Please, Handle with Care! Some Considerations on the Approach of the European Court of Justice to the Direct Effect of the General Principles of EU Law

Since its inception, the European Court of Justice has conceived its mandate as encompassing the competence to identify and use in adjudication unwritten general principles of law, by drawing them, in particular, from the legal orders of the Member States or international law instruments. In order to safeguard the flexibility of this source of law, the Court has not engaged in an in-depth investigation of the very concept of “general principle of European Union law”, the methodology for the identification of general principles and the reconstruction of their content, their scope of application and their effects. The chapter focuses on one specific issue that is in need of further conceptual clarification: the capacity of general principles (or at least some of them) to be relied on by individuals before national courts to have conflicting national law set aside (direct effect), in particular in disputes vis-à-vis other individuals (direct horizontal effect). The relevant case law of the European Court of Justice is highly ambiguous if not even obscure. For this reason, it has attracted widespread criticisms. Accordingly, the main purpose of the chapter is to understand whether that case law is more in need of argumentative clarity or of solid normative justifications. Two main challenges are identified and discussed: the “technical” challenge (which criteria a general principle must satisfy in order for it to have direct horizontal effect?) and the “dogmatic” challenge (which is the normative foundation of direct horizontal effect of the general principles of European Union law?). According to the Author, as regards the “technical challenge”, the case law of the Court is more in need of argumentative clarity than legal reasons. A more recent judgment (AMS) sheds some light in this respect. Concerning the “dogmatic challenge”, after almost thirty years, the words written by Pierre Pescatore commenting the first judgment on direct effect still go straight to the core of the issue: “[I]t was … a highly political idea, drawn from a perception of the constitutional system of the Community, which is at the basis of Van Gend & Loos and which continues to inspire the whole doctrine flowing from it”. The case law on the horizontal effect of general principles of EU law fits with the narrative of the European Court of Justice as the motor of European integration. This role of the Court is a constant in the almost sixty-year life of the EU, and involves legal reasoning, judicial policy, and politics. For this same reason, the need for transparency and responsibility is all the more compelling. A clearer discourse on the rationale—or the vision of the Union—that underpins direct horizontal effect (of the general principles, but also of the provisions of the Treaties and the Charter) would be welcome. Not only as a matter important to the legitimacy of the Court, but also for the sake of the individuals that may benefit of, or be affected by, directly effective EU law provisions.