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The references made by the Court of Justice in a number of recent cases to ‘the general principles of civil law’ may have been accidental, but they may also represent a deliberate first step towards a new European legal category and a new approach towards European private law. Because of their flexible and chameleonic nature, the general principles of civil law could contribute to horizontal and vertical coherence of the developing system of European private law without imposing, in a top-down manner, new rules on Member States. They could even facilitate a Member-State-friendly interpretation of EU private law. New general principles of civil law could be the outcome of a transnational dialogue between (and among) national and European lawmakers, informed by an equally transnational legal scholarship. However, it is important that such a European private law space be as open as possible, and be informed by arguments and reasons not merely from legal elites at the political and economic centre but also from ordinary citizens at the periphery.

In many areas, mandatory substantive law protects consumers. At first glance, this seems to indicate that the position of consumers is well-regulated and that consumers are well-protected. The question arises, however, whether consumers may actually make use of their substantive rights. Can consumers enforce their contractual rights through the ordinary courts when their counterpart is not willing to provide them with what they are entitled to receive under the contract they concluded with that counterpart? The focus in this paper is on the consumer’s access to justice through the ordinary court system. Therefore, I will address neither the enforcement of consumer rights through regulatory agencies or by way of collective redress, nor the enforcement of individual consumer rights through ADR institutions. In this paper, I will argue that awarding consumer rights without properly regulating the consumer’s access to the court system renders these rights to be unenforceable through the ordinary court system. It is argued that the normal rules of civil procedure in the national courts produce several disincentives for consumers to maintain their rights that they do so in an insufficient manner, which leads to underenforcement of (European) consumer law. Two fairly recent Europeans regulations - the European payment order procedure and the European small claims procedure - help improve the enforcement of consumer law, but do not take away these disincentives sufficiently.

This thesis seeks to ascertain the impact of EU public policy on annulment, recognition and enforcement proceedings of international commercial arbitral awards. It explores how the effectiveness of EU law can be reconciled with the nature of international commercial arbitration while accommodating party autonomy. Though the demands of these two competing legal orders may present a challenge, this thesis demonstrates that mitigating these tensions is not only desirable, but also possible. To this end, it provides a model for the CJEU and national courts to effectively implement a narrowly construed EU public policy exception in post-award proceedings, while encouraging arbitral tribunals to be pro-active in their application of EU public policy rules. In Chapter 1, the author outlines the fundamental notions, introduces the topic and the major doctrines and issues, and sets out her methodology and structure of the work. Chapter 2 then discusses why and how EU public policy may have a profound and transformative impact on the content of Member States public policy. It concludes that the ECJ is able to shape the national mechanism of public policy through a broad and controversial interpretation of the twin principles of equivalence and effectiveness. In the second part of this thesis, the author focuses on the content of EU public policy. It analyses the major ECJ decisions in the fields of competition law and consumer protection, in Chapters 3 and 4 respectively, as case-studies of the scope of EU public policy. These chapters establish that, in the hands of the ECJ, the public policy exception has become a tool to strengthen the effectiveness of EU law in the national legal orders, and confirm the findings in Chapter 2. Chapter 5 explains why the ECJ’s broad notion of EU public policy risks to drastically alter the effectiveness of international commercial arbitration in the EU, and may ultimately undermine the proper functioning of the internal market. As a result, this chapter concludes that it is crucial for the ECJ to shape the content of EU public policy more narrowly and coherently than it currently does, and gives concrete advice on how it could do so. The third part discusses the far-reaching implications of the broad scope of EU public policy for both national courts and arbitral tribunals. As explained in Chapter 6, the mission of balancing the broad scope of EU public policy with the effectiveness of international commercial arbitration is left to national courts. This chapter develops a model for national courts which favours a broad scope of judicial review in exceptional circumstances. The scope of post-award review under EU law operates commutatively as a constraint on arbitral tribunals. Chapter 7 examines the most desirable course of action for arbitrators when confronted to the application of EU public policy rules. It concludes that they should consider raising EU public policy rules, even ex officio, not only to uphold party autonomy or guarantee the effectiveness of the arbitral award in a specific dispute but also to ensure the sustainability of international commercial arbitration in the EU.

