General principles of community law

• Author: Georgeta Modiga - Gina Livioara Goga
• Position: Lecturer Dr. At 'Danubius' University in Galati, Romania, Faculty of Law - Assistant Lecturer PhD at 'Danubius' University in Galati, Romania, Faculty of Law
• Pages: 190-196

GENERAL PRINCIPLES OF COMMUNITY LAW

Modiga Georgeta

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Goga Gina Livioara

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Abstract

As mentioned in the literature, human rights have been raised in the contemporary

century at European level at the rank or cardinal problem of international relations. This

problematic was made dynamic by the adoption of the Universal Declaration f Human Rights

on December 10

th

1948 and, based on that, of a high number of international documents in

the area of human rights at the UN level and at regional level – the C ouncil of Europe,

OSCE, Latin America, Africa within the Arab League.

Key words: community law, fundamental human rights, principles of law.

Introduction

At the European Congress in The Hague on May 1948 the necessity of a European

system of protecting human rights was brought in discussion for the first time, as a reaction

towards the hesitations and difficulties met in the process of accomplishing the indispensable

compromise within the UN to establish the universal system of protecting human rights. The

new European system was supposed to comprise a jurisdictional protection system thorough

a Court of Justice whose decisions were to be mandatory for the member states of the

Council of Europe and whose jurisdiction would be accessed by any citizen of those states.

The proposition was received with reticence by the member states of the Council of Europe

invocating their sovereignty and for feat that the following obligations would have an abusive

character. Therefore, the adoption of a European Convention for defending human rights and

fundamental liberties has been proposed.

The community law, as a factor of integration in the Communities, has determined the

Court of Justice to use to use also the expression “community of law”

1

. The perfecting of this

community of law, the consolidation of its coherence have been searched using the extraction

– even from treaties- of some general principles, although not explicitly formulated in the

treaties but presumed, that would govern the ways of functioning of the judicial relations

within the Communities. The Court of Justice, during time, gave expression to such

principles. We can state therefore that they have been constituted and have been released in

praetorian manner. Different causes that the Court is asked to solve have determined the

concretization of these principles. For this, the judicial order of the member states had to be

taken into consideration, as well as the international judicial order, but only to the extent in

which the specificity of the communit y law would not be vitiated and would not subordinate

to the two abovementioned judicial orders.

The Court extracted therefore numerous general principles of law that were applied

with great flexibility. Among these principles, we can mention: the principle of the useful

effect in interpreting the treaties, the contradictory character of the instance, the conciliation

of good administration of justice and the security of judicial relations, the rules of inter

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Lecturer Dr. at “Danubius” University in Galati, Romania, Faculty of Law, e-mail address:

georgeta.modiga@univ-danubius.ro

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Assistant Lecturer PhD at “Danubius” University in Galati, Romania, Faculty of La w, e-mail address:

ginagoga@univ-danubius.ro

1

CJEC, 1986, Aff. 294/83, Rec. 1986, p. 1339.