A. Statement

“General Principles of Community Law are relevant in the context of EC Law in a number of ways. Firstly, they may be invoked by both the states and individuals in order to challenge Community or Member action; Lastly, they may be invoked to support a claim for damages against the Community” (Steiner and Woods) – Illustrate this statement by reference to the case-law of the European Court of Justice.

B. Introduction

General principles of law are found in every legal system in Europe. The European Court of Justice has induced them into the legal order to supplement the written sources of law, the treaties, and are used as an aid of interpretation. This is because the court can’t rule on all the issues through applying laws, and treaties from the past. Therefore, over the years the rules of Community Law were allowed to be derived from general principles of law in addition to treaties and EC legislation[1]. On the one hand the European Court of Justice (ECJ) will try to find a reference for the general principles in the laws and sources that they already have obtained, and apply the general principle in it’s own right. On the other hand the EJC will, when referring to municipal law, look for a principles of law, that are found in most member states, regardless of the fact, that there might be a minority state, that does not apply these principles.

C. Justification of general principles

Even without any Treaty provisions, the EJC can justify the use of general principles. Though a justification for the general principles being a source of law can be found in three Articles of the EC Treaty.

I. Article 220 EC Treaty

This article states, that the “Court of Justice shall ensure that in the interpretation of the Treaty the law is observed”. It is through this a basis for the non-contractual liability of the community, if an act violates the rights of a person or member state.

II. Article 230 § 2 EC Treaty

This articles provides the review of the legality of community acts. The Members of a community must not adopt measures, which are not proportional, and create a burden. This also gives the individual the chance to attack a community act itself.

III. Article 288 § 1 EC Treaty

Article 288 deals with non-contractual liability, or tort. Through this the community can be made liable and sued for various legal faults.

D. General Principles of Community Law

I. Foundations of Human Rights

1) The protection of fundamental rights is one of the basic tenets of European Community law. But neither the EC Treaty nor the EU Treaty contains a written list of fundamental rights. Only the principle of equal pay for men and women has from the start been codified in Article 119 of the EC Treaty. ECJ recognised the existence of fundamental rights at Community level at an early stage, and has steadily extended them. Under the Court’s continuing case-law, fundamental rights form part of the general principles of Community law and are equivalent to primary law in the Community legal hierarchy. The source of recognition of these general legal principles is Article 6 ( ex F.2) of the EU Treaty, which commits the EU to respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (EHRC) and as they result from the constitutional traditions common to the Member States, as general principles of Community law. There is also a reference to the protection of human rights and fundamental freedoms in Article 11(1) (J.1(1)), fifth indent and Article K.2(1) EUT and Article 177(1) and (2) (130u) ECT, while the European Convention is referred to in the preamble to the Single European Act. The Court decided back in 1974 that fundamental rights form part of the general principles of Community law that it is required to uphold, and that in safeguarding such rights it should be guided by the constitutional traditions of the Member States. Accordingly, no measure may have the force of law unless it is compatible with the fundamental rights recognised and protected by the Member States‘ constitutions[2].

