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

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?

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).

Keywords: general principles, mutual trust, good administration, coherence, Opinion 2/13, general principles of EU law, effectiveness, Melloni, Tuori

JEL Classification: K00