General Principles of European Union « General Principles of European Union Law and General International Law », in M. Andenas, M. Fitzmaurice, A. Tanzi, J. Wouters (dir.), General Principles of Law and the Coherence of International Law, Leyde, Brill, 2019, pp. 131-148and General International Law (original) (raw)
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Introduction and overview of the Research Handbook on General Principles in EU Law: Constructing Legal Orders in Europe (eds Katja S, Ziegler, Päivi J. Neuvonen and Violeta Moreno-Lax, Edward Elgar, forthcoming 2022). This innovative Research Handbook explores the judicial and scholarly approaches to, and theories surrounding, general principles in the EU legal order against the backdrop of considerable uncertainty about the concept. It does so by analysing a diverse range of general principles in discrete areas of EU law (‘zooming in’) and from external, wider perspectives on the notion of a general principle of law in international law, comparative law, and legal theory (‘zooming out’). Rather than arguing for a single closed definition of what a general principle of law in the EU legal order must look like, this Research Handbook identifies conceptual, theoretical, and legal parameters within which the doctrine of general principles can be meaningfully discussed and contested in EU law. The different analytical layers built into this Handbook shed light on whether general principles are defined by the different contexts in which they apply; whether general principles are in practice leading to more coherence between different areas of EU law; and what challenges they create for the EU legal order. Chapters thus help to contribute to a more refined methodological and doctrinal understanding of general principles in the EU legal order. Opening up new spaces to critically reflect on the concept, role, significance, and limitations of general principles, the Research Handbook on General Principles in EU Law will be a key resource for scholars and students of European law, politics, and theory of integration and internationalisation.
The Court of Justice of the European Union and International Legal Order
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This kind of research seems important because of the gap in the theory of international law caused by the immutable dogma of the supremacy of international law. However, modern legal practice demonstrates a certain fragmentation of the international legal order because of the impact of the existence and development of regional supranational legal orders. The EU legal order, with its own special nature (sui generis), is undoubtedly one of the most developed among them.
The European Court of Justice and General Principles Derived from the Acquis Communautaire
Oslo Law Review, 2014
This article aims to demonstrate and identify principles derived from primary legislation which govern European contract law. This demonstration is based on the consubstantial relationship, rooted in a market-oriented conception of Europe, which exists between principles set up by the European Union Treaties and those implicitly contained in secondary legislation. However, the view taken here is that not all 'primary principles' are shaped to integrate secondary legislation dealing with contract law. Only proportionality, effectiveness and, to some extent, non-discrimination prove appropriate in the context of contract law. The first part of the article supports the view that these principles have been used to remedy limits in European legislature competences in contract law. Part two takes the view that the principles have been used by the European Court of Justice as a tool of contractual policy making.
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Journal of the University of Latvia. Law
The article examines the notion of “common constitutional traditions” of the European Union Member States looking for the content of this open-ended term. It is agreed and even on the international level that fundamental rights are the part of the common constitutional traditions, but in this article, it is suggested to connect the notion with the notion of the general principles of law thus obtaining more comprehensive and elaborate understanding of what the content of the common constitutional traditions really involve. General principles of law are a common source of law to all the legal arrangements of the European Union Member States as they are derived from the same Basic Norm – democratic state based on the Rule of Law, and fundamental rights are only one part of the general principles of law as they are much wider notion. That is why looking from the perspective of the general principles of law as common source of law of all the legal arrangements based on the Basic Norm – d...
General Principles of Law-Source of European Union Law
In interpreting primary and secondary Union legislation, the Court of Justice of the European Union has developed a number of general principles of law, some based on the fundamental laws of the constitutions of the Member States, some based on principles of international law and some derived directly from the European Convention on Human Rights (ECHR). These general principles of law are also based on the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union. The status of the Charter has been enhanced now that the Charter has been afforded legal recognition by the Treaty of Lisbon through the amended Art 6(1) TEU.
For many years, the ECJ has postulated the autonomy of the EU legal order. At the same time, it has also stressed the importance of noting that the UN and the EU are distinct legal orders. In light of this situation, we have one and the same international organization applying two diametrically opposed theoretical doctrines. Regarding the inner relationship with its Member States, the ECJ proclaims a unified legal order based on the monistic doctrine. Dualistic arguments, in contrast, serve to separate the EU legal order from international law. This paper intends to clarify whether this obvious contradiction is due to a simple misinterpretation by the ECJ or is grounded in flaws within the almost 100 year old theories of monism and dualism which can no longer serve to explain the relationship between legal orders satisfactorily. The paper concludes that the situation cannot be characterized as black and white. However, in order to establish fundamental foundations, a clear theoretical line is essential.
International Law as Law of the EU: the Role of the Court of Justice
King's Law Journal, 2006
Lately, the Court of Justice has been harshly criticised for having unduly restricted the effects of international law within the European legal order. Cases such as Van Parys, Kadi, Mox Plant, Intertanko, and Commune de Mesquer have led scholars to argue that the Court of Justice is becoming less international law friendly. This brings interesting questions to the fore: has the case-law changed? And if there is a change, is this change due to a different attitude of the Court of Justice towards international law? What factors could have influenced the recent decisions of the Court of Justice? This working paper addresses these questions. It analyses the Court’s recent decisions concerning international law, contrasts them with earlier rulings and places them in the broader context of the Court’s understanding of the European legal order. The analysis leads to a more nuanced conclusion. The Court’s attitude towards international law cannot easily be placed on a one dimensional scale of ‘international law friendliness’. Finally, four observations are made on what might have influenced the Court’s rulings in recent years.