Skip to main content
SpringerLink
Log in

The Principle of Legal Certainty Based on the Case Law of the European Court of Justice and the Court of First Instance

  • Chapter
The Principle of Legal Certainty in EC Law

Part of the book series: Law and Philosophy Library ((LAPS,volume 64))

Abstract

The principle of legal certainty has been designated as a fundamental principle of EC law.1 In general terms, one might note that the application of the law to a specific situation must be predictable. For example, the principle of legal certainty requires that acts which have been relied on as legal will not turn out to be invalid. On the other hand, the principle of legal certainty is not a compelling legal principle, one to be safeguarded at all costs. It can be outweighed by other legal principles or more momentous legal rules. For example, the ECJ has expressly held that the application of legal certainty must be combined with that of the principle of legality.2

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution
Chapter
USD 29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD 169.00
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
Softcover Book
USD 219.99
Price excludes VAT (USA)
  • Compact, lightweight edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info
Hardcover Book
USD 219.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Preview

Unable to display preview. Download preview PDF.

Unable to display preview. Download preview PDF.

References

  1. See 74/74 CNTA (1975) ECR 533, esp. pp. 548–550 and 95–98/74 & 15 and 100/75 Union Nationale des Coopératives Agricoles de Céréales (1975) ECR 1615, esp. pp. 1635–1639.

    Google Scholar 

  2. See 1/73 Westzucker (1973) ECR 723, 97/76 Merkur (1977) ECR 1063 or 84/78 Tomadini (1979) ECR 1801 in comparison with 104/76 Jansen (1977) ECR 829, esp. p. 840, para. 7. The latter case seems to emphasize that new provisions of a regulation which replaces an older regulation cannot be extended to facts which occurred outside the period covered by the new regulation.

    Google Scholar 

  3. See 88/76 Exportation des Sucres v. Commission (1977) ECR 709, esp. p. 726, paras. 14–18, C-337/88 Società agricola fattoria alimentare (1990) ECR I-1, esp. p.1–18, para. 12 and T-115/94 Opel Austria (1997) ECR II-39, esp. pp. 11–83—II-84.

    Google Scholar 

  4. See the Opinion of A-G Rozès in the Post-clearance Recovery case 212–217/80 Salumi (1981) ECR 2735, esp. p.2755.

    Google Scholar 

  5. See Schermers-Waelbroeck, pp. 59–60 and Joutsamo-Aalto-Kaila-Maunu 2000, pp. 30–31.

    Google Scholar 

  6. See Lamoureux, p. 282 and 7/76 IRCA (1976) ECR 1213, esp. p. 1229, para. 29. The ECJ refused to regard the regulation in question as involving retroactive effect within the true meaning of the term.

    Google Scholar 

  7. See C-137/94 Richardson (1995) ECR I-3407, esp. p. I-3435, para. 38. One might note that the ECJ accepted the argument by A-G Elmer in this respect, concerning which see the p. I - 3421 in particular.

    Google Scholar 

  8. See C-6/90 and C-9/90 Francovich (1991) ECR I-5357, esp. p. I-5415, para. 40 and C-46/93 & C-48/93 Brasserie du Pêcheur & Factortame III (1996) ECR I-1029, esp. p.1–1149, para. 51..

    Google Scholar 

  9. See Schermers-Waelbroeck, pp. 65–66, Schwarze 1992, p. 949 and 81/72 Commission v Council (1973) ECR 575, esp. p. 584, para. 10 or 120/86 Mulder I (1988) ECR 2321, esp. pp. 2345–2353, in which the judgment to be given by a national court depended upon the interpretation and validity of certain Community regulations on the additional levy on milk.

    Google Scholar 

  10. On the “reasonableness” and the so-called Wednesbury test see Bradley-Ewing, p. 773, Craig, p. 581, and Associated Provincial Picture Houses, Limited v Wednesbury Corporation (1948) 1 KB 223, esp. pp. 233–234, in which Lord Greene M.R. gave unreasonableness a substantive meaning. A court may interfere with the exercise of discretion for unreasonableness only when the administrative authority has come to a conclusion “so unreasonable that no reasonable authority could ever have come to it.”

    Google Scholar 

  11. See Schwarze-Laakso-Kuuttiniemi, p. 176 or Usher 1998a, pp. 144–151 and the comments of Judge Sedley J in R v Ministry of Agriculture, ex parte Hamble (Offshore) Fisheries Ltd, (1995) 2 All ER 714, esp. pp. 723–736. Judge Sedley J has referred to the case law of the ECJ and to the commentary contained in Schwarze 1992 with great precision in his judgment.

