European Union Law

Legal Certainty under European Law

Introduction

The principle which is a very wide one has been applied in more specific terms as :

the principle of legitimate expectations

the principle of non-retroactivity

The ECJ equates the protection of legitimate expectation with the provision of a fair process. There is limitation to the scope of this principle in that it may not be relied upon if the result is to fetter the Community's freedom to act. The ECJ will need to undertake a balancing of interests in which the Community's freedom of action may prevail : O'Dwyer and Others v Council.

The law of the European Union includes the rules of law which is based on the European Union (EU) and its provisions. Before the entry into force of Lisbon Treaty on 1 December 2009, the European Union law is referred as the Community law (or law of the European Communities) and procedures for cooperation such as foreign policy and security policy (CFSP) and police regarding judicial cooperation in criminal matters (PJCC). After this date, the Treaty abolished the pillar structure of the Union which has adopted a legal personality as the heir of the Communities, hence the concept of Community law has become obsolete but still used to refer to case law previous Tribunal .

The right of the European Union should not be confused with the right of the Council of Europe, international organization separate from the EU, which includes the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights, which interprets the Convention. The specificity of Community law is to be "a legal system, integrated into legal systems of Member States" (off against Costa ENEL, 1964), that is to say that applies immediately and gives individuals rights they can claim in court, possibly against a national rule does not respect the rule of Community law.

Legal Certainty under EU Law

It is the Court of Justice of the European Union, located in Luxembourg, which guarantees the application of Community law. This source is theoretically subsidiary. Indeed, the legislative competence of the Community is held in compliance with the principle of subsidiary, under which community action only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States. In this limit, the source projected two kinds of texts, regulations and directives, which are driven by an uneven penetration force. The institutions of the Community law also issue decisions, recommendations and opinions that have legally binding for Member States with regard to the decisions, finding measure for opinions and recommendations.

The primacy principle has been enshrined in the stop against Costa ENEL of the ECJ of 15 July 1964 (Case 6 / 64). The contribution of this decision is critical. Indeed, the Court will allocate a principle not contained in the EU Treaties, yet fundamental, since it means that the rule benefits all EU standards and is exercised against national standards.

The court will deduct the principle of reasoning based on three arguments:

The immediate applicability (that is to ...