  1. In the case Stauder v. City of Ulm[3] the EJC was first confronted with the issue of human rights. Upholding a challenge to a Commission decision providing for the sale of butter at reduced prices to beneficiaries of certain welfare schemes on the ground that the decision at issue contained „nothing capable of prejudicing the fundamental rights enshrined in the general principles of law and protected by the Court.“. The Court has never been explicit about the precise source of its authority to review acts of Community institutions in this manner. Most agree that this authority derives from Article 164, which provides that the Court must ensure that in the application of the Treaty „the law“ is observed, and from Article 173, which provides that the Court must review Community actions for infringements of „any rule of law relating to the application of the Treaty.“ The conclusion to this case was, that it confirmed that fundamental rights existed in EC Law.
  2. In the case Internationale Handelsgesellschaft GmbH v. Einfuhr – und Vorratsstelle für Getreide und Futtermittel[4]. In Internationale Handelsgesellschaft, the Court rejected the possibility that a national court might review and declare invalid a Community regulation on the basis of specific national provisions, noting that „recourse to the legal rules and concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse affect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in light of Community law. Germany’s constitutional court, the Bundesverfassungsgericht (BVerfG), has in the past refused to recognize the supremacy of EU law and the ECJ. The Court pointed out, that Article 24 of the German Basic Law did not permit the transfer to a supranational organization of the power to violate or de facto amend the unamendable provisions of the Basic Law guaranteeing fundamental rights, and reserving to the German Constitutional Court the authority to „disapply“ Community acts which infringed those guarantees. The BVerfG initially reasoned that first, because the organs of the EC were not democratic, and second, because the EC lacked protection for „human rights,“ no transfer of powers from Germany to the EC could deprive German citizens of their constitutional protections[5]. For the ECJ to maintain its supremacy over the German constitutional court, it had to develop a jurisprudence protecting human rights[6]. As a result, the ECJ pragmatically developed a body of case law that had, by 1987, convinced the German constitutional court that European law did in fact adequately protect human rights.12 The general principle of proportionality, which was induced through this case for the first time, comes from the German word “Verhältnismäßigkeit”. Through this method a certain issue is legally reviewed in two steps. First, there must be a burden for the plaintiff, through a community action. Second, the burden is only unproportional, if the act is excessive. In the case of the Internationale Handelsgesellschaft the measure was “unverhältnismäßig”, since “A public authority may not impose obligations on a citizen except to the extent to which they are strictly necessary in the public interest to attain the purpose of the measure”. Through this case the constitutions of member states were identified as primary sources of the human rights.
  3. In the case Nold, Kohlen und Baustoffgroßhandlung v. Commission[7], the German courts confirmed, that they would annul any EC Rule, which would be contrary to fundamental human rights. The court also pointed out to the commission, that international treaties should be the new source of fundamental rights. Apparently, the Court included in this formula international treaties that Member States had participated in drafting but had not yet ratified because of the fact that France had ratified the European Convention only a week before the Court rendered its decision in the case.
  4. The Case Liselotte Hauer v. Land Rheinland Pfalz[8], the provisions of the European Convention on Human Rights were analysed. Upholding a challenge to a Community regulation which prohibited the planting of new vines on certain lands against claims that the regulation violated the landowner’s rights to property and to pursue a trade or profession guaranteed by the German Constitution. In Hauer, the Court found that the relevant provision of the European Convention was insufficiently precise to determine whether the individual’s fundamental rights had been infringed, and looked beyond that document to the constitutional traditions common to the Member States. This suggested that the Court would in some situations view the European Convention as providing only a minimum level of fundamental rights guarantees.

2. In conclusion it can be said, that these cases solidify the statement of Steiner and Woods, since Community Actions were both challenged by the member states, and individuals. Every country, especially Germany will watch the EJC closely to avoid any measures, that will threaten the core of their “Verfassung”, or Basic Rights. The Treaties of Mastricht and Amsterdam hasn’t brought along any changes even though Germany will only reject those community actions, that would change the core of their Basic Rights. The Treaty of Nizza was a step backwards for the larger countries of Europe, since they did not get the amounts of votes to judge an issue. This might lead to a retreat to strengthening the national laws, and would hinder the process of an European development.

II. Equality and discrimination

1) A number of provisions in the Treaties manifest the principle of equality and prohibit the discrimination on grounds of religion, age, disability, sex, and racial origin. The European court has pointed out, that there are numerous general principles of non-discrimination in EC law. It stated that “there must be no arbitrary distinctions between different groups within the Community”. The following cases are examples for this:

