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THE GENERAL PRINCIPLES OF EU LAW: PROTECTING FUNDAMENTAL HUMAN RIGHTS IN THE EU
1. Introduction There are different understandings of 'general principles but here interpreted as one of the main primary sources of EU Law and as a set of rules of law, mostly unwritten, which have been developed by the Court of Justice by reference to its duty to uphold the rule of law. Find support in Treaty: Article 19 (1) TEU: "The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties, the law is upheld [emphasis added]". Article 263(2) TFEU: Grounds for illegality of EU acts Article 340 TFEU): Non-contractual liability of the EU institutions
However, mainly COJ who incorporated of general principles of law in the Union legal order. Court has recognised, amongst others, the following principles in its case law:
? the protection of fundamental human rights;
? the principle of proportionality;
?the principles of legal certainty and legitimate expectations;
?the principle of non-discrimination;
?the protection of the rights of the defence.
Some principles first developed in the case law but then incorporated in the Treaty
1.1 Functions of the general principles of Law in the Union legal order: Three key functions (used mostly in JR): (a) As an aid to interpretation: Preference must be given to the interpretation that renders it compatible with the Treaties and general principles of law ( Klensch [ 1986] at para. 21); (b) As grounds of review: General principles of law are often invoked in order to obtain the annulment of EU measures (see Article 263(2) TFEU) and also in the framework of preliminary references on validity (see Article 267 TFEU) (c) As rules of law breach of which may give rise to non-contractual liability: (Article 340(2) TFEU, Zuckerfabrik Shoppenstedt )
2. The protection of fundamental h rights in the unionConsider (1) The current system of protection of fundamental human rights set out in the Treaties; (2) The evolution of this principle in the case law of the Court and its application to the review of EU acts and national measures in the sphere of EU law and (3) The EU Charter of Fundamental Rights.
1 2.1 Current Treaty Protection of Fundamental Human Rights Developed nearly entire by Court. Following the impetus given to the protection of fundamental human rights by the Court:
*Article 6 TEU expressly recognised this principle at the time of the signature of the Maastricht Treaty in 1992, amended at Lisbon. Article 2 TEU states that respect for fundamental human rights is one of the foundational values of the EU. Article 7 TEU: Sets out a procedure for sanctioning Member States that commit persistent and serious infringements of rights contrary to the principles guaranteed in Article 6(1) TEU. Article 49 TEU: Any country that wants to join EU must show their commitment to HR. Article 21 TEU on the respect for fundamental human rights in external relations. Most important recent developments : Lisbon has given the HR Charter legally binding effect.
2.2 Evolution of principle of protection of fund HR through COJ case law Two main areas of the case law (1) Cases concerning the use of the principle of protection of fundamental human rights when the Court has reviewed the legality of EU legal acts (e.g. regulations, directives, decisions, etc); (2) Cases concerning the use of the principle when the Court has reviewed the legality of the action of Member States when they act in the sphere of EU Law (e.g. national measures implementing EU measures or national measures derogating from one of the fundamental freedoms set out in the EU Treaty)
2.2.1 Review of EU binding acts (i.e. Regulations, Directives and Decisions) I. Historical evolution Step1: After some initial reluctance in Stork , the Court recognised in Stauder  for the first time that the protection fundamental human rights was a general principle of law protected by the Court of Justice. The principle binds the Institutions of the Union. Step 2: International Handelgesellschaft . The next step was taken in this seminal decision. Facts: Challenged system of deposits that EU Regulation put in place. Argued it was against FHR esp
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