General Principles and Fundamental Rights

Question 1

Functions of general principles

Answer 1

An aid to interpretation
Filling gaps in the written law
Grounds for Judicial Review
To make EU law more coherent for MSs and individuals

Question 2

Sources of general principles

Answer 2

Internal:
Charter of Fundamental Rights of the EU
The treaties

External:
Member states’ constitutions
International treaties e.g ECHR

Question 3

Internationale Handelsgesellschaft

Answer 3

Established that fundamental rights form an integral part of EU law.
‘Part of the general principles of law protected by the CJEU’

Constitutional traditions of MSs as a source fundamental right

Question 4

Nold v Commission

Answer 4

ECHR is a source of fundamental rights

Question 5

Kadi and Al-Barakaat

Answer 5

The CJEU has a duty to ensure observance of fundamental rights is an overriding one, even when the contested measure is an international one.

Question 6

Treaty provision elevating the CFREU to the same constitutional value of the treaties

Answer 6

Art 6(1) TEU

Question 7

Test-Achats

Answer 7

Directive 2004/113 required all men and women be treated equally in the provision of goods and services
Provision 5(2) exempted this obligation in the case of insurance schemes
This was challenged as promoting unequal rights for men and women
The directive mentioned the CFREU in its preamble, and so therefore had to be assessed by the CJEU in light of its principles
Held
The EU legislature are bound under the CFREU to exercise their competence in accordance with the aims of the EU, and its duty to promote equality under art 8 TFEU and the Charter
Provision 5(2) was incompatible with art 21 and 23 of the charter on a permanent basis
Therefore the provision would be invalid when the directive came into full effect

Question 8

Kucukdeveci, Romer

Answer 8

Cannot not rely on the general principle of non-discrimination against a MS created by the charter until after the implementation date for a directive has passed.

Question 9

Ackerberg-Fransson [2013]

Answer 9

In interpreting domestic legislation the national court of an MS may be called upon to consider fundamental rights if the domestic legislation was being used to implement national law.
Test: rights guaranteed in the legal order of the EU are applicable in all situations governed by EU law but not outside such situations.

Question 10

Melloni

Answer 10

Applicant could not rely on a higher level of Fundamental Rights protection afforded by the Spanish constitution as this would undermine the primacy of EU law

Question 11

Treaty basis for accession of the EU to the ECHR

Answer 11

Art 6(2) TEU