Abstract
The principle of legal certainty has not been defined either in primary law or in the secondary legislation of the European Community. Often linked with other principles, legal certainty is a multi-faceted principle which has not been defined with any degree of precision in the legal literature either.1 On the whole, it is questionable whether it can be defined at all. On the grounds of the case law of the ECJ, legal certainty can be classified as a general principle of EC law. In the following presentation the case law of the European Courts has been employed as a legal source while studying legal certainty in EC law.
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References
See Barling-Davies-Stratford, p. 89, according to which: “The principle of legal certainty (occasionally referred to as `legal security’), and the closely related principles of legitimate expectation and non-retroactivity, provide useful tools with which to challenge measures which are uncertain or unexpected in their introduction or effects. They concern linked concepts, and are therefore often dealt with together in the literature and case law.”
See Usher 1998a, p. 52.
Since the information in CELEX is constantly changing, one can verify of the results and establish the current situation easier by referring to the CELEX, http://europa.eu.int/cj/ index.htm.
The principle of legal certainty is relatively often used as an argument nowadays, because 37 of those 69 cases, about 54%, were given in the 1990s.
On Begriffsjurisprudence, see Aarnio 1989, pp. 115–124.
See cases KKO 1998: 98, KKO 1997:203, KKO 1996:119, KKO 1996:17 and KKO 1995:215 (query on 21 March 2000).
See judgment of the KHO 28.12.1998/2953 compared with C-9/97 and C-118/97 Jokela and Pitkäranta (1998) ECR I-6267, esp. p. I-6304, para. 50.
See C-9/97 and C-118/97 Jokela and Pitkäranta (1998) ECR 1–6267, esp. p. I-6303, para. 48 and C-63/93 Fintan Duff (1995) ECR I-569, esp. p. I-607, para. 20.
See Frände, pp. 162–164.
See Peczenik 1995, p. 89, in which he lists some typical features of legal certainty in Swedish courts’ practice, but he does not base his further studies concerning the concept of legal certainty on that case law.
See Arnull 1990, pp. 2–5, Geddes, pp. 105–111, Steiner, pp. 61–75, Usher 1998a, pp. 12–120, Weatherill 1994, pp. 33–44. In the British literature the general principles of law are relatively often regarded as protecting the individual.
See Schermers-Waelbroeck, pp. 52–69 in comparison with Joutsamo-Aalto-Kaila-Maunu 2000, pp. 29–33. In the Finnish legal literature, Joutsamo has referred to Schermers and Waelbroeck in his approach to legal certainty.
See 112/77 Töpfer (1978) ECR 1019, esp. pp. 1032–1033, paras 18, 19 and 212–217/80 (1981) Salumi ECR 2735, esp. p. 2751, paras 10.
See 23/68 Klomp (1969) ECR 43, esp. p. 50 and 10/78 Belbouab (1978) ECR 1915, esp. p. 1924–1925.
See 98/78 Racke (1979) ECR 69, esp. p. 84, para 15 and 212–217/80 (1981) Salumi ECR 2735, esp. p. 2751, paras 9–10.
See the Steel Subsidies case 59/70 Netherlands v Commission (1971) ECR 639, esp. p. 653, paras. 15–19.
See 66/74 Farrauto (1975) ECR 157, esp. p. 162, para 6.
See Arnull 1990, p. 3, Craig-de Búrca, pp. 349–356, Mäenpää, pp. 221–234, Steiner, pp. 67–69, Toth 1978 or Usher 1998a, pp. 52–71.
See C-260/91 and C-261/91 Diversinte and Iberlacta (1993) ECR 1–1885, esp. p. 1–1911.
See Usher 1998a, p. 53 and Steiner, p. 68.
See Hartley 1998, p. 143, Kisker, p. 24 and A-G Roemers opinion in case 1/73 Westzucker (1973) ECR 723, p. 739.
See Hartley 1998, pp. 142–143.
See Tuori 1998, p. 1009. In his article he points out that EC law is not an independent field of law, because it hardly can be systematized in the way the traditional fields of law have been systematized in the past. I think that this kind of scepticism concerning the EC law’s internal coherence is generalisation wide of the mark.
See Kuhn 1970, pp. 35–42, esp. p. 36: “Though intrinsic value is no criterion for a puzzle, the assured existence of a solution is.”
See Searle 1999, pp. 158–160.
The term `rule of law’ is mentioned in the index of 39 decisions of the CFI or ECJ and somewhere in the text of 132 decisions of the ECJ and 46 decisions of the CFI according to the CELEX database on 3 March 2000. The result is illustrative only.
See T-572/93 Odigitria (1995) ECR II-2025.
The query on 16 March 2000 to the Celex database `rule within 5 of law and legal certainty and typdoc(a)’ gave 12 cases of the CFI as a result for the period 1955–1995. The query `rule within 5 of law and legal certainty and typdoc(j)’ resulted in 20 cases of the ECJ in the same period. The results indicate how many cases there are in which the terms `rule of law’ and `legal certainty’ are both mentioned somewhere in the text of the case. The query `summary (legal certainty) and summary (rule within 5 of law)’ resulted in only five cases, namely the cases 13/61, C-314/91, T-572/93, C-312/93, and C-430/93. In the light of the table above one might note that only in the case T-572/93 are both terms employed in the index and summary. To be more precise, the actual terms used are `a superior rule of law’ and `legal certainty’, which illustrates a flaw in the search method. The result is not illogical, though, because if the term is in the summary of the case this does not necessarily mean that it should be in the index as well.
See 13/61 Bosch (1962) ECR 89, C-314/91 Weber (1993) ECR I-1093, C-312/93 Peterbroeck (1995) ECR I-4599 or 430/93 van Schijndel (1995) ECR I-4705. For example, in the Weber case the ECJ has expressly stated that the EEC is based on the rule of law and that neither its Member States nor its institutions can avoid reviewing the question whether the measures adopted by them are in conformity with the Treaty.
According to the CELEX database, there are only three cases before the accession of the UK in which the term `rule of law’ is mentioned in the index, namely the cases 5/71 Schöppenstedt (1971) ECR 975, esp. p.984, 108/63 Merlini (1965) ECR 1, esp. p.9 and 8/55 Fédéchar (1955) ECR 292, esp. p. 299. There are not more than 17 cases in which the term `rule of law’ is mentioned somewhere in the text of the decision of the ECJ before 1973, but one should note that the three cases mentioned above are included.
See 108/63 Merlini (1965) ECR 1.
See C-312/93 Peterbroeck (1995) ECR I-4599, esp. p.1–4600 or C-430/93 and C-431/93 van Schijndel (1995) ECR I-4705, esp. p. I-4706.
