15/2019 L'EUROPE UNIE

Simion Costea

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Simion Costea. 15/2019 L'EUROPE UNIE. L'EUROPE UNIE, 15, 2019, 15/2019 L'EUROPE UNIE / United Europe, Paris, Print ISSN: 0248-2851 Print ISSN: 2780-8173 On line ISSN: 2743-4052 Linking ISSN (ISSN-L): 2743-4052 EAN: 99782749700519, DOI:10.13140/RG.2.2.23097.68966, https://www.ceeol.com/search/journal-detail?id=1955, 10.13140/RG.2.2.23097.68966. hal-05045122

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<figure><img src="image_1.png" /></figure>
L'EUROPE UNIE
UNITED EUROPE

<figure><img src="image_2.png" /></figure>

No. 15 /
2019

Revue d'études européennes
PARIS
## SUMMARY

<table><tr><td>Daryna KOSINOVA: The legal nature of the franchise agreement (comparative-legal analysis)</td><td>1</td></tr><tr><td>Ashley PARDBUCK: Brexit and the future of the European Union</td><td>9</td></tr><tr><td>Lucia Vallecillo GRAZIATTI: Spain and Portugal join the European Communities: A long and problematic process</td><td>16</td></tr><tr><td>Lara SANSUS: International Organizations: a Challenge or a Solution for the World Politics?</td><td>22</td></tr><tr><td>Valter PASANEN: How has the introduction of the GDPR improved the data protection rights of the Finnish citizens?</td><td>30</td></tr><tr><td>Pihla HELMINEN: The Legality of Active Euthanasia in Relation to Human Rights and Legal Approaches to Active Euthanasia in Different States</td><td>39</td></tr><tr><td>Regina SEDERGREN: EU Legislation Effects on Women's Rights and Equal Treatment and Opportunities in the Workplace</td><td>48</td></tr><tr><td>Iwejuo Uche KINGSLEY: Right to Self Determination in Globalization Era</td><td>57</td></tr><tr><td>Abdurasul ABDURAKHIMOV: Migration Policy in Russia and its „Domino Effect” Towards Migrants</td><td>64</td></tr><tr><td>Dinh Thi CHIEN: Flexicurity in termination the Employment Contract – the Comparison Between Estonia and Vietnam</td><td>73</td></tr><tr><td>Hedi SAIDI: Le fait religieux, l'islam et la radicalisation</td><td>86</td></tr><tr><td>Eric OLSZAK: La localisation des activites en Europe : Les cles de la reussite</td><td>98</td></tr><tr><td>Nicoleta VASILCOVSCHI: The Present Challenges of Canadian Economic Diplomacy and the Feminization of poverty with its Impact on Equality of Opportunity for Education in North America</td><td>108</td></tr></table>

<table><tr><td>Review: Simion COSTEA – Mihaela Daciana (NATEA) BOLOŞ, <i>Trademarks and Geographical Indications in the International Relations System</i></td><td>114</td></tr></table>
# The legal nature of the franchise agreement
(comparative-legal analysis)

DARYNA KOSINOVA

YAROSLAV MUDRRYI NATIONAL LAW UNIVERSITY, UKRAINE
DASHAKOS7796@GMAIL.COM

**Abstract:** The article analyses the scientific approaches to understanding the legal nature of the franchise agreement, focuses on clarifying its subject, form and content with reference to the experience of legal regulation of franchising relations in Ukraine and abroad (using individual countries of common and civil law as an example). Comparative analysis of the franchise agreement with related agreements are carried out, namely such as: a concession agreement, a license agreement, a joint activity agreement, an agency and investment agreement, and the characteristic features of the agreement are identified.

**Keywords:** Franchising, Franchise agreement, Franchiser, Franchisee, Franchising relations.

## INTRODUCTION

As of today in the world there is a trend of cooperation between legal entities and individuals of different countries, the result of which often becomes the conclusion of various civil and economic agreements, such as purchase and sale, supply, concession, joint activities, agency services, investment, license agreements and the like. Such interest in cooperation is primarily associated with the internationalization of inter-economic relations, the active development of business partnerships, the existing migration processes, and the opening of one's own business. However, such cooperation may also entail risks of problems for participants in these relations, which primarily concern the following issues: a) the emergence of the need for continuous monitoring of the current state of the market for supply and demand; b) the search for effective ways to carry out activities in an aggressive competitive environment; c) the establishment of a production system, supply, separation of itself from competitors by creating its own "brand". Such circumstances significantly affect the results of conduct business and in many cases force owners to terminate or even liquidate. A practical solution to this problem can serve as a franchise agreement, which virtually eliminates all of the above obstacles to the implementation of effective business activities.

The study of the legal nature of the franchise agreement was devoted to works as foreign: Zh. Deltei, F. Kotler, Zh. Lamben, M. Mandelson, Morné Cronje, V. Rudashevskyi, and national scholars: A Tsyrat., E. Krivonos, O. Bezukha, A. Deringera, I. Koval, O. Kondratieva, L. Kondratenko, S. Stefanovskyi, M. Gudyma, Y. Sydorov and others. Despite a sufficiently large number of scientific works, in today's legal science (both in Ukraine and abroad) there is no single consistent approach to understanding the legal nature of the franchise agreement, and there are no progressive unifications (both at the international and national levels) regarding the legal regulation of the investigated contractual structure, which ultimately negatively affect on arise, change and termination of legal relations in this field.

The purpose of the article is to analyse existing doctrinal and legislative approaches to understanding the legal nature of the franchise agreement; researching the subject and form of the specified agreement by analysing of foreign and domestic experience and criteria for distinguishing the franchise agreement from related agreements.
STATEMENT OF THE BASIC MATERIAL

Modern legal science has a large number of definitions of franchising. Thus, I.A. Blank defines franchising as the sale of a license for a technology or trademark of a company that has a high image in the market, provided that the buyer (the franchisor) complies with the quality standards of the products and services specified by the seller (the franchisee) in the process of its implementation.<fnref n="1" /> A.S. Tsesliv, Stephen Spinella under franchising understand the form of organization and conduct of business, according to which one of the entrepreneurs (the franchisor) develops a business process model and sells the rights to conduct business in accordance with this model to another entrepreneur (franchisee).<fnref n="2" /> I. Kylimnyk, in turn, understands franchising as a long-term cooperation of two or more partners, which are combined with the purpose of sharing the trademark, the technology, know-how and other objects of intellectual property rights.<fnref n="3" /> B. Putinskyi understands franchising as a system of contractual relations of large manufacturers with small organizations in which the responsibilities for the sale of goods are carried out on the basis of a license of the company's name or trademark of the parent company, as well as compliance with production technology and strategies of commodity marketing.<fnref n="4" />,<fnref n="5" />

Analysing these definitions, it can be argued that in general they are focused on the activities of the franchisee in the implementation of certain goods or services, or on the franchisor's control over the franchisee's compliance with all the schemes of activity given to it, depends on the kind of franchising that is the basis of the definition, namely: trade or business format franchising. This approach, namely: the preference for consumers' expectations and interests in the context of the relationship between the franchisor and the franchisee is characteristic of the doctrines of European states, in contrast to the scientific doctrine of researchers of the United States of America (hereinafter referred to as the USA), where attention is focused on controlling one side over another.<fnref n="6" />

In the context of the proposed scientific discussion, it is interesting precisely the approach proposed in scientific works by researchers from the USA, which distinguish three approaches to establishing the essence of franchising relationships that not always mediated by concluding a franchise agreement. The first approach is contractual, according to which the franchise agreement is considered as a logical element of understanding franchisor-franchise relations, and it is noted that such an approach reflects the content, clarity and fairness of these relations; however other researchers argue that such an approach does not justify itself with practical point of view, since contractual norms are inherent in any contractual relationship, and therefore do not reflect the specifics of such relations. Moreover, these relations cannot be fully regulated by the agreement; therefore, their further regulation is carried out thanks to such sources as legal custom, legal doctrine, judicial practice and the like.<fnref n="7" /> In our opinion, the reasoning of the latter group of scientists is more justified, since such an approach is only a formal one, leaving an essential characterization of these relations without attention.

The second approach is called behavioral or processual. According to its content, relations between the parties arise on the main adjustment of the three processes: initiative – find counterparty;

<footnote n="1">¹ I.A. Blank Glossary-reference book of financial manager // I. A. Blank. – K. : "Nika-Center", 1998.- p. 480.</footnote>

<footnote n="2">²A. S. Tsesliv Commercial concession and related agreements: a comparative aspect / A. S. Tsesliv // Business Inform. – 2013. – No. 6. – p. 351-355.</footnote>

<footnote n="3">³ V. Evdokymova Franchising and commercial concession agreement// Patents and licenses, 1998.- № 1. – p. 23</footnote>

<footnote n="4">⁴ A. A. Eremin. Monograph: Franchising and commercial concession agreement: theory and practice of application.</footnote>

<footnote n="5">⁵ Dobrin, S., & Chochia, A. (2016). The concepts of trademark exhaustion and parallel imports: a comparative analysis between the EU and the USA. *Baltic Journal of European Studies*, 6(2), 28-57.</footnote>

<footnote n="6">⁶ An international model for vicarious liability in franchising, Robert W. Emerson 2015. [Electronic resource]. – Access mode: http://www.alsb.org/wp-content/uploads/2016/01/NP-2015-An-Intl-Model-for-Vicar-Liab-Emerson.pdf.</footnote>

<footnote n="7">⁷ O. V. Velychko Legal nature of franchising // Ukrainian law, 2002.</footnote>
implementation – exchange of information between the parties; review – provides an assessment of the activities of the parties. According to this approach, factors such as interaction, completeness and sufficiency of the information exchanged, ways of resolving conflicts, participation of the parties in decision-making, the use of useful strategies and the competence of the parties can influence on successful cooperation of the parties.

The third approach is relational, which, in our opinion, does not differ significantly from the previous one. In this approach, franchising relationships should be based on the following components: concentration of attention, solidarity, restraint, integrity, flexibility and mutual benefit.<fnref n="8" /> We consider that none of analysed approaches is perfect, because they reflect only the formal aspect of the relationship or its abstract elements, which require clarification and detailization in order to uniform understanding.

Investigating the legal nature of the franchise agreement, it can be stated on the whole that this contractual approach is quite widespread practically all over the world, but, unfortunately, there are no known unifications of this sphere at present, which makes it difficult to regulate these relations. It has to be focus on that despite the diversity of the legal regulation of the study area, it is possible to single out some general approaches to understanding the nature of this agreement in the national legislative practices of the states of the world:

- First, the main element of franchising relationships is the right of the franchisee to offer, sell or distribute the goods and services of the franchisor. The essence of such a relationship is that the franchisee carries out activities using the reputation of the franchisor. The independence of the franchisee is of great importance, that is, employees, contractors or/ franchisor agents that offer, sell, distribute goods or services, cannot be considered a franchisee, since the relationship between the franchisor and such persons arises on the basis of other agreements, for example, an employment agreement or a distribution agreement. However, in this case they don't independently carry out their activities, separately from the activities of the franchisor.

- Secondly, the parties to the franchising relations are dependent on each other: the franchisor depends on the effectiveness of the franchisee, the franchisee, in turn, depends on the experience and assistance of the franchisor. In addition, the parties have a common interest – the sale of goods and / or services for profit<fnref n="9" />.

- Thirdly, the existence of an organic connection with the trademark and other objects of intellectual property. This means that there must be a connection between the activity of the franchisee and the trademark of the franchisor. The indicator of compliance with this condition can be the real use of the franchisee's trademark, its investment in business, advertising company expenses and payment for the use of the trademark.

- Fourthly, a paid basis in the form of franchising fees which are paid in exchange for the right to become a party to the franchise agreement. Traditionally, such meetings are called royalties, that is, payment for the use of a registered mark for goods and services or a trademark.<fnref n="10" /> Royalties are paid in advance or by making current payments. It should be noted that in some states, franchising collections include initial payments for investment, fees based on a percentage of gross or net, etc., and therefore, in order to protect the interests of the

<footnote n="8">⁸ Patrick J. Kaufmann, Rajiv P. Dant Franchising: Contemporary Issues and Research, Volume 4, Number 1/2 1995.</footnote>

<footnote n="9">⁹ Min Aung The Relationship between Franchisee and Franchisor: a qualitative approach study of fast food franchising in Yangon. [Electronic resource]. – Access mode: http://utcc2.utcc.ac.th/utccijbe/_uploads/InProcess/201606/The%20Relationship%20between%20Franchisee%20and%20Franchisor.pdf</footnote>

<footnote n="10">¹⁰ Concerning the concept of "royalties", the Ministry of Justice of Ukraine; Letter, Extract dated May 05, 2011 No. 289-0-2-11-81 [Electronic resource]. – Access mode: http://zakon2.rada.gov.ua/laws/show/v0289323-11].</footnote>
parties, it is necessary to clearly indicate how the amount of royalties will be calculated, and if this is a certain percentage, then from what it will be charged. After all, in court practice, there are cases when a court refused to the franchisor in a lawsuit to recover these sums because of the impossibility of determining the amount of royalties.<fnref n="11" />

- Fifth, the availability of a marketing plan is not mandatory, but today it is quite common in contractual practice. Such plan is drawn up by the franchisor, which should be brought to the attention of the franchisee, and includes prices, production technology, products that are used and the like. The more restrictions imposed on the franchisee, the more successful the franchisor's plan is.<fnref n="12" />

- Sixth, the presence of penalties. In our opinion, fixation of penalties in agreements provides certain guarantees to the franchisor, for example, for violation of the order or technology of production of certain products and in the presence of consumer complaints about the franchisee's activity, the franchisor bears subsidiary responsibility, and in the presence of complaints to the franchisee as to the manufacturer of products – the franchisor responds together with the franchisee in solidarity.<fnref n="13" />

The question of determining the subject of the agreement under study remains controversial, which is primarily due to the lack of a unified approach to its interpretation in the national doctrinal practices of states. For example, M.M. Agarkov points out that the subject of the agreement is a certain thing, in respect of which the agreement is concluded.<fnref n="14" /> O. V. Poltavskyi, in turn, under the subject of the agreement understands the actions that must be performed under the agreement. Another scientist interprets the concept of "subject of the agreement" more broadly and includes in it both the thing about which the agreement is concluded, and the actions that must be performed under the agreement. In our opinion, the subject of the franchise agreement can be defined as the transfer franchising by franchisor to franchisee – a complex of rights to intellectual property objects, over which the parties entered into the agreement. To such objects should be attributed:

A). Means of individualization (identification) of participants of civil turnover, goods, works and services – the brand name of the rightholder, a trademark;

B). Products of intellectual activity – invention, industrial designs, know-how;

C). Objects of copyright as the results of intellectual activity – databases for personal computers, design of premises and the like.<fnref n="15" />

Investigating the legal nature of the franchise agreement, it is worth paying attention to the form of this agreement. So, in Article 1118 of the Civil Code of Ukraine states that the commercial concession agreement (we believe that it is a franchise agreement) should be concluded in written form, non-observance of which entails the recognition of the deal as invalid. That is, contractual relations between the parties arise from the moment of execution of this agreement in written form. In our opinion, if such a position of the domestic legislator is not in doubt, then the provisions of the national legislation on the abolition of the state registration requirement in this category of agreements require detailed analysis, because there are countries where the need for state registration of franchise agreements are established by law. For example, in China, the franchisor must register

<footnote n="11">¹¹ Elena Sulima, At the negotiating table: what to look for during conclusion a franchise agreement? // Lawyer and law, analytical publication, No. 35 http search.ligazakon.ua/l_doc2.nsf/link1/EA010776.html</footnote>

<footnote n="12">¹² Babette Marzheuser-Wood, Bran Baggott Franchise Law in the United States, 2015.</footnote>

<footnote n="13">¹³ Victor Moroz, License agreement and commercial concession: advantages and disadvantages// Lawyer and law, analytical publication, No. 35.</footnote>

<footnote n="14">¹⁴ M.M. Gudyma On the issue of the concept of the subject of a civil agreement // Scientific Bulletin of Uzhgorod National University, 2013.</footnote>

<footnote n="15">¹⁵ V.V. Bessarabova. The agreement of a complex entrepreneurial license as the basis for the functioning of a franchising system. [Electronic resource]. – Access mode: http://www.bseu.by/russian/scientific/herald/2003/3/030316.pdf;</footnote>
the franchise agreement within 15 days from the date of its signing.<fnref n="16" /> The duty to register is also established in the legislation of the Republic of Lithuania.<fnref n="17" />

In our opinion, the above approach is more expedient than that implemented by the domestic legislator by abolishing the requirement of state registration of franchise agreements, since entering information into the register on transfer of property rights to intellectual property objects provides additional guarantees to the parties in case of disputes, competition other franchisees and the like. However, the provisions on the state registration of the franchise agreement have generally discretionary nature, and in our opinion, the imperative should concern, the registration of provisions on disclosure of information about the franchise.

Delimitation of the franchise agreement from other related agreements is important in the context of this study. In our opinion, the franchise agreement should be separated from the following agreements:

1. **The franchise agreement and the commercial concession agreement.** As already noted, the franchise agreement provides for the relationship of custody, control, assistance and interaction between the franchisor and the franchisee. The franchisor provides the franchisee with a certain set of rights for the implementation of the relevant activity, and the franchisee, in turn, undertakes to invest in such activities. As a result, as a rule, a new business entity of a similar profile is created that operates using a brand name, trademark or other intellectual property objects, the franchisor's strategy and under its control, but is managed by the franchisee. By the commercial concession, it is usually applied in trade relations. The rightholder grants the other party the right to sell goods; the latter does not receive the right to use intellectual property objects, to carry out production activities. That is, in the franchising relationship, the volume of transferred rights to the other party is much larger.<fnref n="18" /> If You analyze the legislation of Ukraine, then Article 1115 of the Civil Code of Ukraine states that under the commercial concession agreement one party (the rightholder) undertakes to provide to the other party (user) for payment the right to use, in accordance with its requirements, a complex appropriate to this party of rights with the purpose of manufacturing and (or) selling a certain type of commodity and (or) the provision of services.¹⁹ From the above it is clear that in this article we are talking about the franchise agreement, since by its content the party can be given the right to manufacture goods, contradicts the content of the commercial concession.

2. **The franchise agreement and the license agreement.** The franchise agreement is considered to a certain extent as copying a particular business model that is regulated and controlled through such an act. In turn, the license agreement is based on the sale or provision of a specific product or service (for example, retail outlets that have a license to sell Apple products). The difference between these agreements is also that the franchisor provides support for the manufacture of the whole franchisee's business, and under the license agreement, support is usually associated with a particular product or service, and not with all the activities of the licensee.<fnref n="20" /> It should also be noted that, unlike the franchise agreement, which can be only on a paid-for basis, the license agreement can be both paid and unpaid. In a license agreement, a party may be a natural person or legal entity, and under the franchise agreement, only a legal entity acts as a party. In addition, these

<footnote n="16">¹⁶ Regulations on Administering Commercial Franchises, art.8 http://www.fdi.gov.cn/1800000121_39_3485_0_7.html
February 6, 2007</footnote>

<footnote n="17">¹⁷p. 2 art. 6.767 Civil Code of the Republic of Lithuania, dated July 18, 2000, Law No. VIII-1864 (Last amended on April 12, 2011, No XI-1312) http://www.wipo.int/wipolex/en/text.jsp?file_id=202088#LinkTarget_7318].</footnote>

<footnote n="18">¹⁸ V.S. Dmytryshyn The commercial concession agreement and franchise agreements. The Correlation of Concepts and Legal Nature // The Scientific Journal «Chronicles of the Kyiv University of Law 2010/3.
19 The Civil Code of Ukraine dated January 16, 2003 No. 435-IV [Electronic resource]. – Access mode:
http://zakon5.rada.gov.ua/laws/show/435-15.</footnote>

<footnote n="20">²⁰ Morné Cronje The difference between a franchising and a licensing agreement, 2015 [Electronic resource]. – Access
mode: https://blog.fnb.co.za/2015/10/the-difference-between-a-franchising-agreement-and-a-licensing-agreement.</footnote>
agreements are distinguished by the duration of the relations that they regulate. Thus, franchising relations are characterized by long-term, while the license agreement is determined with the termination of the exclusive right. The question of responsibility of the parties also is solved in different ways in these agreements. Under the license agreement, when obtaining a license, the licensee is responsible for its activities and possible negative consequences. In turn, the franchisor bears subsidiary responsibility in the presence of complaints about the activities of the franchisee, and jointly – if the consumer challenges the activity of the franchisee as a manufacturer.

