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European Union Law (LS2011)

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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) ...read more.


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. ...read more.


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. ...read more.

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