See 5/71 Schöppenstedt (1971) ECR 975.
See 59/72 Wünsche Handelsgesellschaft (1973) ECR 791.
See 20/88 Roquette frères (1989) ECR 1553, esp. p. 1554 and C-152/88 Sofrimport (1990) ECR I-2477.
See C-104/89 and C-37/90 Mulder (1992) ECR I-3061 and C-282/90 Vreugdenhill (1992) ECR I-1937.
See 5/71 Schöppenstedt (1971) ECR 975, 59/72 Wünsche Handelsgesellschaft (1973) ECR 791, 20/88 Roquette frères (1989) ECR 1553, C-152/88 Sofrimport (1989) ECR I-2477, C-104/89 and C-37/90 Mulder (1992) ECR I-3061 and C-282/90 Vreugdenhill (1992) ECR I-1937.
On the competence of the CFI, see Joutsamo-Aalto-Kaila-Maunu 2000, pp. 177–178, 253.
See Klami 1989, p. 74.
See Craig-de Búrca, pp. 518–519.
See 294/83 `Les Verts’ (1986) ECR 1339, esp. p. 1365, para. 23, 314/85 Foto-Frost (1987) ECR 4199, esp. p. 4231, para. 16, C-2/88 Imm., Zwartfeld (1990) ECR I-3365, esp. p. I-3372, para. 16, Opinion 1/91, (1991) ECR I-6079, esp. p.1–6102, para. 21 or C-314/91 Weber (1993) ECR 1–1093, esp. p. I-1109, para. 8.
See Mackenzie Stuart 1977, pp. 1–27, esp. p. 2: “[T] o speak of Community law as a `legal order’ may risk confusion with law and order’ and that it would be better rather to invoke the well-known expression `rule of law’.” or Rasmussen 1998, pp. 45–46.
See 8/55 Fédéchar (1955) ECR 292, esp. p. 299, in which the ECJ has stated: “[I]n accordance with a generally accepted rule of law such an indirect reaction by the High Authority to illegal action on the part of undertakings must be in proportion to the scale of that action.”
See Brownlie, pp. 213–214.
According to novel Article 6(1) TEU “the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States”. The ex-Article F(1) TEU in which only “the principles of democracy” was mentioned is thus repealed by the Amsterdam Treaty. I think this shows the importance of human rights in the context of the rule of law in EC law.
One might point out in this context that, according to Article 4 EC (ex-Article 3a EC), the ecomomic policy of the EC and its Member States is to be conducted “in accordance with the principle of an open market economy with free competition.”
On the Age of Enlightenment in Britain, see Harvie, pp. 470–517.
On the the classical English conception of the rule of law, see Dicey, pp. 183–205.
See MacCormick 1999, p. 44 and Wade-Forsyth, p. 27.
On the current developments of the British Constitution, see Brazier, pp. 96–128 or Elliott, pp. 129–158.
See Weber 1905, pp. 47–92. Weber has stressed the importance of Luther’s conception of calling (Beruf’), which gave a certain positive valuation and religious significance of routine activity in the world.
See Siedentop, pp. 160–165, 193–195 and 210. Siedentop has employed Weberian ideas in his recent study only in part, because Weber emphasized the significance of Protestantism more than Christianity in general. Siedentop’s argument is to a great extent based on the Christian insistence that the quality of personal intentions is more important than any fixed social rules. According to Siedentop, rule-following (the Hebraic `law’) was downgraded in favour of action governed by conscience in Christian Faith. Our access to the nature of things is presumed to be through conscience and personal judgment rather than through membership of any group. The latter assumption in turn is the final justification for a democratic society, which is organised to respect the equality of all its members. In European societies the legal norms have usually been defined in terms of rights and obligations rather than the special characteristics of groups.
See O. Hood Phillips, p. 33.
See Weber 1971, p. 76.
See Harvie, p. 474.
On the administration of England, Scotland, Wales and Northern-Ireland, see Brazier, pp. 117–123.
See Siedentop, pp. 73–75 or Slapper-Kelly, p. 13.
For an example of the indirect effect in English courts, see the case Webb IT Emo Air Cargo (UK) Ltd. (No. 2) (1995) 1 WLR. 1454, esp. pp. 1455–1460.
See C-87/90, C-88/90 and C-89/90 Verholen and Others (1991) ECR I-3757, esp. p. I-3789, paras. 15–16 and C-72/95 Kraaijeveld (1996) ECR I-5403, esp. p. 1–5453, paras. 60–61.
See Elliott, pp. 151–152.
See Wade-Forsyth, pp. 24–27.
See Collins, pp. 68–69.
See Raz, p. 217. The rule of law applies to judges primarily in their duty to apply the law. 65 See Hart, pp. 155–184 or Weber 1968, pp. 656–657.
See Dworkin 1980, pp. 259–287.
See Weber 1968, pp. 656–657.
See Collins, p. 69 and Honoré, pp. 1–21.
See Raz, p. 212.
ibid., pp. 214–219.
Professor, MEP Neil MacCormick is famous for his `Institutional theory of law’ co-authored by Ota Weinberger, which can hardly be described as purely natural law theory. Collins’ two-fold division of classical schools of legal theory may not be accurate enough in contemporary legal theory, but it serves as a sort of starting point for further studies.
See MacCormick 1999, pp. 28–29. The word `subject’ does not refer merely to a `citizen’ in this context.
See R. v. Ponting (1985) Crim. L.R., pp. 318–321.
See MacCormick 1999, pp. 29–30.
ibid., p. 33. An alternative approach would be that the interest of a democratic state is that ministers who are members of an elected government and answerable to an elected parliament should be accorded obedience and loyalty by their civil servants. In the end, the question of the rule of law relates to the question of democracy as well.
ibid., pp. 29–33.
ibid., pp. 38–39.
On the requirements of (liberal) democracy and the rule of law see Article 6(1) TEU (ex-Article F(1) TEU), Beetham-Lord, pp. 5–11, Collins, pp. 67–82 or MacCormick 1997, pp. 365–371.
See recent cases T-105/95 WWF UK v Commission (1997) ECR 11–313, esp. p. II-338, para. 42 or T-174/95 Svenska Journalistförbundet (1998) ECR II-2289, esp. p. II-2311, para. 61 and esp. p. II-2322, para. 106 or T-14/98 Hautala (1999) ECR II-2489, which may suffice to illustrate the Nordic tendency to emphasize openness in various circumstances.
See Freeman, pp. 139–141, Locke, ch. XIII, pp. 281–290, Klami 1990, pp. 84–85 and Slapper-Kelly, pp. 9–27.
