The AFSJ is an area of law developed through the purpose of creating and withholding internal security and justice. This area is of vast importance due to both the realization of an internal market and a Union without internal borders. The CFSP is an area dealing with foreign policy, thus focusing on the security, defense and diplomatic action relating to third countries. There are extensive constitutional differences between the two areas of law. In terms of individual protection, the AFSJ has as one of the main purposes to provide the Union with an effective judicial system, where the right for a fair trial has a central role. In the CFSP, on the other hand, the original premise is that there is no protection for the individual.  The main idea is that political aims concerning security and other relations to third countries governs the CFSP and triumph other aspects such as individual rights. Thus, individual rights have had a different development within the two areas. The protection has, however, developed in both of the areas, especially since the introduction of the Lisbon Treaty. The Kadi I case have had a vast impact on this development and showed that there used to be a lack of a clear legal basis for the adoption of counterterrorist sanctions and also noted the lack of judicial protection for the individuals. The case showed that the EU did not satisfy fundamental human rights. The Lisbon Treaty introduced two explicit legal bases in Articles 75 and 215 TFEU. This work shows, that the pre-existing problems concerning the legal basis still exist due to the unclear scope of application for the two articles. This renders problems of constitutional character and harms the effectiveness of the counterterrorist policy.   The Bamba case shows, that there is a difference in level of protection within Article 215 TFEU. The case did not concern counterterrorism measures but still has an impact on the overall impression of the level of the protection within the CFSP. This case further shows that counterterrorism is a field that is highly influenced by the AFSJ. The seemingly strong emphasis of individual rights within this area could, thus, in connection to the strong link between the AFSJ and the CFSP in terms of terrorism, have lead to a higher level of rights that otherwise don’t exists within the CFSP. To conclude, even if there is no stated difference in level of protection, it has been shown that a practical difference in level of protection does in fact exist. / Området för frihet, säkerhet och rättvisa (AFSJ) har utvecklats utifrån syftet att skapa och upprätthålla intern säkerhet och rättvisa. Detta område är således betydelsefullt för skapandet av en fungerande inre marknad och av en Union utan inre gränser. Området för en gemensam utrikes- och säkerhetspolitik (GUSP) är ett område som hanterar EUs externa relationer, med fokus på säkerhet och diplomatiska förbindelser. Det råder stora konstitutionella skillnader områdena emellan. I fråga om individers rättigheter, så utgör dessa, inom ramen för en straffrättslig kontext, ett utav AFSJs mest grundläggande syften. Inom GUSP däremot, har utgångspunkten varit att det inte finns något rättsligt skydd för individen. Det övergripande syftet inom GUSP uppnås i huvudsak genom politiska mål gällande relationerna till tredje länder, där skyddet för individen prioriteras bort. Individens rättigheter har således haft en olik utgångspunkt inom de respektive områdena. Skyddet för individen har dock utvecklats inom såväl AFSJ som inom GUSP, framförallt sedan Lissabonfördragets ikraftträdande. Kadi I-fallet har haft stor betydelse för utvecklingen av individens skydd i terroristsammanhang och visade på avsaknaden av en tydlig rättslig grund som fanns inom EU, samt det bristfälliga individskydd som rådde. Fallet visade att EU inte upprätthöll grundläggande skydd för individen. Lissabonfördraget introducerade två uttryckliga rättsliga grunder för antagandet av anti-terroristsanktioner: artiklarna 75 och 215 TFEU. Detta arbete visar att de problem som fanns gällande de rättsliga grunderna innan Lissabonfördragets ikraftträdande, fortfarande i viss mån lever kvar, då artiklarna har ett vagt tillämpningsområde. Detta skapar konstitutionella problem och motverkar effektiviteten av anti-terroristarbetet. Bamba-fallet visar att det råder en skillnad i nivån av individens rättigheter inom artikel 215 TFEU. Fallet rör inte anti-terroristsanktioner, men kan likväl påverka helhetssynen av individens skydd inom GUSP. Vidare belyser fallet AFSJs höga grad av påverkan av anti-terroristarbetet, vilket tyder på att AFSJ har en inverkan även på nivån av individskyddet inom GUSP. Även om det inte finns en uttrycklig nivåskillnad så kan en skillnad utrönas i praktiken.

