The general principles of European Union law are general principles of law which are applied by the European Court of Justice and the national courts of the member states when determining the lawfulness of legislative and administrative measures within the European Union. General principles of European Union law may be derived from common legal principles in the various EU member states, or general principles found in international law or European Union law. General principles of law should be distinguished from rules of law as principles are more general and open-ended in the sense that they need to be honed to be applied to specific cases with correct results. [1]
The general principles of European Union law are rules of law which a European Union judge, sitting for example in the European Court of Justice, has to find and apply but not create. Particularly for fundamental rights, Article 6(3) of the Treaty on European Union provided:
Further, Article 340 of the Treaty on the Functioning of the European Union (formerly Article 215 of the Treaty establishing the European Economic Community) expressly provides for the application of the "general principles common to the laws of the Member States" in the case of non-contractual liability. [3]
In practice the European Court of Justice has applied general principles to all aspects of European Union law. In formulating general principles, European Union judges draw on a variety of sources, including: public international law and its general principles inherent to all legal systems; national laws of the member states, that is general principles common to the laws of all member states, general principles inferred from European Union law, and fundamental human rights. General principles are found and applied to avoid the denial of justice, fill gaps in European Union law and to strengthen the coherence of European Union law. [4]
Accepted general principles of European Union Law include fundamental rights, proportionality, legal certainty, [5] equality before the law and subsidiarity. [6] In Case T-74/00 Artegodan, [7] the General Court (then Court of First Instance) appeared willing to extrapolate from the limited provision for the precautionary principle in environmental policy in Article 191(2) TFEU [8] to a general principle of EU law. [9]
Fundamental rights, as in human rights, were first recognised by the European Court of Justice based on arguments developed by the German Constitutional Court in Stauder v City of Ulm Case 29/69 in relation to a European Community scheme to provide cheap butter to recipients of welfare benefits. When the case was referred to the European Court of Justice the ruling of the German Constitutional Court, the European Community could not "prejudice the fundamental human rights enshrined in the general principles of Community law and protected by the Court". This concept was further developed by the European Court of Justice in International Handelsgesellschaft v Einfuhr- und Vorratsstelle Getreide [1970] ECR 1125 Case 11/70 when it was held that "Respect for fundamental rights form an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to the member states, must be ensured within the framework of the structure and objectives of the Community." Subsequently, in J Nold v Commission Case 4/73 the European Court of Justice reiterated that human rights are an integral part of the general principles of European Union law and that as such the European Court of Justice was bound to draw inspiration from the constitutional traditions common to the member states. Therefore, the European Court of Justice cannot uphold measures which are incompatible with fundamental rights recognised and protected in the constitutions of member states. The European Court of Justice also found that "international treaties for the protection of human rights on which the member states have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law." [10]
None of the original treaties establishing the European Union mention protection for fundamental rights. It was not envisaged for European Union measures, that is legislative and administrative actions by European Union institutions, to be subject to human rights. At the time the only concern was that member states should be prevented from violating human rights, hence the establishment of the European Convention on Human Rights in 1950 and the establishment of the European Court of Human Rights. The European Court of Justice recognised fundamental rights as general principle of European Union law as the need to ensure that European Union measures are compatible with the human rights enshrined in member states' constitution became ever more apparent. [11] In 1999 the European Council set up a body tasked with drafting a European Charter of Human Rights, which could form the constitutional basis for the European Union and as such tailored specifically to apply to the European Union and its institutions. The Charter of Fundamental Rights of the European Union draws a list of fundamental rights from the European Convention on Human Rights and Fundamental Freedoms, the Declaration on Fundamental Rights produced by the European Parliament in 1989 and European Union Treaties. [12]
The 2007 Lisbon Treaty explicitly recognised fundamental rights by providing in Article 6(1) that "The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adopted at Strasbourg on 12 December 2007, which shall have the same legal value as the Treaties." Therefore, the Charter of Fundamental Rights of the European Union has become an integral part of European Union law, codifying the fundamental rights which were previously considered general principles of European Union law. [13] In effect, after the Lisbon Treaty, the Charter and the convention now co-exist under European Union law, though the former is enforced by the European Court of Justice in relation to European Union measures, and the latter by the European Court of Human Rights in relation to measures by member states. [14]
The "question of a possible infringement of fundamental rights by a measure of the [EU] institutions can only be judged in the light of [EU] law itself"; "the freedom to pursue trade or professional activities" must "be viewed in light of the social function of the activities": Case C-159/90 SPUC v Grogan.
