General principles of law: treaty, historical, and normative foundations

Abstract

This chapter is concerned with general principles of law in the context of EU law. There is a very considerable literature that deals with such principles, or aspects thereof in the EU. There are, however, numerous areas of contestation concerning, inter alia, general principles of law as an intellectual category, and the meaning or application of particular principles that fall within this genre. This chapter considers three foundational issues. The first concerns the textual provenance of general principles within the constituent Treaties. The ECJ has, as will be seen, been relatively unforthcoming about this issue. It will be argued that general principles of law are best conceptualised as resting on Article 19 TEU in combination with Article 263 TFEU. To rest general principles solely on Article 19 TEU is to make the word ‘law’ therein bear a very heavy conceptual load, and ignores historical source material that locates such principles within the grounds of review in what is now Article 263 TFEU. The second foundational issue concerns the historical development of general principles within the emerging Community legal order. There is much here that is imperfectly understood. The historical dimension begins by tracing back what the framers of the ECSC Treaty understood by the phrase ‘any rule of law relating to application’ of the Treaty, which originally appeared in Article 33 ECSC, and was carried over to Article 173 EEC. There is, as will be seen, empirical evidence that it was intended to cover, inter alia, general principles of law. There was, however, a double equivocation in the case law from the 1950s and 1960s: there was uncertainty as to what exactly the phrase general principles of law was intended to connote; and insofar as the phrase was invested with its modern meaning there was, nonetheless, uncertainty as to whether such principles applied across the entirety of the Community legal order. These twin uncertainties were only resolved by seminal decisions in the early 1970s, the import of which is still imperfectly understood. The third foundational issue is normative in nature. Thus, the final part of the chapter considers the formal and substantive legitimacy of general principles of law within the EU legal order. It will be argued that general principles rest on sound formal foundations, and that there is a good deal to be said in favour of their substantive legitimacy. There are, nonetheless, concerns about the power that the concept of general principles vests in the EU courts, and these concerns are considered within this part of the chapter.