3. **The franchise agreement and the joint activity agreement.** Individual researchers (V. Rudavshevskyi and others) consider the franchise agreement as a kind of a simple partnership agreement (the joint activity agreement). In support of their position, they note that both agreements provide for the establishment of partnerships, building trust, coordination of management.<fnref n="21" /> Others (and we sign on to this point of view) consider that this approach is rather questionable, given that, firstly, the parties to the franchise agreement pursue different aims; secondly, the parties to the joint activity agreement may be both legal entities and natural persons; thirdly, the common property is created in the joint activity agreement, and the parties do not act as a creditor and debtor in such relations, but have more or less the same status.<fnref n="22" />

4. **The franchise agreement and the agency agreement.** In accordance with Article 297 of the Commercial Code of Ukraine under the agency agreement, one party (the commercial agent) undertakes to provide services to the other party (the entity represented by the agent) in concluding agreements or to facilitate their conclusion (provision of actual services) on behalf of this entity and at its expense, the person who represents the agent must pay a certain amount of money for the services provided. In our opinion, the situation related to the conclusion of the franchise agreement is somewhat different: the franchisee pays the royalties for using the brand of the franchisor.

5. **The franchise agreement and the investment agreement.** In scientific works, the investment agreement is usually understood as the agreement that mediates investment activity, which is considered as a set of practical actions for the implementation of investments. All kinds of property and intellectual values can be attributed to investments that are invested in objects of entrepreneurial activity, resulting in a profit or social effect is achieved.<fnref n="23" /> As already noted under the franchising agreement, the franchisor transfers franchisee its intellectual property rights, which the franchisee uses to produce its business with the purpose of profit. In our opinion, the investment agreement is the general name of agreements that provide for the investment of funds, for example, agreement of purchase and sale of securities, joint activity agreement and others.<fnref n="24" /> However, such actions may be mediated by concluding the franchise agreement.

Thus, the legal nature of the franchise agreement is disclosed through clarification of the subject matter of this agreement, its content, and the correlation of this agreement with other related agreements through recourse to national doctrinal and legislative practices. In general, we can state that at present time there is no established approach to understanding the legal nature of the franchise agreement in national legal doctrines and laws of the states of the world, there has been no progressive unification of this sphere both at the international and national levels, which complicates the potential opportunities for franchise participants (especially if they have a foreign element) to

<footnote n="21">²¹ V. D. Rudashevskyi Investments and franchising / V. D. Rudashevskyi, M. A. Furshchyk // Investments in Russia. – 1997. No. 9/10. – p. 39-43.</footnote>

<footnote n="22">²² Ya. O. Sydorov, L. I. Shekhovtsova Comparative legal characteristic of the commercial concession agreement (franchising) and related agreements // Scientific Bulletin of the Zaporizhzhya National University No. 4, 2010.</footnote>

<footnote n="23">²³ I.V. Kurafieieva.Value of the investment agreement with the agreement for participation in shared construction of housing / I.V. Kurafieieva // Forum of rights. – 2010. – No. 1. – p. 194–200 [Electronic resource]. – Access mode: http://www.nbuv.gov.ua/ejournals/FP/2010-1/10kivubg.pdf.</footnote>

<footnote n="24">²⁴ O. Chaban. Classification of agreements, which mediate the implementation of investments // Enterprise, economy and law – 7/15 [Electronic resource]. – Access mode: http://pgp-journal.kiev.ua/archive/v7/4.pdf.</footnote>
effectively refer to this category of agreements for the purpose of their conclusion and further proper execution.

REFERENCES:

1. A. A. Eremin. Monograph: Franchising and commercial concession agreement: theory and practice of application

2. A. S. Tsesliv. Commercial concession and related agreements: a comparative aspect / A. S. Tsesliv // Business Inform. – 2013. – No. 6. – p. 351-355.

3. An international model for vicarious liability in franchising, Robert W. Emerson 2015. [Electronic resource]. – Access mode: http://www.alsb.org/wp-content/uploads/2016/01/NP-2015-An-Intl-Model-for-Vicar-Liab-Emerson.pdf.

4. Babette Marzheuser-Wood, Bran Baggott Franchise Law in the United States, 2015.

5. Concerning the concept of "royalties", the Ministry of Justice of Ukraine; Letter, Extract dated May 05, 2011 No. 289-0-2-11-81 [Electronic resource]. – Access mode: http://zakon2.rada.gov.ua/laws/show/v0289323-11].

6. Dobrin, S., & Chochia, A. (2016). The concepts of trademark exhaustion and parallel imports: a comparative analysis between the EU and the USA. Baltic Journal of European Studies, 6(2), 28-57.

7. Elena Sulima, At the negotiating table: what to look for during conclusion a franchise agreement? // Lawyer and law, analytical publication, No. 35 [Electronic resource]. – Access mode: http search.ligazakon.ua/l_doc2.nsf/link1/EA010776.html

8. I.A. Blank. Glossary-reference book of financial manager // I. A. Blank. – K. : "Nika-Center", 1998.- p. 480.

9. I.V. Kurafieieva.Value of the investment agreement with the agreement for participation in shared construction of housing / I.V. Kurafieieva // Forum of rights. – 2010. – No. 1. – p. 194–200 [Electronic resource]. – Access mode: http://www.nbuv.gov.ua/ejournals/FP/2010-1/10kivubg.pdf.

10. M.M. Gudyma. On the issue of the concept of the subject of a civil contract // Scientific Bulletin of Uzhgorod National University, 2013.

11. Min Aung The Relationship between Franchisee and Franchisor: a qualitative approach study of fast food franchising in Yangon [Electronic resource]. – Access mode: http://utcc2.utcc.ac.th/utccijbe/_uploads/InProcess/201606/The%20Relationship%20between%20Franchisee%20and%20Franchisor.pdf

12. Morné Cronje The difference between a franchising and a licensing agreement, 2015 [Electronic resource]. – Access mode: https://blog.fnb.co.za/2015/10/the-difference-between-a-franchising-agreement-and-a-licensing-agreement.

13. O. Chaban. Classification of agreements, which mediate the implementation of investments // Enterprise, economy and law – 7/15 [Electronic resource]. – Access mode: http://pgp-journal.kiev.ua/archive/v7/4.pdf.

14. O. V. Velychko Legal nature of franchising // Ukrainian law, 2002.

15. p. 2 art. 6.767 of Civil Code of the Republic of Lithuania, of July 18, 2000, Law No. VIII-1864 (Last amended on April 12, 2011, No XI-1312) [Electronic resource]. – Access mode: http://www.wipo.int/wipolex/en/text.jsp?file_id=202088#LinkTarget_7318].

16. Patrick J. Kaufmann, Rajiv P. Dant Franchising: Contemporary Issues and Research, Volume 4, Number 1/2 1995 [Electronic resource]. – Access mode: https://goo.gl/1vutxR.

17. Regulations on Administering Commercial Franchises, art.8 [Electronic resource]. – Access mode: http://www.fdi.gov.cn/1800000121_39_3485_0_7.html February 6, 2007.

18. The Civil Code of Ukraine dated January 16, 2003 No. 435-IV [Electronic resource]. – Access mode: http://zakon5.rada.gov.ua/laws/show/435-15.

19. V. Evdokymova. Franchising and commercial concession agreement// Patents and licenses, 1998.- № 1. – p. 23
20. V. D Rudashevskyi. Investments and franchising / V. D. Rudashevskyi, M. A. Furshchyk // Investments in Russia. – 1997. No. 9/10. – p. 39-43.

21. V.S. Dmytryshyn. The commercial concession agreement and franchise agreements. The Correlation of Concepts and Legal Nature // The Scientific Journal «Chronicles of the Kyiv University of Law 2010/3.

22. V.V. Bessarabova. The agreement of a complex entrepreneurial license as the basis for the functioning of a franchising system. [Electronic resource]. – Access mode: http://www.bseu.by/russian/scientific/herald/2003/3/030316.pdf;

23. Victor Moroz, License agreement and commercial concession: advantages and disadvantages // Lawyer and law, analytical publication, No. 35.

24. Ya. O. Sydorov, L. I. Shekhovtsova. Comparative legal characteristic of the commercial concession agreement (franchising) and related agreements // Scientific Bulletin of the Zaporizzhya National University No. 4, 2010.
# Brexit and the future of the European Union

ASHLEY PARDBUCK

TALLINN UNIVERSITY OF TECHNOLOGY, ESTONIA

ASHLEYPARDBUCK@OUTLOOK.COM

**Abstract:** The United Kingdom leaving the European Union has been a long and rather complicated process. This article intends to analyse the process, with closer look at the main events since the referendum on leaving the EU and predicts possible impact of Brexit on the future of the EU and the UK itself.

**Keywords:** Article 50, Brexit, European Union, United Kingdom.

This paper critically examines the issue of Brexit and the potential impact on the EU and the United Kingdom themselves. Brexit is the name given to the United Kingdom European Union membership referendum which occurred on 23rd of June 2016 which sparked a lot of debate from two sides named leave and remain<fnref n="1" />. It ended in a simple majority result of 51.9% being in favour leaving the EU with the remaining 48.1% wanting to remain in the EU. The referendum legally was actually non-binding and only advisory but government at the time promised to follow through on whatever the result was and initiated the act of invoking article 50 of the Treaty on European Union, which began the United Kingdom's withdrawal from the EU by 30th of March 2019 after negotiating the Brexit terms.

The problem with this outcome is that it has caused a lot of uncertainty over the future for both the EU and the United Kingdom and whether that result was a good thing to follow through on. The problems, as advocated by many critics lies within the boundaries and rules previously created and have been set in stone since the UK originally joined into the EU in 1973 and have been expanded upon ever since. These problems stem from the economical and legal relationship between the EU and the UK as the UK originally joined to be a part of the single market which itself has a lot of strict rules that all member states have to follow before being allowed to enter it, though when they entered back when it was just the European Economic Community the EU had begun to expand and tried to bring all the member states into one community that fall into and follow the same rules and regulations which led to EU creating legal rules that would bind to member states when put into power. This aspect of the EU the United Kingdom particularly disliked<fnref n="2" /> as they felt it was an act of giving up their own sovereignty over their own land and letting the EU dictate what they can and can't do.

The negotiating between the EU and the UK can go multiple different routes on how this could end like for example the UK could follow the route of Norway<fnref n="3" />, but the two main options are at the moment a soft Brexit or a hard Brexit<fnref n="4" />. The hard Brexit is what the leave voters want but the Government still want some sort of access to certain areas of the EU like the single market. The EU however are not going to make it easy for the UK to stay in the single market without also wanting

<footnote n="1">¹ "Brexit: the pros and cons of leaving the EU" The week, May 22, 2018, accessed November 22 2018, https://www.theweek.co.uk/brexit-0</footnote>

<footnote n="2">² "Margaret Thatcher on the European Union (National Press Club, Washington DC, 1995)", filmed 1995, Youtube Video, 2:28, posted by "Steven Woolfe MEP", April 9, 2018</footnote>

<footnote n="3">³ Traub Florian and M.Dennis Gillian. 'Brexit—What Could Happen to My IP Rights?' (2017) Vol 29, Intellectual Property & Technology Law Journal, pg 20, pg 1</footnote>

<footnote n="4">⁴ George Alexandra. 'RESTRUCTURING INTELLECTUAL PROPERTY JURISDICTION POSTBREXIT: STRATEGIC CONSIDERATIONS FOR THE EUROPEAN UNION AND BRITAIN' (2017) Vol 43, Brooklyn Journal of International Law 43 Brook. J. Int'l L., pg 131, pg10 – 11</footnote>
something in return, for example keeping the freedom of movement which the UK do not want to keep due to fearing the lack of proper border controls will lead to an increasing problem with immigrants and terrorist fears due to lack of proper screening<fnref n="5" /> of those coming in. Depending on the outcome of the Brexit negotiations, there will be consequences for both sides with differing levels of impacts for either side.

On an economical aspect, already the Brexit vote has shown damage to the UK economy<fnref n="6" /> as the pound which was already weakened by the previous 2008 recession and was on a road to recovery, dropped once again but to new all-time lows<fnref n="7" />. This is happening whilst the UK is still inside the EU and abides by the same rules and regulations as usual until they finally leave. The EU at the moment haven't really been affected but for them it seems to be more about the long term implications as right now the UK is still in the EU so they will still benefit from the fact that the UK have the 2nd highest economy<fnref n="8" /> out of all the member states and that they will still benefit from their contribution to the EU budget. Now whilst this is happening at the moment, in the future this could completely turn around when the UK does leave the EU but it comes down to what kind of deal the UK can strike. As previously mentioned there are multiple different routes the UK could take in leaving the EU which include multiple ways of a hard and soft Brexit<fnref n="9" />. Neither the UK and the EU are going to make it easy as the UK are going to try gain every advantage of the EU whilst trying to drop all the disadvantages like paying into the EU budget, but the EU will also be trying everything to make it as a hard as possible for the UK to gain a deal without having severe restrictions laid onto them as the EU right now are not willing to give up freedom of movement just so they can avoid having low skilled immigrants coming into the country but then they can have access freely to the singles market<fnref n="10" />. If we treat the UK as if it were outside the EU already, they are the EU's largest single export market in goods<fnref n="11" />. So if we think about the Post-Brexit scenario and whatever the negotiation deal maybe, the EU seem to benefit either way as the UK may still continue to import from the EU a lot of their goods from these members states despite the deal in place as they could be certain brands that the UK citizens like, for example BMW, Mercedes, Audi etc or it could be due to the fact that even with the increase in customs due to no free movment of trade, the deal may still be better than offered elsewhere, though that is yet to be seen as the UK are trying to use Brexit as a way of attracting other countries in creating trade deals with them and the US being one of the first<fnref n="12" />.

<footnote n="5">⁵ Jessica Elgot and Jamie Grierson, “May says EU immigrants will lose priority status after Brexit”, The Guardian, October 2, 2018, accessed on November 22, 2018, https://www.theguardian.com/uk-news/2018/oct/02/eu-citizens-lose-priority-under-post-brexit-immigration-plans</footnote>

<footnote n="6">⁶ Chris Giles, “What are the economic effects of Brexit so far?” Financial Times, June 24, 2018, accessed November 22, 2018 https://www.ft.com/content/dfafc806-762d-11e8-a8c4-408cfba4327c</footnote>

<footnote n="7">⁷ Ben Chu, “The pound has hit a 31-year low – it's time to accept that Brexit will definitely make us poorer”
Independent, October 4, 2016, accessed November 22, 2018 https://www.independent.co.uk/voices/brexit-sterling-pound-record-low-31-years-theresa-may-tory-conference-make-us-poorer-a7344626.html</footnote>

<footnote n="8">⁸ Oliver Patel and Christine Reh, “Brexit: The Consequences for the EU’s Political System”, UCL Constitution Unit
Briefing Paper, https://www.ucl.ac.uk/constitution-unit/research/europe/briefing-papers/Briefing-paper-2</footnote>

<footnote n="9">⁹ Charles P. Ries, Marco Hafner, Troy D. Smith, Frances G. Burwell, Daniel Egel, Eugeniu Han, Martin Stepanek, Howard J. Shatz “Examining Economic Outcomes After Brexit”, Rand Corporation, December 11, 2017, accessed November 22, 2018, https://www.rand.org/randEurope/research/projects/brexit-economic-implications.html</footnote>

<footnote n="10">¹⁰ Daniel Boffey, “EU anger over May’s post-Brexit immigration plan”, The Guardian, October 2, 2018, accessed on November 22, 2018, https://www.theguardian.com/uk-news/2018/oct/02/eu-anger-over-mays-post-brexit-immigration-plan</footnote>

<footnote n="11">¹¹ “Where does the EU export to?”, January 26, 2016, accessed on November 22, 2018, https://fullfact.org/europe/where-does-eu-export/</footnote>

<footnote n="12">¹² Nicholas Frakes, “US ‘Ready’ for post-Brexit UK trade deal – Congress to prepare for ‘Cutting Edge’ pact”, Express, October 17, 2018, accessed on November 22, 2018, https://www.express.co.uk/news/politics/1032524/brexit-news-us-trade-deal-eu-negotiation-donald-trump</footnote>
Too show how much the EU influences the UK on the legal level, I have picked one area of law which is Intellectual Property as that is a very important part of law, not just for the UK and the EU but even on an international level and how Brexit has large implications on that stage on just this one area. The UK and the EU values Intellectual property as an essential part of law for the success of the Internal Market of the EU, which is why a Directive was adopted on the enforcement of Intellectual property rights<fnref n="13" />. This Directive recognises the importance of intellectual property rights in promoting innovation and creativity and in developing employment and improving competitiveness, it does this by seeking to strike a balance between providing inventors and creators with the opportunity to realise a legitimate profit and encouraging the widest dissemination of works, ideas and new know-how whilst not hampering freedom of expression, freedom of information and the protection of personal data on the internet. The scope of the directive is wide in that it applies to all intellectual property rights covered by EU provisions in the field. In addition to the legislation regarding the issue at hand, the EU has shown a remarkable and ever-growing amount of case law on IP issues that has gone a long way in implementing the law.

Intellectual property law has long been set up on an international stage, which makes it not surprising that the UK's membership of the EU has had a great influence on copyrights, patents, trademarks and the like.

Three issues mark the impact of the EU on Intellectual property law:

* The drive towards greater harmonisation of the laws of individual Member States

* The move to community-wide intellectual property rights

* The impact of the TFEU<fnref n="14" /> on the use and abuse of intellectual property rights

Harmonisation deals with Intellectual property rights implemented in each Member States are alike, meaning that the internal market of the EU is reinforced and trade between Member States is facilitated. Harmonisation of national laws in the field of Intellectual Property has been happening for some time and hasn't been restricted to the EU countries, patent law was affected through the harmonisation process as the European Patent Convention was implemented and didn't just affect the UK. UK patent law was changed on 1 June 1978 as a result of this convention and Patents Act 1977 came into force. EU directives are instrumental in changing domestic law protecting registered designs, copyright law and rights in performances. An example of this is the right of artists to a royalty on the resale of their works was introduced into the UK in 2006¹⁵ as a result of a Directive<fnref n="16" />. Significant changes to trademark law were made by a European Directive<fnref n="17" /> also as they attempted to achieve a limited harmonisation of trademark law throughout the EU, this formed the basis of Trade Marks Act 1994 which replaced the outdated Trade Marks Act 1938. Since then trademark law has been integrated into a community-wide rights system. An example of case law of this would be

Community-wide rights deals with Intellectual property rights being recognised and given effect throughout the EU. As mentioned before trademark law is now in a Community-wide system, a Community patent differs from this as a Community patent system is a unitary system, granting patents will take effect throughout the whole of the EU. In the UK, the Patents Act 1977 already has in place the necessary mechanism for recognising Community patents<fnref n="18" />. Progress has been made towards this in respect of patent law as a proposal for a Community Patent Convention was first established in 1975¹⁹. Right now in its current state, it's a European Patent Convention which permits

<footnote n="13">¹³ Directive 2004/48/EC of the European Parliament and of the Council on the enforcement of intellectual property rights</footnote>

<footnote n="14">¹⁴ Treaty on the functioning of the European Union</footnote>

<footnote n="15">¹⁵ The Artist's Resale Right Regulations 2006</footnote>

<footnote n="16">¹⁶ Directive 2001/84/EC of the European Parliament and of the Council</footnote>

<footnote n="17">¹⁷ Directive 89/104/EEC</footnote>

<footnote n="18">¹⁸ Patents Act 1977 s 130(7)</footnote>

<footnote n="19">¹⁹ Community Patent Convention (76/76/EEC)</footnote>
the application for a bundle of patents but only covers a specified number of Member States including the UK. This route to obtaining patent protection throughout Europe (though not just limited to the countries of the EU) has grown in importance for the EU.

