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

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.

Ihanteena vapaaehtoisuus : Diakoniatyö Porvoon hiippakunnan seurakunnissa, erityisesti Iitin ja Tampereen rovastikunnissa vuosina 1897-1923

The Ideal of Volunteerism. An institutional approach to social welfare work in the parishes of the Diocese of Porvoo especially in the deaneries of Iitti and Tampere, Finland, in the years 1897-1923 Social welfare work (also known as diakonia) has achieved a high status in the Evangelical Lutheran Church of Finland. Since 1944, provisions of the Finnish Church Act have obliged each parish to employ at least one deacon or deaconess. This study sets out to examine the background and development of social welfare work in the Evangelical Lutheran Church of Finland from the 1890s to the 1920s, by which time social welfare work had become an established practice in the Church. The study investigates the development of social welfare work on the level of parishes. The main source material was collected from sixteen parishes in the Diocese of Porvoo especially in the deaneries of Iitti and Tampere. In the 1890s, two approaches were used in church social work in Finland. The dioceses of Kuopio, Savonlinna and Turku pursued a congregational approach to social work, while the Diocese of Porvoo employed an institutional approach, mainly because of the influence of Bishop Herman Råbergh. This study charts the formation of church social work in Finnish parishes, which took place during a period of tension between the two approaches. The institutional approach to church social work adopted by the Diocese of Porvoo was based on the German system of Asisters= houses@, in which deaconess institutes sent parish sisters to serve congregations. The parish or, in many cases, a separate association dedicated to church social work paid an annual fee to the deaconess institute, which took care of the parish sisters in old age. In the institutional approach, volunteers were recruited to carry out church social work. It was considered as inappropriate to use tax revenue or other public funding for church social work, which was supposed to be based on Christian love for one=s fellow humans and the needy, and for which only voluntary financial contributions were supposed to be used. In the congregational approach, church social work was directly based on the efforts of the parish. The approach relied on the administrative bodies of parishes and the Church, and tax revenue collected by the parishes, as well as other forms of public funding, could be used to carry out the social welfare work. The parishes employed deacons and deaconesses and paid their salaries. The approaches described above were not pursued in their ideal forms; instead, many variations existed. However, in principle, the social welfare work undertaken by the parishes of the Diocese of Porvoo was based on the institutional approach, while the congregational approach was largely employed elsewhere in Finland. Both of the approaches were viable. Parishes began to employ deacons and deaconesses as of the 1890s. The number of parishes which had hired a deacon or deaconess increased particularly in the 1910s, by which time 60% of parishes had employed one. This level was maintained until 1944 when each parish in the Evangelical Lutheran Church of Finland was obliged to employ a deacon or deaconess. Deaconesses usually worked as travelling nurses. The autonomous status of Finland as part of the Russian Empire did not give Finns the right to develop legislation on social affairs and health care. Consequently, the legislation process did not begin until Finland gained its independence in 1917. The social welfare work carried out by parishes and a number of voluntary organisations satisfied the emerging need for medical treatment in Finnish society. Neither the government nor the municipalities had sufficient resources to provide this treatment. Based on the ideal of volunteerism, the institutional social work practiced in the Diocese of Porvoo ran into serious difficulties at the end of the First World War. Because of severe inflation, prices began to rise as of 1915 and tripled in 1917-1918. During the same period, Finnish society went through a deep crisis which escalated into Civil War in spring 1918. This period of economic and social turmoil marked a turning-point which led to a weakening of the status of institutional social work in parishes. Voluntary efforts were no longer sufficient to maintain the practice. In contrast, congregational social work, which was based on public funding, was able to cope with the changes and survived the crisis. The approach to social work adopted by the Diocese of Porvoo turned out to be no more than a brief detour in the history of social work in the Evangelical Lutheran Church of Finland. At the start of the 1920s, the two approaches were integrated into a common vision for establishing church social work as a statutory practice in parishes.

Herrat, jätkät ja sotataito : Kansalaissotilas- ja ammattisotilasarmeijan rakentuminen 1920- ja 1930-luvulla

Gentlemen, Lads and the Art of War The Construction of Citizen Soldier- and Professional Soldier Armies into the Miracle of the Winter War During the 1920s and 1930s The Miracle of the Winter War was not a myth - at least according to them, who were making that miracle to happen. This study is not just about the Armed Forces and society, but moreover a study about civil society inside the organization of armed forces. Conscription kept Finnish military organization (and is still keeping) very closely connected with civil society and therefore there is no need to locate the possible critical misunderstandings brought by two different identity-based approaches. The great performance of the Armed Forces during the Second World War was not made of superior art of war. It was not the high level of discipline either. Art of war is basically a (deep level) cultural level equation that has more to do with culturally absorbed schemes of meaning making than rational decision-making. Naturally attrition based approach to effect-making directed the organizational methods in attrition based organisational practices, where there were only minor possibilities to practice any manoeuvre-based organisational behaviour. The practice and method of leadership lent similarly to the attrition-based thinking, which directed the organisational cultural thoughts towards composition that confirmed antagonism between gentlemen and lads . This setting has been absorbed and learned through cultural socialisation and was therefore not a product of the military organisation itself. The Finnish Armed Forces included two different communities (gentlemen and lads) within the same organisation as there were both the official and the unofficial organisations presented. This caused problems as they both made meaning-making processes simultaneously. These organisations had their own overlapping and in most cases also contradictory social meanings. The unofficial organisation has been overshadowed by the vast number of studies concerning the official organisation. The main reason for this systematic neglect is based on the reality of the attitudes and living conditions of the micro-level organisation which produced (perhaps) too realistic and repulsive viewpoints that are presenting a picture of a national level identity process in a way that is separating it from the ideals made to verify the ethos of national values. Complaining, griping, grumbling and moaning are usually situated in a category of abnormal and unwanted behaviour. However, within the context of a citizen soldier army community this was more of a characteristic feature of that organisation (in Finland) and therefore it was crucially important to locate the context of that abnormal behaviour. According to this study, it was not a malicious act but moreover seriously formed efforts in trying to use common sense in the chaos citizen soldiers faced when they were uniformed and placed in an unfamiliar process of disciplinary measures and frictions and competition between different ranks. There is much evidence that reinforces the argument that what seemed to be the most unconventional behaviour was finally the most efficient in a sense of military performance.

