General Principles in EU Law between a Compensatory Role and an Intrinsic Value

• Author: Constanze Semmelmann
• Published date: 01 July 2013
• DOI: http://doi.org/10.1111/eulj.12044
• Date: 01 July 2013

General Principles in EU Law between a

Compensatory Role and an Intrinsic Value

Constanze Semmelmann*

Abstract: The present contribution starts with an overview of the terminological and

conceptual confusion underlying the notion of principle, its generality and the concept of

the “general principles” in EU law. Far beyond the delicacy in relation to their genesis

and nature, their interaction with other norms at the constitutional or legislative level

deserves a closer look. For analytical purposes, a distinction will be drawn between,

f‌irst, a view that conceives of general principles as self-standing instruments, secondly,

a combined reading of the respective general principle with relevant legislation and,

thirdly, a view that is based exclusively on the application of the relevant legislative act.

In the light of the Mangold-Kücükdeveci cases and other cases involving equality or

employment matters, the question will be raised of whether general principles merely

serve to overcome def‌icits in relation to directives and are therefore often a transitional

and compensatory phenomenon or whether they have an intrinsic value.

I Introduction

There are some traces of general principles of EU law and general principles common

to the laws of the Member States in the current version of the EU Treaties. These

include the reference to the category of general principles incorporating fundamental

rights1that were originally introduced into the EU legal framework by the Court

itself, next to a reference to the extra-contractual liability of the EU that is to be

shaped according to the general principles common to the laws of the Member States

in this f‌ield.2Beyond that, several sorts of general principles have been recognised by

the Court and displayed as a ref‌lection of its interpretative activity in other contexts,

such as the general principle of proportionality or the right of effective judicial

protection that have later on, in one way or another, been incorporated into the legal

framework of the EU. Most of the earlier cases involving general principles were

either concerned with gap-f‌illing of an incomplete legal system that lacked horizontal

instruments, such as a procedural or administrative law, or with the need to provide

* Wainwright Junior Fellow, University of McGill (Canada) and lecturer in EU law, University of

St.Gallen (CH). This paper is a part of a larger project funded by the Swiss National Science Foun-

dation. I wish to thank Prof. Daniel Halberstam and Prof. Samantha Besson for discussion of selected

aspects of the paper. Errors remain my own.

1Art 6 (3) TEU referring to fundamental rights as general principles of EU law.

2Art 340 (2) TFEU on the extra-contractual liability of the EU and a ref‌lection of it in the framework

of the principle of good administration laid down in Art 41 (3) of the EU Charter of Fundamental

Rights.

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European Law Journal, Vol. 19, No. 4, July 2013, pp. 457–487.

© 2013 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

individual rights at the EU level primarily in order to prevent litigants from invoking

national human rights as a yardstick for the review of the EU law acts. In contrast,

many of the more recent cases are characterised by different driving forces and raise

different constitutional intricacies. This has to do, on the one hand, with a shift in the

EU’s normative aspirations towards the inclusion of genuine human rights protection

beyond a mere federal concern3(even though the federal question now exists in a

different guise), and on the other, with related shifts with respect to its legal subjects

towards the incorporation of horizontal legal relationships in relation to all kinds of

contracts.

Although there is no cross-cutting human rights competence of the Union nor a

coherent human rights policy,4considerable progress in the f‌ield of EU fundamental

rights protection was achieved at the political and legal plane. It culminated in the

remarkable yet not uncontested ongoing evolution of a body of anti-discrimination

law, particularly since the introduction of the current Article 19 of the Treaty on

the Functioning of the European Union (TFEU) into the Treaty of Amsterdam, in

the incorporation of a bill of rights into the EU’s legal framework as well as the

envisaged accession of the EU to the European Convention of Human Rights

(ECHR). Conceptually, this has freed fundamental postulates such as the equal

treatment principle and, arguably, also increasingly social rights and principles from

their instrumental function vis-à-vis the market, and instilled a true human rights

spirit.5

Yet the current legal and political landscape with respect to general principles of

EU law has grown in complexity: It is not a novel claim that the judicial activity of

discovering pre-existing principles or alternatively creating them ex post facto cannot

be grounded in the written Treaty framework. Yet things have become thornier than

the acceptance of the premise that the line between enumerated and un-enumerated

3Recently, eg G. De Búrca, ‘The Drafting of the European Union Charter of Fundamental Rights’,

(2001) 26 European Law Review 126; N. Türküler Isiksel, ‘Fundamental Rights in the EU after Kadi and

Al Barakaat’, (2010) 16 European Law Journal 551–577; S. Besson, ‘The European Union and Human

Rights: Towards a Post-national Human Rights Institution?’ (2006) 6 Human Rights Law Review 323;

S. Morano-Foadi and S. Andreadakis, ‘Ref‌lections on the Architecture of the EU after the Treaty of

Lisbon: The European Judicial Approach to Fundamental Rights’, (2011) 17 European Law Journal

595–610.

4On this issue, A. von Bogdandy, ‘The European Union as a Human Rights Organisation?’ (2000) 37

Common Market Law Review 1307–1338; P. Alston and J.H.H. Weiler, ‘An “Ever Closer Union” in

Need of a Human Rights Policy: The European Union and Human Rights’, in P. Alston (ed), The EU

and Human Rights (Oxford University Press, 1999), at 3–66; J. Coppel and A. O’Neill, ‘The European

Court of Justice: Taking Rights Seriously’, (1992) 12 Legal Studies 227; J.H.H. Weiler and

N.J.S. Lockhart, ‘Taking Rights Seriously: The European Court and Its Fundamental Rights

Jurisprudence—Part 1’, (1995) 32 Common Market Law Review 51; J.H.H. Weiler and N.J.S. Lockhart,

‘Taking Rights Seriously: The European Court and Its Fundamental Rights Jurisprudence—Part II’,

(1995) 32 Common Market Law Review 579; S. Besson, ‘The European Union and Human Rights’;

S. Douglas-Scott, ‘The European Union and Human Rights after the Treaty of Lisbon’, (2011) 11(4)

Human Rights Law Review 645–682.

5eg M. Bell, ‘The Principle of Equal Treatment—Widening and Deepening’, in P. Craig and G. de Búrca

(eds), The Evolution of EU Law (Oxford University Press, 2011), at 611–640; C. Barnard, ‘EU “Social”

Policy: From Employment Law to Labour Market Reform’, in P. Craig and G. de Búrca (eds), The

Evolution of EU Law (Oxford University Press, 2011), at 642–686; B. De Witte, ‘The Crumbling

Public-Private-Divide: Horizontality in European Anti-Discrimination Law’, (2009) 13 Citizenship

Studies 515–525.

European Law Journal Volume 19

458 © 2013 John Wiley & Sons Ltd.