Criterion of full functionality as a determinant of the mode of market power concentration | Author : Nataliia MAZARAKI, Anzhelika GERASYMENKO | Abstract | Full Text | Abstract :The article examines the institution of joint ventures in the context of competition law. Depending on the strategy of interaction chosen by the parents of the joint venture and the focus on control or coordination relations, joint ventures may generate heterogeneous risks for the competitive environment. They should be investigated and controlled under different procedures: the procedure for controlling the concentration of economic entities or the procedure for controlling concerted actions of economic entities. Guided by the institutional analysis of the methods of market power concentration and the European experience of competition policy (law-making and law enforcement), the authors of the article propose, test and find confirmation of the hypothesis regarding the ability of the criterion of the full-functionality of a joint venture's economic activity to determine the method of market power concentration chosen by its founders and, ultimately, to determine the application of the control procedures corresponding to it. In particular, full-functionality is a sign of the concentration of business entities as opposed to their concerted actions. The introduction of the full-functionality criterion into Ukrainian legislation on the protection of economic competition is, on the one hand, a step closer to the EU acquis, and on the other hand, a way to increase the efficiency of antitrust control procedures. The article also suggests ways to improve further the practice of applying the relevant criterion as a lever for switching the antimonopoly control regimes depending on the method of market power concentration. |
| EU customs reform: implementation in Ukraine | Author : Taras KARAVAYEV, Nina KALUHA | Abstract | Full Text | Abstract :One of the fundamental institutions of the European Union is the Customs Union, which manages the external borders of the EU, by establishing customs rules, measures of tariff and non-tariff regulation. This ensures the leading position of the EU as one of the largest trade blocs in the world. However, in the last decade, the EU customs authorities faced many challenges, which indicate the non-compliance of the existing EU customs system with modern requirements. The IT systems of the EU customs authorities cannot cope with the huge volume of declarations, especially in e-commerce. Illegal and non-compliant goods continue to enter the EU and pose a threat to citizens' safety. This became the impetus for the most ambitious and comprehensive reform of the EU Customs Union announced by the European Commission in May 2023. The research hypothesis is to confirm the relevance and expediency of the most ambitious and comprehensive EU Customs reform and its implementation in Ukraine. The purpose of the article is to outline the main prerequisites and essence of the EU customs reform, the creation of a new EU e-Customs and prospects for its implementation in Ukraine. To achieve indicated goal, the methods of analysis, synthesis, scientific generalization and comparison of scientific sources were used. The EU customs reform is based on three pillars: a new partnership with business; a smarter approach to customs inspections; a more modern approach to e-commerce. The main goal of the reform is the creation of a new EU Customs Authority, which will function on the basis of the new EU e-Customs and control the EU Customs Data Hub. For the implementation of e-Customs in the EU, the Multi-Annual Strategic Plan for electronic Customs (MASP-C) was introduced, which provides for the development of more than 40 customs IT-systems and their implementation schedule. In accordance with the National Revenue Strategy until 2030 and the Long-term National Strategic Plan for Digitization of the State Customs Service in Ukraine, it is planned to develop and implement 17 customs IT systems compatible with the corresponding European ones. Thus, the work of Ukrainian customs must be synchronized with the new EU Customs Authority, which confirms Ukraine's steady movement towards the EU, particularly in the customs sphere. |
| What damage is a "direct" consequence of war: the practice of the UN Compensation Commission | Author : Bohdan KARNAUKH | Abstract | Full Text | Abstract :The article is devoted to the analysis of the practice of the UN Compensation Commission from the point of view of the problem of establishing a causal link between a military invasion and the damage, for which the victims claim compensation. From the point of view of methodology, the article is based on the tradition of legal realism: the empirical material of the study is the Commission's findings based on the results of the review of claims and the Commission's general recommendations. The first part outlines the main provisions on establishing causation. The author distinguishes between two studies required to establish a legally relevant causal link, namely, the "if not" test and research on the remoteness/proximity of the causal link. It is substantiated that the delictual risk should serve as the