Du contrôle juridictionnel de l'intervention publique à l'encadrement juridique par l'intégration économique régionale ou globale: aides publiques et fiscalité – quelques pistes pour un programme de recherche
Revue internationale de droit économique, 2002, vol. t. XVI, issue 2, pages 313-328
The report addresses the question whether and how economic globalisation affects the development of national rules governing public intervention into the market place, or whether the erosion of the interventionist power of States is due to changes of political and economic thought, by presenting a research agenda of comparative public law based on three hypothesis : First, public intervention into the market place, in particular by way of subsidies granted to enterprises and of fiscal measures, has been a core element of State sovereignty so that the limitation to which it has become subject due to regional integration and globalisation puts into question the very fundament upon which the law governing such interventions rest. Second, the establishment of judicial control over public intervention into the market place by virtue of such framework rules of 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 judicial control over State aids and fiscal measures. Third, however, this analogy may not be pushed to the assumption that the framework rules resulting from regional integration for State intervention, let alone the global rules for such intervention, might constitute the nucleus for the development of a global federal State. The first hypothesis is explained in more detail by a comparative historical summary of the State’s sovereign role in the economy and the rise of the rule of law as a way to control State intervention : it is much more the late result of the constraints of economic integration and globalisation than of the domestic evolution of the law. The substantiation of the second hypothesis constitutes a central part of the report, drawing extensively on French precedent, and contrasting it with both a comparative perspective and with the Treaty of Rome’s vision of missions of public service or, more precisely, of public interest. A main result of a more extensive examination of the proposed analogy may be that, contrary to what is frequently suggested, the limits which the law has set to State intervention in recent times are much more the result of framework building due to integration and globalisation than of a general change of political and economic thought. The third, cautionary hypothesis is explained, first, by reference to the organisation 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 Organisation have developed so far. In addition it is pointed to the differences which exist between the hierarchical structure of a State’s legal order and the over-lapping layers of national and supranational or international law that characterize the legal framework of globalisation. Such overlaps must be accommodated by reconciliatory rules of the kind that apply in cases of conflicts of laws, rather than by straightforward primacy rules. Thus, though due to their voluntary integration into a broader legal-economic framework, States may loose much of their sovereign power over territorial markets, that power does not necessarily accrue to the supranational or international organisation 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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