The Principle of Legal Certainty and The Limits To The Applicability of EU Law

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The Principle of Legal Certainty and the Limits to the Applicability of EU Law
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SOMMAIRE
2016 - No 1
Pages
Introduction, par Jean-Victor Louis........................................................ 3

The Rationales, Reasoning and Methodology Underpinning the Judicial
2016 - 1
Recognition of Principles of Union Law, par Stephanie Law................... 11
Les principes généraux du droit dans la balance, par Pieter-Augustijn
Van Malleghem....................................................................................... 39
De la généralité in abstracto des principes généraux à leur effet direct
in concreto, par Jérémie Van Meerbeeck................................................ 65
A reading of the EU constitutional legal system through the meta-
principle of effectiveness, par Matteo Ortino......................................... 91
The principle of legal certainty and the limits to the applicability of EU
law, par Pablo Martín Rodríguez............................................................ 115
“Gaps” in protection stemming from the coexistence of fundamental
rights’ sources in the EU legal order, par Bucura C. Mihaescu-Evans .. 141
General Principles of Law and the Charter of Fundamental Rights,
par Saša Sever......................................................................................... 167
La coopération loyale vue sous le prisme de la reconnaissance mutuelle :
quelques réflexions sur les fondements de la construction européenne,
par Maria Fartunova................................................................................ 193
Principe de coopération loyale et principe d’attribution dans le cadre de
la mise en œuvre du droit de l’Union, par Eleftheria Neframi .............. 221
Limits to loyalty : the relevance of article 4(3) TEU, par Timothy Roes.....253
A Principle in Need of Renewal ? The Euro-Crisis and the Principle
of Institutional Balance, par Federico Fabbrini...................................... 285
Du principe de non-discrimination (au niveau européen) au principe
de la bonne administration (au niveau national) ?, par Vassilis Hatzopoulos 311
Principe général de non-discrimination et « situations purement
internes », par Laurence Potvin-Solis...................................................... 337
Principes généraux du droit et contrôle juridictionnel en droit de
la concurrence – « M. Jourdain : juge pénal ? », par Ludovic Bernardeau C o l l o q u e 10 s e p t e m b r e 2 01 5
et Étienne Thomas .................................................................................. 365
The Principle of Presumption of Innocence in the European Union Law : Les principes généraux du droit de l’Union européenne
an “Incomplete” Transposition of the Case Law of the European Court
of Human Rights?, par Daniela Fanciullo .............................................. 385
The principle of a high level of environmental protection as a source 50 e anniversaire
of enforceable rights, par Alicja Sikora ................................................. 399
Conclusion – The general principles of law : who needs them?,
par Takis Tridimas................................................................................... 419
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THE PRINCIPLE OF LEGAL CERTAINTY
AND THE LIMITS TO THE APPLICABILITY
OF EU LAW
by
Pablo Martín RODRÍGUEZ*
Sécurité juridique — Principes généraux de droit de l’Union europée-

nne — Contexte juridique — Raisonnement judiciaire
Souvent surdimensionnée, la sécurité juridique est appréhendée par la

présente contribution comme critère d’optimisation de l’ordre juridique et
principe général paradigmatique du droit de l’Union européenne. Ensuite,
on analyse si la codification partielle de ce principe dans le droit primaire et
secondaire a changé son statut juridique. Finalement, on analyse les formes
dans lesquelles la sécurité juridique justifie la limitation de l’applicabilité
du droit de l’Union en proposant cinq contextes juridiques fonctionnels,
dont l’examen pourrait bien amener à la conclusion que la jurisprudence
sur cette question est erratique. Toutefois, l’article considère d’autres
dimensions de ces contextes juridiques, qui pourraient expliquer en partie
cette jurisprudence et offrir des fondements normatifs en vue d’améliorer
le degré de sécurité juridique au sein du droit de l’Union.
Legal certainty — General principles of EU law — Legal context —

Judicial reasoning
The present contribution approaches legal certainty — which is often

given an overbroad scope — first as an optimization criterion and a para-
digmatic EU general principle. It subsequently analyses the impact of par-
tial codification in EU primary and secondary law on this general principle.
Finally, it examines the ways in which legal certainty justifies the limitation
of the applicability of EU law by proposing five functional legal contexts.
The analysis of these contexts might lead us to conclude that the case law
is somewhat erratic. However, the article reviews other features of legal
* Associate Professor of Public International Law of the University of Granada (pamar-

tin@ugr.es). I would like to thank all participants in the Colloque held in Brussels on
10 September 2015 for their insightful comments and Bridgit McQue for helping me put
these thoughts in understandable English. Of course, all mistakes remain mine. This article
has been done thanks to the Research Project DER2014-57213-R funded by the Spanish
Ministry of Economy and Competitiveness.
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116 legal certainty and applicability of eu law
certainty contexts that might explain that case law to a certain extent and
suggest normative foundations to improve legal certainty in EU law.
Introduction
Probably any attempt to approach either theoretically or practically legal

certainty in EU law ends up in bafflement and eventually disappointment.
Legal certainty appears to possess a fundamental theoretical significance
whose praxis does not live up to these high expectations. While ubiqui-
tous throughout EU case law, that inflationary presence is not accompanied
by real effectiveness, any unequivocal meaning or even a distinguishable
function. (1) It rather looks more like a rhetorical weapon in the hands
of the European Courts supporting (instead of determining) any desired
solution. The temptation of going American and abandoning this notion is
ever growing, at least since the early nineties where legal certainty seemed
to have reached its peak. I would not personally agree with that opinion.
The inextricable intertwining of legal certainty with the rule of law and
fundamental rights conclusively advises against it, because, even if legal
certainty has proved rather elusive, it represents an extraordinary legal tool
for realizing those foundational principles. (2) This is far from denying the
obvious fact that legal certainty poses a first-rank theoretical challenge to
legal thinking in general and to EU legal literature in particular. I will not
embark on such a difficult task in this contribution, although some insightful
ideas that have been recently advanced on the matter will be used to clarify
some problematic aspects. The less ambitious aim of this contribution is
to explore the limits of the full application of EU law on grounds of legal
certainty. Accordingly, legal certainty in the context of drafting EU legisla-
tion and more in general in “better” or “smart” regulation or its use in
guiding judicial interpretation of EU substantive law per se fall outside the
aim of this contribution. Nevertheless, the subject matter herein developed
deals of course with a core function of legal certainty and compels us to
reconsider the main legal issues that general principles raise within EU law.
(1) See the extremely critical quotations cited by Jérémie Van Meerbeeck (J. Van
Meerbeeck, De la certitude à la confiance. Le principe de sécurité juridique dans la
jurisprudence de la Cour de justice de l’Union européenne, Brussels, Anthemis-
Université Saint-Louis, 2014, pp. 19‑20).
(2) The legal certainty-rule of law connection is undisputed. See A. von Bogdandy
and M. Ioannidis, “Systemic deficiency in the rule of law : What it is, what has been done,
what can be done”, CML Rev. (2014), Vol. 51, (1), pp. 59‑96 ; T. Tridimas, The General
Principles of EU Law, 2nd ed., Oxford, OUP, 2005, pp. 4‑7.
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pablo martín rodríguez 117
This contribution will proceed as follows : in Section I, legal certainty will

be approached as an optimization value within a legal system. In Section II,
it will be considered as a paradigmatic general principle of EU law. Sec-
tion III will try to look closer at the consequences of the partial codification
of legal certainty. Section IV will review how legal certainty operates as a
limit to the full application of EU law. Finally, in Section V some conclu-
sions will be suggested.
I. — Uncertainties about legal certainty as an optimization

criterion within EU law
Legal certainty, as a general principle of EU law, has prima facie a

straightforward definition: “the principle of legal certainty requires that rules
of law be clear and precise and predictable in their effect, so that interested
parties can ascertain their position in situations and legal relationships gov-
erned by EU law”. (3)
The Court of Justice’s definitional formulae, though apparently technical
and descriptive, set the bar impossibly high (which can explain why the
expectations placed on legal certainty are usually deluded) but they can be
used nonetheless in order to highlight what legal certainty really involves.
In the first place, the requirements of clarity and precision (let us call it
“law certitude” to distinguish it from legal certainty as such) must not be
taken in literal terms. The historically forged idea that rules may reach such
an extreme level of semantic perfection that they might be unequivocally
understood by any addressee as to what they impose or permit, has not
only proved misguided by linguistics (and experience), but also definitely
unfitting in a multilingual legal setting like EU law. (4) Maduro’s use of
the notion of incompletely theorized agreement is commonly mentioned as
supporting the rejection of this unattainable objective. (5) Notwithstanding
(3) Judgment of 12 February 2015 in Parliament v Council, C-48/14, EU:C:2015:91,

