Double Enumeration of Legislative Powers in a Sub-State Context by Markku Suksi

Author:Markku Suksi
Language: eng
Format: epub, pdf
Publisher: Springer International Publishing, Cham

4.2.2 Finland and the Åland Islands: Watertight Compartments with Some Modifications

Although far-reaching exclusivity, close to upholding an idea of “watertight compartments” of an earlier Canadian type, exists between the legislative competences of the Parliament of Finland and the Åland Islands,86 some pith and substance and even ancillary powers thinking is from time to time visible in the opinions of the Supreme Court concerning the competence of the Åland Islands.87 In addition, an element of interjurisdictional immunity is present in the relationship between an enactment of the Legislative Assembly of the Åland Islands and the Parliament of Finland in that it is generally not permitted for the Legislative Assembly to try to regulate matters in such a manner that authorities of the State or the tasks of State authorities are affected by Ålandic provisions. This might be thought relatively self-evident on the basis of the Self-Government Act and on the basis of the principle that administrative competence follows from legislative competence, but the Supreme Court has dealt with a number of cases of this sort.88

A pith and substance argumentation was used, for instance, in an Opinion from 2003 concerning amendments to an Ålandic Act on Tobacco, which had the aim of implementing on behalf of Finland, in the Åland Islands, EC directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products (the so-called Tobacco Directive). The enactment of the Legislative Assembly contained, inter alia, a provision about the sale of snuff intended for oral use. The Supreme Court concluded in its Opinion that the rules in the Ålandic law are, with respect to legislative competence, mainly to be allocated to the area of health in Section 18(12) of the Self-Government Act and business activities in Section 18(22), and that the competence in the area of criminal law according to Section 18(25) was also relevant. In addition, the enactment contained provisions about consumer protection, which according to Section 27(10) is a competence of the Parliament of Finland. The conclusion of the Supreme Court was that because the provisions in the main dealt with the protection of health of the users of tobacco products, the competence to pass rules was with the Legislative Assembly of the Åland Islands.89 Such pith and substance argumentation is not uncommon in the Opinions of the Supreme Court.

Similarly, thinking along the lines of pith and substance or the leading feature of the legislation under evaluation is present in a case concerning public procurement. The interpretation of the competence line concerning whether public procurement is administrative procedure within Ålandic competence or competition law within the competence of the Parliament of Finland was first raised in an Opinion from 1994,90 in which public procurement was deemed to be entirely within the competence of the Åland Islands. In 2007, when the Legislative Assembly passed new legislation on this matter, a majority of the Supreme

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