    Google Scholar 

  12. See Wells and Others v Minister of Housing and Local Government and Another (1967) WLR 1000, esp. pp. 1005–1016 or an example of the subsequent case law Re L(AC) an infant, (1971) AC 3 All ER 743, esp. pp. 748–755.

    Google Scholar 

  13. See Lord Halsbury’s statement in Susannah Sharp v Wakefield and Others (1891) AC 173, esp. p. 179.

    Google Scholar 

  14. See Raitio 1998a, pp. 127–128 and C–357/95 P, ENU (1997) ECR I–1329, esp. pp. I–1381–1–1382, in which a letter signed by the competent commissioner Cardoso e Cunha caused confusion affecting the legitimate expectations of the undertaking in question. In this case the estoppel doctrine or the principle of legitimate expectations proved to be of no use from the viewpoint of the undertaking.

    Google Scholar 

  15. See Schermers-Waelbroeck, p. 66 or the Opinion of A-G Reischl in 31/80 L’Oreal (1980) ECR 3775, esp. p. 3803, in which he states: “[H] aving regard to the principle that legitimate expectation must be upheld, the Commission may depart from the judgment arrived at by its officers only if the factual circumstances change or if its finding was reached on the basis of incorrect information”, and 81/72 Commission y Council (1973) ECR 575, esp. p. 584, para. 10, in which there is an expression “the rule of protection of confidence”.

    Google Scholar 

  16. ibid, esp. pp. 2–3. The limited importance at the Community level can be evaluated, among others, on the basis of Article 3 of the Regulation No. 417/85 and the (dis)comfort letter in question can be based on Article 15(6) of the Regulation No. 17/62, OJ, English Special Edition 1959–1962, p. 87, esp. p. 92.

    Google Scholar 

  17. See OJ, English Special Edition 1959–1962, p. 87, esp. p. 88. The Commission may, before taking a decision under paragraph 1 of Regulation No. 17/62, address the undertakings or associations of undertakings concerning recommendations for termination of the infringement.

    Google Scholar 

  18. See the Automec I case T-64/89 Automec v Commission (1990) ECR II-367, esp. p. II-383, para. 47 and T-37/92 BEUC and NCC (1994) ECR II-285, esp. p. II-304, para. 29 and the relevant provision in OJ, English Special Edition 1963–64, p. 47, esp. p. 48: “Where the Commission, having received an application pursuant to Article 3(2) of Regulation No. 17, considers that on the basis of the information in its possession there are insufficient grounds for granting the application, it shall inform the applicants of its reasons and fix a time-limit for them to submit any further comments in writing.”

    Google Scholar 

  19. See the pleas and judgment of the Stork Amsterdam case compared to the ones in C-357/95 P, ENU (1997) ECR I-1329, esp. pp. I-1381-I-1382, paras. 53–55.

    Google Scholar 

  20. See T-241/97 Stork Amsterdam (2000) ECR II-309, esp. p. II-335, para. 74 and the case law concerning the interpretation of Article 253 EC for example C-121/91 & C-122/91 CT Control and JCT Benelux (1993) ECR I-3873, esp. p. 1–3909, para. 31, T-195/97 Kia Motors and Broeckman Motorships (1998) ECR II-2907, esp. p. II-2921, para. 34 or T-290/97 Mehibas Dordtselaan, (2000) ECR II-15, esp. p. II-48, para. 92.

    Google Scholar 

  21. See Notice on Co-operation between National Courts and the Commission in Applying Articles 85 and 86 EC, OJ No. C 39, 13.2.1993, p. 6 and Notice on co-operation between national courts and the Commission in the State aid field, OJ No. C 312, 23. 11. 1995, p. 8.

    Google Scholar 

  22. See OJ No. C 39, 13.2.1993, p. 6, esp. p. 8, XXVIIIth Report on Competition Policy 1998, esp. pp. 337–357 and Raitio 1999b, esp. p. 408. The national courts have applied Articles 81 and 82 EC especially in two types of actions: actions relating to contracts and actions for damages. In the case of civil law, the defendant may dispute the contractual obligations invoked by the plaintiff on the basis of Article 81(2) EC. The prohibitions contained in Articles 81 and 82 EC are generally relevant in determining whether the conduct which has given rise to the alleged injury is illegal.