However Britain has signalled its intent to ratify its agreement for the UPC to be put in place in London despite triggering Article 50. Even after Brexit, this would make the process of dealing with patent disputes concerning European patents can be easier as instead of being litigated separately in the domestic courts of each Member State, it can be heard as a single case before the UPC. It is just uncertain whether the UK will remain a member of the UPC post-Brexit as it will be up to the UK Government<fnref n="20" />. However the UK could standardize its legislation with the international IP legal framework where it is less strict unlike the EU with the likes of WIPO (World Intellectual Property Organisation) which the UK is already a part of.

The impact of the TFEU in Intellectual property rights is to do with the use of Articles 34, 35 and 36 which help promote free movement of goods, Article 101 which prohibits restrictive trade practices and Article 102 which is designed to prevent the abuse of a dominant market position.

Articles 34, 35 and 36 deal with the notion of freedom of movement of goods between the Member States which contains grounds which includes protection of intellectual property rights as they fall within the definition of industrial and commercial property<fnref n="21" /> as it was established in Musikvertrieb Membran and K-tel International v GEMA<fnref n="22" />. The case concerned if copyright was also included within the definition of industrial property, as patents, trademarks and rights in designs were already included. The Court explored the issue of about whether royalties from sound recordings and that if the work was distributed to another Member State, it should benefit from equality in the royalties paid for any distribution of those sound recordings in the German market as the owner of the copyright has legitimate interest in receiving and retaining the benefit of his intellectual or artistic effort regardless of the degree to which his work is distributed and consequently it is maintained that he should not lose the right to claim royalties equal to those paid in the country in which the recorded work is marketed. The ruling<fnref n="23" /> in this case should be interpreted in a way that it prevents discrimination of copyright owners from obtaining royalties when their work is put onto another Member States market. The implementation of this ruling show how the EU tries to prevent discriminatory actions being taken place by member states and that they try and make sure that freedom of movement of goods isn't taken advantage upon.

This leads into the principle of exhaustion of rights which means that the holder of intellectual property rights cannot use his rights to prevent the commercialisation of goods that have been placed on the market within the EU by him or with his consent. Exhaustion of rights does not harm rules on ownership, nor does it harm the existence of those rights as it merely controls the exercise of those rights where such exercise conflicts with the freedom of movement of goods. This principle is not absolute however, it will not apply under certain circumstances like if for example the commercialisation involved repackaging the goods or altering them in an unacceptable way which would harm the holder of the intellectual property rights. This is where EU Directives play a part to provide rules on exhaustion of rights, for example Directive 2008/95/EC deals with exhaustion of rights relating to trademarks<fnref n="24" />.

<footnote n="20">²⁰ George Alexandra. 'RESTRUCTURING INTELLECTUAL PROPERTY JURISDICTION POSTBREXIT: STRATEGIC CONSIDERATIONS FOR THE EUROPEAN UNION AND BRITAIN' (2017) Vol 43, Brooklyn Journal of International Law 43 Brook. J. Int'l L., pg 131, pg28 – 30</footnote>

<footnote n="21">²¹ Article 36 TFEU</footnote>

<footnote n="22">²² 55/80 and 57/80 Musikvertrieb Membran and K-tel International v GEMA [1981] ECR 147</footnote>

<footnote n="23">²³ Ratio from 55/80 and 57/80 Musikvertrieb Membran and K-tel International v GEMA [1981] ECR 147</footnote>

<footnote n="24">²⁴ Article 7 of Directive 2008/95/EC</footnote>
The EU has put a lot of effort in promoting the full harmonisation of copyright and even showing that decisions of cases in other Member States can have an effect in the UK. The main cases in this area being the Phil Collins v Imtrat Handelsgesellschaft mbH and Patricia Im-und Export Verwaltungsgesellschaft mbH case<fnref n="25" />, where German copyright law<fnref n="26" /> didn't allow non-German nationals to rely on the provisions which prohibited the distribution of unauthorised recordings of performances given outside Germany. Phil Collins and Cliff Richard argued that this German law was breaching Article 7 of the EEC Treaty<fnref n="27" /> (now Article 18 TFEU) in an action relating to the distribution of bootleg recordings of their performances given in the USA and the UK. It was taken to the European Court of Justice (now the Court of Justice of the European Union) for a ruling under Article 234 of the EC Treaty (now Article 267 TFEU), where it was confirmed that copyright fell within the scope of Article 12 and the principle of non-discrimination applied to those rights. The ruling<fnref n="28" /> for this case should be interpreted in a way that it stops discriminating authors and performers from other member states and allow them to prohibit marketing of their performance without their consent in other member states when the performance was given outside the performers national territory. The implementation of this ruling shows how the EU does not stand for discriminatory actions by Member States.

Even though there has not yet been a full harmonisation of copyright law throughout the EU, they still fell within the Treaty's provisions because of their effect on trade in goods and services within the EU.

Too conclude, the Brexit scenario is going to be a complicated road for both the UK and the EU as both have their own set of goals that they both want to achieve but only one can achieve their goals whilst crippling the other. Another thing that is going to be complicated is when it comes to all the laws that have been put into place through the EU, as already discussed earlier the law on IP itself has been altered massively through the EU which may now see years of work thrown away if a proper Brexit deal is not agreed. Though a strange thing that the UK seems to have done is that they have agreed to join a Community Patent Convention called the Unified Patents Court<fnref n="29" /> that the EU have been making steps to create as Britain has signalled its intent to ratify its agreement for the UPC to be put in place in London despite triggering Article 50. Even after Brexit, this would make the process of dealing with patent disputes concerning European patents can be easier as instead of being litigated separately in the domestic courts of each Member State, it can be heard as a single case before the UPC. It is just uncertain whether the UK will remain a member of the UPC post-Brexit as it will be up to the UK Government<fnref n="30" />. However the UK could standardize its legislation with the international IP legal framework where it is less strict unlike the EU with the likes of WIPO (World Intellectual Property Organisation) which the UK is already a part of but then why would they agree to join the UPC in the first place?

<footnote n="25">²⁵ C-92/92 Phil Collins v Imtrat Handelsgesellschaft mbH and Patricia Im-und Export Verwaltungsgesellschaft mbH</footnote>

<footnote n="26">²⁶ German Copyright Act 1965, ss 96(1) and 125(1)</footnote>

<footnote n="27">²⁷ European Economic Community Treaty</footnote>

<footnote n="28">²⁸ Ratio from C-92/92 Phil Collins v Imtrat Handelsgesellschaft mbH and Patricia Im-und Export Verwaltungsgesellschaft mbH</footnote>

<footnote n="29">²⁹ Cook Trevor. ""BREXIT" and Intellectual Property Protection in the UK and the EU' (2016) Vol21, Journal of Intellectual Property Rights, pg 355, pg 1</footnote>

<footnote n="30">³⁰ George Alexandra. 'RESTRUCTURING INTELLECTUAL PROPERTY JURISDICTION POSTBREXIT: STRATEGIC CONSIDERATIONS FOR THE EUROPEAN UNION AND BRITAIN' (2017) Vol 43, Brooklyn Journal of International Law 43 Brook. J. Int'l L., pg 131, pg28 – 30</footnote>
When it comes down it there would a lot of legislation that will have to be removed if it is a hard-Brexit<fnref n="31" />, which means that the UK Parliament will have a lot of work to do even after the deal even though yes they could join the WPO which would help when it comes to IP law but when it comes to the human rights aspect for example, this was given through the EU as the UK never really law on peoples human rights except for the Magna Carta which is centuries old and is likely to be completely outdated in this day and age.

We can already see this in the economic front as the UK want to rid of the freedom of movement to restrict access of immigrants but then keep in the single market but the EU won't allow that as they clearly do not benefit equally from such a deal. At the same time though this could be a political tactic deployed by the EU to show other Eurosceptics across the member states that maybe thinking about leaving or trying to renegotiate the terms of their EU membership that if the UK are having a hard time to leave, that other countries may think otherwise in trying to attempt their own 'Brexit'. Though at the moment the UK seem to have agreed a draft agreement<fnref n="32" /> with the EU that the current Prime Minister Theresa May is happy with, though if it actually comes into action in time for the actual leave date of 29th of March 2019, we shall see as the EU parliament have to accept this plan and the members of Parliament all have to agree to it before it can be ratified which at the moment most of them are against this current plan as they don't see it as the Brexit that was promised and more of a in-between soft and hard Brexit which doesn't really benefit the UK at all.

## REFERENCES:

1. 55/80 and 57/80 Musikvertrieb Membran and K-tel International v GEMA [1981] ECR 147

2. Ben Chu, "The pound has hit a 31-year low - it's time to accept that Brexit will definitely make us poorer" Independent, October 4, 2016, accessed November 22, 2018
https://www.independent.co.uk/voices/brexit-sterling-pound-record-low-31-years-theresa-may-tory-conference-make-us-poorer-a7344626.html

3. "Brexit would cause legislative chaos", European Law Monitor, accessed on November 22, 2018,
https://www.europeanlawmonitor.org/eu-referendum-topics/brexit-would-cause-legislative-economic-chaos.html

4. "Brexit: Draft agreement on future relationship right for UK, says May", BBC News, November 22, 2018, accessed on November 22, 2018, https://www.bbc.com/news/uk-politics-46300247

5. Brexit: the pros and cons of leaving the EU" The week, May 22, 2018, accessed November 22 2018, https://www.theweek.co.uk/brexit-0

6. C-92/92 Phil Collins v Imtrat Handelsgesellschaft mbH and Patricia Im-und Export Verwaltungsgesellschaft mbH

7. Charles P. Ries, Marco Hafner, Troy D. Smith, Frances G. Burwell, Daniel Egel, Eugeniu Chochia, A., Troitiño, D. R., Kerikmäe, T., & Shumilo, O. (2018). Enlargement to the UK, the Referendum of 1975 and Position of Margaret Thatcher. In *Brexit* (pp. 115-139). Springer, Cham.

8. Chochia, Archil, David Ramiro Troitiño, Tanel Kerikmäe, Olga Shumilo, and Nicole Lindstrom. "The First European Community and the British Position." In *Brexit*, pp. 59-81. Springer, Cham, 2018.

<footnote n="31">³¹ "Brexit would cause legislative chaos", European Law Monitor, accessed on November 22, 2018, https://www.europeanlawmonitor.org/eu-referendum-topics/brexit-would-cause-legislative-economic-chaos.html</footnote>

<footnote n="32">³² "Brexit: Draft agreement on future relationship right for UK, says May", BBC News, November 22, 2018, accessed on November 22, 2018, https://www.bbc.com/news/uk-politics-46300247</footnote>
9. Han, Martin Stepanek, Howard J. Shatz "Examining Economic Outcomes After Brexit", Rand Corporation, December 11, 2017, accessed November 22, 2018, https://www.rand.org/randeurope/research/projects/brexit-economic-implications.html

10. Chris Giles, "What are the economic effects of Brexit so far?" Financial Times, June 24, 2018, accessed November 22, 2018 https://www.ft.com/content/dfafc806-762d-11e8-a8c4-408cfba4327c

11. Community Patent Convention (76/76/EEC)

12. Cook Trevor. ""BREXIT" and Intellectual Property Protection in the UK and the EU" (2016) Vol21, Journal of Intellectual Property Rights, pg 355

13. Daniel Boffey, "EU anger over May's post-Brexit immigration plan", The Guardian, October 2, 2018, accessed on November 22, 2018, https://www.theguardian.com/uk-news/2018/oct/02/eu-anger-over-mays-post-brexit-immigration-plan

14. Directive 89/104/EEC

15. Directive 2001/84/EC of the European Parliament and of the Council

16. Directive 2004/48/EC of the European Parliament and of the Council on the enforcement of intellectual property rights

17. Directive 2008/95/EC

18. European Economic Community Treaty

19. George Alexandra. 'RESTRUCTURING INTELLECTUAL PROPERTY JURISDICTION POSTBREXIT: STRATEGIC CONSIDERATIONS FOR THE EUROPEAN UNION AND BRITAIN' (2017) Vol 43, Brooklyn Journal of International Law 43 Brook. J. Int'l L., pg 131

20. German Copyright Act 1965

21. Jessica Elgot and Jamie Grierson, "May says EU immigrants will lose priority status after Brexit", The Guardian, October 2, 2018, accessed on November 22, 2018, https://www.theguardian.com/uk-news/2018/oct/02/eu-citizens-lose-priority-under-post-brexit-immigration-plans

22. "Margaret Thatcher on the European Union (National Press Club, Washington DC, 1995)", filmed 1995, Youtube Video, 2:28, posted by "Steven Woolfe MEP", April 9, 2018

23. Oliver Patel and Christine Reh, "Brexit: The Consequences for the EU's Political System", UCL Constitution Unit Briefing Paper, https://www.ucl.ac.uk/constitution-unit/research/europe/briefing-papers/Briefing-paper-2

24. Nicholas Frakes, "US 'Ready' for post-Brexit Uk trade deal – Congress to prepare for 'Cutting Edge' pact", Express, October 17, 2018, accessed on November 22, 2018, https://www.express.co.uk/news/politics/1032524/brexit-news-us-trade-deal-eu-negotiation-donald-trump

25. Patents Act 1977

26. TFEU

27. The Artist's Resale Right Regulations 2006

28. Traub Florian and M.Dennis Gillian. 'Brexit—What Could Happen to My IP Rights?' (2017) Vol 29, Intellectual Property & Technology Law Journal, pg 20, pg 1

29. Troitino, D. R., Kerikmäe, T., & Chochia, A. (2018). De Gaulle and the British Membership in the European Communities. In *Brexit* (pp. 83-97). Springer, Cham.

30. Troitiño, D. R., Kerikmäe, T., Chochia, A., & Hrebickova, A. (2018). Cooperation or Integration? Churchill's Attitude Towards Organization of Europe. In *Brexit* (pp. 33-56). Springer, Cham.

31. Treaty on the functioning of the European Union

32. "Where does the EU export to?", January 26, 2016, accessed on November 22, 2018, https://fullfact.org/europe/where-does-eu-export/
# Spain and Portugal join the European Communities: A long and problematic process

LUCIA VALLECILLO GRAZIATTI

RESEARCHER AT INSTITUTO CATÓLICO DE ADMINISTRACIÓN Y DIRECCIÓN DE EMPRESAS,
MADRID, SPAIN

LUCIA.VALLECILLO.GRAZIATTI@GMAIL.COM

**Abstract:** Spain and Portugal's aspirations for its incorporation into the European Communities gained momentum with the arrival of democracy for both countries and, for that purpose, the Government of President Adolfo Suárez requested, on July 26, 1977, officially joining the EEC (today Union European). This Spanish and Portuguese aspiration was satisfied eight years later -on June 12, 1985- with the signing of the Accession Treaty in Madrid and the effective integration into the Economic Community on January 1, 1986. Since then, the path of Spain and Portugal has come marked by important advances that have resulted in the well-being of their society as a whole.

**Keywords:** Spain, Portugal, European Union, Enlargement

## INTRODUCTION

Both countries are located in the South West of Europe and had historically an important relationship with Europe since the prehistoric times, and became important powers during the time of the great discovers of America, the circumnavigation of Africa and the relations between Europe and Asia. The creation of the Spanish and Portuguese Empires, located in different continents meant the beginning of European influence in the world affairs. Also this Empires were important in Europe, as the Spanish Empire was united with the German Empire and had possessions all over the Mediterranean, Italy, Benelux and France. This relation was important in cultural matters, as the University of Salamanca and its important school that had a great influence in the European culture, plus world writers as Cervantes and its novel book Don Quixote, painters as Velazquez, and other important cultural personalities. But the European importance of both countries decreased step by step as their Empires declined, becoming in political terms minor powers in Europe and somehow isolating from the rest of the continent. Nevertheless they still were important in Europe in cultural terms, and were involving in all the European cultural movements. Both countries looked inwards increasingly separating themselves from the centre of Europe, but their cultural elites were still strongly link with Europe, with outstanding figures as Picasso, Dali or Ortega Gasset<fnref n="1" />. The political elites were also link with Europe, and Europe was taken as an example of modernity, as an example to reform these countries and increase their level of development. The XX century meant the creation of dictatorships in Spain and Portugal under the powers of Francisco Franco Bahamonte and Antonio de Oliveira Salazar and its exclusion from the democratic states of West Europe being even more isolated from the European states as they were seen as the last fascist regimes of the continent. But the Cold War and the possibility of communist regimes in both countries made USA support somehow these countries and incorporate them in the Western area, even when the political ties with other European partners were weak<fnref n="2" />.

<footnote n="1">¹ Bretherton, Charlotte, and John Vogler. *The European Union as a global actor*. Routledge, 2005.</footnote>

<footnote n="2">² Troitiño, David Ramiro, and Karoline Faerber. "Historical errors in the initial conception of the euro and its subsequent development." *Brazilian Journal of Political Economy* 39, no. 2 (2019): 328-343.</footnote>
PREVIOUS RELATIONS WITH THE EUROPEAN INTEGRATION

Portugal was interested having relations with other European states in order to integrate in the international arena and secure the domestic situation with international support, but it could not join the European Communities because of its political system<fnref n="3" />. On the other hand, its economy was linked with United Kingdom, a traditional ally, so the relations with this country were more important. As the British proposed a new European organization based on economics without any political implication, the Portuguese government involved the country in the negotiations<fnref n="4" />, and Portugal became a founder member of the European Free Trade Association. When United Kingdom, Ireland and Denmark left the organization for joining the European Communities, the rest of the member states of the EFTA signed bilateral free trade agreements with the EEC during 1970s. Then the relation of Portugal and the EEC was based in these economic agreements. It could not go further until Portugal was a democratic state<fnref n="5" />.

The case of Spain is more complicated, because its economic ties with the members of the EFTA were not so strong, it did not apply for membership, so the country was somehow isolated from Europe, because its political relations with the member states of the EEC were generally bad. After the Spanish civil war, many intellectuals left the country becoming a strong opposition abroad to the Spanish regime, especially in Europe, and some of them became important in the development of the European integration, as Salvador de Madariaga, founder of the Colleague of Europe, the best institution of European Integration learning. Other important personalities, more than 100⁶, were present in the European meeting of Munich in 1962 representing Spain, without any official representation from Spain. The final conclusions of this European Congress included a reference to the Spanish government pointing out the necessity of the country to become a democracy in order to integrate in Europe<fnref n="7" />. Franco rejected these proposals and the relations between Spain and the EEC became even more problematic. Nevertheless, there were economic relations between both areas, and half of Spanish exports had the EEC as its destination. A preferential agreement was signed in 1970, and established a preferential system with the objective of eliminating the barriers to the commercial exchanges between Spain and the Community<fnref n="8" />.

Spain and Portugal became democratic after the death of Franco in 1975 and the collapse of the Portuguese regime in 1974. Soon afterwards both applied for membership in the European Communities. There was identification in both countries of Europe and freedom, and the accession became an obsession in order to secure the new democracies. The negotiations started soon but the way was long and full of obstacles and the enlargement finally became a reality in 1986, after almost 8 years of negotiations.

