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Research Handbook on General Principles in EU Law
Constructing Legal Orders in Europe
9781784712372 Edward Elgar Publishing
This Research Handbook offers a comprehensive study of existing and emerging general principles of EU law by scholars from a wide range of expertise in EU law, international law, legal theory and different areas of substantive law. It explores the theory, content, role and function of general principles in EU law to better understand general principles as a mechanism for the substantive openness of the EU legal order as well as for cross-fertilization and coherence of legal orders. Their potential as a tool to manage the interaction of legal regimes and orders is a particular focal point and will make this Handbook a must-read for scholars of EU Law.
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Critical Acclaim
Contributors
Contents
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This innovative Research Handbook explores judicial, scholarly, and theoretical approaches to general principles in the EU legal order against the backdrop of considerable uncertainty about the concept. It does so by analysing both a diverse range of general principles in discrete areas of EU law (‘zooming in’) and external, wider perspectives on the notion of a general principle of law from international law, comparative law, and legal theory (‘zooming out’).
Rather than arguing for a single closed definition of what a general principle of law in the EU legal order must look like, this Research Handbook identifies conceptual, theoretical, and legal parameters within which the doctrine of general principles can be meaningfully discussed and contested in EU law. The different analytical layers built into this Research Handbook shed light on whether general principles are defined by the different contexts in which they apply; whether general principles are in practice leading to more coherence between different areas of EU law; and what challenges they create for the EU legal order. Chapters thus contribute to a more refined methodological and doctrinal understanding of general principles in the EU legal order.
Opening up new spaces to critically reflect on the concept, role, significance, and limitations of general principles, the Research Handbook on General Principles in EU Law will be a key resource for scholars and students of European law, politics, and theory of integration and internationalisation.
Rather than arguing for a single closed definition of what a general principle of law in the EU legal order must look like, this Research Handbook identifies conceptual, theoretical, and legal parameters within which the doctrine of general principles can be meaningfully discussed and contested in EU law. The different analytical layers built into this Research Handbook shed light on whether general principles are defined by the different contexts in which they apply; whether general principles are in practice leading to more coherence between different areas of EU law; and what challenges they create for the EU legal order. Chapters thus contribute to a more refined methodological and doctrinal understanding of general principles in the EU legal order.
Opening up new spaces to critically reflect on the concept, role, significance, and limitations of general principles, the Research Handbook on General Principles in EU Law will be a key resource for scholars and students of European law, politics, and theory of integration and internationalisation.
Critical Acclaim
‘The appeal of general principles lies in their capacity to provide a systematic framework according to which to develop a legal order. And yet does this not suggest an abstract, even illusory, claim to coherence? Where anyway do general principles come from? This book does a wonderfully rich job of navigating the many contexts in which general principles play a role in EU law, and provides a critical account of their several functions.’
– Stephen Weatherill, University of Oxford, UK
‘This is an appealing and comprehensive volume with an attractive line-up of authors and topics on a subject which is of perennial interest to European Union lawyers, namely the general principles of EU law. Touching on key questions of the relationship between national constitutional orders and the EU legal order, the role of the Court of Justice, and the sources of fundamental rights in EU law, the book is likely to be of considerable interest and utility to students and academics of European public law.’
– Gráinne de Búrca, NYU School of Law, US
– Stephen Weatherill, University of Oxford, UK
‘This is an appealing and comprehensive volume with an attractive line-up of authors and topics on a subject which is of perennial interest to European Union lawyers, namely the general principles of EU law. Touching on key questions of the relationship between national constitutional orders and the EU legal order, the role of the Court of Justice, and the sources of fundamental rights in EU law, the book is likely to be of considerable interest and utility to students and academics of European public law.’
