The Relevance of the General Principles of EU Law - Essay Example

? Case Scenario Due Effective enforcement of law is critical to the success of any legal system. Indeed, for anylegal system to function effectively, it is important that the enforcement of that law be effective. To this end, the European Union is predominantly reliant on the ability of its Member States to enforce EU law. As it is, the EU Member States and their administrative or judicial authorities are delegated with guaranteeing compliance with the Union law and approving infringements. This paper discusses the relevance of the general principles of EU Law, such as the principles of proportionality or non-discrimination, in the development of an effective system for the enforcement of EU Law before the domestic courts of its Member States. Defining General Principles The general principle of law is identified as a overall proposition of law of some prominence from which concrete rubrics are derived. The term ‘general’ in overall principles of law discusses, first, the fact that the particular standard of law is inherent in a sequence of unlimited applications of the law1. Accordingly, it is this particular characteristic that is the inconclusiveness in respect to the quality and capacity of the cases upon which the respective principle can be applied, which differentiates a general principle of law from an ordinary principle of law. Contrastingly, the general principle of law bears a more general nature, and is applicable to a wider range of different legal proceedings2. Second, the term ‘general’ also denotes the fact that the corresponding principle of law should be perceived as containing some universal mission. In other words, what characterises a general or universal principle of law in the framework of EU law is the notion that the respective principle of law is also existent in other national or legal international systems. For instance, when the ECJ3 identifies the proportionality principle as a general principle of law, it supposes that the proportionality principle is also fundamental in other legal systems of law and, it respectfully surpasses the fateful obstacles established between them. Case in point, the ECJ has derived backing for its proposal that proportionality is a general principle of law with specific reference to select EC Member States’ legal systems. Accordingly, the proportionality principle is thereby also existent in the German constitutional and administrative law and French administrative law. General principles of law can be expressly specified such as in constitutional texts or deduced by a procedure of interpretation with regard to legislative texts, the existing legislative objectives, or the fundamental values of the legal system. Accordingly, in areas where general principles of law are referred to as sources of law in domestic or international legal systems, such reference usually indicates the principles derived by those courts from explicit rule or the entire legal systems and which exist further than that written law4. In essence, principles offer justification for existing rules. According to Sir Gerald Fitzmaurice, a ‘principle’ of law, is defined to be a rule inherent in the implication of a rule-of-law, which epitomises an ideal of reason and/or of justice, and which is thought to constitute the foundation of the actual institution of law5. Indeed, the principle provides an answer to the question “why” as compared to the rule which only answers the question of “what”. Further, a principle of law is different from procedural rules since it is more explicitly defined in the facts of a court’s decision6. Notably, according to Dworkin, the overtness of the principle of law indicates that it is formed as a part of the thought process of a court decision, also referred as the ratio decidendi. Consequently, principles are public, which also implies that they can establish the basis of expectations regarding the manner in which a court will resolve identical cases in future. Indeed, the precedent outcome of a court decision in the first instance incorporates the conclusion. Nevertheless, the result of a case is hard to define, devoid of any reference to the thinking of which the result is a product. Therefore, the ratio decidendi of a case require a precedent effect in circumstances where the result of the case bears such an effect. This suggests that the court is obligated both by the outcome and the fact that all identical cases were decided in a similar fashion7. Moreover, the court is also obligated to how it comes to a conclusion8. This fact seemingly reduces the court‘s flexibility when forming the rule upon which the subsumption is based9, which on the other hand complicates the process of rejecting (or invoking) a precedent in the actual case where it should or should not have been used. In short, principles include a minimum practical content and direct the judicial enquiry in that respect. They offer strong arguments for certain case solutions or outcomes; and raise presumptions to that effect but rarely do they dictate the case results. As such, a principle must be evaluated, both on the basis of the inherent value of the right it embodies and how well it forms the judicial enquiry10. Courts