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.

Betydelser i barnfamiljsbroschyrer : Systemisk-funktionell analys av den tänkta läsaren och institutionen

This thesis concerns Swedish and Finland-Swedish brochures to families with children, presenting family allowances from the social insurance institutions in the two countries. The aim of the study is to analyse what meanings are conveyed with reference to the conceivable reader and the institution in the brochures. The material consists of information brochures in Swedish from Kela, the social insurance institution of Finland, and Försäkringskassan, the Swedish social insurance agency, issued during 2003–2006. The general theoretical framework is systemic-functional linguistics (SFL) as presented by Halliday & Matthiessen (2004) and Holmberg & Karlsson (2006). The study consists of a quantitative study of the lexical choices of the social insurance brochures. Furthermore, a qualitative process and participant analysis is annotated with the UAM Corpus tool and the results are quantified. Speech functions and modal auxiliaries are analysed qualitatively. The analysis shows that material and relational processes are most common. The relational and verbal processes are used more in the Sweden-Swedish brochures, while the material processes are more common in the Finland-Swedish brochures. The participants in the brochures are the institution, mentioned by its name, and the conceivable reader, directly addressed with “you” (du). In addition, the referent “child” is often mentioned. The participants assigned for the reader are Actor, Receiver, Carrier and Speaker. In the Finland-Swedish texts, the reader is often an Actor, while the reader in the Sweden-Swedish texts is a Carrier. Thus, the conceivable reader is an active participant who takes care of his or her own matters using the internet, communicates actively to the institution and has legal rights and obligations. The institution is visible in the texts but does not have an active role as the name of the institution is mostly used in circumstances. The institution is not often a participant, but when it is, it is Actor, Receiver, Listener and Carrier, expecting the clients to address it. Speech functions are performed in different ways. For instance, questions structure the reading process and commands are realised by modal auxiliaries, not by imperatives. The most common modal auxiliary is kan (can, may), and another common auxiliary is ska (shall, must). Statements are surrounded by subordinate clauses and adverbs that describe situations and criteria. The results of the study suggest that the brochures in the two countries are similar, in particular when produced in similar ways, that is, when the Finland-Swedish texts are not translated. Existing differences reflect the differences in the institutions, the social insurance systems and the cultural contexts. KEYWORDS: Finland-Swedish, Swedish, comparative analysis, SFL, discourse analysis, administrative language, institutional discourse, institutional communication

Expert Identity in Development of Core-Task-Oriented Working Practices for Mastering Demanding Situations

The point of departure in this dissertation was the practical safety problem of unanticipated, unfamiliar events and unexpected changes in the environment, the demanding situations which the operators should take care of in the complex socio-technical systems. The aim of this thesis was to increase the understanding of demanding situations and of the resources for coping with these situations by presenting a new construct, a conceptual model called Expert Identity (ExId) as a way to open up new solutions to the problem of demanding situations and by testing the model in empirical studies on operator work. The premises of the Core-Task Analysis (CTA) framework were adopted as a starting point: core-task oriented working practices promote the system efficiency (incl. safety, productivity and well-being targets) and that should be supported. The negative effects of stress were summarised and the possible countermeasures related to the operators' personal resources such as experience, expertise, sense of control, conceptions of work and self etc. were considered. ExId was proposed as a way to bring emotional-energetic depth into the work analysis and to supplement CTA-based practical methods to discover development challenges and to contribute to the development of complex socio-technical systems. The potential of ExId to promote understanding of operator work was demonstrated in the context of the six empirical studies on operator work. Each of these studies had its own practical objectives within the corresponding quite broad focuses of the studies. The concluding research questions were: 1) Are the assumptions made in ExId on the basis of the different theories and previous studies supported by the empirical findings? 2) Does the ExId construct promote understanding of the operator work in empirical studies? 3) What are the strengths and weaknesses of the ExId construct? The layers and the assumptions of the development of expert identity appeared to gain evidence. The new conceptual model worked as a part of an analysis of different kinds of data, as a part of different methods used for different purposes, in different work contexts. The results showed that the operators had problems in taking care of the core task resulting from the discrepancy between the demands and resources (either personal or external). The changes of work, the difficulties in reaching the real content of work in the organisation and the limits of the practical means of support had complicated the problem and limited the possibilities of the development actions within the case organisations. Personal resources seemed to be sensitive to the changes, adaptation is taking place, but not deeply or quickly enough. Furthermore, the results showed several characteristics of the studied contexts that complicated the operators' possibilities to grow into or with the demands and to develop practices, expertise and expert identity matching the core task. They were: discontinuation of the work demands, discrepancy between conceptions of work held in the other parts of organisation, visions and the reality faced by the operators, emphasis on the individual efforts and situational solutions. The potential of ExId to open up new paths to solving the problem of the demanding situations and its ability to enable studies on practices in the field was considered in the discussion. The results were interpreted as promising enough to encourage the conduction of further studies on ExId. This dissertation proposes especially contribution to supporting the workers in recognising the changing demands and their possibilities for growing with them when aiming to support human performance in complex socio-technical systems, both in designing the systems and solving the existing problems.

