Supranational Norms Research Articles

Мобілізація внутрішніх доходів держави в надзвичайних ситуаціях: протидія розмиванню податкової бази та виведенню прибутку з-під оподаткування

Introduction. Against the background of the post-covid recovery, destroyed by the strengthening phenomena of deglobalization, fragmentation, uncertainty, conflictogenicity, considerable efforts of the member states of the European Union (EU) are aimed at provision of increased financial resources for state needs through restriction of unfair tax practices. Problem Statement. Domestic Revenue Mobilization (DRM) directs the efforts of countries to increase their own incomes and resources of domestic economy by collecting taxes, duties and other revenues. The task must be completed without additional pressure on the business environment and does not aim to increase the tax burden on small and medium-sized enterprises that have been significantly negatively impacted by the COVID-19 epidemic, the main tools of impact should be focused on combating tax evasion by multinational companies and their beneficiaries and preventing tax base erosion in Ukraine in the post-pandemic and post-war recovery period. The purpose of the article is to substantiate the fact that for Ukraine, as a candidate for members of the EU, it is important not only to implement the experience of the EU member states in limiting the ability of multinational companies (MNCs) to apply hybrid instruments for tax base erosion using international structures, but also further systemic harmonization of domestic fiscal regulation in accordance with the best practices and modern rules for the prevention of profit shifting and base erosion (BEPS), which are constantly changing within the framework of supranational norms. Methods. The methods of system-structural analysis, retrospective analysis, analytical, systematization, comparative, dialectical and formal logic were used. Results. The crisis period of post-Covid recovery has become more complicated by the armed invasion of the Russian Federation on the territory of our country, which requires a search of internal revenue mobilization mechanisms to solve current state obligations, as well as for the formation of economic and epidemiological security of the state in the period of post-war recovery for the sake of preservation of socio-economic development and formation of reliable nation’s health care system. Conclusions. The introduction of reporting on controlled transactions, CIC, as well as tax payment by jurisdiction (Country by Country reports) is a progressive step in the direction of overcoming the asymmetry of tax information at the global level. For the effective implementation of all mentioned tools after the accession of the country to the Multilateral Agreement on Competent Authorities (MCAA CRS), it is necessary to focus efforts on the regulatory framework for the implementation of European directives, such as ATAD I and II, the implementation of the provisions of DAC7 for the control of digital activities and inclusion in the exchange information on income from intellectual property in the digital economy, as well as the formation of institutional conditions for the implementation of Pillar 1 and 2 at the national level.

Kontekst jest wszystkim. O trudnej sztuce komparatystyki „europejskiego” orzecznictwa sądów konstytucyjnych

Context is Everything. On the Difficult Art of “European” Comparative Studies Jurisprudence of Constitutional Courts Comparative research of the case-law of constitutional courts concerning the membership of a given state in the EU (referred to in the article as “European” case-law of constitutional courts) requires taking into account various contexts in which this case-law is involved. The aim of this article is to indicate and analyze the most important of them, namely: the systemic context, the temporal context, the political context (including related problem of the politicization of the constitutional court), and the theoretical context. Moreover, the article draws attention to the necessity to contextualize “constitutional borrowings”, which acquires special meaning in connection with the perceived phenomenon of abuse of the “comparative argument”. Sometimes the distinguished contexts overlap, for example in the case of the temporal context and political context, but their separation allows for a better understanding of the complexity of comparative research on the European acquis constitutionnel. The specificity of this subject of legal-comparative research proves the correctness of the thesis that the contemporary constitutional comparative law must face several challenges. The first is the integration of the classical “horizontal” comparative method with the “vertical” dimension related to the influence of international and supranational norms on national constitutional systems. The second challenge is related to supporting an interdisciplinary approach to comparative constitutional law, which will take into account the perspective of social sciences, such as political science, sociology or history. The third challenge, then, is related to establishing the right balance between focusing on specific (not only) legal issues related to the analyzed issue and taking into account a broader vision of the directions of changes in European constitutionalism. The fourth challenge, in turn, concerns the popularization of the results of scientific research related to comparative studies of the “European” acquis constitutionnel. The last (and perhaps the most difficult) challenge facing the comparative research of “European” case law of constitutional courts is an attempt to answer the question to what extent this diverse jurisprudence conglomerate is a manifestation of the stability of constitutional law and the constitution, and to what extent it is a driving force for dynamic changes in contemporary public law.

