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Legal Certainty and Legitimate Expectation in the Eu Law Interdisplinary Journal of Research and Development “Alexander Moisiu“ University, Durrës, Albania Vol (I), No.2, 2014 ____________________________________________________________________________________________________ RESEARCH ARTICLE LEGAL CERTAINTY AND LEGITIMATE EXPECTATION IN THE EU LAW Hysni AHMETAJ Department of Justice, Faculty of Political and Juridical Science, “Alexander Moisiu” University, Durrës, Albania Corresponding author:e-mail: [email protected] Abstract European Union law is a legal system which has its own institution of adopting legislative acts, governing bodies and judicial review guarantying the operating of the system under its principles. According to the founding treaties European Union operating is based on its principles as well as on the common constitutional traditions of the Member States which form the general principles of the Union Law. All the constitutions of the Member States are based on Rule of Law; subsequently the general principles of the Union Law derived from rule of law. Legal certainty and legitimate expectation is a central issue and important principle of the rule of law. Subject of this paper will be analysing the implementation of the Legal certainty and legitimate expectation as general principle of the EU law, through the case law developed by Court of Justice of the European Union as the institution which has the exclusive competence to ensure that in the interpretation and application of the Treaties the law is observed and the sole competence to declare an act of an EU institution to be invalid. Analysing the application of this principle will help understanding better the rule of law as main criteria for Albania in its path toward the EU integration. Key words: Rule of law; European Union Law; Judicial Review; Court of Justice of the European Union; European Integration; Approximation of legislation. Introduction established and many others were restructured. The Albanian political and legal system is based on rule of process of the reforming the institutional set up has law. However, due to many factors the rule of law is been in aligning with the other fundamental not fully achieved especially in the legal system. The commitment under the SAA; the approximation of EU Albanian legal system as well as its institutional setup legislation into Albanian legal system. For the EU has been in continuous change in order to accomplish legislative acts the approximation of legislation in the requirements of the rule of law. On the other hand Albania has succeeded to satisfy the requirements of in the framework of the EU integration as one of its the process; most difficult has been implementing these main political goals, Albania is required by all EU laws effectively in compliance with the rule of law reports and bilateral documents in this process to requirements. The Albanian administrative bodies and strengthen the law enforcement in align with the best courts, often failed to satisfy the essential requirements practices of the EU. Stabilization Association of rule of law, due to the rapid changes in their mission Agreement (SAA), the most important instrument in and structures and the lack of the tradition. this process, among others, serves also as a In this regard, the general principles of the rule of law commitment for the changes in the institutional In this regard the principle of legal certainty and framework of Albania. The institutional framework of legitimate expectation provides an important assertion Albania has changed a lot for this purpose since the of the rule of law that ‘those subject to the law must starting the negotiations on SAA. The main focus on know what the law is so as to plan their action these changes has been the distinction between accordingly’1. Being general principles of law, legal regulatory functions and policy function. In order to have regulatory system independent from the policy 1 making institutions, many new institutions were See: T. Tridimas, The General Principles of EC Law (OUP, 2nd edn., 2006) 20 Legal certainty and legitimate….. H. Ahmetaj __________________________________________________________________________________________________ certainty and legitimate expectation jurisprudence in the EU are developed by Court of Justice of the Legal Certainty European Union in its case law2 and is part of the EU In general, for the principle of Legal Certainty is that legal order. In the hierarchy of the norms ‘general the law must provide its subjects with the ability to principles’ sit below the constituent treaties and may regulate their conduct inasmuch to protect themselves be used not only for interpreting legislative and from the arbitrary use of the state power. It is also implementing acts but also as ground for review of the known as the maximum predictability of the legality of such acts3. administration’s behavior. Legal certainty requires that Court of Justice of the European Union has the duty to "there be no doubt about the law applicable at a given