  1. The Skimmed-Milk Powder Case[9], the community thought of a way to handle the overproduction of skimmed-milk powder, by compelling animal feed producers to feed their animals through this, and not soya, which is much less expensive. This would have led to an imbalance of right on behalf of the livestock breeders, and certainly a financial advantage towards the Milk Powder producers. Through the general principle of equality, the court overturned this decision, since the discrimination between different categories (here farmers) is unfair. The Principle of Proportionality played also a role, since here are other ways to reduce the skimmed milk surplus, and there’s no necessity to do it this way. In cases where the groups are alike a the discrimination has to be objectively justified.
  2. The case Sabbatini v. European Parlament, the discrimination of sex was examined. Due to a provision, the plaintiff was denied a certain allowance, since only with marginal exceptions a woman, and not the man, could be regarded as the “head of the family”. The court found such a provision as a sexual discrimination, since the protection from such a discrimination is general principle of law.
  3. Differently was decided in the case Airola v. Commission. In Italian law a foreign man, who marrying an Italian woman was not bound to the rule, that through marriage he acquires Italian Nationality, even if that was against his will. The Plaintiff, who lost an expatriation allowance which was not payable if the official acquires nationality of the country where she worked, lost the case, since the European Court ruled that EC law cannot take account of nationality acquired involuntarily under such provision.
  4. Religious discrimination was questioned in the case Prais v. Council[10], where a Jewish woman had a post in the council office. An examination of the Council on a particular date collided with a Jewish Festival the woman wanted to attend. The Council could not change the date of their meeting since, the examination was for all members, and arrangements had already been done. She won the case in front of the European Court of Justice and the results from the examination were annulled. Furthermore she claimed damages, because she argued, that the general principle prohibiting religious discrimination had been violated. The ECJ rejected the plaintiffs claim, since the council had not been informed of the religious holiday prior to the set arrangements. Therefore the Council didn’t have the intension to discriminate the plaintiff in her rights. Through the Treaty of Amsterdam Art 13 EC Treaty now provides a legal base of legislation for the council to support non-discrimination.

2) The cases show precisely how, the general principle of equality and non-discrimination have been applied by individuals against the laws of member states. Especially in the last case the plaintiff claimed damages, which shows that those can be claimed, even if in this certain case they were not awarded. Current tendencies show, that this general principle of law has been applied to various topics like the access of women to the army (Tanja Kreil vs. BRD), even if a judgement by the EJC would interfere with the competency of national defence. Therefore this general principle will affect numerous legal issues in the future as in the past.

III. Various general principles of Law

1) Also in the field of procedural rights the EJC declared general principle of law.

  1. In the case Transocean Marine Paints Association v. Commission[11] the EJC decided that “a person whose interests are perceptibly effected by the decision taken by a public authority must be given the opportunity to make his point of view known”. This idea had been adopted from the English law, and added to the general principles of community law. Today the EJC referrers to this right as “the right of defence”, and covers other rights like non-self-discrimination and legal representation.
  2. In the case Töpfer & GmbH v. Commission[12] the principle of legal certainty, especially the principle of legitimate expectations and the principle of non-retroactivity. was upheld by the EJC, even though the case failed on it’s merits. Based on the German law EC measures must not, in the absence of an overriding matter of public interest, violate the legitimate expectations of those concerned. The public must not expect the law to change without notice, and therefore defeat legitimate expectations of the public. This concept requires the encouragement of the reasonable expectations, a reliance on that expectation and a loss resulting from the breach of that expectation. Nevertheless the expectation must be legitimate, and of course not every policy is there forever. To induce the idea of proportionality to balance this idea you must be operating as a reasonable and prudent operator, otherwise you can’t be hoped to be protected.
  3. The case R v. Kirk[13] the principle of non-retroactivity, a measure cannot be taken against anyone, if there isn’t a law that has been published on it, was evoked. Otherwise the plaintiff would have been confronted with an EC Regulation without it’s being published.
  4. In the case Defrenne v. Sabena[14] The EJC ruled for the first time, that Art. 141 EC Treaty was directly applicable to enforce a right of equal pay. The rights of Art. 141 had always been present, the EJC only declared it’s new position. The General Principle of Legitimate Principle limits it though to this point, that this ruling would only apply to future cases, and not act retroactively to past situations, since both producers and employers did not expect it. Through this case the idea of directive effect, limited by legitimate expectation, was induced for the first time by the EJC.