<footnote n="3">³ Moravcsik, Andrew. "Reassessing legitimacy in the European Union." *JCMS: journal of common market studies* 40, no. 4 (2002): 603-624.</footnote>

<footnote n="4">⁴ Freres, Christian, and José Antonio Sanahuja. *América Latina y la Unión Europea: estrategias para una asociación necesaria*. Vol. 243. Icaria Editorial, 2006.</footnote>

<footnote n="5">⁵ Huysmans, Jef. "The European Union and the securitization of migration." *JCMS: Journal of Common Market Studies* 38, no. 5 (2000): 751-777.</footnote>

<footnote n="6">⁶ Marks, Gary, Fritz W. Scharpf, Philippe C. Schmitter, and Wolfgang Streeck. Governance in the European Union. Sage, 1996.</footnote>

<footnote n="7">⁷ Panikar, Marina M., and David R. Troitino. "Winston Churchill on European Integration." *VOPROSY ISTORII* 11 (2018): 85-96.</footnote>

<footnote n="8">⁸ Dinan, Desmond. *Ever closer Union. An Introduction to European Integration. The European Union Series*. Palgrave, New York, 1999.</footnote>
THE NEGOTIATIONS

The EEC Communities linked both countries in the enlargement process, so the accession was limited to an agreement with Spain and Portugal. In the case of Portugal, there were no major problems, because of its small size and previous economic ties with the Communities, but the case of Spain was much more complicated because of its magnitude. The negotiations were conducted by different chapters, mainly agriculture, industry, and fishery.

Agriculture was a delicate issue because it was the main Spanish economic activity, and it could distort the already problematic CAP inside the Communities and at the same time compete with the French production. The CAP was by far the policy of the European Communities with a biggest share in the European Budget, and the inclusion of an important country in terms of agriculture could have meant a huge increase in the global expenditure to keep the level of payments received by all the European farmers. So it was important to reform the sector in Spain before the accession to adapt it to the European necessities. On the other hand, the French farmers of the South of the country, focus on Mediterranean production, were afraid of Spanish cheap production and its consequences in terms of market share<fnref n="9" />. The Spanish could produce cheaper, with better quality and because of its weather condition the harvest was ready before than in France, reaching the market before its French competitors. And logically there was an important unrest between French farmers. They even blocked the borders between France and Spain preventing the Spanish agricultural production to reach the European Market. Violence was common, trucks burnt and destroyed, physical attacks commonly spread, and the French police did not stop it. This problem lasted for many years, even with Spain already inside the European Communities, and the High Court of Justice of the EU banned these actions and blamed them on the French state because of the inactivity of its police. Nevertheless, after log discussions the problem was solved with the inclusion of Stand Still clauses and the gradual access of the Spanish products to the European market<fnref n="10" />.

Industry was a problem because the regime of Franco had promoted a big industrial sector in Spain, being an important country in this field, but the industry was obsolete and was mainly supported by state subsidies, something against the European legislation. It was clear that the Spanish could not compete with other member states in a free market and its industry should be partially dismantled, but the problem was the timing. Spain wanted to join fast the Communities in order to get financial support from the European Communities for reforming its industrial sector<fnref n="11" />, but the member states thought that the cost will be too high. The negotiations were hard, and finally an agreement was reached and Spain undertook the reform prior the accession with some European support complemented with national financing. The EEC was paying before the enlargement to save money after the accession. The Spanish government used the requirements of reform of the EEC in this field to justify the needed reform in the eyes of its citizens and avoid a social conflict<fnref n="12" />.

This was a constant in many other fields of the Spanish society, anxious of joining the European Communities. The state needed to reform many fields of the Spanish economy, essential reforms that should have been undertake anyway, but were presented to the citizens as a petition of the EEC. As there was a high support for the enlargement among the Spanish citizens the social protest were minimal under the circumstances of the reform, with many State companies closed and high unemployment. The reforms were basic for the Spanish economic competitiveness and were accepted as a minor price for joining the European Communities. This situation expanded to other fields, as social or political, as an example, the legalization of the Spanish Communist party, the long

<footnote n="9">⁹ Martín, Carmela. *La ampliación de la Unión Europea: Efectos sobre la economía española*. No. 27. " la Caixa", 2002.</footnote>

<footnote n="10">¹⁰ Cini, Michelle, and Nieves Pérez-Solórzano Borragán, eds. *European union politics*. Oxford University Press, 2016.</footnote>

<footnote n="11">¹¹ Nugent, Neill. *The government and politics of the European Union*. Palgrave, 2017.</footnote>

<footnote n="12">¹² Ramiro Troitiño, David. "Margaret Thatcher and the EU." *Baltic Journal of European Studies* No. 6 (2009): 124–150.</footnote>
term enemy of Spain during 40 years of a pseudo fascist regime, was partly presented as a necessity to be a fully democratic country in order to join the European Communities<fnref n="13" />.

Fishery was another important field in the negotiations because of the size of the Spanish fleet, the biggest of Europe, and one of the most important of the world. The situation of fishing was difficult after increasing the national sovereignty waters all over the world in the 1960s. The Spanish fleet traditionally fished in international areas that suddenly became national, with the consequent restrictions and conflicts. Accepting Spain in the European Communities also meant accepting the Spanish fleet in the Communitarian waters<fnref n="14" />. There were other problems, as environment, because the fishing technics of the Spanish were considered too aggressive for the sea environment<fnref n="15" />. And market reasons, because the preparation and competiveness of the Spanish fleet was higher than the European fleet. The Spanish fish market counted for more than half of the communitarian market, more than half of the fish ate in West Europe was consumed in Spain. So, other European states were interested in the Spanish market as a source for developing their own fishing industry. Also, as it was a communitarian policy, the EEC should represent the interest of its member states all over the world, and the Spanish fleet was spread around the globe<fnref n="16" />.

The main problems were between Spain and France, and Spain and United Kingdom. The first conflict was link with the sovereignty of the waters of the Bay of Biscay, where the Spanish did not respect the national waters of France and the French naval forces had problems to reinforce its position. Even there were some sad events when the French shot Spanish fishing boats from a Helicopter, and some sailors died<fnref n="17" />.

UK wanted to keep outside of its waters the Spanish fleet to protect its national industry, already in a problematic situation after losing the fishing grounds of the North Sea, before international and then under the sovereignty of Iceland.

Finally, again, Stand Still clauses were accepted restricting the free access of the Spanish fleet to the communitarian waters for long periods of time, but, it was ineffective because once inside of the Community, once inside of the Common Market, the Spanish companies just established themselves in, for example, British soil, using the freedoms of the market to create British companies with Spanish boats, Spanish sailors and selling their caches in Spain, avoiding the Stand Still clauses and getting free access to the communitarian waters<fnref n="18" />.

## CONCLUSIONS

The Treaty of the enlargement was finally signed and it was the most complicate Treaty of enlargement in the History of the European integration because of its high number of clauses provisions and exceptions. But it meant the incorporation of Spain and Portugal to the Communities. The benefits for Spain and Portugal were numerous, as political support to their new democracies against any internal attempt to reverse the situation, as it happened in Spain with the military coup

<footnote n="13">¹³ Hix, Simon. *The political system of the European Union*. Macmillan International Higher Education, 1999.</footnote>

<footnote n="14">¹⁴ Wallace, Helen, Mark A. Pollack, and Alasdair R. Young, eds. *Policy-making in the European Union*. Oxford University Press, USA, 2015.</footnote>

<footnote n="15">¹⁵ Kohler-Koch, Beate, and Rainer Eising, eds. The transformation of governance in the European Union. Vol. 12. Psychology Press, 1999.</footnote>

<footnote n="16">¹⁶ Moreno, Luis. "La" vía media" española del modelo de bienestar mediterráneo." *Papers: revista de sociología* 63 (2001): 67-82.</footnote>

<footnote n="17">¹⁷ Chochia, Archil, David Ramiro Troitiño, Tanel Kerikmäe, and Olga Shumilo. "Enlargement to the UK, the Referendum of 1975 and Position of Margaret Thatcher." In *Brexit*, pp. 115-139. Springer, Cham, 2018.</footnote>

<footnote n="18">¹⁸ Troitiño, David Ramiro, Tanel Kerikmäe, Archil Chochia, and Andrea Hrebickova. "Cooperation or Integration? Churchill's Attitude Towards Organization of Europe." In *Brexit*, pp. 33-56. Springer, Cham, 2018.</footnote>
lead by Tejero, the modernization of the economic and social structures of both countries, and economic benefits from the European policies. Spain and Portugal have been net receivers of European funds until nowadays. In 2011 there was difference between the Spanish payments to the EU and the money obtained by Spain from the European Union of around 2000 million euro. Most of the funds reached these countries via the CAP and the Structural Funds, heirs of the Mediterranean Fund created by the lobby of Papandreou<fnref n="19" />. Another important industry of both countries, the tourism, was highly benefited by the enlargement. The numbers of tourist grew year after year because of the membership of the European Communities, with all the legal and social securities it includes as being part of the same politic and economic block. Just Spain during 2010 received 52, 6 millions of international tourists, mostly from the European Union<fnref n="20" />.

On the other hand, the European Communities obtained benefits from the enlargement, as free access to the Spanish and Portuguese markets when the European companies were more competitive than the Iberians, with the consequent economic benefits, plus more international influence because of the Iberian international connections, especially with America<fnref n="21" />. The enlargement also reinvigorated the European dream, because both states were, and still are big supporters of the European integration and always back new Treaties, new policies and deeper integration in the European building process.

BIBLIOGRAPHY:

1. Chochia, Archil, David Ramiro Troitiño, Tanel Kerikmäe, and Olga Shumilo. "Enlargement to the UK, the Referendum of 1975 and Position of Margaret Thatcher." In *Brexit*, pp. 115-139. Springer, Cham, 2018.

2. Cini, Michelle, and Nieves Pérez-Solórzano Borragán, eds. *European union politics*. Oxford University Press, 2016.

3. Bretherton, Charlotte, and John Vogler. *The European Union as a global actor*. Routledge, 2005.

4. Dinan, Desmond. *Ever closer Union. An Introduction to European Integration*. The European Union Series. Palgrave, New York, 1999.

5. Freres, Christian, and José Antonio Sanahuja. *América Latina y la Unión Europea: estrategias para una asociación necesaria*. Vol. 243. Icaria Editorial, 2006.

6. Hix, Simon. *The political system of the European Union*. Macmillan International Higher Education, 1999.

7. Huysmans, Jef. "The European Union and the securitization of migration." *JCMS: Journal of Common Market Studies* 38, no. 5 (2000): 751-777.

8. Kerikmäe, Tanel, Archil Chochia, David Ramiro Troitiño, and Andrea Hrebickova. "The First Attempts to Unify Europe for Specific Purposes and British Flexibility." In *Brexit*, pp. 21-32. Springer, Cham, 2018.

9. Kohler-Koch, Beate, and Rainer Eising, eds. *The transformation of governance in the European Union*. Vol. 12. Psychology Press, 1999.

10. Marks, Gary, Fritz W. Scharpf, Philippe C. Schmitter, and Wolfgang Streeck. *Governance in the European Union*. Sage, 1996.

11. Martín, Carmela. *La ampliación de la Unión Europea: Efectos sobre la economía española*. No. 27. " la Caixa", 2002.

12. Morata, Francesc, ed. *Gobernanza multinivel en la Unión Europea*. Valencia: Tirant lo Blanch, 2004.

<footnote n="19">¹⁹ Roura, Juan R. Cuadrado, Tomás Mancha Navarro, Rubén Garrido Yserte, and Andrés Rodríguez-Pose. *Convergencia regional en España: hechos, tendencias y perspectivas*. Fundación Argentaria, 1998.</footnote>

<footnote n="20">²⁰ Kerikmäe, Tanel, Archil Chochia, David Ramiro Troitiño, and Andrea Hrebickova. "The First Attempts to Unify Europe for Specific Purposes and British Flexibility." In *Brexit*, pp. 21-32. Springer, Cham, 2018.</footnote>

<footnote n="21">²¹ Morata, Francesc, ed. *Gobernanza multinivel en la Unión Europea*. Valencia: Tirant lo Blanch, 2004.</footnote>
13. Moravcsik, Andrew. "Reassessing legitimacy in the European Union." *JCMS: journal of common market studies* 40, no. 4 (2002): 603-624.

14. Moreno, Luis. "La" vía media" española del modelo de bienestar mediterráneo." *Papers: revista de sociología* 63 (2001): 67-82.

15. Nugent, Neill. *The government and politics of the European Union*. Palgrave, 2017.

16. Panikar, Marina M., and David R. Troitino. "Winston Churchill on European Integration." *VOPROSY ISTORII* 11 (2018): 85-96.

17. Ramiro Troitiño, David. "Margaret Thatcher and the EU." *Baltic Journal of European Studies* No. 6 (2009): 124-150.

18. Roura, Juan R. Cuadrado, Tomás Mancha Navarro, Rubén Garrido Yserte, and Andrés Rodríguez-Pose. *Convergencia regional en España: hechos, tendencias y perspectivas*. Fundación Argentaria, 1998.

19. Troitiño, David Ramiro, Tanel Kerikmäe, Archil Chochia, and Andrea Hrebickova. "Cooperation or Integration? Churchill's Attitude Towards Organization of Europe." In *Brexit*, pp. 33-56. Springer, Cham, 2018.

20. Troitiño, David Ramiro, and Karoline Faerber. "Historical errors in the initial conception of the euro and its subsequent development." *Brazilian Journal of Political Economy* 39, no. 2 (2019): 328-343.

21. Wallace, Helen, Mark A. Pollack, and Alasdair R. Young, eds. *Policy-making in the European Union*. Oxford University Press, USA, 2015.
# International Organizations: a Challenge or a Solution for the World Politics?

LARA SANSUS

TALLINN UNIVERSITY OF TECHNOLOGY, ESTONIA

LARASANSUS@GMAIL.COM

**Abstract:** During the Millenium speech commencement, the former secretary general of the United Nations Kofi Annan, highlighted the importance of the international organizations. He showed that all the challenges of the 21st century cannot be solved without these organizations. The first International Organization (IO) appeared during the 19th century. As the Central Commission for Navigation on the Rhine (1815) or the International Telecommunication Union (1865), most of them was created to deal with specific issues. Then, in order to manage disputes between sovereign states, the Permanent Court of Arbitration was established in 1902. The 19th century assisted to the emergence of many international organizations, symbol of cooperation between countries.

**Keywords:** International Organizations, world peace, cooperation, integration.

## INTRODUCTION

International organizations are defined by the International Law commission as “*organization established by a treaty or other instrument governed by international law and possessing its own international legal personality*”. These organizations are composed by international members or scope. They refer to two main types : they can be Intergovernmental Organization (IGO), so composed by sovereign states who cooperate in some fields (such as the United Nations, the World Bank...), or International Non-Governmental Organization (INGO), which are independent from governments and usually non-profit organizations such as “Medecin sans Frontières”. These organizations can be permanent or temporary, regional or broader.

International organizations are generally perceived as the solution for world politics, defined as the international governance. Indeed, they answer to the pragmatic approach saying that each global problem or international issue should be managed and solved by an international response. Therefore, an international organization can also be considered as “*a body that promotes voluntary cooperation and coordination between or among its members*” (McCormick, 1999, p10). International organizations are, in other words, forums of discuss which gather sovereign countries, who agreed to solve commonly international problems<fnref n="1" />.

However, the effectiveness of some of these numerous IO is questioned. There is still lots of conflicts all around the world and many issues cannot be solved by the international organizations. As an example, the FAO underlined it by showing in its 2017 report that hunger in the world increased by 50 million people between 2006 and 2016. In other words, IO lost popular support and lack of legitimacy; moreover, they are highly limited by the states behaviour which perceived these forums as tools to become more influential.

Therefore, we can wonder if the international organizations are still considered as the solution for the world politics or if they constitute challenges?

<footnote n="1">¹ Troitino, David. "European Identity the European People and the European Union." *Sociology and Anthropology* 1, no. 3 (2013): 135-140.</footnote>
The effectiveness of international organizations as a solution to solve global problems is questioned<fnref n="2" />. However, it is unquestionable to argue that this cooperation represents one of the best solution to gather world's actors, to establish communication and, therefore, to try to find common answers. Nevertheless, these answers can be counterproductive if it is not taking at the right level.

## GLOBAL PROBLEMS SOLVED BY GLOBAL COOPERATION, INTERNATIONAL ORGANIZATIONS AS A SOLUTION FOR THE GLOBAL POLITICS

The International organizations are seen as the only way to maintain peace in this globalized world. Indeed, they create an international order and, they are supranational forums where the self-interest of states is supposedly erased to find a common solution.

The international cooperation is considered as the solution for a peaceful and stabilized world. Indeed, based on the reflection of the enlightenment philosophers such as the liberalists Grotius, Kant and Locke, cooperation between sovereign states through international organizations is considered as a way to escape from the state of anarchy described by the realists. Indeed, by sharing common values and concerns, states cooperate to achieve common objectives and interests.<fnref n="3" /> More concretely, the Mercosur free trade area was created with the goal of overcoming "*the rivalries between the Southern cone of South American states*".<fnref n="4" /> Through the establishment of Mercosur in 1991, some South American states developed economic and political relationship to avoid conflicts by focusing on what is gathering them, on their economic partnership. In other words, cooperation represents a way to ensure peace.<fnref n="5" /> By the way, this interdependency was highly supported by the President Woodrow Wilson, underlining in its 14-points that cooperation at all the levels is the only way to avoid conflicts. He said that free trade and open agreements between states are required to avoid mistrust and wars.

The United Nations is one of the biggest examples of international cooperation which led to the creation of international rules. The committed states have “*to maintain international peace and security*”, based on this principle, the members of the Security Council can decide sanctions. Indeed, according to the article 41 of the Charter of the United Nations, the “*Security Council can take action to maintain or restore international peace and security*” if the principles of the UN Charter are not respected. Moreover, this international organization is creating a legal framework through the resolutions decided into the Security Council by its 5 permanent members. The latter is, for example, responsible of the peacekeeping operations to ensure the creation of the conditions for a sustainable peace. Recently, the Security Council mandated the operation “United Nations missions for justice support in Haiti”, ensuring the deployment of troops in Haïti to end the rebellion and to accompany the establishment of a sustainable peace. Therefore, through international organizations, the states have decided the establishment of an international order.

Additionally, international organizations are forums of discuss and proposals, which gather states for negotiations.

<footnote n="2">² Norris, Pippa. *Global Governance and Cosmopolitan Citizens*, in Nye, J. S., & Donahue, J. D. (Eds.). (2000). *Governance in a globalizing world*. Brookings Institution Press. 155–77.</footnote>

<footnote n="3">³ Jackson, R., Sørensen, G., & Møller, J. (2019). *Introduction to international relations: theories and approaches*. Oxford University Press, USA.</footnote>

<footnote n="4">⁴ Mattheis, F., & Wunderlich, U. (2017). Regional actorness and interregional relations: ASEAN, the EU and Mercosur. *Journal of european integration*, 39(6), 723-738.</footnote>

<footnote n="5">⁵ Gallarotti, G. M. (1991). The limits of international organization: Systematic failure in the management of international relations. *International Organization*, 45(2), 183-220.</footnote>
Thanks to international organizations, technical cooperation can be created between their members and other actors, ensuring the provision of intellectual and material sources. It is, by the way, one of the commitments written in the United Nation Charter "*The Purposes of the United Nations are: (...) To be a centre for harmonizing the actions of nations in the attainment of these common ends.*" (Charter of the United Nations, Article 1). As an example, the European Union and the United Nations have established a platform in order to intensify cooperation and coordination for an effective resolution of the shared issues. It ensures a better coherence for some missions mainly for police and military actions, for the best effectiveness.<fnref n="6" /> These forums of discuss are therefore necessary to ensure the coherence of different missions and the establishment of coordinate actions over police and military missions for example.

