EU Law: General Principles

General Principles of EU Law

• EU law includes written sources such as primary law (foundational treaties) and secondary law (regulations, directives under art 288 TFEU).
• Unwritten sources include general principles, used by the Court of Justice to assess the legality and appropriateness of Union actions and member states' implementation, transposition, and derogation from EU law.
• General principles have constitutional status and provide administrative justice and good governance within the EU legal order.

Functions and Sources of General Principles

• Used to assess the legality and appropriateness of Union actions and member states' implementation, transposition of EU law, and any derogations.
• Three main functions: Guiding interpretation of treaty provisions and legislative enactments, serving as a benchmark against which EU law is judged, and acting as a measure against which national implementation of EU law can be assessed.

Primary and Supremacy of EU Law

• The foundational treaties do not clarify the relationship between EU and national legislation.
• The Costa v ENEL case established that member states, by joining the EU, accepted a permanent limitation of their sovereign rights.
• EU law takes precedence over incompatible national laws.
• EU objectives would be undermined if member states could legislate against them, so member states are obligated to ensure fulfillment of treaty obligations under art 4(3)TEU.
• The Simmenthal case confirmed that EU law prevails in national courts against all incompatible member state law, regardless of timing, and as per the Internationale Handelsgesellschaft case, regardless of status.
• Conflicting national legislation should be disapplied, but does not automatically disappear.

Direct Effect

• Regulations have general application, are binding in their entirety, and are directly applicable in all member states, meaning they do not require national incorporation.
• Directives are binding as to the result to be achieved but allow national authorities to choose the method; they are binding only after the transposition deadline.
• Decisions are binding in their entirety.
• Recommendations/opinions have no legal force but can include Commission communications that detail proposed legislation or interpretations.
• Direct effect and direct applicability are synonymous.
• Refers to EU law provisions that individuals can enforce directly in their national courts.
• Applies to regulations automatically but extends to treaty articles and directives (post-implementation deadline).

Criteria for Direct Effect

• Provision must be sufficiently clear and precise.
• Provision must be unconditional.
• Provision must not entail member states exercising discretion in implementing them.
• Both vertical and horizontal application are possible, depending on circumstances.

Subsidiarity

• EU has exclusive competence in areas like customs union, competition rules for the internal market, Euro monetary policy, and common fisheries policy (under art 3 TFEU).
• Competence is shared in other areas, linked to sovereignty.
• TFEU art 2(2) states that member states exercise competence to the extent that the Union has not, and again if the Union ceases to.
• TFEU art 4(2) details areas of shared competence, such as the internal market, social policy, economic/social/territorial cohesion, agriculture and fisheries, environment, consumer protection, transport, trans-European networks, energy, freedom/security/justice, and public health safety.

Subsidiarity Principle

• Addresses when the EU can exercise legal powers in areas of shared competence (art 5(3) TEU).
• The EU acts only if objectives cannot be sufficiently achieved by member states but can be better achieved at the Union level due to scale or effects.
• The EU must demonstrate national insufficiency and comparative efficiency (codified in Protocol 2 on subsidiarity and proportionality to the Lisbon Treaty).

Proportionality

• Addresses how the EU can act when establishing legislative powers and how member states can act when adopting measures falling within EU law.
• TEU art 5(4) states that the content and form of Union action shall not exceed what is necessary to achieve the objectives of the treaties.
• Fedesa case: Action must be suitable to achieve the objective, be the least invasive intervention, and not be disproportionate to the aims pursued.
• Courts interpret art 5(4) to mean legislation must be 'manifestly inappropriate,' making them reluctant to strike down EU legislation.
• The Vodafone case suggests proportionality should also consider the importance of the aims pursued.
• Proportionality is a general principle of EU law ensuring administrative and legislative actions respect fundamental rights and are not overly intrusive (Internationale Handelsgesellschaft).

Legal Certainty

• Three elements: legitimate expectation, non-retroactivity, and Res Judicata.

Legal Certainty – Legitimate Expectation

• Union measures must not violate the legitimate expectations of concerned parties, absent an overriding public interest.
• A legitimate expectation is held by a reasonable person regarding matters likely to occur normally.
• The principle requires encouragement of reasonable expectation, reliance on that expectation, and some loss resulting from its breach.

Legal Certainty – Non-Retroactivity and Res Judicata

Non-Retroactivity:

• Applied to secondary legislation, measures cannot take effect before publication.
• Retroactivity may be allowed in exceptional circumstances, e.g., if it puts a person in a better position (Road Air BV case).

Von Colson Principle:

• National courts have an obligation to interpret domestic legislation to comply with EU law when it is not directly effective.
• Köpinghuis Nijmegan: This obligation is limited by general principles, especially legal certainty and non-retroactivity.
• Extends even if EU law is directly effective (and when criminal proceedings are at issue).

Equality/Non-Discrimination

• Persons in similar situations should be treated the same unless there is an objectively justifiable reason.
• Discrimination is broadly prohibited in primary (e.g., art 18/19 TFEU) and secondary EU law (e.g., directive 2000/78).
• Non-discrimination is also a general principle (Dansk Industrie Case).