The idea that European integration involves ‘spillover Effects’ is almost as old as the EU Treaties themselves: the evolution of the Treaties from the narrow beginnings of the European Coal and Steel Community (ECSC) in 1952 was predicted by some contemporary sages to be the result of various political and economic spillovers from the operation of the ECSC, its policies and institutions. While this evolutionary road was not always as smooth as some might have liked, the advent of the European Economic Community and the European Atomic Energy Community Treaties in 1957 can be seen as at least in part a response to the growing economic and political interaction between states in Europe; and the subsequent evolution of EU law at the EU legislative and judicial level has oft en been Effected by the use of Treaty bases to respond to social and economic developments precipitated by the application of the general rules of those Treaties over time.

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.

This thesis examines how to transform the Georgian competition framework into its most effective version while keeping in mind the real-life legal, economic and institutional constraints posed by broader national and international settings (‘optimization’). It deploys the EU competition framework as a blueprint due to recently intensified trade relations between the two jurisdictions and the resulting resemblance of their competition frameworks. The thesis builds on an existing scholarship regarding legal transplants and the jurisdiction-specific nature of the competition law. It aims to offer a set of lessons for optimizing the Georgian competition framework by utilizing the EU experience, considering the inherent jurisdictional differences. To achieve its aim, the thesis examines three dimensions of the Georgian competition framework – policy, law and enforcement – in a comparative context by analysing historical developments, the existing legislative landscape and institutional dynamics among primary actors responsible for the framework implementation. It finds partial incoherence among current policy objectives and the infeasibility of their simultaneous implementation. The legislative level has recently benefited from comprehensive amendments. However, sub-optimally configured ex-ante (concentration) control jurisdiction complicates realizing these benefits in practice. Similarly, an initially limited capability of case handling has conditioned administrative self-restraint in ex-post (antitrust) assessments, while legislative changes might unintentionally solidify this trend. The thesis elaborates on all these shortcomings and offers ways of overcoming them based on the analysis of selected EU experiences.

This thesis examines the implications of EU’s constitutional and institutional peculiarities for the interpretation of abuse of dominance under Article 102 TFEU. The purpose is to shed light on the limitations to the interpretation of Article 102, which stem from EU’s constitutional and institutional framework. These limitations impact on both the substance and the form of the designed legal tests for Article 102 and dictate the proper role of economics in interpreting the concept of abuse of dominance. In constitutional terms, the thesis finds that the EU Treaties mandate a multi-goal and holistic approach to Article 102, meaning that there are multiple objectives and values external to market competition that are relevant to the interpretation of Article 102. The discussion of the relevant case law documents that the designed legal rules successfully reconcile the market-oriented objectives of Article 102 with policies of social nature, thereby allowing the provision to operate according to the constitutional role imposed on it by the Treaties. From an institutional perspective, the thesis maps out the complex institutional framework for the decentralised enforcement of Article 102. This unveils the mismatch between the complicated institutional setting and the necessity of ensuring effective enforcement and uniform interpretation of Article 102. The thesis argues that in this constitutional and institutional context the employed tests must remain clear so as to permit Article 102 to effectively and consistently pursue its objectives across the EU. In this regard, any economic statement or theory must be compatible with both the constitutional foundations of Article 102 and the institutional setting within which it must be enforced. More economic analysis may thus be injected into the interpretation of abuse of dominance only if it can be translated into clear and workable legal rules that are compatible with EU’s constitutional foundations and institutional realities.