In Case C-112/00 Schmidberger, the right of free speech limited – but did not unjustifiably violate – the free movement of goods. The right to strike and to collective action can constitutes a restriction of freedom of establishment, but it may "be justified by an overriding reason of public interest": Case C-438/05 Viking Line and Case C-341/05 Laval. Similarly see Case C-36/02 Omega.
In Joined Cases C-402/05 P and C-415/05 P Kadi ( Kadi I ), Council regulations based on United Nations Security Council decisions were reviewed under EC human rights standards and consequently annulled. In its sequel Kadi II (C-595/10 P) the Court of Justice, by dismissing the appeal, confirmed the General Court's annulment of restrictive measures directed against Kadi.
EU law does not extend to combating discrimination on grounds of health: Case C-13/05 Sonia Chacon Navas. There is a general principle of law in all European Union member states against discrimination, and in favour of equal treatment: Kücükdeveci v Swedex GmbH & Co KG .
In principle, the scope of EU human rights protection follows the field of EU law. However, even when a state is derogating from a Union obligation, it must respect human rights standards: Case C-260/89 ERT. Even when the link between the issue at hand and EU law is tenuous, EU law may still apply and human right standards thus invoked: Case C-60/00 Mary Carpenter.
The concept of legal certainty has been recognised one of the general principles of European Union law by the European Court of Justice since the 1960s. [15] It is an important general principle of international law and public law, which predates European Union law. As a general principle in European Union law it means that the law must be certain, in that it is clear and precise, and its legal implications foreseeable, especially when applied to financial obligations. The adoption of laws which will have legal effect in the European Union must have a proper legal basis. Legislation in member states which implements European Union law must be worded so that it is clearly understandable by those who are subject to the law. [16]
Legal certainty, part of the EU legal order, "requires that legal rules be clear and precise, and aims to ensure that situations and legal relationships governed by [Union] law remain foreseeable": Case C-63/93 Duff and Others v Minister for Agriculture and Food.
Individuals "should have the benefit of a clear and precise legal situation enabling them to ascertain the full extent of their rights and, where appropriate, to rely on them before the national courts"; this is not the case where a Member State does not transpose a directive correctly, despite case-law interpreting national legislation in accordance with the directive: Case C-236/95 Commission v Greece.
The doctrine of legitimate expectation, which has its roots in the principles of legal certainty and good faith, is also a central element of the general principle of legal certainty in European Union law. [17] The legitimate expectation doctrine holds that and that "those who act in good faith on the basis of law as it is or seems to be should not be frustrated in their expectations". [16] This means that a European Union institution, once it has induced a party to take a particular course of action, must not renege on its earlier position if doing so would cause the party to suffer loss.
The European Court of Justice has considered the legitimate expectation doctrine in cases where violation of the general principle of legal certainty was alleged in numerous cases involving agricultural policy and European Council regulations, with the leading case being Mulder v Minister van Landbouw en Visserij [1988] ECR 2321 Case 120/86. [17] Where a producer "has been encouraged by a Community measure to suspend the marketing [of his products] for a limited period in the general interest and against payment of a premium he may legitimately expect not to be subject, upon the expiry of his undertaking, to restrictions which specifically affect him precisely because he availed himself of the possibilities offered by the Community provisions": Case 120/86 Mulder v Minister van Landbouw en Visserij.
"The principle of the protection of legitimate expectations may be invoked as against Community rules, only to the extent that the Community itself has previously created a situation which can give rise to a legitimate expectation": C-177/90 Kühn v Landwirtschaftskammer Weser-Ems. This is confirmed in Duff: "economic agents cannot legitimately expect that they will not be subject to restrictions arising out of future rules of market or structural policy".