secure the uniformity and coherence in the application time in a given area and, consequently, as to the lawful of the EU law. Therefore the CJEU is in charge to or unlawful nature of certain acts or conduct”6. safeguard the Rule of Law within the union including Legal certainty as central requirement for the rule of the legislative acts, so called soft laws, implementing law has been protected since the very beginning of the acts and all the activity of the EU bodies and agencies. integration process of Europe. The first case law in the In this regard the CJEU has jurisdiction in three main issue was in joint cases 42/59 and 49/59, SNUPAT v areas. First, infringement proceedings, means the High Authority (1961) ECR 109. But the most accurate competence to rule over action brought against a definition was given in Heinrich: Member State for failing to fulfil their obligations Community rules enable those concerned to know under the Union law4. Second, the power of judicial precisely the extent of the obligations which are review of EU legislative and executive acts; under the imposed on them. Individuals must be able to ascertain article 230 of TFEU it can review the legality of all unequivocally what their rights and obligations are and acts producing legal effects. And third, upon the take steps accordingly7. request of the national courts of Member States it gives It has two dimensions; the temporal one mainly ruling on cases that relate on any aspect of EU law. focused on retroactivity and the clarity of law which Under the article 263 (2) Judicial review shall be enables the subject of EU law to understand their rights available also for infringement of the treaties or any and obligations. rule of law relating to their application or misuse of Temporal dimension and the prohibition of powers. retroactivity set a Principle of legal certainty and legitimate expectations prohibition for the measures to take effects prior their is developed in the case law by the CJEU under the publication. This is a worldwide known principle and power of the judicial review of EU acts. General is also confirmed by the Court of Justice since 1979 in principles of rule of law serve as guide to the the case Tomadini v Administrazione delle Finanze interpretation of the EU law, and constitute ground for dello Stato8. It is a simple principle meaning that the review of the EU law including implementing acts. effects arrived prior to the publication of the act should Given the paucity of provisions in the original Treaties, not be regulated by the later legal acts. However it is the Court of Justice has established general principles not considered to be retroactive if the act regulates of Community law by resorting to a creative method of retroactively the future effects of the situations existing ‘evaluative comparison’ of the laws of the Member before the publication of the act in question. States to fill gaps in Community law5. In Regina v Kirk9 , Kent Kirk the master of a Danish Although mentioned together in substance the legal shipping vessel “Sandkirk”, sailed from Denmark and certainty and the legitimate expectation are two commenced fishing on 6 January with the 12 miles separate principles. While legal certainty require that coastline of the United Kindom. Following Mr. Kirk individuals must be able to ascertain what their rights was condemned by UK court for fishing on and obligations are, and is strongly based upon the 06/01/1983, within 12 miles limited British lines in temporal dimension and retroactivity, the legitimate contravention with the Sea Fish (Specified United expectation is rooted in the concept of the good faith Kingdom Water) ( Prohibition of fishing) Order 1982. meaning that an operator induced to take an action the Mr. Kirk submitted that UK was not entitled to bring administration should not withdraw from, so the into force the so called Sea Fish 1982 Order. operator suffers loss. The outline of the legislative situation was that by Council Regulation No 101/76 was established the 2 See: Alexander H Turk, Judicial Review in the EU Law, Elgar Europian Law, Massachusetts, 2009. 3 SEE: Paul Craig, Grainne de Burca, EU Law, Text, Cases and 6See: Case C-331/88 R v MAFF, ex parte Fedesa (1990) ECR I- Materials, Fifth Edition, Oxford University Press, New York 2011. 4023 P. 109. 7 Case: C- 345/06, Heinrich, Judgment of 10 March 2009, para. 44. 4 Treaty on functioning of the European Union, article 226 8Case: C- 84/78 Tomadini v Administrazione delle Finanze dello 5See: Alexander H Turk, Judicial Review in the EU Law, Elgar Stato (1979) ECR 1801. European Law, Massachusetts, 2009, page 129. 9Case: C -63/83 R v Kent Kirk (1984) ECR 2689. 21 Interdisplinary Journal of Research and Development “Alexander Moisiu“ University, Durrës, Albania Vol (I), No.2, 2014 ___________________________________________________________________________________________________ …the Member States shall ensure equal conditions of whose observance is ensured by the Court of access and terms of use of fishing grounds … for all Justice”11.
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