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Ever since the European Coal and Steel Community, the principle of conferral has governed Community and Union action. The European Union may only act if, and insofar as, the Member States have authorised it to do so in the Treaties. To act, the Union needs 'competence'. What that concept means, however, is not always sufficiently clear. And that is a problem. 'Competence' is crucial. But it does not yet convey the same ideas in all actors. Through a thorough analysis of primary and secondary Union and Community law, their preparatory documents, and case law of the Court, this DPhil aims to change that. It argues that 'competence' is about more than competence alone. There is also power. Competence is the field in which the Union may act. Power is the EU's institutions' actual authorisation to act. To fall within a certain field of competence, a measure must pursue the objectives of that competence and relate to its subject matter. Those are the two dimensions of competence. Power, too, has two dimensions. It determines which legal instrument may be adopted through which type of legal act. There are also power modalities. They relate to the procedural side of the exercise of power: which EU institution(s) may act and through which voting majority. Together, these concepts form the common language of 'competence'. This conceptual nuance always existed in Community and Union law. Bringing it forward is desirable. Questions of 'competence' arise whenever the EU prepares to act. It is important that they can be answered with nuance and precision, and in a legal language which is understood by all participants in the debate. That is what this DPhil is about.

This thesis examines both the European Union and national rules governing e-commerce consumer transactions, and empirically investigates whether 300 traders from four countries (France, Germany, the Netherlands, and the United Kingdom) comply with these rules. By examining whether traders actually comply with their legal obligations, the thesis seeks to understand how consumer rules work in practice and determine factors of compliance. The thesis first maps the legal obligations of e-commerce traders under the national rules implementing the Unfair Contact Terms Directive, E-Commerce Directive, and Consumer Rights Directive. The second part investigates whether the 300 simulated e- commerce transactions comply with the 35 selected legal obligations (10,500 assessments). The ambition of the thesis is to define and measure the levels of compliance and to test four hypotheses: (H1) traders do not comply in full with their legal obligations; (H2) large traders are more likely to be compliant compared to SMEs; (H3) traders that are older are more likely to be compliant compared to companies that were incorporated more recently; (H4) traders that base their terms and conditions on pre-drafted standard contract terms are more likely to be in compliance with the selected legal obligations. Based upon the findings, the thesis offers targeted and actionable policy recommendations, in an attempt to promote an evidence based approach to regulating consumer contracts.

The Commonwealth of Australia and the European Union were each formed, in large part, with the goal of creating an internal market spanning the territory of all the constituent States, but with the intention that those constituent States should continue to enjoy a considerable measure of legislative autonomy to pass diverse laws for their own polities. In each case, this was to be achieved by the establishment of a federal (or federal-like) structure with a constitutional document adopted by the constituent States, which established this internal market of free trade between the States, and entrusted the task of adjudicating the compliance with these provisions to a central, union-level court. The High Court of Australia and the Court of Justice of the European Union have grappled with this task of how to balance the internal market against State legislative autonomy by evolving a strikingly similar jurisprudence - all the more noteworthy given the relatively limited judicial and scholarly exchange between the two systems. Both courts first ask whether the impugned law is such as to come within the scope of the free movement provisions, and then, if the law is within that scope, whether the law is nevertheless justified by reference to some legitimate purpose being pursued in a proportionate manner by the legislating State. Over the decades, both Australia and the EU have seen contention as to the proper definition of the scope of free movement provisions, with discrimination analysis and trade restriction analysis struggling for dominance. In Australia, discrimination analysis now dominates; in the EU, the jurisprudence has been cleft into several parts, some under discrimination analysis, others under trade restriction analysis. On the question of justification, Australia and the EU have evolved a considerable jurisprudential similarity both in form and in content, with this element being less controversial than the question of scope. In developing their jurisprudence of both scope and justification, the courts have played a significant role in determining the balance between the internal market and the preservation of State legislative autonomy in each system.