In European Union law the general principle of legal certainty prohibits retroactive laws: laws should not take effect before they are published. The general principle also requires that sufficient information must be made public to enable parties to know what the law is and comply with it. For example, in Opel Austria v Council [1997] ECR II-39 Case T-115/94 The European Court of Justice held that European Council Regulation did not come into effect until it had been published. Opel had brought the action on the basis that the regulation in question violated the principle of legal certainty because it legally came into effect before it had been notified and the regulation published. [15]
"Although in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected": Case 99/78 Decker v Hauptzollamt Landau.
The misuse of powers test is another significant element of the general principle of legal certainty in European Union law. It holds that a lawful power must not be exercised for any other purpose than that for which it was conferred. According to the misuse of power test a decision by a European Union institution is only a misuse of power if "it appears, on the basis of objective, relevant and consistent evidence, to have been adopted with the exclusive or main purpose of achieving end other than those stated." A rare instance where the European Court of Justice has held that a European Union institution has misused its powers, and therefore violated the general principle of legal uncertainty, is Giuffrida v Commission [1976] ECR 1395 Case 105/75. [18] The general principle of legal certainty is particularly stringently applied when European Union law imposes financial burdens on private parties. [15]
The legal concept of proportionality is recognised one of the general principles of European Union law by the European Court of Justice since the 1950s. [19] It was first recognised by the European Court of Justice in Federation Charbonniere de Belgique v High Authority [1954] ECR 245 Case C8/55 [20] and in Internationale Handelsgesellschaft v Einfuhr- und Vorratsstelle Getreide [1970] ECR 1125 Case 11/70 the European Advocate General provided an early formulation of the general principle of proportionality in stating that "the individual should not have his freedom of action limited beyond the degree necessary in the public interest". The general concept of proportionality has since been further developed, notably in R v Minister of Agriculture, Fisheries and Food ex parte Fedesa [1990] ECR 1–4023 Case C-331/88 in which a European directive prohibiting the use of certain hormonal substances in livestock farming was challenged. In its ruling the European Court of Justice held that by virtue of the general principle of proportionality the lawfulness of the Directive depended on whether it was appropriate and necessary to achieve the objectives legitimately pursued by the law in question. When there was a choice between several appropriate measures the least onerous must be adopted, and any disadvantage caused must not be disproportionate to the aims pursued. [19] The principle of proportionality is also recognised in Article 5 of the EC Treaty, stating that "any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty". [20]
Prof. Grainne de Burca has therefore argued[ citation needed ] that the general principle in European Union law of proportionality entails a three-part test: 1) is the measure suitable to achieve a legitimate aim, 2) is the measure necessary to achieve that aim or are less restrictive means available, and 3) does the measure have an excessive effect on the applicant's interests. [21] The general principle of proportionality therefore requires that a measure is both appropriate and necessary, and as such the European Court of Justice to review both the legality of a measure, but also to some extent the merit of legislative and administrative measures. Therefore, the general principle of European Union law of proportionality is often considered as the most far-reaching ground of judicial review and of particular importance in public law cases. However, because the proportionality concept potentially concerns the merits of a measure, European judges may defer to the choice of the authority which has adopted the measure, [22] or make what are frequently political decisions. In Fedesa the European Court of Justice explained that "it must be states that in matters concerning the common agricultural policy the Community legislature has the discretionary power which corresponds to the political responsibilities given to it by... the Treaty. Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue...". [23]
"In order to establish whether a provision of Community law complies with the principle of proportionality, it must be ascertained [1] whether the means which it employs are suitable for the purpose of achieving the desired objective and [2] whether they do not go beyond what is necessary to achieve it": Case C-426/93 Germany v Council. This is confirmed in Case C-84/94 UK v Council (Working Time Directive): "the Council must be allowed a wide discretion in an area which, as here, involves the legislature in making social policy choices and requires it to carry out complex assessments. Judicial review of the exercise of that discretion must therefore be limited to examining whether it has been vitiated by manifest error or misuse of powers, or whether the institution concerned has manifestly exceeded the limits of its discretion".
