a critical, EU level analysis. Multiple layers of exclusive aspirations exist alongside a striving for maximum exposure and public appeal: sport broadcasting rights in particular have been questioned as their costs have risen and sport content has been moved behind conditional access. These tendencies have then provoked fundamental rights discussions on access by the public to information, pluralism of the media, and freedom of expression. Business is an inseparable part of the modern sport and media gestalt. However, other dimensions to European audiovisual sport coverage exist that do not operate in terms of finance and the market economy alone. In the EU, audiovisual media are regarded as economic services, but they are also acknowledged important role in societies, democracy, and culture. Also European sport has strong socio-cultural dimensions alongside its economic aspects. As regards the new media landscape, media convergence is allegedly influencing sports related media rights and commercial exploitation of sporting events. On the other hand, the Internet and social media are utilized by ordinary citizens, consumers, and supporters. Various demands and regulatory requirements arguably co-exist on many levels. This research aims at providing in-depth analysis of the role of law and alleged changes in the new media landscape, especially concerning various demands and regulatory requirements in the field of audiovisual sport coverage. The focus is on media law and copyright law whereas sport is treated as a particular kind of content with many legally interesting dimensions. Various proprietary rights and exclusive tendencies are mapped out in light of legislation, case law, and legal literature. In addition, fundamental rights, free and fair competition, copyright, and the public interest are analyzed as "law in action." Legal issues related to the Internet and social media are discussed as well. Legal texts are analyzed in the research and research interests are primarily theoretical. A law-and-community approach, elaborated on the basis of Roger Cotterrell's (2006) typology, is utilized in the analysis of legal texts while media and communications studies in particular are utilized in the analysis of (new) media. In particular, the ideas of Jay Bolter and Richard Grusin on 'remediation' are elaborated. New media present a continuation rather than a complete transcendence: new media achieve their 'newness' and cultural significance by refashioning earlier media and the process is mutual (e.g., the Internet/TV). The interrelations between various legal regimes prove highly complex, and EU law in the context of audiovisual sport coverage is often a mixture of Union-level and national-level instruments; there is no overall concept. Moreover, the Internet and social media provide additional dimensions. To conclude with statements on the dominance of economic and instrumental considerations is not surprising. Moreover, audiovisual media and the sport industry also appear to be challenged time and again by technological development and the activities of new entrants or members of the public. As regards the role of law, the research argues that some demands and regulatory requirements have changed in the new media landscape and that the law has difficulty in meeting those demands. With the traditional media mode, inclusion is less in degree and allowed mainly on industry terms whereas the new media mode allows for 'convergence' including in the meaning of media-related roles and practices. Alongside cross-border issues, especially difficult for law is this relativization of binaries in the new media landscape.
  • Helenius, Dan (Suomalainen Lakimiesyhdistys, 2014)
    CRIMINAL JURISDICTION This thesis deals with the criminal jurisdiction of states. Legal examinations of the topic have been somewhat fragmentary in the Nordic legal community. The focus has rather been on certain sets of problems than comprehensive systematization. This can be seen in contrast to legal doctrine, especially in Germany. As the thesis deals with construction and systematization, it has a clear legal dogmatic character. However, the analysis is not directed at a particular country s legal system, but rather at criminal jurisdiction as a general legal phenomenon. This also requires elements of legal comparison. The comparative method used can be characterized as functional comparison, with the Finnish, Swedish, Danish and German legal systems to the fore. Chapter 2 analyses criminal jurisdiction in a broader legal context. In order to get a comprehensive picture of criminal jurisdiction, one must take into consideration the interplay between questions of jurisdiction and questions that relate to other legal areas with an international character. The concept of international criminal law is often used to indicate the totality of norms that regulate a state s criminal jurisdiction. However, this can be considered misleading. Rather, it is warranted to use the concept of international criminal law as an unspecified collective term for norms that have a certain functional relationship. Given this understanding of the concept, one can generally distinguish four separate areas: the law of criminal jurisdiction, international legal assistance in criminal matters, supranational, including European, criminal law, and international offences. When examining the collective term international criminal law, one must consider the numerous points of contact between these separate areas and, indeed, places where they overlap. The meaning of criminal jurisdiction is examined in chapter 3. The purpose is to provide a structure and an understanding of the scope and legal implications of the law of criminal jurisdiction. The concept of jurisdiction usually refers