See MacCormick 1999, pp. 39, 41–42.
I cannot help wondering whether the described incident during the era of the Conservative Government chaired by PM Thatcher might be considered as resembling the secrecy and cronyism in Santer’s Commission in 1998–1999. The Commission had to resign as a consequence of information given to the European Parliament by Paul van Buitenen, a former employee of the Commission.
See Cappelletti, pp. 57–113 or Raitio 1996, p. 361.
MacCormick 1999, pp. 44–45.
See Fuller, pp. 33–94.
ibid., p. 186, in which he has stated: “If I were asked, then, to discern one central indisputable principle of what may be called substantive natural law — Natural Law in capital letters — I would find it in the injunction: Open up, maintain, and preserve the integrity of the channels of communication by which men convey to one another what they perceive, feel and desire.”
On the Kelsenian concept of Rechtstaat in this context, see MacCormick 1999, pp. 40–44, esp. p. 43.
ibid., pp. 29, 46–47. Having in mind Fuller’s and MacCormick’s theoretical contribution described above the rule of law requires such matters as openness in decision-making.
ibid., p. 45. According to him, the question whether or not conduct actually has been conformable to law “has to be resolved under constraints of due process and natural justice”. MacCormick has not specified what natural justice in this context means, unless it can be understood in the Fullerian sense described above. One might consider that natural justice implies a demand of acceptability in judicial decision-making. I have not used the term natural justice in this context, because I find that the demand of acceptability in law is not accepted only by those, who emphasize natural justice.
See Raz, pp. 210–229.
See MacCormick 1999, p. 46.
See Monge v. Beebe Rubber Company (1974) 316 A. 2d 549, esp. p. 551 or Ford Motor Company v. Amalgamated Union of Engineering and Foundry Workers (1969) 2 Q.B. 303.
See Roe v. Wade (1973) 410 U.S. 113.
See Wallersteiner y Moir (No 2), (1975) 1 Q.B. 373.
See Collins, pp. 69–81, esp. pp. 74–76.
See MacCormick 1997, p. 369.
See Unger 1982–83, pp. 561–675.
See Collins, pp. 71 and 79. On p. 71 he has stated: “Given that the legislature lacks credibility as a pure system of democratic control, it becomes acceptable to recognize that other institutions of government, like the courts, may equally claim authority derived from democratic input, even though that input is weak and incomplete. In other words, the courts may respond to democratic choice without carrying out surveys of public opinion. They can listen to the views of pressure groups and other sources of informed opinion, just like members of the legislature.”, or “Instead of the courts being exclusively directed by the ideal of the rule of law to maintain the existing order of power and wealth, they should recognize that their decisions should also be legitimated by the consent of the community, and this requirement has the potential to disrupt the established distributive patterns.”
ibid., p. 80.
See Raz, pp. 216–217.
See Van Roermund, pp. 368–370.
See Beetham-Lord, pp. 22–23, 26–29 and Lehtomaki, p. 115.
See Joutsamo 1979, pp. 34–35.
See 7/56 & 3–7/57 Algera (1957) ECR 39, esp. pp. 54–56 or Rec. de la CECA (1957), Vol. III, p. 81, esp. pp. 114–116.
See the preamble of the EU Treaty, in which the rule of law has been mentioned in the context of the principles of liberty, democracy and respect for human rights and the Article 6 EU, in which the rule of law is designated as one of the principles on which the EU is founded.
See 7/56 & 3–7/57 Algera (1957) ECR 39, esp. p. 55 or Rec. de la CECA (1957), Vol. III, p. 81, esp. pp. 115, in which the ECJ stated: “La Cour, sous peine de commettre un déni de justice, est donc obligée de le résoudre en s’inspirant des régies reconnues par les législations, la doctrine et la jurisprudence des pays membres.” The term `denial of justice’ is also mentioned in the context of Article 230 EC (ex-Article 173 EC) in case 294/83 `Les Verts’ (1986) ECR 1339, esp. p. 1364, para. 21.
ibid, esp. p. 56 and esp. pp. 115–116, respectively.
On the French concept of `déni de justice’, its history and its significance, see Favoreu, esp. p. 2.
See David, pp. 199–202.
On the the French term `excés de pouvoir’, see the Opinion of A-G Lagrange in 3/54 ASSIDER (1954–56) ECR 63, esp. p. 75, in which he states: “[P]roceedings for excés de pouvoir played a predominant part in the drafting of the Treaty”, and a little further on he adds that three of the four traditional grounds for proceedings for excés de pouvoir are lack of competence, infringement of an essential procedural requirement and misuse of powers, which is a reference to Article 230 EC (ex-Article 173 EC).
See David, esp. p. 201.
See Opinion of A-G Lagrange in 3/54 ASSIDER (1954–56) ECR 63, esp. p. 77.
See 32/62 Alvis (1963) ECR 49, esp. p. 55.
ibid., and the French version Rec. (1963), Vol. IX, p.99, esp. p. 114, in which the terms `saine justice’ and `bonne administration’ are mentioned by the ECJ.
See 17/74 Transocean Marine Paint Association (1974) ECR 1063, esp. pp. 1079–1080, para. 15.
See C-49/88 Al-Jubail Fertilizer (1991) ECR I-3187, esp. p. 1–3241, para. 6.
See 23/80 Grasselli (1980) ECR 3709, esp. p. 3720, para. 19 or C-170/89 BEUC v. Commission (1991) ECR 1–5709, esp. pp. I-5741— I-5743.
See the Articles 2 and 4 of the Regulation No. 99/63, OJ, English Special Edition 1963–64, p. 47, esp. pp. 47–48, Article 19 of the Regulation No. 17/62, OJ, English Special Edition 1959–62, p. 87, esp. p.92 and 17/74 Transocean Marine Paint Association (1974) ECR 1063, esp. pp. 1078–1079.
See 17/74 Transocean Marine Paint Association (1974) ECR 1063, esp. p. 1080.
See the preamble of Regulation No. 17/62, OJ, English Special Edition 1959–62, p. 87, in which there is the statement: “Whereas undertakings concerned must be accorded the right to be heard by the Commission, third parties whose interests may be affected by a decision must be given the opportunity of submitting their comments beforehand, and it must be ensured that wide publicity is given to decisions taken” and the Article 19 of the Regulation No. 17/62, p. 92.
See 85/76 Hoffmann-La Roche (1979) ECR 461, esp. p. 511, para. 9 or 100–103/80 Musique Diffusion (1983) ECR 1825, esp. p. 1880, para. 10.
See Joutsamo 1979, pp. 34–35.
