The general principles of EU law and the Europeanisation of national laws

Although the ECJ has used general principles of law as a source of rights and obligations from an early stage in the development of EU law, key issues regarding their definition, nature and role as a source of law remain unresolved. How can they be identified? What is their normative basis? Are there rules determining priorities among them and how do they relate to Charter rights? How has their role evolved? Diverse and often bewildering judicial terminology serves to obfuscate the role of principles which, in terms of positive law, stand at the apex of the EU law edifice. Based on a doctrinal methodology, this article seeks to explore the role of general principles as a source of Europeanisation of laws. It attempts a typology of general principles; it seeks to identify their normative basis, and assesses their role both as generators of jus communae and as a source of constitutional conflict. Two developments are identified. First, despite the Charter acquiring binding legal effect, the general principles of law have endured as primary points of reference, a constitution outside the formal constitution. Secondly, as the Union’s competence has expanded, new conflicts have emerged. On the one hand, the need to safeguard the constitutional identity of the Union has led to the development of a new generation of structural principles, which may be in a trajectory of conflict with individual rights. On the other hand, a reconceptualization of effectiveness as a principle of enforcement, rather than an attribute of rights generates conflicts with national conceptions of general principles embedded in constitutional doctrine.