The aim of the thesis is to examine whether the prohibition of overcompensation in the Antitrust Damages Directive is compatible with the EU legal and normative framework. To this end, the analysis is carried out on two levels. First, the rationale for damages in the selected jurisdictions (England, France and Germany) and in the EU is examined to test the main underpinning justification for the prohibition of overcompensation in the Antitrust Damages Directive, i.e. the 'European legal tradition argument'. Second, the thesis addresses broader constitutional implications that underpin the debate on the desirability of the pursuit to prohibit overcompensation in the EU. These entail questions pertaining to the adoption of such measures and, thus, exploring whether the EU has the legitimacy to legislate and the related question of competence and the choice of the appropriate legal basis. The argument to be advanced in this thesis is that the aim of achieving a sufficient level of deterrence with awarding damages for EU competition law infringements stems from the very conceptual basis in which the right to damages is grounded - the principle of effective judicial protection and the principle of effectiveness. Thus, as the analysis reveals, the prohibition of overcompensation is inconsistent with the EU legal framework, since it has potential to jeopardise the deterrent or dissuasive function of antitrust damages actions. The prohibition of overcompensation has significantly contributed to the business-biased gist of the Directive, and thus to breaking the link between the rationale for the right to damages for EU competition law infringements, the legal basis and the content of the Directive. The thesis ultimately argues that the Directive's prohibition is incompatible with the principles of conferral, subsidiarity and proportionality, and to a considerable extent inconsistent with the EU's legal and normative framework.

The aim of the thesis is to address the jurisprudence of constitutional conflict between the Court of Justice and national courts with constitutional jurisdiction. It seeks to determine how the principle of primacy of EU law works in reality and whether the jurisprudence of the courts under analysis supports this concept. In so doing, the goal is to determine if the theory of constitutional pluralism can explain and guide the application of the principle of primacy of EU law in the jurisprudence of constitutional conflict. The analysis has been carried out on two levels. First, by exploring sovereignty claims by the courts under analysis, as well as reconciliatory vocabulary they employ to manage and contain constitutional conflict. Second, by further studying the three areas of constitutional conflict - ultra vires review, identity review, and fundamental rights review - to provide more nuance in the analysis of the way the Court of Justice has expanded the self-referential system of the Treaties; the different limits that constitutional adjudicators have placed on the principle of primacy as a result; and what possible solutions they envisage in the event of a constitutional conflict. All the courts under analysis have employed the vocabulary of mutual respect and self-restraint as principles guiding the resolution of constitutional conflict. Constitutional conflict is managed through incremental and permanent contestation and accommodation of their opposing claims to sovereignty (the auto-correct function of constitutional pluralism) that results in the uniform interpretation and application of Union law, but keeping in line with conferral as its defining principle. The analysis demonstrated the existence of a heterarchical constellation - the potential of all the courts involved for being ranked in a number of different ways at different times - grounded in mutual respect and self-restraint.

The rule of law is declared to be a foundational and guiding value of the European Union in Article 2 Treaty on European Union. The European Commission claims to be the 'guardian of the rule of law', and the concept has been determinative in judgments in the Court of Justice of the EU. However, the EU has not defined what exactly is meant by 'the rule of law'. This leads to the question: how can the EU claim to be guided by the rule of law, 'common to all Member States', but not provide an account of what that means in practice? To determine such an account, I examine contemporary accounts of the rule of law and identify the specific nature of the EU. I conclude that while the rule of law is a shared value across legal systems, distinct accounts develop within, and adapt to, each one. I advance an EU-centric account of the rule of law (EUCA) which is apt for the EU legal order. I advocate the value of EUCA first in abstract by providing reasons for why it is to the benefit of the EU Institutions, the Member States and individuals to endorse EUCA compliance. I then show the practical use of EUCA as a source of legitimacy from the perspective of Member States and individuals in the context of issues of contemporary and pressing concern in the areas of international trade, corporate taxation and the criminal law. I seek to bridge the gap between a theoretical account of the rule of law apt for the EU legal order, and the practical guidance it can provide in the resolution of crisis issues. I conclude on the essential importance of guarding, strengthening, and enhancing the rule of law throughout the EU, not just as a means of resolution in times of crisis, but as a guarantee of the future of the European Union.