International organizations can be perceived as solutions to overcome the states toward a global approach, probably more suitable for the international/globalized issues.

Indeed, due to the process of globalization, a high level of interdependency and strong international ties between different actors have been created. This interdependency is pushing the states to coordinate more their actions with the other actors, in order to propose a coherent approach on some global issues: it ensures "*collective responses*" based on "*mutual accountability*".<fnref n="7" /> F.Cameron qualifies this cooperation as an "*effective multilateralism*".

The international organizations are actors of the international scene. They are, often, the only solution to solve global problems. Therefore, states must try to find global responses rather than protect first their national interests in a short term view, strategy more suitable to manage one common issue. As Gallarotti mentioned, "*to be effective, several actions must be taken together, in the right order*". As an example, the World Bank is composed by 189 member countries, which have developed this partnership in order to fight poverty and underdevelopment. It ensures loans for poorest countries and work for the reconstruction and the development of developing countries. Another example can be provided with the framework realized by the United Nations in order to find common solutions to the climate change, and reinforce the commitment of the actors in this way. The Paris Agreement represents the futuristic guide to avoid environmental disasters and show the willingness of some states to protect the well-being of the humanity through a collective commitment in the ecologic field (see. The Paris Agreement, United Nations Framework on Climate Change). These examples underlined that international organizations, through the cooperation between its members, can take some responsibilities that single states cannot assume alone.

Since the Treaty of Westphalia in 1648, the principle of non-inference in the sovereign state has been reinforced. Indeed, states are sovereign in their borders and over their population, they benefit from the principle of unconditional state sovereignty. Therefore, in general, interferences are not allowed into sovereign states by the international law.

However, the Non-Governmental Organizations (NGO), part of what we call international organizations, are interesting instruments which can overcome the state's sovereignty. Indeed, NGOs overcome this principle since they have conditioned the principle of non-interference to the international human law.<fnref n="8" /> As an example, in developing countries, the NGOs can intervene urgently in case of major natural disaster (example of Haïti in 2010). Therefore, if one population is under threat and if the state cannot protect it, NGOs can intervene<fnref n="9" />.

<footnote n="6">⁶ Cameron, F. (2005). *The EU and international organisations: partners in crisis management*. EPC Issue Paper, 41, 21, 2005, 17-18.</footnote>

<footnote n="7">⁷ Ruggie, J. G. (1975). International responses to technology: concepts and trends. *International organization*, 29(3), 557-583.</footnote>

<footnote n="8">⁸ Thomas, D. C. (2001). International NGO's, State Sovereignty, and Democratic Values. *Chi. J. Int'l L.*, 2, 389.</footnote>

<footnote n="9">⁹ Troitiño, David Ramiro, Tanel Kerikmäe, and Archil Chochia, eds. *Brexit: History, Reasoning and Perspectives*. Springer, 2018.</footnote>
Moreover, the United Nations created the measure of last resort “Principle of Responsibility to protect” or “RtoP” during the 2005 World Summit. This principle is based on the assumption that sovereign states must protect their populations from mass atrocity crimes and human rights violations. This principle expands this responsibility to international organizations, civil society and the private sector. However, the intervention must be justified by some criteria such as the just cause or the last resort.<fnref n="10" /> International organizations can intervene, under criteria, beyond the sovereignty of states ensuring a humanized approach of the world.

Required to maintain peace between international actors and to solve global problems, the international organizations gained importance in this globalized world. Indeed, as Hurd (2012) wrote, “*as interdependence increases, the importance of international organizations increases with it*”. However, they are not the solution to the all-world politics and can become the core challenges of the 21st century.

## INTERNATIONAL ORGANIZATIONS, THE SOURCE OF NEW CHALLENGES

International organizations are, obviously, not the perfect solution to drive world politics. Indeed, they can be very ineffective because of the prominence of states and be the source of new problems.

International intergovernmental organizations are based on cooperation. Therefore, all the members need to agree on the decisions.

In other words, international organizations are, obviously, not independent from states. They can be considered as a ring to show their state's power and influence over the world. It ensures the domination of some powerful actors and their ideologies.

Because international organizations are the sum of these sovereign states mainly, they are often ineffective and reflect the self-interests of the states. First of all, trying to find a common solution supported by all the member states is a hard task. Also, as Mearsheimer said, IO have limited power toward powerful states because they represent the distribution of power in the world. Therefore, they represent a way for states to take advantages from others thanks to alliances mainly. This idea is well illustrated by the example of NATO: this regional and military organization was created to ensure the balance of power regarding USSR<fnref n="11" />. Therefore, in this competitive and anarchic world, these IO can bring peace by maintaining the balance of power.<fnref n="12" /> Therefore, according to Chuck Hagel, “*Alliances and IO should be understood as opportunities for leadership and a means to expand our influence not as constraints on our power*”. Indeed, as the realist mentioned, IGOs are mainly ways to create alliances and to serve the national interests of each countries. In other words, “*Great powers usually benefit from the existing order and have an interest in maintaining it*”.

In other words, by creating alliances, the most powerful state can influence the decisions of the rest, and therefore, ensuring its prominence by driving indirectly the world politics.

Moreover, even if some decisions are taken, the states remain sovereign. Indeed, it means that they are not obliged to apply some decisions taken by one international organization. Therefore, when sanctions are decided, states can do not apply them or withdraw from the organization. In other words, the enforcement and the respect of the international law does not exist quite often, mainly when the sanctions are decided against a powerful country such as Russia or the USA. As an

<footnote n="10">¹⁰ Evans, G. (2006). From Humanitarian Intervention to the Responsibility to Protect. *Wisconsin International Law Journal*. 3 (2), 710.</footnote>

<footnote n="11">¹¹ Hanrieder, T. (2012). Hurd, Ian. *International Organizations: Politics, Law, Practice*. *PVS Politische Vierteljahresschrift*, 53(1), 153-154.</footnote>

<footnote n="12">¹² Mearsheimer, J. J. (1995). A realist reply. *International Security*, 20(1), 82-93.</footnote>
example, by this military intervention in Crimea, Russia broke the international principle of inviolability of frontiers. Therefore, some international sanctions were imposed to Russia during the Crimean crisis. However, Russia decided to impose counter-sanctions against other countries such as the USA and continued the annexation of this Ukrainian region. Another example is the sanctions decided against North Korea to push the Kim regime to denuclearize the peninsula<fnref n="13" />. However, these sanctions damaged considerably the economy and therefore the people, rather than creating a pressure toward denuclearization. Accordingly, international sanctions are often ineffective if the states do not want to respect the international law. These examples highlight that sovereign states are the most powerful actor of the international relations as supported by the realist viewpoint. Therefore, the international relations are obviously anarchic and the international law is not relevant because it is created by states to serve their own national objective of security and power.<fnref n="14" />

International organizations are not the solution to each global problem. Indeed, sometimes, by trying to solve one problem thanks to cooperation, other problems can appear.

IO can deteriorate some situations they wanted firstly to solve. In other words, IO can become counterproductive and create new challenges. It is mainly the case of the economic and financial organizations, often more suitable for strong economies. Indeed, when states in financial difficulties ask help from the International Monetary Funds (IMF), the latter can offer loans conditioned to the implementation of economic policies such as the reduction of government borrowing or some structural adjustments as the privatisation or deregulation of the national market. However, by following this economic model, the IMF imposes unadapt policies to weak economies. As an example, the IMF loaned $40 billion to stabilize the currencies of some Asian countries during the Asian crisis in 1997. The counterparty was the implementation of a series of “structural adjustment package” (SAP) which were supposed to reduce the government spending and deficit by increasing the interest rates and suppress lots of jobs (South Korea had to destroy 50% of the jobs in the bank sector according to Naomi Klein). In other words, the exigencies of the IMF destroyed a part of the state’s incomes and increased the financial instability with the withdrawal of investors<fnref n="15" />. These unadapt policies deteriorated the economic crisis and its consequences.

Additionally, the success of the International organizations encouraged the creation of many of them. Numerous organizations were created and some, specialized in the same fields. This situation can become counterproductive if they lack cooperation and coordination.<fnref n="16" /> The absence of a proper coordination can create a competition between them, and therefore the fall of the actions decided.

To avoid this problem, the IO are supposed to cooperate as mentioned for example in the article 1 of the Charter of the UN. Actions must be harmonized, coordinated to provide “appropriate arrangements for effective cooperation with other intergovernmental organisations (...)” as mentioned in the article 5 of the agreement establishing the World Trade Organization. Nevertheless, even if some International organizations have established a strong cooperation, each of them has its own rules, objectives and different members. The lack of common standards can create negative or counterproductive effects instead of solving one issue.

Therefore, it is necessary to measure the implication of each International organization in some issues. Their intervention can create new problems or reinforce others. International organizations

<footnote n="13">¹³ Panikar, Marina M., and David R. Troitino. "Winston Churchill on European Integration." *VOPROSY ISTORII* 11 (2018): 85-96.</footnote>

<footnote n="14">¹⁴ Pease, K. K. S. (2015). *International organizations*. Routledge.</footnote>

<footnote n="15">¹⁵ Radelet, S., Sachs, J. D., Cooper, R. N., & Bosworth, B. P. (1998). The East Asian financial crisis: diagnosis, remedies, prospects. *Brookings papers on Economic activity, 1998*(1), 1-90.</footnote>

<footnote n="16">¹⁶ Klabbers, J. (2017). Transforming institutions: autonomous international organisations in institutional theory. *Cambridge International Law Journal, 6*(2), 105-121.</footnote>
must coordinate their efforts in order to ensure effectiveness and avoid negative effects of unadapt
interventions. In other words, Gallarotti advises to take into consideration the “*optimal scope and
level of multilateral management*” for the best effectiveness.

International organizations are often perceived as the more suitable solution to global problems. Therefore, states can be discouraged to intervene in their own countries in order to solve national issues. Indeed, IO can be considered as substitutes for national answer to problems, some states can, therefore, wait for the intervention of the IO and do not try to solve the situation with long-term solutions. Thus, IO should try to reduce this dependency and encourage states to assume their responsibilities over its territory and its population as much as it can. Also, the state is in general supposed to take decisions more adapted to its country to solve some issues. However, sometimes, IO “causes or exacerbates problems by offering solutions that have unpredictable and destabilizing effects”. As an example, the military intervention in Libya in 2011 caused lots of damages such as the fostering of violence, the failure of the state and the strengthening of terrorist groups in the region.<fnref n="17" /> The intervention deteriorated the already complicated solutions. In other words, Peter Single recommended applying at the global level the principle of subsidiarity applied in the European Union. This principle was as well recommended by the FAO in 1996, supporting that “*each nation must adopt a strategy consistent with its resources and capacities to achieve its individual goals and, at the same time, cooperate regionally and internationally in order to organize collective solutions to global issues of food security*”. This principle of subsidiarity reminded by the FAO, ensure a suitable form of government for the world, by guaranteeing that each decision will be taken as close as possible at an adapted level.

Finally, the lack of accountability is one of the disadvantages of IO. The latter, considered as
the solution for global issues in the 1990s, received popular support or a passive acceptance of their
interventions. However, regarding some failures in the resolution some global problems a social
contestation over IO is rising. It is based on the perception that people have of the IO: this perception
depends on the well management of the cross border issue and of the contribution given to the IO.
The people seems to look for a biggest space for public debate such as underlined during the World
Social Forum showed<fnref n="18" /> Indeed, some IO suffer from a democratic deficit.

CONCLUSION

Finally, the debate was focus on the relevance of the international organizations, if they are
considered as a solution for the world politics, or more as a challenge.

International organizations are perceived as best the solution to answer the challenges of this globalized and interdependent world. Indeed, IO are composing by sovereign states or independent members which agreed to solve some globalized problems based on cooperation. Indeed, by having more common answers and interests states are more willing to take common decisions. These international organizations understood as intergovernmental organizations or NGOs are necessary in this globalized world to humanize some situations by correcting the problems caused by geopolitical strategies or economic liberalism. However, as mentioned, IO are often not effective enough and can be the source of new challenges. Quite often, challenges appear because the states

<footnote n="17">¹⁷ Kuperman, A. J. (2015). Obama's Libya debacle: how a well-meaning intervention ended in failure. *Foreign Affairs*, *94*(2), 66-77.</footnote>

<footnote n="18">¹⁸ Dellmuth, L. M., & Tallberg, J. (2015). The social legitimacy of international organisations: Interest representation, institutional performance, and confidence extrapolation in the United Nations. *Review of International Studies*, *41*(3), 451-475.</footnote>
who composed those organizations try to take advantages from the situation they have to solve or,
because the level of decision is not suitable enough to the situation.

In other words, as Hurd (2012) said, the IO are the solution for global politics and, at the same
time, the cause of new problems.

BIBLIOGRAPHY:

Primary sources

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The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty" (PDF). ICISS. December 2001.

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Brooks, R. A., & Pilon, J. G. (1986). The United Nations Is Not Exempt from Budget Belt Tightening. *Heritage Foundation*.

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Dellmuth, L. M., & Tallberg, J. (2015). The social legitimacy of international organisations: Interest representation, institutional performance, and confidence extrapolation in the United Nations. *Review of International Studies, 41*(3), 451-475.

Evans, G. (2006). From Humanitarian Intervention to the Responsibility to Protect. *Wisconsin International Law Journal*. 3 (2), 710.

Gallarotti, G. M. (1991). The limits of international organization: Systematic failure in the management of international relations. *International Organization*, *45*(2), 183-220.

Hanrieder, T. (2012). Hurd, Ian. *International Organizations: Politics, Law, Practice*. *PVS Politische Vierteljahresschrift*, *53*(1), 153-154.

Keohane, R. O., & Nye, J. S. (1977). *Power and interdependence* (pp. 8-9).

Klabbers, J. (2017). Transforming institutions: autonomous international organisations in institutional theory. *Cambridge International Law Journal*, *6*(2), 105-121.

Klein, Naomi. (trad. Lori Saint-Martin et Paul Gagné) (2008). The Shock doctrine. The rise of disaster capitalism, *Paris, Léméac/Actes Sud*, 322.

Kuperman, A. J. (2015). Obama's Libya debacle: how a well-meaning intervention ended in failure. *Foreign Affairs*, *94*(2), 66-77.

Jackson, R., Sørensen, G., & Møller, J. (2019). *Introduction to international relations: theories and approaches*. Oxford University Press, USA.

Marchetti, R. (2004). Peter Singer, One World: The Ethics of Globalization (New Haven and London: Yale University Press, 2002), pp. 256. *Utilitas*, *16*(3), 332-334.

Mattheis, F., & Wunderlich, U. (2017). Regional actorness and interregional relations: ASEAN, the EU and Mercosur. *Journal of european integration*, *39*(6), 723-738.

McCormick, John (1999). The European Union: Politics and Policies. Westview Press: Boulder Colorado, 10.

Mearsheimer, J. J. (1995). A realist reply. *International Security*, *20*(1), 82-93.

Mearsheimer, J. J. (1994). The false promise of international institutions. *International security*, *19*(3), 5-49.

Norris, Pippa, *Global Governance and Cosmopolitan Citizens*, in Nye, J. S., & Donahue, J. D. (Eds.). (2000).
*Governance in a globalizing world*. Brookings Institution Press. 155-77.
Panikar, Marina M., and David R. Troitino. "Winston Churchill on European Integration." *VOPROSY ISTORII* 11 (2018): 85-96.

Pease, K. K. S. (2015). *International organizations*. Routledge.

Radelet, S., Sachs, J. D., Cooper, R. N., & Bosworth, B. P. (1998). The East Asian financial crisis: diagnosis, remedies, prospects. *Brookings papers on Economic activity, 1998*(1), 1-90.

Ruggie, J. G. (1975). International responses to technology: concepts and trends. *International organization*, 29(3), 557-583.

Thomas, D. C. (2001). International NGO's, State Sovereignty, and Democratic Values. *Chi. J. Int'l L.*, 2, 389.

Troitino, David Ramiro. *European integration: Building Europe (European political, economic, and security issues)*. Nova Science Publishers Incorporated, 2013.

Troitino, David. "European Identity the European People and the European Union." *Sociology and Anthropology* 1, no. 3 (2013): 135-140.

Troitiño, David Ramiro, Tanel Kerikmäe, and Archil Chochia, eds. *Brexit: History, Reasoning and Perspectives*. Springer, 2018.

Troitiño, David Ramiro, and Karoline Faerber. "Historical errors in the initial conception of the euro and its subsequent development." *Brazilian Journal of Political Economy* 39, no. 2 (2019): 328-343.
# How has the introduction of the GDPR improved the data protection rights of the Finnish citizens?

VALTER PASANEN

TALLINN UNIVERSITY OF TECHNOLOGY, ESTONIA

VALTER.PASANEN@HOTMAIL.COM

**Abstract:** This paper is written to better understand how Finland implemented the General Data Protection Regulation (GDPR in short) into law and how it has affected the citizens of Finland. By summarising the old laws and the GDPR we get a better understanding of the importance the GDPR brings and what problems it could solve in the future.

Data protection and privacy has become a bigger issue and importance because of the growth of data collection. That is why Finland fully incorporated the EU's new data protection regulation into the body of law and by repealing the Personal Data Act, Finland's old data protection law. The GDPR has brought a wide range of new protection and privacy standards for the Finnish citizens such as the right to forget and the right to know how ones information is being used.

**Keywords:** GDPR, Data Protection, Privacy, Finland, Law

## INTRODUCTION

Privacy is a human right that is regarded as important and vital for the wellbeing of people. But we usually take our right to privacy for granted and just assume that it is automatically kept private from others. The average adult spends about 5.9 hours of time per day on social media and the internet overall in a study conducted 2018.<fnref n="1" /> This means that for every Instagram page or Facebook link that a person browses there are hundred pieces of information stored in the form of cookies, which other websites and companies use to know a person's habits.<fnref n="2" /> The introduction of stricter data protection laws was enforced in the EU in the form of the General Data Protection Regulations or GDPR for short and will function as a corner stone for future laws.<fnref n="3" /> Data is so valuable nowadays that there is a need for further regulations and updated versions of most laws concerning data. How has Finland changed their privacy laws and what new rights does the GDPR bring to the citizens?

## 1. DEFINITIONS

### 1.1. Data protection

Defining data protection is difficult because there are so many aspects that are involved in its making. Nevertheless, according to the European Union's legislation personal data is any information relating to an identified or identifiable natural person.<fnref n="4" /> One way of defining data protection is “the condition of not having undocumented personal information about oneself known by others”<fnref n="5" /> which dictates that information that is private to oneself shouldn't be documented and thus should have a label of privacy over it. A more modern definition for data protection could be

<footnote n="1">¹ Meeker, Mary, *Internet Trends 2018: Digital media usage*, Kleiner Perkins, 2018, P.11</footnote>

<footnote n="2">² Amitai, Etzioni, *Privacy in a cyber age: Policy and practice*, Palgrave, Macmillan, 2015, P.77</footnote>

<footnote n="3">³ Colin, Tankard, *Network Security: What GDPR means for businesses*, Elsevier Ltd, 2016, P. 5–8</footnote>

<footnote n="4">⁴ *Ibidem*, P.9</footnote>

<footnote n="5">⁵ W. A. Parent, *A new definition of privacy for the law*, Volume 2 Issue 3, 1983, P. 305</footnote>
"legal rules that aim to protect the rights, freedoms and interests of individuals, whose personal data are collected, stored, processed, disseminated, destroyed"<fnref n="6" />.

Privacy is the fundamental right that your information is being protected from unlawful sources and it can seem obvious that everyone should have the right to have a private life. But this can be very hard to control because of the many factors that are the making of privacy.

**1.2. Data subjects and Collectors**

Data subjects are persons with "any information relating to an identified or identifiable natural person"<fnref n="7" />. This means that anyone who uses the internet or sends messages leave data which they are the data subject of.