The theme of this thesis is the relationship between harmful tax competition measures and prohibited fiscal State aid. The aim of this thesis is to present a targeted examination of the use of State aid rules against national tax measures, e.g. tax schemes and tax rulings, following the adoption of the EU Code of Conduct for Business Taxation in 1997. The fiscal State aid decisions and judgments to be covered are divided in two parts. The first part includes certain Commission decisions and ECJ judgments of the (early) 2000s, which are labelled the “first wave”. The second part consists of all the recent Commission decisions and investigations into tax schemes and individual tax rulings, most notably the Apple, Fiat, Starbucks and Amazon investigations, which are labelled the “second wave”. The characteristics and common threads of each wave are set out, the similarities and differences between the two waves are dissected, and their nexus to the EU’s fight against harmful tax competition is explored. It is argued that an important factor connecting the two fiscal State aid waves is the link they share to the fight against harmful tax competition. It is also maintained that the first wave cases that were linked to this fight have substantially influenced State aid doctrine, and have also had the effect of rendering State aid rules a more effective tool against harmful tax competition by ‘weakening’ their major limitation, i.e. the selectivity requirement. This trend could continue should the ECJ endorse the Commission’s novel and creative approach in the second wave of fiscal State aid decisions, especially as regards its expansive interpretation of Forum 187 and the advantage condition of Article 107 TFEU. It is, lastly, asserted that the Commission’s novel approach is not legally sound.

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.

This thesis aims to determine the constitutional implications of the exclusive authority granted to the CJEU to interpret the Treaties in the context of the internal market. In particular, it examines how the Court’s interpretation of the free movement and competition rules – the two principal components of the internal market law – has shaped the constitutional division of competences between the EU and the Member States (the vertical dimension) and between the EU’s legislative institutions and the Court (the horizontal dimension). The argument to be advanced in this thesis is based on a comparative analysis of the Court’s reasoning in cases involving conflicts between, on the one hand, the free movement and competition rules and, on the other, domestic regulatory measures that embody various social policy considerations. The policy areas selected as case studies for the inquiry are healthcare, education, collective labour law, and gambling. None of these areas has been harmonised at EU level, save for the legislation essentially codifying the case law, and therefore come within the purview of EU law mainly through the judgments of the Court adopted in the context of the internal market. The comparative analysis – both among the selected policy areas and between the Court’s free movement and competition case law – reveals the inconsistencies in the Court’s exercise of its interpretative authority in light of the principles that govern the division of competences and powers in the EU. The thesis ultimately argues that, unlike its competition case law, the Court’s free movement case law involving the areas of healthcare, education and collective labour law, but not gambling, has encroached on national regulatory autonomy to an extent incompatible with the principles of conferral, subsidiarity and proportionality, and has reduced the scope of EU legislative action to the point of upsetting the institutional balance of powers between the EU’s judiciary and legislature.

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.

Academic legal study is perforce temporally grounded. We most naturally consider the here and now. We may take a fleeting backward glimpse, most commonly to confirm our desired impression of the status quo, and add substance to our prognostications, hesitant or not as they may be, about the future. Legal history is commonly left to legal historians in this age of increased specialization. Their expertise is invaluable, but the historical terrain is vast, the numbers of specialist legal historians are limited and the subject matter coverage uneven. There are perforce large gaps, as exemplified by the historical landscape of administrative law. Relatively little is known about legal development in this area, and the regulatory environment from which it grew, as attested to by the nostrum that the UK had no regime of administrative law until the mid-twentieth century, which is as erroneous as it is oft-repeated. We are of course not formally bound by anything that historical legal inquiry reveals. The academic has tools that bear analogy to the judicial. We can distinguish, praying in aid changed social circumstance, altered normative values and shifting policy preferences. Yet this academic ‘power’, like all other forms thereof, comes with responsibility. The argument must withstand scrutiny in the academic market place, and must also be grounded in some knowledge of what preceded the here and now. Insofar as this knowledge is exiguous it thereby diminishes the value of the academic judgment. This chapter is designed to cast historical light on the role played by the concept of proportionality in UK law. This very sentence may provoke skepticism, given the dominant view that it was an import from continental Europe, the integration of which into UK law has been driven by membership of the ECHR and EU. There is no doubt that the classic three or four part proportionality inquiry has continental foundations, particularly Germanic, although it is noteworthy that the German eighteenth century formulation of the principle was embryonic, with the fully-fledged test developing later.1 Integration of proportionality into UK law has been furthered by ECHR and EU jurisprudence. There is, however, also no doubt that the UK had a concept akin to that of proportionality, from the late sixteenth century onwards. The precise appellation varied, with terms such as proportionability, proportionable, and disproportionate found in the legislation and case law. It was not a formal three-part test of the modern kind, but the older UK concept shared a common theme with its more modern offspring, which is the proscription of excessive regulatory burdens and the need to ensure that the burden was objectively justified The story begins with four general misconceptions about UK Administrative law, which sets the backdrop for the ensuing discussion. This is followed by four historical manifestations of proportionability. It will be seen that the concept was very commonly used as a criterion in regulatory legislation from the mid-sixteenth century onwards, with the expectation that the courts would interpret and apply it to the particular regulatory regime, which is exactly what occurred. It was also used in the absence of express statutory mention, as a principle of legal interpretation, such that the courts would interpret regulatory legislation whenever possible so as not to impose excessive burdens on individuals. Proportionability was in addition deployed as a free-standing principle of judicial review, and also on some occasions as a condition for the legality of regulatory intervention. The magic number four frames the discourse in the final section of the chapter, where the focus shifts to the normative. There is discussion of the relationship between proportionality and proportionability, followed by reflections on the connection between the judicial and legislative use of proportionability. The final parts of this section consider the relevance of this material for modern doctrine, the determination of which is predicated on understanding that proportionability was judicially applied with sensitivity to regulatory purpose and appreciation of the limits to judicial oversight of the administration.