para. 45. In another slightly different but also often used formulation the Court states that
“[t]he general principle of legal certainty, which is a fundamental principle of Community
law, requires, in particular, that rules should be clear and precise, so that individuals may
ascertain unequivocally what their rights and obligations are and may take steps accord-
ingly” (Judgment of 3 June 2008 in Intertanko, C-308/06, EU:C:2008:312, para. 69).
(4) E. Paunio, Legal Certainty in Multilingual EU Law : Discourse and Reasoning at
the European Court of Justice, Surrey, Ashgate, 2013, especially pp. 5‑50.
(5) M. Poiares Maduro, “Interpreting European Law : Judicial Adjudication in a Con-
text of Constitutional Pluralism”, European Journal of Legal Studies (2007), Vol. 1, (2),
pp. 1‑21.
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the fact that a multilingual setting just makes the argument more evident,
this better understanding of what law certitude does not mean drives us to
two different considerations. First, law certitude’s demands are closer to the
accessibility derived from the rule of law (prééminence de droit), imposing
certitude about the existence of a rule and its ability to guide behaviour (with
professional advice if needed) prevailing within the European Convention
of Human Rights (ECHR). (6) This underlines the significance of proper
publication (a premise for the law to be cognizable) and also the refusal of
over-broadly termed rules incapable of guiding individual behaviour, which
explains why this certitude is also related to the interdiction of arbitrariness
instead of banning any discretion on the part of public authorities ; thereby,
the connections to the obligation to state reasons. (7) Secondly, it stresses
the importance of the judiciary in the ultimate definition of rules’ norma-
tive content, and consequently the sharp question of judge-made law and
particularly the relevance of interpretative criteria in this context.
In the second place, predictability as part of legal certainty refers not to
a causal factual determinism (since there is always a gap between the law
and its application (8)) but to the correct management of (legal) expecta-
tions, which is a basic requirement to build necessary confidence in the
legal system. (9) This entails, on the one hand, a certain degree of legal
effectiveness in the sense that individuals must be able to expect that public
authorities of course but also other individuals abide by the law, so that they
may draw their expectations based on that fact. Here is where legal certainty
merges with the unity and coherence of the legal system too. On the other
hand, predictability links back to how law handles time, that is, to the
stability of the law. Legal certainty thus encourages prospective legislation
throwing under suspicion any retroactive regulation (which by definition
prevents individuals from abiding by the law) and deals with legislative
changes from the point of view of the legitimate expectations raised by
previous legislation (and in a more restricted sense also by previous case-
law). In the same direction, predictability (as effectiveness and stability)
(6) See Venice Commission, Report on the Rule of Law, CDL-AD (2011) 003 rev,
pp. 10‑11.
(7) F. Arcos Ramírez, La seguridad jurídica. Una teoría formal, Madrid, Dykinson,
2000, pp. 53‑63.
(8) See R. Banakar, Normativity in Legal Sociology, Heidelberg, Springer, 2015,
pp. 52‑56.
(9) This position with distinct Luhmanian echoes is widely accepted ; see e.g., A. von
Bogdandy and M. Ioannidis, loc. cit., pp. 71‑72 ; J. Van Meerbeeck, op. cit., pp. 527‑544
(completing that approach with Lon Fuller’s interactional law perspective) ; or F. Arcos
Ramírez, op. cit., pp. 44‑53.
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is not confined to legislation but reaches also the protection of established

individual legal situations preventing them from being indefinitely contested
or revoked once legal remedies have expired or been exhausted, that is,
seeking for finality in the law and protecting finality once achieved. Con-
sequently legal certainty is linked to the setting out of prior reasonable
limitation periods and the strict respect for res judicata and more generally
final legal decisions. At the same time, this explains why legal certainty
is sometimes understood as opposed to legality in the sense of effective
application of the law.
In the third place, Nordic legal theory has pertinently brought the role of
the judiciary within the scope of legal certainty underscoring its substantive
dimension. (10) Legal certainty involves the subjective acceptability of a
concrete legal decision, which looks at its justification according to the
shared values of the legal community (legal reasoning and argumentation),
and therefore fundamental rights. (11) Thus, the significance emerges of the
existence of legal remedies endowed with enough procedural guarantees
assuring impartiality in judicial decision-making (the right to an effective
judicial remedy and to a fair trial). (12)
This description of legal certainty as law certitude handling legal expecta-
tions in an acceptable way leads us to face an extremely complex general
principle owing to its transversal and dialectical nature.
Legal certainty involves an internal value of the legal system and there-
fore it affects all legal operations (legislation, interpretation, adjudication
or enforcement). Taking Alexy’s notion of general principles as optimiza-
tion criteria, there is neither a legal act nor a substantive field of EU law
where legal certainty would not apply, that is, where that optimization is not
pertinent. However, since optimization is not oblivious to context, it will
be dependent on its weight in relation to other general principles or values
that may also be pertinent (the obvious example is retroactivity in criminal
law compared to other fields). The consequence of this transversal nature is
a sort of specialization of legal certainty content to the point of engineer-
ing multiple solutions according to different legal contexts (the casuistic
(10) See J. Raitio, The Principle of Legal Certainty in EC Law, Heidelberg, Springer,
2003, pp. 337 ; and E. Paunio, op. cit., pp. 51‑99.
(11) See also J. Raitio, “The Principle of Legal Certainty as a General Principle of EU
Law”, in U. Bernitz, J. Nergelius and C. Cardner (eds), General Principles of EC Law
in a Process of Development, The Netherlands, Wolters Kluwer, 2008, pp. 46‑73, (72).
(12) See also E. Paunio, “Beyond Predictability — Reflections on Legal Certainty
and the Discourse Theory of Law in the EU Legal Order”, German Law Journal (2009),
Vol. 10, (11), pp. 1469‑1493.
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complaint usually made). This specialization poses the greatest challenge

when it has acquired the level of concreteness and legal recognition to claim
the existence of a proper right that may be understood as legally detached
from the general principle.
The dialectical rather than contradictory nature of legal certainty has
recently been well explained by van Meerbeeck when opposing two ration-
ales (logiques) underpinning legal certainty from the point of view of its
addressees. (13) Indeed, legal certainty answers to a logique politique in the
sense that promotes and protects the full effectiveness of enacted rules and
legal decisions, but also to a logique subjective in the form of setting lim-
its and individual guarantees actionable against those rules and decisions.
This dialectical character is consubstantial to the rule of law and should be
embraced instead of rejected. It poses though several difficulties to assess
how it should work, i.e., where the concrete turning point is placed (raising
again the question of the specific legal context), as well as how to sort out
the paradoxical results that it may produce, such as the larger uncertainty
generated by the annulment of a law on account of it breaching legal cer-
tainty. (14) Finally it again signals the importance of legal reasoning and
argumentation, since at the theoretical level this dialectical nature entails the
possibility of reversible argumentation resulting in opposite rulings, making
the question of acceptability re-emerge.
The relevant point is that in an integration framework legal certainty
adds one more layer of complexity since it is intended to operate in the
relationship between legal systems as well, that is, between EU law and
national laws. This sheds a different light on predictability with regard to
the common rules, thus giving a rather complex picture. In legal integration
settings, the intermediate position of States, including legal certainty as
conceived by national law, introduces another legal layer to deal with. And
this question raises the most complicated and delicate issues when legal
certainty concepts differ between EU law and national laws, for instance
as to the scope and effects of res judicata.
(13) J. Van Meerbeeck, op. cit., passim, e.g., pp. 563‑567. So this author proposes a
logique fiduciaire based on the notion of confidence (expectation) to ground legal certainty
(op. cit., p. 627).
(14) P. Popelier, “Five Paradoxes on Legal Certainty and the Lawmaker”, Legispru-
dence (2008), Vol. II, (1), pp. 60‑63.
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II. — Legal certainty as a paradigmatic general principle

of EU law
Legal certainty, as complex as it may be in conceptual terms, has been

introduced in EU law as a general principle. In this regard it may be con-
sidered paradigmatic, which means that legal certainty perfectly illustrates
the main legal issues that general principles of law pose within the EU legal
order, such as their establishment, legal effects and scope. Reviewing those
major problems from the point of view of legal certainty might additionally
help in sidestepping the fundamental rights bias that, in my opinion, EU
law literature shows, quite understandably on the other hand, when deal-
ing with general principles. In this sense, I would like to emphasize three
different concerns.
(a) While the establishment of a general principle is officially referred to
the normative sources that may inspire the Court in order to identify it, (15)
this operation seems to be inseparably linked to another that I would call
normative refinement, which essentially consists in ascertaining a concrete
legal context where the general principle gets normatively enriched to the
point of being actionable (i.e. to acquire judicially manageable standards).
Although I think that this assimilation is conceptually wrong, it proves
especially inadequate in cases of umbrella general principles such as legal
certainty, because it splits up the overarching principle in several minor
general principles that in opposition to the former do appear to actually pos-
sess legal effect, because they are actionable, they award rights. The relation
between legal certainty and legitimate expectations is very illustrative of
the consequences of this unintended association, (16) which go further than
merely obscuring the relevance of the overarching optimization criterion
(legal certainty) and relate more to the pressure put on the particular norma-
tive refinement (legitimate expectations) to be also operational in other legal
contexts, that is, to enlarge its scope artificially to the point of substituting
the overarching principle. (17) This phenomenon, which can also be traced
(15) See A. Mangas Martín and D. J. Liñán Nogueras, Instituciones y Derecho de la