For a comparative analysis see the Opinion of A-G Lagrange in 3/54 ASSIDER (1954–56) ECR 63, esp. pp. 74–85.
ibid., esp. p. 85.
See Articles 33 and 36 ECSC as well as 9/56 Meroni (1957–58) ECR 133, esp. p. 140, in which the ECJ stated the conditions under which a private applicant affected by the decision or recommendation of the ECSC can contest their legality: “That provision of Article 36 should not be regarded as a special rule, applicable only in the case of pecuniary sanctions and periodic penalty payments, but as the application of a general principle, applied by Article 36 to the particular case of an action in which the Court has unlimited jurisdiction.”
See Schermers-Waelbroeck, p. 262 or the Opinion of A-G Lagrange in 3/54 ASSIDER (1954–56) ECR 63, esp. p. 85.
See Kapteyn, p. 464.
The original version of the ECSC Treaty is in French only.
See the designation `classic’ in the Opinion of A-G Lagrange in 8/55 Fédéchar (1954–56) ECR 245, esp. p. 272.
See Boulouis — Chevallier, pp. 357–361, 8/57 Haut Fourneaux (1958–59) ECR 245, esp. p.254, 3 and 4/64 Chambre Syndicale de la Sidérurgie Française (1965) ECR 441, esp. pp. 454–455 and the Opinion of A-G Roemer, p. 459.
See C-331/88 Fedesa (1990) ECR I-4023, esp. p. I-4065, para. 23.
See 140,146, 221 and 226/82 Thyssen (1984) ECR 951, esp. p. 985, para. 27, in which there is a reference to 8/57 Haut Fourneaux (1958–59) ECR 245 or 69/83 Lux (1984) ECR 2447, esp. p.2465, para. 30, in which there is a reference to 18 and 35/65 Gutmann (1966) ECR 103.
See C-331/88 Fedesa (1990) ECR I-4023, esp. p. I-4065, para. 24.
See C-157/96 National Farmers’ Union (1998) ECR I-2211, esp. p.1–2254, para. 45.
See 8/57 Hauts Fourneaux (1958–59) ECR 245, esp. p. 255.
See Schermers-Waelbroeck, p. 219 and the Opinion of A-G Lagrange in 8/55 Fédéchar (1954–56) ECR 245, esp. p. 272, in which Lagrange states: “That assumes, first of all, that the authority in guestion has a power and that it is discretionary, at least within certain limits. First, if it has no such power it cannot misuse it in relation to its lawful purpose, and, secondly, if its power is conferred under such conditions that it is legally bound to exercise it in one particular way and not in another, the question of misuse of powers cannot arise.”
See 9/56 Meroni (1957–58) ECR 133, esp. p. 154 or 10/56 Meroni (1957–58) ECR 157, esp. pp. 168–171.
See Hartley 1998, p. 417 and 105/75 Giuffrida (1976) ECR 1395, esp. p. 1403, para. 11.
See 69/83 Lux (1984) ECR 2447.
ibid., esp. pp. 2466–2467.
See C-331/88 Fedesa (1990) ECR I-4023, esp. p. 1–4066, paras. 29–30.
See Joutsamo-Aalto-Kaila-Maunu 2000, pp. 44–45, Bull. EC 12–1992, pp. 12–18, Bull. EC 10–1993, pp. 118–120 and the Article 253 EC (ex-Article 190 EC).
See OJ No. L 46, 18.2.1994, p. 58 and C-174/98 P and C-189/98 P Netherlands and van der Wal (2000) ECR I-1.
See 181/84 Man (Sugar), (1985) ECR 2889, esp. p. 2905, para. 29.
See OJ No. L 187, 12.7.1983, p. 5, esp. p. 7.
See 181/84 Man (Sugar), (1985) ECR 2889, esp. pp.2891–2892 (the Opinion of A-G Mancini).
See 11/70 Internationale Handelsgesellschaft (1970) ECR 1125, esp. p. 1137, para. 23.
See 181/84 Man (Sugar), (1985) ECR 2889, esp. p. 2899, para. 5.
ibid., esp. p. 2903, para. 20 and p. 2993 (the Opinion of A-G Mancini) and 122/78 Buitoni v FORMA (1979) ECR 677, esp. pp. 685–686.
ibid., esp. p. 2906.
See Raitio 1998a, p. 105 and also the cases 11/70 Internationale Handelsgesellschaft (1970) ECR 1125, esp. pp. 1137–1138 or 240/78 Atalanta (1979) ECR 2137, esp. pp. 2149–2150, paras. 10–12.
See OJ No. C 191, 29.7.1992, p. 101.
See T–105/95 WWF UK (1997) ECR II–313, esp. pp. 11–317—H–350, T–174/95 Svenska Journalistförbundet (1998) ECR II–2289, esp. pp. II–2295–11–2333, T–14/98 Hautala v Council, (1999) ECR II–2489, esp. pp. 11–2494–11–2517 and Söderman 1998a, pp. 314–321 and 338–346, Söderman 1998c, pp. 214–218 or Österdahl, pp. 1074–1077.
See Söderman 1998b, p. 19. The citation is from a report to the final plenary session of the 1998 FIDE Congress and it thus does not reflect only the Nordic point of view, but in principle a consensus of opinion of the participants from all the Member States. Although the FIDE report is not an official document of the Community, it might serve as an illustration of the current discussions concerning the requirements of sound administration at a Community level.
See OJ No. L 145, 31.5.2001, p. 43.
ibid.
See Ipsen, p. 727.
On the Corpus juris, see Delmas-Marty 1997 and Delmas-Marty 1998, pp. 107–110. The Corpus juris (`Corpus Juris for protecting the financial interests of the EU’) is a proposed supranational penal code based on Article 274 EC (ex-Article 205 EC) and upon the principle of sound financial management within the framework of the first pillar of the Maastricht Treaty. It has been presented by the European Parliament and the Commission at a public hearing held in Brussels on 15 and 16 April 1997.
See Delmas-Marty 1998, p. 111, and Article 4 of the ECHR, Additional Protocol No. 7.
See OJ No. L 312, 23.12.1995, p. 1, esp. p. 3.
See the PFI-Convention, OJ No. C 316, 27.11.1995, p. 49, esp. p. 51.