"The obligation to purchase at [...] a disproportionate price constituted a discriminatory distribution of the burden of costs between the various agricultural sectors. Nor, moreover, was such an obligation necessary in order to attain the objective in view [...]. It could not therefore be justified [...]”: Case 114-76 Bela-Mühle v Grows-Farm.
"Appraising the proportionality of national rules which pursue a legitimate aim under Community law involves weighing the national interest in attaining that aim against the Community interest in ensuring the free movement of goods. In that regard, in order to verify that the restrictive effects on intra-Community trade of the rules at issue do not exceed what is necessary to achieve the aim in view, it must be considered whether those effects are direct, indirect or purely speculative and whether those effects do not impede the marketing of imported products more than the marketing of national products. [... Article 34 TFEU] is to be interpreted as meaning that the prohibition which it lays down does not apply to national legislation prohibiting retailers from opening their premises on Sundays": Case C-169/91 Stoke-on-Trent and Norwich v B&Q.
"[The] prohibition of cold calling by the Member State from which the telephone call is made, with a view to protecting investor confidence in the financial markets of that State, cannot be considered to be inappropriate to achieve the objective of securing the integrity of those markets": Case C-384/93 Alpine Investments.
“[...] on a proper construction of [Article 34 TFEU], a Member State is not precluded from taking, on the basis of provisions of its domestic legislation, measures against an advertiser in relation to television advertising, provided that those provisions affect in the same way, in law and in fact, the marketing of domestic products and of those from other Member States, are necessary for meeting overriding requirements of general public importance or one of the aims laid down in [Article 36 TFEU], are proportionate for that purpose, and those aims or overriding requirements could not be met by measures less restrictive of intra-Community trade": Case C-34/95 De Agostini.
"The right to property, and likewise the freedom to pursue an economic activity, form part of the general principles of Community law. However, those principles are not absolute but must be viewed in relation to their social function. Consequently, the exercise of the right to property and the freedom to pursue an economic activity may be restricted, provided that any restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute in relation to the aim pursued a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed": Joined Cases C-154/04 and C-155/04 The Queen, on the application of Alliance for Natural Health and Others v Secretary of State for Health and National Assembly for Wales.
A Member State may rely on the protection of fundamental rights, provided this was proportionate, to justify a restriction on Treaty freedoms: Case C-112/00 Schmidberger v Austria and Case C-36/02 Omega. But likewise, a trade union's right to collective action restricting Treaty freedoms is also subject to a review of proportionality: Case C-438/05 Viking Line and Case C-341/05 Laval.
The national courts have procedural autonomy: "In the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the right which citizens have from the direct effect of Community law, it being understood that such conditions cannot be less favorable than those relating to similar actions of a domestic nature": Case 33/76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland.
The European Court of Justice, formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Union, it is tasked with interpreting EU law and ensuring its uniform application across all EU member states under Article 263 of the Treaty of the Functioning of the European Union (TFEU).
European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its values and the well-being of its peoples". The EU has political institutions, social and economic policies, which transcend nation states for the purpose of cooperation and human development. According to its Court of Justice the EU represents "a new legal order of international law".
The Charter of Fundamental Rights of the European Union (CFR) enshrines certain political, social, and economic rights for European Union (EU) citizens and residents into EU law. It was drafted by the European Convention and solemnly proclaimed on 7 December 2000 by the European Parliament, the Council of Ministers and the European Commission. However, its then legal status was uncertain and it did not have full legal effect until the entry into force of the Treaty of Lisbon on 1 December 2009.
In European Union law, direct effect is the principle that Union law may, if appropriately framed, confer rights on individuals which the courts of member states of the European Union are bound to recognise and enforce.
Citizenship of the European Union is afforded to all citizens of member states of the European Union (EU). It was formally created with the adoption of the 1992 Maastricht Treaty, at the same time as the creation of the EU. EU citizenship is additional to, as it does not replace, national citizenship. It affords EU citizens with rights, freedoms and legal protections available under EU law.
