The general principles of European Union law are general principles of law which are applied by the European Court of Justice and the national courts of the member states when determining the lawfulness of legislative and administrative measures within the European Union. General principles of European Union law may be derived from common legal principles in the various EU member states, or general principles found in international law or European Union law. General principles of law should be distinguished from rules of law as principles are more general and open-ended in the sense that they need to be honed to be applied to specific cases with correct results.
The general principles of European Union law are rules of law which a European Union judge, sitting for example in the European Court of Justice, has to find and apply but not create. Particularly for fundamental rights, Article 6(3) of the Treaty on European Union provided: Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law. Further, Article 340 of the Treaty on the Functioning of the European Union (formerly Article 215 of the Treaty establishing the European Economic Community) expressly provides for the application of the "general principles common to the laws of the Member States" in the case of non-contractual liability.
In practice the European Court of Justice has applied general principles to all aspects of European Union law. In formulating general principles, European Union judges draw on a variety of sources, including: public international law and its general principles inherent to all legal systems; national laws of the member states, that is general principles common to the laws of all member states, general principles inferred from European Union law, and fundamental human rights. General principles are found and applied to avoid the denial of justice, fill gaps in European Union law and to strengthen the coherence of European Union law.
Accepted general principles of European Union Law include fundamental rights, proportionality, legal certainty, equality before the law, primacy of European Union law and subsidiarity. In Case T-74/00 Artegodan, the General Court (then Court of First Instance) appeared willing to extrapolate from the limited provision for the precautionary principle in environmental policy in Article 191(2) TFEU to a general principle of EU law.
Fundamental rights Fundamental rights, as in human rights, were first recognised by the European Court of Justice based on arguments developed by the German Constitutional Court in Stauder v City of Ulm Case 29/69 in relation to a European Community scheme to provide cheap butter to recipients of welfare benefits. When the case was referred to the European Court of Justice the ruling of the German Constitutional Court, the European Community could not "prejudice the fundamental human rights enshrined in the general principles of Community law and protected by the Court". This concept was further developed by the European Court of Justice in International Handelsgesellschaft v Einfuhr- und Vorratsstelle Getreide ECR 1125 Case 11/70 when it was held that "Respect for fundamental rights form 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 the member states, must be ensured within the framework of the structure and objectives of the Community." Subsequently, in J Nold v Commission Case 4/73 the European Court of Justice reiterated that human rights are an integral part of the general principles of European Union law and that as such the European Court of Justice was bound to draw inspiration from the constitutional traditions common to the member states. Therefore, the European Court of Justice cannot uphold measures which are incompatible with fundamental rights recognised and protected in the constitutions of member states. The European Court of Justice also found that "international treaties for the protection of human rights on which the member states have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law."
The Charter of Fundamental Rights of the European Union None of the original treaties establishing the European Union mention protection for fundamental rights. It was not envisaged for European Union measures, that is legislative and administrative actions by European Union institutions, to be subject to human rights. At the time the only concern was that member states should be prevented from violating human rights, hence the establishment of the European Convention on Human Rights in 1950 and the establishment of the European Court of Human Rights. The European Court of Justice recognised fundamental rights as general principle of European Union law as the need to ensure that European Union measures are compatible with the human rights enshrined in member states' constitution became ever more apparent. In 1999 the European Council set up a body tasked with drafting a European Charter of Human Rights, which could form the constitutional basis for the European Union and as such tailored specifically to apply to the European Union and its institutions. The Charter of Fundamental Rights of the European Union draws a list of fundamental rights from the European Convention on Human Rights and Fundamental Freedoms, the Declaration on Fundamental Rights produced by the European Parliament in 1989 and European Union Treaties.
The 2007 Lisbon Treaty explicitly recognised fundamental rights by providing in Article 6(1) that "The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adopted at Strasbourg on 12 December 2007, which shall have the same legal value as the Treaties." Therefore, the Charter of Fundamental Rights of the European Union has become an integral part of European Union law, codifying the fundamental rights which were previously considered general principles of European Union law. In effect, after the Lisbon Treaty, the Charter and the convention now co-exist under European Union law, though the former is enforced by the European Court of Justice in relation to European Union measures, and the latter by the European Court of Human Rights in relation to measures by member states.