See the Brussels Convention, JO No. L 299, 31.12.1972, p. 32, as amended OJ No. L 304, 30.10.1978, p. 77, esp. p. 83, especially Article 21(1): “Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States, any court other than the court first seized shall of its own motion decline jurisdiction in favour of that court” and Article 22(1): “Where related actions are brought in the courts of different Contracting States, any court other than the court first seized may, while the actions are pending at first instance, stay its proceedings”. The latest amendment is in OJ No. C 27, 26.1.1998, p. 1, esp. p. 9 concerning the Article 21(1): “[A] ny court other than the first seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established.” The latest amendment of Article 21 is in conformity with the recent case law, for example C-163/95 von Horn (1997) ECR I-5451, esp. p. I-5475, para. 19, p. I-5476, para. 22 and p. I-5479.
See C–406/92 Tatry (1994) ECR I–5439, esp. pp. 1–5467–1–5470, C–163/95 von Horn (1997) ECR 1–5451, esp. pp. I–5470—I–5471 and 1–5473, para. 13, C–351/96 Drouot Assurances, (1998) ECR 1–3075, esp. p. I–3096, para. 13 or C–51/97 Réunion européenne (1998) ECR 1–6511, esp. p. I–6547, paras. 39–41.
See 144/86 Gubisch (1987) ECR 4861, esp. p.4874, para. 11.
See 129/83 Zelger v Salinitri (1984) ECR 2397, esp. p. 2408, para. 13.
See, e.g. the Report on the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, OJ No. C 59, 5.3.1979, pp. 1–70, esp. p. 41, the Article 22 of the Brussels Convention and C-163/95 von Horn (1997) ECR I-5451, esp. p. I-5473, para. 13 or C-351/96 Drouot Assurances, (1998) ECR I-3075, esp. p. 1–3097, para. 17.
See C-406/92 Tatry (1994) ECR I-5439, esp. p. I-5481.
See 144/86 Gubisch (1987) ECR 4861, esp. p. 4874, paras. 10–11 or A-G Tesauro’s opinion in C-406/92 Tatry (1994) ECR I-5439, esp. p. 1–5449, para. 14.
See 14/68 Walt Wilhelm (1969) ECR 1, esp. p. 15, para. 11.
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 Raitio 1999b, p. 403.
See joined cases T-305/94, T-306/94, T-307/94, T-313/94, T-314/94, T-315/94, T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others (1999) ECR II-931, esp. pp. II-964—II-975.
See 240/90 Germany v. Commission (1992) ECR I-5383.
See 14/81 Alpha Steel (1982) ECR 749, esp. pp. 768–769.
See 85/76 Hoffmann-La Roche (1979) ECR 461, esp. p. 510.
The term `access to justice’ is here used as implying the rights of an individual citizen and the rights of the defence in general. Another context in which the term `access to justice’ might be used would be the administrative problems caused by the various procedural systems and legal cultures in the EU, which may jeopardize effective judicial control. The Treaty of Amsterdam has amended the EC Treaty by developing common action among the Member States in the fields of police and judicial co-operation, especially in criminal matters (the area of freedom, security and justice), which reflects the problems caused by the procedural autonomy of the Member States. I refer to the discussions and materials of the Nordic Access to Justice conference held in Hanasaari in November 1998, Sundström-Kauppi, pp. 10–152 and to Articles 29, 30 and 34 EU (Ex-Articles K.1, K.2 and K.6 respectively).
See 222/84 Johnston (1986) ECR 1651, esp. p. 1682 and for an example of the case law of the European Court of Human Rights the Judgment of 21 February 1975, Golder v. United Kingdom, (1979–80) EHRR, Vol. 1, Series A, No:18, pp. 524–577.
See 33/76 Rewe-Zentral (1976) ECR 1989, esp. p. 1997.
See also Articles 33 and 35 ECSC or Articles 146 and 148 Euratom, respectively.
See OJ, English Special Edition 1963–64, p. 47.
See Joutsamo 1998, p. 147.
See T-186/94 Guérin Automobiles (1995) ECR II-1753, esp. p. II-1769, para. 34.
See 15/70 Chevalley (1970) ECR 975, esp. pp. 978–980.
See about the open category and `direct and individual concern’ 25/62 Plaumann (1963) ECR 95 compared with the more recent cases 26/86 Deutz und Geldermann (1987) ECR 941, C-152/88 Sofrimport (1990) ECR I-2477 and C-309/89 Codorniu (1994) ECR 1–1853.
See Raitio 1996, pp. 311–315.
See 191/82 Fediol (1983) ECR 2913, 264/82 Timex (1985) ECR 849 and C-358/89 Extramet (1991) ECR I-2501. Notably in the circumstances of the Extramet case the proceedings under Article 230 EC was the only efficient remedy and the application was held admissible.
See 294/83 `Les Verts’ (1986) ECR 1339.
ibid., pp. 1364–1366, esp. p. 1365, para. 23.
See Hartley 1998, p. 364.
See the ERTA case 22/70 Commission y Council (1971) ECR 263, esp. p. 277, para. 42.
See T-585/93 Greenpeace (1995) ECR II-2205 and the affirmation of the position adopted in the latter case in C-321/95P Greenpeace (1998) ECR I-1651.
See Sevón 1999, pp. 47–49. Sevón also referred to cases T-185/94 Geotronics (1995) ECR II-2795 and C-395/95 P Geotronics (1997) ECR I-2271 in this context in order to stress the importance of access to justice.
See Jacobs, pp. 36–37.
See OJ No. L 300, 24.10.1986, p. 34.
See C-188/92 TWD (1994) ECR 1–833, esp. p. I-855, para. 24.
See Joutsamo 1998, p. 150.
See C-188/92 TWD (1994) ECR I-833, esp. p. I-855, para. 25.
See C-170/89 BEUC v. Commission (1991) ECR I-5709, esp. pp. 5740–5743.
See Article 7 (4) (a) of Regulation No. 2423/88, OJ No. L 209, 2.8.1988, p. 1, esp. p. 9: “The complainant and the importers and exporters known to be concerned, as well as the representatives of the exporting country, may inspect all information made available to the Commission…”.
See 264/82 Timex (1985) ECR 849, esp. p. 850 and 870.
See C-49/88 Al-Jubail Fertilizer (1991) ECR I-3187, esp. p. I-3241, para. 7.
See Commission Notice on the internal rules of procedure for processing requests for access to the file in cases pursuant to Articles 85 and 86 of the EC Treaty, Articles 65 and 66 of the ECSC Treaty and Council Regulation (EEC) No. 4064/89, OJ No. C 23, 23.1.1997, p. 3. The guidelines set out in the Notice relate to the rights of undertakings which are the subject of investigations into alleged infringement of EC law. Therefore they do not relate to the rights of the third parties.
Ibid. The purpose of the Commission Notice is to ensure compatibility between current administrative practice regarding access to the file and the case law of the ECJ and CFI, in particular the so-called Soda-ash cases T-30/91 Solvay v. Commission (1995) ECR II-1775 and T-36/91 ICI v. Commission (1995) ECR II-1847 and T-37/91 ICI v. Commission (1995) ECR II-1901.