A controller according to the General Data Protection Regulation "means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data"<fnref n="8" />. Collectors can be anyone from websites to governments and their purpose is to gather the data the data subjects provide.

**2. GOVERNING LAWS OF DATA PROTECTION IN FINLAND**

Finland has a couple of laws that regulate data protection such as the constitution, acts and now the GDPR. What are the laws? The main principle of privacy in Finland is written in the Finnish constitution "chapter 2 section 10"<fnref n="9" />. According to section 10 "The right to privacy" everyone has the right of privacy in their home, life and honour. It even states that data protection is more detailed in another act which was the "Personal Data Act"<fnref n="10" /> but now is replaced by the GDPR<fnref n="11" />. The General Data Protection Regulations will be further addressed in the next chapter.

**2.1. Personal Data Act (repealed)**

The Personal Data Act in Finnish law was established 1999 and focused on the rights and privacy of Finland's citizens. It was the governing law for data protection in Finland until 1.1.2019 when the act was repealed and the GDPR took over its place as the main law for data protection in Finnish law. The acts objective was to ensure a quality of protection of data, protection of a private life and other basic rights that includes privacy. With quality of data means that anyone who gets access or acquires data must have it quality checked that it is indeed accurate data. Protection of private life was kept in control with chapter 3 of the act prohibiting any processing of sensitive data such as ethnicity, criminal acts, state of health, sexual relation and much more. Some parts of sensitive data could still be published anonymously for research.

The act on the other hand did not protect data that was published or otherwise made public. The Personal Data Act did not either have any special rights of allowing information to be controlled or removed from websites because it only had authority in the Republic of Finland.<fnref n="12" />

<footnote n="6">⁶ Maria, Tzanou, *The fundamental right to data protection: Normative value in the context of counter terrorism surveillance*, Bloomsbury, 2017, P. 13</footnote>

<footnote n="7">⁷ Regulation (EU) of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), 2016/679, Article: 4</footnote>

<footnote n="8">⁸ *Ibidem*, Article: 4</footnote>

<footnote n="9">⁹ *The Constitution of Finland*, 11.6.1999 / 731</footnote>

<footnote n="10">¹⁰ *Personal Data Act*, 1999 / 523</footnote>

<footnote n="11">¹¹ Tomi. Mikkonen, *Perceptions of controllers on EU data protection reform: A Finnish perspective*, 2014, Abstract</footnote>

<footnote n="12">¹² *Personal Data Act*, 1999 / 523</footnote>
## 2.2. Other minor acts about data protection in Finland

The other acts about data protection that supported the Personal Data Act and follows the GDPR are the Act on the Protection of Privacy in Working Life, Information Society Code, and the Act on the Protection of Privacy in Electronic Communications.

The Act of the Protection of Privacy in Working Life's purpose is to ensure that employers take the right measures to secure the data and information of their employees and customers. Information that can be private and thus protected can be for example the emails of the employees which according to the law needs a law-enforced reason for employers to get data about the employees from electronic messages.<fnref n="13" />

The Information Society Code's objective is to ensure the quality and reach of communication services across Finland, to ensure that the communications systems in Finland are confidential and data protected. This doesn't only affect Finnish companies but also larger communications platforms that provide services to Finland.<fnref n="14" />

The Act on the Protection of Privacy in Electronic Communications objective is to have all electronic communications data and privacy sufficiently protected.<fnref n="15" />

# 3. THE EUROPEAN UNION'S DATA PROTECTION LAW

## 3.1. What is the GDPR?

The General Data Protection Regulation or GDPR for short is the EU regulation for processing data, free movement of data and privacy. It was introduced in May of 2016 and brought into effect may of 2018.<fnref n="16" /> All data that is gathered from European Union citizens have to be according to the GDPR and the persons data who is being collected has to be aware of it.<fnref n="17" /> Addition to being aware of collection all citizens of the European Union must have the possibility of control of their data and have rights that allow them to edit their own data.<fnref n="18" /> There are still some restriction to this scope such as any data outside of EU law is not protected by the GDPR such as criminal activity.<fnref n="19" />

The GDPR was introduced seemingly in a good time when big data collectors such as google are making headlines with debatable unethical data collection.<fnref n="20" /> You could say that the GDPR has brought the concept of consent to the web and thus making it more user friendly in a corporate world.

## 3.2. How data privacy has evolved in the EU

Before the GDPR there was hardly any regulation in the EU on how websites on the internet should try to protect and defend users from data miners.<fnref n="21" /> Data privacy was enacted and brought up with Article 8 of the European Union charter of fundamental rights. But there wasn't really any hard

<footnote n="13">¹³ *Act on the Protection of Privacy in Working Life*, 2004 / 759</footnote>

<footnote n="14">¹⁴ *Information Society Code*, 2014 / 917</footnote>

<footnote n="15">¹⁵ *Act on the Protection of Privacy in Electronic Communications*, 2004 / 516 – 2011 / 365</footnote>

<footnote n="16">¹⁶ Regulation (EU) of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), 2016/679, Article: 4</footnote>

<footnote n="17">¹⁷ *Ibidem*, Article: 13</footnote>

<footnote n="18">¹⁸ *Ibidem*, Article: 16</footnote>

<footnote n="19">¹⁹ *Ibidem*, Article: 23</footnote>

<footnote n="20">²⁰URL: https://www.independent.co.uk/news/world/americas/google-location-data-privacy-android-sundar-pichai-a8490636.html Accessed: 20.4.2019</footnote>

<footnote n="21">²¹ Maria, Tzanou, *The fundamental right to data protection: Normative value in the context of counter terrorism surveillance*, Bloomsbury, 2017, P. 1</footnote>
enforcing of keeping user's information secure.<fnref n="22" /> This has created great deal of hardship in cases where data privacy wasn't recognised properly because of the lack of laws.<fnref n="23" /> The GDPR which became enforceable in 2018 made a way for all citizens of the EU and EEA to in principle have moderate control over data.<fnref n="24" /> This brought the possibility to control remove or revoke one owns data.<fnref n="25" />

### 3.3. The rights of the data subjects

With the GDPR there came a lot of new rights and obligation for the citizens of the European Union such as the knowledge of collection of information. Thus, making it easier to choose who can access data the user inputs on the web. The following are some rights that the GDPR secures:

The right to know where the information is used. This right gives the citizens of EU the possibility to see what information websites for example uses, who is collecting it and for what purpose.<fnref n="26" />

The right to rectification or in other words have uncompleted data corrected. This allows anyone to either correct or complete data that anyone has collected on data subjects.<fnref n="27" />

An important right that has caught the eye of many is the right to erasure or “the right to be forgotten” as many calls it. It allows any EU citizen to have their data removed from any data bank or website. It is crucial for the development of a free and protected internet and society to have the possibility to remove unwanted and unimportant information from the internet.<fnref n="28" />

The right of restricting of processing gives the users the right to restrict any data gathered from processing that data. This can be useful in cases where a collector of data may have used data unlawfully and thus the data subject can restrict it from further usage.<fnref n="29" />

Right to data portability is the right to get the data in a foreseeably usable format and to be able to export data from one data source to another.<fnref n="30" />

Right to object of processing or handling of a data subjects' information. Anyone has the right to at any time object if they see that the data is handled improperly.<fnref n="31" />

### 3.4. Obligations of the collectors

Collectors of data are now obliged to follow all the rules and obligations that the GDPR sets for them or face consequences such as big sanctions.<fnref n="32" /> Some obligations that collectors must follow are notifying the user in cases where data is being erased or restricted from the user and full transparency of what data they have already collected.

<footnote n="22">²² *Ibidem*</footnote>

<footnote n="23">²³ Kerikmäe, T., Müürsepp, P., Särav, S., & Chochia, A. (2017). Ethical lawyer or moral computer—historical and contemporary discourse on incredulity between the human and a machine. *Вісник Національної академії правових наук України*, (2), 27-42.</footnote>

<footnote n="24">²⁴ Jan, Philipp, Albrecht, *EDPL: How the GDPR will change the world*, 2016, P.287</footnote>

<footnote n="25">²⁵ Regulation (EU) of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), 2016/679, Chapter: 3</footnote>

<footnote n="26">²⁶ *Ibidem*, Article: 13</footnote>

<footnote n="27">²⁷ *Ibidem*, Article: 16</footnote>

<footnote n="28">²⁸ *Ibidem*, Article: 17</footnote>

<footnote n="29">²⁹ *Ibidem*, Article: 18</footnote>

<footnote n="30">³⁰ *Ibidem*, Article: 20</footnote>

<footnote n="31">³¹ *Ibidem*, Article: 21</footnote>

<footnote n="32">³² Jan, Philipp, Albrecht, *EDPL: How the GDPR will change the world?*, 2016, P. 287</footnote>
In case of a breach in a collector's security and data subject's privacy the company or collector has 72 hours to notify the data subjects of the breach before charges can be pressed and sanctions given.<fnref n="33" />

### 4. DIFFERENCES BETWEEN FINNISH LAWS AND THE GDPR

The GDPR brought a new perspective to what of all individuals data is being stored and how we as EU citizens can improve our knowledge on how to control it. New information of how everyone can improve privacy is important and interesting to follow its development in all nations. Now because of the GDPR the citizens of Finland have a much broader protection of all information. Before the GDPR Finland used the Personal Data Act which had very well thought rights such as keeping an equal level of protection even outside Finnish borders. But with the introduction of the GDPR this law wasn't needed because the whole European Union must have the same level of protection for all data. The main reason for its repeal was the fact that it was quite old and did not cover the new technologies and messaging services that have been invented and thus had to be used in quite broad terms.

The biggest and newest difference are the new rights and specifically the right to be forgotten. Before the GDPR there was nothing written in the Personal Data Act about a method in Finland on how to assure that your information has been deleted from a website or data source. But now thanks to the GDPR you have it written in law and all companies that function inside of the European Union must follow these regulations.

The Finnish laws regulated the quality and data that could be collected. But there was not really any sanction for collectors that used their data subjects information without their knowledge or consent. The GDPR solved this problem by introducing strict rules to collectors on what they can do with the data they acquire. Transparency of data is a concept that is very important in a democracy. It is crucial to have information available to all citizens about the states involvement in different subjects, which is why transparency in a state is helpful so that everyone understand what is going on. The citizens must also have transparency on what is happening with their own data which is why the GDPR offers full responsibility to the collectors to keep the data protected and safe.<fnref n="34" /> The Finnish regulations do offer through the Information society code<fnref n="35" /> a way to ensure a quality of data collected and that they follow certain rules. But not nearly as closely as the General Data Protection Regulation does.

### 5. CASE: COLLECTING AND DISTRIBUTING OF PERSONAL- AND TAX INFORMATION

In the case Satakunnan Markkinapörssi Oy and Satamedia Oy there was collection of tax information and personal information of about 1 million citizens in Finland.<fnref n="36" /> The reason for the case being controversial was that Satakunnan Markkinapörssi Oy and Satamedia Oy used means of text messages for people to find out others tax information. This goes against violation of the Finnish

<footnote n="33">³³ Regulation (EU) of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), 2016/679, Article: 33</footnote>

<footnote n="34">³⁴ Michelle. Goddard, *The EU General Data Protection Regulation: European regulation that has a global impact*, 2017, Core Privacy Principles</footnote>

<footnote n="35">³⁵ *Information Society Code*, 2014 / 917</footnote>

<footnote n="36">³⁶ *Helsingin hallinto-oikeues*, KHO: 05/0839/2 29.9.2005</footnote>
constitution chapter 2 section 10, and the old data protection law the Personal Data Act 2 §. The dispute was covered in Finland at first and went through many courts before going to the supreme court and even the Court of Justice of the European Union. The problem was the interpretation of data protection and privacy laws. Finland did not have a clear enough data act in the dispute of sending personal information through text messages and tax information being publicised by a corporation.

If the case would be tried under the General Data protection Regulations today it would probably had taken another turn because of a more direct and modern regulation. Satakunnan Markkinapörssi Oy and Satamedia Oy should have according to the GDPR firstly asked consent for the collection of this data that they had acquired and were going to use for personal gain. It could plausibly even be the only needed requirement for the court. Secondly according to the GDPR the usage of a data subjects' information must be disclosed to them. In this case it should have been disclosed to all data subjects about the tax information and personal information being distributed through the text messages.

Speculations aside, the problem with the case is that there was not sufficient enough regulation on what some one can do with the data they collect. It is so easy to just ignore any data that is on yourself in the world before some one uses it in a way that you do not agree with.

## 6. OPINIONS

The General Data Protection Regulation is a welcoming new breath of air towards an old system that was not developed for the future but seems hastily put together for the time. To determine what counts as personal data and to determine who and how it is protected is what the GDPR brought to the citizens of Finland. Even though the other Finnish data protection laws are in effect and are there to support the GDPR and keep some separate standards outside of the personal data department. Should Finland be concerned that Finland doesn't have their own personal data act? The data regulation brought by the EU is a lot more working in a wide range. Privacy is a big subject in the world today and many citizens of the European union up to 69% are worried that the data that is gathered on them is used for other purposes than disclosed of, in a survey done in 2017³⁷. This is a big concern indeed but the GDPR that was in effect since 2018 is here to eliminate that concern by making harder regulation on data collectors.

The possibility of withholding or not allowing data to different collectors could still be a variable that we have to figure out. Possibilities of the effects it has are quite broad and there are a lot that must be considering. Examples could be not enough data for surveys or research to be made, but it looks like a farfetched possibility now.

As mentioned before in case, Everyone should become more aware of the data that is on them online or anywhere really. No one cares about data that they just don't know exist, but when that data comes forward its usually really unsettling. The case talked about that information of over 1 million Finnish citizens were used against their will and without them knowingly selling that information as a service.<fnref n="38" />

<footnote n="37">³⁷ Vasilik. D, Konstantinos. A, Michalis. P, Haralambos. M, *A Metamodel for GDPR-based Privacy Level Agreements*, 2017, P. 1</footnote>

<footnote n="38">³⁸ *Helsingin hallinto-oikeues*, KHO: 05/0839/2 29.9.2005</footnote>
**6.1. Introduction of data protection laws a possible gateway for even stricter laws**

To take as an example the citizens of Finland. With the introduction of the GDPR they can have control of the data that they produce whilst online, texting and writing. Will this new possibility of data control bring a need for more control over what can be done with personal data or looser restrictions for collectors of data on what can be collected? At the moment data should be collected only for "specific, explicit and legitimate purposes"<fnref n="39" /> furthermore it should be accurate. But how does a individual know that this is being enforced and how can anyone check up on this? Some stricter features that could be a modern way of regulating data protection could be a way for collectors to show all the time what data that is being collected and the data subjects having full control of what can be submitted and what not. Even though the GDPR is in full action there are surely some that still don't follow it as they should. The future will surely hold methods for easily viewing all data traffic and information collected and a possibility for citizens to have full control.

**SUMMARY**

Broadly translated we can conclude how data protection in Finland has improved the rights of the citizens by allowing new rights and regulation to come in act. The conclusion would at first glance seem quite simple but it is not. The Finnish citizens had quite well written laws on data protection and security. But the General Data Protection Regulation just upgraded all the necessary regulation to a much more modern and data subject friendly standpoint. The GDPR with its improvements in individual control of a data subjects own data such as the right to be forgotten or the right to know what happens to ones data is very crucial in shaping a democracy with enough privacy. Even private matters that are collected has more regulations on it now more than ever. The difference between privacy and data protection is that privacy is the right for a private life whilst data protection is the right to have your own data protected, erased and controlled.<fnref n="40" /> The old Finnish data law was quite similar but the GDPR is so much more modern for a technologically advanced future.

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<footnote n="39">³⁹ Maria, Tzanou, *The fundamental right to data protection: Normative value in the context of counter terrorism surveillance*, Bloomsbury, 2017, P.13</footnote>

<footnote n="40">⁴⁰ Maria, Tzanou, *The fundamental right to data protection: Normative value in the context of counter terrorism surveillance*, Bloomsbury, 2017, P. 28</footnote>
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39. Maria, Tzanou, *The fundamental right to data protection: Normative value in the context of counter terrorism surveillance*, Bloomsbury, 2017, P.13

40. Maria, Tzanou, *The fundamental right to data protection: Normative value in the context of counter terrorism surveillance*, Bloomsbury, 2017, P. 28.
# The Legality of Active Euthanasia in Relation to Human Rights and Legal Approaches to Active Euthanasia in Different States

PIHLA HELMINEN

TALLINN UNIVERSITY OF TECHNOLOGY, ESTONIA

PIHELM@TALTECH.EE

**Abstract:** This paper has its focus on the relation between active euthanasia (AE) and human rights. Additionally, it researches the differences between the approaches of different states on the justification of AE. The two most significant sources, which are interpreted in this paper, are the European Convention on Human Rights (ECHR) and the two cases of the European Court of Human Rights (ECtHR).

The paper attempts to provide solutions to an issue regarding the relation between AE and human rights as the ECHR values the life of a human very high but, however, does not directly prohibit AE. Furthermore, the paper observes whether justification for AE could be deduced from other human rights.

The conclusion that might be drawn from this study is that there may be some human rights, which could potentially provide the justification for AE. However, as there exists also rights, which may be considered as opposite to the justification, it might be stated that deriving the justification for AE from human rights would be difficult as well as time-consuming.

**Keywords:** Active euthanasia, human rights, justification, sources

## INTRODUCTION

The legality of AE has been and is a multidimensional as well as a controversial topic that has led to debates and discussions among different states and citizens.<fnref n="1" /> In addition, the relation between the legality of AE and human rights is an issue that has as well been much discussed, and AE has received both support and opposition. To refer to the human rights perspective, there is no specific right to euthanasia, such as a right to die, codified in the ECHR. On the contrary, the ECHR includes Article 2 that guarantees an individual's right to life. In addition, there are differences between states' juridical approaches to AE within the European Union, and thus the laws of different states on euthanasia may vary from one another. For example, where few states in the European Union, such as the Netherlands and Belgium have legalized AE, Finland has decided to illegalize it like most of the other states of the European Union.<fnref n="2" />

There are some variable definitions for active euthanasia. However, in general, AE occurs when a physician intentionally causes the death of a patient by giving some lethal substances to a patient upon his or her request that must be based on certain conditions.<fnref n="3" />

In this research, I will focus on the relation between the legality of AE and human rights perspective, and hence a considerable part of the research is based on the two significant cases that are related to euthanasia, Pretty v. the United Kingdom (the UK) and Haas v. Switzerland in which

<footnote n="1">¹ Bamgbose, O. Euthanasia: Another Face of Murder. *International Journal of Offender Therapy and Comparative Criminology*. Vol. 48. No.1. 2004, p 111. Accessible: https://doi.org/10.1177/0306624X03256662</footnote>

<footnote n="2">² Korkee, E. *Eutanasia sallittu vain neljässä maassa – Kuolinapu jakaa lääkäreiden mielipiteitä Suomessa*. Aamulehti. 2016. Accessible: https://www.aamulehti.fi/kotimaa/eutanasia-sallittu-vain-neljassa-maassa-kuolinapu-jakaa-laakareiden-mielipiteita-suomessa-23983200</footnote>

<footnote n="3">³ Lääkärin Etiikka. *Elämän Loppu*. Eds. Samuli Saarni, Mervi Kattelus, Vuokko Nummi. Vol.7. Helsinki: Suomen Lääkäriliitto, 2013, p. 159</footnote>
human rights perceptive is strongly involved as the different Articles of ECHR are interpreted. I will
also compare legal approaches to AE in the Netherlands, Belgium and Finland in order to give a
concrete example of the different approaches to AE occurring at the moment. To further specify, my
research is based on the following questions. Could active euthanasia get justification from the
human rights perspective by deriving the justification from other human rights that already exist in
the treaties, for example, in the European Convention on Human Rights as there is no direct right
that prohibits or allows AE exiting? How do the legal approaches to AE differ in the Netherlands,
Belgium, and Finland?

