The additional taxation of corporate turnover has emerged in the EU Member States and at the EU level as part of efforts to secure the national tax base and presumably to enable a fair and equitable sharing of the tax burden among corporate taxpayers covered by the national tax jurisdiction. Its introduction is usually based on the expectation that such taxation enables the exercise of taxing rights over value generated in the national analogue and digital economy when the traditional taxation of corporate income seems to fail in achieving the same. However, turnover taxes are problematic tax instruments from a legal perspective and their lawfulness is debatable as a matter of both EU and national law. After years of contestation before the European Commission and the courts of the EU based on EU internal market and State aid law, it has been revealed that EU law is not available to challenge some of the fundamental problems with the regulation of turnover taxes. As the law now stands, there is a possibility that in this area of taxation Member States can get away with misrepresenting their intentions and abusing their taxing rights in this way. This latter issue must not be overlooked when addressing the non- or under-taxation of corporate taxpayers in the national and the European economy. turnover taxation, digital taxes, national tax base, Member State tax policy autonomy, discrimination, abuse of taxing rights
{"title":"Turnover Taxes, the Fight for the National Tax Base and the EU Court of Justice: An Undeserved Triumph for Member State Direct Tax Autonomy?","authors":"Márton Varju, M. Papp","doi":"10.54648/leie2021031","DOIUrl":"https://doi.org/10.54648/leie2021031","url":null,"abstract":"The additional taxation of corporate turnover has emerged in the EU Member States and at the EU level as part of efforts to secure the national tax base and presumably to enable a fair and equitable sharing of the tax burden among corporate taxpayers covered by the national tax jurisdiction. Its introduction is usually based on the expectation that such taxation enables the exercise of taxing rights over value generated in the national analogue and digital economy when the traditional taxation of corporate income seems to fail in achieving the same. However, turnover taxes are problematic tax instruments from a legal perspective and their lawfulness is debatable as a matter of both EU and national law. After years of contestation before the European Commission and the courts of the EU based on EU internal market and State aid law, it has been revealed that EU law is not available to challenge some of the fundamental problems with the regulation of turnover taxes. As the law now stands, there is a possibility that in this area of taxation Member States can get away with misrepresenting their intentions and abusing their taxing rights in this way. This latter issue must not be overlooked when addressing the non- or under-taxation of corporate taxpayers in the national and the European economy.\u0000turnover taxation, digital taxes, national tax base, Member State tax policy autonomy, discrimination, abuse of taxing rights","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89126052","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The concept of MERCOSUR citizenship, based on the freedom of movement and the equality of civil and social rights, intended a transition from a strictly economic regional integration to a political one. However, the weaknesses of the regional process (such as the slowness of the internalization of regional regulations, the heterogeneities in that internalization and the concurrence of other regional processes) hamper the consolidation of a regional regime of citizenship, leading to inequalities incompatible with the very concept of citizenship. MERCOSUR, citizenship, economic integration, political integration, freedom of movement, equality, UNASUR
{"title":"MERCOSUR Citizenship: Failed Transition from Economic to Political Integration?","authors":"Fernando Arlettaz","doi":"10.54648/leie2021030","DOIUrl":"https://doi.org/10.54648/leie2021030","url":null,"abstract":"The concept of MERCOSUR citizenship, based on the freedom of movement and the equality of civil and social rights, intended a transition from a strictly economic regional integration to a political one. However, the weaknesses of the regional process (such as the slowness of the internalization of regional regulations, the heterogeneities in that internalization and the concurrence of other regional processes) hamper the consolidation of a regional regime of citizenship, leading to inequalities incompatible with the very concept of citizenship.\u0000MERCOSUR, citizenship, economic integration, political integration, freedom of movement, equality, UNASUR","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86425383","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Mutual trust in European Union law traditionally refers to a horizontal relationship between Member States, requiring them to consider ‘all the other Member States to be complying with EU law’, as the European Court of Justice has repeatedly stated. This Article considers a new perspective: is it possible to detect the existence of trust between Member States on one hand and the European Union’s institutions on the other hand? If so, what are its legal manifestations? And what light does trust shed on the cooperation between the peoples of Europe? To answer these questions, the Article seeks to offer a synthetic vision of the case law, selecting legal issues of European integration as examples of ascending (from Member States to the EU) and descending (from EU to Member States) trust. It then discusses reasons why the Court of Justice of the European Union may want to create a relationship of trust with Member States, drawing from the fruitful insights of political psychology. EU law, mutual trust, political psychology, vertical trust, supremacy, internal market
