The principle of legal certainty in the legal order of the European Union

Abstract

The principle of legal certainty is, essentially, all about legal predictability. At any time, the law should be clear and precise - and its effect on any contemplated courses of action should be reasonably predictable. If this is not the case, then persons and entities are in a most precarious and unsatisfactory situation - namely, one of legal uncertainty. For business persons, especially, a state of legal uncertainty can be, at the least, a hindrance and, more seriously, a deterrent. Hence legal certainty is something which is very desirable. My Thesis is that, in the legal order of the European Union (EU), there is a high level of legal certainty.The Thesis is developed in several steps. First of all, in order that my Thesis can be considered in the correct context, in Chapter 1, I outline the nature of the European Union (EU) and its legal order. I then explain what, essentially, the principle of legal certainty means and point out that it is not a principle which is unique to the EU legal order, but rather is something which is widely recognised in many legal orders. However, in the EU legal order, it is more developed. I also draw attention to the fact that, for at least two reasons, it is just not possible to attain a state of ‘absolute’ legal certainty. Still within Chapter 1, I indicate that, by referring to ‘a high level of legal certainty’ in the EU legal order, I am meaning legal certainty to such an extent that, in most situations in which persons normally find themselves, such persons will be able to know (or will at least be able easily to ascertain) what the law is and how it affects them. My Thesis is, essentially, that there is legal certainty to this extent in the EU legal order.In Chapters 2 and 3, I endeavour to show that the principle of legal certainty is both very developed and definitely does exist in the EU legal order. I do this, firstly, by discussing the various characteristics of legal certainty that have been identified by the European Court of Justice (ECJ) and, secondly, by examining the outcomes in recent cases in which a plea of an infringement of the principle of legal certainty (or of an associated concept) was raised. Thereafter, in Chapter 4, I supplement my preceding argument and line of reasoning (to that point) by demonstrating that the EU does do everything that can be considered reasonably necessary to ensure there is legal certainty in its legal order.Subsequently, in order to cover all aspects, in Chapters 5 to 8 inclusive, I analyse and discuss the criticisms that might possibly be made as to why there is not, and cannot be, legal certainty in the legal order of the European Union. In these chapters, I aim to show that such criticisms are unpersuasive.In my Thesis, I am not arguing that there is anything more than ‘a high level’ of legal certainty in the EU legal order (i.e. I am not professing that there is an extremely high level of legal certainty). In fact, there are several factors working against such a state of affairs and, in Chapter 9, I discuss these.Finally, in Chapter 10, I restate my argument by relating all the preceding chapters back to my Thesis and submit that, on the basis of the information and reasoning I have presented, my Thesis is indeed valid (namely, that there is a high level of legal certainty in the EU legal order).