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THE PRINCIPLE OF LEGAL CERTAINTY IN EC LAW Law and Philosophy Library VOLUME 64 Managing Editors FRANCISCO J. LAPORTA, Department of Law, Autonomous University of Madrid, Spain ALEKSANDER PECZENIK, Department of Law, University of Lund, Sweden FREDERICK SCHAUER, John F. Kennedy School of Government, Harvard University, Cambridge, Mass., U.S.A. Former Managing Editors AULIS AARNIO, MICHEAL D. BAYLESt, CONRAD D. JOHNSONt, ALAN MABE Editorial Advisory Board AULIS AARNIO, Research Institute for Social Sciences, University of Tampere, Finland ZENON BANKOWSKI, Centre for Criminology and the Social and Philosophical Study of Law, University of Edinburgh PAOLO COMANDUCCI, University of Genoa, Italy ERNESTO GARZON VALDES, Institut fur Politikwissenschaft, Johannes Gutenberg Universitiit Mainz JOHN KLEINIG, Department of Law, Police Science and Criminal Justice Administration, John Jay College of Criminal Justice, City University of New York NEIL MacCORMICK, European Parliament, Brussels, Belgium WOJCIECH SADURSKI, European University Institute, Department of Law, Florence, Italy ROBERT S. SUMMERS, School of Law, Cornell University CARL WELLMAN, Department of Philosophy, Washington University THE PRINCIPLE OF LEGAL CERTAINTY IN EC LAW by JUHA RAITIO SPRINGER-SCIENCE+BUSINESS MEDIA, B.V. A C.I.P Catalogue record for this book is available from the Library of Congress. ISBN 978-90-481-6264-2 ISBN 978-94-017-0353-6 (eBook) DOI 10.1007/978-94-017-0353-6 Printed on acid1ree paper All Rights Reserved © 2003 Springer Science+Business Media Dordrecht Originally published by Kluwer Academic Publishers in 2003 Softcover reprint ofthe hardcover Ist edition 2003 No part of this publication may be reproduced Of utilized in any form or by any means, electronic or mechanical, inc1uding photocopying, recording or by any information storage and retrieval system, without written permission from the copyright owner. TABLE OF CONTENTS Acknowledgements xiii Abbreviations xvii Tables xxi PART 1. EC, HISTORY, INTEGRATION, EC LAW, LEGAL CERTAINTY Ch. 1 Introductory Remarks 3 1.1 How Can the Principle of Legal Certainty be Studied in the Context of EC Law? 3 1.1.1 What is 'EC Law'? 5 1.1.2 Approaching the 'EC Law' from Different Angles 8 1.2 Ways of Approaching 'The Principle of Legal Certainty'? 10 1.3 Objections and Refutations 11 Ch.2 Some Remarks about the History of the European Community 15 2.1 The Genesis of the European Communities: the ECSC, EEC and Euratom Treaties 15 2.2 European Integration and the Intergovernmental Tendencies in the 1960s and 1970s 22 2.3 The Idea of an Internal Market and the Single European Act 33 2.4 Towards the Era After the Cold War and the Treaty on European Union 39 2.5 The Treaty of Amsterdam and Beyond 50 Ch. 3 Conclusions: Remarks about Theories of Integration, European Community and EC Law 59 3.1 Theories of European Integration: Nugent's Summary 59 3.2 European Community: Siedentop's View on European Democracy and the European Community 62 3.2.1 Why Constitutions and the Conception of the State are Important? 63 v TABLE OF CONTENTS 3.2.2 The Three Models of State. 64 3.2.3 Creating an Open Political Class and a Rights-based Political Culture in Europe - Mission Impossible ? 66 3.3 EC Law: The Jack-in-the-Box Theory of EC Law by Wilhelms son and Features of the Finnish Discussion 73 PART 2. EC LAW, PRINCIPLES OF EC LAW, GENERAL PRINCIPLES, LEGAL CERTAINTY Ch.4 The Sources, Objectives and Principles of EC Law 83 4.1 The Sources and Objectives of EC Law 83 4.1.1 The Relevant Sources of EC Law; Primary Law,Secondary Legislation and Case Law of the European Courts 83 4.1.2 The Objectives of the European Community 90 4.2 The Three Categories of the Principles Applied by the European Courts 94 4.2.1 Principles Derived from the EC Treaty 95 4.2.1.1 Principles of Loyalty, Proportionality,Non- discrimination and Equality 96 4.2.1.2 Principles of Legality, Subsidiarity and Flexibility 98 4.2.2 General Principles of EC law 101 4.2.3 Principles Based on the Case Law of the European Court of Justice 105 4.2.3.1 The Supremacy of EC Law 106 4.2.3.2 The Direct Effect and the Direct Applicability of EC Law 108 4.2.3.3 The Indirect Effect of EC Law and the State Liability 111 4.3 Problems in the Categorization of Principles and the Literal Approach 116 Ch.5 Legal Certainty in the Framework of Other General Principles ofEC Law 125 5.1 The Term 'Legal Certainty' in EC Law and the Intertwining of General Principles - A Literal Point of View 125 5.2 The Term 'Rule of Law', Legality and the Requirements of Democracy 130 5.2.1 The Terms 'Rule of Law' and 'Legal Certainty' in the Case Law of the ECJ and CFI 130 5.2.2 An Attempt to Interpret the Rule of Law 134 vi TABLE OF CONTENTS 5.3 The Principle of Revocability of Illegal Measures, the Term 'Deni de Justice' 146 5.4 The Good administration, Right to a Fair Hearing, Misuse of Powers, Proportionality and Openness. 