The New European Union Whistleblowing Directive: In Comparison to Indonesia’s Practice

With the European Union Whistleblowing Directive (2019), the topic of whistleblowing is becoming increasingly important for EU MS’s public and private entities. Whistle-blowers might play a vital role in exposing corruption, fraud and mismanagement of the EU’s supranational norms. The Directive introduced minimum standards for the protection of whistle-blowers and obliges many public and private entities to introduce their own internal whistleblowing channels. The EU also can take some lessons from Indonesia about the practice and obstacle in implementing whistleblowing system. The aim of this article is to introduce the new EU Whistleblowing Directive’s main features and some presumable obstacles for implementation. The hypothesis is that the new Directive might enhance the fairwork-place environment, roll back fraud and corruption, reduce work-related wrongdoing and manage equal treatment and no-discrimination policy including bullying and sexual harassment. However, some theoretical and pragmatic discrepancies will be introduced as well.

Is Citizenship Dead?

Globalization has eroded borders, fostered mobility, and deepened inequality virtually everywhere. The waning of the state as the world’s default political unit has had myriad consequences; among the most challenging may be the simultaneous expansion of supranational norms of human rights and contraction of legal, enforceable citizenship. The upheavals of the Arab Spring provided eloquent testimony to both the appeal of rights-based political discourse, as protesters across the region called for “bread, freedom, and social justice,” and the catastrophic consequences of reliance on weakened and ineffectual states to enforce such rights. The baleful landscape of the Middle East today suggests a warning for the rest of the world: enfeebled states may herald the demise of universal human rights.

A socialization paradox: trade union policy cooperation in the case of the enforcement directive of the posting of workers directive

AbstractThe formulation of common political positions from the trade union movement at the European Union (EU) level mainly takes place at the European Trade Union Confederation (ETUC). In the case of the Enforcement Directive of the Posting of Workers Directive, a central cleavage line runs between neither countries nor political parties, but between different vertical levels of the system of European labor relations—the sectoral and interprofessional levels. Here, due to both horizontal and vertical differences, trade unions were unable to effectively formulate and pursue joint positions. On these grounds, we aspire to provide a theoretical argument on political dynamics in the EU’s multilevel system. While the ETUC representatives internalize supranational norms through their embeddedness in the EU’s institutional landscape, this socialization process does not advance—but rather prevents—integration by disrupting trade union power at the supranational level.

Social Rights in Refugee Law and Human Rights Law: The Non-discrimination Principle as a Harmonization Tool

Social Rights in Refugee Law and Human Rights Law: The Non-discrimination Principle as a Harmonization Tool

Transnationalism and Financial Regulation Change: A Case of Derivative Markets

This article investigates the transnational flow of state, non-state and supranational norms governing over-the-counter (OTC) derivatives at both the contractual and regulatory level. Our analysis reveals that the flow of these norms has fashioned a multi-layered transnational legal order. The flow of norms involves the dynamic processes of ‘uploading’ by powerful markets and ‘downloading’ by peripheral states. Asymmetry in economic power between states drives the transnational flow of norms, which are carried by players such as financial intermediaries, professionals, international organisations and regulators. We observe that various factors may affect the outcomes of transnational flow, resulting in different degrees of convergence or divergence in peripheral states. We examine the norms governing OTC derivatives and find that the transnational flow of contractual norms (specifically the International Swaps and Derivatives Association Master Agreement) results in a high degree of convergence. However, the downloading of regulatory norms depends on the economic situation, market conditions and other national interests of peripheral states. This article shows that powerful states can expect smaller markets to accept uploaded norms when the benefits involved are reciprocal and the norms do not conflict with more pressing local concerns. Under the right conditions, therefore, regulations can be globally harmonised without the need for international treaties.

The European Court of Human Rights, the EU Charter of Fundamental Rights and the Right to Abortion: Roe V. Wade on the Other Side of the Atlantic?