to the exercise of state power in some form. This exercise of power can refer to the relationship between states and individuals as well as the relationship between states. Consequently, the law of criminal jurisdiction has a national as well as an international dimension and there is a continuous process of interaction between these dimensions. The law of criminal jurisdiction also has a dual legal character. The law of jurisdiction has a material as well as a procedural side. The concepts used to indicate these components are penal authority and judicial authority. Penal authority refers to the state s claim on criminal appraisal of certain determined circumstances. Judicial authority, on the other hand, refers to the state s claim on realizing its penal authority. As long as national courts only apply national criminal law, the scope of a state s penal authority is the same as the scope of the application of its criminal law. By legislating on the scope of the application of national criminal law, the state, consequently, also establishes its penal authority. In order to understand the law of criminal jurisdiction, one must distinguish between these components. The question of how states legislate on matters of criminal jurisdiction is also examined. This leads to the question of the dogmatic position of the norms on jurisdiction as well as the question of the so-called factors of the scope of application encompassed in these norms. Legal doctrine is divided on these issues, and the thesis strives for a more thorough analysis of them. How one answers these questions has a direct implication for a set of other questions of criminal law, including the principle of legality, the principle of guilt as well as criminal intent and mistake. Chapter 4 analyses the bounds of criminal jurisdiction, primarily with regard to limitations stemming from international law. States usually claim jurisdiction not only with regard to offences committed within their own state borders, but also with regard to offences committed abroad. According to the opinion presented in the thesis, the limitations must be sought in the principle of nonintervention and the doctrine of meaningful connection stemming from this principle, both found in international law. The international principle of the sovereign equality of states entails a demand for states to respect each other s internal affairs. Sovereignty in a material sense encompasses a state s self-determination over its own internal affairs. These affairs also include a state s criminal policy. In a positive respect, the demand for states to respect each other s sovereignty gives states the right to determine their own internal affairs. In a negative respect, there also follows a prohibition not to intervene in the internal affairs of other states (the principle of nonintervention). Any interference with another state s right to self-determination has to be justified by reference to a meaningful connection that expresses an acceptable interest between the extraterritorial circumstance and the state that makes use of its power of criminal regulation. Generally, one can presuppose that the so-called principles of jurisdiction express such meaningful connections. In order to render it possible to examine these principles, one must make a distinction between national principles of jurisdiction and international principles of jurisdiction. National principles are the results of attempts to identify and systematize overall elements in the national rules on jurisdiction. Therefore, they have a descriptive function. On the other hand, the function of international principles is to establish constituently which connections the national legislator may refer to when extending the state s penal authority. Therefore, they also have a normative function. In the course of their development, international principles have become detached from national principles and have acquired an independent meaning as norms of permission in international law. They are based on and form typical examples of balancing a state s self-determination and the principle of nonintervention. As such, they facilitate the need of national legislators and judiciaries to conduct a new exercise in balancing these two interests in every single case. The scope and meaning of the individual principles of jurisdiction are also examined. Additionally, I also analyze certain other aspects of importance for the scope of the law on criminal jurisdiction, such as international immunity and international jurisdictional obligations. Chapter 5 focuses on a particular problem complex in relation to the law on criminal jurisdiction, namely, the question of overlapping jurisdiction and conflicts of jurisdiction. First of all, the state s unilateral regulation on jurisdiction inevitably brings about a situation in which the law on jurisdiction in several states can cover the same act. Secondly, international conventions and EU legal acts also result in jurisdictional networks that give states overlapping jurisdictional competence. The problem has been discussed intensively with regard to EU member states, which are presupposed to practice a close legal cooperation based on trust. The focus is, therefore, on conflicts of jurisdiction between EU member states. Conflicts of jurisdiction can have negative consequences for a state s measures regarding criminal procedure as well as for individuals that are thereby affected. Consequently, the question arises as to what degree it is possible to prevent and solve conflicts of jurisdiction. Different models and legal mechanisms exist for this purpose, and these are examined more closely. An appropriate model for the solving of conflicts requires above all a sufficient level of transparency and predictability.