apply the principles of law due to three main reasons. First, courts refer to the principle of law in order to rationalise the decision making, particularly; to guarantee neutrality and objectivity in the decision the court takes. Second, the courts apply the principles of law to guarantee formal legitimacy or legal predictability in the court’s decision11. Third, courts adopt principles of law so as to establish substantial legitimacy whereby the substantial meaning of the said principle augments the legitimacy of its decision12. The General Principles of European Union law In EU law, the phrase ‘general principles’ is multifarious whereby depending on the criteria applied, individual can identify a variety of such principles and draw diverse distinctions amongst them13. For instance, Schermers and Waelbroeck14 suggest a number of categories including compelling or constitutional legal principles, regulatory principles common to the Member States’ legal systems and general principles inherent in the Community legal order. On the other hand, Boulouis15 identifies categories including principes generaux communs aux droits des Etas membres; principes inherents a tout systeme juridique organise and principes detuits de la nature des communautes. Another classification is provided by other authors16 who draw a distinction among (a) Principes axiomatique or principles intrinsic in the ideal of a legal order; (b) Principes structurels or principles that derive from the distinct characteristics of specific legal systems; and (c) Principes communs or principles common to the constituent parts of the legal system17. From these suggestions it is possible to conceptualise two of categories of general principles within the European Union legal system. These include principles that originate from the rule of law; and systemic principles that underlie the constitutional structure of the Community and describe the Community Legal edifice. These categories are closely linked to the union polity context, whereby their separation would mislead their original impression. Indeed, it is through their development that the ECJ invited the process of constitutionalising the Treaties. A great example is the famous principle of effectiveness and state liability with respect to indemnities for breach of the Community law. In addition to these categories, other principles may be identified such as the principles of substantive Community law, which constitute the main body of Community and Union Law and are founded on written law. The main focus of this paper is the first category of general principles that is, the principles that originate from the rule of law. The general principles of EU Law that originate from the rule of law These principles occupy a unique position amongst by the Court from the sources of Community law and are unwritten. These principles are deduced by the court form the laws of the Member states in a process identical to that of developing common law in the English courts. They derive from the legal systems of the Member States though their content as a source of Community law is determined by the unique characteristics of the Community polity. In this sense, the Court may recognize a general principle as a constituent of community law even though that principle is not recognized in the legal systems of all the EU member states. Furthermore, the scope of a general principle as applied the Court may vary from the scope it bears in the domestic law of a Member State. Further, their importance as a basis of Community Law is founded on two features including the fact that they bear substantial limitations on the policy-making powers of the European Community institutions and the member states; and that as judicially founded rules, they exemplify the creative function of the court and its contribution towards the advancement of the Community from an multinational polity to ‘a constitutional order of States’18. Accordingly, the court has identified a number of general principles, among them the right to judicial protection; the principle of equal treatment or non-discrimination; the principle of proportionality, the principles of legal certainty and the right of defence. Others include the principle of the protection of legitimate expectations and the protection of fundamental rights. These principles are constitutional and are binding on Community institutions and Member States, and a breach, both legislative and administrative is illegal, and may lead to their annulment. Further, these principles are also the principles of public law that are established to protect the individual and guarantee that the community institutions act within the confines of the rule of law. However, it is imperative to note the dual function of the principles of equality and proportionality. These principles are functional in public law and the substantive law domains. As the principles in the former, they are intended to protect the individual against community institutions and national authorities. While as principles of the latter, they underscore the provisions of the EC Treaty on free markets to facilitate integration and formation of the internal market. The relevance of general principles of EU Law in the development of an