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From the Judicial Control of Public Interventions to Judicial Framing through Regional or Local Economic Integration: Public Subsidies and Taxation—Suggestions for a Research Program

Par : Type de matériel : TexteTexteLangue : français Détails de publication : 2002. Ressources en ligne : Abrégé : The report addresses the question of whether and how economic globalization affects the development of national regulations governing public interventions into the market place, or whether the erosion of the interventionist power of states is due to changes in political and economic thought. The paper presents a research agenda of comparative public law based on three hypotheses: First, public interventions into the market place, in particular by way of subsidies granted to enterprises and fiscal measures, has been a core element of state sovereignty, so that the limitations to which it has become subject due to regional integration and globalization puts into question the very basis upon which the law governing such interventions rests. Second, the establishment of judicial control over public interventions in markets by virtue of such a framework of rules is not without historical precedent; in particular, a comparison may be made between, on the one hand, a state's judicial control over subsidies granted and fiscal measures taken by local government, and on the other, supranational or international ways of retaining judicial control over state aid and fiscal policy. Third, this analogy should not be carried to the point where the assumption that the regulatory framework resulting from regional integration for state intervention, let alone the global rules for such intervention, might constitute the nucleus of a global federal state. The first hypothesis is explained in more detail by way of a comparative historical summary of states' sovereign role in the economy and the rise of the rule of law as a way of controlling state intervention. In fact, it is much more the late result of constraints created by economic integration and globalization than that of the domestic evolution of the law. The substantiation of the second hypothesis constitutes a central part of the paper, which draws extensively on French precedent and contrasts it with both a comparative perspective and the Treaty of Rome's vision of the mission of public services or, more particularly, the notion of public interest. A major result of a more extensive examination of the proposed analogy may be that, contrary to what is frequently suggested, the limits set by the law to state intervention in recent years are much more the result of framework building as a result of integration and globalization than of a general change in political or economic thought. The third, cautionary hypothesis is explained first by reference to the establishment of judicial control which, on the one hand, states may exercise over local economic intervention, and, on the other, which the European Community or the World Trade Organization have developed so far. In addition, the paper points to the differences that exist between the hierarchical structure of a state's legal order and the overlapping layers of national and supranational or international law that characterize the legal framework of globalization. Such overlaps must be accommodated by reconciliatory rules of the kind that apply in cases of legal conflicts rather than by straightforward primacy rules. Thus, though as a result of their voluntary integration into a broader legal and economic framework, states may lose much of their sovereign power over territorial markets, that power does not necessarily accrue to the supranational or international organization, nor is the importance of the national state diminished. What does change, however, is the role the state has to play within the new institutional framework.
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The report addresses the question of whether and how economic globalization affects the development of national regulations governing public interventions into the market place, or whether the erosion of the interventionist power of states is due to changes in political and economic thought. The paper presents a research agenda of comparative public law based on three hypotheses: First, public interventions into the market place, in particular by way of subsidies granted to enterprises and fiscal measures, has been a core element of state sovereignty, so that the limitations to which it has become subject due to regional integration and globalization puts into question the very basis upon which the law governing such interventions rests. Second, the establishment of judicial control over public interventions in markets by virtue of such a framework of rules is not without historical precedent; in particular, a comparison may be made between, on the one hand, a state's judicial control over subsidies granted and fiscal measures taken by local government, and on the other, supranational or international ways of retaining judicial control over state aid and fiscal policy. Third, this analogy should not be carried to the point where the assumption that the regulatory framework resulting from regional integration for state intervention, let alone the global rules for such intervention, might constitute the nucleus of a global federal state. The first hypothesis is explained in more detail by way of a comparative historical summary of states' sovereign role in the economy and the rise of the rule of law as a way of controlling state intervention. In fact, it is much more the late result of constraints created by economic integration and globalization than that of the domestic evolution of the law. The substantiation of the second hypothesis constitutes a central part of the paper, which draws extensively on French precedent and contrasts it with both a comparative perspective and the Treaty of Rome's vision of the mission of public services or, more particularly, the notion of public interest. A major result of a more extensive examination of the proposed analogy may be that, contrary to what is frequently suggested, the limits set by the law to state intervention in recent years are much more the result of framework building as a result of integration and globalization than of a general change in political or economic thought. The third, cautionary hypothesis is explained first by reference to the establishment of judicial control which, on the one hand, states may exercise over local economic intervention, and, on the other, which the European Community or the World Trade Organization have developed so far. In addition, the paper points to the differences that exist between the hierarchical structure of a state's legal order and the overlapping layers of national and supranational or international law that characterize the legal framework of globalization. Such overlaps must be accommodated by reconciliatory rules of the kind that apply in cases of legal conflicts rather than by straightforward primacy rules. Thus, though as a result of their voluntary integration into a broader legal and economic framework, states may lose much of their sovereign power over territorial markets, that power does not necessarily accrue to the supranational or international organization, nor is the importance of the national state diminished. What does change, however, is the role the state has to play within the new institutional framework.

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