criterion of remoteness/proximity of causation: the act should be considered a sufficiently proximate (i.e., legally relevant) cause of harm, if such a harm falls within the range of foreseeable risks created by the act at the time of its commission and due to which (risk) this act is recognized as delictual. The second part of the article analyses the practice of the UN Compensation Commission regarding consideration of claims for compensation for damage caused by Iraq's illegal invasion of Kuwait and the subsequent occupation of Kuwait in 1990-1991. The hypothesis is put forward that although the Commission declared the principle of "direct" causation as the criterion of the remoteness of damage, the Commission's findings are better explained through the criterion of delictual risk and legal policy considerations. Regarding the justification of this hypothesis, a number of the Commission's decisions are provided. The decisions on compensation for injury inflicted to life and health, and separately – decisions on compensation for damage caused to property and property interests, were investigated separately. It has been established that since an aggressive war is the most serious crime against humanity (an internationally wrongful act erga omnes), the limits of responsibility for such acts must be appropriate and proportionate to the scale of the atrocity. In particular, they must cover all those multiple and diverse risks that can be reasonably foreseen as a likely consequence of a military invasion, even if the causal link between the war and the damage is indirect and involves additional links or interventions of third parties. |
| Principles of harmonization of EU tax law | Author : Ruslana HAVRYLYUK, Petro PATSURKIVSKYY | Abstract | Full Text | Abstract :The general relevance of the study is due to the beginning of Ukraine's immediate preparation for EU membership, and the scientific relevance is due to the lack of scientific developments in the Ukrainian tax law science of the principle of harmonization of EU tax law from European doctrinal approaches. The legal study is based on the hypothesis of legal certainty as the meaning of the principle of harmonization of EU tax law. The methodological tools for testing this hypothesis are based on the axiological, anthropo-socio-cultural and genetic approaches to the subject of knowledge and the general scientific principles of objectivity and historicism. The paradigmatic matrix of the principle of legal certainty as the meaning of harmonization of EU tax law is rooted in its primary law. The latter plays a system-forming role in the formation and implementation of this principle of EU law. The purpose of harmonization of the EU tax law is to ensure the functioning of the EU internal market and its fundamental economic freedoms – the free movement of labour, goods, capital and services. The main forms of manifestation of the principle of harmonization of the EU tax law are the framework harmonization of its legislation in the field of indirect taxation and the minimum harmonization of the legislation of the Member States in the field of direct taxation. The dominant role belongs to the first of them. This is due to the nature of the European Union as a civilizational phenomenon and legal space. The EU case law plays a special role in harmonizing the tax legislation of the EU and its member states. In its judgments, the EU Court of Justice has developed a universal legal matrix for this harmonization in the form of the principles of direct action and the supremacy of EU law. The EU case law crowns the framework of legal certainty in the EU tax and legal area. |
| Establishment of the child's place of residence by the European Court of Human Rights | Author : Nataliia DOBRIANSKA | Abstract | Full Text | Abstract :The article is devoted to the generalization of the legal approaches of the European Court of Human Rights to solving the issue of determining the child's place of residence. The relevance of the topic of this study is due to migration processes, as well as the complication of legal regulation of family relations, in particular, in disputes arising during the determination of the child's place of residence. In such conditions, when resolving disputes by national courts about the determination of the child's place of residence, it is important to take into account the practice of the European Court of Human Rights in the relevant category of cases. The basis of this study is the hypothesis that, according to the legal position of the European Court of Human Rights, the principle of taking into account the best interests of the child should be applied when solving any issues related to the child. At the same time, the application of this approach cannot be reduced to some single way of solving the issue of establishing the child's place of residence with one of the parents – the mother or another relative, since in each specific case national courts have to clarify a number of issues. In order to verify the above hypothesis, the author reviewed a number of decisions of the European Court of Human Rights, which relate to the issue of determining the place of residence of a child, illegal movement of a child across the state border of the country of origin, etc. As a result of the conducted research, the proposed hypothesis was partially confirmed and it was found that although there really is no universal legal position of the European Court of Human Rights regarding the procedure for taking into account the principle of the best interests of the child, the study of such practice shows that the Court adheres to the position according to which national courts must carefully check all the circumstances of the case, involve, if necessary, pedagogical workers, psychologists in order to act in the best interests of the child. |