  • Terenius, Markus (Suomalainen Lakimiesyhdistys, 2013)
    POLICE USE OF FORCE A STUDY IN CRIMINAL LAW ON THE LIMITS OF ALLOWED USE OF FORCE The purpose of the study is to provide an overview on the legal framework on police use of force. As the study falls primarily to the sphere of criminal justice, the special focus in analysis is on defining the approaches that are to be considered non-acceptable. A great number of various operational models, of which some are considered better and some worse than others in a tactic sense, are left within the scope of the defined external limits of the zone of acceptable use of force for discretion of individual police officers. Rules on self-defence and use of force provided in the Criminal Code and Police Act are flexible and for their application, various factors, all pulling to different directions, must be weighed. In order to describe this process of weighing, the study provides an analysis of the discussion on the rules and principles of the 1980 s and 1990 s. Since the 1990 s, argumentation on fundamental and human rights has gained more room in this discussion. Arguments based on fundamental and human rights have been used to pinpoint legal problems as well as scales of approval in respect to recommendations for legal interpretation. Both of the approaches reflect the significance of fundamental and human rights as the factor merging various fields of justice and as the counter-force to scatter justice. Thus, the methodology used in the study may be described as a legal doctrine that takes fundamental and human rights into account. Regarding the relation between criminal law and police law, the study aims to establish the way in which actions in line with police powers are positioned on the structural field of crime and to ascertain the significance that criminal justice has in defining the limits of police powers. The study suggests that action based on powers accepted to cover official duties and tasks does not constitute any action meeting the definitional elements of crime, but that it is rather a question of action taken within the limits of acceptable risk defined in criminal law. In the light of this approach, the study evaluates the acceptability of use of official powers from the perspective of criminal justice by interpreting and applying police powers, in particular, instead of justifications derived from the field of criminal justice. In addition to sending a strong moral message, noting discharge of liability on the level of conformity to the definitional elements accentuates the perspective of administrative law and, at the same time, makes government action more predictable resulting in refined legal safeguards for both citizens and government officials. Highlighting the significance of administrative regulation in the context of police use of force would lead to a situation in which provisions of criminal law on self-defence and necessity were to be applied only in exceptional cases and where self-defence, in particular, would lose importance as justification for police use of force. The study suggests that the unnecessary wide scope of application of the provision on self-defence should be de lege lata narrowed. A police officer s right for self-defence should be limited to concern attacks posing serious threat to life or health and only under exceptional circumstances, to situations in which other persons than the police officer employing forcible means are subjected to an attack or a threat of an attack. The de lege ferenda split in the use of force and self-defence should be waived, and all situations involving use of force should be assessed on the basis of the same set of administrative regulations regardless of the used force having been offensive or defensive. In the light of a police officer s fundamental and human rights and considering the principle of equality in particular, it is required, however, that the content of the provision on right for self-defence to be included in the regulations of official powers should correspond to the content of the general provision on self-defence in the Criminal Code. In respect to the substance, criminal law and police law should not diverge too far from each other, whether it is a question of police use of force or any other official action taken within the scope of official powers. Arguments on fundamental and human rights serve as the force merging these fields of justice but they also define the external limits of police use of force - and of police powers in a more general sense - that cannot be crossed. By analysing the case law of the European Court of Human Rights in particular, the study aims to establish what kind of unconditional prohibitions or principles to be taken into account in the interpretation are set on police use of force by fundamental and human rights. Some efforts have been taken to derive standards applicable to police use of force from human rights, although fundamental and human rights are too general and imprecise to offer any particularly clear guidelines for defining illegal action. Rulings of the Supreme Court of Finland and Courts of Appeal have been used to outline the limits of legal use of force in Finland. Questions on whether or not intentional killing falls within the limits of acceptable use of force, on one hand, and the extent in which rights of bystanders may be jeopardized in the context of employing force, on the other hand, have been discussed as individual questions. The study did not reveal such weaknesses in national regulations on police use of force that would jeopardize fundamental and human rights, but it concludes that from the perspective of fundamental and human rights of an individual citizen, police use of force is well regulated, well managed and well carried out. Especially in respect to the police weapon use it is evident; it is highly regulated even in a comparison limited to concern only the Nordic countries. In relation to police use of force, only legal standing of the bystander is relatively poorly regulated. In this respect, the study aims to define some preliminary standards, but there is an obvious need for further study. The last part of the study focuses on the following questions: How unlawful use of force should be punished and what are the legal norms on which such punishment should be based? And: How various types of mistakes should be assessed in the context defining the limits of criminal liability? A precondition for passing a sentence for an offence committed in public office with intent and along with it, for a so-called general intent offence is that the government official in question was aware of not only the consequences for the act, but prevalence of the unlawful nature of the act and relevant circumstances quite probable at the time of commission. In the context of evaluation of situations involving use of force and, in more general sense, application of official powers in the context of statutory duties, it should be borne in mind that it is a question of action based on statutory duties which has inevitable repercussions on the possibilities to act differently - an essential concept from the criminal law point of view. The study assesses situations in which a police officer is obliged to employ force from the angle of statutory duties. On the basis of case law of the European Court of Human Rights, the lower limit in situations jeopardizing life and health has been set to a real and immediate threat . However, any obligation to act must not result in unreasonable burden on the state nor may it lead to unduly compromises in any police officer s safety at work.