148 5.5 The Concepts of Non Bis In Idem, Lis Pendens and Nulla Poena Sine Lege 156 5.6 'Access to Justice', the Right to an Effective Judicial Remedy and Legal Professional Privilege 160 5.7 Examples of the Material General Principles of EC Law 165 5.8 Fundamental Rights, Human Rights, Equality and the General Principles of EC Law 170 5.8.1 An Introduction to the History of the Case Law Concerning the Fundamental Rights and Human Rights in EC Law 170 5.8.2 Discrimination in the Context of Sexual Minorities as an Example of Equality, Non-discrimination and Human Rights in EC Law 176 Ch.6 The Principle of Legal Certainty Based on the Case Law of the European Court of Justice and the Court of First Instance 187 6.1 The Principle of Non-Retroactivity 187 6.1.1 The Concept of Retroactivity and the Immediate Application of EC Law 187 6.1.2 The Retroactivity of EC Legislation 190 6.1.3 The Retroactivity of ECl's Judgments, Especially the Preliminary Rulings under Article 234 EC 196 6.2 The Principle of Protection of Legitimate Expectations 200 6.2.1 The Conceptual Differences in Civil Law and Common Law Countries: The British and German Administrative Law as an Example. 200 6.2.1.1 The Estoppel Doctrine and Legitimate Expectations in English Administrative Law 200 6.2.1.2 The Estoppel Doctrine and Legitimate Expectations in EC Law: the Stork Amsterdam Case 204 6.2.1.3 Annulment of an Administrative Act in Germany and 'Vertrauenschutz' 214 6.2.2 Annulment of an Administrative Act and the Protection of Legitimate Expectations in EC law: a Case Study 217 6.2.2.1 Maenpaa's and Waelbroeck's Criteria Regarding the Protection of Legitimate Expectations 218 VB TABLE OF CONTENTS 6.2.2.2 Pinpointing the Set of Questions for the Protection of Legitimate Expectations under EC Law and the Actions of Annulment 220 6.2.2.3 The Revocation of Lawful Administrative Acts Conferring Benefits 227 6.2.2.4 The Withdrawal of Unlawful Administrative Acts Conferring Benefits 230 6.2.2.5 Special Characteristics of the Annulment of Administrative Measures Imposing Burdens 237 6.2.2.6 The Locus Standi of Article 230 EC, the Protection of Legitimate Expectations and Legal Certainty 240 6.2.3 Protection of Acquired Rights and Legitimate Expectations 252 6.3 Periods of Limitation and Legal Certainty 256 6.3.1 Prescribed Procedural Time-Limits and Indefinitely Delayed Actions Especially in the Framework of Articles 230, 232 and 234 Ee. 256 6.3.2 Sanctions Based on EC Law, Recovery of Charges and the Periods of Limitation 260 PART 3. NORMS, INTERPRETATION, LEGAL CERTAINTY Ch.7 Beyond Literalism - Conceptions and Theoretical Remarks about Norms, Validity, Interpretation, Judicial Activism and Legal Certainty 267 7.1 Theories of Norms - Ronald Dworkin's Theory of Law as a Starting-point 267 7.1.1 The Background to Dworkin's Essay 'The Model of Rules 1': a Challenge to Positivism and Utilitarianism 268 7.1.1.1 Hans Kelsen, the 'Grundnorm' and 'Stufenbau' 269 7.1.1.2 H.L.A. Hart and the 'Rule of Recognition' 272 7.1.2 Some Features of Dworkin's Theory of Law 275 7.1.2.1 Standards 275 7.1.2.2 Concept of Rights, the One Right Answer Thesis and Judicial Activism 281 7.1.3 Criticism against Dworkin's Theory of Law and Further Developments 285 7.1.3.1 The Difference between Rules and Principles 285 7.1.3.2 The One Right Answer Thesis and Values 288 7.1.3.3 The Difference between Principles and Policies 290 7.1.4 Siltala's Contribution: Summers' Levels of Legal Formality Combined with Dworkin's Theory of Law 294 viii TABLE OF CONTENTS 7.1.5 Norms, Interpretation and Justification in the Context of EC Law 298 7.1.5.1 The Emphasis on 'Proto-Norms' 298 7.1.5.2 Concepts and Conceptions 300 7.1.5.3 The Levels of Justification 301 7.2 The Judicial Argumentation and Interpretative Arguments 304 7.2.1 The Rational Reconstruction of Argumentation by the Bielefeld Circle 304 7.2.2 Basic Types of Legal Arguments 307 7.2.3 Patterns of Justification and the Logic of the Judicial Decisions as a Whole 311 7.2.4 The Interaction of Interpretative Arguments and Underlying Values 316 7.2.5 Justificatory Style of the Judicial Decisions 318 7.2.6 Justification in the Preliminary Rulings of the ECJ: Structure, Style and the Basic Arguments of the Decision 321 7.2.6.1 General Remarks about the Structure and Style of the Preliminary Rulings 321 7.2.6.2 Linguistic Arguments and the Problem of Translations in EC Law 324 7.2.6.3 Systemic, Teleological and Transcategorical Arguments in the ECJ 331 7.3 Legal Certainty 337 7.3.1 Concept of Legal Certainty - A Nordic Perspective 337 7.3.2 Expectation of Legal Certainty 340 Ch.S Predictability and Acceptability
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