Skip to main content

Lund University Publications

LUND UNIVERSITY LIBRARIES

General Principles and the Many Faces of Coherence: Between Law and Ideology in the European Union

Hettne, Jörgen LU ; Groussot, Xavier LU and Pétursson, Gunnar Thor (2016) In Lund University Legal Research Paper Series
Abstract
In the light of the constitutional legal developments by the Court of Justice of the European Union (hereinafter referred to as ‘the Court of Justice’ or ‘the CJEU’) as regards protection of fundamental rights, subsequently accepted by the authors of the Treaties (see Article 6.3 TEU), the Court can today be correctly described as the constitutional court of the EU. Against this backdrop, the CJEU must take its constitutional responsibility seriously and strive for a coherent legal development of EU law. It is important to keep in mind, that the case law of the CJEU must be applied in all courts and tribunals across 28 Member States. This means that its decisions must provide appropriate specify for the effective resolution of the dispute... (More)
In the light of the constitutional legal developments by the Court of Justice of the European Union (hereinafter referred to as ‘the Court of Justice’ or ‘the CJEU’) as regards protection of fundamental rights, subsequently accepted by the authors of the Treaties (see Article 6.3 TEU), the Court can today be correctly described as the constitutional court of the EU. Against this backdrop, the CJEU must take its constitutional responsibility seriously and strive for a coherent legal development of EU law. It is important to keep in mind, that the case law of the CJEU must be applied in all courts and tribunals across 28 Member States. This means that its decisions must provide appropriate specify for the effective resolution of the dispute in front of it and articulate workable general principles for massively widespread subsequent application. This is important also when the Court develops principles of administrative law which, in addition to the development of a sound culture of administration within the Union, have an impact on the application of national administrative law in situations governed by EU substantive law. But the general principles have many faces: they are not only substantive they are also structural, i.e. responding to the need of the system. What is the dividing line between substantive and structural principles?

This contribution aims at discussing this specific issue in the aftermath of Opinion 2/13, which is in our view essential to understand the relationship between the various types of principles in the EU legal order. To do this, we will look first at the issue of ‘substantive coherence’. An issue connected to the reach and function of the morally laden principles. We will see that coherence can take many forms when it comes to general principles. The second section will focus on the study of a specific substantive principle: good administration. This principle is now codified in Article 41 of the EU Charter of Fundamental Rights. It constitutes a perfect example to study the relationship between substantive and structural principles since this right embodies in its very core elements of the (structural) principle of effectiveness. The last section will consider the issue of ‘ideological coherence’ by using the Opinion 2/13 as a starting point of discussion. This Opinion relies heavily on effectiveness and mutual trust in order to justify the rejection of the accession agreement to the European Convention on Human Rights (the ECHR). (Less)
Please use this url to cite or link to this publication:
author
; and
organization
publishing date
type
Working paper/Preprint
publication status
published
subject
keywords
general principles, mutual trust, good administration, coherence, Opinion 2/13, general principles of EU law, effectiveness, Melloni, Tuori
in
Lund University Legal Research Paper Series
issue
no 1/2016
pages
27 pages
publisher
Lund University
language
English
LU publication?
yes
id
616bd8fb-5850-4f14-a2e2-697e80f44fb6
date added to LUP
2016-09-01 18:34:43
date last changed
2022-09-26 11:52:36
@misc{616bd8fb-5850-4f14-a2e2-697e80f44fb6,
  abstract     = {{In the light of the constitutional legal developments by the Court of Justice of the European Union (hereinafter referred to as ‘the Court of Justice’ or ‘the CJEU’) as regards protection of fundamental rights, subsequently accepted by the authors of the Treaties (see Article 6.3 TEU), the Court can today be correctly described as the constitutional court of the EU. Against this backdrop, the CJEU must take its constitutional responsibility seriously and strive for a coherent legal development of EU law. It is important to keep in mind, that the case law of the CJEU must be applied in all courts and tribunals across 28 Member States. This means that its decisions must provide appropriate specify for the effective resolution of the dispute in front of it and articulate workable general principles for massively widespread subsequent application. This is important also when the Court develops principles of administrative law which, in addition to the development of a sound culture of administration within the Union, have an impact on the application of national administrative law in situations governed by EU substantive law. But the general principles have many faces: they are not only substantive they are also structural, i.e. responding to the need of the system. What is the dividing line between substantive and structural principles? <br/><br/>This contribution aims at discussing this specific issue in the aftermath of Opinion 2/13, which is in our view essential to understand the relationship between the various types of principles in the EU legal order. To do this, we will look first at the issue of ‘substantive coherence’. An issue connected to the reach and function of the morally laden principles. We will see that coherence can take many forms when it comes to general principles. The second section will focus on the study of a specific substantive principle: good administration. This principle is now codified in Article 41 of the EU Charter of Fundamental Rights. It constitutes a perfect example to study the relationship between substantive and structural principles since this right embodies in its very core elements of the (structural) principle of effectiveness. The last section will consider the issue of ‘ideological coherence’ by using the Opinion 2/13 as a starting point of discussion. This Opinion relies heavily on effectiveness and mutual trust in order to justify the rejection of the accession agreement to the European Convention on Human Rights (the ECHR).}},
  author       = {{Hettne, Jörgen and Groussot, Xavier and Pétursson, Gunnar Thor}},
  keywords     = {{general principles; mutual trust; good administration; coherence; Opinion 2/13; general principles of EU law; effectiveness; Melloni; Tuori}},
  language     = {{eng}},
  month        = {{04}},
  note         = {{Working Paper}},
  number       = {{no 1/2016}},
  publisher    = {{Lund University}},
  series       = {{Lund University Legal Research Paper Series}},
  title        = {{General Principles and the Many Faces of Coherence: Between Law and Ideology in the European Union}},
  year         = {{2016}},
}