The general principles of EU Law that the ECJ has recognised and incorporated into the Community legal order are summarized as :-
- fundamental human rights
- proportionality – limit on Community powers
- legal certainty
- subsidiarity – limit on Community powers
- principles of procedural propriety
- practical possibility
Fundamental human rights
The ECJ has changed its stance with regard to recognizing fundamental human rights and this has changed with the increase in emphasis on the protection of human rights and fundamental freedoms.
In early cases such as Stork v Higher the ECJ explicitly denied that human rights were part of EC law or that secondary legislation of the EC could be challenged with reference to such rights. In the case of Stauder v City of Ulm the courts took a more positive attitude and referred to the fundamental human rights enshrined in the general principles of Community law and protected by the court. In the case of International Handelsgesselshaft the ECJ ensured that the rights although based on national constitutions were part of the Community general principles. In the case of Nold the courts declared a further source of inspiration for fundamental rights which were international treaties such as the European Convention on Human Rights (ECHR).
However cases like Frontini v Ministero dell Finanze brought to light the reservations of the local constitutional courts in giving up protection of fundamental rights protected by the Italian constitution. In the UK where the ECHR was incorporated into UK law via the HRA it is not mandatory that an Act of Parliament needs to be compatible with ECHR rights. Section 19 of the HRA 1998 allows for a minister responsible for the passage of a Bill through Parliament to make a statement that the bill does not comply with ECHR rights. While allowing for greater scrutiny of that particular bill it still means that Parliament is free to enact legislation that may run counter to any of the articles of the ECHR such as the Anti-Terrorism Crime and Security Act 2001.
The ECJ will also often recognize the existence of a right but then balance it against the Community interest : Hauer v Land Rheinland-Pfalz – rights to property and trade – to plant vines and to trade in wine balanced against producing a balanced wine maket and to limit excess production of inferior wine from Germany. The ECJ also ruled that although it had no jurisdiction to examine the compatibility of national rules with the ECHR where national rules fall within the scope of Community law they may be reviewed by the ECJ to ensure their compatibility with the fundamental rights protected by Community law.
The ECJ will also not rule on the compatibility of national rules with the ECHR however where national rules wall within the scope of Community law they may be reviewed by the ECJ to ensure their compatibility with the fundamental rights protected by Community law. ERT v Dimotiki Etaira Pliroforissis – national rules fall under the combined provisions of Article 46 and 55 (then Art 56 and 66) – freedom of movement and claimants were relying on derogations granted b the Treaty and therefor ECJ had power to review.
The fundamental rights are now recognised in Art 6 Treaty on the European Unition - TEU and have been codified in the Charter of Fundamental Rights although this is not legally binding. It has been cited by Advocate Generals in their opinions but has not been relied on by the ECJ itself.
The third paragraph of Art 5 EC sets out the principle of proportionality which states that action by the Community should not go beyond what is necessary to achieve the objectives of the treaty.
R v Intervention Board ex p. Man Sugar Ltd – in this case Man had been late in applying for a export licence. The short delay of only four hours resulted in their losing all their bank securities in accordance with Community law. The ECJ concluded that the penalty imposed was disproportionate and too drastic
The Court has however set a low standard of scrutiny of measures in the light of the proportionality principle. It has held that the Community legislature must be allowed a broad discretion in an area such as the protection of public health which means that it must make complex political, economic and social choices. Consequently, the legality of a measure adopted to protect public health can be affected only if the measure is manifestly inappropriate having regard to the objective pursued by the competent institutions. As a consequence, it is only relatively seldom that measures are found by the Court to be disproportionate.
Subsequently in later cases the ECJ insisted that the remedies provided by national law must be proportionate, adequate and should have a deterrent effect in order to be effective in guaranteeing real and effective protection.
With regard to proportionality Sagulo concerned fines imposed by France and Germany on workers from other states for not applying for the appropriate residence permits, in breach of EC legislation. The ECJ held that these fines were so excessive as to amount to a barrier to free movement workers.