Personnel Managers and Crisis Situations. Emotion-handling Strategies

This study focuses on personnel managers in crisis situations. The interviewed personnel managers referred to emotions as a central element to be dealt with in a crisis. However, until recently, the exploration of emotions in organisational life has been de-emphasised or ignored. This study aims to bring to the surface aspects of personnel work that have so far been neglected or remained invisible. It specifically examines how personnel managers handle employees’ and their own emotions in a crisis. Based on the interviews, a number of emotional episodes were constructed. They describe the type and context of the crisis and the person(s) whose emotions are handled. The main findings of the study are the five emotion-handling strategies that could be constructed from the data. The negotiation-like manner in which personnel managers handled emotions in crisis situations proved especially interesting. They were actually negotiating emotional value for their organisations. Further, they handled their own emotions within the frame of two logics of appropriateness labelled mothering and guide-following. The episodes described also enabled identification of the values enacted by the personnel managers in handling emotions. The study provides descriptive information on emotion handling, a current and relevant feature in the practice of personnel management. It seeks to offer a frame for developing practical principles that can be helpful in a crisis. It also offers the opportunity to consider a variety of difficult situations that personnel managers may confront in their work.

The Far Eastern Question at the Washington Conference (1921-1922) with an outline of its implications for internal politics in China

This dissertation is a narrative account of the negotiations concerning the question of the Far East and the Shandong issue at the Washington Conference, leading to treaties, agreements and resolutions. In this dissertation, a certain stress is laid on the interaction between the Conference and the internal situation in China, particularly concerning the question of the implications of the Conference for Cabinet politics in Peking. Through the narrative account of the Conference, the general aim is an attempt to reassess the achievements of the Washington Conference. Too often the Washington Conference has been viewed negatively. The political aim behind the legal framework was to open the door to China as a sovereign State member of the international community whose territorial integrity was internationally recognized, despite its chaotic internal situation. It is undeniable that the Washington Conference opened a new chapter in modern Chinese history. The violations of the agreements concerning China that occurred in the 1930s should not lead to the belief that these agreements were of no value. Peace may not be lasting and evolves according to circumstances; agreements are transitory, and new situations need new arrangements. This dissertation tries to demonstrate that the agreements in themselves were not the cause of their failure, but the failure was due to the lack of determination on the part of the Signatories Powers to defend them.

Lojalitet i licensavtal

Loyalty in Licensing Agreements The purpose of the dissertation is to analyse the impact of the principle of loyalty on licensing agreements from the viewpoint of Finnish law using the traditional legal method (Rechtsdogmatik) combined with empirical data in the form of licensing agreements. The need for good licensing agreements is crucial. One should avoid mechanical and stereotyped agreements in favour of more conscious and goal-oriented ones. When the parties' will and goals have been made clear, the drafting technique should be chosen accordingly. The importance of the principle of loyalty in the interpretation of licensing agreements varies according to their degree of relationality. This is a concept originating in the relational contract theory, more precisely Ian Macneil's spectrum of contracts, where contracts can be placed on an axis according to their degree of relationality. In the dissertation different factors are used to conclude whether the licensing agreement at hand is to be placed on the axis closer to the transactional pole or closer to the relational pole. A conclusion of the dissertation is that few licensing agreements can be placed so close to the transactional pole, that the principle of loyalty lacks importance altogether. The impact of the principle of loyalty the main focus of which is on fostering the contracting parties to behave in accordance with best practices, not for example on altering contract terms is analysed in different situations where the parties' interests typically collide. These situations are discussed from the point of view of three patent and knowhow licensing agreements that differ as to their degree of relationality. A balance needs to be struck between freedom of contract and relational needs. Especially when interpreting more modern licensing agreements, one should not focus on the written document alone, as is often recommended in the literature on Nordic intellectual property law. Neither is the principle of caveat emptor a proper starting point. Moreover, where the parties are of equal bargaining power, one should not assume that the grants in licensing agreements are to be interpreted narrowly. Focus in the interpretation should instead be on the entirety of the circumstances.