See Regulation No. 17/62, JO No. 13, 21.2.1962, p. 204 and recent cases C-185/95P, Baustahlgewebe v. Commission (1998) ECR I-8417, esp. pp. I-8509—I-8514 and T-221/95 Endemol v. Commission (1999) ECR II-1299, esp. pp. II-1320—II-1333.
See OJ No. L 46, 18.2.1994, p. 58.
ibid., p. 60.
See T-105/95 WWF UK y Commission (1997) ECR II-313, esp. p.11–314 or II-336, T-156/97 Achim Berge y Commission (1997) ECR I1–2097 and T-124/96 Interporc v Commission (1998) ECR II-231.
See Schermers-Waelbroeck, p. 29 and p. 145.
See Usher 1998a, p. 80.
See 155/79 AM & S v Commission (1982) ECR 1575, esp. pp. 1595–1596.
ibid, p. 1611, para 21.
See C-126/80 Salonia (1981) ECR 1563, esp. p. 1576, para 6 or C-361/97 Rouhollah Nour (1998) ECR I-3101, esp. p. I-3106, para. 12.
See 46/87 & 227/88 Hoechst v Commission (1989) ECR 2859, esp. p. 2924, para. 17. The judgment of the ECJ was delivered 21 September 1989.
See Article 8(1) of the ECHR: “Everyone has the right to respect for his private life, his home and his correspondence.”
See the Admissibility Decision by the European Commission of Human Rights of 14 October 1987 Chappell v. United Kingdom (1989) EHRR, Vol. 11, Application No. 10461/83, esp. pp. 543–559 and the Judgment by the European Court of Human Rights of 30 March 1989, Chappell v. United Kingdom (Anton Pillar Order),(1990) EHRR, Vol. 12, Series A, No. 152, Application No. 10461/83, pp. 1–23. No breach of Article 8 of the ECHR had been established in the circumstances of the Chappell case.
See Clapham, p. 59 and Usher 1998a, p. 84.
See 85/87 Dow Benelux (1989) ECR 3137, esp. pp. 3157, paras. 28–29. Judgment of the ECJ was delivered 17 October 1989.
ibid, p. 3156, para. 27.
See Delmas-Marty 1992, pp. 90–92.
See the Judgment of 24 April 1990, Huvig v. France (Telephone Tapping), (1990) EHRR, Vol. 12, Series A, No. 176-B, Application No. 11105/84, pp. 528–546 or the Judgment of 24 April 1990, Kruslin v. France (Telephone Tapping), (1990) EHRR, Vol. 12, Series A, No. 176-B, Application No. 11801/85, pp. 547–566.
See Kingston, p. 179.
See Opinion 1/94, (1994) ECR I-5267, esp. p. I-5275, para. 17.
See the preamble of the so-called personal data Directive 95/46/EC, OJ No. L 281, 23.11.1995, p. 31 and the Directive 97/66/EC, OJ No. L 24, 30.1.1998, p. 1, which relates to the telecommunications sector. The aim of the latter Directive is the protection of personal data and privacy in the telecommunications networks, in particular with regard to the introduction of the ISDN.
See C-162/96 Racke (1998) ECR I-3655, esp. p. I-3657 or p.1–3705, para. 49.
ibid., paras. 49–50 and the judgment of ICJ of 25 September 1997, the GabcíkovoNagymaros Project (Hungary v Slovakia), ICJ Reports 1997, p. 7, esp. pp. 61–62, para. 104.
See Joutsamo 1979, p. 35 and Wehberg, pp. 775–786.
See 43, 45 & 48/59 Lachmüller (1960) ECR 463.
ibid, p. 464.
See C-44/89 von Deetzen (1991) ECR I-5119.
See 44/79 Hauer (1979) ECR 3727.
See 265/87 Schräder (1989) ECR 2237, esp. p. 2268, para. 15.
On the concept of unjustified enrichment from the perspective of comparative law, see Zweigert-Kötz, pp. 537–594. In a very general sense one might note that the claims based on unjustified enrichment (enrichissement injustifié, ungerechtfertigte Bereicherung) rest neither on contract nor on tort in systems of private law.
See 4–13/59 Mannesmann (1960) ECR 113, esp. pp. 130–131.
ibid, p. 126.
See OJ,English Special Edition 1968–69, p. 412 or JO No. L 249, 3.10.1969, p. 25, and C–71/91 and C–178/91 Ponente Carni (1993) ECR I–1915, esp. pp. I–1960–1–1961, in which the ECJ interpreted the Articles 10 and 12 of the Directive 69/335/EEC.
See C–228/96 Aprile (1998) ECR I–7141, esp. pp. 1–7166–1–7181, C–231/96 Edis (1998) ECR 1–4951, esp. pp. I–4981—I–4995, C–260/96 Spac (1998) ECR I–4997, esp. pp. I–5014—I–5024, C–279/96, C–280/96 and 281/96 Ansaldo Energia (1998) ECR I–5025, esp. pp. I–5042—I–5053 and C–343/96 Dilexport (1999) ECR I–579, esp. pp. 1–602–1–622.
See C-228/96 Aprile (1998) ECR 1–7141, esp. p.1–7172, para. 17 or C-343/96 Dilexport (1999) ECR 1–579, esp. p. I-611, para. 24.
See C-231/96 Edis (1998) ECR I-4951, esp. p. I-4988, para. 26.
Compare Dworkin 1978, pp. 22–23 and 64–65 with Aarnio 1997, p. 179. Dworkin holds the norm `no man may profit from his wrong’ to be a principle. Aarnio consideres the norm belong to the category of principles although it actually seems to belong to the category of rules. It is thus a rule-like principle in Aarnio’s terminology.
See David, pp. 198–199, in which it is translated: “By the law of nature it is not just that anyone should be enriched by the detriment or injury to another.”
See C–6/90 and C–9/90 Francovich (1991) ECR 1–5357, esp. pp. 1–5413–1–5415. The ECJ referred to its case law concerning the sui generis nature of the EC law and maintained that the national authorities must protect the rights of the individuals based on the EC law.
See 26/62 Van Gend en Loos (1963) ECR 1 and 6/64 Costa v. ENEL (1964) ECR 585.
See Geddes, pp. 105–106, in which he lists as fundamental rights the right to a fair and public hearing, the right to respect for private and family life, the right to freedom of thought, conscience and religion, the right to freedom of expression, the right to peaceful assembly, the right to an effective remedy for breach of substantive rights and the right to freedom from discrimination on grounds of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status.This listing reflects the Anglo-American perception of what constitutes human rights.