  • 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.
  • Frände, Joakim (Suomalainen lakimiesyhdistys, 2013)
    Dual residence in the taxation of individuals Each country has the right to determine on which grounds and to what extent it exercises its tax authority. In the case of individuals a country usually bases its right to levy taxes on the connection between the country and the individual, or the country and the income or wealth in question. This thesis deals with the connection that exists between the country and the individual. Under domestic tax law systems a separation is usually made into full and limited tax liability. Full tax liability arises when there are strong ties between the individual and the state. Residence is usually considered a strong tie that results in full tax liability. A person who is resident in a country, and therefore subject to full tax liability, is usually taxed on his world wide income. However, if the person is not resident, the state does not claim the right to tax the individual as such, but taxes income that arises within the territory of the country. When determining residence in one country, no consideration is given to whether the person is also resident in other countries. Consequently, individuals can as a result of cross border movement be considered resident both in the country of arrival and the country of departure. When two countries both consider an individual resident, dual residence arises. The purpose of this thesis is to analyse three aspects of dual residence. First and foremost, national rules on residence will be analysed, as well as how dual residence occurs in practice. Secondly, the rules on how to determine tax residence for tax treaty purposes are discussed. Thirdly, the tax consequences of dual residence will be investigated. The emphasis will be on the first two aspects of dual residence mentioned. The thesis is based on a dogmatic approach to legal research. Some elements of comparative methods of research are also present. A person who is resident in Finland is subject to full tax liability in Finland. Residence for income tax purposes is determined in the income tax act (ITA) § 11. According to ITA § 11 a person is resident in Finland if he has his main abode and home in Finland, stays over six months in Finland or falls under the three-year rule. Finnish nationals who leave Finland are as a result of the three-year rule considered resident the year of departure and the three following years. Limited tax liability can arise before the three- year period ends if the individual can produce evidence that he lacks substantial ties to Finland. The Finnish rules on residence are partly problematic. The rules on when a visit to Finland has fulfilled the six months requirement are unclear. Also, the three-year rule does not specify what a substantial tie is. The three-year rule furthermore distinguishes between Finnish nationals and foreign nationals. Different tax consequences depending on nationality can be problematic from an EU perspective. A short analysis of the current ECJ cases, however, indicates that the three-year rule is probably in conformity with EU law. Residence is also used to determine tax liability for the purpose of other taxes, such as the gift and inheritance tax, car tax, municipal tax and social security contributions. Each above-mentioned tax has its own notion of residence. The different concepts of residence are compared with the residence concept that is used for income tax purposes. The comparison led to the observation that the residence concept for income tax purposes can impact on the other residence concepts. Usually residence for other tax purposes does not impact on the residence status for income tax purposes. However, the tax authorities claim that belonging to the Finnish social security system is a substantial tie according to the three-year rule. The Finnish rules on residence for income tax purposes are in many ways interesting in comparison to other countries rules on residence. A comparison has been made with Sweden, Norway, Denmark, Germany, the United Kingdom and the USA. Most of the above-mentioned countries have fairly recently amended and modernized their rules on residence. The comparison demonstrates that the Finnish rules on residence are outdated and in need of reformation. For instance, nationality does not carry any weight when determining tax liability in most other countries (except for the USA). When a Finnish national moves abroad, he is usually subject to full tax liability in the country of arrival, and at the same time subject to full tax liability in Finland due to the three-year rule. The resulting dual residence is solved by tax treaty, provided that the countries have concluded a treaty. For tax treaty purposes a person can only have one tax treaty residence at a time. Residence for tax treaty purposes is determined through the tie breaker in article 4(2). The state of residence has the primary right to tax the individual. The tie breaker is, however, problematic, since the criteria on which residence is decided are partly ambiguous and can be interpreted in different ways. Therefore the general rules on tax treaty interpretation have to be considered. Rules on tax treaty interpretation can be found in domestic legislation, international law, the Vienna convention, article 3(2) of tax treaties, and in the commentaries to the model tax convention. Some of the rules on interpretation can lead to different outcomes. The parties can also have diverging information about the individual s personal circumstances. Therefore it is possible that two countries