effective system for the enforcement of EU Law before the domestic courts of EU Member States The Principle of Effective enforcement of EU Law Over the years there has been a debate over the scope to which the European Union Member States enjoy procedural independence and self-governance. This debate is fuelled by the absence of specific rules on procedures and remedies and the existence of numerous directives and general principles that do not offer specify on how domestic courts should enforce the EU law. According to the original structure of the European Court of Justice (ECJ), the domestic legal system of every EU Member State has the prerogative to identify the court having jurisdiction and to define the procedural benchmarks governing actions at law; envisioned to guarantee the protection of the individual rights derived from Community law19. However, as noted earlier, the effectiveness of domestic administrative enforcement instruments in enforcing EU law has been an issue of review. To this end, the ECJ has established three principles that govern or stipulate the protection of EU law in the Member States. These principles include ‘equivalence’ of enforcement of EU and domestic law, ‘sufficient effectiveness’ of enforcement of EU law irrespective of domestic law principles of enforcement and ‘proportionality’ of procedures of enforcement to the rules being enforced. Specifically, the principle of equivalence indicates that in contrast with domestic rules of a similar nature, Community Law should not be subjected to discrimination through the provision of less favourable circumstances for their enforcement20.The principle of sufficient effectiveness was established to guarantee that the methods applied in the enforcement of Community Law are effective. Occasionally, the Court has indicated that domestic rules may not make the application of the rights deliberated by Community law practically impossible or disproportionately challenging. Indeed, in subsequent case law, the Court has designated more intrusive control, asserting that enforcement procedures should warranty factual and effective judicial protection21. Collectively, these three principles are cumulative, and form the general principle of effective enforcement. This term points to an extensive understanding of the concept, encompassing both judicial enforcement, as well as enforcement through administrative and industrial relations procedures. Over the years, the general principle of effective enforcement has advanced in different stages. In the initial phase, the ECJ depended on the specific “enforcement provision” enclosed in Article 6 of the Equal Treatment Directive22. For instance, In von Colson23 the Court stated that, even though the “substantive” portion of the Directive had been executed, this was not sufficient to guarantee that the Directive was “completely effective, in regard to the objective which it seeks to achieve” in the deficiency of appropriate remedies for discrimination. In the second stage, in a ruling founded on the duty of co-operation set out in Article 10 of the Treaty, the Court protracted the its jurisprudence scope by demanding sufficient domestic remedies to be presented for the breach of rights provided for by EU law, even in the event that there were no specific “remedies provisions” in the concerned Directive. For instance, in Johnston24, the Court stated that the principle of effective judicial protection “instigates the constitutional customs that are common to the all Member States and is outlined in articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which must be considered in Community law”. This suggests an expansion of the application of effective judicial protection further than the scope in which it was initially articulated25. At the third stage, the ECJ’s prerogative on effective enforcement was “codified” in European legislation by replicating inside the legislative text, the particular phrasing formerly used by the Court. For instance, the Information and Consultation Directive26 encompasses the “effective-proportionate-dissuasive penalties” procedure established in previous case law27. Additionally, this formula was later espoused in the new, amended Equal Treatment Directive28. Essentially, the principle of effective enforcement has been developing form case to case, over the years. According to this principle, Member States have the leeway to define how EU law is applied before their domestic courts. Though, the ECJ has levied restrictions on the domestic procedural independence. Consequently, the identical rulings in Rewe29and Comet30 outlined the fundamental framework that has regularly aided the ECJ in addressing issues concerning the devolved enforcement of Union law31. Specifically, in the case Rewe, the Court stipulated two minimum rules that domestic procedural rules should comply with. The first was the fact that domestic procedural autonomy served as a point of departure in the absence of harmonisation procedures on the subject32. The second was that, in the dearth of Union legislation, enforcement of Union rights and requirements will occur in congruence with domestic procedural rules, however, those rules are also subject to two requirements: the principle of effectiveness