Unión Europea, 8th ed., Madrid, Tecnos, 2014, pp. 370‑371.
(16) The idea that legal certainty is somewhat objective while only legitimate expecta-
tions really grant individual guarantees (rights) is widely accepted. For instance, the Span-
ish Constitutional Court case-law sticks to this idea (cf. F. Arcos Ramírez, op. cit., p. 67).
(17) Legitimate expectations have greatly devoured vested rights, revocation of admin-
istrative decisions, law retroactivity, legislative changing or duty to act within a reasonable
time. It is unlikely that they stop at that point because actually they have the potential
to devour the entire overarching principle. See J. Van Meerbeeck, op. cit., especially
pp. 577‑582.
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throughout the Court’s case law, produces the very inconvenient result that
currently it is almost impossible to grasp what legitimate expectations really
mean or how they work in EU law. So, even if this assimilation might be
induced or promoted by the very way in which general principles originate,
I think that more attention should be paid to avoid it.
(b) The ascertainment of the legal effects of general principles is fairly
complex besides the common assumption that they pertain to primary
law. (18) The most controversial issue, as we know, is direct effect (sub-
stitutionary and/or exclusionary vertical direct effect and/or hybrid or pure
horizontal direct effect). With regard to this question (which we could call
the Mangold discussion (19)), I have the impression that the fundamental
rights bias is rather perceptible in the debate (20) and might have induced
some theoretical rigidity trying to solve that issue in terms of the legal
category instead of looking at each general principle in concreto. However,
from the point of view of legal certainty, two different remarks are, in my
opinion, pertinent.
Firstly, the role of legal certainty in solving this issue is central and
partially explains why the solution is understood as inextricably linked to
the positive legal support surrounding or codifying the general principle at
stake. (21)
(18) Although there are also general principles deduced from secondary law, whose
effects differ from primary law ones (Judgment of 29 October 2009 in NCC Construction
Danmark, C-174/08, EU:C:2009:669, para. 39-46).
(19) Judgments of 22 November 2006 in Mangold, C-144/04, EU:C:2005:709 ; of
23 September 2008 in Bartsch, C-427/06, EU:C:2008:517 ; of 5 March 2009 in Age Con-
cern England, C-388/07, EU:C:2009:128 ; of 19 January 2010 in Kücükdeveci, C-555/07,
EU:C:2010:21 ; of 24 January 2012 in Maribel Dominguez, C-282/10, EU:C:2012:33,
among others.
(20) The fundamental rights bias in a sense merged the intricate distinction between
exclusionary and substitutionary vertical direct effect so that the problematic issue only
appeared as inescapable in horizontal situations. Looking at other general principles such
as conferral, subsidiarity, hierarchy of norms or proportionality, would have made these
situations clearer.
(21) In a sense, the recognition of the general principle in EU primary law (either
the Treaties or the Charter) or in specific secondary law acts apparently dissipates the
reticence of awarding general principles with additional direct effect other than exclu-
sionary, shedding light on the decisive impact that codification of general principles may
have. The discussion raised by Mangold and its progeny is transparent on this point. See
T. Tridimas, “Horizontal Effects of General Principles : Bold Rulings and Fine Distinc-
tions”, in U. Bernitz, J. Nergelius and F. Schulyok (eds), General Principles of EC Law
and European Private Law, The Netherlands, Wolters Kluwer, 2013, pp. 213‑232, and
K. Lenaerts and J. A. Gutiérrez Fons, “The Role of General Principles of EU Law”, in
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Secondly and more importantly, the fact that the principle of legal
certainty is mainly substantiated as individual guarantees against public
authorities appears to put it outside the Mangold discussion, its natural
remit being exclusionary vertical direct effect. This is mostly true but far
from 100% accurate. On the one hand, the breach of the principle of legal
certainty may involve positive consequences such as the obligation to enact
transitory regulation, (22) pointing thereby to that peculiar “substitutionary”
direct effect that also occurs with other general principles such as non-
discrimination. On the other hand, legal certainty does not automatically stop
at the doors of horizontal situations. Not only in cases of hybrid horizontal-
ity where the interests of third parties can be traced (23) and have even been
explicitly recognized by the Court of Justice in some instances, (24) but also
in pure horizontality since it is precisely legal certainty that stands in the
way of consistent interpretation in those contexts. So, the Mangold discus-
sion is strictly pertinent in relation to legal certainty, and therefore it is also
the underlying essential issue of the respect of the vertical and horizontal
allocation of competences on which the legal doctrine has quite rightly put
the focus. (25)
(c) As we know, the Court has developed an extensive case law as to
the scope of EU general principles when they bind Member States in the
so called agency, derogatory and connecting/purview situations. Especially
the last connecting situation, which remains so far rather imprecise, has
highlighted the significance that secondary law has in extending the scope
of general principles. (26) This extensive scope is extremely relevant with
regard to legal certainty, due to the fact that this principle essentially
encompasses individual procedural guarantees in the implementation of the
A. Arnull, C. Barnard, M. Dougan and E. Spaventa (eds), A Constitutional Order of

States ? Essays in EU Law in Honour of Alan Dashwood, Hart Publishing, London, 2011,
pp. 179‑197.
(22) Judgment of 14 May 1975 in CNTA, 74/74, EU:C:1975:59, para. 43.
(23) Judgment of 5 March 2015, Banco Privado Português, Case C-667/13,
EU:C:2015:151. See P. Martín Rodríguez, “The Missing Piece of European Emergency
Law : Legal Certainty and Individuals’ Expectations in the EU Response to the Crisis”,
forthcoming.
(24) Judgment of 13 January 2004 in Kühne and Heitz, C-453/00, EU:C:2004:17,
para. 27.
(25) See K. Lenaerts and J. A. Gutiérrez-Fons, “The Constitutional Allocation of
Powers and General Principles of EU Law”, CML Rev. (2010), Vol. 47, pp. 1629‑1669 ;
S. Prechal, “Competence Creep and General Principles of Law”, Review of European
Administrative Law (2010), Vol. 3, (1), pp. 5‑22.
(26) See recently, E. Muir, “The Fundamental Rights Implications of EU Legislation :
Some Constitutional Challenges”, CML Rev. (2014), Vol. 51, (1), pp. 219‑246.
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law or against its enforcement, which are essentially decentralized in EU

law. Therefore, the general principle of legal certainty lies at the heart of
procedural autonomy of Member States as a conspicuous limitation, whose
interaction with the well-known requirements of equivalence and effective-
ness is far from clear. (27) Although other scenarios may deserve attention,
the most obviously problematic one occurs where individual guarantees
based on legal certainty provided by national law differ from those estab-
lished in EU law, opening the way to double standards. (28) If the Euro-
pean standard is observed, this coexistence is governed by the principles
of equivalence and effectiveness. However, the Court has still to clarify
whether the European standard is as imperative as implying lowering the
national standard by virtue of EU primacy and to better define effectiveness
and equivalence requirements, which are in a sense used in a too compact
and unspecific way, which may lead both to lower the European standard
by virtue of equivalence and not to apply the higher national standard by
virtue of effectiveness. (29)
III. — The effects of partial codification of legal certainty

in EU law
Section II has underlined the significance of the legal environment sur-

rounding general principles. This issue has exponentially grown with the
Charter’s acquisition of the same legal standing as the Treaties. This has not
been without effect on the legal status of the principle of legal certainty. It
may be argued that legal certainty involves a complicated set of interactions
between different sources of the EU legal system that can no longer be
solved by the simple statement that legal certainty belongs to the general
principles of EU law. Attention must be paid to the fact that some of these
normative refinements (undisputed specific expressions of the principle of
legal certainty) have made their way to other parts of EU law, leading
legal certainty to a situation of partial codification, whose legal effects are
(27) See S. Prechal, loc. cit., pp. 11‑13, and 22.

(28) P. J. Wattel, “National Procedural Autonomy and Effectiveness of EC Law :
Challenge the Charge, File for Restitution, Sue for Damages?”, Legal Issues of Economic
Integration (2008), Vol. 35, (2), pp. 109‑132, (128).
(29) Regarding EU funds, Judgment of 13 March 2008 in Vereniging Nationaal Over-
legorgaan (joined cases C-383/06 to C-385, EU:C:2008:165) can be compared with the
sounder argumentation developed in Judgment of 18 December 2014 in Somvao, C-599/13,
EU:C:2014:2462.
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far from clear. I think that a basic distinction must be drawn between EU
primary and secondary law.
A. — The limited effects of recognition in EU primary law
In theory, the most intense effects are produced in cases of codification

or recognition in a EU primary rule as long as no dispute would arise as to
the normative foundation (establishment or normative refinement) or as to
the legal effects that legal certainty may unleash, since the general principle
so encapsulated would apply through that EU primary law provision. The
disappearance of the general principle would naturally follow this trans-
formation into a primary law rule or right. This assumption is, however,
not entirely confirmed when looking closer, either when the principle is
enshrined in the Treaties or in the Charter of fundamental rights. Actually,
without denying that codification in EU primary law may be decisive in
certain aspects, those cases still remain few and moreover it is suggested
that its impact on the general principle of legal certainty is thus far limited
or remains unexplored.
As to the recognition in the Treaties, the principle of publicity of the law
finds an unambiguous expression in Article 297 TFEU (30) that sets out a
distinct rule as to the compulsory official publication of EU general norms
(to which the EU practice has traditionally extensively adhered). Given that
both pertain to primary law, the general principle only intervenes as an inter-
pretative yardstick of the primary rule applying in vertical and horizontal
situations, but it would still be (as indeed it has been) pertinent for those
cases not covered by the rule, such as national norms implementing EU law.
More uncertain is the impact of other treaty provisions such as Article 296
TFEU (31) or those establishing judicial remedies on the general principle
of legal certainty. Although the linkage is clear and manifest in the Court’s
reasoning in both cases, the role played by legal certainty is maybe rightly
instrumental, so it seems rather unlikely and unnecessary that the Court
would radically alter its current understanding in the direction of consider-
(30) Judgments of 11 December 2007 in Skoma-Lux, C-161/06, EU:C:2007:773,