| Screening of direct foreign investments | Author : Serhii KUCHERIAVENKO | Abstract | Full Text | Abstract :The article is devoted to a comprehensive study of the concept of "foreign direct investment screening" as a mechanism for controlling and verifying foreign direct investment with regard to its possible negative impact on the investment object and the national interests of the state in general. An obvious trend of recent decades in the field of foreign investment regulation is the introduction of state mechanisms for assessing their impact. Despite the generally positive effect of investment inflows into the economy, the acquisition of control over certain business entities by foreign states and investors may pose threats to the recipient country. That is why states are simultaneously trying to reduce the regulatory burden for foreign investors and introduce procedures for granting FDI permits, which in scientific sources and certain jurisdictions have acquired the term "foreign direct investment screening". Taking into account the work of foreign scholars, international organisations, analytical centres, and foreign legislation, the hypothesis of this study will be the statement that the effectiveness of FDI screening mechanisms depends on competent legal regulation of FDI permitting procedures, the powers of the responsible body, and the definition of verification criteria, which should be taken into account in the definition of the concept of "FDI screening" and for the development of this mechanism by legislators. Thus, the development of an interpretation of the meaning of the concept of "foreign direct investment screening" became the purpose of this study, to achieve which the genesis of introducing FDI screening was clarified and the purpose was determined, a comparative legal analysis of the legislative and doctrinal definitions of the concept of FDI screening was conducted, and the components of the FDI screening mechanism were formulated. On the basis of the identified components of FDI screening, an interpretation of the relevant term is proposed. The abovementioned has determined the structure of this study, and its substantiated conclusions were made possible thanks to the doctrinal analysis of publications by domestic and foreign scholars, content analysis of reports of international organisations, and a study of the Princeton University Politics and Regulation of Investment Screening Mechanisms (PRISM) dataset. |
| Land payment: conflicts of tax legislation | Author : Kateryna NEDOSTUP, Natalia HRES | Abstract | Full Text | Abstract :The legislative perfection of the procedure for introducing local taxes into the tax system and the procedures for their collection contributes to the filling of local budgets. The purpose of the article is to verify the consistency of the provisions of Chapter XII of the Tax Code of Ukraine (in the part of land payment) with the provisions of Articles 7, 10, 15, 22 of this legal act. Such scientific cognition methods as content analysis, systemic and structural analysis, logical analysis (analysis, synthesis, generalization, deduction, induction) were used during the study. The argumentation was applied. It has been clarified, which taxes are subject to taxation of land plots that are in ownership, temporary paid ownership or use. It was noted the difference in the names of mandatory, unconditional payments to the local budget in the text of Article 10 and Chapter XII of the Tax Code of Ukraine (TCU). The fallacy of the legislative definition of one tax as an integral part or form of another tax is emphasized (according to the Tax Code of Ukraine, the land payment is the part of the property tax, its forms are the land tax, the rent for land plots of state and communal property). In the text of Article 273 of Section XII of the Tax Code of Ukraine, the forest land tax is mentioned, which is not included in the mandatory list of local taxes and in the parts of the property tax. It was noted that it includes one local tax (land tax) and one national mandatory tax payment (rent). It was found that the degree of regulation of the mandatory elements of the land payment, land tax and rent does not fully comply with the requirements of paragraph 7.1 of Article 7 of the Tax Code of Ukraine. It was proved that the content of Section XII of the Tax Code of Ukraine (in the part of land taxation) is not consistent with the provisions of Article 10, 15, 22 of this legal act. Nowadays, land tax and rent are collected in Ukraine. However, their mandatory elements need to be immediately streamlined. The phrase "land tax" that is used in the text of the Tax Code of Ukraine as the name of the tax, should be interpreted as the name of the subgroup of mandatory unconditional payments to the local budget, which are collected from the owners of land plots and land users, which is part of the "Property taxes" group. |
