Part IV - Principles of the Legal Community
Published online by Cambridge University Press: 19 November 2022
Summary
A community of States and peoples that has been established for an unlimited period (Article 53 TEU) requires more than a large number of pointillist legal provisions arranged in fragmentary instruments. There must be abstract guidelines which allow that community to adjust to unforeseen situations when a political compromise cannot be achieved. Some general principles have the main purpose of preserving the community as a community based not only on renewed political efforts, but upon law. They are intended to forestall the disintegration of the Union by ensuring that it continues to operate through legal mechanisms. They concern the Union viewed as a legal community; the most important of these principles are: equivalence and effectiveness (Chapter XVIII); proportionality (Chapter XIX); legal certainty (Chapter XX); the prohibition of relying on EU law for abusive or fraudulent ends (Chapter XXI); as well as the duty of sincere cooperation and mutual recognition (Chapter XXII).
EQUIVALENCE AND EFFECTIVENESS
The fragmentary character of the law of the Union requires its coordination with the laws of the Member States in multiple instances. Since the administration of justice is in the hands of the Member States, i.e. decentralised, it has been a major task for the Court of Justice to provide guidance to national courts concerning the application of EU law and its coordination with their national laws. It is now settled case law that,
“in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive directly from Community law, provided that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and that they do not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness)”.
- Type
- Chapter
- Information
- EU Private LawAnatomy of a Growing Legal Order, pp. 325 - 396Publisher: IntersentiaPrint publication year: 2021