Notes: General Principles of EU Law

 Three sources of human rights protection in the EU legal order:

o EU Charter of Fundamental Rights
o ECHR
o General Principles of EU law
 Development of general principles began in Internationale Handelsgesellschaft
 Specific sources:
 (a) ECHR
o Routinely cited the ‘special significance’ of the ECHR as a source of inspiration (ERT v
DEP and Sotirios Kouvelas C-260/89)
 (b) national constitutional traditions common to MS:
o Fear of undermining supremacy of EU law
o How widespread does the principle need to be?: difference between national
standards can often be significant
o Omega Spielhallen: ECJ extracted from specific German principle of human dignity to
a more general concept of human dignity shared by all member states, in order to
allow Germany to derogate from free movement laws

Article 6 TEU
Charter shall have same legal value as Treaties

Provisions of Charter shall not extend the competences of the Union

Fundamental rights, as recognised by the ECHR and resulting from national constitutional traditions,
are general principles of EU law

Article 7 TEU
Potential enforcement mechanism for Council to hold MS to account for violation of values in 2 TEU

Article 19 TFEU
19(1): unanimous Council under special legislative procedure may take appropriate action to combat
discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual
orientation

19(2): ordinary legislative process may adopt incentive mechanism to support action taken by MS to
contribute to the objective in 19(1)

11/70 Internationale Handelsgesellschaft

 Community regulation stated that deposit was forfeited if export not made within set
period; claimed contrary to economic liberty and freedom of action
 Held: measures adopted by EU can only be judged in light of EU law; respect for
fundamental rights part of the general principles of EU law, inspired by common
constitutional standards of MS; proportionate: necessary and appropriate to help determine
most effective market intervention
  Judgment: “respect for fundamental rights forms an integral part of the general principles of
law protected by the Court of Justice. The protection of such rights, whilst inspired by the
constitutional traditions common to Member States, must be ensured within the framework
of the structure and objectives of the Community”

117/76 and 16/77 Ruckdeschel

 (equal treatment/non-discrimination)
 Regulations provided for refunds on maize used to produce starch but not for two other
products
 Held: principle of non-discrimination in Treaties is enunciation of general principle of
equality; requires similar situations not to be treated differently unless there is objective
justification for differentiation
 Judgment: provision in Article 40 (3) EC Treaty does not cover discrimination between
different industrial or trade sectors in the sphere of processed agricultural products

114/76 Bela-Mühle
 (proportionality and non-discrimination)
 Scheme forced producers of animal feed to use skimmed milk, rather than soya, in their
production in order to reduce a milk surplus, by withholding grant of aid and free circulation
 Held: arrangements which impose discriminatory distribution of burden cannot be justified
for the purposes of obtaining the objectives of the CAP; price of skimmed milk 3x higher
than soya milk
 Judgment: “The obligation to purchase at such a disproportionate price constituted a
discriminatory distribution of the burden of costs between the various agricultural sectors”

120/86 Mulder
 (legitimate expectations)
 Regulations encouraged cessation of milk production to reduce surplus; after 5 year
agreement C sought to resume milk production; Dutch authorities refused quota since he
could not prove milk production during the relevant years
 Held: frustrates the legitimate expectations of the producers that the effects of the system
of non-marketing premiums to which they had rendered themselves subject would be
limited
 Judgment: “where such a producer… has been encouraged by a Community measure to
suspend marketing for a limited period in the general interest and against payment of a
premium he may legitimately expect not to be subject, upon the expiry of his undertaking,
to restrictions which specifically affect him precisely because he availed himself of the
possibilities offered by the Community provisions”;

C-159/90 SPUC v Grogan

 Irish Constitution prohibited abortion; claimed that Constitution banned the provision of
information about availability of abortion in the UK
 Held: provision of information on economic activity not distributed by an economic operator
is a manifestation of free speech not economic activity
  Judgment: manifestation of freedom of expression, “the Court has no such jurisdiction [to
assess the compatibility of legislation with fundamental rights] outside the scope of
Community law”
 Cf AG van Gerzen: “it is regarded as being sufficient for the national rule to lie inside the
scope of Community law”
o “once a national rule is involved which has effects in an area covered by Community
law (in this case Article 59 of the EEC Treaty) and which, in order to be permissible,
must be able to be justified under Community law with the help of concepts or
principles of Community law, then the appraisal of that national rule no longer falls
within the exclusive jurisdiction of the national legislature”

C-260/89 ERT (Elliniki Radiophonia Tiléorassi AE)

 Compatibility of Greek laws granting exclusive rights to broadcast to ERT
 Held: justification for obstructing free movement must be judged in light of general
principles; objective of avoiding disturbance due to restricted number of channels is not
sufficient because undertaking only uses a limited number of them
 Judgment: “the Community cannot accept measures which are incompatible with
observance of human rights thus recognised and guaranteed”; national rules can only come
under the exceptions “if they are compatible with the fundamental rights the observance of
which is ensured by the Court”

C-60/00 Mary Carpenter

 C, Phillipino, was married to British national who conducted parts of work in other MS; SoS
refused to grant residency permit since C had overstayed for a year on 6 month visitor visa
 Held: public interest justification to restrict freedom of movement must be compatible with
fundamental rights; in this case Article 8 ECHR and justified under 8 (2)
 Judgment: Community legislature has recognised the importance of ensuring protection of
the family life of nationals of Member States in order to eliminate obstacles to the exercise
of fundamental freedoms guaranteed by the Treaty

