The Rationales, Reasoning and Methodology Underpinning the Judicial Recognition of Principles of Union Law

Abstract

The legal principles discourse has long been established, existing at theforefront of legal development, both legislative and judicial; in an area asrelatively young as EU law, it continues to thrive largely as a consequenceof conceptual, methodological and normative ambiguities. Setting out theneed — as will become clear — for methodological clarity in terms ofthe judicial recognition of principles, this article aims to contribute to thehorizontal dimensions of the discourse by exploring the origins and natureof Union principles, and the rationales and methodology underpinning theiridentification by the CJEU. It proposes a classificatory distinction betweena “principle common to the laws of the Member States (and other legalorders)” and a “general principle” and examines the added value of thistaxonomical distinction, particularly in light of the use of principles asmechanisms of European legal development. Each strand of analysis isundertaken with reference to concrete examples of principles identified bythe CJEU, within and “beyond the Treaties