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

Kaupunkilaisen elinympäristöongelma : Käsitteellistämistavat ja puuttumisen mallit

The study analyses the reaction of urban residents to problems, i.e. disturbing factors, in their living environment, and also their ways of doing something about these problems. It is based on urban-sociological theory on everyday life in a modern metropolis. On this theoretical basis, problems in the urban living environment are analysed in terms of a policy of everyday interference: when urban citizens become aware of a problem in their environment, they face a pattern of behaviour where the norm is polite indifference and negative solidarity. They may feel they ought to do something about the problem, but at the same time, an implicit rule of urban life is not to interfere with other people s lives so they won t interfere with yours. For example, it is not that easy for someone disturbed by littering to complain directly to those who litter the streets. Or if you complain about tobacco smoke from the neighbour s balcony, your neighbours might get cross. Direct interference with a problem in the environment usually implies an encounter with a hitherto unknown counterpart and their possible counter-reaction. The risk is either to lose face or get into downright conflict. Therefore, an easier way may be to complain to the city authorities. The Helsinki City Environment Centre is currently working on solutions for all the various kinds of problems that occur in a dense urban structure. Various ways of conceptualising the problems in the living environment are analysed empirically using theme interviews made with citizens having contacted Helsinki City Environment Centre. A phenomenographic approach and a theory-based categorisation are applied on the analysis of the theme interviews. On the grounds of the analysis, the ways of conceptualising are determined by 1) the difficulty of interfering and convincing other people, which in practice means meddling in other people s business, 2) a territorial struggle for space and a place in a dense urban structure, 3) breaches of rules and norms for social routines in urban life, and 4) a crumbling of the urban identity and all that goes along with that. The analysis of the ways of conceptualisation is deepened using a cultural risk theory. The final outcome of the analysis is four types of behaviour among urban residents with regard to interference with everyday problems in the living environment. They have been called yard police , fence builder , park warden and environmental caretaker . The study combines an urban-sociological approach with the theoretical tradition of urban research and with research on municipal environmental policy.

Death, Ancestors, and HIV/AIDS among the Akan of Ghana

This is a study of crises caused by HIV/AIDS among the Akan of Ghana. It creates more awareness about the epidemic and has indicated other possible paths for campaign strategies. The pandemic has many devastating consequences; yet new infections are recorded daily despite campaigns against the disease. The search for therapy often sees the use of multiple outlets, which expresses Ghana's pluralistic medical system based on Kleinman's sector analytical model involving Western medicine, self-therapy, and folk healing. But it also leaves individuals and kin members in financial quandary. The fieldwork for this study is mainly through participant observation lasting 13 months (February 2003 to March 2004) among the Akan; in addition, some archival materials have been used. The Akan people live in the coastal south and forest zone of Ghana. Every Akan village or town is made up of corporate lineages, and social organisation is based on matrilineal descent. The society is holistic because the matrilineages seek the welfare of all their members. Meyer Fortes, R. S. Rattray and others on the Akan noticed this encompassing nature in the lineage organisation; but they did not make it salient (or failed to notice it) during illness, efforts for healing, and the care of the sick member. HIV/AIDS is an illness which shows the encompassing nature of the Akan matrilineage. It also reveals many contradictions in the group, viz. stigmatisation, abandonment, and attitudes that do not express altruism in a group expected to be closely-knit based on members' belief that they are of the 'same blood'. The crises have been analyzed in the total social system because the disease creates breaches at various levels of social interaction. An analysis of crises in a group is not far-fetched; Victor Turner has shown the way among the Ndembu and has revealed the contraditions in the seemingly uneventful life in the group. This study has identified that in dealing with HIV/AIDS patients and crises about the disease we are dealing with 'holistic' patients. Their cases produce many changes in the matrilineal structure--many orphans are being created and the care of patients is increasingly falling on the elderly. HIV/AIDS also challenges Akan cosmology because, for example, an AIDS death in local notions is a 'bad' demise which fails to produce ancestors who reproduce the society through reincarnation. Campaigns could emphasize this notion. The study begins with a description of the holistic nature of Akan matriliny, and the patients have been described as 'holistic' because their crises affect other people in the holistic society. Chapter 2 discusses the importance of ancestors as the starting points for social order who are constantly revered (in rites invoving the chief, Chapter 4). Chapter 3 focuses on funerals as an important social performance for the welfare of the dead and the living. Chapter 5 concentrates on HIV/AIDS as an illness threat marked by dominant discourses such as poverty, sexuality, migration, and condom use. Chapter 6 analyzes the attempts for therapy, and traditional healers' claims to have a cure. The efforts for therapy continues with spiritual church healing in Chapter 7, and chapter 8 is devoted to care of the patients and its inherent crises. Chapter 9 analyzes the effects of HIV/AIDS afflictions and AIDS deaths on the matrilineal group and in society. The study ends with a short part, devoted to Recommendations based on the findings in this investigation.