2) The numerous principles underline the procedural rights of the individuals. For a stable legal system it is of great importance, that an individual has a chance of a fair trial. A denial or infringement of those rights could lead to a mistrust against the whole system, on behalf of the citizen. Every member of the European Community should grant their citizens the same procedural rights as the other states. Only through this legal uncertainty can be avoided.

IV. Other Cases

Without question there are a numerous other cases, where general principles of law are applied. To understand the general principles of law the cases above are good examples for their development and use by the European Court of Justice.

E. Conclusion

The General Principles of law are general rules, that support the legal structure. Interesting is , that they all run together in some cases. For example the principle of equality, non-discrimination, and proportionality may be deciding a single case. To understand this structure, the general principles have to be observed in reference to each other. They are general since they have been derived from a history of law, that underlines the principles of democracy and freedom of each person. Therefore the general principles are not prohibitions of the European Courts, but granted freedoms, that are supposed to create a general standard across the European Member States. It also gives member states, and especially individuals the position to protect themselves against acts of the Community.

What do we have to expect, looking at the future of the European Union in regards to the general principles of law? First of all the different member states will always be on guard to keep a balance of power. Even though the member states have accepted the supremacy of the EJC, the own basic rights must be protected. Since some general principles of law might stand in conflict with those rights, the development must closely be observed by each member. This became obvious in a recent case Kreil vs. Bundesrepublik Deutschland[15], where the EJC ruled, that the German law § 1 Abs. 2 Satz 3 SG n.F. and Art. 12a IV 2 GG violated the regulation 76/207/EWG (Feb. 9th 1976) equal chances of men and women in jobs, and the general principles of non-discrimination of sex and equality, by refusing to admit women to serve the army. Without a question the decision collided with German constitutional law, and was therefore a question of supremacy. Since this was an issue already partly solved by the Maastricht Treaty a further question arose. Does the EJC have competence to intervene with a question of national security? In certain circumstances the EJC does have the right to intervene in such national issues through it’s rulings. Since 01.01.01 women are able to serve in the army. This leaves the question open, if the draft will be abolished in Germany, therefore now colliding with Art. 3 GG (German Constitution). Nevertheless the case shows, that the question of principle law certainly is linked to other problems, that the EJC has to face and solve for all member states. General Principles of Law should only be applied, if there aren’t severe questions of competence involved. On the other hand, the European Union can only function, if it’s supremacy is not questioned in every case that might slightly go out of the bounds of their range of competency. General Principles are made to for the people of the European Union, and if this means giving more supremacy to the EJC, so be it.

 

[1] Mifsud-Bonnici, P. 1
[2] 1991 ECR I-2925 at 41
[3] 1969 E.C.R. 419, [1970] 19 C.M.L.R. 112 (1970)
[4] 1970 E.C.R. 1125, 1134, [1972] C.M.L.R. 255, 283 (1972); BVerfGE 271, [1974] 2 C.M.L.R. 540 (1974) Garrett 1995 p. 172
[5] Solange I 1974; Wincott 1994, 258-59
[6] Wincott 1994, 256; Volcansek 1992, 115-16
[7] 1974 E.C.R. 491, 507, [1974] 2 C.M.L.R. 338, 354 (1974)
[8] 1979 E.C.R. 3727, [1980] 3 C.M.L.R. 42 (1979)
[9] 1962 E.C.R. 501
[10] 130/75 [1976] ECR 1589
[11] 1974 E.C.R. 1063, [1974] 2 C.M.L.R. 459
[12] 1978 E.C.R. 1019, M/H/H p. 24
[13] 1984 E.C.R. 2689, [1984] 3 C.M.L.R. 522; R/M 2.57
[14] 1978 E.C.R. 1365, [1976] 3 C.M.L.R. 312
[15] Case C-285/98