para. 32-34, and of 10 March 2009 in Heinrich, C-405/06, EU:C:2009:140, para. 42-46.
(31) The association between the obligation to state reasons laid down in Article 296
TFEU and legal certainty is consistently (though not explicitly to my knowledge) mani-
fested in the reasoning of the Court (see e.g., the usual formula in Judgment of the General
Court of 2 July 2015 in BH Stores, T-657/13, EU:T:2015:449, para. 29). This linkage is
more clearly manifested by the special burdens that legal certainty imposes on the substan-
tive statement of reasons as to the respect of legitimate expectations or justification for a
retroactive law (see J. Raitio, op. cit., pp. 190-ff).
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ing them as a codification of the general principle of legal certainty, which

for that matter would barely add any legal value to the existing availability
of primary law provisions.
The Charter apparently constitutes a milestone with regard to general
principles in EU law in the post-Lisbon era due to its legal standing being
identical to the Treaties. However, this same legal value must be signifi-
cantly nuanced and distinguished from recognition in the Treaties. While
the normative refinement of a general principle (and therefore its ability
to ground judicial review of EU legal acts) is clearly eased by this rec-
ognition, sorting out other concerns is not. Differences between the scope
and effects of the Charter and general principles may arise easily, warning
against a premature assumption on the effects of this primary law codifi-
cation. Articles 41, 47 and 49 of the Charter are the most relevant with
regard to legal certainty and all three may be used to illustrate this idea:
(a) Article 41 of the Charter sets forth the right to good administration that
encompasses, among others, the obligation for EU institutions and bodies
to handle individuals’ affairs within a reasonable time. (32) However, even
if the coincidence between Article 41 and the corresponding EU general
principle has been admitted, (33) the Court has underlined that, due to its
wording, Article 41 only binds EU institutions and administrative bodies,
thereby Member States’ actions when implementing EU law are covered
by the general principle but not the Charter. (34) (b) The overlap between
Article 47 encapsulating the right to an effective judicial remedy and to a
fair trial and the general principle of legal certainty have yet to be noticed
by the Court of Justice. (35) Some of those connexions are already settled
by the European Court of Human Rights (ECtHR), such as the respect of
(32) This normative refinement pertains to legal certainty and legitimate expectations,
as the recent Nencini case shows, although Article 41 seems not to have played any rel-
evant role in the Court’s reasoning (Judgment of 13 November 2014 in Riccardo Nencini,
C-447/13 P, EU:C:2014:2372, para. 45, 52, and 55).
(33) So it is held, apparently, in relation to the entire Article 41 (Judgment of 8 May
2014 in H.N., C-604/12, EU:C:2014:302, para. 49).
(34) Judgment of 11 December 2014 in Khaled Boudjlida, C-249/13, EU:C:2014:2431,
para. 30-35. A formal distinction arguably applied too harshly in Judgment of 17 July 2014
in YS, joined cases C-141/12 and C-372/12, EU:C:2014:2081, para. 68.
(35) Where Member States have enacted laws retroactively curtailing time-limits for
bringing an action even when that resulted in the dismissal of proceedings already brought,
the Court has based its findings on the principle of legal certainty and legitimate expecta-
tions hand in hand with the principle of effectiveness (see e.g., Judgments of 12 Decem-
ber 2013 in Franked Investment Income Group Litigation, C-362/12, EU:C:2013:834,
para. 44-49), and of 18 December 2014 in Commission v UK, C-640/13, EU:C:2014:2457,
para. 38-40).
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res judicata (36) or the prohibition of legislative interference with pending

judicial proceedings as being part of the right to a fair trial enshrined in
Article 6(1) ECHR. (37) (c) The principle of legality in criminal matters
is explicitly laid down in Article 49 of the Charter and recognized by the
Court of Justice as a general principle of EU law and part of legal cer-
tainty. (38) This principle could be taken as prototypical of the impact of
the Charter over EU general principles, that is, its transformation into a
fundamental right and the apparent disappearance of the general principle.
However, some grey areas still remain as this transformation seems not to
have affected the “sensitivity to the legal context” characteristic of general
principles. (39)
So, as has been seen, the recognition of legal certainty dimensions in EU
primary law has not fundamentally altered its previous normative status and
therefore general principles occupy the central legal category with slight
nuances. Furthermore, the overarching general principle of legal certainty
and some of its most prominent normative refinements still remain outside
the Treaties. This is the case with legitimate expectations, non-retroactivity
outside criminal law, (40) protection of final administrative decisions, (41)
(36) See Judgment of the ECtHR of 24 July 2003 in Ryabykh v Russia,

CE:ECHR:2003:0724JUD005285499, para. 51-52, and Guide on Article 6 right to a fair
trial (civil limb), Council of Europe/European Court of Human Rights, 2013, p. 23, at
www.echr.coe.int, accessed 1 September 2015.
(37) The Court has so far not ruled on this question (it was avoided in Judgement of
6 September 2011 in Ivana Scattolon, C-108/10, EU:C:2011:542, para. 84). However, there
is clear case-law of the ECtHR on this (see Judgment of the ECtHR of 15 April 2014 in
Stefanetti and others v Italy, CE:ECHR:2014:0415JUD002183810, para. 38-44).
(38) Judgment of 3 May 2007 in  Advocaten voor de Wereld, C-303/05, EU:C:2007:261,
para. 49-50, and Judgment in Intertanko, para. 70.
(39) For instance, its application in competition law (especially regarding legality or
non-retroactivity) is conditioned by a most peculiar application of legitimate expectations.
The correctness of the substantive solution that the European courts apply in competi-
tion law is not contested here, since fundamental rights are neither obviously absolute
nor oblivious to context. However, let us acknowledge that a genuine fundamental rights
limitation’ reasoning is hardly recognizable in this case-law (see e.g., Judgment of 28 June
2005 in Dansk Rørindustri and others, joined cases C-189/02 P, C-202/02 P, C-205/02 P
to C-208/02 P, and C-213/02 P, EU:C:2005:408, and Judgments of the General Court of
16 September 2013 in Wabco Europe, T-380/10, EU:T:2013:449, para. 175-182, and of
15 July 2015 in SLM, joined cases T-389/10 and T-419/10, EU:T:2015:513, para. 85-112).
(40) Judgment of 25 January 1979 in Racke v Hauptzollamt Mainz, 98/78,
EU:C:1979:14, para. 15 and 20.
(41) Judgment in Kühne and Heitz, para. 24.
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or res judicata, (42) which should still qualify as genuine EU general

principles.
B. — Codification in EU secondary law and the Court’s

“shift to legislation”
EU secondary law may resort to or develop a particular dimension of legal
certainty, even if that principle’s dimension has acquired some sort of primary
law recognition. This is the case of directives, regulations or framework deci-
sions establishing time-bars to adopt a decision or bringing proceedings or
using legal notions attached to legal certainty as res judicata or ne bis in idem.
It is obviously impossible to sum up all these norms. Nonetheless, I think that
the relevance of these secondary rules codifying legal certainty can be related
to two different legal scenarios. Firstly, where a secondary law provision is
applicable, the Court subsumes the general principle within the rule. (43) In
this case, the general principle exclusively functions as a ground for reviewing
the legislative choice made by the EU institutions, not its application. (44)
Once the rule passes the legality test, the general principle disappears as
far as the scope of the rule is concerned, its legal effects being determined
by those of the rule. Nevertheless, this does not exhaust the relevance of
EU secondary law. In the absence of a clear rule applicable where general
principles display the interpretation-guiding and gap-filling roles, legislative
choices seem decisive to the point of being difficult to ascertain which one
(the rule or the general principle) has prevailed (45) or even which role the
(42) Judgment of 30 September 2003 in Köbler, C-224/01, EU:C:2003:513, para. 37-38.