    Google Scholar 

  23. See Laakso 1990, pp. 230–235, Tähti, pp. 224–225, Suviranta 1998, pp. 217–220 or Soikkeli, pp. 275–284. In his treatise Laakso has put forward some special provisions of statutory law and a few precedents of the Finnish Supreme Administrative Court (KHO) which, in his view, can be regarded as applications of the principle of protection of legitimate expectations, even if no express reference to it is made in these legal sources. Suviranta, for one, has aptly stated that the reasoning of the Finnish cases often runs without reference to legal concepts or principles, which does not necessarily mean that reasons which on the continental Europe are labelled with certain principles are not well established in the Finnish legal order as well. Soikkeli in turn has referred to the case KHO 6.11.1997/2826 and the novel paragraph 26(2) § of the Finnish law of taxation (verotuslaki, lagen am beskattningsförfarande,477/1998) to illustrate legitimate expectations in the field of Finnish taxation.

    Google Scholar 

  24. See Schwarze 1992, pp. 886–887 about the interpretation of Articles 20 and 28 GG. The principle of good faith (Treu and Glauben) is also closely connected to the principle of legitimate expectations.

    Google Scholar 

  25. See 338/85 Pardini (1988) ECR 2041, esp. p. 2078, paras. 25 and 26, in which there is a formulation “the traders must reasonably expect” in the context of adjustments of monetary compensatory amounts.

    Google Scholar 

  26. ibid, esp. pp. 607–624 and see comments in Borchardt, p. 312, Hartley 1998, pp. 146–147 or Schwarze-Laakso-Kuuttiniemi, pp. 190–191. The decline in strength of French franc in anticipation of its devaluation in early 1969 was one of the factors which eventually ended the leadership of General De Gaulle in French politics. One may also point out that the Mackprang case illustrates the problems of the CAP in the late 1960s.

    Google Scholar 

  27. See Merikoski, p. 165 and 223/85 RSV (1987) ECR 4617, esp. pp. 4655–4660, in which the applicant could successfully rely on legitimate expectations. The lengthy period of time (26 months) that the administrative process based on Article 88 EC (ex-Article 93(2) EC) took in the Commission was one of the factors which contributed to the unusual outcome.

    Google Scholar 

  28. See the Volkswagen case T–132/96 and T–143/96 Freistaat Sachsen and Others v Commission (1999) ECR II–3663, esp. pp. II–3672–11–3771. The Volkswagen case illustrates how the national politics and interests of a Member State may collide with the interests of the EC and internal market especially as far as the state aid is concerned.

    Google Scholar 

  29. See 34/65 Mosthaf (1966) ECR 521, esp. p. 531, in which the ECJ held in the context of staff cases: “Moreover, protection of the certainty of legal positions and relationships implies that the existence of decisions of Community Authorities governing such positions and relationships cannot for ever be called into question, unless there are new and serious reasons for doing so.”

    Google Scholar 

  30. See Kapteyn, p. 481 and an example of a successful challenge based on the misuse of powers 140/82 Walzstahl-Vereinigung (1984) ECR 951, esp. pp. 982–984, paras. 16–21.

    Google Scholar 

  31. See 16 and 17/62 Confédération nationale des producteurs de fruits et légumes (1962) ECR 471, esp. p. 478.

    Google Scholar 

  32. See 160/88 FEDESA (1988) ECR 6399, esp. pp. 6403–6404, paras. 10–15, C–298/89 Gibraltar v Council (1993) ECR I–3605, esp. pp.I–3653–1–3656 or C–10/95 P, Asocarne (1995) ECR I–4149, esp. pp. I–4161—I–4163, paras. 35 – 46. The directives do not fulfil the requirement of “direct and individual concern” and the ECJ has classified them as measures of general application. However, the indirect effect of directives may create rights for individuals which the CFI or ECJ must protect.

    Google Scholar 

  33. See 101/76 KSH (1977) ECR 797, esp. pp. 798–805, in which the facts of the case are described in a relatively open way by the ECJ.

    Google Scholar 

  34. See 26/76 Metro (1977) ECR 1875, esp. pp. 1898–1901, para. 12 in particular, or 210/81 Demo-Studio Schmidt (1983) ECR 3045, esp. pp. 3062–3064, paras. 10–16. According to the ECJ it is in the interests of the satisfactory administration of justice and of the proper application of EC competition law that natural or legal persons who are entitled to request the Commission to find an infringement of Articles 81 and 82 EC (ex-Articles 85 and 86 EC) should be able, if their request is not complied with either wholly or in part, to institute proceedings in order to protect their legitimate interests.

