The Principle of Legal Certainty in EC Law Book

Acknowledgements Abbreviations Tables Part 1. EC, History, Integration, EC Law, Legal Certainty
1: Introductory Remarks
1.1 How Can the Principle of Legal Certainty be Studied in the Context of EC Law?
1.1.1 What is ‘EC Law’?
1.1.2 Approaching the ‘EC Law’ from Different Angles
1.2 Ways of Approaching ‘The Principle of Legal Certainty’?
1.3 Objections and Refutations

2: Some Remarks about the History of the European Community
2.1 The Genesis of the European Communities: the ECSC, EEC and Euratom Treaties
2.2 European Integration and the Intergovernmental Tendencies in the 1960s and 1970s
2.3 The Idea of an Internal Market and the Single European Act
2.4 Towards the Era After the Cold War and the Treaty on European Union
2.5 The Treaty of Amsterdam and Beyond

3: Conclusions: Remarks about Theories of Integration, European Community and EC Law
3.1 Theories of European Integration: Nugent’s Summary
3.2 European Community: Siedentop’s View on European Democracy and the European Community
3.2.1 Why Constitutions and the Conception of the State are Important?
3.2.2 The Three Models of State
3.2.3 Creating an Open Political Class and a Rights-based Political Culture in Europe — Mission Impossible
3.3 EC Law: The Jack-in-the-Box Theory of EC Law by Wilhelmsson and Features of the Finnish Discussion

Part 2. EC Law, Principles Of EC Law, General Principles, Legal Certainty
4: The Sources, Objectives and Principles of EC Law
4.1 The Sources and Objectives of EC Law
4.1.1 The Relevant Sources of EC Law; Primary Law, Secondary Legislation and Case Law of the European Courts
4.1.2 The Objectives of the European Community
4.2 The Three Categories of the Principles Applied by the European Courts
4.2.1 Principles Derived from the EC Treaty
4.2.1.1 Principles of Loyalty, Proportionality, Nondiscrimination and Equality
4.2.1.2 Principles of Legality, Subsidiarity and Flexibility
4.2.2 General Principles of EC Law
4.2.3 Principles Based on the Case Law of the European Court of Justice
4.2.3.1 The Supremacy of EC Law
4.2.3.2 The Direct Effect and the Direct Applicability of EC Law
4.2.3.3 The Indirect Effect of EC Law and the State Liability
4.3 Problems in the Categorization of Principles and the Literal Approach

5: Legal Certainty in the Framework of Other General Principles of EC Law
5.1 The Term ‘Legal Certainty’ in EC Law and the Intertwining of General Principles — A Literal Point of View
5.2 The Term ‘Rule of Law’, Legality and the Requirements of Democracy
5.2.1 The Terms ‘Rule of Law’ and ‘Legal Certainty’ in the Case Law of the ECJ and CFI
5.2.2 An Attempt to Interpret the Rule of Law
5.3 The Principle of Revocability of Illegal Measures, the Term ‘Déni de Justice’
5.4 The Good Administration, Right to a Fair Hearing, Misuse of Powers, Proportionality and Openness
5.5 The Concepts of Non Bis In Idem, Lis Pendens and Nulla Poena Sine Lege
5.6 ‘Access to Justice’, the Right to an Effective Judicial Remedy and Legal Professional Privilege
5.7 Examples of the Material General Principles of EC Law
5.8 Fundamental Rights, Human Rights, Equality and the General Principles of EC Law
5.8.1 An Introduction to the History of the Case Law Concerning the Fundamental Rights and Human Rights in EC Law
5.8.2 Discrimination in the Context of Sexual Minorities as an Example of Equality, Non-discrimination and Human Rights in EC Law

