European Union Law (LS2011)
European Union Law (LS2011)
Question 6: "The role of general principles in EU law is opaque and uncertain." Discuss.
Student ID: 03157563
Since the founding European Community Treaties of the 1950's there has been a noticeable evolution in regards to the lack of provisions concerning the protection of human rights in the conduct of the Community affairs. Primarily this evolution was the work of The Court of Justice, who stated that "the 'general principles of EC law' include protection for fundamental rights which are part of the common constitutional traditions of Member States."1 Article 249 of the EC treaty lays out the sources from which the Community may govern, with greatest emphasis being placed on regulations and directives. However, there are 'softer' forms of law, which have been adopted due to their natural and logical evolution in practice. The 'general principles', inspired by the common traditions and constitutional rules shared by the Member States, fall into this category, and are thus used more as aids to legal interpretation rather than definitions of the law itself.
These general principles of EU law include; 1) Legal certainty and legitimate expectations, (the knowledge of citizens of the likely legal consequences of their actions); 2) Proportionality, (originally a German based principle that the ECJ has adopted, which says that "it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they go beyond what is necessary to achieve it."2); 3) Equality/ non-discrimination, ("comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified."3); 4) Transparency, (the right to obtain information); 5) The right to a fair hearing, ("a person whose interests are perceptibly affected by a decision taken by a public authority must be given the opportunity to make his point of view known."4) Within the general principles there is also what is known as the special case of 'fundamental rights,' which have gradually become encompassed within EU law.
However, the Court of Justice initially showed a strong resistance towards accepting the "existence and relevance of the EC legal order of unwritten general principles of law, including protection for certain fundamental rights."5 This was despite their recognition within domestic law, and it was only after numerous cases where they rejected the relevance of rights or principles that were not expressly outlined in the Treaties that the Court changed its approach. This more receptive approach by the Court of Justice can be seen when the more recent case of Stauder6 is contrasted with the older cases of Stork7, Geitling8 and Sgarlata. Peculiarly, in the last case of Sgarlata 9, the fundamental principle in question was common in all the legal systems of all the member states, however, the Court decided that the express provisions of the Treaty could not be overruled by a plea originating from other principles. This attitude towards the general principles can be seen to have changed in the case of Stauder, where the ECJ declared that "protection for fundamental human rights is part of the general principles of EC law,"10 and there was a noticeable absence to any reference of the previously contradictory case law, such as the aforementioned decision in the case of Sgarlata. Looking at this handful of cases it would appear that the ECJ performed a complete U-turn in regards to the application of the general principles, thus demonstrating a certain degree of inconsistency; conversely, this could instead be seen positively as a natural progression into a more proficient system of law.
In order to maintain a certain degree of cohesion in legal rulings, and to avoid uncertainty, when applying the general principles, it is important that there is a standard of protection for the fundamental rights when they are applied by the ECJ. This is achieved twofold; firstly the Court looks at exactly how the general principles are drawn from their original sources, and secondly the way the ECJ decides whether or not a fundamental right has been breached. The method implemented by the ECJ in insuring this cohesion is relatively simple, and is clearly outlined in the case ...
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In order to maintain a certain degree of cohesion in legal rulings, and to avoid uncertainty, when applying the general principles, it is important that there is a standard of protection for the fundamental rights when they are applied by the ECJ. This is achieved twofold; firstly the Court looks at exactly how the general principles are drawn from their original sources, and secondly the way the ECJ decides whether or not a fundamental right has been breached. The method implemented by the ECJ in insuring this cohesion is relatively simple, and is clearly outlined in the case of Nold11, which states that:
"In safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognised and protected by the Constitutions of those States.
"Similarly, 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."
