#15634 - General Principles And Fundamental Rights - European Law

GENERAL PRINCIPLES AND FUNDAMENTAL RIGHTS

CJEU established a range of general principles of EU law; these are part of primary EU law and are conditions of the legality of secondary legislation. CJEU can review legislation for contravening GPs:

• Art. 263 TFEU: Jurisdiction of CJEU: CJEU shall “review the legality of legislative acts … 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.”

The CJEU has used GPs more extensively than just as ‘gap fillers’ in interpreting EU law; to a certain extent the Treaties support this development —e.g. Art 263; Art 340 TFEU: the EU shall “in accordance with the general principles common to the laws of the MS, make good any damage caused by its institutions” —however, Hartley sees the CJEU has having “utilised general principles to cloak the nakedness of judicial law-making.”

Function of GPs: (i) interpretative guides in relation to the Treaties / EU acts; (ii) ground of judicial review and annulment of secondary legislation / national measures within scope of EU law; (iii) to develop fundamental rights in EU law. They have also been created / manipulated by the ECJ to achieve the results it wants around the limitations of EU law —e.g. Mangold (to get around the horizontal direct effect of Directives).

Sources of GPs: (i) constitutional traditions common to MS (e.g. proportionality from German constitution); (ii) Treaty provisions (e.g. non-discrimination) and secondary legislation (e.g. Ruckdeschel); (iii) ECHR; (iv) values found in Treaties:

• Art 2 TEU: the EU is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law, and human rights.

PROPORTIONALITY

Prior to Art 5(4) TEU, introduced in Lisbon, proportionality was a GP. The following is an example of a GP being used to strike out the penalty clause in a directive:

• Bela Muhle [1977]: “If... a measure imposes on certain categories of persons a burden which is in excess of what is necessary... it violates the principle of proportionality.”

LEGITIMATE EXPECTATION

Legal certainty and legitimate expectations are GPs which:

• Prevent legislation from having retroactive effect. This is justified by the rule of law.

• Individuals are protected by legitimate expectation where they have been given precise and specific assurances by EU institutions which cause the individual to entertain justified hopes.

  • Individual must be able to point to a bargain between them and the authorities (Mulder) or to a course of conduct / assurance capable of generating a legitimate expectation. Mere fact that a trader is disadvantaged by a change in the law will not give cause for review.

Mulder [1988]: EU Directive provided a subsidy would be given to farmers who undertook not to supply milk. C gave such an undertaking, then tried to recommence milk production at the end of the agreed five-year period, but was prevented from doing so by the Dutch authorities based on the Directive. CJEU: C had a legitimate expectation that he could return to production after 5 years.

• “where such a producer has been encouraged by a Community measure to suspend marketing for a limited period … he may legitimately expect not to be subject to restrictions which specifically affect him precisely because he availed himself of the possibilities offered by the Community provisions”

NON-DISCRIMINATION

Started as a GP in CJEU case law but is now expressly mentioned in the Treaties:

• Art 2 TEU: equality and non-discrimination are foundational values of the EU

• Art. 19(1) TFEU: “the Council, acting unanimously in accordance with a special legislative procedure… may take appropriate action to combat discrimination.”

• Art. 21(1) (Charter of Fundamental Rights): ““Any discrimination … shall be prohibited.”

Recognised by CJEU as a GP:

• Ruckdeschel [1977]: EU regulation provided for production refunds for certain competing cereal crops, but not others. CJEU: Regulation was invalid as it contravened GP of equality—no justification for treating the two products in an unequal manner. Principle excludes “any discrimination between producers or consumers within the Community”

Mangold shows GPs can have horizontal direct effect in cases between private parties —this has been criticised as a mechanism for circumventing the absence of horizontal direct effect of directives and for undermining legal certainty —particularly because the transposition period had not expired.

• Mangold [2005]: German law allowed unrestricted use of fixed term contracts for employees aged 52 and older. C (56) entered a fixed term contract with employer —C argued it was incompatible with an EU Directive, which had not yet been implemented into German law (implementation period not expired) CJEU: German law was unlawful under EU law because it violated the GP of non-discrimination of age.