– Gráinne de Búrca, NYU School of Law, US
Contributors
Contributors: Eirik Bjorge, Graham Butler, Monica Claes, Paul Craig, Sylvia de Mars, Simona Demková, Iris Goldner Lang, Xavier Groussot, Ester Herlin-Karnell, Max Hjärtström, Herwig C.H. Hofmann, Marcus Klamert, Theodore Konstadinides, Dora Kostakopoulou, Nicole Lazzerini, Johan Lindholm, Giuseppe Martinico, Lucinda Miller, Violeta Moreno-Lax, Federico M. Mucciarelli, Jule Mulder, Päivi J. Neuvonen, Julian Nowag, Alexander Orakhelashvili, Sébastien Platon, Clara Rauchegger, Cristina Sáenz Pérez, Jukka Snell, Karsten Engsig Sørensen, Oana Stefan, Anne Thies, Christa Tobler, Wouter van Ballegooij, Aristi Volou, Andreas von Arnauld, Ramses A. Wessel, Ewa Zelasna, Jan Zglinski, Katja S. Ziegler
Contents
Contents:
Introduction to the Research Handbook on General Principles in EU Law 1
Katja S. Ziegler, Päivi J. Neuvonen and Violeta Moreno-Lax
PART I FOUNDATIONS AND PERSPECTIVES FROM
INTERNATIONAL AND COMPARATIVE LAW
1 General principles in the EU legal order: past, present and future directions 7
Päivi J. Neuvonen and Katja S. Ziegler
2 General principles of law: treaty, historical, and normative foundations 25
Paul Craig
3 Harmonisation through general principles of law 40
Andreas von Arnauld
4 The use of substantive international law by the EU judiciary 62
Alexander Orakhelashvili
5 General principles of EU law and comparative law 82
Giuseppe Martinico
PART II COMPETENCES
6 The equality of the Member States 99
Monica Claes
7 Loyalty and solidarity as general principles 118
Marcus Klamert
8 The principle of institutional balance: rise, eclipse and revival of
a general principle of EU constitutional law 136
Sébastien Platon
PART III STRUCTURAL AND FORMAL CONSTITUTIONAL PRINCIPLES
9 Four functions of the principle of primacy in the post-Lisbon case law
of the European Court of Justice 157
Clara Rauchegger
10 The horizontal application of the general principles of EU law: nothing
less than direct effect 173
Nicole Lazzerini
11 The principle of proportionality in EU law and its domestic application:
ni tout à fait le même, ni tout à fait un autre 191
Eirik Bjorge and Jan Zglinski
12 General principles of procedural justice 209
Simona Demková and Herwig C.H. Hofmann
13 Autonomy of the EU legal order – a general principle? On the risks of
normative functionalism and selective constitutionalisation 227
Violeta Moreno-Lax and Katja S. Ziegler
PART IV CONSTITUTIONAL FOUNDING VALUES
14 Liberty and democracy as fundamental constitutional principles of EU law 254
Dora Kostakopoulou
15 The general principle of equality as a value commitment in EU law:
scope, limits, and challenges 267
Päivi J. Neuvonen
16 The rule of law as the constitutional foundation of the general principles
of EU law 287
Theodore Konstadinides
17 General principles: taking rights seriously and waving the rule-of-law
stick in the European Union 308
Xavier Groussot and Johan Lindholm
18 Human rights and general principles: beyond the EU Charter of
Fundamental Rights 327
Katja S. Ziegler and Aristi Volou
PART V EQUAL TREATMENT AND NON-DISCRIMINATION
19 General principles of equal treatment in EU non-discrimination law 350
Christa Tobler
20 General principle of equality between men and women 366
Jule Mulder
PART VI FREE MOVEMENT AND INTERNAL MARKET
21 General principles in free movement law: applicability and application 386
Jukka Snell
22 The prohibition of abuse of EU law: a special general principle 401
Graham Butler and Karsten Engsig Sørensen
23 General principles of EU law in EU antitrust 422
Max Hjärtström and Julian Nowag
24 General principles in EU state aid law 440
Oana Stefan
25 General principles in EU public procurement law 461
Sylvia de Mars
PART VII PRIVATE LAW
26 The many (general) principles of EU private law 480
Lucinda Miller
27 General principles of EU corporate and insolvency law 498
Federico M. Mucciarelli
PART VIII AREA OF FREEDOM, SECURITY AND JUSTICE
28 General principles and EU criminal law 512
Ester Herlin-Karnell
29 Mutual trust as a driver of integration: which way forward? 529
Cristina Sáenz Pérez
30 Data protection and general principles of EU law 544
Wouter van Ballegooij
31 The child’s best interests as a gap filler and expander of EU law in
internal situations 562