The published work which forms the basis of this submission by the applicant for the Degree of Doctor of Philosophy represents an extensive research which has extended the boundaries of knowledge and understanding in relation to the jurisprudential adjudications by the Court of Justice concerning the application of the TFEU freedoms of goods, persons, services and capital to national measures. The publications maintain thematic analytical focus on the jurisprudential employment of the EU principles of non discrimination, market access and the rule relating to the 'selling arrangement' that are used as the modus operandi in the acquisition of Treaty free movement rights. The thread is law making; the published work evidences inconsistencies, complexities and confusions in the application by the Court of Justice of the modus operandi used to ensure acquisition of Treaty free movement rights. The research depicts a goods, persons, services and capital jurisprudence which displays a want of thematically consistent underpinning and some doctrinal diversity. It is the purpose of this Submission to exhibit the cohesiveness of the published work under review in the context of the contribution made to the knowledge and understanding of the jurisprudence of goods, persons, services and capital in European Union law.

Internet intermediaries facilitate a wide range of conduct using services supplied over the layered architecture of modern communications networks. Members of this class include search engines, social networks, internet service providers, website operators, hosts, and payment gateways, which together exert a critical and growing influence upon national and global economies, governments and cultures. This research examines who should face legal responsibility when wrongdoers utilise these services tortiously to cause harm to others. It has three parts. Part 1 seeks to understand the nature of an intermediary and how its liability differs from the liability of primary defendants. It classifies intermediaries according to a new layered, functional taxonomy and argues that many instances of secondary liability in English private law reflect shared features and underlying policies, including optimal loss-avoidance and derivative liability premised on an assumption of responsibility. Part 2 analyses intermediaries’ monetary liability for secondary wrongdoing in two areas of English law: defamation and copyright. It traces the historical evolution of these doctrines at successive junctures in communications technology, before identifying and defending limits on that liability which derive from three main sources: (i) in-built limits contained in definitions of secondary wrongdoing; (ii) European safe harbours and general limits on remedies; and (iii) statutory defences and exceptions. Part 3 examines intermediaries’ non-monetary liability, in particular their obligations to disclose information about alleged primary wrongdoers and to cease facilitating wrongdoing where it is necessary and proportionate to do so. It proposes a new suite of non-facilitation remedies designed to restrict access to tortious internet materials, remove such materials from search engines, and reduce the profitability of wrongdoing. It concludes with several recommendations to improve the effectiveness and proportionality of remedies by reference to considerations of architecture, anonymity, efficient procedures, and fundamental rights.

This thesis examines the topic of conflict of norms in European Union (EU) law and the legal reasoning of the European Court of Justice (ECJ), arguing that the framework of conflict of norms provides conceptual insight into justification and the role of value choices in legal reasoning. After examining the theory of conflict of norms, which seems to have been relatively under-studied generally and especially in EU law, it examines three particular aspects of norm conflict resolution in the legal reasoning of the ECJ and EU law: conflict of interpretative norms, especially the opposition between conserving and innovative interpretation; conflicts of human rights norms, looking in particular at the idea of a hierarchy of rights and of specificationism in the articulation of rights; and conflicts of competence norms. It concludes that the scope exists for a fuller justification of the choice of norms in the legal reasoning of the ECJ and generally in EU law and offers a perspective on how the values articulated by the EU suggest particular approaches to norm conflict resolution by the ECJ in its decision-making in these fields, in particular, a greater resort to lex specialis and originalist or historical interpretation, in contrast to its current method.