Posted Workers and Free Movement of Services in the European Union – the Impact on National Employment and Immigration Law

This thesis examines posting of workers within the free movement of services in the European Union. The emphasis is on the case law of the European Court of Justice and in the role it has played in the liberalisation of the service sector in respect of posting of workers. The case law is examined from two different viewpoints: firstly, that of employment law and secondly, immigration law. The aim is to find out how active a role the Court has taken with regard these two fields of law and what are the implications of the Court’s judgments for the regulation on a national level. The first part of the thesis provides a general review of the Community law principles governing the freedom to provide services in the EU. The second part presents the Posted Workers’ Directive and the case law of the European Court of Justice before and after the enactment of the Directive from the viewpoint of employment law. Special attention is paid to a recent judgment in which the Court has taken a restrictive position with regard to a trade union’s right to take collective action against a service provider established in another Member State. The third part of the thesis concentrates, firstly, on the legal status of non-EU nationals lawfully resident in the EU. Secondly, it looks into the question of how the Court’s case law has affected the possibilities to use non-EU nationals as posted workers within the freedom to provide services. The final chapter includes a critical analysis of the Court’s case law on posted workers. The judgments of the European Court of Justice are the principal source of law for this thesis. In the primary legislation the focus is on Articles 49 EC and 50 EC that lay down the rules concerning the free movement of services. Within the secondary legislation, the present work principally concentrates on the Posted Workers’ Directive. It also examines proposals of the European Commission and directives that have been adopted in the field of immigration. The conclusions of the case study are twofold: while in the field of employment law, the European Court of Justice has based its judgments on a very literal interpretation of the Posted Workers’ Directive, in the field of immigration its conclusions have been much more innovative. In both fields of regulation the Court’s judgments have far-reaching implications for the rules concerning posting of workers leaving very little discretion for the Member States’ authorities.

Conrad Summenhart's theory of individual rights and its medieval background

This study focuses on the theory of individual rights that the German theologian Conrad Summenhart (1455-1502) explicated in his massive work Opus septipartitum de contractibus pro foro conscientiae et theologico. The central question to be studied is: How does Summenhart understand the concept of an individual right and its immediate implications? The basic premiss of this study is that in Opus septipartitum Summenhart composed a comprehensive theory of individual rights as a contribution to the on-going medieval discourse on rights. With this rationale, the first part of the study concentrates on earlier discussions on rights as the background for Summenhart s theory. Special attention is paid to language in which right was defined in terms of power . In the fourteenth century writers like Hervaeus Natalis and William Ockham maintained that right signifies power by which the right-holder can to use material things licitly. It will also be shown how the attempts to describe what is meant by the term right became more specified and cultivated. Gerson followed the implications that the term power had in natural philosophy and attributed rights to animals and other creatures. To secure right as a normative concept, Gerson utilized the ancient ius suum cuique-principle of justice and introduced a definition in which right was seen as derived from justice. The latter part of this study makes effort to reconstructing Summenhart s theory of individual rights in three sections. The first section clarifies Summenhart s discussion of the right of the individual or the concept of an individual right. Summenhart specified Gerson s description of right as power, taking further use of the language of natural philosophy. In this respect, Summenhart s theory managed to bring an end to a particular continuity of thought that was centered upon a view in which right was understood to signify power to licit action. Perhaps the most significant feature of Summenhart s discussion was the way he explicated the implication of liberty that was present in Gerson s language of rights. Summenhart assimilated libertas with the self-mastery or dominion that in the economic context of discussion took the form of (a moderate) self-ownership. Summenhart discussion also introduced two apparent extensions to Gerson s terminology. First, Summenhart classified right as relation, and second, he equated right with dominion. It is distinctive of Summenhart s view that he took action as the primary determinant of right: Everyone has as much rights or dominion in regard to a thing, as much actions it is licit for him to exercise in regard to the thing. The second section elaborates Summenhart s discussion of the species dominion, which delivered an answer to the question of what kind of rights exist, and clarified thereby the implications of the concept of an individual right. The central feature in Summenhart s discussion was his conscious effort to systematize Gerson s language by combining classifications of dominion into a coherent whole. In this respect, his treatement of the natural dominion is emblematic. Summenhart constructed the concept of natural dominion by making use of the concepts of foundation (founded on a natural gift) and law (according to the natural law). In defining natural dominion as dominion founded on a natural gift, Summenhart attributed natural dominion to animals and even to heavenly bodies. In discussing man s natural dominion, Summenhart pointed out that the natural dominion is not sufficiently identified by its foundation, but requires further specification, which Summenhart finds in the idea that natural dominion is appropriate to the subject according to the natural law. This characterization lead him to treat God s dominion as natural dominion. Partly, this was due to Summenhart s specific understanding of the natural law, which made reasonableness as the primary criterion for the natural dominion at the expense of any metaphysical considerations. The third section clarifies Summenhart s discussion of the property rights defined by the positive human law. By delivering an account on juridical property rights Summenhart connected his philosophical and theological theory on rights to the juridical language of his times, and demonstrated that his own language of rights was compatible with current juridical terminology. Summenhart prepared his discussion of property rights with an account of the justification for private property, which gave private property a direct and strong natural law-based justification. Summenhart s discussion of the four property rights usus, usufructus, proprietas, and possession aimed at delivering a detailed report of the usage of these concepts in juridical discourse. His discussion was characterized by extensive use of the juridical source texts, which was more direct and verbal the more his discussion became entangled with the details of juridical doctrine. At the same time he promoted his own language on rights, especially by applying the idea of right as relation. He also showed recognizable effort towards systematizing juridical language related to property rights.

