Beyond Words : The European Court of Justice and Legal Certainty in Multilingual EU Law

This study addresses the issue of multilingualism in EU law. More specifically, it explores the implications of multilingualism for conceptualising legal certainty, a central principle of law both in domestic and EU legal systems. The main question addressed is how multilingualism and legal certainty may be reconciled in the EU legal system. The study begins with a discussion on the role of translation in drafting EU legislation and its implications for interpreting EU law at the European Court of Justice (ECJ). Uncertainty regarding the meaning of multilingual EU law and the interrelationship between multilingualism and ECJ methods of interpretation are explored. This analysis leads to questioning the importance of linguistic-semantic methods of interpretation, especially the role of comparing language versions for clarifying meaning and the ordinary meaning thesis, and to placing emphasis on other, especially the teleological, purpose-oriented method of interpretation. As regards the principle of legal certainty, the starting-point is a two-dimensional concept consisting of both formal and substantive elements; of predictability and acceptability. Formal legal certainty implies that laws and adjudication, in particular, must be predictable. Substantive legal certainty is related to rational acceptability of judicial decision-making placing emphasis on its acceptability to the legal community in question. Contrary to predictability that one might intuitively relate to linguistic-semantic methods of interpretation, the study suggests a new conception of legal certainty where purpose, telos, and other dynamic methods of interpretation are of particular significance for meaning construction in multilingual EU law. Accordingly, the importance of purposive, teleological interpretation as the standard doctrine of interpretation in a multilingual legal system is highlighted. The focus on rational, substantive acceptability results in emphasising discourse among legal actors among the EU legal community and stressing the need to give reasons in favour of proposed meaning in accordance with dynamic methods of interpretation including considerations related to purposes, aims, objectives and consequences. In this context, the role of ideal discourse situations and communicative action taking the form of interaction among the EU legal community in an ongoing dialogue especially in the preliminary ruling procedure is brought into focus. In order for this dialogue to function, it requires that the ECJ gives persuasive, convincing and acceptable reasons in justifying its decisions. This necessitates transparency, sincerity, and dialogue with the relevant audience.

Fatigued driving : prevalence, risk factors and groups, and the law

Fatigue and sleepiness are major causes of road traffic accidents. However, precise data is often lacking because a validated and reliable device for detecting the level of sleepiness (cf. the breathalyzer for alcohol levels) does not exist, nor does criteria for the unambiguous detection of fatigue/sleepiness as a contributing factor in accident causation. Therefore, identification of risk factors and groups might not always be easy. Furthermore, it is extremely difficult to incorporate fatigue in operationalized terms into either traffic or criminal law. The main aims of this thesis were to estimate the prevalence of fatigue problems while driving among the Finnish driving population, to explore how VALT multidisciplinary investigation teams, Finnish police, and courts recognize (and prosecute) fatigue in traffic, to identify risk factors and groups, and finally to explore the application of the Finnish Road Traffic Act (RTA), which explicitly forbids driving while tired in Article 63. Several different sources of data were used: a computerized database and the original folders of multidisciplinary teams investigating fatal accidents (VALT), the driver records database (AKE), prosecutor and court decisions, a survey of young male military conscripts, and a survey of a representative sample of the Finnish active driving population. The results show that 8-15% of fatal accidents during 1991-2001 were fatigue related, that every fifth Finnish driver has fallen asleep while driving at some point during his/her driving career, and that the Finnish police and courts punish on average one driver per day on the basis of fatigued driving (based on the data from the years 2004-2005). The main finding regarding risk factors and risk groups is that during the summer months, especially in the afternoon, the risk of falling asleep while driving is increased. Furthermore, the results indicate that those with a higher risk of falling asleep while driving are men in general, but especially young male drivers including military conscripts and the elderly during the afternoon hours and the summer in particular; professional drivers breaking the rules about duty and rest hours; and drivers with a tendency to fall asleep easily. A time-of-day pattern of sleep-related incidents was repeatedly found. It was found that VALT teams can be considered relatively reliable when assessing the role of fatigue and sleepiness in accident causation; thus, similar experts might be valuable in the court process as expert witnesses when fatigue or sleepiness are suspected to have a role in an accident’s origins. However, the application of Article 63 of the RTA that forbids, among other things, fatigued driving will continue to be an issue that deserves further attention. This should be done in the context of a needed attitude change towards driving while in a state of extreme tiredness (e.g., after being awake for more than 24 hours), which produces performance deterioration comparable to illegal intoxication (BAC around 0.1%). Regarding the well-known interactive effect of increased sleepiness and even small alcohol levels, the relatively high proportion (up to 14.5%) of Finnish drivers owning and using a breathalyzer raises some concern. This concern exists because these drivers are obviously more focused on not breaking the “magic” line of 0.05% BAC than being concerned about driving impairment, which might be much worse than they realize because of the interactive effects of increased sleepiness and even low alcohol consumption. In conclusion, there is no doubt that fatigue and sleepiness problems while driving are common among the Finnish driving population. While we wait for the invention of reliable devices for fatigue/sleepiness detection, we should invest more effort in raising public awareness about the dangerousness of fatigued driving and educate drivers about how to recognize and deal with fatigue and sleepiness when they ultimately occur.