This decision was then later recognised on 5 April 1977 by the joint declaration of the European Parliament, the Council and the Commission. The abovementioned international treaties for the protection of human rights from which the ECJ attempts to legitimate its development of unwritten general principles include the European Convention on Human Rights (ECHR) and the European Social Charter of 18 November 1961. The former of which was referred to in the case of Hauer12, a case also useful when looking at the application of specific provisions of a particular nations constitution. Here the applicant was refused authorization to plant new vines on her land due to the EC Council having passed a regulation forbidding any new planting in that region. On appeal to the German court, on the grounds of incompatibility of the Council Regulations with the German Constitution, it was found that "if it were incompatible with fundamental German constitutional rights, the Regulation might be inapplicable in Germany"13. Other international sources that the Court utilises include the European Social Charter. This was so in the case of Defrenne14, where the court, "deeming the elimination of sex discrimination to be a fundamental Community right, supported its conclusion by noting that 'the same concepts are recognised by the European Social Charter and by Convention No. 111 of the International Labour Organisation concerning discrimination in respect of employment and occupation.'"15 The relative vastness of sources from which the Court obtains its legal backing when applying the general principles, from countries constitutions and numerous European sources, may be seen to create a high degree of uncertainty when deciding the law, however, to look at it in a more positivistic view, one could approach it with the viewpoint that the Court is merely trying to encompass all relevant law in an attempt to create a consistent foundation from which the law may be derived.
A problem at the forefront of the standard of protection, which the ECJ has adopted for its general principles, is that of the scale of protection for different rights. The problem here is that every Member State values different rights with a varying amount of importance, leading to alternative methods on how that specific right should be protected. An example of such a situation is where all member states agree that there should be some protection for freedom of expression, but simultaneously have different views about how that specific right should be protected, in a given situation. Every nation's legal system varies from the next in many ways, and it is due to the discrepancies between these that there is a certain degree of ambiguity for the ECJ. Paul Craig and Grainne De Burca16 accentuate this point clearly, in their European law textbook, when they say;
"Some states accept greater restrictions than others on the scope of individual rights and freedoms in the pursuit of public interests. And while all member states recognise the right to life, for example, Ireland is alone amongst the current fifteen Member States in maintaining extremely restrictive national abortion laws, which reflect the current, albeit contested, scope of that under the constitution."
In order to consolidate the foundations from which the fundamental rights were being drawn, an initiative was launched in 1999 by the European Council to draft a Charter of Fundamental Rights for the EU. This initiative was "proclaimed by the Commission, Parliament, and Council and was politically approved by the Member States at the Nice European Council summit in 2000."17 However, a final decision as to its integration was postponed by the Laeken Declaration until 2004 when it will be ultimately decided by the IGC.18 The Charter was however, based primarily upon the sources from which ECJ had already been deriving its legal rulings, that is to say various European and international agreements and national constitutions, an amalgamation well described by Paul Craig and Grainne De Burca as a "creative distillation."19 The value of the Charter has been scrutinised, however, it is clearly of a significant value as the European Ombudsman, on 8 April 2002, attacked the EU institutions for a their lack of adherence to many of the rights contained within the Charter, in his speech he said:
"I would like to stress that European citizens have the right to expect the Charter to be followed by those institutions whose presidents solemnly proclaimed to it in Nice in December 2000, that is the Council, the Parliament and the Commission."20
Despite this somewhat critical show of the application of the Charter, there have been numerous references to provisions contained within the Charter by Advocates General. This is coupled by its first mention in an EU judicial decision, when the Court of First Instance, in max.mobil Telekommunikation Services21 referred to Articles 41 and 47 of the Charter as yet another supporting source of the 'general principles' of law common to the Member States. Yet again this shows the development and evolution of the 'general principles' into a more reliable source and accentuates the "enhanced status of human rights within the EU and EU law."22
However, despite this "enhanced status" created by the formation of the Charter, the development of the general principles and fundamental rights has come under a certain degree of criticism for various reasons. These include; a)the Court broadening its jurisdiction to encompass what should stay the primary concern of the Member State, due to their "considerable political, cultural and ideological diversity."23 b) There are concerns that the Court has become biased towards 'market rights' rather than ensuring the application of rights truly fundamental to society. c) A third concern is that the Court has effectively become yet another European Court of Human Rights.