The principle which is a very wide one has been applied in more specific terms as :
- the principle of legitimate expectations
- the principle of non-retroactivity
The ECJ equates the protection of legitimate expectation with the provision of a fair process. There is limitation to the scope of this principle in that it may not be relied upon if the result is to fetter the Community’s freedom to act. The ECJ will need to undertake a balancing of interests in which the Community’s freedom of action may prevail : O’Dwyer and Others v Council.
The principle of equality means in its broadest sense that persons in similar situations are not to be treated differently unless difference in treatment is objectively justified. The EC Treaty expressly prohibits discrimination on the grounds of nationality : Art 12, on the grounds of sex with reference to pay : Art 141, between producers or consumers within the Community : Art 34(2). The Treaty of Amsterdam included a new Art 13 (Art 13 EC) which gives a legal base for the Community to take action to combat discrimination. Two Directives have been legislated on this legal base : Directive 2000/78 and Directive 2000/43.
The principle of subsidiarity was added to the European Community legal order by Treaty of the European Union and is contained in Art 5 EC and states that decisions should be taken at the lowest level possible as close to the individual as possible :-
Tests to be applied to see if the principle of subsidiarity is complied with
1. The sufficient attainment test Article 5(2) – Community shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member states – if the member state cannot achieve the aim, it should be achieved by the Community (negative test)
2. The better attainment test – should onoy be preferred to member state action if this will bring demonstrable advantages (positive test)
ECJ has been reluctant to interfere with Community action – C-84/94 UK v Council – community action was necessary in order to achieve the health and safety objectives set in the directive
The idea of subsidiarity has been familiar for decades in the Community :-
1. The division of function between national and Community courts under the Article 234 preliminary reference procedure
2. The distinction between the Regulation and the Directive under Article 249
3. The scope of Article 28 – Torfaen v B&Q plc
4. The scope of Article 81 – Glaxo Smith Kline judgement
5. The enforcement of competition law envisaged by Regulation 1/2003
Equivalence and Practical Possibility
The ECJ laid down two principles in the cases of Rewe Zentralfinanz and Comet BV c Productchap namely :-
1. The principle of equivalence - remedy for the EC law right should be no less favourable than those relating to similar domestic claims
2. The principle of practical possibility – the remedy should not be rendered impossible to practice or excessively difficult
Subject to these two requirements, the procedures and remedies for breach of Community law were primarily a matter for the Member States. States were not required to provide remedies which would not be available under national law. New national remedies did not therefor have to be created although existing national remedies must not render the exercise of the right impossible in practice.
While no problems existed with the priciples of proportionality and adequacy the effectiveness requirement has provided the most tension between national procedural responsibility and autonomy and the requirement that national remedies must secure the effectiveness of Community rights.
In Dekker which involved a discriminatory case by a company who refused to hire a pregnant woman against Directive 26/207. It was held that Dutch law which required proof of not only discrimination but unjustified discrimination could not be applied. It was deemed not to be effective.
The effectiveness requirement was highlighted in Factortame I in which the ECJ drawing on its earlier Simmenthal ruling based on the principle of cooperation laid down in Article 5 of the EEC Treaty ruled that any provision of a national legal system which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to do everything necessary would be incompatible. The ECJ left it to the House of Lords to specify the conditions under which interim relief should be granted in a given case but made clear that a rule which prohibited absolutely the grant of interim relief would be unacceptable.
In subsequent cases, the ECJ used the principle of effectiveness not only to dictate the form of the remedy, but also to make detailed pronouncements on the amount of compensation payable. In Marshall v Southhampton and South West Area Health Authority No. II (1993) the ECJ was prepared to rule on amount and interest. In Von Colson a worker was found by the German courts to be a victim of gender discrimination that was unlawful under EC law. The ECJ held that the remedy offered must be adequate and must also have a deterrent effect. A nominal or token remedy would not have that effect.
Here the ECJ was not merely mandating an effective compensation, it was involving itself in determination of whether a particular amount was effective or not and marks a high point of the ECJ’s interventionist approach to the amount of compensation awarded by national courts, a striking departure from earlier cases.
- Justin Santiago
- Justin Santiago, BAppSc (Hons), MBA, LLB (Hons) comes from a journalism, market research, intellectual property and strategic communications consulting background. Now based in Melbourne he spends his time advising businesses on how to communicate to their customers as well as writing on various subjects of interest in this blog.
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