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.

Rwanda Crisis and Genocide in Case Law of Rwanda Tribunal

After the Second World War the public was shocked to learn about the horrors perpetrated. As a response to the Holocaust, the newly established United Nations adopted the Genocide Convention of 1948 to prevent future genocides and to punish the perpetrators. The Convention remained, however, almost dead letter until the present day. In 1994, the long-lasted tension between the major groups of Hutu and Tutsi in Rwanda erupted in mass scale violence towards the Tutsi ethnic group. The purpose was to eradicate the Tutsi population of Rwanda. The international community did not halt the genocide. It stood by idle, failing to follow the swearing-in of the past. The United Nations established the International Criminal Tribunal for Rwanda (the ICTR) to bring to justice persons responsible for the genocide. Ever since its creation the ICTR has delivered a wealth of judgements elucidating the legal ingredients of the crime of genocide. The case law on determining the membership of national, ethnic, racial or religious groups has gradually shifted from the objective to subjective position. The membership of a group is seen as a subjective rather than objective concept. However, a totally subjective approach is not accepted. Therefore, it is necessary to determine some objective existence of a group. The provision on the underlying offences is not so difficult to interpret compared to the corresponding one on the protected groups and the mental element of genocide. The case law examined, e.g., whether there is any difference between the words killing and meurtre, the nature of mental harm caused by the perpetrator and sexual violence in the conflict. The mental element of genocide or dolus specialis of genocide is not thoroughly examined in the case law of the ICTR. In this regard, reference in made, in addition, to the case law of the other ad hoc Tribunal. The ICTR has made a significant contribution to the law of genocide and international criminal justice in general. The corpus of procedural and substantive law constitutes a basis for subsequent trials in international and hybrid tribunals. For national jurisdictions the jurisprudence on substantive law is useful while prosecuting international crimes.

From Francovich to Köbler and beyond : The evolution of a State liability regime for the EC

The aim of this paper is to present the evolution of the Francovich doctrine within the European legal order. The first part deals with the gradual development of the ECJ's case law on State liability in damages for breach of EC law. Starting from the seminal Francovich and Brasserie du Pêcheur, the clarification of the criteria set by the Court is attempted with reference to subsequent case law, whereas issues concerning the extent and form of the compensation owned are also mentioned. The second part concerns one of the more recent developments in the field, namely State liability for breaches of Community law attributed to national judiciary. The Court's ruling in Köbler is examined in connection with two other recent judgments, namely Commission v. Italy of 2003 and Kühne & Heitz, as an attempt of the ECJ to reframe its relationships with national supreme courts and appropriate for itself the position of the Supreme Court in the European legal order. The implications on State liability claims by the ruling in Commission v. France of 1997 constitute the theme of the third part, where it is submitted that Member States can also be held liable for disregard of Community law by private individuals within their respected territories. To this extent, Schmidberger is viewed as a manifestation of this opinion, with fundamental rights acquiring a new dimension, being invoked by the States, contra the individuals as a shield to liability claims. Finally, the third part examines the relationship between the Francovich doctrine and the principle of legal certainty and concludes that the solutions employed by the ECJ have been both predictable and acceptable by the national legal orders. Keywords: State liability, damages, Francovich, Köbler, Schmidberger