For several years, the literature has discussed whether a country’s particular economic circumstances should be taken into account in competition law and policy design. This thesis discusses whether economic growth should be considered as the guiding principle for Latin American Emerging Economies’ competition law and policy design. It specifically explains why having economic growth as competition policy’s guiding principle makes a difference in choosing superior rules and standards, among the large range of efficient rules. In order to explain how economic growth as a guiding principle has an impact on competition policy design, this thesis studies whether the analysis and application of the prohibitions and standards of abuse of dominance in emerging Latin American economies are appropriate, and why, having regard to economic growth, a different approach might be justified. To engage in the study of such questions this thesis centres on the regulation of dominance and the law governing abuse of dominance, in particular on predatory pricing and excessive pricing. After a careful analysis of such institutions, an optimal rule for the regulation of pricing abuses in these emerging economies is proposed. Similarly, having regard to economic growth as the policy’s guiding principle, the mainstream standards on excessive pricing and price predation are evaluated and a different approach is found to be justified. It is concluded that economic growth should be the principle guiding Latin American emerging economies’ competition law and policy design and it is demonstrated that this will grant these economies policy soundness and identity.

A different type of polity requires a different type of constitution; more importantly, it also requires a different way of thinking, a new constitutionalism able to address the relevant descriptive and normative questions facing this new political entity. This thesis tries to contribute to the development of EU constitutionalism by focusing on the interplay between the different normative concerns behind the EU’s market freedoms identified in traditional legal discourse – as results mainly from court decisions and academic discussions –, and the institutional environment which mediates the freedoms’ application. It is hypothesised that such interplay can be better understood by reference to the findings of some disciplines ‘external’ to internal legal discourses such as economics, philosophy, or political science. Normatively, it is hoped that debates concerning the market freedoms that take into account ‘external elements’ will be more attractive to the legal community than those that do not include such considerations. Descriptively, it is submitted that the incorporation of insights arising from these ‘external’ disciplines into the traditional modes of discourse and analysis on the EU market freedoms – in effect, the internalisation of these ‘external’ elements – can provide better descriptive fits of the law and its development than theories that do not take them into account. An incidental result of this approach is that by the end of this thesis a theory of the market freedoms will have been sketched: by combining ‘internal’ and ‘external’ elements, an analytical framework can be developed that is able to make descriptive sense, formally and substantively, of free movement law at both its most general – where formal common structures seem to be undeniable, and a minimum common substantive content can be found –, and at its most detailed levels – where substantive variations and greater normative specification seem to exist.

