General Principles of EU Law
General principles of European law are unwritten rules used and applied in the interpretation of European Union law. They involve principles of justice and principles designed to protect human rights. They may fill gaps in law and make the law more coherent. General principles of community law derive from a number of sources.
The EU treaties allow EU courts to apply the general principles of the laws of the states in deciding the civil liability of the Union itself. The principles have been applied generally to all aspects of the European Community laws.
It is a general principle of law that it should be certain and coherent. It should be clear and precise, foreseeable in its application. The concept of legal certainty is expressed in a number of ways. Legal action should not be retrospective.
EU institutions must act in good faith in administrative matters and in their contractual relations. Institutions must comply with the law and the rule of law. They should respect vested rights. The principle of legitimate expectations should be respected. Those who follow the law in good faith should not be frustrated in their expectations in relation to that law and its application.
The European Union courts imply procedural fairness in administrative matters. This incorporates some generally accepted international principles of law. Persons are entitled to the right to fair procedures. This requires a fair hearing.
Sources of EU General Principles
European Union courts have recognised and have regard to the general principles common to the law of the member states. This applies even where there are significant divergences in laws. The general principles of the law of the member states may be discovered on comparison. However, this is not a mathematical process of finding a common ground or counting the states which applies a particular principle. The courts at European Union level draw on principles of laws in a general way.
The principles as incorporated at EU level have their own independent meaning and need not necessarily coincide to those in national law. Some of the basic principles include equality and just enrichment, civil liability for wrongs, confidentiality, rights of access to the legal system, business confidentiality, mitigation of penalties.
Certain general principles of law have been inferred from the objectives and context of the European Community. The principle of non-discrimination is firmly based in the treaty. There are specific prohibitions on discrimination by authorities (and others) on the basis of sex, racial or ethnic origin, religion, belief, age, disability or sexual orientation. The principle of equal pay between men and women is set out in the treaty.
Proportionality was a German law concept imported early into the European Union. It obliges public authorities to place no more obligations than reasonably necessary or proportionate for the particular purpose to be achieved. The burden imposed should be in proportion to the objective required. Where there are several alternatives, the least onerous should be chosen.
The principle of proportionality has now been entrenched in the EU treaties. An action of the Union shall not go beyond what is necessary to achieve the object of the treaty.
The principles of free movement of goods, people, services, and capital are central to the common market. The rules on common standards and competition are integral to the common market. These general freedoms are employed in interpreting European Union legislation.
The original European Union treaties did not contain any protections for human rights. Many national constitutions contain human rights protections. As European Union law sought to have superiority over domestic law in areas of EU competence, it was a practical necessity that common human rights principles should be incorporated.
The European Court of Justice recognised at an early date that fundamental human rights are part of the general principles of Union law cases. They referred to international treaties for the protection of human rights and in particular the European Convention on Human Rights and its case law.
Although the European Union deals principally with economic matters, the principles of the separate European Convention on Human Rights convention were imported into European law at an early date. Since the early 1970s, European Court of Justice has made reference to the principles and case law of European Court of Human Rights in its decisions.
The European Court of Justice has recognised several basic principles which are reflected in the European Convention on Human Rights including
- rights to equality,
- rights to human dignity,
- rights to exercise economic and professional activities.
- rights in respect for private and family life, home and correspondence,
- rights to property,
- rights to free speech,
- rights to religious freedom,
- rights to a fair hearing and due process.
The Treaty on European Union incorporated, recognised that the protection of human rights is a fundamental principle of EU law. It provided that cooperation in justice and home affairs should be undertaken in accordance with the Convention’s principles.
The TEU provided that a state might have its EU rights suspended where the Council determined that it had undertaken serious and persistent violations of human rights. If the Council determines a clear risk of a serious breach of human rights by a state arises, it may address recommendations to the state to deal with it.
Charter of Fundamental Rights
The Charter of Fundamental Rights of the European Union was drafted by a convention comprising members of the states, the European Parliament, governments and national parliaments. The charter was adopted by a solemn declaration by the Council, European Parliament and Commission jointly.
The charter was not initially legally binding but was highly influential. Its set out basic freedoms and rights and made them explicitly part of the European Union order.
The Lisbon Treaty reforms and amends the existing treaties. It largely follows the principles of the failed European Constitution. There are two treaties, the Treaty on European Union (TEU) and the Treaty on Functioning of the European Union (TFEU). They create the European Union as the single EU entity.
The Lisbon Treaty amendments declare that the European Union is based on certain common principles of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human right. If a state breaches or threatens to breach these principles, the EU can take steps against the state concerned.
The European Charter of Fundamental Rights became part of the treaties under the Lisbon Treaty and is binding on the European institutions and the member states, in the context of EU law and practice. The Charter corresponds in many respects with European Convention on Human Rights. In some respects, it goes further than it.
The EU itself is to become a party to the European Convention on Human Rights, although the process is stalled at present. This would mean that or the first time, the European Court of Human Rights may scrutinize the laws and actions of the European institution. The European Court of Human Rights could in principle override the European Court of justice in respect of human rights matters if accession is completed.
The European Agency for Fundamental Rights was established in 2007. Its role is relatively limited, being to provide assistance and expertise to states and the EU on human rights issues.
The agency has no jurisdiction to deal with complaints. Its opinions are not binding. It has relatively little powers. Its functions are to formulate conclusions and opinions on its own initiative or at the request of institutions, present annual reports, highlight good practice, provide thematic reports on matters relevant to EU policies.
The general principles of law are of great importance in interpreting the treaty. They are superior to secondary legislation and measures.
Principles of Interpretation
The European Court of Justice employs various methods of interpretation. The Vienna Convention on the Law of Treaties provides that the ordinary treaty should be interpreted on the basis of their ordinary meaning in the context and in the light of their object and purpose. The European court has emphasised its context, purpose and objects and does not favour an overly literal interpretation.
European Union legislation is drafted in several languages. Each version has equal status. Various methods are drawn on to interpret European Union law. One key objective is the desire to maintain coherence and unity within the European Union legal order and system.
The courts will attempt to give effect and meaning to a provision if at all possible. An interpretation which gives effect to a provision will be preferred over one which leaves it void of meaning.
The principle of precedent used in common law does not strictly apply in European Union law. It follows the continental civil law systems which lay less emphasis on precedent. However, the European Court of Justice has developed European Union law very significantly.
The European Court of Justice has sought to evolve case law that can be used as a basis for other national courts and parties implementing and understanding European Union law. It does generally adhere to previous decisions and will depart from them only in exceptional circumstances, having considered the full implications.
European Court judgments refer to previous judgments as a basis for decisions. There was controversy as to whether the case law of European Court of Justice and Court of # constitutes law in itself. The principles have been built up in a coherent way, but the doctrine of precedent does not apply in strict terms. There is support for the view that the decisions of Court of Justice are binding in relation to the interpretations of the treaties.