(43) See e.g., Judgment of the Civil Service Tribunal of 30 April 2014 in López Cejudo
v Commission, F-28/13, EU:F:2014:55, para. 100.
(44) K. Lenaerts and J. A. Gutiérrez Fons, “The Role of General Principles of EU
Law”, loc. cit., p. 187.
(45) The recovery of export funds on account of irregularities has recently provided
two interesting examples as to the use of the four-year time limitation (laid down in Arti-
cle 3(1) of Regulation No. 2988/95) for filling normative gaps concerning the duty to act
within a reasonable time. In the first case, the Court settled its retroactive application in the
absence of a prior time-limit rule (Judgment of 29 January 2009 in Josef Vosding Schlacht,
Kühl und Zerlegebetrieb and others, joined cases C-278/07 to C-280/07, para. 28-29).
The second one related to the possibility for Member State to set out a longer period for
recovery as admitted in the Regulation, where the Court dealt with a normative gap in
German law. Lacking a specific rule, a general 30 years time-limit established for civil
matters was by analogy applied by German courts, although they retained the ability to
shorten it on legal certainty and proportionality grounds. However, having found that
30 years was a disproportionate time-limit, the Court faced the “gap” so created in Ger-
man law by applying the time-bar enshrined in the Regulation instead of leaving it to the
national judges’ discretion (Judgment of 5 May 2011 in Ze Fu Fleischhandel and Vion
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general principle has played. (46) In these cases a shift to legislation is notice-

able in the Court’s approach to the general principle. Whether the aim of
this judicial policy is to pay due respect to the EU legislature competence or
laying the ghost of judicial activism by making the application of a general
principle more palatable is difficult to say. Probably both are in the Court’s
mind. However, this shift to legislation is not only extraordinarily important
in practice but also raises very important theoretical concerns. Firstly, it is
arguable that this transforms the traditional understanding of how general
principles are established and applied in EU law without a sound normative
foundation (47) and, by making them far too dependent on legislative choices,
it could lead to lessen the constitutional essence and potential that general
principles should enjoy. Secondly, this shift to legislation should be carefully
examined as to what extent it makes normative gap-filling closer or equivalent
to substitutionary direct effect, only paying attention to the horizontal alloca-
tion of competences but disregarding the vertical one.
IV. — Legal certainty as a limit to the full application of EU law :

Setting out the legal contexts
If the approach so far is not mistaken, we still have a very complex

general principle that pervades the whole functioning of EU law and the
way it works needs to be better understood. The key issue regarding general
principles seems to be the question of the legal context. Is there any chance
to define the legal contexts where legal certainty arises and limits the appli-
cability of EU law ? Or, do we have to settle for an entirely casuistic situ-
ation and therefore embrace the incoherence claim ? Frankly, I am neither
persuaded by the common assumption that casuistic case law automatically
proves incoherence or total unpredictability nor that legal context is such
an ungraspable notion making it impossible to legally assess the correct-
Trading, joined cases C-201/10 and C-202/10, EU:C:2011:282, para. 48-54). A similar

solution was given with regard to Portuguese law in Judgment of 17 September 2014 in
Cruz and Companhia, C-341/13, EU:C:2014:2230, para. 50-64.
(46) See Judgment in Nencini, para. 38-54, where it is hard to assess whether the
general principle has been used to extend the application of the rule at issue (5-year time-
limit) or the rule has been used to give content to the general principle in order to fill the
gap as to the starting date for calculating the reasonable period.
(47) See T. Tridimas, loc. cit., pp. 219‑220 ; M. Herdegen, “General Principles of EU
Law — the Methodological Challenge”, in U. Bernitz, J. Nergelius and F. Schulyok
(eds), General Principles of EC Law and European Private Law, The Netherlands, Wolters
Kluwer, 2013, pp. 343‑355.
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ness of a judicial reasoning as if the Court were awarded carte blanche

for whatever decision it sees fit. Both are actually, although in a different
way, legal realism postulates. In the following, an approach to the legal
contexts of legal certainty will be submitted, with the proviso that the aim
is to understand better how legal certainty works or should work and no
categorical classification is claimed.
I think that the first step in order to approach the legal context is to
acknowledge that the golden rule on general principles is of scarce use here.
This golden rule states that, as a general principle of EU law, legal certainty
binds not only EU institutions, but also Member States when implementing
EU law; (48) thus generally speaking a breach of legal certainty leads to
striking down or setting aside the conflicting measure. (49) However, in
the first place, the golden rule does not cover all the instances. In some
cases, violating legal certainty does not suffice to annul a legal act or it
only does so if other general principles are also at stake; (50) whence the
consequences of the breach are driven to compensatory mechanisms (e.g.,
actions for damages or fine reductions). (51) Furthermore, as seen in other
cases, infringing legal certainty may involve positive consequences. But, in
the second place, I think that the golden rule conceals the different ways in
which legal certainty intervenes to limit the application of EU law, because
of their common arrival point. So, setting out the legal contexts requires
going back upstream and looking for another approach that focuses on the
ways of limiting the full application of EU law. Since these ways indicate
how the general principle of legal certainty functions in a legal context, I
would call them functional legal contexts. Five such contexts are suggested
here.
(48) Judgment of 17 November 1993 in Commission v Spain, C-71/92, EU:C:1993:890,

para. 25.
(49) Judgment of 28 April 1988 in Mulder v Minister van Landbouw en Visserij,
120/86, EU:C:1988:213, and of 11 December 1990 in Spagl, C-189/89, EU:C:1990:450.
(50) See, with regard to the reasonable time requirement in competition fines, Judg-
ments of the General Court of 27 June 2012 in Bolloré, T-372/10, EU:T:2012:325,
para. 103-105 ; and of 9 December 2014 in Lucchini, T-91/10, EU:T:2014:1033, para. 328.
But the opposite was held in Nencini, para. 51 and 54.
(51) Judgments of 19 May 1992 in Mulder v Council and Commission, joined cases
C-104/89 and C-37/90, EU:C:1992:217, para. 19 ; of 27 January 2000 in Mulder v Council
and Commission II, joined cases C-104/89 and C-37/90, EU:C:2000:38 ; of 19 May 1983 in
Mavridis, 289/81, EU:C:1983:142, para. 25. See also, by analogy, in judicial proceedings
Judgment of 12 November 2014 in Guardian Industries, C-580/12 P, EU:C:2014:2363,
para. 17-20. As to fine reductions, see e.g., Judgments of the General Court of 15 July
2015 in Akzo Nobel NV, T-47/10, EU:T:2015:506, para. 324, and of 6 February 2014 in
AC-Treuhand II, T-27/10, EU:T:2014:59, para. 278.
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A. — Legal certainty preventing validity of general norms
Legal certainty requires law to fulfil certain conditions, such as clarity

and precision (in the sense described above), non-retroactivity or respect
for legitimate expectations. A legislative act that fails to honour them may
see its validity contested. When this constitutes an extremely serious conse-
quence affecting the EU legislature’s prerogatives, the judiciary must set a
high standard of infringement, since legal certainty, like fundamental rights
or any other principle in a legal system, is not absolute. So naturally most
cases would not meet this standard and, when it comes to it, the Court quite
understandably usually shifts to other principles (particularly proportional-
ity) to ground the ruling. For example, in Digital Rights Ireland the Court
quashed the directive on data retention with a legal certainty line of reason-
ing (precision and predictability) that easily fitted within the proportionality
test. (52) In Ze Fu Fleischhandel or Cruz and Companhia proportionality
was used to set aside the time limit applied in German and Portuguese law.
However, this ground for review is much more severe in cases dealing with
how Member States implement EU law, especially directives. (53) Here,
the Court requirements of clarity and precision are much less indulgent with
the national legislative choice, even if the latter is derived from constitu-
tional constraints such as Commission v Spain. (54)
B. — Legal certainty preventing applicability of general norms
A different legal context of legal certainty is placed outside the validity

realm and goes to the applicability of EU rules. In the traditional argu-
mentation for denying direct effect to directives in horizontal situations,
legal certainty concerns are paramount. But this functional legal context
is mostly related to the failure to publish measures properly in the Official
Journal. In these cases the Court has refrained from ruling the measure
invalid. Quite to the contrary, it has held the EU legal act concerned to be
(52) Judgment of 8 April 2014 in Digital Rights Ireland, C-293/12, EU:C:2014:238,

para. 54-69.
(53) See the classic work of S. Prechal, Directives in EC Law, 2nd ed., Oxford, OUP,
2005, pp. 76‑85.
(54) Judgment of 24 October 2013 in Commission v Spain, C-151/12, EU:C:2013:690.
Arguably this judgment encroaches on the case law of the Spanish Constitutional Court
regarding the allocation of legislative competences between State and regions derived from
Article 149(3) supplementing clause of the Spanish Constitution (see X. Pons Rafols, “El
Tribunal de Justicia y la supletoriedad del Derecho estatal como garantía del cumplimiento
autonómico del derecho de la Unión Europea”, Revista de Derecho Comunitario Europeo
(2014), No. 47, pp. 131‑156).
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valid, focusing on its unenforceability against individuals. (55) Neverthe-

less, the incisiveness of this unenforceability is less than crystal-clear since
it does not trump per se implementing national law, that it is enforceable
against individuals if it is complete and properly published. (56) Appropri-
ate publication of national law is, however, to be decided according to
national criteria provided that they respect the principle of publicity, that
is, that persons can get acquainted with the existence of the law and able to
ascertain what their rights and obligations are. (57) However, when lack of
proper publication is not about a failure in the official publication system or
a matter of procedural autonomy of Member States, but a deliberate choice
of EU institutions, the Court appears to be stricter requiring publicity at both
national and European levels and depriving the EU legal act of binding force
in so far as it seeks to impose obligations on individuals. (58)
C. — Legal certainty preventing interpretative effects

over other norms
Due to its transversal character, legal certainty is relevant in interpret-

ing norms. From its very beginning, legal certainty limits the obligation of
consistent interpretation, be it in the form of banning contra legem inter-
pretations where directives lack direct effect in horizontal cases (59) or in
the form of precluding a directive (60) or a framework decision (61) from
determining or aggravating criminal liability. While the Court has rigorously
stuck to the latter limitation in genuine criminal matters, (62) some hard
(55) Judgment in Skoma-Lux, para. 32-38, and 58-60.