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The purpose of this thesis is to examine the procedural democratic legitimacy of the Court of Justice of the European Union. The Court of Justice has been instrumental in the construction of the European Union. Through its interpretation of the Treaty of Rome since the 1960s, it has constituted a legal system distinctive in kind. In contrast to orthodox instances of the political community – international organisations and the nation-state – the EU exemplifies no general type. Its legal, constitutional, political, economic and social infrastructures are part of a complex and pervasive web of overlapping jurisdictions that goes some way beyond the ordinary international organisation (by virtue of constitutional principles such as direct effect and citizenship), but not quite as far as the nation-state (e.g. sovereignty contestation). This being the case, its interlocutors have long since understood that the EU is in a state of transformation – it is itself a project and a process, the end result of which (finalité) is unknown. As such, many questions have been asked about the legitimacy of this process; and, given the Court of Justice’s (in)famous generative role within this process, the Court also finds itself the subject of such scrutiny. The legitimacy of the Court of Justice has been the focus of attention from both academics and practitioners. Most of that attention has been on the Court’s jurisprudence and jurisdiction – scrutinising the legal reasoning of cases; or questioning the limits of its constitutional functions according to axiomatic conceptions of, for example, the separation of powers doctrine. By contrast, less attention has been paid to the democratic legitimacy of the Court of Justice, and much less in relation to the Court’s institutional design. The subject-matter of the analysis in this thesis is the Court’s structures and processes, such as: the composition and appointments processes for members of the Court; the mechanisms that give access to various kinds of participants (such as locus standi and third-party intervention); and the use of judicial chambers. Procedural democratic legitimacy, moreover, has two dimensions: intrinsic and instrumental. The intrinsic is a measure of the democratic credentials of the Court as a discrete decision-making authority (such as representativeness and democratic participation); whereas the instrumental is concerned with the ways in which the Court contributes to the overall democratic legitimacy of the EU. In this thesis, the structures and processes of the Court of Justice are examined in light of both of those criteria. In contrast to prevailing approaches of constitutional theorists – who tend to treat these criteria as functions that are quite discrete, and their performance as mutually exclusive – an important theoretical contribution of this thesis is to develop an analytical framework that allows for the inherent synergies and tensions that exist between intrinsic and instrumental criteria to be factored into analyses of the democratic legitimacy of constitutional courts.

In the Credit Lyonnais case, the CJEU concluded that the proportion of input VAT deduction on mixed-use goods and services is to be calculated by taking into account the output supplies carried out by establishments located within the same territory only. This interpretation of the VAT Directive leads to a different treatment of domestic and foreign branches and is, hence, questionable in the light of the freedom of establishment. This paper analyses the impact of the fundamental freedoms on VAT law in general and possible reasons behind the interpretation chosen by the Court in the Credit Lyonnais case more specifically.

The European Public Prosecutor’s Office (the EPPO), established under enhanced cooperation by a Council Regulation (the Regulation), will be the first supranational criminal law enforcement body in the European Union (the EU) with direct powers visà-vis individuals. It will be responsible for investigating, prosecuting and bringing to judgments the perpetrators of offences against the Union’s financial interests. Measures taken by the EPPO may therefore seriously interfere with fundamental rights of individuals. As the EU is based on the rule of law, an effective judicial review of the acts produced by the EPPO is essential in order to allow individuals to protect their rights and legitimate interests against unlawful and arbitrary decision-making. In accordance with the Treaty framework of judicial review, the main rule in EU law on the division of jurisdiction between national courts of the Member States and the Court of Justice of the European Union (the CJEU) is that acts adopted by Union institutions and bodies are to be reviewed by Union courts, while acts adopted by national institutions and bodies are to be reviewed by the national courts. Although the EPPO is an indivisible Union body, the judicial review of the procedural acts of the EPPO will first and foremost be a task for the national courts according to Article 42 of the Regulation. Since it follows from the hierarchy of norms that secondary law must comply with primary law, this thesis examines whether the system of judicial review of procedural acts of the EPPO, as prescribed in Article 42 of the Regulation, complies with the Treaty framework of judicial review and the right to effective judicial protection enshrined in Article 47 of the Charter of Fundamental rights of the European Union (the Charter). The main finding of the thesis is that the system of judicial review of procedural acts of the EPPO, as prescribed in the Article 42 of the Regulation, does not comply with the Treaty framework of judicial review or the right to effective judicial protection enshrined in Article 47 of the Charter.

