There are no constitutional obstacles to the use of a company restraining order

Disruptive behaviour in stores increased in 2022 by about a quarter of the already high figures. The Finnish Commerce Federation considers that the situation is completely dysfunctional and humanly unreasonable when there are insufficient means in the stores to control the persons causing a serious disturbance.

According to the Finnish Commerce Federation, the worst disturbing situations require new legislation that gives the employer the opportunity to start a process that, if necessary, restricts the customer’s access to the store.

“For several years, we have been looking for a more effective way to improve store safety to add to legislation, similar to the company restraining order,” says Mari Kiviniemi, Managing Director of the Finnish Commerce Federation.

The current situation of crime targeted at trade and the need to protect employees in Finland is similar to that in Sweden, where a law allowing the temporary denial of a customer’s access to a store entered into force in March 2021.

“In Sweden, the experience of applying the law has been good, and we believe that the discussion of the grounds is largely suited to the conditions in Finland,” says Kiviniemi.

In order to promote this goal, the Finnish Commerce Federation commissioned the legal specialist report titled Liikelähestymiskielto from the University of Helsinki’s criminal law professors Sakari Melander and Kimmo Nuotio. The report assesses whether it would be possible for Finland to enact a safeguard measure, in line with the Swedish legislation, that aims to prevent repeated serious disruptive behaviour towards stores and their staff.

The acceptability, proportionality and necessity of a company restraining order must be demonstrated

In their report, Melander and Nuotio state that there does not appear to be any direct constitutional obstacles to new legislation, such as the company restraining order. However, they note that the acceptability, proportionality and necessity of the legislation must be carefully assessed, as it both restricts and safeguards the fundamental rights of individuals.

According to Melander and Nuotio, a law such as the company restraining order infringes several fundamental rights of individuals, such as freedom of movement and the protection of private life. On the other hand, the legislation would also protect the constitutional rights to the protection of the safety and physical integrity of the individual and to the undisturbed conduct of business and the protection of the labour force.

The report states that, in order to be acceptable, restrictions on fundamental rights must be heavily in the interests of society. The purpose of the company restraining order would be to prevent disruptive behaviour towards stores. More broadly, this is a matter of store security and securing the proper and trouble-free operation of stores.

According to Melander and Nuotio, the Occupational Safety and Health Act also obliges employers to protect their employees. If harassment or other inappropriate treatment occurs at work that is directed at an employee and causes harm or danger to their health, the employer must take measures to eliminate the issue.

In order for restricting access to a store to be a proportionate measure for the purpose of achieving an objective that is acceptable in itself, Melander and Nuotio must also be able to demonstrate that it is necessary. It is essential to demonstrate that the means that interfere with the current legislation or, to a lesser extent, with the individual’s freedom of movement and private life are not sufficient.

“At the present time, a storekeeper has the possibility to remove a disturbing customer from their store and the right to choose their customers, for example, by means of age limits, but these means are mostly ineffective in order to discourage people who cause repeated serious disturbances in stores,” says Terhi Kuljukka-Rabb, Chief Policy Adviser at the Finnish Commerce Federation.

In their report, Melander and Nuotio emphasise that a company restraining order should be specific and precise in order to meet the objective of the restraining order, i.e. store security, but that the life of the subject of the restraining order would not be unduly complicated with regard to the necessary purchases, such as the purchase of food or medicines.

According to Kuljukka-Rabbi, the Liikelähestymiskielto report is very useful:

“It strengthens the perception that it is possible to impose a company or store restraining order in the Finnish legislative environment and, on the other hand, indicates important needs for further investigation.”

Learn more about the report:

Learn more about the Finnish Commerce Federation’s position on the company restraining order:

The Finnish Commerce Federation’s statement (in Finnish): https://kauppa.fi/lataa/625242/

For further information, please contact:

Mari Kiviniemi, Managing Director, Finnish Commerce Federation, tel. +358 (0)50 511 3189, mari.kiviniemi(at)kauppa.fi

Terhi Kuljukka-Rabb, Chief Policy Adviser, Trade Security, tel. +358 (0)50 300 3263, terhi.kuljukka-rab(at)@kauppa.fi

Sakari Melander, Professor of Criminal Law, University of Helsinki, tel. +358 (0)50 564 4229, sakari.melander (at)helsinki.fi

Kimmo Nuotio, Professor of Criminal Law, University of Helsinki, kimmo.nuotio (at)helsinki.fi