General Principles of EU Law

General Principles of EU Law

• Serve as unwritten sources of EU law.
• Used by the Court of Justice to assess the legality and appropriateness of actions by the EU and how member states implement and derogate from EU law.
• These principles have constitutional status and ensure administrative justice and good governance.

Functions and Sources of General Principles

• Used to evaluate Union actions and Member States' implementation of EU law.
• Three main functions include guiding the interpretation of treaty provisions, serving as benchmarks for EU law, and assessing national implementation of EU law.

Primary and Supremacy of EU Law

• EU law takes precedence over incompatible national laws, as clarified in Costa v ENEL.
• Member states have limited their sovereign rights by joining the EU legal system.
• Achievement of EU objectives would be undermined if member states could legislate against them, per Art 4(3) TEU.
• The Simmenthal case confirmed EU law prevails in national courts against all conflicting member state law, regardless of when the national law was enacted, and the later Internationale Handelsgesellschaft case confirmed this included constitutional law.
• National legislation deemed incompatible with EU law should be disapplied but does not automatically disappear.

Direct Effect

• Direct effect is synonymous with directly applicable.
• Allows individuals to enforce EU law directly in national courts.
• Automatically applies to regulations and extends to treaty articles and directives after the implementation deadline.
• Three criteria: the provision must be clear and precise, unconditional, and not require member states to exercise discretion.
• Direct effect can have both vertical and horizontal application, depending on the circumstances.

Subsidiarity

• Pertains to how powers are divided/shared between EU and Member States
• The EU has exclusive competence in areas like customs union, competition rules, Euro monetary policy, and common fisheries policy, as outlined in Art 3 TFEU.
• In areas of shared competence, member states exercise their competence to the extent that the union has not, or has ceased to.
• Shared competence detailed under TFEU art 4(2) (e.g. the internal market, social policy, economic - social and territorial cohesion, agriculture and fisheries, environment)

Subsidiarity and Exercise of Legal Powers

• Addresses when the EU can exercise legal powers in areas of shared competence, according to Art 5(3) TEU.
• The EU should only act if the objectives cannot be sufficiently achieved by the member states and can be better achieved at the EU level.
• EU must demonstrate both national insufficiency and comparative efficiency.
• Codified in Protocol 2 of the Lisbon Treaty.

Proportionality in Legislative Powers

• Concerned with how the EU can act when establishing legislative powers and how member states can act when adopting measures within EU law, according to TEU art 5(4).
• Union action should not exceed what is necessary to achieve the objectives of the treaties.
• Action must be suitable to achieve the objective and be the least invasive intervention.
• Courts interpret Art 5(4) to mean legislation must be "manifestly inappropriate" to be struck down but they are reluctant to do so.
• The Vodafone case suggests proportionality should consider the importance of the aims pursued.
• The principle of proportionality is invoked as a general principle of EU law to ensure administrative and legislative actions respect fundamental rights and are not overly intrusive
• Fedesa Case: action must be suitable to achieve objective and action must be least invasive intervention

Legal Uncertainty

• Three elements: legitimate expectation, non-retroactivity, and res judicata.

Legal Certainty – Legitimate Expectation

• Union measures must not violate the legitimate expectations of the parties concerned, unless there is an overriding matter of public interest.
• A legitimate expectation is one held by a reasonable person regarding normal affairs.
• Requires encouragement of reasonable expectation, reliance on that expectation, and some loss resulting from a breach.

Legal Certainty – Non-Retroactivity and Res Judicata

• Secondary legislation cannot take effect before publication.
• Retroactivity may be allowed in exceptional circumstances, like if it benefits a person.
• National courts must interpret domestic legislation to comply with EU law, following the Von Colson Principle when it is not directly effective.
• Limited by general principles, especially legal certainty and non-retroactivity, per Kopinghuis Nijmegan, and extends even if EU law is directly effective.

Equality and Non-Discrimination

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

State Liability

• Individuals can seek a remedy from a member state for losses suffered due to the state's failure to implement or correctly apply EU law.
• Note: It does not have to be the individual’s own member state: R v Ministry of Agriculture Fisheries and Food, ex parte Hedley Lomas (Ireland).
• The preferred approach sees state liability as a last resort compared to direct effect.

Francovich Rule Criteria

• The directive involved rights conferred on individuals.
• The content of such rights could be identified based on the directive provisions.
• There is a causal link between the state's failure and the damage suffered by affected persons.

State Liability – Post Francovich

• Expanded by the Factortame and Brasserie de Pecheur cases.
• State liability is not limited to the failure to implement directives but includes all domestic acts and omissions breaching union law.
• All organs are bound per the Commission v Belgium case, and the principle of supremacy of EU law binds them.
• Extends to legally independent bodies (Vereinigung Nordrhein) and potentially individual officials (AGM-COS MET Srl v Suomen Valtio and Tarmo Lehtinen).
• General difficulties with interpretation by the Court of Justice include inconsistency, and finding individual officials liable is potentially dangerous.

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: Addressed the term ‘addresses’ and held that it meant postal address rather than email or IP address.

When Does a Provision of the TEU/TFEU Have Direct Effect?

• The rights which are sufficiently clear are capable of having direct effect:
• Van Gen den Loos clarified that EU law was intended to confer rights on individuals, and these rights must be enforceable.
• Defrenne v Sabena: The court held that what is now art 157 TFEU imposed a clear and unconditional prohibition on direct discrimination.

Regulations and Direct Applicability

• Regulations become part of a member state’s law without needing transposition into national law: i.e. regulations, treaties.
• EU Primary law is supreme and is directly applicable
• Antonio Muñoz y Cia SA v Frumar Ltd (C-253/00)

Direct Effect of Directives

• Directives are not directly applicable, but require implementation by member states.
• The Court in Van Duyn held that directives can have direct effect if sufficiently clear, precise, and unconditional.
• Pubblico minister v Ratti extended the condition that a member state's obligation to implement becomes absolute only when the time limit for implementation has expired.

Van Duyn Case Importance

• Establishes Direct Effect of Directives and strengthens EU Supremacy.
• Paved the way for later direct effect cases.

Rationale for Direct Effect of Directives

• Ensures member states comply with their obligations under EU law.
• Directives are binding on member states as to the result to be achieved under Art 288 TFEU, and Ratti reaffirmed that directives can only have vertical direct effect.
• Three conditions for direct effect: sufficiently clear, precise, and unconditional; deadline for transposition has passed; defendant is the state or an emanation of the state.

What is Meant by "Vertical Effect"?

• Vertical "direct effect" means that provisions can have direct effect only in proceedings brought by an individual or business against the state (or an authority or emanation of the state).
• Marshall v Southampton and South-West Hampshire Area Health Authority: Directives can only have vertical direct effect.

Foster v British Gas plc

• Leading case on what constitutes an authority or emanation of the state for direct effect purposes.
• The directive could be relied upon against British Gas because it was an emanation of the member state, per provided public service; provided service under state control; and given special powers.

Horizontal 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, and a directive may not of itself impose obligations on an individual.
• Paola Faccini Dori v Recreb Sr

Impact of a Directive Without Direct Effect

• National courts are still obliged to interpret national law in a way that respects the objectives of the Directive (Von Colson and Marleasing cases). This is referred to as indirect effect.
• Von Colson: National law should be interpreted in light of the directive's provisions, requiring an effective remedy be available
• Marleasing SA : Spanish law, even though predated the directive, must be interpreted in accordance with the directive.

Can treaty articles have 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). (van gen den loos for direct effect of treaty articles and defrenne case established horizontal effect as well)