{"title":"The Political Psychology of Vertical Trust Between the European Union and the Member States","authors":"L. Lonardo","doi":"10.54648/leie2021018","DOIUrl":"https://doi.org/10.54648/leie2021018","url":null,"abstract":"Mutual trust in European Union law traditionally refers to a horizontal relationship between Member States, requiring them to consider ‘all the other Member States to be complying with EU law’, as the European Court of Justice has repeatedly stated. This Article considers a new perspective: is it possible to detect the existence of trust between Member States on one hand and the European Union’s institutions on the other hand? If so, what are its legal manifestations? And what light does trust shed on the cooperation between the peoples of Europe? To answer these questions, the Article seeks to offer a synthetic vision of the case law, selecting legal issues of European integration as examples of ascending (from Member States to the EU) and descending (from EU to Member States) trust. It then discusses reasons why the Court of Justice of the European Union may want to create a relationship of trust with Member States, drawing from the fruitful insights of political psychology.\u0000EU law, mutual trust, political psychology, vertical trust, supremacy, internal market","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87282574","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Book Review: Europe’s Passive Virtues: Deference to National Authorities in EU FreeMovement Law (Jan Zglinski). 1st edition. Oxford University Press. 2020","authors":"F. B. Bastos","doi":"10.54648/leie2021022","DOIUrl":"https://doi.org/10.54648/leie2021022","url":null,"abstract":"","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87508232","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"What Does the ‘Suspension’ of the EU-China Comprehensive Agreement on Investment Initiative Mean for the Credibility and Consistency of the Commission’s ‘Values-Based’ Trade Agenda?","authors":"L. Ankersmit","doi":"10.54648/leie2021017","DOIUrl":"https://doi.org/10.54648/leie2021017","url":null,"abstract":"","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84150901","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The special provision relating to state monopolies of a commercial character within the EU’s internal market is nestled in the Treaties as the final provision regarding the free movement of goods. This special provision of Article 37 of the Treaty on the Functioning of the European Union (TFEU) is often overlooked, given it is seen to be of lesser significance than the general provisions on goods concerning quantitative restrictions and measures having equivalent effect contained in Articles 34– 36 TFEU. Whilst the case law on state monopolies in respect of goods is elaborate, it is still far from clear how state monopolies within the meaning of Article 37 TFEU are to be handled, as evident from the case law of the Court of Justice. The article analyses three arising issues. Firstly, it investigates the boundary between the special provision of Article 37 TFEU and the general provisions of Articles 34–36 TFEU; secondly, it critiques the public interest aim that was once read into Article 37 TFEU by the Court of Justice; and thirdly, it questions the discrimination reading of Article 37 TFEU, rather than a more elaborate restrictions reading. Conclusively, the article offers grounds for why the special provision of Article 37 TFEU ought to be repealed, which in turn, would provide for a more concerted and consistent approach by subjecting state monopolies to the general free movement of goods provisions of the EU Treaties. State monopolies, Free movement of goods, State-owned enterprises, European Union law, Law of the internal market
{"title":"State Monopolies and the Free Movement of Goods in EU Law: Getting Beyond Obscure Clarity","authors":"G. Butler","doi":"10.54648/leie2021020","DOIUrl":"https://doi.org/10.54648/leie2021020","url":null,"abstract":"The special provision relating to state monopolies of a commercial character within the EU’s internal market is nestled in the Treaties as the final provision regarding the free movement of goods. This special provision of Article 37 of the Treaty on the Functioning of the European Union (TFEU) is often overlooked, given it is seen to be of lesser significance than the general provisions on goods concerning quantitative restrictions and measures having equivalent effect contained in Articles 34– 36 TFEU. Whilst the case law on state monopolies in respect of goods is elaborate, it is still far from clear how state monopolies within the meaning of Article 37 TFEU are to be handled, as evident from the case law of the Court of Justice. The article analyses three arising issues. Firstly, it investigates the boundary between the special provision of Article 37 TFEU and the general provisions of Articles 34–36 TFEU; secondly, it critiques the public interest aim that was once read into Article 37 TFEU by the Court of Justice; and thirdly, it questions the discrimination reading of Article 37 TFEU, rather than a more elaborate restrictions reading. Conclusively, the article offers grounds for why the special provision of Article 37 TFEU ought to be repealed, which in turn, would provide for a more concerted and consistent approach by subjecting state monopolies to the general free movement of goods provisions of the EU Treaties.