(56) Judgments of 4 June 2009 in Balbiino, C-560/07, EU:C:2009:341, para. 31-32 ;
of 29 October 2009 in Rakvere Lihakombinaat, C-140/08, EU:C:2009:667, para. 32-34 ;
and of 12 July 2012 in AS Pimix, C-146/11, EU:C:2012:450, para. 40-42.
(57) Judgment of 20 June 2002 in Mulligan, C-313/99, EU:C:2002:386, para. 50-53.
(58) Judgment in Heinrich, para. 47, 63, and 65.
(59) See e.g., Judgments of 30 April 2014 in Kásler y Káslerné Rábai, C-26/13,
EU:C:2014:282, para. 65, and of 15 January 2014 in Association de médiation sociale,
C-176/12, EU:C:2014:2, para. 39.
(60) Judgment of 8 October 1987 in Kolpinghuis Nijmegen, 80/86, EU:C:1987:431,
para. 13-14.
(61) Judgment of 16 June 2005 in Maria Pupino, C-105/03, EU:C:2005:386,
para. 44-45.
(62) The Court has honoured this limitation even where more lenient national law
had been enacted in contravention of EU law (compare the opinion of Advocate-General
Kokott with the Judgment of 3 May 2005 in Berlusconi and others, joined cases C-387/02,
C-391/02 and C-403/02, EU:C:2005:270), or the EU legal act was a regulation functioning
more like a directive (Judgment of 7 January 2004 in X, C-60/02, EU:C:2004:10, para. 61).
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cases (63) and grey areas remain, even if the most recent formulae used
by the Court seem more respectful of the vertical allocation of competenc-
es. (64) Especially troublesome is, in my opinion, the distinction between
procedural and substantive norms applied by the Court rather uncritically
with regard to third pillar framework decisions or how these limitations
work in case of a compulsory interpretation of national law imposed by
Constitutional Court case law. (65)
D. — Legal certainty preventing redress of EU law infringements
A legal context, in my opinion wholly different from the previous ones

dealing with limiting the legal effects of general norms, is remedying EU
law infringements. This legal certainty functional context is legally conveyed
through the annulment procedure as well (i.e., contesting the validity or the
enforceability of the legal act that redress the concrete EU law infringement),
but limiting the redress of a wrongful act suggests a legal context where not
only effectiveness but also stability is at stake. This indicates that procedural
matters may be more compelling while the repercussions of a severe applica-
tion of the legal certainty principle are more controlled. These are by far the
most frequent cases, where the assessment of the respect of legitimate expec-
tations and a reasonable delay shows such extreme variety as to question the
coherence of the case-law or the ability to reach a viable unified understanding
thereof. La répétition de l’indu is paradigmatic of legal certainty sensitivity
towards the substantive field. If one compares unduly paid taxes and illegal
state aid, both instances of EU law breaches, one single legal certainty prin-
ciple preventing actual recovery (the redress) is hardly recognizable.
In theory, all this variety should disappear when, instead of pursuing
finality, the principle protects final administrative decisions or res judicata
(63) Compare Advocate General Cruz’s Opinion with the Judgment of 7 December

2010 in R, C-285/09, EU:C:2010:742.
(64) Although the Court mentions in its formulae general principles and legal certainty
or non-retroactivity as limits to the obligation of consistent interpretation by national
judges, it was hard to grasp whether those principles went further than banning contra
legem interpretations or aggravating criminal liability. Nevertheless, lately the formula is
apparently more respectful stating that it is for national law to set the limits of the possible
interpretations open to the judge (see e.g., Judgment in Maribel Dominguez, para. 31).
(65) Judgment of 26 February 2014 in Melloni, C-399/11, EU:C:2013:107. See
L. F. M. Besselink, “The parameters of constitutional conflict after Melloni”, ELRev
(2014), Vol. 39, (4), pp. 531‑552 ; P. Martín Rodríguez, “Crónica de una muerte anun-
ciada : comentario a la sentencia del Tribunal de Justicia (Gran Sala), de 26 de febrero de
2013, Stefano Melloni, C-399/11”, Revista General de Derecho Europeo (2013), No. 30,
pp. 1‑45, www.iustel.com.
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once achieved, leaving the door open only to possible damages through
a liability plea (Köbler or Metallgesellschaft). Indeed, the Court appears
to strongly adhere to this, even if it precludes remedying an infringement
of EU law. (66) However, the Court has granted two sets of exceptions
to this rule that may be problematic in different ways. The first type is
represented by the Byankov and Lucchini judgments. In Byankov dealing
with an administrative decision that became final without judicial inter-
vention, the Court used two arguments to hold that respecting finality in
that case was not justified : it was an utter violation of EU constitutional
law (antithesis of European citizens’ freedom in Article 21 TFEU) and the
administrative decision indefinitely perpetuated that violation without any
chance of reconsideration (likely a fairness tacit argument). (67) In the well-
known Lucchini case the Court grounded this exception to res judicata as
a very concrete and extraordinarily rare case entailing the violation of the
distribution of competences between Member States and the EU regarding
State aid. (68) Although it may be argued that the judicial reasoning in both
cases is not accurate enough or may be thorny in its details, they offer a
solid normative ground for granting an exception to finality and dealing
with future cases.
(66) Judgment in Kühne and Heitz, para. 24. Likewise, regarding res judicata, Judg-
ment of 16 March 2006 in Kapferer, C-234/04, EU:C:2006:178, para. 20-21.
(67) Judgment of 4 October 2012 in Byankov, C-249/11, EU:C:2012:608, para. 79-81.
However, although the judgment points in a right direction, some concerns remain. The
substantive arguments are not as straightforward as is appropriate to ground such a major
exception ; the last mention of the principle of effectiveness instead of plain primacy is
somewhat confusing because of its implications for procedural autonomy, and finally the
wording of the ruling does not correspond with the substantive reasoning so that the impres-
sion emerges of it being a solution for the “Bulgarian issue” already known to be temporary
in nature. If that were the case, maybe a minor adaptation of Ciola would have been a better
option since it would have also covered decisions adopted before 2007 (see Judgment of
29 April 1999 in Erich Ciola, C-224/97, EU:C:1999:212, and also potential arguments in
Judgment of 6 April 2006 in ED and F Man Sugar, C-274/04, EU:C:2006:233).
(68) Judgment of 18 July 2007 in Lucchini, C-119/05, EU:C:2007:434. See P. Martín
Rodríguez, “Res judicata pro veritate habetur c. Primacía del Derecho comunitario : un
combate por librar?”, Revista Española de Derecho Europeo (2007), No. 24, pp. 521‑557,
contending that this distribution should remain between national judges and the CJEU
(instead of the Commission) and refer to a previous decision of the Commission, whose
invalidity can only be assessed by the CJEU (and not to a compatibility decision per se).
The latter contention is confirmed by subsequent case law (Judgments of 3 September
2009 in Fallimento Olimpiclub, C-2/08, EU:C:2009:506, para. 26 ; of 22 October 2010 in
Commission v Slovakia, C-507/08, EU:C:2010:802, para. 56-57, and of 10 July 2014 in
Impresa Pizzarotti, C-213/13, EU:C:2014:2067 para. 61).
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The second type of exceptions that the Court has granted using the
principles of equivalence and effectiveness deserves a different conclusion.
For instance, in Kühne and Heitz, the Court resorted to the principle of
equivalence (and loyal cooperation) to establish the obligation of adminis-
trative bodies to review a final decision when certain controversial condi-
tions were met. Not only was this apparently bold case law very poorly
defined from the point of view of legal technique (explaining subsequent
references demanding further clarification such as i-21 Germany, Kapferer
or Kempter), (69) but its correlation with the failure by the national judge of
last instance to fulfil its obligation to refer the question to the court of justice
and ulterior conflicting Court of Justice’s case law pointed to a different
legal meaning and a very problematic relationship with res judicata. (70)
In other cases, the Court appears to have simply disregarded procedural
autonomy on behalf of a very unspecific understanding of the principle of
effectiveness. (71) The same could be contended regarding the exceptions
to res judicata based on the application of the principles of effectiveness
(Fallimento Olimpiclub) and equivalence (Impresa Pizzarotti). Probably
the problem is that, as has been compellingly argued, res judicata should
be considered a substantive rule (it is ultimately a general principle) and
therefore effectiveness and equivalence should only feature when dealing
with retrial rules, but not with the scope of res judicata. (72) Nonetheless,
maybe precisely because of the legal difficulties to come up with such a sub-
stantive rule, (73) the Court rather prefers to keep it within the procedural
autonomy of the States and benefit from the “open texture” of the principles
(69) Judgment of 19 September 2006 in i-21 Germany, C-302/04 and C-422/04,