and the principle of equivalence. The relevance of general principles to the enforcement of EU Law The relevance of general principles of the EU law in its effective enforcement in domestic courts is embodied in the most recent and developing principles that serve to safeguard against infringement or breach of the rights conferred by the EU law. Indeed, the increased application of numerous general principles by both the ECJ and the domestic courts in the Member States demonstrates that they have an increasing practical significance. Pointedly, the process of EU integration and the extension of actions ranging within the capacity of the European Union, shared European principles are required for the effective construal of the Treaty and for streamlining deficiencies in new and unregulated areas. Consequently, the development of conjoint European legal principles including the principles of state liability; direct effect; indirect effect; and loyal cooperation has led to some kind of jus commune33. Further, the existence of the general principles of EU law and their subsequent derivative doctrines, has served to enrich the protection of individual rights conferred by the Community Law. For instance, the fact that individuals are empowered through the principle of state liability to sue the State for recompenses has resulted to improved regulation of the Member States’ amenability with Community law. Accordingly, Community rules have, to a larger degree, been uniformly and appropriately applied throughout the Community. Moreover, the interface between Community and domestic law as regards the substantive and practical issues in relation to a claim for reparations serves to reduce the incongruences between Community and domestic law, as well as the inequalities in the domestic laws in general. This has added to the harmonising effects in the area of domestic laws and hence, enhanced the domestic courts’ effectiveness in the enforcement of the EU Law. The application of general principles of law has helped streamline and distinguish domestic and community obligations amongst domestic regulatory bodies. Indeed domestic regulatory and enforcement bodies are more likely to be undecided between loyalty to their respective national interest and loyalty towards the Union34. Consequently, through the principle of loyal cooperation, these domestic enforcement bodies are able to guarantee legal certainty for EU law, actively police EU Law and penalise infringements of EU Law, in similarity to the domestic law. This is exemplified in Ireland v. Commission35 where the Court ingrained the pivotal role of the principle of loyal cooperation with respect to the effectiveness of the enforcement of Union law. Case in point, the Court indicated that the principle of loyal cooperation requires a responsibility on the Member States, to put in place the necessary processes to ensure the use and effectiveness of Union law and levied on Member States and the Union institutions common obligations to work together in good faith. The general principles remain relevant in European law and its enforcement in domestic courts since they ensure efficiency in practice of collective actions, both injunctive and compensatory, and guarantee that judgements are enforceable in all EU Member States. Moreover, the principle serve as a reference point for the formulation of remedies with regard to breaches on EU Law (that are not provided in the EU law) by the domestic courts to guarantee effective enforcement of the Union Law. Lastly, the general principles have had a pivotal role in the horizontal and vertical expansion of the EU Law which has augmented the effectiveness of the Law in its enforcement in the judicial and administrative systems of the Member states. Conclusion This paper has defined in detail the structuring of the general principles of EU law to show their relevance in the development of an effective enforcement process in the domestic courts among the EU member states. It is evident that the European Union depends on devolved, ancillary administration through the Member States for enforcement of the Community Law36. Notably, the ECJ established in Spanish Strawberries37 that Member States are entitled to a margin of discretion in defining what actions are most relevant in the effective enforcement of Union law. This is margin of discretion is at times denoted as the ?enforcement autonomy’38. However, this discretion is limited by general enforcement principles established by specific enforcement requirements deriving from EU legislation as well as previous case?law39. The fundamental principle of the effective enforcement of Union law is entrenched in Article 4(3) TEU, which also outlines the principle of loyal cooperation40. The principle of loyal cooperation demands a responsibility on the Member States to institute the necessary mechanisms to ensure the use and effectiveness of European Union law. This general duty translates into four requirements including effectiveness, proportionality, equivalence, and dissuasiveness41. To complement these requirements, fundamental rights must be respected while enforcing EU law at the domestic level. In essence, the general principles of law are general rules, which support the EU legal