When sharing becomes a liability: An intellectual capital approach to describing the dichotomy of knowledge protection versus sharing in intra- and interorganizational relationships

The tension created when companies are collaborating with competitors – sometimes termed co-opetition - has been subject of research within the network approach. As companies are collaborating with competitors, they need to simultaneously share and protect knowledge. The opportunistic behavior and learning intent of the partner may be underestimated, and collaboration may involve significant risks of loss of competitive edge. Contrastingly, the central tenet within the Intellectual Capital approach is that knowledge grows as it flows. The person sharing does not lose the knowledge and therefore knowledge has doubled from a company’s point of view. Value is created through the interplay of knowledge flows between and within three forms of intellectual capital: human, structural and relational capital. These are the points of departure for the research conducted in this thesis. The thesis investigates the tension between collaboration and competition through an Intellectual Capital lens, by identifying the actions taken to share and protect knowledge in interorganizational collaborative relationships. More specifically, it explores the tension in knowledge flows aimed at protecting and sharing knowledge, and their effect on the value creation of a company. It is assumed, that as two companies work closely together, the collaborative relationship becomes intertwined between the two partners and the intellectual capital flows of both companies are affected. The research finds that companies commonly protect knowledge also in close and long-term collaborative relationships. The knowledge flows identified are both collaborative and protective, with the result that they sometimes are counteracting and neutralize each other. The thesis contributes to the intellectual capital approach by expanding the understanding of knowledge protection in interorganizational relationships in three ways. First, departing from the research on co-opetition it shifts the focus from the internal view of the company as a repository of intellectual capital onto the collaborative relationships between competing companies. Second, instead of the traditional collaborative and sharing point of departure, it takes a competitive and protective perspective. Third, it identifies the intellectual capital flows as assets or liabilities depending on their effect on the value creation of the company. The actions taken to protect knowledge in an interorganizational relationship may decrease the value created in the company, which would make them liabilities.

Deutschland, Deutschland über alles : Tysk föreningsverksamhet i Finland och Sverige 1910-1950

The voluntary associations dealt with in this dissertation were ethnic clubs and societies promoting the interests of German immigrants in Finland and Sweden. The associations were founded at the end of the 19th century as well as at the beginning of the 20th century during a time in which migration was high, the civil society grew rapidly and nationalism flourished. The work includes over 70 different associations in Finland and Sweden with a number of members ranging from ten to at most 2, 500. The largest and most important associations were situated in Helsinki and Stockholm where also most of the German immigrants lived. The main aim of this work is to explore to what extent and how the changes in government in Germany during 1910 to 1950 were reflected in the structures and participants, financial resources and meeting places, networks and activities of the German associations in Finland and Sweden. The study also deals with how a collective German national identity was created within the German associations. The period between 1910 and 1950 has been described by Hobsbawm as the apogee of nationalism. Nationalism and transnationalism are therefore key elements in the work. Additionally the research deals with theories about associations, networking and identity. The analysis is mostly based on minutes of meetings, descriptions of festivities, annual reports and historical outlines about the associations. Archival sources from the German legations, the German Foreign Office, and Finnish and Swedish officials such as the police and the Foreign Offices are also used. The study shows that the collective national identity in the associations during the Weimar Republic mostly went back to the time of the Wilhelmine Empire. It is argued that this fact, the cultural propaganda and the aims of the Weimar Republic to strengthen the contacts between Germany and the German associations abroad, and the role of the German legations and envoys finally helped the small groups of NSDAP to infiltrate, systematically coordinate and finally centralize the German associational life in Finland and Sweden. The Gleichschaltung did not go as smoothly as the party wanted, though. There was a small but consistent opposition that continued to exist in Finland until 1941 and in Sweden until 1945. The collective national identity was displayed much more in Sweden than in Finland, where the associations kept a lower profile. The reasons for the profile differences can be found in the smaller number of German immigrants in Finland and the greater German propaganda in Sweden, but also in the Finnish association act from 1919 and the changes in it during the 1920s and 1930s. Finally, the research shows how the loss of two world wars influenced the associations. It argues that 1918 made the German associations more vulnerable to influence from Germany, whereas 1945 brought the associational life back to where it once started as welfare, recreational and school associations.