\u0000State monopolies, Free movement of goods, State-owned enterprises, European Union law, Law of the internal market","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81683831","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) establishes, in its Chapter 17, the most extensive ‘behind the border’ regulation of stateowned enterprises (SOEs) among the bilateral and multilateral treaties. Prima facie, its rationality can be explained by the original purpose of the United States (former drafter of the Trans-Pacific Partnership Agreement (TPP)) to discipline the state capitalism policies employed by some Asian signatories. Considering this context, this article examines the meaning of the key normative concepts contained in Article 17.4 of the treaty (i.e., ‘commercial activities’, ‘non-discrimination’ and especially ‘commercial considerations’) and discusses to what extent such concepts recognize or restrict the freedom of the Parties to create and manage SOEs committed to promote national industrial and technological development, using as benchmark for this assessment Article XVII of the GATT and the interpretations made by the WTO adjudicators. It concludes that the wording of Article 17.4 is compatible both with an interpretation that allows the existence of such types of entities and with an interpretation that does not. State-owned enterprises, non-discrimination, commercial considerations, differential treatment, industrial development, competition, trade, mission
{"title":"Is It Possible to Use State-Owned Enterprises to Promote Industrial and Technological Development Under Article 17.4 of the CPTPP?","authors":"Juan Pablo Iglesias M.","doi":"10.54648/leie2021021","DOIUrl":"https://doi.org/10.54648/leie2021021","url":null,"abstract":"The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) establishes, in its Chapter 17, the most extensive ‘behind the border’ regulation of stateowned enterprises (SOEs) among the bilateral and multilateral treaties. Prima facie, its rationality can be explained by the original purpose of the United States (former drafter of the Trans-Pacific Partnership Agreement (TPP)) to discipline the state capitalism policies employed by some Asian signatories. Considering this context, this article examines the meaning of the key normative concepts contained in Article 17.4 of the treaty (i.e., ‘commercial activities’, ‘non-discrimination’ and especially ‘commercial considerations’) and discusses to what extent such concepts recognize or restrict the freedom of the Parties to create and manage SOEs committed to promote national industrial and technological development, using as benchmark for this assessment Article XVII of the GATT and the interpretations made by the WTO adjudicators. It concludes that the wording of Article 17.4 is compatible both with an interpretation that allows the existence of such types of entities and with an interpretation that does not.\u0000State-owned enterprises, non-discrimination, commercial considerations, differential treatment, industrial development, competition, trade, mission","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89650077","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The article considers the principal legal implications of the key, general legislative framework on services regulation, the Services Directive (Directive 2006/123/EC on services in the internal market), exploring, several years since its implementation deadline and in view of the emerging litigation, the resilience of this regulatory endeavour at the heart of the EU’s economy. In particular, the present contribution analyses focal aspects of the directive, especially as interpreted by the Court of Justice of the European Union, through the prism of the directive’s objectives of legal certainty, acquis compatibility, and synchronization. In doing so, the study evaluates the contribution of the directive to positive harmonization and its interaction with the negative integration regime for the completion of the internal market in services. Free movement of services, Freedom of establishment, Services Directive, Directive 2006/ 123, Positive harmonization, Negative harmonization, Exhaustive harmonization, Administrative cooperation, Purely internal situation, Healthcare
{"title":"Servicing the Internal Market: The Contribution of Positive Harmonization Through the Services Directive and Its Interaction with Negative Integration","authors":"I. Maletić","doi":"10.54648/leie2021019","DOIUrl":"https://doi.org/10.54648/leie2021019","url":null,"abstract":"The article considers the principal legal implications of the key, general legislative framework on services regulation, the Services Directive (Directive 2006/123/EC on services in the internal market), exploring, several years since its implementation deadline and in view of the emerging litigation, the resilience of this regulatory endeavour at the heart of the EU’s economy. In particular, the present contribution analyses focal aspects of the directive, especially as interpreted by the Court of Justice of the European Union, through the prism of the directive’s objectives of legal certainty, acquis compatibility, and synchronization. In doing so, the study evaluates the contribution of the directive to positive harmonization and its interaction with the negative integration regime for the completion of the internal market in services.\u0000Free movement of services, Freedom of establishment, Services Directive, Directive 2006/ 123, Positive harmonization, Negative harmonization, Exhaustive harmonization, Administrative cooperation, Purely internal situation, Healthcare","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81622684","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