The European single market, internal market or common market is a single market comprising the 27 member states of the European Union (EU) as well as – with certain exceptions – Iceland, Liechtenstein, and Norway through the Agreement on the European Economic Area, and Switzerland through bilateral treaties. The single market seeks to guarantee the free movement of goods, capital, services, and people, known collectively as the "four freedoms".
The freedom of movement for workers is a policy chapter of the acquis communautaire of the European Union. The free movement of workers means that nationals of any member state of the European Union can take up an employment in another member state on the same conditions as the nationals of that particular member state. In particular, no discrimination based on nationality is allowed. It is part of the free movement of persons and one of the four economic freedoms: free movement of goods, services, labour and capital. Article 45 TFEU states that:
- Freedom of movement for workers shall be secured within the Community.
- Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
- It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
- The provisions of this article shall not apply to employment in the public service.
Proportionality is a general principle in law which covers several special concepts. The concept of proportionality is used as a criterion of fairness and justice in statutory interpretation processes, especially in constitutional law, as a logical method intended to assist in discerning the correct balance between the restriction imposed by a corrective measure and the severity of the nature of the prohibited act. Within criminal law, it is used to convey the idea that the punishment of an offender should fit the crime. Under international humanitarian law governing the legal use of force in an armed conflict, proportionality and distinction are important factors in assessing military necessity.
Home state regulation is a principle in the law of the European Union for resolving conflict of laws between Member States when dealing with cross-border selling or marketing of goods and services. The principle states that, where an action or service is performed in one country but received in another, the applicable law is the law of the country where the action or service is performed. It is also called home country control, country of origin rule, or country of origin principle. It is one possible rule of EU law, specifically of European Single Market law, that determines which laws will apply to goods or services that cross the border of Member States.
Supranational law is a form of international law, based on the limitation of the rights of sovereign nations between one another. It is distinguished from public international law, because in supranational law, nations explicitly submit their right to make judicial decisions by treaty to a set of common tribunal. The United Nations Security Council and subordinate organizations, such as the International Court of Justice, are the only globally accepted supranational tribunals.
The primacy of European Union law is a legal principle establishing precedence of European Union law over conflicting national laws of EU member states.
Legal certainty is a principle in national and international law which holds that the law must provide those subject to it with the ability to regulate their conduct.
The European Union's (EU) Treaty of Lisbon, in force since 1 December 2009, requires the EU to accede to the European Convention on Human Rights (ECHR). Article 6 of the consolidated Treaty on European Union states "The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties." The EU would thus be subject to its human rights law and external monitoring as its member states currently are. It is further proposed that the EU join as a member of the Council of Europe now that it has attained a single legal personality in the Lisbon Treaty.
The Rosella or International Transport Workers Federation v Viking Line ABP (2007) C-438/05 is an EU law case, relevant to all labour law within the European Union, including UK labour law, which held that there is a positive right to strike. However, it also held that the right to strike could infringe a business's freedom of establishment under the Treaty on the Functioning of the European Union article 49. The decision has been criticised for the Court's inarticulate line of reasoning, and its disregard of fundamental human rights.
P v S and Cornwall County Council was a landmark case of the European Court of Justice (ECJ) which extended the scope of sex equality to discrimination against transsexuals.
Kadi and Al Barakaat International Foundation v Council and Commission (2008) C-402/05 is a case concerning the hierarchy between international law and the general principles of EU law. It is also known as Kadi I to distinguish from a later related case, Kadi II (2013).
Omega Spielhallen und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn (2004) C-36/02 is an EU law case, concerning the freedom to provide services and the free movement of goods in the European Union.
Baumbast and R v Secretary of State for the Home Department (2002) C-413/99 is an EU law case, concerning the free movement of citizens in the European Union.
The Rule of Law Conditionality Regulation is a regulation of the European Union and Euratom, which allows the European Commission to adopt measures, including the suspension of payment of funds from the EU budget, to member states which violate the principles of rule of law enshrined in article 2 of the Treaty on European Union.
In the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.
