General Principles & Fundemental Rights of the Union

General principles and fundemantal rights

• Sourced from primary law

• largely judge based

• They are at the top of the hierarchy of EU law

• EU secondary law (regulations, directives, decisions) must comply with them

• Member States must respect them when acting within the scope of EU law

Rules

• Structured as if → then

• Clear legal consequence

• All-or-nothing application

  • Example: If EU legislation breaches a general principle → it may be declared void.

Principles

• Express values, not strict commands

• Do not automatically determine consequences

• Have weight → may need balancing against other principles

• Guide interpretation of rules

Example principles:

• Legal certainty

• Effectiveness of EU law

• Proportionality

Role of CJEU

• Principles fill gaps → someone must develop them

• Does not create principles → it discovers them

Issue with CJEU principles

• Is it legitimate for the Court to develop primary law without direct Member State approval?

• Too much judicial discretion

• Unclear criteria

• Possible threat to legal certainty

Function of general principles 1

Gap-filling

• Clarify ambiguities or omissions in treaties/legislation

Function of general principles 2

 Interpretation

• EU law must be interpreted consistently with general principles

Function of general principles 3

Ground for Judicial Review

• EU acts breaching general principles → can be annulled (void)

Sources of General Principles 1

• Constitutional Traditions of Member States

: Case 29/69, Stauder

Examples:

• Legal certainty

• Proportionality

Sources of General Principles 2

• EU Legal Order Itself

: Objectives and spirit of the Treaties (teleological interpretation)

• Often called structural principles

Examples:

• Primacy

• Direct effect

• Effectiveness

• Solidarity

• State liability

Stauder

• General Principles of EU law can be found expressly or implicitly in the Member States' legal systems

• Adapted to EU legal order → not copied directly

Origin of fundemental rights

• Case 11/70, Internationale Handelsgesellschaft, Stauder

• Reassure national constitutional courts (e.g. German Solange I)

• Show EU law does not reduce rights protection

Source of fundemental rights

• Art 6 TEU - codifies CJEU case law

• Charter of Fundamental Rights

• European Convention on Human Rights (ECHR)

• General Principles (Common Constitutional Traditions) - CJEU identifies what qualifies as common, interprative discretion

Human rights

• Universal

• Abstract

• Not tied to a specific legal system

Fundemental rights

• Grounded in a specific legal order/system

• Have institutional and legal force

• Provide:

  • Standards for law validity

  • Limits on state/EU action

  • Enforceable rights

Example:

• Human dignity is universal → but its meaning varies by legal system.

Consequences of breaching fundemental rights

Against Member States

• Article 7 TEU → sanctions for violating EU values

• Possible suspension of voting rights in the council

binding effect of fundemental rights and general principles

On EU Institutions

• Always binding

• EU institution acts breaching fundamental rights → void

On Member States

• Bound when acting within scope of EU law, including:

• Implementing or Applying EU Law

• States act as agents of the EU

• Must respect EU fundamental rights

• Derogating from EU Law

• Even when restricting EU freedoms → rights must still be respected