Christian-Muslim Dialogue : Perspectives of Four Lebanese Thinkers

This study describes and analyses two Lebanese Muslims and two Lebanese Christians ideas about Christian-Muslim dialogue, its nature, aims, and methods and its different dimensions, which include doctrinal, ethical, and social dimensions. On the basis of the analysis, the four thinkers contributions for promoting constructive dialogue are evaluated. The persons studied are two religious authorities, the Shiite Great Ayatollah Muhammad Husayn Fadlallah (b. 1935) and the Eastern Orthodox Metropolitan of Mount Lebanon, Georges Khodr (b. 1923), and two academic scholars, Doctor Mahmoud Ayoub (b. 1935) and Doctor, Father Mouchir Aoun (b. 1964), from the Shiite and Greek Catholic communities, respectively. The method of the study is systematic analysis. The sources consist of the four thinkers writings on Christian-Muslim relations, the most of which have been published in Lebanon in the 1990s and 2000s in the Arabic language. In their general guidelines for Christian-Muslim dialogue, the four authors do not offer any novel or unusual insights. However, their dialogue visions are multi-faceted, motivating interreligious encounter both on religious and practical grounds and clarifying the theological grounds and socio-political conditions of this endeavour. The major challenge appears to be the tension between loyalty to one s own convictions and taking into account the particular self-understanding of the other. While this tension may be ultimately unsolvable, it is obvious that linking dialogue tightly to missionary motivations or certain theological agenda imposed on the others is not conducive for better mutual understanding. As for how diverse theologies of religions affect interreligious dialogue, narrow exclusivism hardly promotes mutual knowledge and appreciation, but also inclusive and pluralistic positions have their particular dilemmas. In the end, dialogue is possible from diverse positions on theology of religions. All the authors discuss the theological themes of divine revelation, concept of God, and human condition and ultimate destiny. The two religions particular views on these issues cannot be reconciled, but the authors offer diverse means to facilitate mutual understanding on them, such as increasing mutual knowledge, questioning certain traditional condemnations, showing theological parallels between the two religions, and transcending doctrinal disagreements by stressing common religious experience or ethical concerns. Among the theological themes, especially the concept of God seems to offer possibilities for better understanding than has traditionally been the case. Significantly, all the four authors maintain that Christians and Muslims share the faith in the one God, irrespective of their disagreements about the nature of his oneness. Basic ethical principles are not discussed as widely by the four authors as might be expected, which may reflect the shared cultural background and common ethical values of the Lebanese Muslims and Christians. On this level, Christians alienation from the Islamic law appears as the most significant challenge to mutual understanding, while neighbourly love and the golden rule of ethics offer a fruitful basis for further dialogue. As for the issue of political power-sharing in Lebanon, it is clear that the proposal of an Islamic state is problematic in a country with a sizable Christian minority and a heterogeneous Muslim population. Some form of democracy seems more viable for a multireligious country, but the question remains how to retain religion as a vital force in society, which is felt to be important by all the four Lebanese authors.