    Google Scholar 

  35. See 191/82 Fediol (1983) ECR 2913, esp. pp. 2929–2936, paras. 30–33 in particular, in which protective measures against subsidization practices on the part of non-member countries were under scrutiny.

    Google Scholar 

  36. See C-152/88 Sofrimport (1990) ECR I-2477, esp. p.1–2509, para. 16 and esp. p. 1–2511, para. 26, in which the protection of legitimate expectations was expressly taken into consideration by the ECJ, because it was mentioned in a regulation relevant to the outcome of the case at hand. One might note, however, that the legitimate expectations were considered in the context of the substance of the case, not in the context of the admissibility. Still, I would presume that the procedural and material part of the decision can not be strictly separated from one another in the heuristics of the case.

    Google Scholar 

  37. ibid., esp. p. 577, in which the decision is described as an agreement as follows: “In the course of its 192nd session, held on 20 and 21 March 1972, the Council, as it is expressed in the `Summary of decisions’ taken by it, `recorded its agreement’ to a text which states `as an experiment and for a period of three years’ a system of measuring the purchasing power of remunerations should be applied, involving a `decision every year in the light of these two indices’.”

    Google Scholar 

  38. See 81/72 Commission IT Council (1973) ECR 575, esp. pp. 587–597 and the case Ellen Street Estates Ltd v Minister of Health (1934) 1 KB 590, which illustrates a principle that an administrative authority to which discretion has been entrusted may not bind itself in advance as to how it will exercise its discretion. As regards the exceptions to this general principle, A-G Warner referred to the case Robertson v Minister of Pensions (1949) KB 277 and stated that “this exception, which is based on estoppel, is however of a very limited scope”.

    Google Scholar 

  39. ibid., and the subsequent British case, Council of Civil Service Unions v Minister for the Civil Service (1984) 3 All ER 935, esp. pp. 936–937. It is noteworthy that the concept of legitimate expectations is employed in the judgment instead of the old British term `estoppel’.

    Google Scholar 

  40. See Schermers-Waelbroeck, pp. 54, 467–469 or Joutsamo-Aalto-Kaila-Maunu 2000, p. 32.

    Google Scholar 

  41. See three months for actions by civil servants against Community institutions in Article 91(3) of Staff Regulations and in the framework of actions under Article 288(2) EC (ex-Article 215(2) EC) 5 years in Article 43 of the EEC Statute.

    Google Scholar 

  42. See two months in Article 230(5) EC (ex-Article 173(5) EC) and one month in Articles 33(3) and 38(2) ECSC. Where the act is an act published in the Official Journal, time runs from the 15th day after publication according to Article 81 (1) of the Rules of Procedure of the ECJ. The period of time is extended automatically by the extension on account of distance, as described in Article 1 of Annex II to the Rules of Procedure.

    Google Scholar 

  43. See a Staff case 25/68 Schertzer (1977) ECR 1729, esp. p. 1741, paras. 19–20. The ECJ referred to the applicant’s difficulties which he experienced in identifying the authority competent to receive his complaint and the uncertainty with regard to the period of notice in question.

    Google Scholar 

  44. See C-248/98 Koninklijke (2000) ECR I-9641, which is one of the cases published in 16 November 2000 concerning cartonboard cartel fines.

    Google Scholar 

Download references

Authors
  1. Juha Raitio
    View author publications

    You can also search for this author in PubMed Google Scholar

Rights and permissions

Reprints and permissions

Copyright information

© 2003 Springer Science+Business Media Dordrecht

About this chapter

Cite this chapter

Raitio, J. (2003). The Principle of Legal Certainty Based on the Case Law of the European Court of Justice and the Court of First Instance. In: The Principle of Legal Certainty in EC Law. Law and Philosophy Library, vol 64. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-0353-6_6

Download citation

  • DOI: https://doi.org/10.1007/978-94-017-0353-6_6

  • Publisher Name: Springer, Dordrecht

  • Print ISBN: 978-90-481-6264-2

  • Online ISBN: 978-94-017-0353-6

  • eBook Packages: Springer Book Archive

Publish with us

Policies and ethics

Search

Navigation