Confronting Confucian Understandings of the Christian Doctrine of Salvation : A systematic theological analysis of the basic problems in the Confucian-Christian dialogue

The aim of the present study is to analyze Confucian understandings of the Christian doctrine of salvation in order to find the basic problems in the Confucian-Christian dialogue. I will approach the task via a systematic theological analysis of four issues in order to limit the thesis to an appropriate size. They are analyzed in three chapters as follows: 1. The Confucian concept concerning the existence of God. Here I discuss mainly the issue of assimilation of the Christian concept of God to the concepts of Sovereign on High (Shangdi) and Heaven (Tian) in Confucianism. 2. The Confucian understanding of the object of salvation and its status in Christianity. 3. The Confucian understanding of the means of salvation in Christianity. Before beginning this analysis it is necessary to clarify the vast variety of controversies, arguments, ideas, opinions and comments expressed in the name of Confucianism; thus, clear distinctions among different schools of Confucianism are given in chapter 2. In the last chapter I will discuss the results of my research in this study by pointing out the basic problems that will appear in the analysis. The results of the present study provide conclusions in three related areas: the tacit differences in the ways of thinking between Confucians and Christians, the basic problems of the Confucian-Christian dialogue, and the affirmative elements in the dialogue. In addition to a summary, a bibliography and an index, there are also eight appendices, where I have introduced important background information for readers to understand the present study.

