General Principles of European Community Law

by Bernitz, Ulf

• ISBN13: 9789041114020
• ISBN10: 9041114025
• Format: Hardcover
• Copyright: 2000-06-01
• Publisher: Kluwer Law Intl

Summary

This book is based on a selection of papers presented at the Conference in Malmu, Sweden, which was organized by the Swedish Network for European Legal Studies in cooperation with the Faculty of Law of the University of Lund. The purpose of the conference was to analyze general principles and their scope in the EU legal order with special emphasis on their role in the creation of a jus commune europaeum . The impact of the general principles of Community Law at the national level was analyzed and also how these principles have been transformed into the national legal systems. Also discussed was the creative process behind the shaping and further development of the general principles and their application. Due to their complex nature, The general principles offer a more or less unlimited field for theoretical legal studies. At the same time, The general principles play a very important role in legal practice, not least when used as instruments For The protection of individuals and firms against too far-reaching measures taken by the European institutions or Member States.

Table of Contents

Preface	ix
Ulf Bernitz
General Aspects	1	(46)
The Origins and Development of the General Principles of Community Law	3	(22)
Matthias Herdegen
Introduction: General Principles and the Rule of Law	3	(1)
Origins	4	(5)
The Development of Fundamental Rights and of their Protection	9	(6)
The ECJ's Mandate to Engage in Law-Making	15	(2)
Methodology	17	(4)
Perspectives	21	(4)
General Principles of Law in European and National Systems of Law	25	(10)
T. Koopmans
Introduction	25	(1)
Developments in France	26	(3)
Developments in Germany	29	(2)
The European Courts	31	(3)
Epilogue	34	(1)
On Legal Normative Dynamics and Jurisdictional Dialogue in the field of Community General Principles of Law	35	(12)
Hjalte Rasmussen
About the Article's Themes	35	(2)
The Essentials of the National Judicial Findings	37	(2)
Why National Judicial Threat of Rebellion?	39	(4)
Not a Satisfactory Human Rights Protection	43	(1)
Prospects for a Fruitful Future Jurisprudential Dialogue	44	(3)
Human Rights	47	(46)
Leading by Example or Leaning on Supremacy? Some reflections on the Union, the Individual and the Protection of Fundamental Rights	49	(12)
Hans Ragnemalm
Introduction	49	(2)
Securing European citizens' right of participation in an ``effective political democracy''	51	(3)
Securing the principle of good administration within the Community institutions	54	(3)
Enforcing the general principle of Community law that everyone is entitled to a fair legal process	57	(1)
Conclusion	58	(3)
Human Rights as General Principles of Law	61	(12)
Henry G. Schermers
Definitions	61	(1)
Borderlines	62	(2)
Human rights before the Court of Justice	64	(2)
Extent of the control by the Court of Justice.	66	(3)
The Treaty on European Union	69	(1)
Conclusion	70	(3)
Human Rights as General Principles of Law, in the Past and in the Future	73	(20)
A.G. Toth
Introduction	73	(1)
The origin, nature and function of general principles of law	73	(6)
Are human rights adequately protected as general principles of law?	79	(9)
The full integration of human rights into the Community legal system	88	(5)
Institutional Principle	93	(68)
Proportionality and Subsidiarity as General Principles of Law	95	(18)
Grainne de Burca
Introduction	95	(2)
Proportionality as a general principle of law	97	(6)
The Principle of Subsidiarity	103	(8)
Conclusion	111	(2)
The Development of General Principles of Law Within Article 10 (ex Article 5) EC	113	(6)
Laurence W. Gormley
General Constitutional Principles of Community Law	119	(24)
Ola Wiklund
Joxerramon Bengoetxea
Introduction	119	(1)
Jurisprudential Queries	119	(6)
Specificity of general constitutional principles of EC law	125	(4)
A provisional classification of the general principles of Community law of a constitutional character	129	(6)
The process of reasoning with principles	135	(8)
Institutional Principles: A Special Category of General Principles of EC Law	143	(18)
Bruno de Witte
Institutional Principles as ``General Principles''	143	(3)
Vertical Institutional Principles	146	(4)
Horizontal Institutional Principles	150	(5)
The Question of Judicial Enforceability	155	(3)
Conclusion: The Development of Institutional Principles and the Role of the Court of Justice	158	(3)
Some Individual Principles and Legal Systems	161	(56)
Legal Certainty and Legitimate Expectations as General Principles of Law	163	(22)
John Temple Lang
The general principle of ``legal certainty''	164	(3)
The principle that the legal position should be made clear	167	(1)
Consequences	168	(1)
Implementing Directives	168	(1)
Conflicting legal measures must be repealed	169	(1)
Legitimate expectations	170	(6)
Consequences of breach	176	(1)
Retroactivity and legislative change	177	(2)
The Court's power to limit the retroactive effect of its judgments (Article 231) EC Treaty	179	(1)
Maintaining the effects of unlawful measures: Article 231	179	(1)
Avoiding time limits for proceedings to annual Community acts	180	(1)
Provisional validity	180	(1)
Legal certainty and other general rules	181	(1)
Comments and conclusions	181	(4)
The General Principles of Community Law in the Creation and Development of Due Process Principles in Competition Law Proceedings: From Transocean Marine Paint (1974) to Montecatini (1999)	185	(20)
Xavier Groussot
Introduction	185	(2)
The Creation of Due process principles through the GPL theory	187	(7)
The Development of Due process principles	194	(11)
General Principles of Community Law: Procedural Guarantees- A Note	205	(8)
C.S. Kerse
Introduction	205	(1)
Importance of procedural guarantees	205	(1)
Development of procedural guarantees in Community law	206	(2)
Definition of procedural guarantees	208	(1)
Codification/harmonisation	209	(1)
Relationship with the European Convention on Human Rights	209	(1)
A task for the judges or for the legislators?	209	(4)
General Principles of Law in Swedish Law	213	(4)
Goran Schader
Concluding and Summarising Notes	217	(18)
General Principles of Community Law - Concluding Remarks	219	(4)
Leif Sevon
General Principles of Community Law in the Future: Some Remarks on their Scope, Applicability and Legitimacy	223	(12)
Joakim Nergelius
Which are the General Principles? Conceptions and Categories	224	(5)
Current legal Status of the Principles--Some Observations and Proposals	229	(3)
A Quick View to the Future	232	(3)
About the authors	235	(4)
Table of cases	239