Despairing Justice and the Ethics of Legal Interpretation

This study discusses legal interpretation. The question is how legal texts, for instance laws, statutes and regulations, can and do have meaning. Language makes interpretation difficult as it holds no definite meanings. When the theoretical connection between semantics and legal meaning is loosened and we realise that language cannot be a means of justifying legal decisions, the responsibility inherent in legal interpretation can be seen in full. We are thus compelled to search for ways to analyse this responsibility. The main argument of the book is that the responsibility of legal interpretation contains a responsibility towards the text that is interpreted (and through the mediation of the text also towards the legal system), but not only this. It is not simply a responsibility to read and read well, but it transcends on a broader scale. It includes responsibility for the effects of the interpretation in a particular situation and with regard to the people whose case is decided. Ultimately, it is a responsibility to do justice. These two aspects of responsibility are conceptualised here as the two dimensions of the ethics of legal interpretation: the textual and the situational. The basic conception of language presented here is provided by Ludwig Wittgenstein s later philosophy, but the argument is not committed to only one philosophical tradition. Wittgenstein can be counterpointed in interesting ways by Jacques Derrida s ideas on language and meaning. Derrida s work also functions as a contrast to hermeneutic theories. It is argued that the seed to an answer to the question of meaning lies in the inter-personal and situated activity of interpretation and communication, an idea that can be discerned in different ways in the works of Wittgenstein, Derrida and Hans-Georg Gadamer. This way the question of meaning naturally leads us to think about ethics, which is approached here through the philosophy of Emmanuel Levinas. His thinking, focusing on topics such as otherness, friendship and hospitality, provides possibilities for answering some of the questions posed in this book. However, at the same time we move inside a normativity where ethics and politics come together in many ways. The responsibility of legal interpretation is connected to the political and this has to be acknowledged lest we forget that law always implies force. But it is argued here that the political can be explored in positive terms as it does not have to mean only power or violence.

Legal Reasoning in Context

This study in EU law analyses the reasoning of the Court of Justice (the Court of Justice of the European Union) in a set of its preliminary rulings. Preliminary rulings are answers to national courts questions on the interpretation (and validity) of EU law called preliminary references. These questions concern specific legal issues that have arisen in legal disputes before the national courts. The Court of Justice alone has the ultimate authority to interpret EU law. The preliminary rulings bind the national courts in the cases giving rise to the preliminary reference, and the interpretations of EU law offered in the preliminary rulings are considered generally binding on all instances applying EU law. EU law is often described as a dynamic legal order and the Court of Justice as at the vanguard of developing it. It is generally assumed that the Court of Justice is striving to realise the EU s meta-level purpose (telos): integration. Against this backdrop one can understand the criticism the Court of Justice is often faced with in certain fields of EU law that can be described as developing. This criticism concerns the Court s (negatively) activist way of not just stating the law but developing or even making law. It is difficult to analyse or prove wrong this accusation as it is not in methodological terms clearly established what constitutes judicial activism, or more exactly where the threshold of negative activism lies. Moreover, one popular approach to assessing the role of the Court of Justice described as integration through law has become fairly political, neglecting to take into consideration the special nature of law as both facilitating and constraining action, not merely a medium for furthering integration. This study offers a legal reasoning approach of a more legalist nature, in order to balance the existing mix of approaches to explaining what the Court of Justice does and how. Reliance on legal reasoning is found to offer a working framework for analysis, whereas the tools for an analysis based on activism are found lacking. The legal reasoning approach enables one to assess whether or not the Court of Justice is pertaining to its own established criteria of interpretation of EU law, and if it is not, one should look more in detail at how the interpretation fits with earlier case-law and doctrines of EU law. This study examines the reasoning of the Court of Justice in a set of objectively chosen cases. The emphasis of the study is on analysing how the Court of Justice applies the established criteria of interpretation it has assumed for itself. Moreover, the judgments are assessed not only in terms of reasoning but also for meaningful silences they contain. The analysis is furthermore contextualised by taking into consideration how the cases were commented by legal scholars, their substantive EU law context, and also their larger politico-historical context. In this study, the analysis largely shows that the Court of Justice is interpreting EU law in accordance with its previous practice. Its reasoning retains connection with the linguistic or semiotic criteria of interpretation, while emphasis lies on systemic reasoning. Moreover, although there are a few judgments where the Court of Justice offers clearly dynamic reasoning or what can be considered as substantive reasoning stemming from, for example, common sense or reasonableness, such reasons are most often given in addition to systemic ones. In this sense and even when considered in its broader context, the case-law analysed in this study does not portray a specifically activist image of the Court of Justice. The legal reasoning approach is a valid alternative for explaining how and why the Court of Justice interprets EU law as it does.

