General Principles: Taking Rights Seriously and Waving the Rule-of-Law Stick in the European Union

Abstract

Before the entry into force of the Lisbon Treaty, the doctrinal debate on general principles mainly centred on the study of the protection and development of individual rights (the rights-principles debate). In essence, this debate is similar to the study of general principles qua EU fundamental rights. Yet, with the impulse of Article 2 of the Treaty on European Union (TEU), it has now moved to a debate on the use of general principles by the Court of Justice of the European Union (CJEU) to apply and enforce the rule of law in the European Union (the rule of law-principles debate). What is the relationship, if any, between the rights-principles debate and the rule of law-principles debate? The aim of this Chapter is to show the evolution of the debate on general principles; to understand the intrinsic reasons of this shift; and to display its consequences for the theory on general principles and for the EU legal order. Section II looks at the relationship between the general principles and the rule of law, Section III focuses on the analysis of the general principles qua fundamental rights. Section IV focuses on the analysis of the general principles qua rule of law. Section V draw the consequences of the existence of a ‘Dworkinian administration’ on the doctrine of general principles. Section VI is the conclusion.