• MS must observe the GP prohibiting discrimination on grounds of age even though this Directive has not reached the end of the transposition period —any provision of national law which conflicts with a GP of EU law must be set aside by the national courts.

Mangold was criticised for articulating a GP against age discrimination and undermining the carefully negotiated provisions of the Directive; the CJEU interfered with political choices and compromises represented in MS’ social policy — effectively creating a new EU social right on the basis only of a vague reference to international instruments and MS common constitutional traditions.

Despite Mangold controversies, GP of non-discrimination on grounds of age was confirmed in:

• Seda Kucukdeveci [2010]: C was employed by D from 18-28. D calculated C’s notice period as if C had 3 years of service, rather than 10 (national legislation stated years of employment under 25 didn’t have to be taken into account). CJEU: Due to the lack of horizontal direct effect of Directives, the Equal Treatment Directive (as in Mangold) could not give an employee a remedy against her employer (just a claim against German government). However, the Directive is merely a specific expression of a GP, which can have horizontal direct effect and the national court was under a duty to disapply any provision of national law breaching this principle.

  • AG: case should be resolved by giving horizontal direct effect to the Equal Treatment Directive rather than through the general principle of non-discrimination on grounds of age.

Commentary on Mangold and Seda:

• Tursing and Horler: Seda means any national law which comes under the scope of a directive, must be declared invalid by domestic courts if it conflicts with a EU GP. This could include a huge range of national legislation and is contrary to the absence of horizontal direct effect.

  • Undermining direct effect: In Seda, CJEU denies horizontal direct effect but achieves the same result by allowing individuals to rely on the equality principle. National law is disapplied because it is contrary to EU law. That cannot be distinguished from direct effect. This move crumbles the architectural structure of Regulation and Directive.

• Peers and Costa:

• GPs and the Fundamental charter: Seda is the first case where CJEU refers to the new legal status of the Charter as set out in the Treaty of Lisbon. But noticeably, Court still refers primarily to GPs of EU as a source of human rights rules. This might be because GPs are not subject to the protocols (UK, Poland, CZ negotiated a separate Protocol to alter the Charter’s impact).

• Scope of the Rule: The rule in Kucukdeveci should not be limited to cases of non-discrimination on grounds of age, should apply whenever any GP of EU law regarding human rights protection is sufficiently connected to the application of a Directive.

• Decision is justified: Human rights should be privileged over other rules as regards their legal effect on conflicting national law because human rights have primacy in the hierarchy of primary EU law, confirmed in Kadi. Directives giving effect to human rights principles should have stronger legal effect than normal Directives (which this decision achieves).

LIMITS TO THE GENERAL PRINCIPLES

No GP of discrimination on grounds of sickness:

• Sonia Chacon Navas [2006]: C had to take eight months off work due to sickness. D dismissed C. C argued that the dismissal was void due to discrimination on grounds of sickness and contrary to the EU Equal Treatment Directive. CJEU: rejected C’s claim, the Directive did not cover this situation and there is no general principle of non-discrimination on grounds of sickness.

Bartsch limits the application of Mangold, BUT note that it was decided before Seda, which seems to reinforce Mangold. My thoughts: not really a step back, just affirming that a link to EU law is required before GPs will bite; i.e. the national law has to be within the scope of an EU Directive / Regulation.

• Bartsch [2008]: D’s pension scheme excluded benefits for spouses more than 15 years younger than their partners. C (21 years younger than her husband) was denied benefits on this ground and challenged it CJEU: rejected C’s claim — the situation had no link with EU law (outside the Equal Treatment Directive) and so a GP could not apply:

Peers: Bartsch shows the need for a sufficient link to EU legislation (e.g. national measures implementing the Equal Treatment Directive as in Mangold). GP of equal treatment will not be applied in a fully autonomous way by the ECJ, will only apply where there is a link to the Equal Treatment...