# 1. THE RELATION BETWEEN LEGALITY OF ACTIVE EUTHANASIA AND HUMAN RIGHTS

As written above, the relation between AE and human rights can be considered as a complex
topic, for instance, as there is no direct mention or a right that directly prohibits or allows AE in the
ECHR. However, the research will focus on the possibility to approach the ECHR, in a way that
justification for AE would be derived from other human rights that are already acknowledged and
existed, such as a right to life, a prohibition of torture, a right to respect for private and family life
and a prohibition of discrimination, which are all codified in the ECHR in the Section 1 as Articles
2, 3, 8 and 14. The ECtHR has applied those aforementioned rights in relation to euthanasia and
assisted suicide in its earlier case law and, the two significant cases by ECtHR are Pretty v. UK and
Haas v. Switzerland.<fnref n="4" /> In addition to the ECtHR, the United Nations Human Rights Committee
(UNHRC) has also taken a position on euthanasia. Additionally, when pondering the legality of
active euthanasia in relation to human dignity, human self-determination might be involved, which
usually can be referred to people's right to decide on their own lives.<fnref n="5" />

1.1. *Pretty v. the UK – Right to life, prohibition of discrimination, right to respect for private and family life, prohibition of torture*

The case of Pretty v. the UK is significant in relation to euthanasia even though the case was
mainly about assisted suicide.<fnref n="6" /> The decision of the ECtHR can be considered to be based on common
law jurisdiction.<fnref n="7" /> Mrs. Pretty, the applicant, was suffering from terminal motor neuron disease and
eventually, she died in 2002.<fnref n="8" /> Before her death, the disease had paralyzed her from her neck down,
and hence the applicant asked for the Director of Public Prosecutions (DDP) to let her husband, who
agreed with the applicant, to assist her to commit suicide without the husband being subjected to
criminal liability, as the applicant herself wasn't physically able to commit suicide without any
external help.<fnref n="9" /> DDP refused on the request, and the applicant appealed for DDP's decision but the
Divisional Court and later the House of Lords refused the applicant's application.<fnref n="10" /> Thus, the case

<footnote n="4">⁴ Rietiker, D. From Prevention to Facilitation-Suicide in the Jurisprudence of the ECtHR in the light of the Recent Haas v. Switzerland Judgment. *Harvard Human Rights Journal*. Vol. 25. 2012, p 86.</footnote>

<footnote n="5">⁵ Leenen H. J. J. Dying with Dignity: Developments in the Field of Euthanasia in the Netherlands. *Medicine and Law*. Vol. 8. 1989, p 517. Accessible: https://heinonline.org/HOL/P?h=hein.journals/mlv8&i=527</footnote>

<footnote n="6">⁶ Cherkassky, L. *Text, Cases and Materials on Medical Law*. Pearson Education Limited, 2015, p 730.</footnote>

<footnote n="7">⁷ Nugent, J. Walking into the Sea of Legal Fiction: An Examination of the European Court of Human Rights, Pretty v. United Kingdom and the Universal Right to Die. *Journal of Transnational Law & Policy* Vol. 13. No. 1. 2003, p 185</footnote>

<footnote n="8">⁸ Millns, S. Death, Dignity and Discrimination: The Case of Pretty v. United Kingdom 3. No.10. *German Law Journal*. Cambridge University Press. 2002. Accessible: https://pdfs.semanticscholar.org/3fdb/7e651bfa7b823459629052eb4188ac54806e.pdf</footnote>

<footnote n="9">⁹ Pretty v. the United Kingdom, para. 10. no. 2346/02. ECHR 2002</footnote>

<footnote n="10">¹⁰ *Ibid*., para. 11-14</footnote>
was brought to the ECHR by the applicant who argued that the DDP with its decision had violated
her certain human rights.

**1.1.1. Pretty v. the UK – Article 2 – Right to life**

The applicant argued that a right to life, guaranteed by Article 2 of ECHR, protects not only an individual's right to life but an individual's decision on choosing whether to live or die and that a right to die could be derived from Article 2, and consequently Article 2 does oblige a state to guarantee an individual's right to die as well as a right to life.<fnref n="11" /> On the contrary, the UK's Government, the respondent, argued that Article 2 may establish positive obligations for a state, and hence to safeguard an individual's life.<fnref n="12" /> The applicant argued that her right to life was violated by DDP. According to the ECtHR's statement regarding the argument of the applicant, some of the Articles of the ECHR may include the opposite to the right, but that does not apply to Article 2, and hence a right to die could not be derived from the right to life.<fnref n="13" /> In addition, the ECtHR confirmed the respondent's position on Article 2 and held that Article 2 also obliges a state to safeguard and secure an individual's life even from an individual himself.<fnref n="14" />

**1.1.2. Pretty v. the UK – Article 3 and Article 14 – Prohibition of torture and prohibition of discrimination**

According to the applicant, the illness was causing her such terrible suffering that was considered as derogatory treatment under the prohibition of torture, and even though, the state was not directly responsible from such treatment, it still had a positive obligation to safeguard individuals from such treatment.<fnref n="15" /> On contrary to the applicant's argument, the respondent argued that Article 3 was not to be applied in the case as the prohibition of torture was mainly contained of negative obligations, not positive. Positive obligations were found only in three situations that, however, were not met in the case.<fnref n="16" /> The ECHR has stated that the prohibition of torture is one of the most fundamental and essential rights of the ECHR and considered as one of the core values of democratic societies. Additionally, the state's positive obligations to protect individuals from inhuman or degrading treatment are to be found in the previous legal praxis of ECtHR.<fnref n="17" /> The ECtHR's case law has as well defined the “treatment” to mean more specifically “ill-treatment” and specified when the treatment of an individual may be covered by Article 3.<fnref n="18" /> For example, ECtHR has stated the following in its previous case law: “Where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterized as degrading and also fall within the prohibition of Article 3.”<fnref n="19" /> However, ECtHR held that in the case of Pretty v. the UK, the state has provided adequate treatment for the applicant and has not caused any “ill-treatment” for her, nor cannot the positive obligation be found to arise from Article 3 and, hence Article 3 has not been breached.<fnref n="20" />

Additionally, the applicant invoked to the prohibition of discrimination, Article 14, by arguing
that she was treated in the same way as those who were capable of committing suicide, and hence

<footnote n="11">¹¹ *Ibid.*, para. 35</footnote>

<footnote n="12">¹² *Ibid.*, para. 36</footnote>

<footnote n="13">¹³ *Ibid.*, para. 39, 40</footnote>

<footnote n="14">¹⁴ *Ibid.*, para. 38</footnote>

<footnote n="15">¹⁵ *Ibid.*, para. 44</footnote>

<footnote n="16">¹⁶ *Ibid.*, para. 47</footnote>

<footnote n="17">¹⁷ *Ibid.*, para. 51</footnote>

<footnote n="18">¹⁸ *Ibid.*, para. 52</footnote>

<footnote n="19">¹⁹ *Ibid.*, para. 52</footnote>

<footnote n="20">²⁰ *Ibid.*, para. 56</footnote>
was exposed to discrimination.<fnref n="21" /> The respondent, however, argued that Article 14 was not to be applied, as the situation of the applicant was different than the situation of those who were capable of committing suicide without any external help. ECtHR stated that the state could be committed to discrimination in a situation where people in different positions are treated differently and, in a situation, where people in the same position are treated in a similar way and held that Articles 8 and 14 were engaged together as well.<fnref n="22" /> Thus, it held that there occurred no violation of Article 14.<fnref n="23" />

### 1.1.3. Pretty v. the UK – Article 8 – Right to respect for private and family life

The applicant argued that based on a right to respect for private and family life, he has a right to decide on the time and the ways of his death, and a state cannot restrict the right by limiting an individual's right to die with the assistance of another individual.<fnref n="24" /> The respondent stated that a state has a right to limit the actions of a person that may violate her even if Article 8 does contain a right to die.<fnref n="25" /> ECtHR has not directly denied that the prohibition of dying with assistance would violate an individual's right to respect for private and family life. However, it held that no violation has occurred in that specific case.<fnref n="26" />

### 1.2. Haas v. Switzerland – Article 8 – Right to respect for private and family life

The case of Haas v. Switzerland can be considered as a significant case in relation to euthanasia and the interpretation of Article 8 of the ECHR. Haas, the applicant, was a national of Switzerland and suffered from bipolar affective disorder and he was no longer able to live a life that would be considered as valuable, and thus he tried to commit suicide for a couple of times but failed. Eventually, he asked for several physicians to prescribe him a fatal amount of lethal medicine, called sodium pentobarbital, but his attempt was no successful. The applicant asked for different state authorities to grant him a permit of exception, but no authority granted such a permit.<fnref n="27" /> Authorities stated, that Article 8 doesn't impose a positive obligation for a state to offer euthanasia the conditions that guarantee painless and definite death.<fnref n="28" /> Hence, the applicant appealed to the Federal Court who rejected the applicant's appeals based on the rationale of the authorities. Swiss penal code, Article 115, permits assisted suicide only for unselfish reasons.<fnref n="29" />

The applicant argued that the respondent had violated Article 8 by disallowing the applicant to decide on how and when he wants to die by not providing lethal sodium pentobarbital for him, and stated that taking the sodium pentobarbital was the only way to guarantee dignified, quick and painless suicide.<fnref n="30" /> The respondent argued that even though Article 8 could be considered to confer a right for an individual to decide on how and when he wants to die, a violation could be justified on the grounds of Article 2. The ECtHR held that the respondent had not violated Article 8 even though

<footnote n="21">²¹ *Ibid.*, para. 85</footnote>

<footnote n="22">²² *Ibid.*, para. 89</footnote>

<footnote n="23">²³ *Ibid.*, para. 90</footnote>

<footnote n="24">²⁴ *Ibid.*, para. 58</footnote>

<footnote n="25">²⁵ *Ibid.*, para. 60</footnote>

<footnote n="26">²⁶ *Ibid.*, para. 78</footnote>

<footnote n="27">²⁷ Harmon, S.H. and Sethi, N. Preserving life and facilitating death: What role for government after Haas v. Switzerland. *European Journal of Health Journal*. Vol. 18. No. 4. 2011, p 356. Accessible: https://heinonline.org/HOL/P?h=hein.journals/eurjhlb18&i=365</footnote>

<footnote n="28">²⁸ Haas v. Switzerland, para. 10, no. 31322/07. ECHR 2011.</footnote>

<footnote n="29">²⁹ Gamondi, C., Pott, M. and Payne, S. Families' experiences with patients who died after assisted suicide: a retrospective interview study in southern Switzerland. *Annals of oncology*. Vol. 24. No. 6. 2013, p 1640. Accessible: https://academic.oup.com/annonc/article/24/6/1639/180484</footnote>

<footnote n="30">³⁰ Haas v. Switzerland, para. 33, no. 31322/07. ECHR 2011.</footnote>
Article 8 could grant a right for an individual to decide on their deaths and lives and it also referred to the case of Pretty v. the UK by stating that Article 2 doesn't have an opposite right – a right to die.<fnref n="31" /> Eventually, the reasoning for the decision was based on Article 2 which was prioritized high as it guarantees a right to life.

**1.3. Arguments about the human rights in relation to AE based on the cases**

It can be argued that the applications and meanings of Articles 2 and 8, a right to life and a right to respect for private and family life, have received the most significant importance and observations in relation to AE. In the cases of Pretty v. the United Kingdom and Haas v. Switzerland, neither of the applicants reached the desired decision by the ECtHR as it held in both cases that the respondents had not acted against the applicants' rights, and thus there occurred no violations of the applicants' rights. However, especially the case of Pretty v. the UK can be considered as a significant precedent on euthanasia as it provides great arguments and interpretations of certain human rights in relation to euthanasia.

**1.3.1. Arguments that can be stated based on the case of Pretty v. the UK**

In the case of Pretty v. the UK, for example, Articles 2, 3, 8 and 14 were analyzed and taken into account by the parties and the ECtHR. As said above, the main emphasis can be seen to be placed on Articles 2 and 8 and their reciprocal relation, and hence they will get the greatest attention and observation in this chapter. However, firstly, Articles 3 and 14 in relation to AE are taken into consideration.

In general, the purpose of Article 3, that is considered as one of the most fundamental for individuals, in relation to AE in a situation where an individual is suffering from a terminal disease that causes horrible pain, could be thought of as quite simple – Article 3 should protect an individual from such a situation. However, the ruling of the ECtHR in the case of Pretty v. the UK, has shown that the relation between euthanasia or assisted suicide and Article 3 is not that simple nor straightforward, and it can be argued and stated that Article 3 cannot directly or automatically grant an acceptance or justification for active euthanasia either. In addition, it must be noticed that the ECHR and its Articles should be interpreted as a whole and not to give too much emphasis on one specific right by ignoring others. Based on the decision of the ECtHR considering Article 14, the right to euthanasia cannot probably be directly or automatically derived from the prohibition of discrimination even in a situation where individuals in different positions are not treated differently.

The main emphasis is on Articles 2 and 8. In the case, the ECtHR verified that even though some of the rights can have an opposite right in the ECHR, but Article 2 is not such a right that could have the opposite meaning – a right to die. The issue that might arise from the interpretation is that how some rights can be granted the opposite right and others cannot be granted such a right. Such an interpretation could, in general, be considered as questionable as it in a way puts some rights in an unequal position depending on if an opposite right is to be granted. However, when analyzing the position of ECtHR on euthanasia, the right on active euthanasia cannot be derived from Article 2 as it cannot be considered as a right that has the opposite right to its original meaning as well. The deviant position on justification on euthanasia is presented by Article 8 and its interpretation on AE. According to the interpretation of the ECtHR, Article 8 can be considered to grant a right to an individual to decide how and when he or she wants to die and face death. However, in the case, the ECtHR held that there occurred no breach of Article 8 as other rights of the ECHR must be taken

<footnote n="31">³¹*Ibid*., para. 50,61</footnote>
into account and one right cannot be too much emphasized. However, the ruling and the decision
show that it can be possible to derive justification on AE from Article 8 of ECHR.

**1.3.2. Arguments that can be made based on the case of Haas v. Switzerland**

The case of Haas v. Switzerland was mainly focused on Articles 2 and 8. Even though the decision of the ECtHR was not favorable to the applicant, the interpretation of Article 8 could be considered as compliant and approbative in relation to AE as Article 8 was applied to grant a right for an individual to decide on his or her death and life. This interpretation of the ECtHR shows that there might occur a possibility to deduce justification on active euthanasia from one of the human rights that is acknowledged in the ECHR, a right to respect for private and family life, even though the other human rights, such as a right to life, must be also taken into account when analyzing the possibility of justification for AE in relation to human rights. The case of Haas v. Switzerland in some way confirmed that generally Articles and rights of human rights treaties, such as Articles and rights of the ECHR, are to be applied together as a whole. However, in this case, the ECtHR can be considered to have verified the position of Article 2 by, a right to life, by valuing it very high as it could be considered to give priority to Article in question over Article 8. Based on the decision of the ECtHR, it can be stated that euthanasia and the possible deaths of individuals are taken seriously and approached carefully and thoughtfully from different perspectives.

**1.4. The United Nations Human Rights Committee on Euthanasia**

As stated above UNHRC has also taken a position on euthanasia. To specify the
aforementioned statement, UNHRC has interpreted an individual's right to life, which is guaranteed
by the International Covenant on Civil and Political Rights (ICCPR), in its draft called General
Comment No. 36. Based on the draft, UNHRC can in some way be considered to support legalizing
euthanasia and assisted suicide as the draft provides the following: "States parties [may allow]
[should not prevent] medical professionals to provide medical treatment or the medical means in
order to facilitate the termination of life of [catastrophically] afflicted adults, such as the mortally
wounded or terminally ill, who experience severe physical or mental pain and suffering and wish to
die with dignity."<fnref n="32" />

However, it should be noticed that the interpretation of the UNHRC concerns the ICCPR and not the ECHR. Nonetheless, as it can be seen the ICCPR also guarantees some and certain human rights, such as a right to life. The approach and the interpretation of UNHRC can be considered in some parts to refer to the acceptance of performing euthanasia or at least its approach can be seen as referring to the neutral position on euthanasia. In addition, the statement can as well be considered to provide juridical protection for states to legalize and allow performing active euthanasia, and at least for those states that have already legalized it, such as the Netherlands and Belgium. The position and approach of the UNHRC towards euthanasia expresses that the justification for euthanasia may be deduced from other human rights. The UNHRC also mentions dying with dignity, that is usually taken into account and included into discussions on euthanasia.

<footnote n="32">³² Human Rights Committee. 10/2018. General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life. Para. 10. Accessible: https://www.ohchr.org/Documents/HRBodies/CCPR/GCArticle6/GCArticle6_EN.pdf</footnote>
## 2. LEGAL APPROACHES TO ACTIVE EUTHANASIA IN THE NETHERLANDS, BELGIUM AND FINLAND

As said above, the legal approaches and laws on euthanasia and to specify, on AE, in Netherlands and Belgium are seemingly different than in Finland, as both the Netherlands and Belgium have legalized active euthanasia not only for adults but for minors as well, and Finland itself has made euthanasia illegal for everyone. Thus, there occurs a variation between states' legal approaches and laws.

### 2.1. Current legal situations in the states aforementioned

The Netherlands enacted a law on euthanasia, Termination of Life on Request and Assisted Suicide Act, that came into force on 1st of April 2002.33 It permits performing euthanasia by a physician under specific conditions and due care, such as a voluntary and frequent request by a patient and a mortal illness that causes unbearable pain, and if such conditions are not obeyed by a physician, he or she might be prosecuted under Dutch Penal Code.34 In addition, a child who has reached the age of 12 can require euthanasia based on her or his will under strict circumstances.35 Belgium as well has legalized AE under certain circumstances, and hence the law on legalizing euthanasia came into effect on the 23rd of September 2002, permitting euthanasia and verifying that it is not criminalized when a physician obeys perquisites and the conditions based on the law.36 In 2014, Belgium removed the age limit of euthanasia and legalized euthanasia for the children suffering from terminal illnesses under strict conditions.37 On contrary to the laws of the Netherlands and Belgium, Finland has no law on euthanasia. However, AE is illegal in Finland on the grounds of the Criminal Act and Act on the Status and Rights of Patients, and hence ending a patient's life by a physician or another assistant is considered as killing or homicide and is strictly punishable.38 Euthanasia cannot legally be performed for adults or minors. Yet, euthanasia has been debated topic also in Finland. In 2016, the citizens' initiative on euthanasia got over 60 000 supporters and proceeded to the Parliament. Eventually, the Parliament voted for the rejection.39

### 2.2. Arguments on the differences occurring in the Netherlands, Belgium and Finland

Based on the laws of the Netherlands, Belgium and Finland, euthanasia and active euthanasia can be treated very differently between different states within the EU. As it is written above, where the laws of the Netherlands and Belgium permit performing AE by a physician, the legislation of Finland considers performing the treatment as a criminal act, and thus punishes those who commit it. However, the progress of the initiative to the Parliament has shown that there is also a genuine

<footnote n="33">33 Buruma, Y. Dutch tolerance: On drugs, prostitution, and euthanasia. *Crime and Justice*. Vol. 35. No. 1. 2007, p 99</footnote>

<footnote n="34">34 Janssen A. The New Regulation of Voluntary Euthanasia and Medically Assisted Suicide in the Netherlands. *International Journal of Law, Policy and the Family*. Vol. 16. No. 2. 2002, p 260. Accessible: https://heinonline.org/HOL/P?h=hein.journals/intlpf16&i=268</footnote>

<footnote n="35">35 Bovens L. Child euthanasia: should we just not talk about it? *Journal of Medical Ethics*. BMJ. Vol. 41. No. 8. 2015, p 634. Accessible: https://www.jstor.org/stable/44014168</footnote>

<footnote n="36">36 Burkhardt S., La Harpe R., Harding T-W., Sobel J. Euthanasia and Assisted Suicide: Comparison of legal aspects in Switzerland and other countries. *Med. Sci. Law*. Vol. 46. No. 4. 2006, pp. 290-291. Accessible: https://heinonline.org/HOL/P?h=hein.journals/mdsclw46&i=287</footnote>

<footnote n="37">37 Bovens L., *supra nota* 35, p. 631</footnote>

<footnote n="38">38 Lääkärin Etiikka. *Elämän Loppu*. (2013), *supra nota* 3, p. 160</footnote>

<footnote n="39">39 Vartiainen, N. (2018) Eduskunta äänesti eutanasian sallimisen kumoon. Helsingin Sanomat. 3.5.2018. Accessible: https://www.hs.fi/politiikka/art-2000005665880.html</footnote>
willingness among some citizens of Finland to legalize euthanasia, and hence to make changes to the current legislation that prohibits euthanasia. It can be observed that the mindsets on legalizing euthanasia between different states can be very similar even though the laws might deviate considerably from each other. Juridical approaches towards AE are hence completely different when comparing the Netherlands and Belgium to Finland. However, the treatment, even though it's legalized in the Netherlands and Belgium, is not performed lightly or easily, yet it is thoroughly considered as there are the possibility and risk of prosecution under the law. In addition, in the Netherlands and Belgium euthanasia is allowed to perform also to minors, which seemingly places minors to an equivalent position with adults. This decision can be considered to emphasize a mindset that despite the individual's young age and minority if a minor is suffering from a terminal illness that causes unbearable pain he or she has an equal right and possibility to euthanasia under the laws of the Netherlands and Belgium. Therefore, it can be argued that in some states AE is also a right that is not dependent on an individual's age.

