General principles of law – source of European Union Law 89
Reference to general principles of law common to the laws, national and international
shows difficulties in identifying especially, because of their very general; nature
But they respond to supreme demands of law and collective consciousness " 3. . In
this category include, by way of example: the general principle of juridical
principle of good faith, the principle of legality, etc.
The general principles of public international law are not compatible with the structure
and requirements of the Community.
For example, referring to ,, except for reciprocal obligations fulfilling state " –
which can be invoked by the party injured by a breach of the obligations of the
other party can be dispensed from the performance of its obligations except getting
above – the Court stated that "the Treaty (EC na) is not intended to create mutual
obligations of different subjects to which the Community rules, but establishes a
new legal order; scheme of the Treaty, unless expressly provided, resulting
prohibition for Member States to make their own hands ".
Notwithstanding, the Court turned to the principles of public international
law that prohibit, for example, states to refuse its own nationals the right to enter
and establish themselves on their territory.4
The general principles common to the laws of the Member States. Through these
principles, the Court draws inspiration from national laws of the Member States
stating, moreover, even before the signing of the Treaties of Rome that it is
required to steer according to the rules recognized by the legislation, doctrine and
jurisprudence of the Member States.
Today, on a regular basis, the Court states “general principles”, which usually
are admitted to the national legal systems of the Member States "for example, the
principle of equality before the law, the appeal before a national court etc.
The discovery of these common principles requires not identify them as an
almost mechanical overlay of the national law of each Member State. Court off in
the spirit, orientation and evolution of national law, those principles that are
rooted” near their legal systems, produced over the years and their level of
economic, social and cultural substantially equal ".5
Court places, however, under Community law and principles that come from
a single Member State, for example, the principles of proportionality and
legitimate expectations, which were established only in German law.
In conclusion, the Court reserves:
- The right to choose between the different solutions offered by national legal
systems of those with intrinsic value for system needs;
- The right to reject those common principles that are incompatible with
3 See G. Isaac, M. Blanquet, op. cit., p. 176.
4 See O. inca, Drept comunitar general, Ed. Didactic şi pedagogic R.A., Bucureşti, 1999, p. 204.
5 See O. Manolache, Tratat de drept comunitar, Ed. a V-a, Ed. C.H. Beck 2006, p. 24.