WTO Members have adopted various trade-related measures under their domestic laws in response to the outbreak of Covid-19. The article discusses ways to exempt or justify quantitative export restrictions or bans which are in principle prohibited by Article XI:1 GATT.To this end, it sheds a light on the different scopes and requirements of Article XI:2 (a), Article XX (b) and ( j) GATT, as well as of Article XXI (b) (iii) GATT. The article finds that the GATT provides a solid legal framework for both the exemption and justification for Covid-19 related trade measures; additionally, it raises the question of whether Article XXI (b) (iii) GATT likewise provides an appropriate legal basis to justify Covid-19 related trade restrictions. Covid-19, pandemic and trade, export restrictions, WTO exceptions, national security
{"title":"Exempting and Justifying Covid-19 Related Export Restrictions Under WTO Law","authors":"Chieh Huang","doi":"10.54648/leie2021016","DOIUrl":"https://doi.org/10.54648/leie2021016","url":null,"abstract":"WTO Members have adopted various trade-related measures under their domestic laws in response to the outbreak of Covid-19. The article discusses ways to exempt or justify quantitative export restrictions or bans which are in principle prohibited by Article XI:1 GATT.To this end, it sheds a light on the different scopes and requirements of Article XI:2 (a), Article XX (b) and ( j) GATT, as well as of Article XXI (b) (iii) GATT. The article finds that the GATT provides a solid legal framework for both the exemption and justification for Covid-19 related trade measures; additionally, it raises the question of whether Article XXI (b) (iii) GATT likewise provides an appropriate legal basis to justify Covid-19 related trade restrictions.\u0000Covid-19, pandemic and trade, export restrictions, WTO exceptions, national security","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84261573","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Individual states increasingly rely upon targeted economic sanctions to achieve their foreign policy goals. The legality of such unilateral sanctions remains debatable in public international law. However, their proliferation and possible negative repercussions encourage targeted states to question their legality before international tribunals, including the World Trade Organization (WTO) dispute settlement system. Against this backdrop, the article analyses three types of recently enacted unilateral targeted sanctions. In particular, sanctions imposed on human rights grounds (‘Magnitsky-style sanctions’), those targeting perpetrators of cyber-attacks, and sanctions impacting trade in information and communications technology and services (ICTS) (e.g.,Huawei sanctions) are discussed. The subsequent analysis focuses on the possible WTO-inconsistency of these economic restrictions. Following this, the possibility to justify such sanctions under the national security exception of Article XXI(b)(iii) of the General Agreement on Tariffs and Trade (GATT) is explored. The conclusion emphasizes that the national security exception cannot be used to justify all types of unilateral economic sanctions, even if these measures are introduced to address national security concerns. This conclusion not only demonstrates inevitable boundaries of the national security clause but also reinforces the general tendency of questioning the legality of unilateral economic sanctions. economic sanctions, national security, WTO, Magnitsky-style sanctions, cyber sanctions, information and communications technology and services, Huawei sanctions
{"title":"Targeted Economic Sanctions and WTO Law: Examining the Adequacy of the National Security Exception","authors":"I. Bogdanova","doi":"10.54648/leie2021010","DOIUrl":"https://doi.org/10.54648/leie2021010","url":null,"abstract":"Individual states increasingly rely upon targeted economic sanctions to achieve their foreign policy goals. The legality of such unilateral sanctions remains debatable in public international law. However, their proliferation and possible negative repercussions encourage targeted states to question their legality before international tribunals, including the World Trade Organization (WTO) dispute settlement system. Against this backdrop, the article analyses three types of recently enacted unilateral targeted sanctions. In particular, sanctions imposed on human rights grounds (‘Magnitsky-style sanctions’), those targeting perpetrators of cyber-attacks, and sanctions impacting trade in information and communications technology and services (ICTS) (e.g.,Huawei sanctions) are discussed. The subsequent analysis focuses on the possible WTO-inconsistency of these economic restrictions. Following this, the possibility to justify such sanctions under the national security exception of Article XXI(b)(iii) of the General Agreement on Tariffs and Trade (GATT) is explored. The conclusion emphasizes that the national security exception cannot be used to justify all types of unilateral economic sanctions, even if these measures are introduced to address national security concerns. This conclusion not only demonstrates inevitable boundaries of the national security clause but also reinforces the general tendency of questioning the legality of unilateral economic sanctions.\u0000economic sanctions, national security, WTO, Magnitsky-style sanctions, cyber sanctions, information and communications technology and services, Huawei sanctions","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78350018","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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