6: The Principle of Legal Certainty Based on the Case Law of the European Court of Justice and the Court of First Instance
6.1 The Principle of Non-Retroactivity
6.1.1 The Concept of Retroactivity and the Immediate Application of EC Law
6.1.2 The Retroactivity of EC Legislation
6.1.3 The Retroactivity of ECJ’s Judgments, Especially the Preliminary Rulings under Article 234 EC
6.2 The Principle of Protection of Legitimate Expectations
6.2.1 The Conceptual Differences in Civil Law and Common Law Countries: The British and German Administrative Law as an Example.
6.2.1.1 The Estoppel Doctrine and Legitimate Expectations in English Administrative Law
6.2.1.2 The Estoppel Doctrine and Legitimate Expectations in EC Law: the Stork Amsterdam Case
6.2.1.3 Annulment of an Administrative Act in Germany and ‘Vertrauenschutz’
6.2.2 Annulment of an Administrative Act and the Protection of Legitimate Expectations in EC Law: a Case Study
6.2.2.1 Mäenpää’s and Waelbroeck’s Criteria Regarding the Protection of Legitimate Expectations
6.2.2.2 Pinpointing the Set of Questions for the Protection of Legitimate Expectations under EC Law and the Actions of Annulment
6.2.2.3 The Revocation of Lawful Administrative Acts Conferring Benefits
6.2.2.4 The Withdrawal of Unlawful Administrative Acts Conferring Benefits
6.2.2.5 Special Characteristics of the Annulment of Administrative Measures Imposing Burdens
6.2.2.6 The Locus Standi of Article 230 EC, the Protection of Legitimate Expectations and Legal Certainty
6.2.3 Protection of Acquired Rights and Legitimate Expectations
6.3 Periods of Limitation and Legal Certainty
6.3.1 Prescribed Procedural Time-Limits and Indefinitely Delayed Actions Especially in the Framework of Articles 230, 232 and 234 EC
6.3.2 Sanctions Based on EC Law, Recovery of Charges and the Periods of Limitation

Part 3. Norms, Interpretation, Legal Certainty
7: Beyond Literalism — Conceptions and Theoretical Remarks about Norms, Validity, Interpretation, Judicial Activism and Legal Certainty
7.1 Theories of Norms Ronald Dworkin’s Theory of Law as a Starting-point
7.1.1 The Background to Dworkin’s Essay ‘The Model of Rules I’: a Challenge to Positivism and Utilitarianism
7.1.1.1 Hans Kelsen, the ‘Grundnorm’ and ‘Stufenbau’
71.1.2 H.L.A. Hart and the ‘Rule of Recognition’
7.1.2 Some Features of Dworkin’s Theory of Law
7.1.2.1 Standards
7.1.2.2 Concept of Rights, the One Right Answer Thesis and Judicial Activism
7.1.3 Criticism against Dworkin’s Theory of Law and Further Developments
7.1.3.1 The Difference between Rules and Principles
7.1.3.2 The One Right Answer Thesis and Values
7.1.3.3 The Difference between Principles and Policies
7.1.4 Siltala’s Contribution: Summers’ Levels of Legal Formality Combined with Dworkin’s Theory of Law
7.1.5 Norms, Interpretation and Justification in the Context of EC Law
7.1.5.1 The Emphasis on ‘Proto-Norms’
7.1.5.2 Concepts and Conceptions
7.1.5.3 The Levels of Justification
7.2 The Judicial Argumentation and Interpretative Arguments
7.2.1 The Rational Reconstruction of Argumentation by the Bielefeld Circle
7.2.2 Basic Types of Legal Arguments
7.2.3 Patterns of Justification and the Logic of the Judicial Decisions as a Whole
7.2.4 The Interaction of Interpretative Arguments and Underlying Values
7.2.5 Justificatory Style of the Judicial Decisions
7.2.6 Justification in the Preliminary Rulings of the ECJ: Structure, Style and the Basic Arguments of the Decision
72.6.1 General Remarks about the Structure and Style of the Preliminary Rulings
7.2.6.2 Linguistic Arguments and the Problem of Translations in EC Law
7.2.6.3 Systemic, Teleological and Transcategorical Arguments in the ECJ
7.3 Legal Certainty
7.3.1 Concept of Legal Certainty A Nordic Perspective
7.3.2 Expectation of Legal Certainty

8: Predictability and Acceptability as Aspects of Legal Certainty
8.1 Some Applications of the Anti-literal Approach to EC Law: History, EC Law and Legal Theory
8.1.1 The Van Gend en Loos Case, Direct Effect, Supremacy and the Legal Certainty of EC Law
8.1.2 The Defrenne Case, Equality, Direct Effect, Non-Retroactivity and Legal Certainty
8.1.3 Remarks on the Free Movement of Goods from the Historical Perspective and Legal Certainty
8.2 Problems with the Anti-literal Approach to Legal Certainty
8.3 The Conception of Legal Certainty
8.3.1 Justification and Arguments
8.3.2 The Threefold Conception of Legal Certainty
8.3.3 The Levels of Justification, Legal Certainty and Democracy
8.3.4 Factual Legal Certainty and the Scale from Formal to Substantive Legal Certainty
8.4 Concluding Remarks

Index