Rethinking Media Pluralism : A Critique of Theories and Policy Discourses

This study examines different ways in which the concept of media pluralism has been theorized and used in contemporary media policy debates. Access to a broad range of different political views and cultural expressions is often regarded as a self-evident value in both theoretical and political debates on media and democracy. Opinions on the meaning and nature of media pluralism as a theoretical, political or empirical concept, however, are many, and it can easily be adjusted to different political purposes. The study aims to analyse the ambiguities surrounding the concept of media pluralism in two ways: by deconstructing its normative roots from the perspective of democratic theory, and by examining its different uses, definitions and underlying rationalities in current European media policy debates. The first part of the study examines the values and assumptions behind the notion of media pluralism in the context of different theories of democracy and the public sphere. The second part then analyses and assesses the deployment of the concept in contemporary European policy debates on media ownership and public service media. Finally, the study critically evaluates various attempts to create empirical indicators for measuring media pluralism and discusses their normative implications and underlying rationalities. The analysis of contemporary policy debates indicates that the notion of media pluralism has been too readily reduced to an empty catchphrase or conflated with consumer choice and market competition. In this narrow technocratic logic, pluralism is often unreflectively associated with quantitative data in a way that leaves unexamined key questions about social and political values, democracy, and citizenship. The basic argument advanced in the study is that media pluralism needs to be rescued from its depoliticized uses and re-imagined more broadly as a normative value that refers to the distribution of communicative power in the public sphere. Instead of something that could simply be measured through the number of media outlets available, the study argues that media pluralism should be understood in terms of its ability to challenge inequalities in communicative power and create a more democratic public sphere.

New Governance and the EU Courts : The Experimentalist Architecture of Judicial Decision-Making

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.

Producing interactivity : Does media convergence promote interactivity and audience participation?

This study investigates the process of producing interactivity in a converged media environment. The study asks whether more media convergence equals more interactivity. The research object is approached through semi-structured interviews of prominent decision makers within the Finnish media. The main focus of the study are the three big ones of the traditional media, radio, television and the printing press, and their ability to adapt to the changing environment. The study develops theoretical models for the analysis of interactive features and convergence. Case-studies are formed from the interview data and they are evaluated against the models. As a result the cases arc plotted and compared on a four-fold table. The cases are Radio Rock, NRJ, Biu Brother, Television Chat, Olivia and Sanoma News. It is found out that the theoretical models can accurately forecast the results of the case studies. The models are also able to distinguish different aspects of both interactivity and convergence so that a case, which at a first glance seems not to be very interactive is in the end found out to receive second highest scores on the analysis. The highest scores are received by Big Brother and Sanoma News. Through the theory and the analysis of the research data it is found out that the concepts of interactivity and convergence arc intimately intertwined and very hard in many cases to separate from each other. Hence the answer to the main question of this study is yes, convergence does promote interactivity and audience participation. The main theoretical background for the analysis of interactivity follows the work of Came Fleeter, Spiro Kiousis and Sally McMillan. Heeler's six-dimensional definition of interactivity is used as the basis for operationalizing interactivity. The actor-network theory is used as the main theoretical framework to analyze convergence. The definition and operationalization of the actor-network theory into a model of convergence follows the work of Michel Callon. Bruno Latour and especially John Law and Felix Stalder.