This Article analyzes the legal regulation of abortion within the context of Europe’s multilevel system for the protection of fundamental rights. The Article examines the constitutional dynamics and challenges that emerge in the field of abortion law from the overlap between national and supranational norms in Europe, comparing the European multilevel architecture with the United States (U.S.) federal system. To this end, the Article summarizes the main trends in the regulation of abortion in the various European Union (“EU”) countries, assesses the growing impact of the EU and the European Convention on Human Rights in the field of abortion law, and emphasizes how supranational law generates new pressures and creates several inconsistencies within the domestic legal systems of those states which restrict abortion rights. It then explores how analogous dynamics have historically been at play in the U.S. federal system. Finally, the Article evaluates — in light of the U.S. experience — the potential consequences upon the European abortion regime of the most recent developments in the European Court of Human Rights case law and the entry into force of the EU Charter of Fundamental Rights via the Lisbon reform Treaty.

Above and Below the Surface: The Status of Sub-National Authorities in EU Climate Change Regulation

European Union (EU) legal studies generally picture the Member States’ local and regional authorities as implementers of national and supranational norms rather than independent regulators. Yet, sub-national authorities (SNAs) have become active regulators in the context of climate change mitigation and adaptation, a role not foreseen by EU primary law, which this article understands to constitute the surface of EU law. This article examines regulatory activity of SNAs from the perspective of EU law. It illustrates that sub-national, national, supranational and international actors are engaged in a process of mutual learning and experimentation and that, below its surface, EU law recognises that SNAs are not mere implementers of norms but also independent regulators.

WORKING FOR EUROPE? SOCIALIZATION IN THE EUROPEAN COMMISSION AND AGENCIES OF THE EUROPEAN UNION

The trend towards flexible career arrangements has not left EU institutions untouched, as is manifest in the growing reliance on temporary and part‐time officials. How does the increasing career hybridity within and across EU institutions affect European socialization, i.e. the extent to which officials embody the spirit of ‘working for Europe’ and adopt supranational norms? We conceptualize European socialization as a mutually reinforcing process shaped by the interaction of officials with the institutions of which they are members. We argue that a focus on career arrangements provides a good starting point as these arrangements shape individuals' interaction with the organization. Consequently, they generate diverging socialization processes which lead to different socialization products. Our empirical insights are based on a study of different types of career arrangements within the European Commission bureaucracy and specialized and independent EU agencies through structured and semi‐structured interviews and surveys with officials.

Turkish Accession and Defining the Boundaries of Nationalism and Supranationalism: Discourses in the European Commission

The European Union in general and the European Commission in particular are characterised by supranational governance. The enlargement policy gives the Commission the opportunity to export and promote supranational norms and define the boundaries of Europe as a supranational polity through the conditionality of membership and intensive contact with the candidate countries. This article analyses the discourses of the Commission on Turkey and gives us insights into how well Turkey fits the supranational model in the eyes of Commission officials. It demonstrates how the boundaries of supranationalism are set and even challenged by the prospects of Turkey's accession.

Comunidades indígenas, tierra y recursos naturales frente a las políticas públicas del Estado Colombiano

El objetivo de este estudio se concentro en identificar porque los gobiernos han ignorado los preceptos constitucionales y las normas supranacionales al expedir políticas de estado para las comunidades indígenas que menoscaban los derechos que ostentan sobre sus tierras y recursos naturales, Para tal efecto, se hizo uso del método analítico crítico descriptivo, arrojando como resultado que en la nación no existen políticas públicas indigenistas en esta materia como tal. Concluyendo que es necesario dar aplicación a la consulta previa, libre e informada estipulada en el Convenio Internacional 169 de la OIT en la implementación de políticas públicas que los involucren.

Impact of Legal Culture and Legal Transplants on the Evolution of the U.S. Legal System

This article is based on the United States National Report to the 2010 International Congress of Comparative Law on Legal History and Ethnology: Legal Culture and Legal Transplant. It traces the United States experience in acceptance of legal transplants at critical times in the evolution of its legal systems. It addresses the transplantation of English common law to the United States in the colonial and post-revolutionary war eras, noting the limited impact of the French civil code tradition. It next discusses development of the national market place, evolution of uniform state laws and in more recent times the transplantation of supranational norms via the Supremacy and Treaty clauses of the United States Constitution into the United States legal system. It then analyzes the matrimonial law of the community property regime of Texas and Louisiana within the political, social, human, philosophical and linguistic context of these States.