cannot reach an agreement on which country should be the individual s state of residence according to article 4. When both countries claim to be the state of residence, the conflict shall be settled by the mutual agreement procedure in article 25 of the tax treaty. The mutual agreement procedure is time consuming and results cannot be guaranteed. In Finland there are no publications by the tax authorities on the mutual agreement procedure, and the procedure is hence not very well known. Therefore, I have tried to describe how the mutual agreement procedure is executed in practice. In 2008 the OECD added an arbitration clause to its model convention as a final means to solve tax treaty disputes that have not been solved by the mutual agreement procedure. Finland has not, however, included the clause in its treaties. Dual residence can result in several different consequences for the taxation of individuals, and the possible consequences are analysed in this thesis. The taxation of dual resident individuals can vary greatly from one situation to another depending on domestic legislation in both countries of residence, the type of income, the source of income, the tax treaties articles and the interpretation of the tax treaty. The taxation of dual resident persons can be divided into situations where no tax treaty has been concluded, a tax treaty exists and Finland is not the state of residence, and situations where both countries claim residence status according to the tax treaty. Some Finnish tax treaties include the three-year rule in article 23. According to the clause the source country is granted a more comprehensive, but secondary, right to tax persons who are resident according to domestic tax law, although the residence state for tax treaty purposes is in the other country. To demonstrate the impact of dual residence on the taxation of individuals, the taxation in Finland of interest, dividend, capital gains, salary and pensions is described through practical examples. Situations of dual residence can also have other tax implications, e.g. is there a progressive impact on other income, and how are deductions and losses taken into account when Finland is not the state of residence according to article 4? Dual residence does not necessarily cause double taxation as a result of national rules on credit and exemption and the elimination of double taxation. The concluding chapter sheds light on some of the most urgent problems in the current legislation on residence and presents some suggestions for improvements. The rules on residence in the domestic income tax act are scrutinized in detail. It is suggested that the nationality criterion in the three-year rule is abolished, and that substantial ties are defined in the income tax act. Furthermore, it is also suggested that the national rules on the elimination of double taxation are elucidated and that the scale of application is extended. On the international level it is recommended that article 3(2) in the OECD model tax convention is amended to primarily recommend an interpretation according to the context. Some minor adjustments are also presented to the articles on residence and mutual agreement.
  • Ponka, Ilja (Helsingin yliopisto, 2013)
    This dissertation discusses electronic identification and signatures in the Finnish law of obligations. Despite the technical topic, the study is a traditional legal one, aiming at systemising the law and giving suggestions for the interpretation and application of the relevant law, although small changes to the applicable law are also suggested in a few places. The dissertation consists of three parts. The first part (chapter 2) discusses the technical aspects and introduces the international and Finnish legislative background, as well as the central piece of legislation for this study, the Act on Strong Electronic Identification and Electronic Signatures (ElectrIDSignAct, 617/2009). The area of applicability and terminology used in the act are discussed in detail. Much of this act closely follows the EU Electronic Signature Directive (ESD, 1999/93/EC), but some improvements are suggested in the domestic parts. The second part (chapter 3) discusses contract law issues such as entering into obligations with the help of electronic signatures or identification, the law of agency, unauthorised use, the law of evidence and legal form requirements. As it turns out, most issues discussed can be addressed with appropriate interpretation of existing law and principles, but a few suggestions are made for the general rules of chapter 2 of ElectrIDSignAct and the requirements for the written form. The third part (chapter 4) discusses tort law as it relates to the unauthorised use of electronic identification or signatures. The different liability scenarios, parties duties and differences in liability rules in contract and outside of contract,as well as the floodgate argument and the Finnish rule on pure economic loss, the Tort Liability Act (412/1974) 5:1, are discussed. After this, the rules for each party are considered in turn. The liability rules for the unauthorised and authorised user are clear. The only suggested change is that the objective liability of ElectrIDSignAct 40.1 § should be replaced by fault liability. Moreover, it is deemed unlikely that outside the special rule of ElectrIDSignAct 41 § (ESD article 6) the trusted third party would be liable to a trusting party, unless there is criminal or grossly negligent behaviour. It is also suggested that a closed infrastructure may be preferable to an open one, since it can be far less complex and allow more effective safeguards.