State Liability

• Individuals can seek remedy from member states for losses suffered due to a failure to implement or correctly apply EU law.
• This applies even if it is not the individual's own member state (R v Ministry of Agriculture Fisheries and Food, ex parte Hedley Lomas).
• State liability is seen as a last resort compared to direct effect.

Francovich Case

• Ex-employees claimed unpaid wages, stating provisions of directive 80/297 were directly effective and Italy failed to implement it.
• Claimants succeeded because certain criteria were fulfilled, even though the provisions were found not to be directly effective.

State Liability

• The criteria for State Liability are also known as the Francovich Rule.
• Directive Involved Rights Conferred on Individuals: The Directive must grant specific rights to individuals
• Content of Such Rights Could Be Identified: The rights conferred by the directive must be specific enough to identify what the individual is entitled to.
• Causal Link Between Failure of State and Damage Suffered: The failure to implement or comply with EU law must directly cause damage to the individual.

State Liability – Post-Francovich:

• The idea of state liability was further expanded by Factortame and Brasserie de Pêcheur cases.
• State liability is not limited to failure to implement directives but includes all domestic acts and omissions, legislative, executive, and judicial, in breach of union law.
• All organs are bound (Commission v Belgium case 77/69).
• Vereinigung Nordrhein (Case c-424/97) to include legally independent bodies and AGM-COS MET Srl v Suomen Valtio and Tarmo Lehtinen (Case c-470/03) extended this to potentially include liability for individual officials.

Tutorial Applicable This Week

• Art 189 TFEU: EU to develop a EU space policy.
• Directive 2019/633: Addresses unfair trading practices in business-to-business relationships within the agricultural and food supply chain.
• Regulation 2020/740: Establishes a framework for providing harmonized information on tire parameters through labeling.
• Case 264/19: Constantin Film Verleih Gmbh v Youtube LLC: Preliminary ruling on the term "addresses" in the context of film exploitation rights. Address meant postal address and did not extend to email or IP address.

Direct Effect of TEU/TFEU Provisions

• Rights under EU law must be capable of direct effect (Van Gen den Loos).
• Van Gen den Loos established the principle of direct effect by arguing that EU law was intended to confer rights on individuals that must be enforceable.
• Defrenne v Sabena involved a dispute over unequal pay for female cabin crew. Art 157 TFEU imposed a clear prohibition on direct discrimination but was not clear enough regarding indirect discrimination.

Direct Applicability of Regulations

• Regulations become part of a member state's law without needing transposition into national law.
• EU Primary law is supreme and directly applicable (Antonio Muñoz y Cia SA v Frumar Ltd).

Direct Effect of Directives

• Unlike treaty articles and regulations, directives require implementation by member states to have direct effect.
• Van Duyn held that directives can have direct effect if sufficiently clear, precise, and unconditional.
• Pubblico Ministero v Ratti added that a member state's obligation to implement becomes absolute only when the time limit for implementation has expired.
• To have direct effect, a directive must be sufficiently clear, precise, and unconditional; the deadline for transposition must have passed; and the defendant must be an emanation of the state (Van Duyn v Home Office).

Van Duyn Importance

• The Van Duyn case establishes the direct effect of directives and strengthens EU supremacy.
• Limits the ability of member states to ignore EU obligations.
• Individuals can rely on a directive in court if it is not implemented properly.

Direct Effect Rationale

• The rationale revolves around ensuring member states comply with their EU law obligations.
• If a member state fails to transpose a directive by the deadline, individuals should not be disadvantaged.
• Publicco Ministero v Ratti reaffirmed that directives can only have vertical direct effect
• It must be sufficiently clear, precise and unconditional and the deadline for transposition of national law must have passed and the defendant must be the state or emanation of the state.

Vertical Direct Effect

• An individual or business bringing proceedings against the state (or an authority or emanation of the state)
• Marshall v Southampton and South-West Hampshire Area Health Authority held that directives can only have vertical direct effect

Emanation of the State

• Foster v British Gas plc set out criteria for what constitutes an emanation of the state: being responsible for providing a public service under state control and having special powers beyond those normally applicable in relations between individuals.

Horizontal Direct Effect

• Whether individuals can directly rely on the provisions of a directive in disputes against other individuals or private entities.
• Directives generally do not have horizontal direct effect.
• Paola Faccini Dori v Recreb Sr illustrates that generally a directive may not of itself impose obligations on an individual.
• Wells v Secretary of State for Transport held that mere adverse repercussions do not prevent an individual relying on enforcement even if indirectly effects others.

Indirect Effect of Directives

• When Directives do not have direct effect, national courts are obliged to interpret national law in accordance with EU law.
• Von Colson held that national law should be interpreted in light of the directive and that an effective remedy be available.
• Marleasing SA confirmed that a directive could have indirect effect even when against a law that predated the directive.

Direct Effect and Treaty Articles

• Treaty Articles are capable of having direct effect:
• Both in legal actions brought by a private party against a Member State (vertical direct effect) and in legal actions brought by a private party against another private party (horizontal direct effect) as per van gen den loos and Defrenne Case