II. Texts for discussion and translation Read the following text. The relevance of general principles of law

After the concept of direct effects and the principle of supremacy of EC law the third major contribution of the ECJ has been the introduction of general principles of law into the corpus of EC law. General principles of law are relevant in the context of EC law in a number of ways. First, they may be invoked as an aid to interpretation: EC law, including domestic law implementing EC law obligations, must be interpreted in such a way as not to conflict with general principles of law. Secondly, general principles of law may be invoked by both States and individuals to challenge Community action, either to annul or invalidate acts of the institutions (under Articles 230, 241, 234 and 236 EC), or to challenge inaction on the part of these institutions (under Articles 232 or 236 EC). Thirdly, as a logical consequence of its second role, but less generally acknowledged, general principles may also be invoked as a means of challenging action by a Member State, whether in the form of a legal or an administrative act, where the action is performed in the context of a right or obligation arising from Community law (see Klensch (cases 201 & 202/85); Wachauf v Germany (case 5/88)). General principles of law may be invoked to support a claim for damages against the Community (under Article 288(2)). These reasons are all practical reasons, based in the arena of legal action. There are other reasons, too, which relate to how the Community and Union is seen; what sort of values it has. The jurisprudence in this area expands the rights of individuals beyond the economic rights found in the original Treaty. In parallel with the concept of citizenship, the protection of such rights suggests the Union itself has greater links with the individuals and is, itself, obtaining greater legitimacy.

Fundamental principles

General principles of law are not to be confused with the fundamental principles of Community law, as expressed in the EC Treaty, for example, the principles of free movement of goods and persons, of non-discrimination on the grounds of sex (Article 141 EC) or nationality (Article 12 EC), although there may be some overlap or commonality between the two. General principles of law constitute the 'unwritten' law of the Community.

Rationale for the introduction of general principles of law

The legal basis for the incorporation of general principles into Community law is slim, resting precariously on three articles. Article 230 gives the ECJ power to review the legality of Community acts on the basis of, inter alia, 'infringement of this Treaty', or 'any rule of law relating to its application'. Article 288(2), which governs Community liability in tort, provides that liability is to be determined 'in accordance with the general principles common to the laws of the Member States'. And Article 220, governing the role of the ECJ, provides that the Court 'shall ensure that in the interpretation and application of this Treaty the law is observed'.

In the absence of any indication as to the scope or content of these general principles, it has been left to the ECJ to put flesh on the bones provided by the Treaty. This function the Court has amply fulfilled, to the extent that general principles now form an important element of Community law.

One of the reasons for what has been described as the Court's 'naked law-making' in this area is best illustrated by the case of Internationale Handelsgesellschaft mbH (case 11/70). There the German courts were faced with a conflict between an EC regulation requiring the forfeiture of deposits by exporters if export was not completed within an agreed time, and a number of principles of the German constitution, in particular, the principle of proportionality. It is in the nature of constitutional law that it embodies a State's most sacred and fundamental principles. Clearly it would not have done for EC law to conflict with such principles. Indeed, as the German constitutional court made clear ([1974] 2 CMLR 540), were such a conflict to exist, national constitutional law would take precedence over EC law. This would have jeopardised not only the principle of primacy of EC law but also the uniformity of application so necessary to the success of the new legal order. So while the ECJ asserted the principle of primacy of EC law in Internationale Handelsgesellschaft, it was quick to point out that respect for fundamental rights was in any case part of EC law.

Another reason now given to justify the need for general principles is that the Community's powers have expanded to such a degree that some check on the exercise of the institutions' powers is needed. Furthermore, the expansion of Community competence means that the institutions' powers are now more likely to operate in policy areas in which human rights have an influence.

Ex. 1. Answer the following questions:

1. What three contributions to the EC law have been made by the ECJ?

2. How can general principles of law be used in the context of the EC law?

3. What can be described as the “unwritten” law of the Community? Why?

4. What legal basis is there for incorporating the general principles of law into Community law? Is it solid?

5. What EC institution helped to better incorporate the general principles of law into Community law?

6. What did Internationale Handelsgesellschaft mbH (case 11/70) case demonstrate?

Ex. 2. Give the oral/written summary of the text (in English/ Russian).

Ex. 3. Translate the text into Russian orally.

Ex. 4. Suggest the Russian equivalents for the following words and phrases:

to invoke the general principles of law; to annul or invalidate acts of the institutions; claim for damages; to expand the rights of individuals; commonality; to review the legality; to put flesh on the bones; forfeiture of deposits; to jeopardize.

Ex.5. Find in the text the English equivalents for the following Russian words and phrases:

актуальность / важность общих принципов права; оспаривать действия Сообщества; бездействие; общепризнанные принципы; обязательство, вытекающее из права Сообщества; частично совпадать; священные принципы; единообразно применение; расширять права; контролировать исполнение полномочий институтами ЕС