structure and are in most cases concomitant. For instance, the principles of non-discrimination, equality, and proportionality may be determining a particular case. As such, the general principles must be understood and observed in relation to each other. The general principles underline the values of democracy and guarantee individual freedoms and rights conferred by the EU Law. Consequently, the general principles are not restrictions of the European Courts; relatively they are customary freedoms that are intended to create a common standard amongst the European Member States. The principles also provide member states, and expressly individuals, the opportunity to shield themselves against actions of the Community. Bibliography Acceto, M. and Zleptnig ,S., 2005.The Principle of Effectiveness: Rethinking its role in Community Law. EPL, 11 (375) Ayres, I. and Braithwaite J., 1992. Responsive Regulation: Transcending the Deregulation Debate. Oxford, UK: Oxford University Press . Arnull, A. et al., 2006. Wyatt & Dashwood’s European Union Law. 5th ed. London: Sweet & Maxwell, p.Ch.7. Arnull, A., 2010. Remedies for Breach of EU Law Revisited: The Principle of Effective Judicial Protection in EU Law’ (Lecture at King’s College) Available at http://ukael.org/past_events_24_2301830830.pdf accessed 5 September 2012. Baldwin, R. and Black, J., 2007. Really Responsive Regulation. LSE Law, Society and Economy Working Papers, 15 Available at: < http://www.lse.ac.uk/collections/law/wps/WPS15- 2007BlackandBaldwin.pdf> [Accessed: 19th March 2013]. Beukers, TWB. et al.,2010. Het Recht van de Europese Unie in 50 Klassieke Arresten. Boom Juridische Uitgevers. Craig, P. and De Burca G., 2007. EU Law: Text, Cases and Materials. Oxford: Oxford University Press Chalmer, D, Davis, C. et al., 2012. European Union Law: Cases and Materials. Cambridge: Cambridge University Press. Craig,P. and De Burca, G., 2011. The Evolution of EU Law. Oxford: Oxford University Press. Davies, K., 2013. Understanding European Union Law. London: Routledge De la Feria, R. and Vogenauer, S., 2011. Prohibition of Abuse of Law: A New General Principle of EU Law? Oxford: Hart Publishing. Dougan, M., 2011. The Vicissitudes of Life at the Coalface: Remedies and Procedures for Enforcing Union Law before the National Courts. In: Craig P and de Burca G ed(s). The Evolution of EU Law. Oxford: OUP Dougan M., 2012. From the Velvet Glove to the Iron Fist: Criminal Sanctions for the Enforcement of Union law. In: Cremona M ed(s). Compliance and the Enforcement of EU law. Oxford: OUP. Fairhurst, J., 2012. Law of the European Union. 9th edn. Harlow: Pearson. Chapter 10, pp. 306-313. Harbo, T.,2010. The Function of the Proportionality Principle in EU Law. European Law Journal, 16 (2) pp. 158-185 Heijden Van Der J., 2009. Building Regulatory Enforcement Regimes: Comparative analysis of private sector involvement in the enforcement of public building regulations. London: IOS Press. Jans, J. et al., 2007. Europeanisation of Public Law. London: Europa Law Publishing. Jones, G., 2010. Remedies in Judicial Review Proceedings for Breaches of EU Law. Working Paper. Available at http://www.adminlaw.org.uk/docs/SC%202010%20by%20Gregory%20Jones.pdf accessed 5 September 2012. Kaczorowska, A., 2008. European Union Law. Abingdon: Routledge-Cavendish, p.231-242. L, F.,2008. When National Procedural Autonomy Meets the Effectiveness of Community Law, can it survive the impact? ERA, 9 (245) Lang, Temple J., 1997. The Duty of National Courts under Community Constitutional Law. European Law Review 22: 3. Lenaerts K., Van Nuffel P., Bray, R. and Cambien, N., 2011. European Union Law. 3rd edn. London: Sweet & Maxwell. Chapter 22, pp.851-861. Micklitz,H.W., 2008.The Visible Hand of European Regulatory Private Law: The Transformation of European Private Law from Autonomy to Functionalism in Competition and Regulation. EUI Law, (14). Micklitz, H. and De Witte, B., 2012. The European Court of Justice and the Autonomy of the Member States. Cambridge, Intersentia. Malmberg, J. et al., 2003. Effective Enforcement of EC Labour Law. Iustus : Uppsala. May P.J., 2005. Regulation and Compliance Motivations: Examining Different Approaches. PAR, 65 (1) Nergelius, 2011. General Principles of Community Law in the Future: Some Remarks on their Scope, Application and Legitimacy, in General Principles of European Community Law . Oxford: Oxford University Press University Press, p.223. Nollkaemper, A., 2012. The role of national courts in inducing compliance with international and European law—a comparison. In Cremona (ed) Compliance and the Enforcement of EU Law, Oxford: OUP. Roberts, A., 2011. Comparative International Law? The Role Of National Courts In Creating And Enforcing International Law. ICLQ, Vol 60: pp. 57–92 Tridimas, T., 2006. The General Principles of EU Law. Oxford: Oxford University Press. Shapiro, S.A. and Rabinowitz, R.S., 1997. Punishment Versus Cooperation in Regulatory Enforcement: A Case Study of OSHA. Admin. L. Rev., 49 (713). Snyder, F., 1993. The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques. Mod. L. Rev., 56 (19). Zingales, N., 2010. Member State Liability vs. National Procedural Autonomy: What Rules for Judicial Breach of EU Law? German Law Journal 11(4): 419-438. Read More