The regulation of hedge funds has been at the centre of a global policy debate for much of the past decade. Several factors feature in this debate including the magnitude of current global investments in hedge funds and the potential of hedge funds to both generate wealth and destabilise financial markets. The first part of the thesis describes the nature of hedge funds and locates the work in relation to four elements in existing theory including regulatory competition theory, the concept of differential mobility as identified by Musgrave, Kane’s concept of the regulatory dialectic between regulators and regulatees, and the concept of unique sets of trust and confidence factors that individual jurisdictions convey to the market. It also identifies a series of questions that de-limit the scope of the present work. These include whether there is evidence that regulatory competition occurs in the context of the provision of domicile for hedge funds, what are the factors which account for the current global distribution of hedge fund domicile, what latitude for regulatory competition is available to jurisdictions competing to provide the domicile for hedge funds, how is such latitude shaped by factors intrinsic and extrinsic to the competing jurisdictions, and why do the more powerful onshore jurisdictions competing to provide the domicile for hedge funds not shut down their smaller and weaker competitors? The second part of the thesis examines the regulatory environment for hedge funds in three so-called offshore jurisdictions, specifically the Cayman Islands, Bermuda and the British Virgin Islands, as well as two onshore jurisdictions, specifically the United Kingdom and the United States. The final section presents a series of conclusions and their implications for both regulatory competition theory and policy.

This thesis looks into the law and policy implications of law-making within the EU in pursuit of the internal market, while protecting other interests such as those of consumers. The discussion concentrates in the field of services addressed to consumers and more specifically in harmonising at EU level the national liability rules governing their defective supply. This case study is developed on the following strands. Firstly, the withdrawal of the European Commission’s ‘Proposal for a Council Directive on the liability of suppliers of services’ [COM (90) 482 final] is examined from the following aspects: a) the political reactions which have preceded its withdrawal, b) its compliance with the constitutional principles governing the legislative process at EU level and c) the assessment of the substantive regime which it purported to establish. Secondly, having regard to a) the aftermath of the Proposal’s failure, b) the evolution of the constitutional debate concerning the existence, the nature and the exercise of EU competence to set harmonised rules and c) the law-making standards which the Union’s Institutions have set to self-restrict their regulatory power, the perspective of harmonising the liability of suppliers of services to consumers is further explored. Drawing on this case-study, this thesis examines the limits to EU law- making activity which are imposed by primary European law and also considers the policy standards which the EU has set for itself in engaging in its law-making commitments. This examination allows in turn the pursuit of broader reflections I about the law and policy factors which become crucial and deserve particular attention by the EU lawmaker when harmonising national rules governing market transactions – such as the liability for the supply of defective services – with a view to attaining and managing the internal market along with protecting other interests recognised at EU level, such as those of consumers.

The role of the Court of Justice of the European Union in the process of direct tax integration in the European Union (EU) has been widely discussed in the academic literature, while another important actor, the European Commission, has attracted much less attention. The Commission’s input is commonly perceived to be limited to the right of legislative initiative. This study questions such an oversimplified interpretation and draws a more nuanced picture of EU tax harmonisation by integrating an analysis of the complex regulatory approaches adopted by the Commission for the establishment and smooth functioning of the Internal Market. It is argued that the past decade brought a notable change in the Court-dominated pattern of direct tax integration. This change is apparent first in the evolution of enforcement strategies under Articles 258 and 260 TFEU; and second, in the increased reliance upon non-binding regulatory measures. Both developments have strengthened the role of the Commission, supplying it with more possibilities for influencing national direct tax systems, despite the reluctance of Member States to agree upon legislative harmonisation. Against this background, the procedural and substantive problems associated with these instruments require closer examination. The normative scope of this research covers the key procedural problems related to the infringement procedure and non-binding regulatory measures. The empirical component explores the Commission’s enforcement and coordination practices, drawing particular attention to two case studies: the tax treatment of losses in cross-border situations and exit taxation. Following the analysis of enforcement and coordination in the field of direct taxation, the study argues the need and proposes potential solutions for (i) the developing of a more comprehensive procedural framework for the infringement procedure and non-binding regulatory acts; (ii) the strengthening of accountability mechanisms; and (iii) the enhancing of the effectiveness of their application.