EU:C:2006:586 ; Judgment of 12 February 2008 in Willy Kempter, C-2/06, EU:C:2008:78.
(70) See P. Martín Rodríguez, “La revisión de los actos administrativos firmes : un
nuevo instrumento de garantía de la primacía y efectividad del Derecho comunitario?”,
Revista General de Derecho Europeo (2004), No. 5, pp. 8‑15, and 19-23, www.iustel.com ;
X. Groussot and T. Minssen, “Res judicata in the Court of Justice Case-Law : Balancing
Legal Certainty with Legality?”, European Constitutional Law Review (2007), Vol. 3, (3),
pp. 399‑405.
(71) Judgment of 13 March 2007 in Thin Cap Group Litigation, C-524/04,
EU:C:2007:161. See P. J. Wattel, loc. cit., pp. 121‑124.
(72) A. Kornezov, “Res judicata of National Judgments Incompatible with EU Law :
Time for a Major Rethinking?”, CML Rev. (2014), Vol. 51, (3), pp. 809‑842.
(73) It is not just about overcoming the diversity of res judicata in national systems,
and the Court’s case-law thereon, but also how the Court deals with res judicata in its own
backyard, such as ThyssenKrupp Nirosta (Judgment of 29 March 2011 in ThyssenKrupp
Nirosta, C-352/09 P, EU:C:2011:191, para. 131-133), and particularly the awkward P and
O European Ferries case-law (Judgment of 1 June 2006 in P and O European Ferries,
joined cases C-442/03 P and C-471/03 P, EU:C:2006:356, para. 40-45).
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of equivalence and effectiveness, that may grant EU law the same protection
as national constitutions or allow it to benefit from national procedural rules
intended to execute ECtHR’s judgments, as the recent Opinion of Advocate
General Niilo Jääskinen in the Târșia case one again proves. (74) However,
it is submitted that this way is riddled with potential traps and unintended
further consequences and the Court should tread lightly. (75)
E. — Legal certainty preventing full consequences

of EU law infringements
The Court of Justice has resorted in its reasoning to legal certainty in

order to qualify the effects of its rulings to avoid future legal vacuum and/
or affect past decisions. This qualification, explicitly admitted in Article 264
TFEU, has enlarged its scope of application beyond the annulment proce-
dure and the obviously analogous preliminary ruling on the validity of EU
law, (76) to interpretative preliminary rulings (77) (or even infringement
proceedings or actions for damages (78)). The limitation which legal cer-
tainty points to is convergent in both aspects (avoiding future legal vacuum
and respecting past decisions) when invalidity is due to formal reasons
and the Court has an already viable legislative choice at its disposal. (79)
(74) Opinion of Advocate General Jääskinen delivered on 23 April 2015 in Târșia,

C-69/14, EU:C:2015:269. At the time of writing, the judgment is still pending.
(75) The strategic or plainly defective use of the preliminary reference by national
courts is as well-known as it is ignored by the Court. The problem lies in my opinion in
two points: (a) preliminary rulings’ effects go far beyond the instance to the permanent
limitation of the national rule (see Fallimento Olimpiclub); (b) an unspecific use of equiva-
lence between preliminary rulings and ECtHR’s judgments might be ignoring the fact that
the ECtHR substantively rules on the same case, which could only be very unorthodoxly
applied to preliminary rulings.
(76) See e.g., a negative answer in Judgment of 6 November 2014 in Feakins, C-335/13,
EU:C:2014:2343, para. 65 ; and a positive one in Judgment of 9 November 2010 in Volker
und Markus Schecke, C-92/09, EU:C:2010:662, para. 93-94.
(77) See the seminal Judgment of 8 April 1976 in Defrenne II, 43-75, EU:C:1976:56,
para. 74.
(78) The Court has not ruled out this possibility (see Judgment of 8 April 2014 in
Commission v Hungary, C-288/12, EU:C:2014:237, para. 64). See J. Van Meerbeeck,
op. cit., p. 86.
(79) Judgments of 26 November 2014 in Parliament and Commission v Council,
joined cases C-103/12 and C-165/12, EU:C:2014:2400, para. 90 ; and of 28 April 2015 in
Commission v Council, C-28/12, EU:C:2015:282, para. 60-61. Without mentioning legal
certainty, the Court appeals to the proper implementation of the EU policy otherwise
compromised or questioning an international treaty (e.g., Judgments of 16 April 2015 in
Parliament v Council, C-540/13, EU:C:2015:224, para. 61-64, and of 22 October 2013 in
Commission v Council, C-137/12, EU:C:2013:675, para. 78-81).
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But contrarily and rather naturally if the infringement is due to substantive

reasons, the Court is less prone to limit the effects of its rulings, demand-
ing two conditions be met : the good faith of those concerned and a risk
of serious difficulties. (80) These conditions seem to be linked to the large
number of good faith past relations and to an objective uncertainty of EU
law (81) and not anymore to financial repercussions as such. (82) However,
the likelihood, legal justification and consequences of this droit transitoire
jurisprudentiel (83) apparently differ not only according to the judicial pro-
ceeding, but also according to the concrete infringement involved, as the
thorough reasoning in Skoma-Lux suggests. (84)
Apparently reviewing these five functional legal contexts strongly sup-
ports the idea of an erratic case law. (85) It cannot be denied that some
rulings are extremely controversial or even hard to agree with and that the
Court should think more about all these functional legal contexts because
they offer useful normative grounds to master and bridle the application of
the EU general principle of legal certainty. However, it should be borne in
mind that these functional legal contexts only stress one dimension and that
other variables may well justify many of those differences. Among those
variables, these five are suggested.
(a) As has been seen, legal certainty involves many different components
and a number of them may be pertinent in a concrete case. However, the
mentioned dialectical nature of legal certainty explains that those pertinent
components may not point in the same direction. (86)
(80) Judgment of 17 September 2014 in Liivimaa Lihaveis, C-562/12, EU:C:2014:2229,

para. 81.
(81) Judgment of 13 December 2012 in Forposta y ABC Direct Contact, C-465/11,
EU:C:2012:801, para. 45.
(82) See E. Sharpston, “The Shock Troops Arrive in Force : Horizontal Direct Effect
of a Treaty Provision and Temporal Limitation of Judgments Join the Armoury of EC
Law”, in M. Poiares Maduro and L. Azoulai (eds), The Past and Future of EU Law, Hart
Publishing, Oxford, 2010, pp. 252‑264, (263).
(83) J. Van Meerbeeck, op. cit., pp. 173‑180.
(84) The Court chose to distinguish this case from the usual limitation of interpretative
preliminary rulings, emphasized its similarities with Article 264 TFEU’s cases and added a
particular caveat regarding final coercive administrative or judicial measures encroaching
on fundamental rights (Judgment in Skoma-Lux, para. 67-73).
(85) One could appeal to the “potentialité événementielle” of the judicial decision
(J. Van Meerbeeck, op. cit., pp. 496‑497), or the paradoxical unpredictability of ruling
on legal certainty (P. Popelier, loc. cit., pp. 60‑63), which are milder versions of the
incoherence claim.
(86) Using a non-extreme example, in Skoma-Lux, violation of Article 297 TFEU
pointed at invalidity, while EU law unity advised confining the consequences to those
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(b) The substantive legal field may condition the understanding of how
legal certainty must play out, which is patent for State aid or competition
law. In both cases the optimization of legal certainty requirements without
regard to the purpose of the EU policy would greatly impair the efficacy of
the latter. The Court has sometimes stressed these substantive arguments.
For example when reducing Commission’s guidelines reliability to avert
potential cost-benefit analysis by enterprises (87) or when preventing ex
post facto compatibility decisions from excluding illegality in order not
to discourage States from fulfilling their prior notification duty that is the
cornerstone of State aid system. (88) Substantive legal contexts are relevant
also because other legal mechanisms may not be suitable to redress the con-
sequences of infringements. Although the Court has not explicitly pointed
it out, in the State aid field the application of State liability for breaking
EU law at the national level does not offer any real option to restore fair
competition. (89)
(c) The intermediate position of Member States is of course a crucial
feature of the legal context since it may lead to twofold legal certainty
standards (national and European) that are divergent and, as has been said,
the Court has not yet clarified how this is handled. So, the point is to explore
whether the Court benefits from this undefined state to deal with the three
different legal contexts that the intermediateness of the State produces with
regard to legal certainty guarantees in cases of redressing EU law infringe-
ment (the fourth functional context): protection of individuals’ infringement
against the State and the EU (e.g., restitution of undue export subsidies),
protection of States’ infringement against the individual and the EU (e.g.,
affected (i.e. pointed to unenforceability against individuals) ; again stability of past deci-
sions pointed to limiting the effects of that unenforceability ruling.
(87) See e.g., Judgment of the General Court in SLM, para. 106. A similar struggle
now continues regarding “criminal” liability of a consulting enterprise not operating in
the market at issue (see Judgments of the General Court of 8 July 2008 in AC-Treuhand I,
T-99/04, EU:T:2008:256, para. 127, and in AC-Treuhand II, para. 43-44, and the opposing
Opinion of Advocate General Wahl delivered on 21 May 2015 in AC-Treuhand, C-194/14
P, EU:C:2015:350).
(88) See e.g., Judgment of 5 October 2006 in Transalpine, C-368/04, EU:C:2006:644,
para. 41-42. The same goes for restricting the scope of legal certainty as preventing actual
recovery (see Judgments of 15 December 2005 in Unicredito, C-148/04, EU:C:2005:774,
para. 104-109, and of 22 October 2010 in Commission v Slovakia, C-507/08, EU:C:2010:802,
para. 49-55, and 61). Lucchini might also be interpreted as definitely closing the doors
to State aid beneficiaries attempting to circumvent the European procedure by going to
national courts just in case.
(89) P. Martín Rodríguez, “Res judicata…”, loc. cit., pp. 544‑547. See e.g., Judgment
of 19 March 2015 in OTP Bank Nyrt, C-672/13, EU:C:2015:185, para. 74-78.
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unduly paid taxes) and protection of individuals’ and States’ infringement