C-36/02 Omega Spielhallen

 Germany prohibited a ‘laserdome’, where people shot each with fake laser guns; C claimed
this breach free movement law
 Held: restrictions on free movement for public policy, justified if: necessary for the
protection of interests and no less restrictive means; not needed that justification should
correspond to a conception all MS share of the precise way a fundamental right or interest
should be protected
o Proportionality not excluded merely because one Member State chose a different
system of protection from another for human dignity
 Judgment: “The competent national authorities must therefore be allowed a margin of
discretion within the limits imposed by the Treaty”; “It is not indispensable in that respect
for the restrictive measure issued by the authorities of a Member State to correspond to a
conception shared by all Member States as regards the precise way in which the
fundamental right or legitimate interest in question is to be protected”
C-402/05P and C-415/05P Kadi and Al Barakaat v Council (‘Kadi I’)
 EU measures intended to implement UN Security Council Resolution calling for asset freezing
of persons and entities linked to terrorist groups
 Held: obligations imposed by an international agreement cannot have the effect of
prejudicing the constitutional principles of the Treaty: respect for human rights is
precondition for lawfulness
o No basis in the Treaty for giving immunity on the basis it was adopted by the UN
Security Council
o Principle of effective judicial protection is general principle, enshrined in 6 ECHR and
47 Charter; violated rights of defence: right to be heard, no procedure for justifying
the inclusion of names and undertakings, no communication of evidence before or
after
o [right to be heard is a general principle of EU law]
 Judgment: “the obligations imposed by an international agreement cannot have the effect of
prejudicing the constitutional principles of the EC Treaty, which include the principle that all
Community acts must respect fundamental rights”
o Violation of rights to defence; significant deprivation of property rights – unjustified
restriction on property rights

T-85/09 Kadi v Commission (General Court ‘Kadi II’)

 Following summary reasons by UN Sanctions Committee, Commission adopted new
sanctions against Kadi
 Held: ensure full review without any immunity from jurisdiction on the grounds of giving
effect to UN Security Council Resolution; given lack of independent and impartial body
establishing sanctions, review must include substantive assessment of decision itself
o Right of defence violated: evidence not properly heard; not able to challenge
effectively
 Judgment: given lack of independent and impartial body to hear and determine sanctions
claims: “the review carried out by the Community judicature of Community measures to
freeze funds can be regarded as effective only if it concerns, indirectly, the substantive
assessments of the Sanctions Committee itself and the evidence underlying them

C-584/10P Kadi v Commission (‘Kadi II’)

 Held: measure cannot be afforded immunity given the constitutional guarantee in a Union
based on the rule of law of JR of lawfulness in light of fundamental rights; JR must extend to
whether reasons are sufficient to substantiate the decision
o Must ensure: (i) disclose basis of decision, (ii) enable individual to make views
known, (iii) carefully and impartially examine evidence
 Judgment: “the constitutional guarantee which is exercised, in a Union based on the rule of
law, by judicial review of the lawfulness of all European Union measures, including those
which, as in the present case, implement an international law measure, in the light of the
fundamental rights guaranteed by the European Union”

C-144/04 Mangold
(non-discrimination on grounds of age)
  German law restricting fixed-term contracts to 2 years and requiring objective justification of
them afterwards excluded over 52s to boost old age employment; M was 56
 Held: non-discrimination on the grounds of age is a general principle of Community law,
national courts have a responsibility to uphold this and set aside conflicting national law
 Judgment: “The principle of non-discrimination on grounds of age must thus be regarded as
an general principle of Community law”, given general framework of equal treatment in
Directive 2000/78 [which could not have direct effect]

C-555/07 Seda Kücükdeveci

 German law set statutory notice period with reference to pre-25 year old service; K was
dismissed after 10 years’ service, received 1 months’ notice but should have had 4
 Held: precluded by principle of non-discrimination on the ground of age;
 Judgment: “it is the general principle of European Union law prohibiting all discrimination on
grounds of age, as given expression in Directive 2000/78, which must be the basis of the
examination of whether European Union law precludes national legislation such as that at
issue in the main proceedings”

C-427/06 Bartsch
 (scope of application)
 Under pension scheme widow’s pension was only payable to widow who was no more than
15 years younger than deceased; Mrs B was 21 years younger
 Held: application of non-discrimination principle is not mandatory where the allegedly
discriminatory treatment contains no link with Community law; time limit for expiration of
Directive has not expired
 Judgment: not a measure implementing the Directive and death of B occurred before time
limit for transposition of Directive into national law had ended, not “within the scope of
Community law”

C-101/08 Audiolux
 (creation of general principles)
 Question whether there is a general principle of equality of shareholders to protect minority
shareholders by requiring dominant shareholder to buy minority shareholding on same
conditions as when they had acquired that dominant shareholding
 Held: community law does not recognise a general principle so protecting shareholders;
mere fact that secondary legislation lays down protection for minority shareholders not
sufficient, need to ascertain whether this gives conclusive evidence of a general principle;
provisions of Directive do not possess the general comprehensive character which is
naturally inherent in general principles of law
 Judgment: “the sole purpose is to ascertain whether [the secondary legislation] give any
conclusive indications of the existence of such a principle”; Directive is limited to well-
defined situations; “They do not therefore possess the general, comprehensive character
which is otherwise naturally inherent in general principles of law”; detail of principle
proposed means it would have to be subject of legislation