General principles of European Union law
[9] Fundamental rights, as in human rights, were first recognised by the European Court of Justice based on arguments developed by the German Constitutional Court in Stauder v City of Ulm Case 29/69 in relation to a European Community scheme to provide cheap butter to recipients of welfare benefits.
The protection of such rights, whilst inspired by the constitutional traditions common to the member states, must be ensured within the framework of the structure and objectives of the Community."
Therefore, the European Court of Justice cannot uphold measures which are incompatible with fundamental rights recognised and protected in the constitutions of member states.
The European Court of Justice also found that "international treaties for the protection of human rights on which the member states have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law.
There is a general principle of law in all European Union member states against discrimination, and in favour of equal treatment: Kücükdeveci v Swedex GmbH & Co KG.
Individuals "should have the benefit of a clear and precise legal situation enabling them to ascertain the full extent of their rights and, where appropriate, to rely on them before the national courts"; this is not the case where a Member State does not transpose a directive correctly, despite case-law interpreting national legislation in accordance with the directive: Case C-236/95 Commission v Greece.
[17] Where a producer "has been encouraged by a Community measure to suspend the marketing [of his products] for a limited period in the general interest and against payment of a premium he may legitimately expect not to be subject, upon the expiry of his undertaking, to restrictions which specifically affect him precisely because he availed himself of the possibilities offered by the Community provisions": Case 120/86 Mulder v Minister van Landbouw en Visserij.
This is confirmed in Duff: "economic agents cannot legitimately expect that they will not be subject to restrictions arising out of future rules of market or structural policy".
[15] "Although in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected": Case 99/78 Decker v Hauptzollamt Landau.
The misuse of powers test is another significant element of the general principle of legal certainty in European Union law.
[18] The general principle of legal certainty is particularly stringently applied when European Union law imposes financial burdens on private parties.
[19] It was first recognised by the European Court of Justice in Federation Charbonniere de Belgique v High Authority [1954] ECR 245 Case C8/55[20] and in Internationale Handelsgesellschaft v Einfuhr- und Vorratsstelle Getreide [1970] ECR 1125 Case 11/70 the European Advocate General provided an early formulation of the general principle of proportionality in stating that "the individual should not have his freedom of action limited beyond the degree necessary in the public interest".
The general concept of proportionality has since been further developed, notably in R v Minister of Agriculture, Fisheries and Food ex parte Fedesa [1990] ECR 1–4023 Case C-331/88 in which a European directive prohibiting the use of certain hormonal substances in livestock farming was challenged.
In Fedesa the European Court of Justice explained that "it must be states that in matters concerning the common agricultural policy the Community legislature has the discretionary power which corresponds to the political responsibilities given to it by... the Treaty.
"The obligation to purchase at [...] a disproportionate price constituted a discriminatory distribution of the burden of costs between the various agricultural sectors.
“[...] on a proper construction of [Article 34 TFEU], a Member State is not precluded from taking, on the basis of provisions of its domestic legislation, measures against an advertiser in relation to television advertising, provided that those provisions affect in the same way, in law and in fact, the marketing of domestic products and of those from other Member States, are necessary for meeting overriding requirements of general public importance or one of the aims laid down in [Article 36 TFEU], are proportionate for that purpose, and those aims or overriding requirements could not be met by measures less restrictive of intra-Community trade": Case C-34/95 De Agostini.
"The right to property, and likewise the freedom to pursue an economic activity, form part of the general principles of Community law.
The national courts have procedural autonomy: "In the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the right which citizens have from the direct effect of Community law, it being understood that such conditions cannot be less favorable than those relating to similar actions of a domestic nature": Case 33/76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland.