Iris Goldner Lang
PART IX EXTERNAL RELATIONS
32 EU general principles in external relations: shaping the EU as a global
actor and dealing with its accountability 575
Anne Thies
33 The external dimension of the principle of conferral: division of
competences in international trade 592
Ewa Żelazna
34 General principles in EU common foreign and security policy 606
Ramses A. Wessel
Index
Introduction to the Research Handbook on General Principles in EU Law 1
Katja S. Ziegler, Päivi J. Neuvonen and Violeta Moreno-Lax
PART I FOUNDATIONS AND PERSPECTIVES FROM
INTERNATIONAL AND COMPARATIVE LAW
1 General principles in the EU legal order: past, present and future directions 7
Päivi J. Neuvonen and Katja S. Ziegler
2 General principles of law: treaty, historical, and normative foundations 25
Paul Craig
3 Harmonisation through general principles of law 40
Andreas von Arnauld
4 The use of substantive international law by the EU judiciary 62
Alexander Orakhelashvili
5 General principles of EU law and comparative law 82
Giuseppe Martinico
PART II COMPETENCES
6 The equality of the Member States 99
Monica Claes
7 Loyalty and solidarity as general principles 118
Marcus Klamert
8 The principle of institutional balance: rise, eclipse and revival of
a general principle of EU constitutional law 136
Sébastien Platon
PART III STRUCTURAL AND FORMAL CONSTITUTIONAL PRINCIPLES
9 Four functions of the principle of primacy in the post-Lisbon case law
of the European Court of Justice 157
Clara Rauchegger
10 The horizontal application of the general principles of EU law: nothing
less than direct effect 173
Nicole Lazzerini
11 The principle of proportionality in EU law and its domestic application:
ni tout à fait le même, ni tout à fait un autre 191
Eirik Bjorge and Jan Zglinski
12 General principles of procedural justice 209
Simona Demková and Herwig C.H. Hofmann
13 Autonomy of the EU legal order – a general principle? On the risks of
normative functionalism and selective constitutionalisation 227
Violeta Moreno-Lax and Katja S. Ziegler
PART IV CONSTITUTIONAL FOUNDING VALUES
14 Liberty and democracy as fundamental constitutional principles of EU law 254
Dora Kostakopoulou
15 The general principle of equality as a value commitment in EU law:
scope, limits, and challenges 267
Päivi J. Neuvonen
16 The rule of law as the constitutional foundation of the general principles
of EU law 287
Theodore Konstadinides
17 General principles: taking rights seriously and waving the rule-of-law
stick in the European Union 308
Xavier Groussot and Johan Lindholm
18 Human rights and general principles: beyond the EU Charter of
Fundamental Rights 327
Katja S. Ziegler and Aristi Volou
PART V EQUAL TREATMENT AND NON-DISCRIMINATION
19 General principles of equal treatment in EU non-discrimination law 350
Christa Tobler
20 General principle of equality between men and women 366
Jule Mulder
PART VI FREE MOVEMENT AND INTERNAL MARKET
21 General principles in free movement law: applicability and application 386
Jukka Snell
22 The prohibition of abuse of EU law: a special general principle 401
Graham Butler and Karsten Engsig Sørensen
23 General principles of EU law in EU antitrust 422
Max Hjärtström and Julian Nowag
24 General principles in EU state aid law 440
Oana Stefan
25 General principles in EU public procurement law 461
Sylvia de Mars
PART VII PRIVATE LAW
26 The many (general) principles of EU private law 480
Lucinda Miller
27 General principles of EU corporate and insolvency law 498
Federico M. Mucciarelli
PART VIII AREA OF FREEDOM, SECURITY AND JUSTICE
28 General principles and EU criminal law 512
Ester Herlin-Karnell
29 Mutual trust as a driver of integration: which way forward? 529
Cristina Sáenz Pérez
30 Data protection and general principles of EU law 544
Wouter van Ballegooij
31 The child’s best interests as a gap filler and expander of EU law in
internal situations 562
Iris Goldner Lang
PART IX EXTERNAL RELATIONS
32 EU general principles in external relations: shaping the EU as a global
actor and dealing with its accountability 575
Anne Thies
33 The external dimension of the principle of conferral: division of
competences in international trade 592
Ewa Żelazna
34 General principles in EU common foreign and security policy 606
Ramses A. Wessel
Index
