REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01836.x |
| Date | 01 September 1990 |
| Published date | 01 September 1990 |
REVIEWS
Anthony Amull,
The
General Principles
of
EEC
Law and
the
Individual,
London and
Leicester: Leicester University PresdPinter Publishers,
1990,
x
and
300
pp, hb
f49.50.
The novel approach
of
this European Community law text which is an adaptation of a
doctoral thesis lies in its application of what is often felt by British lawyers to be an
amorphous collection of concepts known as the ‘general principles of law’ to specific areas
of what can be broadly classified as ‘social law.’ Arnull’s thesis is to take the European
Court’s use of four main general principles of law (legal certainty, non-discrimination
(equality), proportionality and the right to a hearing) and to test the application of these
principles to three core areas
of
law which affect individual rights (the free movement
of persons, social security and equal treatment of men and women).
After a brief Introduction outlining the broad scope of the general principles of law
the book is divided into four parts. Parts
1-111
give an adequate account of the relevant
areas
of substantive law (useful for teaching undergraduate courses) followed by a discussion
of the application of the general principles of law to the relevant substantive law. The
latter is
an
extremely detailed account and is perhaps more suited to postgraduate teaching.
This is then followed by Part IV which summarises, rather than analyses, the main points
of the research. The text is supplemented by a case list (which disappointingly abbreviates
many of the case names and supplies only the European Court Reports reference) and
a Select Bibliography.
What emerges is that the general principles of law are not applied uniformly over the
different areas of social law. For example, the principle of proportionality has had the
greatest application
in
the area of the free movement of persons, one of the core ‘fundamental
freedoms’ on which the Treaty of Rome
1957
was premised. As such, and quite significantly,
the Member States’ power to discriminate against migrant workers from European
Community states has been subject to tighter judicial control. In contrast, the principle
of proportionality has made little impact in the area of social security provision partly
because
of
the limited legislative competence of the European Community in this field
and partly, one suspects, because of the European Court’s reluctance to interfere with
general public expenditure issues within the Member States. Arnull slightly underplays
the impact of the principle of proportionality in the equal treatment arena. In particular
the application of the principle, twinned with the concept of indirect discrimination arising
from the
Bilk-Kaujhuus
ruling, may have
a
greater potential than he admits. Similarly,
an application of the
Johnston
and more recent
Rinner-Kuhn
rulings may unleash a far-
reaching potential for challenging
all
aspects of the discriminatory impact of national
legislation.
An interesting fact which emerges from this research is that even within the specific
areas of substantive law the interpretation of the general principles of law may assume
different guises according to the context both
within
and
across
the areas of law under
scrutiny. For example, in looking at the principle of non-discrimination (equality), the
definition of covert or indirect discrimination is subject to a broader interpretation under
the equal treatment programme than under the
free
movement of persons programme but,
somewhat paradoxically, is hedged with a greater emphasis on the justification of defence
of the discriminatory act. In contrast, the principle of proportionality is more prominent
in
the free movement of persons
cases
as a means of scrutinising the discriminatory behaviour
of
the Member States.
A
significant issue which emerges from the study of the principle of a right to a hearing
is the relatively under-developed role of procedural rights in European Community law.
While several pieces of secondary legislation contain procedural rights, these rights have
704
To continue reading
Request your trial