  • Paanetoja, Jaana (Suomalainen lakimiesyhdistys, 2013)
    This thesis in labour law addresses of four different subjects. First, the content of work within an employment contract and work activity outside of an employment contract regulated by The Social Welfare Act will be reviewed. Second, work activity, according to The Act on the Special Care of Mentally Handicapped Persons, will be studied. Third, work activities organized by mental health organizations for their members will be examined and, finally, supported employment and transitional work performed by the mentally rehabilitated and special features of such work will be analyzed. The aim of the research is to identify the difference between work performed under an employment contract and work that is performed without being included in an employment contract. The main goal is to find a distinction between employment contract and work activity. The analysis focuses on the essential elements of an employment contract, as given in the Employment Contracts Act, chapter 1, section 1, and the derived establishment of the status of an employee. The main focus of the study is on the kind of work that, is called work activity, which is performed in exchange for pay and which legal nature is not specified by law. The study is thus concerned especially with work activity performed under the Act on the Special Care of Mentally Handicapped Persons in sheltered work centres and work activity units and work performed outside those centres and units in the open labour market as well as work activities organized by mental health organizations for their members. The study clarifies the content of each individual essential characteristic of an employment contract and investigates the possible need for further completion of these characteristics. In this regard, the content of the definition of work itself, the significance of the intent to make a profit, the motives for performing work and for employing workers, are analyzed. The study also clarifies the status, content and importance of the comprehensive assessment of the employee position (employee relationship). Although the study analyses the legal nature of work activity, especially the parts governing the content of each individual essential element (characteristic) of employment contracts and the comprehensive assessment of the employee position, it can also be viewed from a broader labour law perspective. Understanding work activity as a form of work performance offers the opportunity to analyze labour law s fundamental question from a new perspective: what is the definition of the position of the employee. The research also relates to other questions than just the distinction between work activity and an employment contract. These are, among others, could relationships that do fulfill the essential characteristics of an employment contract be left outside the protection of the labour law and the impact of administrative action on the legal establishment of an employment contract. Together with work activity the, study analyses features which are uncommon for traditional employment contracts, such as features related to supported employment and transitional work. Among other things, the meaning of the personal criteria, which is an essential element of an employment contract, and the division of the employer's duties, are reviewed. The distinction between work as defined within an employment contract and work not included in an employment contract (other than the work of the self-employed) has not, with the exception of the distinction between employment contracts and hobby activities, been researched before. The research method is mainly legal dogmatic. In addition to legal dogmatic research, the study also contains elements from the fields of critical legal studies and problem-centered legal studies. Furthermore, the study analyses the impact of individual attributes and their influence on the assessment of the nature of the legal relationship of work in the same way as found in social civil law. The research showed that the difference between The Social Welfare Act's (section 27d subsection 3) concept of work as defined in an employment contract and conventional work remained a matter open to discussion. Furthermore, the internal distinction between work as defined in an employment contract and work activity not covered by an employment contract (section 27e) remained unclear. The health of the participant and his or her basis of living have been used as a separation criterion instead of the nature or the content of work. The research concludes that the essential elements of the employment contract may be fulfilled both by work activities done by the retarded and by work activities organized by mental health organizations. A comprehensive assessment of the employee position is not needed: by analyzing the essential elements of an employment contract, one can identify the legal nature of the relationship. The uncommon features found in supported employment and transitional work did not appear to undermine the existence of an employment contract. The results of the study indicate some disregard for certain aspects of particular codes of labour law in the field of social civil law. Legal relationships dealing with work activity are mainly considered to be found outside an employment contract and the nature of these legal relationships is not even assessed with the essential elements as given by the Employment Contracts Act. In fact there never even been given a chance to assess the possibility of an employment contract. As individual contracts concerning work activity have not been challenged, it demonstrates that individuals themselves are content with the general, dominant view of the nature of work activity falling outside the provisions of an employment contract and the protection of the labour law. However, the norms of the labour law should also apply, to work activity along with social law. To perceive the legal relationship as a non-employment contract is not the solution, one has to analyze the juridical nature of the work by applying the essential elements set out in the Employment Contracts Act. Alongside other issues, constitutional questions must be taken into account when evaluating the possibilities for regulating work activities outside The Employment Contracts Act. Interpretations of the European Court of Justice may also have some influence on the matter.