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.

Why do some member states infringe EU law more than others? Based on the quantitative and qualitative analysis reported here, is not because of administrative capacity limitations, but because of political context, policy changes and deliberate opposition by member governments in order to maintain their independence. States in turn, are motivated by domestic politics to seek to avoid implementing EU law. Additionally, I find that richer countries violate the law more often than poorer countries. Further, member states infringe more than others because of a high number of institutional and coalitional veto players. These results suggest that member states are in the EU because the EU serves their national interest over collective ones. Finally, these results suggest new hypothesis. Member states that have a high level of public discontent with the EU are unlikely to tolerate the political costs of implementing EU legislation.

This doctoral dissertation examines the European Commission’s dawn raid practices in competition cases from a fundamental rights perspective. In recent years the Commission has adopted a new and more aggressive enforcement policy, which reflects the widespread understanding that cartels and abuse of market power are harmful to the economy and should be punished. Given both the considerable gains to be made through anti-competitive practices and the cartel’s nature of secrecy, effective application of the competition rules requires that competition authorities are vested with far-reaching investigatory powers. At the same time, EU fundamental rights protection has been strengthened through the Lisbon Treaty, and the Commission now has to ensure effective application of the EU competition rules while navigating through an array of fundamental rights, such as the right of the defence and the right to privacy. The doctoral dissertation explores whether it is possible to strike a balance between the interests of ensuring effective dawn raids and adequate fundamental rights protection, or whether the Commission has been handed an impossible task. As the EU Charter of Fundamental Rights requires EU fundamental rights protection to meet or exceed the standard set by the ECHR, the research is based on case-law from both the EU Courts and the European Court of Human Rights. The research demonstrates that the European Court of Human Rights has adopted a flexible approach towards inspections at business premises; it does not require an ex ante review of inspection decisions and accepts rather intrusive investigatory measures, provided that and as long as the procedural safeguards surrounding such measures are considered adequate. This way, the court manages to strike a balance between efficiency concerns and the rights of undertakings. As for the EU system, the EU Courts are not providing judicial review to the extent required by the ECHR. While inspection decisions may be challenged, the possibilities to challenge measures taken on their basis, or have those measures suspended, are limited. This discrepancy between EU and ECHR law – which is of seemingly limited nature – may affect the legitimacy of the entire dawn raid procedure as the granting of far-reaching investigatory powers must be counterbalanced by effective judicial control to ensure that measures adopted by the Commission are neither disproportionate nor arbitrary. Absent an effective judicial control of measures taken on the basis of inspection decisions, the procedural safeguards surrounding dawn raids cannot be considered adequate, and it is possible that the powers of the Commission may need to be restricted accordingly. The research also demonstrates that some of the limitations in the legal professional privilege – such as the exclusion of correspondence with non-EU lawyers or legal advice that lacks connection with the subject-matter of the investigation – do not serve the interests of a proper administration of justice and may therefore be questioned.

The research investigated the impact of EU law and policies on direct taxation in REITs, and movement towards a harmonised EU-REIT with common direct taxation of REITs profits. It represents the first comparative study of EU member state REIT regimes to identify an emerging common understanding informed by European jurisprudence and Europeanization policy and theory. After identifying the fundamental elements of a REIT (following the original US model) within a context of Europeanization theory, the research examined EU policy mechanisms (such as goodness of fit and adaptational soft pressure) and the impact of relevant case law from the European Court of Justice. It then presented in-depth case studies of three member states: France (example of a well-established REIT regime), Bulgaria (a new accession state) and Spain (a recent REIT regime). The research found an emerging common understanding between member states’ REIT regimes, offering the prospect of a European harmonised REIT form distinguishable from the US model. It also found negative approaches to direct taxation in cross-border situations, and member state concerns about loss of sovereignty and tax base, which should be recognised within any harmonised direct tax regime. The research can claim to be the first comparative analysis of MS REIT regimes to address a common understanding, and thus is relevant to practitioners and academics in the fields of European law and international taxation. It has potential to contribute towards an improved common direct taxation approach and the harmonisation of European REITs within the wider processes of Europeanization. The research was limited to REIT regimes in EU member states, and further research could analyse relevant member state tax regimes outside the 'common understanding' REIT model, and further explores issues of loss of sovereignty and tax base in member states.