The European Commission's Evolving Role in Conflict Resolution

The main aim of this article is to examine the role-perception and operation of European Commission officials towards Northern Ireland and the peace process. A relative gap in the theoretical literature, until recently, on the Commission's endogenous preferences is highlighted. The main conclusion is that the European Commission's preferences towards conflict resolution in Northern Ireland have altered since 1994 and that Commission officials exhibit a greater analytical understanding and proactive approach to Northern Ireland. The cause of this change has not been socialization into `European' supranational norms, but instead has reflected the impact of British and Irish cooperation and agreement.

Several Roads Lead to International Norms, but Few Via International Socialization: A Case Study of the European Commission

Can an international organization socialize those who work within it? The European Commission of the European Union is a crucial case because it is an autonomous international organization with a vocation to defend supranational norms. If this body cannot socialize its members, which international organization can? I develop theoretical expectations about how time, organizational structure, alternative processes of preference formation, and national socialization affect international socialization. To test these expectations for the European Commission, I use two surveys of top permanent Commission officials, conducted in 1996 and 2002. The analysis shows that support for supranational norms is relatively high, but that this is more because of national socialization than socialization in the Commission. National norms, originating in prior experiences in national ministries, loyalty to national political parties, or experience with one's country's organization of authority, decisively shape top officials' views on supranational norms. There are, then, several roads to international norms.For comments and advice, I am grateful to Jeffrey Checkel, Gary Marks, Donald Searing, and the editors and two anonymous reviewers for International Organization. An earlier draft was presented at the Center for European Studies of the University of North Carolina at Chapel Hill. This project received funding from the Center for European Studies, University of North Carolina at Chapel Hill, and from two grants by the Canadian Social Sciences and Humanities Research Council (1996–99, 1999–2002). Gina Cosentino, Erica Edwards, Michael Harvey, and Moira Nelson provided research assistance.

Europeanization and the “Needle's Eye”: The Transformation of Employment Policy in Germany1

AbstractWhat have been the impacts of Europeanization in European Union (EU) member states in the domain of employment policy from a gender perspective? The essay explores this question for one of the traditional “male breadwinner–female caretaker” gender policy regimes in the EU—the case of Germany. Since German women's employment status is behind the status of women in many other EU countries, it has been expected that the impact of European (EC) equal opportunity and equal treatment norms on domestic policy change has remained minimal (Ostner & Lewis, 1995). This, however, is not the case any more. On the contrary, it is argued that Europeanization, although against considerable domestic resistances and with delays, helps to “gender” German public employment policy, namely in three respects: with respect to underlying gender norms, regarding the distinction of gender specific target groups and scope, and the introduction of innovative gender‐sensitive policy instruments. This claim is illustrated by three examples. An explanation for these shifts is developed that accounts for member state change despite misfits with EU norms, not as a consequence of legal compliance mechanisms, but as an outcome of a combination of three mechanisms—the politicization of controversial issues, shifts in dominant discourses, and political advocacy building—conducive to the “gendering” of Europeanization.

Who Counts? Supranational Norms and Societal Needs

Who Counts? Supranational Norms and Societal Needs

Reconciling international human rights and cultural relativism: the case of female circumcision.

How can we reconcile, in a non-ethnocentric fashion, the enforcement of international, universal human rights standards with the protection of cultural diversity? Examining this question, taking the controversy over female circumcision as a case study, this article will try to bridge the gap between the traditional anthropological view that human rights are non-existent -- or completely relativised to particular cultures -- and the view of Western naturalistic philosophers (including Lockeian philosophers in the natural rights tradition, and Aquinas and neo-Thomists in the natural law tradition) that they are universal -- simply derived from a basic human nature we all share. After briefly defending a universalist conception of human rights, the article will provide a critique of female circumcision as a human rights violation by three principal means: by an internal critique of the practice using the condoning cultures' own functionalist criteria; by identifying supra-national norms the cultures subscribe to which conflict with the practice; and by the identification of traditional and novel values in the cultures, conducive to those norms. Through this analysis, it will be seen that cultural survival, diversity and flourishing need not be incompatible with upholding international, universal human rights standards.