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Hello again.
This session with me will be dedicated
to the Principle of Legal Certainty,
as it is expressed in EU law.
To start us off,
I think we have to ask ourselves what is
implied by this term, legal certainty.
Well, in the EU context,
the principle of legal certainty requires,
in particular,
that rules should be clear and precise.
So that individuals might ascertain
unequivocally what their rights and
obligations are, and
also may take steps accordingly.
In other words, legal certainty requires
a sufficient degree of foreseeability and
also guarantees against arbitrariness
within the legal system.
A problem one can see from a legal
certainty perspective is that
EU rights and obligations very often
are dependent on a national system.
And that this national system might not
be in line with the provisions of EU law.
For example, a new piece of
EU legislation may provide a right which
can be interpreted in different ways.
A members state might then in
good faith have opted for a too
restrictive interpretation of this right,
and adapted the national law accordingly.
Such a situation can quite obviously
create uncertainty on the part of
the individual about what his or
her legal rights actually are.
Well, from what we discussed in my last
session, we know that the primacy of
the EU law is certainly one tool that can
be used when faced with dissonance between
on the one hand, the EU provision, and
on the other hand, national provisions.
The principle primacy will
then dictate that national
provisions are interpreted as far as
possible to comply with the EU provision.
And also, if there is a specific national
legal rule standing in the way for
correct enforcement of EU right,
primacy might even dictate that this
national measure should be disapplied.
So, throw it out the window.
In this sense,
legal certainty is promoted,
as we then know that EU law
in principle should prevail.
We don't have to second guess
if it's national or EU law.
So, it will prevail when there's
contradiction between EU law and
national law.
But then the question is, would primacy
be the only tool in the EU toolbox,
to deal with a situation
of legal uncertainty due to
these differences between EU and
national law?
Just like the principle of equality and
non-discrimination, which you heard
about from Eduardo in your last session,
the principle of legal certainty
is a general principle of EU law.
Legal certainty is even called
a fundamental principle of union law,
reflecting the fact that the EU claims
to be a legal order built on the rule of
law and that no such legal
order with self-respect could
survive without adhering to
the principle of legal certainty.
Having the status of a general
principle of EU law, this exce,
essentially means that the legal certainty
can be used in two different ways.
Both as a tool for interpretation,
and as a standard of judicial review.
This means that EU law,
as a whole, should be
interpreted in a way that is compatible
with the principle of legal certainty.
That is, in a way that is
foreseeable to the individuals, and
also to the member states concerned.
As for the role of the principle of
legal certainty in judicial review,
on the other hand,
it can be used as a benchmark.
Both when assessing the validity
of EU law itself, and
when assessing the compatibility
of national law with EU law.
So for example, if an EU provision would
introduce a rule with
a retroactive penalty.
That is a penalty for
an act that was not in any way subject
to a penalty when the act was committed.
This retroactive penalty would be deemed
contrary to principle of legal certainty,
and the EU provision would be held
to be invalid on this ground.
In a similar manner, national law that
would fall within the scope of EU law,
that is,
the law that in some way overlaps with
the EU legal sphere, could be deemed to be
incompatible with EU law if it does not
respect the principle of legal certainty.
As an example of how the principle of
legal certainty can come into play in
practice, I would like to introduce you to
the ECJ's classic judgement from
the 1976 in the Defrenne case.
You'll find the full
judgement in your material.
But the basic gist of the case
is that the Treaty of Rome,
that has been enforced since
the foundation of the European community,
contained a provision which obliged
the member state to ensure that men and
women got equal pay for equal work.
Ms. Defrenne, an air hostess working for
the Belgium Aviation Company, Sabena, she
brought an action against her employer,
on the grounds that her male
colleagues got higher wages than her.
The National Court decided to
send a question to the ECJ,
asking whether the treaty provision
on equal pay, which was directed to
the member states, could also bind
a private company such as Sabena.
The ECJ gave a positive response.
Sabena was, in fact,
obliged to give their male and
female workers equal pay for equal work.
The court thereby established that
the principle of equal pay between men and
women had horizontal direct effect.
So as between private parties.
As you can see on this timeline,
the treaty provision on equal pay had been
enforced for about 18 years when the ECJ's
judgment in Defrenne was handed down.
As a general rule, the ECJ's
interpretation of EU law is ex tunc,
which means that the provision
on equal pay should have
been understood as having
horizontal direct effect all along.
However, this was a huge shock for
the private employers around Europe,
who thought that the treaty provision
at hand only bound the states.
As the outcome reached by the court was so
unexpected, and
that the decision could potentially have
disastrous economic effects on companies
across Europe, the ECJ decided,
in the name of legal certainty, to limit
the retroactive effects of its judgment.
Ms. Defrenne and everyone who had already
initiated proceedings at the time of
the judgment, they could get compensation
for loss of wages prior to this date.
However, no one who would initiate
proceedings after the eighth of April,
1976, could get compensation for
discrimination that had taken place
prior to the ECJ's Defrenne judgement.
Before we finish off this
session on legal certainty, I
would like you to think about and also try
to answer this following quiz question.
The answer to this question brings us
back to how legal certainty is often
assured in the EU context, by focusing
on the uniform application of EU law.
Since it would create great legal
uncertainty if EU law was disapplied or
declared invalid in some member states but
not in others, even national
courts of the lowest levels are bound to
send a question for preliminary ruling
if they have doubts about the validity
of EU law, on whatever grounds.
So as you see,
there are actually many tools in
the EU toolbox to ensure legal
certainty and foreseeability.
Thank you for listening, and
enjoy the rest of the course.
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