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

Devolution of forest-related rights: Comparative analyses of six developing countries

The study focused on the different ways that forest-related rights can be devolved to the local level according to the current legal frameworks in Laos, Nepal, Vietnam, Kenya, Mozambique and Tanzania. The eleven case studies represented the main ways in which forest-related rights can be devolved to communities or households in these countries. The objectives of this study were to 1) analyse the contents and extent of forest-related rights that can be devolved to the local level, 2) develop an empirical typology that represents the main types of devolution, and 3) compare the cases against a theoretical ideal type to assess in what way and to what extent the cases are similar to or differ from the theoretical construct. Fuzzy set theory, Qualitative Comparative Analysis and ideal type analysis were used in analysing the case studies and in developing an empirical typology. The theoretical framework, which guided data collection and analyses, was based on institutional economics and theories on property rights, common pool resources and collective action. On the basis of the theoretical and empirical knowledge, the most important attributes of rights were defined as use rights, management rights, exclusion rights, transfer rights and the duration and security of the rights. The ideal type was defined as one where local actors have been devolved comprehensive use rights, extensive management rights, rights to exclude others from the resource and rights to transfer these rights. In addition, the rights are to be secure and held perpetually. The ideal type was used to structure the analysis and as a tool against which the cases were analysed. The contents, extent and duration of the devolved rights varied greatly. In general, the results show that devolution has mainly meant the transfer of use rights to the local level, and has not really changed the overall state control over forest resources. In most cases the right holders participate, or have a limited role in the decision making regarding the harvesting and management of the resource. There was a clear tendency to devolve the rights to enforce rules and to monitor resource use and condition more extensively than the powers to decide on the management and development of the resource. The empirical typology of the cases differentiated between five different types of devolution. The types can be characterised by the devolution of 1) restricted use and control rights, 2) extensive use rights but restricted control rights, 3) extensive rights, 4) insecure, short term use and restricted control rights, and 5) insecure extensive rights. Overall, the case studies conformity to the ideal type was very low: only two cases were similar to the ideal type, all other cases differed considerably from the ideal type. The restricted management rights were the most common reason for the low conformity to the ideal type (eight cases). In three cases, the short term of the rights, restricted transfer rights, restricted use rights or restricted exclusion rights were the reason or one of the reasons for the low conformity to the ideal type. In two cases the rights were not secure.

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.

Valoa itään? : Kansanlähetys ja Neuvostoliitto 1967-1973

Light to the East? The Finnish Lutheran Mission and the Soviet Union 1967 1973 The Cold War affected the lives of Christian churches, especially in Europe. Besides the official ecumenical relations between east and west, there existed unofficial activity from west to east, such as smuggling Bibles and distributing information about the severe condition of human rights in the USSR. This study examines this kind of unofficial activity originating in Finland. It especially concentrates on the missionary work to the Soviet Union done by the Finnish Lutheran Mission (FLM, Suomen Evankelisluterilainen Kansanlähetys) founded in 1967. The work for Eastern Europe was organised through the Department for the Slavic Missions. FLM was founded within the Evangelical Lutheran Church of Finland, but it was not connected to the church on an organisational level. In addition to the strong emphasis on the Lutheran confession, FLM presented evangelical theology. The fundamental work of the Department for the Slavic Missions was to organise the smuggling of Bibles and other Christian literature to the Soviet Union and other countries behind the iron curtain. They also financed several Christian radio programmes produced and aired mainly by the international Trans World Radio. The Department diversified its activity to humanitarian help by distributing material help such as clothes and shoes to the unregistered evangelical and baptist groups, which were called the underground churches . In Finland the Department focused on information services. It published its own magazine, Valoa idässä (Light in the East), 5 to 6 times per year. Through the magazine and by distributing samizdat material received from the unregistered Christian groups, it discussed and reported the violations of human rights in the Soviet Union, especially when the unregistered Christian groups were considered the victims. The resistance against the Soviet Union was not as much political but religious: the staff of the Department were religious and revivalist young people who thought, for instance, that communism was in some way an apocalyptic world power revealed in the Bible. Smuggling Bibles was discussed widely in the Finnish media and even in parliament and the Finnish Security Police (SUPO, Suojelupoliisi) and in the Lutheran Church. From the church s point of view, this kind of missionary work was understandable but bothersome. Through their ecumenical connections, the bishops knew the critical situation of churches behind the iron curtain very well, but wanted to act diplomatically and cautiously to prevent causing harm to ecumenical or political relations. The leftist media and members of parliament especially accused the work of the Department of being illegal and endangering relations between Finland and the Soviet Union. SUPO did not consider the work of the Department as illegal activity or as a threat to Finnish national security.

Kannustaminen ja moraali : Kannustamisen idea suomalaisessa yhteiskuntapolitiikassa 1990-luvulta alkaen

Even though the concept of incentive has become very popular in Finnish welfare politics since the economic crisis of the 1990s, the content of this concept is not clear. Fundamentally, it is a matter of controlling the behaviour of individuals to accord with the authorities' objectives and interests in gaining cooperative benefits. As early as in Plato's Republic, citizens were encouraged to use their abilities and skills in a way most beneficial to the society. Similarly, in today's welfare society citizens are urged to produce common goods and distribute welfare to enable a better life for all through cooperation. The fundamental question is to what extent society can shape individuals' preferences with incentives, and encourage them without external coercion to choose actions beneficial for both the society and the individuals themselves. The objective of the incentive institution is to gain cooperative benefits, but there are different views on how it should be implemented. For example, the incentive system in the Finnish welfare society includes several economic and social conceptions which adjust the distribution of welfare. From an economic perspective, the objective of the incentive system is economic efficiency, while from a social perspective it is the securing of social rights and citizens' equality. The market mechanism, for example, can at best lead to economically efficient activity, but it might sacrifice fairness and equality. In this research, the idea of activation policy expands to cover normative and social incentives, in addition to the economic factors affecting human choice and social actions. Desirable co-living and meaningful cooperation have some prerequisites. We need the expanded idea of activation to study them, and to maintain them in society. The themes discussed in all the ten chapters aim at evaluating the preconditions of a just society. This study provides tools to examine the changes in the welfare state, also from the viewpoint of normative ethics. This offers a morally and conceptually wider perspective than a normative viewpoint of economics alone. In terms of the values of our welfare society, it makes a difference how the relationship between the legalities of economics and citizens' well-being is understood. The research asks whether economic benefits to the society should be allowed to supersede the principles of human dignity Key words:incentives, activation policy, morality, social philosophy, social justice, policy paradigm