However, juxtaposed with these sceptical outlooks are opinions emanating more positivistic approaches to the role of general principles as governed by the Charter. These include; in the case of P v. S24 and the case of Schroder25 where Advocate General Tesauro displays an approach towards cases which takes the judgement away from any economic, benefits and instead focuses upon the "dignity of the individual and the value of equality as a fundamental human right."26 These and other such encouraging approaches have led to arguments that if a more encompassing commitment could be made to ensure respect for fundamental human rights then the EU could develop the ethical foundation which so far it lacks.
Overall, regardless of the changing and progressively enhanced status of human rights within the EU and EU law, the evolution of the general principles and fundamental rights have come under a great extent of criticism. However, such human rights issues as are embedded within the general principles have been enjoying an increasingly higher profile within EU law, particularly in the wake of the Charter of Fundamental Rights. More specifically the general principles display a "broad and non-exhaustive"27 category taken from the constitutions of Member States and administrative traditions. This width of jurisdiction is ever increasing with some principles, formerly not recognised by EU law, now gaining that recognition, for example the developing transparency principle, which has now been 'concretised' in secondary legislation. However, the general principles will always remain relatively opaque and uncertain unless the legal status of the Charter for Fundamental Rights is finally settled.
Word Count - 1964words
Bibliography
Law Text, Cases and Materials (Third Edition) - Paul Craig and Grainne De Burca
B. de Witte, 'The Legal Status of the Charter:
www.yahoo.com
www.lexisnexis.com
EU Law Text, Cases and Materials (Third Edition) - Paul Craig and Grainne De Burca
2 Case C-84/94 United Kingdom v. Parliament [1997] ECR I-2405, at paras 57-58
3 Case 106/83 Sermide [1984] ECR 4209
4 Case 17/74 Transocean Marine Paint Association [1974] ECR 1063
5 EU Law Text, Cases and Materials (Third Edition) - Paul Craig and Grainne De Burca
6 Case 29/69 Stauder v. City of Ulm [1969] ECR 419
7 Case 1/58 Stork v. High Authority [1959] ECR 17
8 Case 36, 37, 38, & 40/59 Geitling v. High Authority [1960] ECR 423
9 Case 40/64, Sgarlata and others v. Commission [1965] ECR 215, [1966] CMLR 314
0 EU Law Text, Cases and Materials (Third Edition) - Paul Craig and Grainne De Burca
1 Case 4/73 Nold v. Commission [1974] ECR 491
2 Case 44/79, Hauer v. Land Rheinland-Pfalz [1979]ECR 3727
3 Case 44/79, Hauer v. Land Rheinland-Pfalz [1979]ECR 3727
4 Case 149/77, Defrenne v. Sabena [1978] ECR 1365
5 EU Law Text, Cases and Materials (Third Edition) - Paul Craig and Grainne De Burca
6 Law Text, Cases and Materials (Third Edition) - Paul Craig and Grainne De Burca
7 Law Text, Cases and Materials (Third Edition) - Paul Craig and Grainne De Burca
8 B. de Witte, 'The Legal Status of the Charter: Vital Question or Non-Issue?' (2001) 8 MJ 81
9 Law Text, Cases and Materials (Third Edition) - Paul Craig and Grainne De Burca
20 Law Text, Cases and Materials (Third Edition) - Paul Craig and Grainne De Burca
21 Case T-54/99, max.mobil Telekommunikation Services GmbH v. Commission, ruling of 31 Jan. 2002 paras. 48, 57
22 Law Text, Cases and Materials (Third Edition) - Paul Craig and Grainne De Burca
23 Law Text, Cases and Materials (Third Edition) - Paul Craig and Grainne De Burca
24 Case C-13/94 [1996] ECR I-2143
25 Case C-50/99, Deutsche Telekom v. Shroder [2000] ECR I-743
26 Law Text, Cases and Materials (Third Edition) - Paul Craig and Grainne De Burca
27 Law Text, Cases and Materials (Third Edition) - Paul Craig and Grainne De Burca
EU Law Question 6 19 Nov. 04
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