The General Principles of European Union Law in the Light of the Public-Private Distinction
PRINCIPLES IN EUROPEAN LAW - PRINCIPES EN DROIT EUROPEEN, Schulthess, S. Besson/P. Pichonnaz, eds., pp. 233-256, 2011
33 Pages Posted: 22 Dec 2011 Last revised: 24 Sep 2012
Date Written: March 19, 2011
Abstract
In this article, the author addresses the role of the general principles of EU law in the light of the publicprivate distinction. After an attempt to shed light upon possible claims underlying the conventional publicprivatedistinction, it will be shown that EU law has never followed this distinction, but rather ignored the private law aspects. Nonetheless, the (general) principles (of EU law) are increasingly touching upon contract, company or labour law. In order to complement the traditional public law approach and accommodate horizontal relationships, it will prove helpful to clarify the functions and the personal scope of the general principles of EU law. It will be argued that the problem is in the first place one rooted in the ontology of legal principles which is linked to the respect of the principle of conferral and a lex specialis approach. To what extent the reluctance to confer direct effect to principles will be unequivocally overcome in the future by arguments based on the hierarchy of norms, linked to (re) distributional concerns and the desire for an effective protection of freestanding fundamental rights, including in horizontal relationships, remains to be seen.
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