See 173/84 Rasmussen v. Commission (1986) ECR 197, esp. p. 211, para 27.
See Opinion 2/94, (1996) ECR I-1759, esp. pp. I-1767 and I-1768. In the Opinion the ECJ considered the possibility of accession by the Communities to the ECHR.
See OJ No. C 340, 10.11.1997, p. 105.
See 1/58 Stork (1959) ECR 17, 36–38 and 40/59 Geitling (1960) ECR 423 or 40/64 Sgarlata (1965) ECR 215. For example, according to the Geitling case, the EC law did not contain a principle of protection of vested rights, not expressly or otherwise (see p. 438).
See 11/70 Internationale Handelsgesellschaft (1970) ECR 1125, in which especially the principle of proportionality was at stake. See also the German case law, for example the so-called Solange case, in (1974) 2 CMLR 540, esp. p.552 and also cases Steinige and Weinlig, 25 July 1979, (1980) 2 CMLR 531 and Wünsche Handelsgesellschaft, 22 October 1986, (1987) 3 CMLR 225.
See the ECJ’s argument in case 108/63 Merlini (1965) ECR 1, esp. p. 10: “The fact that such a rule is not mentioned in written law is not sufficient proof that it does not exist.”
See 29/69 Stauder v City of Ulm (1969) ECR 419, esp. p. 425, para. 7.
ibid., esp. pp. 423, 425 and 428 (the latter is from the opinion of A-G Roemer).
See 11/70 Internationale Handelsgesellschaft (1970) ECR 1125, esp. p. 1134, para. 4.
See 4/73 Nold (1974) ECR 491, esp. p. 507, para. 13.
See Guild-Lesieur, p. xviii.
See 44/79 Hauer (1979) ECR 3727, esp. pp. 3739, 3745 and 3750.
See ibid, esp. p. 3759. In the Hauer case A-G Capotorti has stated that the uniform application of Community law and its primacy over the legal orders of the Member States must not be endangered by the intervention of national courts, when it is a guestion of ascertaining whether or not Community provisions are in conformity with the principles concerning human rights.
See 222/84 Johnston (1986) ECR 1651, esp. p. 1682, para. 18.
See 46/87 & 227/88 Hoechst IT Commission (1989) ECR 2859, esp. p. 2923, para 13.
See Craig-de Búrga, pp. 283–286.
See C-260/89 ERT (1991) ECR I-2925, esp. p. I-2963, para. 41, in which Article 10 of the ECHR was taken into consideration.
See 374/87 Orkem v. Commission (1989) ECR 3283.
ibid., esp. p. 3284 and CEE Conseil: Règlement No. 17, JO No. 13, 21.2.1962, p. 204.
See the International Covenant on Civil and Political Rights of 19 December 1966, United Nations Treaty Series, Vol. 999, p. 171. The Covenant is one of the international instruments relating to the protection of human rights which the ECJ takes into account when applying the fundamental principles of EC law.
See Opinion of A-G Darmon in 374/87 Orkem v. Commission (1989) ECR 3283, esp. pp. 3336–3337 and the Judgment of 21 February 1984, Öztürk v. Germany, (Interpreter’s fees), (1984) EHRR, Vol. 6, Series A, No. 73, Application No. 8544/79, pp. 409–439 or the Decision of 6 October 1988, Jean-Gustave Funke v. France, D.&R., Vol. 57, Application No. 10828/84, pp. 5–29.
See 374/87 Orkem v. Commission (1989) ECR 3283, esp. pp. 3350–3351, paras. 30–31.
See 209–215 and 218/78 FEDETAB (1980) ECR 3125, esp. p. 3248, paras. 79–81. In the case the ECJ took into consideration the Judgment of 16 July 1971, Ringreisen v. Austria, (1979–80) EHRR, Vol. 1, Series A, No. 13, pp. 455–503 and the Judgment of 28 June 1978, König y Federal Republic of Germany, (1979–80) EHRR, Vol. 2, Series A, No. 27, pp. 170–213.
See 100–103/80 Musique Diffusion (1983) ECR 1825, esp. p. 1880, para. 7. In this case the ECJ held that the Commission was not a `tribunal’ in the meaning of Article 6 of the ECHR.
ibid., esp. p. 3351, paras. 34–35.
See C-60/92 Otto y Postbank (1993) ECR I-5683, pp. I-5709—I-5714, esp. p. I-5711, para. 11.
See Opinion 2/94, (1996) ECR I-1759, esp. p. I-1789, para 33–36.
See C-299/95 Kremzow (1997) ECR 1–2629, esp. p.1–2647.
For a more detailed presentation of cases in which the ECHR has been referred to by the ECJ, see Guild-Lesieur, pp. 402–406.
See 149/77 Defrenne v Sabena (1978) ECR 1365, esp. p. 1378, para. 28, in which the ECJ referred to the European Social Charter of 18 November 1961 and to the Convention N:o 111 of the ILO of 25 June 1958 in the context of sex discrimination, employment and occupation.
See 155/79 AM & S v Commission (1982) ECR 1575, esp. p. 1636.
See Craig-de Búrga, p. 294.
See 137/84 Mutsch (1985) ECR 2681, esp. p. 2690.
See 152/84 Marshall (1986) ECR 723, esp. pp. 743–746, Raitio 1998b, pp. 293–312 or Nieminen 1998, pp. 281–288, in which she has described how the ECJ has approached the issue of human rights especially as far as women are concerned. She has argued that the ECJ has interpreted human rights from a relatively narrow perspective and that it has traditionally emphasized the economic interests even in the context of human rights.
See Council Directive 75/117/EEC, OJ No. L 45, 19.2.1975, p. 19, Council Directive 76/207/EEC, OJ No. L 39, 14.2.1976, p. 40, Council Directive 79/7/EEC, OJ No. L 6, 10.1.1979, p. 24 or Council Directive 86/378/EEC, OJ No. L 225, 12.8.1986, p. 40.
See 43/75 Defrenne v Sabena (1976) ECR 455, esp. p. 474, para. 24 and Joutsamo-AaltoKaila-Maunu 2000, p. 38.
See 152/84 Marshall (1986) ECR 723, esp. pp. 743–746 or C-177/88 Dekker (1990) ECR I-3941. In the former case the ECJ held that the dismissal of a woman solely because she has passed the qualifying age of state pension, which age is different from that of men, constitutes discrimination on grounds of sex and in the latter case it held that the discrimination based on pregnancy was sexual discrimination.
