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Daniel Sarmiento
Common Market Law Review
Volume 50, Issue 5 (2013) pp. 1267 – 1304
https://doi.org/10.54648/cola2013132
Abstract
The Charter of Fundamental Rights of the European Union has forced the European Court of Justice and its national counterparts to face a series of difficult and principled questions: Who is the ultimate interpreter of fundamental rights in Europe? Which standard of protection is to be given priority? How does the Charter bind Member States when applying EU Law? This article argues that the first seminal decisions of the European Court of Justice on the matter, in particular the judgments in AkerbergFranssonand Melloni, have set the ground for a new framework of fundamental rights protection in the European Union. However, this framework does not depend on the sole authority of the Luxembourg court, but on a complex system of checks and balances that will demand complicity and commitment on the part of national supreme and constitutional courts.
Extract
This article is yet another attempt to tackle the issue of subsidy extinguishment, the enduring conundrum of WTO law. Early dispute settlement reports that addressed the matter concluded that privatization of a subsidy recipient at arm’s length and for fair market value terminates a benefit conferred by a subsidy, but were vague on why and how this specifically happens. Academic commentators criticized this outcome as economically irrational, since privatization does not result in a withdrawal of subsidized assets from the subsidy recipient and thus does not, per se, remedy the market distortion created by the subsidy in the first place. This article argues that privatization – or, in fact, any sale of a subsidy recipient – may extinguish a government subsidy if the buyer converts it into a private investment by paying for the subsidized asset the full amount of the government’s financial contribution less depreciation. However, effecting the transaction at arm’s length and for fair market value is not a sufficient condition for this to happen.
Journal of World Trade