EU Law Lecture – 12/10/15 – General Principles of EU Law
Subsidiarity
Article 5(3) – the EU will only act outside of the areas set out for it if
the proposed objectives cannot be sufficiently achieved by the
member states, and it would be better achieved at Union level.
With shared competence, the Union may be required to act as it
may be better placed to tackle an issue than a member state.
Question of fact – can the national government achieve the desired
objective? If not, would the EU be better placed to achieve the
objective?
Subsidiarity has never been successfully invoked as a means to
challenge a piece of EU legislation. This does not mean that the
principle is useless.
Political function – serves a purpose even if it is not a ground to
challenge legislation.
General Principles:
‘Fundamental propositions of law which underline a legal system
and from which concrete rules or outcomes may be derived’
Tridimas, General Principles of EU Law
Where do they come from?
o Rule of Law derived
o Systematic principles which underlie the constitutional
structure of the Union – these are deeply intertwined
There was originally no mention of general principles within the
Treaty of Rome, meaning that there is a question as to where they
come from.
o They’ve been drawn largely from, and expressed by, the Court
of Justice. They ‘discovered’ the idea and concept of general
principles. They derived from the interpretation of the treaties.
The court has some reference points in interpreting the
treaties, mainly the the constitutional provisions of the
member states.
What is the force of the general principles?
o They’re binding upon member states, they are binding upon
EU law
o They are there to enhance the protection of rights of
individuals in the EU legal order (Proportionality and direct
effect also aid this).
o The principles have been written into the Treaty of Lisbon
Proportionality
General principle of EU law, very important, one of the principles
constraining the exercise of EU competency, can also be binding on
member states.
To satisfy proportionality a measure must:
o Be appropriate to achieve its objective
o Be necessary to achieve its objectives
Subsidiarity
Article 5(3) – the EU will only act outside of the areas set out for it if
the proposed objectives cannot be sufficiently achieved by the
member states, and it would be better achieved at Union level.
With shared competence, the Union may be required to act as it
may be better placed to tackle an issue than a member state.
Question of fact – can the national government achieve the desired
objective? If not, would the EU be better placed to achieve the
objective?
Subsidiarity has never been successfully invoked as a means to
challenge a piece of EU legislation. This does not mean that the
principle is useless.
Political function – serves a purpose even if it is not a ground to
challenge legislation.
General Principles:
‘Fundamental propositions of law which underline a legal system
and from which concrete rules or outcomes may be derived’
Tridimas, General Principles of EU Law
Where do they come from?
o Rule of Law derived
o Systematic principles which underlie the constitutional
structure of the Union – these are deeply intertwined
There was originally no mention of general principles within the
Treaty of Rome, meaning that there is a question as to where they
come from.
o They’ve been drawn largely from, and expressed by, the Court
of Justice. They ‘discovered’ the idea and concept of general
principles. They derived from the interpretation of the treaties.
The court has some reference points in interpreting the
treaties, mainly the the constitutional provisions of the
member states.
What is the force of the general principles?
o They’re binding upon member states, they are binding upon
EU law
o They are there to enhance the protection of rights of
individuals in the EU legal order (Proportionality and direct
effect also aid this).
o The principles have been written into the Treaty of Lisbon
Proportionality
General principle of EU law, very important, one of the principles
constraining the exercise of EU competency, can also be binding on
member states.
To satisfy proportionality a measure must:
o Be appropriate to achieve its objective
o Be necessary to achieve its objectives