## CONCLUSION

As I have already emphasized earlier in this research, the situation with active euthanasia and its legalization in relation to human rights is not unequivocal, and it truly has been, and is a controversial topic, on which people and states' have taken a different and varied approaches as some people and states are for it and others against it. In addition, the position of the ECHR does not really clarify the situation as the ECHR does not include a clear prohibition or justification for active euthanasia, nor does it directly provide a right to death, contrary to a right to life that is guaranteed by Article 2.

The two cases of Pretty v. the United Kingdom and Haas v. Switzerland have both included significant legal argumentation on assisted suicide and euthanasia as well as clarified and strengthened the position of the ECtHR. Thus, they may be considered as two of the most important cases on assisted suicide and euthanasia. The question of whether active euthanasia could receive justification from human rights perspective by deriving the justification from other human rights that already exist in the treaties, for example, form the rights of the ECHR, can be researched by analyzing the abovementioned cases. Based on the decisions and arguments of ECtHR, the justification on active euthanasia cannot be directly or easily deduced from the other human rights and Articles, such as from Articles 2, 3, 8 and 14. The Article 2, a right to life, can be considered as the most significant obstacle to the justification for euthanasia as ECtHR has prioritized and valued it considerably high as it guarantees and secures an individual's life. However, based on the statements of ECtHR, the Article 8, that guarantees a right to respect for private and family life, can be considered as granting a right for an individual to decide on his death as well. Thus, it is basically possible to derive the justification on active euthanasia from Article 8. However, as the rights of ECHR form a whole and must be analyzed together, in general, the justification on AE by deriving it equally from other human rights above, can be considered as difficult and improbable. Additionally, despite that some institutions, referring to the UNHRC, have taken an approving position on euthanasia, the issue of euthanasia remains complex and not straightforward as stated earlier.

As said earlier, active euthanasia is treated totally different in NL and Belgium than in Finland, as the latter has illegalized and criminalized euthanasia by law. However, even though euthanasia is legal for adults and minors in the first two countries mentioned above, there is a possibility for a physician to be prosecuted under the law if he acts against the conditions that are determined by the
law. Thus, it can be concluded that even though active euthanasia is legal in a few countries, it is never performed on light grounds and it requires compliance with the law.

## LIST OF REFERENCES:

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Bamgbose, O. (2004). Euthanasia: Another Face of Murder. – *International Journal of Offender Therapy and Comparative Criminology*. Vol. 48. No. 1, 111-121. Accessible: https://doi.org/10.1177/0306624X03256662

Bovens L. (2015). Child euthanasia: should we just not talk about it? – *Journal of Medical Ethics*. Vol. 41. No. 8, 630-634. BMJ. Accessible: https://www.jstor.org/stable/44014168

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Gamondi, C., Pott, M. and Payne, S. (2013). Families' experiences with patients who died after assisted suicide: a retrospective interview study in southern Switzerland. – *Annals of oncology*. Vol. 24. No. 6, 1639-1644. Accessible: https://academic.oup.com/annonc/article/24/6/1639/180484

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Janssen A. (2002). The New Regulation of Voluntary Euthanasia and Medically Assisted Suicide in the Netherlands. – *International Journal of Law, Policy and the Family*. Vol. 16. No. 2, 260-269. Accessible: https://heinonline.org/HOL/P?h=hein.journals/intlpf16&i=268

Korkee, E. (2016) *Eutanasia sallittu vain neljässä maassa – Kuolinapu jakaa lääkäreiden mielipiteitä Suomessa*. Aamulehti. Accessible: https://www.aamulehti.fi/kotimaa/eutanasia-sallittu-vain-neljassa-maassa-kuolinapu-jakaa-laakareiden-mielipiteita-suomessa-23983200.1.4.2019

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Vartiainen, N. (2018) *Eduskunta äänesti eutanasian sallimisen kumoon*. Helsingin Sanomat. Accessible: https://www.hs.fi/politiikka/art-2000005665880.html. 27.3.2019
# EU Legislation Effects on Women's Rights and Equal Treatment and Opportunities in the Workplace

REGINA SEDERGREN

TALLINN UNIVERSITY OF TECHNOLOGY, ESTONIA

ANNAREGINA.SEDERGREN@GMAIL.COM

**Abstract:** This research investigates the effects of EU legislation in the labor market concerning equality between men and women. Studies imply that the female participation in the labor market has significantly increased but there's still recognized indirect gender-based discrimination. Parental leave legislation, policies and segregation in the labor market is discussed. Data concerning gender pay gap differences is analyzed in addition to labor market policy effect on employment of women. Case law and ECJ rulings are introduced to provide evidence that there is indirect discrimination towards women in the labor market. EU has taken actions towards more equal pay between genders in form of legislation, since there are several factors contributing gender pay gap it's not possible to close it via legislation. The structure of the labor market, the general mindset of the people and the economy is structurally modeled to work certain way. Women tend to work in lower income fields than men. Overall, the effect of EU legislation is positive, and it's what secures women's rights in case of indirect discrimination.

**Keywords:** equality, discrimination, gender, pay, employment

## INTRODUCTION

This paper analyses the effects of EU legislation on women participation in a workplace and also its effects on the more equal work environment. The main question is, if the legislation, for instance, on equal opportunities have improved women's rights in the workplace. Studies and data imply that the female participation in the labor market has increased but there still is indirect gender-based discrimination towards women in the workplace.<fnref n="1" /> The gender pay gap between male and female workers is different in different EU countries and that is mainly because of segregation in the labor market, how work is valued and work-life balance. The aforementioned are the reasons for the gender pay gap which are one of the factors resulting in inequality between male and female workers in the labor market.<fnref n="2" />

European Union works towards closing the gender pay gap and promotes equal economic independence for both sexes.<fnref n="3" /> The gender pay gap is the difference in average gross earnings between male and female workers. The main factors that contribute to the gender pay gap are aforementioned, segregation in the labor market, how work is valued and work-life balance. Therefore, high gender pay gap indicates that the labor market is segregated, and lower gender pay gap indicates that there's less segregation in the job market.<fnref n="4" /> One of the European Union founding

<footnote n="1">¹ Jan Dirk Vlasblom, Joop J. Schippers. "Increases in female labour force participation in Europe: similarities and differences", European Journal of Population, 2004, p.389. Accessible: https://link.springer.com/article/10.1007%2Fs10680-004-5302-0</footnote>

<footnote n="2">² Causes of unequal pay between men and women, European Commission – European Commission. Accessible: https://ec.europa.eu/info/policies/justice-and-fundamental-rights/gender-equality/equal-pay/causes-unequal-pay-between-men-and-women_en</footnote>

<footnote n="3">³ Gender equality, European Commission – European Commission. Accessible: https://ec.europa.eu/info/policies/justice-and-fundamental-rights/gender-equality_en</footnote>

<footnote n="4">⁴ Causes of unequal pay between men and women, European Commission – European Commission. Accessible:</footnote>
principles, equal pay for equal work, prohibits to pay women less than men for the same work.⁵ However, there remains indirect discrimination towards women in organizational hierarchies and some positions.⁶ Directive 2006/54/EC of the European Parliament and the Council of 5 July 2006 on the implementation of the equal opportunities and equal treatment of men and women in matters of employment and occupation show the efforts European Union has made towards equal pay between male and female workers.

The directive implies that the equal treatment of men and women cannot be confined to the prohibition of discrimination based on the fact that a person is one of other sex.⁷ Female participation in the labor market has increased in Europe, however, the segregation of female and male labor remains to be one of the main reasons for the gender pay gap.⁸ Eurostat data shows that the gender pay gap is higher on the private sector in some EU countries than it is in the public sector which may be due to the fact that there are collective pay agreements protecting the employees.⁹ The policy agenda of EU has been moved up by equal opportunities, the downside of this is the fact that then the approach to equal opportunities is formed by the agenda of European employment strategy. The process of working towards more equal opportunities is more about changing the whole structure of the labor market than focusing on isolated defects.¹⁰ However, segregation in the labor market does not directly indicate inequality although it's one of the main causes for the gender pay gap. Women tend to generally pursue lower income work than men do.¹¹

# 1. FACTORS THAT CONTRIBUTE THE GENDER PAY GAP AND LEGISLATION SECURING EQUALITY

One of the European Union founding principles, equal pay for equal work, regulates that it's not allowed to pay women less for the same work than man and vice versa. There are also several directives supporting, for instance, equal treatment and opportunity of men and women in matters of employment and occupation.¹² There is still an existing gender pay gap in the EU member states and the main factors that contribute this are segregation in the labor market, how work is valued and

https://ec.europa.eu/info/policies/justice-and-fundamental-rights/gender-equality/equal-pay/causes-unequal-pay-between-men-and-women_en

⁵ Dobrin, S., & Chochia, A. (2016). The concepts of trademark exhaustion and parallel imports: a comparative analysis between the EU and the USA. *Baltic Journal of European Studies*, 6(2), 28-57.

⁶ Mark Smith. "Analysis Note: The Gender Pay Gap in the EU – What policy responses?", 2010, p.3-4 Accessible: http://www.eif.gov.cy/mlsi/dl/genderequality.nsf/All/F592B6E5C824A8A6C22579A700296E29/$file/the gender pay gap in the eu egge 2010.pdf

⁷ EUR-Lex - 32006L0054 - EN - EUR-Lex, Eur-lex.europa.eu. Accessible: https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1553349084039&uri=CELEX:32006L0054

⁸ Jan Dirk Vlasblom, Joop J. Schippers. "Increases in female labour force participation in Europe: similarities and differences", European Journal of Population, 2004, p.389. Accessible: https://link.springer.com/content/pdf/10.1007/s10680-004-5302-0.pdf

⁹ Gender pay gap statistics - Statistics Explained, ec.europa.eu. Accessible: https://ec.europa.eu/eurostat/statistics-explained/index.php/Gender pay gap_statistics#Gender pay gap_higher in the_private sector

¹⁰ Jill Rubery. "Gender mainstreaming and gender equality in the EU: the impact of the EU employment strategy.", 2002, p.516. Accessible: http://www.eif.gov.cy/mlsi/dl/genderequality.nsf/0/9E015C850578EF53C2257A750029B512/$file/Rubery.pdf

¹¹ European equality law network. Key EU directives in gender equality and non-discrimination. Accessible: https://www equalitylaw.eu/legal-developments/16-law/76-key-eu-directives-in-gender-equality-and-non-discrimination

¹² Mark Smith. "Analysis Note: The Gender Pay Gap in the EU – What policy responses?", 2010, p.3-4 Accessible: http://www.eif.gov.cy/mlsi/dl/genderequality.nsf/All/F592B6E5C824A8A6C22579A700296E29/$file/the gender pay gap in the eu egge 2010.pdf
work-life balance.<fnref n="13" /> There are also structural inequalities in the labor market favoring men in higher positions.<fnref n="14" /> Besides the legislation securing women the same pay for the same work than men, there are cases of indirect discrimination and the whole structure of the current labor market is not supporting full equality in matters of the gender pay gap. However, segregation which is one of the main causes for the gender pay gap does not always indicate inequality. Inequality shows in some selection processes, in organizational hierarchies, in case law and it also has its roots in people's mindsets.<fnref n="15" />

**1.1. Parental leave and legislation**

Women experience more career interruptions than men. For instance, parental leave which women tend to take more often is a case of career interruption.<fnref n="16" /> This explains why the gender pay gap is lower among younger people since they haven't yet experienced these interruptions.<fnref n="17" /> As an example in Sweden there are policies that aim to facilitate the combination of work and family for both mothers and fathers, still there is knowledge of the impact of long parental leave can leave in woman's career. Circumstances of long parental leave give women the opportunity to keep the job they held before the parental leave. This may lead to different treatment when coming back to the job. These long parental leaves support the idea that the man is the main breadwinner in the house, which results in supporting larger gender pay gap and the model that men make the money and women stay home taking care of the children.<fnref n="18" /> Revised Framework Agreement between European social partners on parental leave – Council Directive 2010/18/EU implements on parental leave. Its key points are that workers are entitled to parental leave on the birth or adoption of a child, it applies equally to all workers, men and women and the parental leave must be granted for at least a period of 4 months as an individual right of both parents. It specifies the return to work and non-discrimination. According to the directive, workers must be protected against less favorable treatment or dismissal on the grounds of an application for, or the taking of, parental leave.<fnref n="19" /> The Parental Leave Directive does not inflict any obligations to pay during parental leaves and it leaves

<footnote n="13">13 Causes of unequal pay between men and women, European Commission – European Commission. Accessible: https://ec.europa.eu/info/policies/justice-and-fundamental-rights/gender-equality/equal-pay/causes-unequal-pay-between-men-and-women_en</footnote>

<footnote n="14">¹⁴ Mark Smith. "Analysis Note: *The Gender Pay Gap in the EU – What policy responses?*", 2010, p.3-4 Accessible: http://www.eif.gov.cy/mlsi/dl/genderequality.nsf/All/F592B6E5C824A8A6C22579A700296E29/$file/the gender pay gap in the eu egge 2010.pdf</footnote>

<footnote n="15">¹⁵ Francesca Bettio, Alina Verashchagina. "*Gender segregation in the labour market: root causes, implications and policy responses in the EU.*", 2008, p.36. Accessible: https://core.ac.uk/download/pdf/60417738.pdf</footnote>

<footnote n="16">¹⁶ Causes of unequal pay between men and women, European Commission – European Commission. Accessible: https://ec.europa.eu/info/policies/justice-and-fundamental-rights/gender-equality/equal-pay/causes-unequal-pay-between-men-and-women_en</footnote>

<footnote n="17">17 Gender pay gap statistics – Statistics Explained, ec.europa.eu. Accessible: https://ec.europa.eu/eurostat/statistics-explained/index.php/Gender pay gap_statistics#Gender pay gap_higher_in_the_private-sector</footnote>

<footnote n="18">¹⁸ Marie Evertsson and Ann-Zofie Duvander. "*Parental Leave-Possibility or Trap? Does Family Leave Length Effect Swedish Women's Labour Opportunities?*", 2010, p.435-436. Accessible: https://s3.amazonaws.com/academia.edu documents/45394043/Parental_LeavePossibility_or_Trap_Does_F20160505-2665-1olcy1l.pdf?AWSAccessKeyId=AKIAIWOWYYGZ2Y53UL3A&Expires=1555239056&Signature=Mcwa5ejAm%2sOn%2Fp5tE%3D&response-content-disposition=inline%3B%20filename%3DParental_Leave_Possibility_or_Trap_Does.pdfBsZellBrZG</footnote>

<footnote n="19">¹⁹ EUR-Lex. Summary of: Parental Leave. Accessible: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=legissum:em0031</footnote>
this for the member states to define.<fnref n="20" /> European Commission has made a proposal for a directive for the European Parliament and of the Council on work-life balance for parents and carers and repealing Council Directive 2010/18/EU. This proposal addresses women’s under-representation in employment and support women’s career progression, it builds on existing rights and policies. Objectives of this directive are to improve access to work-life balance arrangements and to increase take-up of family-related leaves and flexible working arrangements by men.<fnref n="21" />

**1.2. Segregation in the labor market**

One of the main causes of the gender pay gap is segregation, meaning men and women generally work in different jobs. The segregation in the labor market is relatively high EU wide. Four especially high segregation countries are Estonia, Finland, Slovakia and Latvia and four low-segregation countries are Greece, Romania, Malta, and Italy.<fnref n="22" /> Significant increases in female participation in the may raise the levels of segregation on a more or less temporary basis.<fnref n="23" /> Women tend to pursue lower income jobs generally. However, there are several case studies that show women’s skills underestimation. One example is a case (Ferreira 2008) where female and male waiters were interviewed for a survey in Portugal and justified women’s lower pay because women are more ‘sensitive’, and men are able to cope better with ‘physical effort’.<fnref n="24" /> Undervaluation and discrimination are aspects of existing wage inequality. This does not indicate that segregation in the labor market always leads to inequality.<fnref n="25" /> When it comes to European labor market policies most of the policy action is focused on skill-training. 10 EU member states have reported that they have implemented governmental training programmes devoted to counter segregation. These member states are Austria, Belgium, Finland, France, Germany, Greece, Norway, Portugal, Sweden, and the UK. Training has been often one of the only ways of providing women with so-called ‘male’, usually technical, skills without questioning men’s occupational choices.<fnref n="26" />

**1.3. Gender pay gap differences in private and public sector**

According to Eurostat data, the gender pay gap is significantly higher in the private sector than it is in the public sector. This may be due to, for instance, collective pay agreements that are supporting employees. There are also large differences between member states considering this matter of subject. The unadjusted gender pay gap by economic control by percentage in 2017 was in Romania in the private sector 7,0% and in the public sector 5,4%. Comparing these numbers to Finland where the percentage was in the private sector 16,2% and in the public sector 18,3%, it's clear that the differences between these two countries are significant. Overall, as an unadjusted indicator, the GDP gives a view of the differences between women and men concerning earnings, this measures a lot of wider concept than the concept of the European Union principle, equal pay for

<footnote n="20">²⁰ EUR-Lex. Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on work-life balance for parents and carers and repealing Council Directive 2010/18/EU. Accessible:https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52017PC0253</footnote>

<footnote n="21">²¹ *Ibidem*.</footnote>

<footnote n="22">²² Dutt, P., Ferraro, S., Chochia, A., & Muljar, R. (2018). Using patent development, Education policy and research and development Expenditure policy to understand differences between countries: the case of Estonia and Finland. *Baltic Journal of European Studies*, *8*(1), 123-153.</footnote>

<footnote n="23">²³ Francesca Bettio, Alina Verashchagina. "*Gender segregation in the labour market: root causes, implications and policy responses in the EU.*", 2008, p.19-22. Accessible: https://core.ac.uk/download/pdf/60417738.pdf</footnote>

<footnote n="24">²⁴ *Ibidem*. P.34.</footnote>

<footnote n="25">²⁵ *Ibidem*. P.36.</footnote>

<footnote n="26">²⁶ *Ibidem*. P.48.</footnote>