The common standard of protection The "question of a possible infringement of fundamental rights by a measure of the [EU] institutions can only be judged in the light of [EU] law itself"; "the freedom to pursue trade or professional activities" must "be viewed in light of the social function of the activities": Case C-159/90 SPUC v Grogan.
In Case C-112/00 Schmidberger, the right of free speech limited – but did not unjustifiably violate – the free movement of goods. The right to strike and to collective action can constitutes a restriction of freedom of establishment, but it may "be justified by an overriding reason of public interest": Case C-438/05 Viking Line and Case C-341/05 Laval. Similarly see Case C-36/02 Omega.
In Joined Cases C-402/05 P and C-415/05 P Kadi (Kadi I), Council regulations based on United Nations Security Council decisions were reviewed under EC human rights standards and consequently annulled. In its sequel Kadi II (C-595/10 P) the Court of Justice, by dismissing the appeal, confirmed the General Court's annulment of restrictive measures directed against Kadi.
EU law does not extend to combating discrimination on grounds of health: Case C-13/05 Sonia Chacon Navas. There is a general principle of law in all European Union member states against discrimination, and in favour of equal treatment: Kücükdeveci v Swedex GmbH & Co KG.
The scope of human rights in the EU In principle, the scope of EU human rights protection follows the field of EU law. However, even when a state is derogating from a Union obligation, it must respect human rights standards: Case C-260/89 ERT. Even when the link between the issue at hand and EU law is tenuous, EU law may still apply and human right standards thus invoked: Case C-60/00 Mary Carpenter.
Legal certainty The concept of legal certainty has been recognised one of the general principles of European Union law by the European Court of Justice since the 1960s. It is an important general principle of international law and public law, which predates European Union law. As a general principle in European Union law it means that the law must be certain, in that it is clear and precise, and its legal implications foreseeable, especially when applied to financial obligations. The adoption of laws which will have legal effect in the European Union must have a proper legal basis. Legislation in member states which implements European Union law must be worded so that it is clearly understandable by those who are subject to the law.
Clarity Legal certainty, part of the EU legal order, "requires that legal rules be clear and precise, and aims to ensure that situations and legal relationships governed by [Union] law remain foreseeable": Case C-63/93 Duff and Others v Minister for Agriculture and Food.
Individuals "should have the benefit of a clear and precise legal situation enabling them to ascertain the full extent of their rights and, where appropriate, to rely on them before the national courts"; this is not the case where a Member State does not transpose a directive correctly, despite case-law interpreting national legislation in accordance with the directive: Case C-236/95 Commission v Greece.
Legitimate expectation The doctrine of legitimate expectation, which has its roots in the principles of legal certainty and good faith, is also a central element of the general principle of legal certainty in European Union law. The legitimate expectation doctrine holds that and that "those who act in good faith on the basis of law as it is or seems to be should not be frustrated in their expectations". This means that a European Union institution, once it has induced a party to take a particular course of action, must not renege on its earlier position if doing so would cause the party to suffer loss.
The European Court of Justice has considered the legitimate expectation doctrine in cases where violation of the general principle of legal certainty was alleged in numerous cases involving agricultural policy and European Council regulations, with the leading case being Mulder v Minister van Landbouw en Visserij ECR 2321 Case 120/86. Where a producer "has been encouraged by a Community measure to suspend the marketing [of his products] 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": Case 120/86 Mulder v Minister van Landbouw en Visserij.
"The principle of the protection of legitimate expectations may be invoked as against Community rules, only to the extent that the Community itself has previously created a situation which can give rise to a legitimate expectation": C-177/90 Kühn v Landwirtschaftskammer Weser-Ems. This is confirmed in Duff: "economic agents cannot legitimately expect that they will not be subject to restrictions arising out of future rules of market or structural policy".
Non-retroactivity