Nationalism Circumscribed : Transnational Governance of Minority Rights in Post-Cold War Europe

For the past two centuries, nationalism has been among the most influential legitimizing principles of political organization. According to its simple definition, nationalism is a principle or a way of thinking and acting which holds that the world is divided into nations, and that national and political units should be congruent. Nationalism can thus be divided into two aspects: internal and external. Internally, the political units, i.e., states, should be made up of only one nation. Externally each nation-state should be sovereign. Transnational national governance of rights of national minorities violates both these principles. This study explores the formation, operation, and effectiveness of the European post-Cold War minorities system. The study identifies two basic approaches to minority rights: security and justice. These approaches have been used to legitimize international minority politics and they also inform the practice of transnational governance. The security approach is based on the recognition that the norm of national self-determination cannot be fulfilled in all relevant cases, and so minority rights are offered as a compensation to the dissatisfied national groups, reducing their aspiration to challenge the status quo. From the justice perspective, minority rights are justified as a compensatory strategy against discrimination caused by majority nation-building. The research concludes that the post-Cold War minorities system was justified on the basis of a particular version of the security approach, according to which only Eastern European minority situations are threatening because of the ethnic variant of nationalism that exists in that region. This security frame was essential in internationalising minority issues and justifying the swift development of norms and institutions to deal with these issues. However, from the justice perspective this approach is problematic, since it justified double standards in European minority politics. Even though majority nation-building is often detrimental to minorities also in Western Europe, Western countries can treat their minorities more or less however they choose. One of the main contributions of this thesis is the detailed investigation of the operation of the post-Cold War minorities system. For the first decade since its creation in the early 1990s, the system operated mainly through its security track, which is based on the field activities of the OSCE that are supported by the EU. The study shows how the effectiveness of this track was based on inter-organizational cooperation in which various transnational actors compensate for each other s weaknesses. After the enlargement of the EU and dissolution of the membership conditionality this track, which was limited to Eastern Europe from the start, has become increasingly ineffective. Since the EU enlargement, the focus minorities system has shifted more and more towards its legal track, which is based on the Framework Convention for the Protection of National Minorities (Council of Europe). The study presents in detail how a network of like-minded representatives of governments, international organizations, and independent experts was able strengthen the framework convention s (originally weak) monitoring system considerably. The development of the legal track allows for a more universal and consistent, justice-based approach to minority rights in contemporary Europe, but the nationalist principle of organization still severely hinders the materialization of this possibility.

