#14633 - General Principles Of Eu Law - GDL EU Law

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Treaty Basis

Weak textual basis of competence:

• Art 6(3) TEU: fundamental rights as general principles

• Art 19 TEU: CoJ “shall ensure that in the interpretation and application of the Treaties the law is observed”

• Art 263(2) TFEU: CoJ “shall…have jurisdiction in actions…on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application or misuse of powers”

• Art 340(2) TFEU: “in accordance with the general principles common to the laws of the MS, make good any damage caused by its institutions…”

General principles = a body of rules which exist independently of the treaties

The Court has identified and applied an (open) list of GPL including:

• Fundamental rights

• Equality

• Subsidiarity

• Transparency

• ‘Precautionary Principle’

• Rules of administrative justice: proportionality (discussed below), legal certainty, legitimate expectations, right to fair hearing, duty to give reasons, right to legal redress (‘due process’) etc.

Argument that there is some treaty basis:

• Art 2 TEU (foundational values)

  • Art 7 TEU breach of fundamental values

• Art 5(1), (3) & (4) TEU subsidiarity & proportionality

• Arts 18, 19, 40 & 157 TFEU equality

Sources:

• ECHR

• MS constitutional traditions Hoogovens v High Authority “the court…chooses from each MS those solutions which, having regard to the objects of the Treaty, appear to be the best or…the most progressive”

• CoJ jurisprudence

Proportionality

(Art 5)

The Protocol of the Application of the Principles of Subsidiarity and Proportionality requires justification of any draft legislation under these principles

Fedesa 1990: proportionality as a purposive tool – “measures...do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued”

Fundamental Rights

Early approach:

Geitling v High Authority

Held: rejected the suggestion that Community law might give some protection to fundamental rights contained in the German constitution.

• Community law, ‘does not contain any general principle…guaranteeing the maintenance of vested rights.

Stork v High Authority: CoJ could not examine a complaint which maintains that it infringed principles of German constitutional law

• Calls from the President of the Commission to make fundamental freedom protection more ‘visible’

Stauder v City of Ulm

Scheme to provide cheap butter to recipients of welfare benefit

Held: the Union could not "prejudice the fundamental human rights enshrined in the general principles of Community law and protected by the Court".

International Handelsgesellschaft v Einfuhr- und Vorratsstelle Getreide

Held: extension of EU primacy to fundamental rights

• “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.”

J Nold v Commission

Held: HR integral & measures cannot be upheld which impinge upon them – CoJ to draw inspiration from the constitutional traditions common to the member states.

• “international treaties for the protection of human rights on which the member states have collaborated or of which they are signatories, can supply guidelines”

Reaction:

• Solange I: German constitutional court threatened to disapply EU measures in conflict

• Solange II: cautious acceptance of EU fundamental rights protection & grundgesetz

Who is bound by fundamental rights

EU Institutions:

Kadi and Al Barakaat

Frozen assets under UN law

Held: MS have an international duty to the UN but this does not affect EU supremacy. The legality of EU laws must be established by its own constitutional order (which incorporated HR as a general principle)

• EG Maduro: Van Gen den Loos legal autonomy of the EU legal order -> “constitutional framework created by the Treaty” first and foremost; it does not have to bow down to international law

Kadi II

Held: requires balancing exercise between judicial protection & security of the Union re: disclosure of names

JR requirements:

• Competence Art 5 TEU

• Reasons Art 296 TFEU

• Art 47 Charter factual basis

Member States:

Wachauf

Held: the requirements of the protection of fundamental rights in the EU legal order ‘are also binding on the Member States when they implement EU rules’.

Elliniki Radiophonia

Held: state monopoly on broadcasting violating freedom of expression; the Court observed ECHR

Sensitive areas:

SPUC v Grogan

Leaflets about abortion providers circulated by students

Held: the treaty was not infringed as there was no economic dimension to the student

• AG thought this was a balancing exercise between Irish protection of right to life vs freedom of expression and freedom to provide services

NB: criticised as politically motivated evasion

However:

Open Door v Dublin Well Woman

SC injunction against abortion info

Held: the measures were not defendable (1) as prevention of criminal offence, as information & provision outside the jurisdiction were not criminal and (2) “the Court cannot agree that the State’s discretion in the field of the protection of morals is unfettered and unreviewable”

The Charter of Fundamental Rights

Pre-Lisbon; non-binding (EP v Council 2006 “while the Charter is not a legally binding instrument the Community legislature did, however, acknowledge its importance…”)

Libson Treaty:

• Charter legally binding Art 6(2) “not affect the Union’s competences as defined in the Treaties”

• Amendments emphasises commitment to HR

Art 51 Charter:

• Addressed to the institutions of the EU

• AND MS “when they are implementing Union law”

• Akerberg Fransson

Miscalculation...