against the EU (e.g., in State aid or use of EU funds). If this is the case,
those different legal contexts offer normative arguments for better defining
the relation between national and European legal certainty standards that
should be explored.
(d) The procedural context is also decisive for the application of the
principle of legal certainty since it determines the consequences of the rul-
ing. So, ruling that State implementation of a directive is incompatible with
EU law because of a breach of legal certainty involves quite different legal
consequences in cases of an infringement procedure or a preliminary refer-
ence related to a vertical or a horizontal situation.
(e) Finally, the weight conferred upon legal certainty within the judicial
reasoning is to be taken into account because, as said, the Court tends to
elude rulings mainly or exclusively based on legal certainty so that other
principles (proper to the substantive legal domain, proportionality, equiva-
lence or effectiveness) hold the central position. Therefore, legal certainty
is sometimes no more than a concurring legal argument. (90) It is probably
unfair to sustain the incoherence claim in those concurring uses of the prin-
ciple. Of course this puts the focus on the acceptability of judicial decisions
and the quality of the legal reasoning underpinning the Courts’ rulings. The
intricacy of legal contexts (where general principles and particularly legal
certainty are to play) calls for an enhanced and open reasoning. Resorting
to a messy mix of substantive, procedural (e.g., equivalence and effective-
ness) or constitutional (mainly primacy but apparently also effectiveness)
arguments, without openly pointing out the specific features of the legal
context is undesirable and can be perceived as erratic. Moreover, the Court
should react to the legal context, not to the facts as such, however charitable
the intention might be. (91)
(90) See an interesting approach to legal arguments with regard to legal certainty

(acceptability) in EU multilingual context in E. Paunio, op. cit., pp. 159‑174.
(91) To state it clearly, Târșia is not about res judicata, but a bad lawyer ; Fallimento
Olimpiclub was not about effectiveness because of a national excessive res judicata but
about an improper desire to legally reassess the facts as definitely established twice by the
judge of first instance ; Kühne and Impresa Pizzarotti were not really about equivalence
but about national judges crying for help to make right their past final wrongs.
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Conclusion
Throughout the analysis important concerns and grey areas with regard to
legal certainty in EU law have emerged. All those questions deserve more
attention and some of them should perhaps be reconsidered, but this is far
from concluding to the capriciousness of legal certainty or an incoherent
case law. In my opinion the common erratic impression is often grounded
on a superficial analysis of what legal certainty involves or how it works.
Apart from the usual doctrinal over-dimension, the unawareness of the legal
contexts of legal certainty may put the blame on the wrong head. Admittedly
some of the concerns reviewed are specific to legal certainty (particularly
its unsolved repercussions on Member States’ procedural autonomy) but
many others are just common to all or some EU general principles (such
as ineffective umbrella principles compared to creeping minor principles,
the relevance of the legal positive surrounding and the Court’s shift to leg-
islation in partial or secondary law codification, blurred boundaries as to
scope, the criteria for determining direct effect and how the substantive legal
field conditions general principles’ application or to the Court’s communica-
tion policy for that matter (as to defective legal argumentations weakening
acceptability where the mishandling of other general principles such as
effectiveness, equivalence or proportionality should also get some head-
lines). On the contrary, a deeper understanding of the legal contexts, such as
the one suggested here exploring the functions of legal certainty and other
defining variables, may contribute to a better understanding and application
of this general principle in EU law. This is, in my view, the challenge that
legal certainty demands : to be perfected instead of abandoned. (92) Even if
we were to admit that law is undetermined, as Americans do, legal certainty
(as imperfect as it may be) is an extraordinarily advantageous legal tool to
handle law indeterminacy in a right way. All in all, legal certainty is not an
inherent characteristic of a legal system but a substantive value integrated
at a concrete historical moment. (93) This European value might not be
flawless, but definitely it is appropriate, useful and consistent with the way
that we Europeans conceive the rule of law.
(92) P. Craig, EU Administrative Law, 2nd ed., Oxford, OUP, 2012, p. 589.

(93) A.‑E. Pérez Luño, “Seguridad jurídica”, in E. Garzón Valdés and F. J. Laporta
(eds), El derecho y la justicia, 2nd ed., Madrid, Trotta, 2000, p. 481.
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The Principle of Legal Certainty and The Limits To The Applicability of EU Law

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Pablo Martin Rodriguez

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Introduction, par Jean-­Victor Louis........................................................ 3

CAHIERS DE DROIT EUROPEEN

S. Adam (Luxembourg-Gand) A.-L. Sibony (Louvain-la-Neuve)

Colloque 10 septembre 2015

MM. A. Bleckmann (Münster), D. Edward (Edimbourg), C.-D. Ehlermann

Pablo Martín RODRÍGUEZ*

Sécurité juridique — Principes généraux de droit de l’Union europée-

Souvent surdimensionnée, la sécurité juridique est appréhendée par la

Legal certainty — General principles of EU law — Legal context —

The present contribution approaches legal certainty — which is often

* Associate Professor of Public International Law of the University of Granada (pamar-

Probably any attempt to approach either theoretically or practically legal

This contribution will proceed as follows : in Section I, legal certainty will

I. — Uncertainties about legal certainty as an optimization

Legal certainty, as a general principle of EU law, has prima facie a

(3) Judgment of 12 February 2015 in Parliament v Council, C-48/14, EU:C:2015:91,

is not confined to legislation but reaches also the protection of established

complaint usually made). This specialization poses the greatest challenge

II. — Legal certainty as a paradigmatic general principle

Legal certainty, as complex as it may be in conceptual terms, has been

(15) See A. Mangas Martín and D. J. Liñán Nogueras, Instituciones y Derecho de la

A. Arnull, C. Barnard, M. Dougan and E. Spaventa (eds), A Constitutional Order of

law or against its enforcement, which are essentially decentralized in EU

III. — The effects of partial codification of legal certainty

Section II has underlined the significance of the legal environment sur-

(27) See S. Prechal, loc. cit., pp. 11‑13, and 22.

A. — The limited effects of recognition in EU primary law

In theory, the most intense effects are produced in cases of codification

(30) Judgments of 11 December 2007 in Skoma-Lux, C-161/06, EU:C:2007:773,

ing them as a codification of the general principle of legal certainty, which

res judicata (36) or the prohibition of legislative interference with pending

(36) See Judgment of the ECtHR of 24 July 2003 in Ryabykh v Russia,

or res judicata, (42) which should still qualify as genuine EU general

B. — Codification in EU secondary law and the Court’s

(42) Judgment of 30 September 2003 in Köbler, C-224/01, EU:C:2003:513, para. 37-38.

general principle has played. (46) In these cases a shift to legislation is notice-

IV. — Legal certainty as a limit to the full application of EU law :

If the approach so far is not mistaken, we still have a very complex

Trading, joined cases C-201/10 and C-202/10, EU:C:2011:282, para. 48-54). A similar

ness of a judicial reasoning as if the Court were awarded carte blanche

(48) Judgment of 17 November 1993 in Commission v Spain, C-71/92, EU:C:1993:890,

A. — Legal certainty preventing validity of general norms

Legal certainty requires law to fulfil certain conditions, such as clarity

B. — Legal certainty preventing applicability of general norms

A different legal context of legal certainty is placed outside the validity

(52) Judgment of 8 April 2014 in Digital Rights Ireland, C-293/12, EU:C:2014:238,

valid, focusing on its unenforceability against individuals. (55) Neverthe-

C. — Legal certainty preventing interpretative effects

Due to its transversal character, legal certainty is relevant in interpret-

(55) Judgment in Skoma-Lux, para. 32-38, and 58-60.

D. — Legal certainty preventing redress of EU law infringements

A legal context, in my opinion wholly different from the previous ones

(63) Compare Advocate General Cruz’s Opinion with the Judgment of 7 December

(69) Judgment of 19 September 2006 in i-21 Germany, C-302/04 and C-422/04,

E. — Legal certainty preventing full consequences

The Court of Justice has resorted in its reasoning to legal certainty in

(74) Opinion of Advocate General Jääskinen delivered on 23 April 2015 in Târșia,

But contrarily and rather naturally if the infringement is due to substantive

(80) Judgment of 17 September 2014 in Liivimaa Lihaveis, C-562/12, EU:C:2014:2229,

Introduction, par Jean-Victor Louis........................................................ 3

MM. A. Bleckmann (Münster), D.  Edward (Edimbourg), C.-D. Ehlermann