See Bell, pp. 63–64.
See C-249/96 Grant (1998) ECR I-621.
See C-13/94 P. AT S. and Cornwall County Council (1996) ECR I-2143.
See OJ No. L 45, 19.2.1975, p. 19.
See OJ No. L 39, 14.2.1976, p. 40.
See C–249/96 Grant (1998) ECR I–621, esp. pp. 1–638–1–641.
ibid., p. I-646, para. 28.
See the Decision of 3 May 1983, X and Y v. United Kingdom (1983) EHRR, Vol. 5, Application No. 9369/81, pp. 601–602.
See C-249/96 Grant (1998) ECR 1–621, p. I-647, para. 33.
See the Judgment of 17 October 1986, Rees v. United Kingdom (Transsexuality), (1987) EHRR, Vol. 9, Series A, No. 106, Application No. 9532/81, pp. 56–70.
See the Judgment of 27 September 1990, Cossey v. United Kingdom (Legal position of transsexuals), (1991) EHRR, Vol. 13, Series A, No. 184, Application No. 10843/84, pp. 622–665.
See C-249/96 Grant (1998) ECR I-621, esp. p. 1–648, para. 34.
See Edwards, p. 34. In so far as the Sex Discrimination Act 1975 is concerned, discrimination against a transsexual can only be proven if a person of the opposite nascent sex would not be treated in the same way, so a male-to-female transsexual would have to compare himself/herself with the treatment of a male.
See Corbett v Corbett (otherwise Ashley) (1970) 2 All ER 33, esp. p. 48.
See White v British Sugar Corporation (1977) IRLR 121.
See OJ No. L 39, 14.2.1976, p. 40.
See C-13/94 P. v S. and Cornwall County Council (1996) ECR I-2143, esp. p. 1–2165, para. 18 or C-249/96 Grant (1998) ECR I-621, esp. p. I-649, para. 41.
See C-249/96 Grant (1998) ECR I-621, esp. p. I-649, para. 42.
See the US case Karen Frances Ulane v Eastern Airlines Inc 581 F. Supp. 821 (1984); Fair Empl Prac Cas (BNA) 1332. Mr/Ms. Ulane was dismissed by his/her employer when he/she announced he/she was to have a male-to-female sex change operation. The court held on the basis of the Civil Rights Act 1964 that discrimination based on sex applied to transsexuals, but it did not consider whether the transsexual Ulane was male or female. The court stated clearly that the plaintiff Ulane was in almost every instance subjected to discriminatory treatment for conduct which was far less serious than that of male alcoholics whose conduct was excused by the employer.
See Pohjonen, pp. 24–36 and A-G Elmers opinion in C-249/96 Grant (1998) ECR I-621, esp. p. I-627, para. 15. A-G Elmer finds that the Court had already taken a decisive step away from an interpretation of the principle of equal treatment based on the traditional comparison between a male and a female employee in the P v S and Cornwall County Council case.
See Edwards, pp. 34, 37 and the Employment Protection Act 1978, s. 57(1)(b) which allows the employer a defence of “substantial reason” such as adverse comments from customers.
See C-13/94 P. IT S. and Cornwall County Council (1996) ECR I-2143, esp. p. 1–2157, para. 24.
ibid., esp. p. I-2165, para. 22.
ibid., esp. p. I-2154, para. 19.
See Edwards, pp. 44–51.
ibid., pp. 8, 11–12.
See the Sexual Offences Act 1956 (s. 1(1)), which is currently substituted by The Criminal Justice and Public Order Act 1994, according to which it is an offence for a man to rape a woman or another man.
See Edwards, pp. 25–26.
See Corbett y Corbett (otherwise Ashley) (1970) 2 All ER 33, esp. p. 48.
See Steyger, pp. 115–116.
See Klami 1986, p. 55.
See Edwards, pp. 8–51.
See C-249/96 Grant (1998) ECR I-621, esp. p. 1–651, para. 47.
ibid., esp. p. I-650, para 45.
See OJ No. C 256, 9.10.1989, p. 33, esp. p. 34.
See C-13/94 P. v S. and Cornwall County Council (1996) ECR I-2143, esp. p. 1–2156, para 23 compared with I-2160—I-2167.
See the Judgment of 6 November 1980, Van Oosterwijck v Belgium (1981) EHRR, Vol. 3, Series A, No. 40, Application No. 7654/76, pp. 557–591, the Judgment of 17 October 1986, Rees v. United Kingdom (Transsexuality),(1987) EHRR, Vol. 9, Series A, No. 106, Application No. 9532/81, pp. 56–70 or the Judgment of 27 September 1990, Cossey v. United Kingdom (Legal position of transsexuals), (1991) EHRR, Vol. 13, Series A, No. 184, Application No. 10843/84, pp. 622–665.
See 03 No. C 256, 9.10.1989, p. 33, esp. p. 34. para. 8.
See C-13/94 P. v S. and Cornwall County Council (1996) ECR I-2143, esp. pp. I-2149—I-2150.
See C–249/96 Grant (1998) ECR I–621, esp. pp. I–623–1–635.
ibid., esp. p. I-643, para. 14 and esp. p. I-645, para. 23 and see also C-342/93 Gillespie and Others (1996) ECR I-475, esp. p. I-501, para. 24, according to which the Directive 76/207/EEC does not apply to `pay’ within the meaning of Article 141 EC.
See Edwards, p. 13.
See the opinion of A-G Elmer in C-249/96 Grant (1998) ECR I-621, esp. p. I-633, para. 41.
ibid., p. I-632, para. 39.
ibid., pp. 1–625, para. 12 and I-627—I-628, para. 17.
See C-13/94 P. y S. and Cornwall County Council (1996) ECR I-2143, esp. p. 1–2157, para. 24.
See C-159/90 Grogan (1991) ECR I-4685, esp. p. I-4739, paras. 19–20.
See C-249/96 Grant (1998) ECR I-621, esp. p. I-650 and I-651, para. 48.
ibid., p. I-648, para. 36 and McInnes, pp. 1054–1055.
See the Judgment of 30 July 1999, Sheffield and Horsham v. United Kingdom, (Refusal to grant legal recognition to the new gender of post-operative transsexuals), (1999) EHRR, Vol. 27, Application Nos 22885/93 and 23390/94, pp. 163–211.
ibid., p. 196, para. 75.
ibid., pp. 164–165.
ibid., p. 189, para. 46 and see C-13/94 P. y S. and Cornwall County Council (1996) ECR I-2143, esp. p. I-2164, para. 16.
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Raitio, J. (2003). Legal Certainty in the Framework of Other General Principles of EC Law. 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_5
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