Dental identification and aspects of medico-legal investigations of the Finnish victims of the Sumatra-Andaman earthquake on 26 December 2004

Tsunami waves of the Sumatra-Andaman earthquake on 26 December 2004 claimed approximately 230 000 lives and started the biggest identification operation in Interpol's history. The aim of this study was to resolve methods of the identification and results received. The viewpoint is mainly that of forensic odontology, but also includes other means of identification and results of the medico-legal examination performed in Finland. Of the 5395 victims in Thailand, approximately 2 400 were foreigners from 36 nations including 177 Finnish nationals. Additionally, a Finnish woman perished in Sri Lanka and a severely injured man after the evacuation in a hospital. The final numbers of missing persons and dead bodies registered in the Information Management Centre in Phuket,Thailand, were 3 574 ante-mortem (AM) and 3 681 post-mortem (PM) files. The number of identifications by December 2006 was 3 271 or 89% of the victims registered. Of Finnish victims, 172 have been identified in Thailand and 163 repatriated to Finland. One adult and four children are still missing. For AM data, a list of Finnish missing persons including 178 names was published on 30 December 2004. By February 2005 all useful dental AM data were available. Five persons on the list living in Finland lacked records. Based on the AM database, for the children under age 18 years (n=60) dental identification could be established for 12 (20%). The estimated number for adults (n=112) was 96 (86%). The final identification rate, based on PM examinations in Finland, was 14 (25%) for children (n= 56) and 98 (90%) for adults (n= 109). The number of Finnish victims identified by dental methods, 112 (68%), was high compared to all examined in Thailand (43%). DNA was applied for 26 Finnish children and for 6 adults, fingerprints for 24 and 7, respectively. In 12 cases two methods were applied. Every victim (n=165) underwent in Finland a medico-legal investigation including an autopsy with sampling specimens for DNA, the toxicological and histological investigation. Digital radiographs and computed tomography were taken of the whole body to verify autopsy findings and bring out changes caused by trauma, autolysis, and sampling for DNA in Thailand. Data for identification purposes were also noted. Submersion was the cause of death for 101 of 109 adults (92.7%), and trauma for 8 (7.3%). Injuries were 33 times contributing factors for submersion and 3 times for trauma-based death. Submersion was the cause of death for 51 (92.7%) children and trauma for 4 (7.3%). Injuries were in 3 cases contributing factors in submersion and once in trauma-based death. The success of the dental identification of Finnish victims is mainly based on careful registration of dental records, and on an education program from 1999 in forensic odontology.

Cost and effectiveness of legal mandates for the practice of forestry on private land.

XVIII IUFRO World Congress, Ljubljana 1986.

Birth of the European individual : Outline of a theory of legal practice

The modern subject is what we can call a self-subjecting individual. This is someone in whose inner reality has been implanted a more permanent governability, a governability that works inside the agent. Michel Foucault s genealogy of the modern subject is the history of its constitution by power practices. By a flight of imagination, suppose that this history is not an evolving social structure or cultural phenomenon, but one of those insects (moth) whose life cycle consists of three stages or moments: crawling larva, encapsulated pupa, and flying adult. Foucault s history of power-practices presents the same kind of miracle of total metamorphosis. The main forces in the general field of power can be apprehended through a generalisation of three rationalities functioning side-by-side in the plurality of different practices of power: domination, normalisation and the law. Domination is a force functioning by the rationality of reason of state: the state s essence is power, power is firm domination over people, and people are the state s resource by which the state s strength is measured. Normalisation is a force that takes hold on people from the inside of society: it imposes society s own reality its empirical verity as a norm on people through silently working jurisdictional operations that exclude pathological individuals too far from the average of the population as a whole. The law is a counterforce to both domination and normalisation. Accounting for elements of legal practice as omnihistorical is not possible without a view of the general field of power. Without this view, and only in terms of the operations and tactical manoeuvres of the practice of law, nothing of the kind can be seen: the only thing that practice manifests is constant change itself. However, the backdrop of law s tacit dimension that is, the power-relations between law, domination and normalisation allows one to see more. In the general field of power, the function of law is exactly to maintain the constant possibility of change. Whereas domination and normalisation would stabilise society, the law makes it move. The European individual has a reality as a problem. What is a problem? A problem is something that allows entry into the field of thought, said Foucault. To be a problem, it is necessary for certain number of factors to have made it uncertain, to have made it lose familiarity, or to have provoked a certain number of difficulties around it . Entering the field of thought through problematisations of the European individual human forms, power and knowledge one is able to glimpse the historical backgrounds of our present being. These were produced, and then again buried, in intersections between practices of power and games of truth. In the problem of the European individual one has suitable circumstances that bring to light forces that have passed through the individual through centuries.