Vedestä vai Hengestä? : Uuras Saarnivaaran kasteteologia

Of water or the Spirit? Uuras Saarnivaara s theology of baptism The aim of the study was to investigate PhD and ThD Uuras Saarnivaara s views on baptism as well as their possible changes and the reasons for them. Dr Saarnivaara said himself that he searched for the truth about the relationship between baptism and faith for decades, and had faltered in his views. The method of this research is systematic analysis. A close study of the source material shows that Dr Saarnivaara s views on baptism have most likely changed several times. Therefore, special attention was paid to the time periods defined by when his literary works were published. This resulted in revealing the different perspectives he had on baptism. The fact that Dr Saarnivaara worked on two continents Europe and North America added a challenge to the research process. At the beginning of the research, I described Dr Saarnivaara s phases of life and mapped out his vast literary production as well as presented his theological basis. Saarnivaara s theological view on the means of grace and their interrelation in the church was influenced by the Laestadian movement, which caused him to adopt the view that the Holy Spirit does not dwell in the means of grace, but in the believers. Thus the real presence of Christ in the means of grace is denied. God s word is divided into Biblical revelation and proclamation by believers through the means of grace. Also, the sacraments are overshadowed by the preached word. Because grace is received through the word of the gospel preached publicly or privately by a believer, the preacher s status gains importance at the expense of the actual means of grace. Saarnivaara was intrigued by the content of baptism from the time he was a student until the end of his life. As a young theologian, he would adopt the opinions of his teachers as well as the view of the Evangelical Lutheran Church of Finland, which at the time was dominated by the pietistic movement and the teachings of J. T. Beck. After Saarnivaara had converted to the Laestadian movement, moved to the United States and started his Luther research, he adopted a view on baptism which was to a great extent in accordance with Luther and the Lutheran Symbolical Books. Saarnivaara considered his former views on baptism unbiblical and publicly apologised for them. In the 1950s, after starting his ministry within the Finnish neopietistic movements, Saarnivaara adopted a Laestadian-neopietistic doctrine of baptism. During his Beckian-pietistic era, Saarnivaara based his baptism theology on the event of the disciples of Jesus being baptised by John the Baptist, the revival of Samaria in the Book of Acts and the conversion of Cornelius and his family, all cases where the receiving of the Holy Spirit and the baptism were two separate events in time. In order to defend the theological unity of the Bible, Saarnivaara had to interpret Jesus teachings on baptism in the Gospels and the teachings of the Apostles in the New Testament letters from a viewpoint based on the three events mentioned above. During his Beckian-pietistic era, the abovementioned basic hermeneutic choice caused Saarnivaara to separate baptism by water and baptism by the Holy Spirit in his salvation theology. Simultaneously, the faith of a small child is denied, and rebirth is divided into two parts, the objective and the subjective, the latter being moved from the moment of baptism to a possible spiritual break-through at an age when the person possesses a more mature understanding. During his Laestadian-Lutheran era, Saarnivaara s theology of baptism was biblically consistent and the same for all people regardless of the person s age. Small children receive faith in baptism through the presence of Christ. The task of other people s faith is limited to the act of bringing the child to the baptism so that the child may receive his/her own faith from Christ and be born again as a child of God. The doctrine of baptism during Saarnivaara s Laestadian-neopietistic era represents in many aspects the emphases he presented during his first era, although they were now partly more radical. Baptism offers grace; it is not a means of grace. Justification, rebirth and salvation would take place later on when a person had reached an age with a more mature understanding through the word of God. A small child cannot be born again in baptism because being born again requires personal faith, which is received through hearing and understanding the law and the gospel. Saarnivaara s views on baptism during his first and third era are, unlike during his second era, quite controversial. The question of the salvation of a small child goes unanswered, or it is even denied. The central question during both eras is the demand of conversion and personal faith at a mature age. The background for this demand is in Saarnivaara s anthropology, which accentuates man s relationship to God as an intellectual and mental matter requiring understanding, and which needs no material instruments. The two first theological eras regarding Saarnivaara s doctrine of baptism lasted around ten years. The third era lasted over 40 years until his death.

Kirkon vai valtion kirjat? : Uskontokuntasidonnaisuuden ongelma Suomen väestökirjanpidossa 1839-1904