| Interaction of the Economic Security Bureau of Ukraine with institutions of civil society | Author : Victoria PYLYP | Abstract | Full Text | Abstract :In modern conditions, civil society institutions play a significant role in the state development of Ukraine. Currently, proactive citizens are using all legally permissible means to restore the disturbed security environment and repel the armed aggression. Their role in ensuring the economic security of the state is no less important. After all, as determined by the Basic Law of Ukraine, economic security is one of the main priority areas of the state's activity and the cause of the entire Ukrainian people. One of the most significant threats to the economic security of the state is crime of an economic nature. An important role in countering it is played by the Economic Security Bureau of Ukraine, with which civil society institutions also enter into interaction. Legal literature has repeatedly highlighted the possibilities of interaction between law enforcement agencies and institutions of civil society, but the forms of their interaction with the Economic Security Bureau of Ukraine have been overlooked. The lack of comprehensive research led to the selection of the goal of the article to determine the administrative and legal forms of interaction between the Economic Security Bureau of Ukraine and civil society institutions. The achievement of the specified goal was facilitated by the use of the following research methods: analysis and synthesis, system-structural, system analysis. The analysis of normative legal acts regulating the procedure of the activity of this Bureau and the Council of Public Control, established under it, was carried out. It was found that the interaction of civil society institutions and the Bureau is carried out in the following forms: the participation of civil society institutions in rule-making activities; involving representatives of civil society institutions to participate in law enforcement activities; participation in the formation of personnel potential, including in the implementation of public control over compliance with the requirements of competitive selection. |
| Legal provision of urban planning: the case of parking lots | Author : Oleksii ALYONKIN, Serhii KORETCKIY | Abstract | Full Text | Abstract :The legal regulation of measures in the field of state policy aimed at overcoming the problem of providing owners of private cars with a sufficient number of parking spaces for motor vehicles was highlighted. The purpose of the article is to review the cause-and-effect relationships of the existence of the problem of an insufficient number of parking spaces for private motor vehicles in cities and to make proposals for the introduction of measures of legal influence, in particular by administrative and legal means, taking into account the requirements of land legislation aimed at solving the specified problem. The following methods were used: dialectical, hermeneutic, systemic, analysis and synthesis, induction and deduction, formal-legal, etc. It is emphasized that parking places for private motor vehicles are an indispensable component of the city's public buildings. It is noted that the principle of "step accessibility", which is used in Ukrainian cities to ensure law and order, provide administrative services, medical care, etc., should be used during the formation of an extensive network of parking places for private motor vehicles. It was determined that there are no normatively approved, scientifically based methods for calculating the required number of vehicle parking spaces in cities in our country. On this basis, it was concluded that the mentioned fact does not allow to carry out equivalent planning of the development of Ukrainian cities taking into account the specified problem. It is emphasized that it is impossible to overcome the problem of violation of parking rules in cities, in particular by private motor vehicles, especially by applying administrative and legal sanctions. The relevant European experience of legal regulation of vehicle parking is considered. It was emphasized that in Ukrainian realities, the owner of a motor vehicle mostly violates the parking rules due to the lack of places for this. Practical steps aimed at developing a methodology for calculating the required number of vehicle parking spaces for motor vehicles in cities are proposed, in particular holding a competition for the design of a unified functional module of underground parking, with its further regulatory approval. It is emphasized that if there is a developed and legally formalized appropriate methodology in Ukraine, there will be a real possibility of developing public buildings, taking into account the urgent needs of a specific city, namely in parking places for private motor vehicles. |
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