Court-Made Sources of EU Law
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General Principles

Law derived from ECJ case law.  The ECJ derive the existence of general principles from Art. 220 EC, which provides that the ECJ has a general duty to ensure that the law is observed.  Such principles are useful in JR cases to aid the interpretation of treaties and to base tortious actions upon.  General principles fall into two main headings, procedural propriety and fundamental rights.

Procedural Propriety

The right to be heard - Transocean Marine Paint.

Legitimate expectations - CNTA v. Commission; R v. Captain Kirk - legislation cannot be used retroactively in criminal proceedings.

Proportionality, i.e. the means used to achieve something must be justified by the importance of the aim.  It is important to realise that the intensity of the scrutiny will vary here according to the type of challenge but, in essence, proportionality involves the suitability/appropriateness of the measure, its necessity and whether end justifies the means.  Similar to Wednesbury reasonableness principles.

In ex parte Man (Sugar) Ltd., it was held that the loss of a £1 million deposit for paperwork 4 hours late was excessive.  In Commission v. UK (Turkeys), the ECJ held that banning the importation of turkeys was disproportionate to protecting public health.  The court was also clearly suspicious that the UK was attempting to avoid competition from France pre-Christmas for the turkey market.

Other Notes in this Category

1. Competence and Legal Basis
2. Court-Made Sources of EU Law
3. Flexible/Variable Geometry
4. Fundamental Rights
5. General Legislative Processes
6. Legislation
7. Subsidiarity

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