The Population Register – run by the Church or the state? The problem posed by the obligation to belong to a religious community in the registration of births and deaths in Finland between 1839 and 1904 The Lutheran Church of Finland is the nation’s largest church; approximately 82 per cent of Finns were members in 2007. The Church ran an official register of its members until 1999, when the state then undertook this task. The registration of births and deaths by the Church has a long history dating back to the 17th century, when Bishop Johannes Gezelius Sr. decreed that all parish members would have to be recorded in parish registers. These registers were used to control how well parish members knew the Christian doctrine and, gradually, also if they were literate. Additionally, the Church attempted to ensure by means of the parish registers that parish members went to Holy Communion annually. Since everyone was a member of the Lutheran Church, the state also took advantage of the parish registers and used them for the purposes of tax collection and conscription. The main research theme of “The Population Register – run by the Church or the state?” goes back to these times. The actual research period covers the years of 1839–1904. At that time Finland was under Russian rule, although autonomous. In the late 19th century the press and different associations in Finland began to engage in public debate, and the country started moving from a submissive society to a civic one. The identity of the Lutheran Church also became more prominent when the Church Act and the General Synod were realised in 1869. A few years earlier, municipal and parish administrations had been separated, but the general registration of births and deaths was left to the Church to see to. In compliance with the constitution of the country, all the inhabitants in principle still had to be Lutheran. In practice, the situation was different. The religious and ideological realms diversified, and the Lutheran concept of religion was no longer acceptable to everyone. The conflict was reflected in the registration of births and deaths, which was linked to the Lutheran Church and its parish registers. Nobody was allowed to leave the Church, there was no civil register, and the Lutheran Church did not consent to record unbaptized children in the parish registers. Therefore such children were left without civil rights. Thus the obligation to belong to a religious community had become a problem in the registration of births and deaths. The Lutheran clergy also appealed to the 1723 privileges, according to which they had been exempted from the drawing up of additional population registers. In 1889 Finland passed the Dissenters Act. By virtue of this act the Baptists and the Methodists left the state Church, but this was not the case with the members of the free churches. The freethinkers had to retain their church membership, as the law did not apply to them. This meant that the unbaptized children of the members of the free churches or those of freethinkers were still not entered in any registers. The children were not able to go to school, work for the state or legally marry. Neither were they able to inherit property, as they did not legally exist. The system of parish registers was created when everyone was required to be a member of the Lutheran Church, but it did not work when liberal attitudes eventually penetrated the sphere of religion, too. The government´s measures to solve the problem were slow and cautious, partly because Finland was part of Russia, partly because there were only about 100 unbaptized children. As the problem group was small and the state´s resources were limited, no general civil register was established. The state accepted the fact that in spite of the problems, the Evangelical Lutheran Church and the congregations of dissenters were the only official establishments to run populations registers in the country, and for social purposes, too. In 1900 the Diet of Finland finally approved a limited civil register, which unbaptized children and unregistered foreigners would be recorded in. Due to political reasons the civil register did not come into existence until 1917, after the actual research period.

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.

Avioliiton teologia Englannin kirkossa ja Suomen evankelis-luterilaisessa kirkossa vuosina 1963-2006

The theology of marriage in the Church of England(CofE) and in the Evangelical Lutheran Church of Finland(ELCF)1963–2006 The method of the study is a systematic analysis of the sources. In the CofE marriage stems from creation, but it is also sacramental, grounded in the theology of love and redemption. Man and woman have a connection between them that is a mystical union in character because of the one between Christ and the Church; therefore every marriage is sacramental. The purposes of marriage have been expressed in a different order than earlier. A caring relationship and sexuality are set before childbirth as the causes of marriage. The remedial cause of marriage is also moved to the background and it cannot be found in the recent wedding formulas. A personal relationship and marriage as a school of faith and love have a central place in the theology of marriage. The theology of love unites the love of God and marriage. In the CofE the understanding of divorce and co-habiting has changed, too. Co-habiting can now be understood as a stage towards marriage. Divorce has been understood as a phenomenon that must be taken as a fact after an irretrievable breakdown of marriage. Thus the church must concentrate on pastoral care after divorce. Similarly, the ELCF also maintains that the order of creation is the origin of marriage as a lifelong institution. This is also an argument for the solemnization of marriage in the church. Faith and grace are not needed for real marriage because marriage is the culmination of reason and natural law. The society defines marriage and the church gives its blessing to the married couples if so requested. Luther’s view of marriage is different from this because he saw marriage as a school of love and faith, similar to CofE. He saw faith as essential to enable the fullfillment of natural law. Marriage in the ELCF is mostly a matter of natural ethics. An ideal form of life is sought through the Golden Rule. This interpretation of marriage means that it does not presuppose Christian education for children to follow. The doctrine of the two kingdoms is definitely essential as background. It has been impugned by scholars, however, as a permanent foundation of marriage. There is a difference between the marriage formulas and the other sources concerning the purposes of marriage in the ELCF. The formulas do not include sexuality, childbirth or children and their education as purposes of marriage. The formulas include less theological vocabulary than in the CofE. The liturgy indicates the doctrine in CofE. In the Lutheran churches there is not any need to express the doctrine in the wedding formulas. This has resulted in less theology of marriage in the formulas. The theology of Luther is no longer any ruling principle in the theology of marriage. The process of continuing change in society refines the terms for marriage more than the theological arguments do.