Maltese laws on marriage from the point of view of private international law
By Aron Mifsud-Bonnici
General principles of law can be found in all legal systems. Their function is clearly to assist where written sources of law have failed to provide an answer, since the latter can hardly cover all questions which come before the Courts. The development of general principles has, within the Member States of the European Community, taken place over a number of years. The European Court of Justice (ECJ) has developed a doctrine that rules of Community law may be derived from general principles of law in addition to treaties and EC legislation. This has been seen by some as a means by which the ECJ has effectively justified its stepping into the law-making process of the EC. In this sense the ECJ has had quite a creative role: it has identified those principles which command a common assent due to their generality and, with the aid of a number of EC Treaty Articles, it has invoked these general principles as the legal foundation of a number of its judgements.
The ECJ will look for general principles particularly by reference to the EC Treaties and to the legal systems of the Member States. In the case of Treaty Provisions, the Court would declare a particular provision to be an application of some more general principle, and will then proceed to apply the general principle in its own right. On the other hand, when the Court refers to municipal law, it does not limit its search to those principles which are strictly applied throughout the Community by all the Member States. A general acceptance of the principle by most Member States appears to be enough and the Court is prepared to apply principles of law even if they are not found in the legal system of every Member State. It is essential to note, however, that whatever the factual origin of the principle, it is applied by the ECJ as a principle of Community law and not of municipal law. This is particularly evident in the protection of fundamental rights.
Due to the function of general principles it is quite probable that, even without the existence of any specific Treaty provisions, the ECJ would apply general principles of law. Nonetheless, a justification for general principles as a source of law was also provided by the ECJ by reference to three Articles of the EC Treaty, namely the following:
Article 164 states that “The Court of Justice shall ensure that in the interpretation of the Treaty the law is observed”. Since the word “law” was used in this Article, it was presumed that it had to refer to something of a more general application, beyond the Treaty itself.
Article 173 deals with judicial review and specifies the grounds upon which an annulment can be based. The first paragraph of the Article includes the words “… infringement of this Treaty, or of any rule of law relating to its application …”. Therefore, the phrase “any rule of law” must necessarily refer to something other than the Treaty itself. This Article has been used by the ECJ as a basis for the principle that an act of the EC may be quashed for the infringement of a general principle of law.
Article 215 (second paragraph) is concerned with non-contractual liability, or tort, and expressly provides that the liability of the Community is based on the “general principles common to the laws of the Member States.”
General principles of law can be divided into three groups, namely, principles of administrative legality and due process, the economic pillars of the internal market, and fundamental rights. There are, however, a number of important general principles which straddle all three categories. Equality would be a typical example.
A number of provisions in the Treaties manifest the principle of equality. Article 6 of the amended Treaty prohibits discrimination on grounds of nationality. Article 40(3), in respect of agriculture provides that “…The common organisation shall be limited to pursuit of the objectives set out in Article 39 and shall exclude any discrimination between producers or consumers within the Community …”. Furthermore, Article 119 states that “Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work … Equal pay without discrimination based on sex means: (a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement; (b) that pay for work at time rates shall be the same for the same job.”
The above principles were intended to regulate a particular field, or a particular aspect, of EC law. Nonetheless, the European Court has gone beyond these provisions and has held that there is a general principle of non-discrimination in EC law: there must be no arbitrary distinctions between different groups within the Community. The European Court has in a number of cases dealt with questions of equality and discrimination as follows:
In the Skimmed-Milk Powder case, the Community sought to reduce the surplus of skimmed-milk powder in the EC by compelling animal feed producers to include it in their animal feeds instead of soya, which is much less expensive. This measure would have greatly advantaged the skimmed-milk powder producers, the dairy-farmers, but would have harmed all livestock breeders. It was the Court’s view that a measure which discriminates between different categories of farmers could not stand, due to the general principle of equality.
The question of sex discrimination was considered in the Sabbatini v. European Parliament case. A provision stated that a woman could be regarded as the “head of the family” only by way of exception and, generally, as an exception to the rule that it is the husband who is to be regarded the head. Due to this provision the plaintiff was denied a certain allowance as she was not the “head of the family”. It was the view of the Court that such a provision discriminated on the ground of sex and, since protection from sexual discrimination is a general principle of law, the rule could not stand.
On the other hand in Airola v. Commission it was a Member State’s internal law rule which was discriminatory: Italian law provides that, on marrying an Italian man, a foreign woman acquires Italian nationality ipso iure, and even if this was contrary to her intention. Nonetheless, a foreign man marrying an Italian woman was not bound by the same rule. Due to this, the plaintiff lost an expatriation allowance which was not payable if the official acquired nationality of the country where she worked. Here EC law had given effect to a discriminatory national law provision, but the European Court declared that EC law cannot take account of nationality acquired involuntarily under such a provision.
The plaintiff in Prais v. Council, a Jewish woman, claimed that she was being discriminated on religious grounds when she encountered difficulties while trying to secure a post as a Council official. On application, she was informed by the Council that she was required to sit for an examination on a particular day . This day, however, happened to be a Jewish festival and thus she could not attend. The Council would not allow her to sit on an alternative date as all candidates had to sit the examination on the same day and neither could the Council change the date of the exam since all arrangements had been completed. Failing to sit for the examination, the plaintiff proceeded against the Council before the European Court where she requested that the examination and its results be annulled; damages were also claimed. She based her claim, inter alia, on what she claimed was a general principle prohibiting religious discrimination. However, it was the view of the European Court that the Council did not discriminate on the grounds of religion: if the Council was not informed of the fact before the date was fixed, it could not be required to avoid appointing a religious holiday as the examination date. The Court continued that if the appointing authority is informed a priori then it should take these religious difficulties into account, and should try to avoid setting the examination on the day in question. This view of the Court, however, may be interpreted in the sense that the appointing authority could still choose the date in question, but the fact that this would be undesirable should convince the authority to avoid the date if reasonably practicable.
The notion of fundamental human rights was introduced into Community law by the ECJ decision in Stauder v. City of Ulm. The Court was under pressure to introduce this fundamental concept because the supremacy of Community law was being questioned in Germany. German lawyers were in doubt whether Community law prevailed over their own Constitution, particularly in the field of fundamental human rights. They were contrary to the application of a Community rule which was contrary to fundamental human rights as protected under their Constitution. It was imperative for the ECJ to bring to terms any possible schism and, consequently, it declared the existence of a general principle of fundamental human rights in Community law and set forth to itself annul any EC rule which went contrary to such principle.
Stauder v. City of Ulm concerned a community scheme for the distribution of butter at reduced prices on the disclosure of the name of the recipient. During proceedings before the German Court, the plaintiff claimed that this requirement of disclosure was contrary to his fundamental human rights as protected under the German Constitution. The issue was referred to the ECJ which interpreted the scheme as not necessarily requiring the said disclosure and that “… interpreted in this way the provision at issue contains nothing capable of prejudicing the fundamental human rights … protected by the Court.” It is clear that the ECJ here accepted the concept as a general principle of EC law.
In Internationale Handelsgesellschaft v. EVSt, the German Verwaltüngsgericht referred to the ECJ the question of whether the import and export licensing system under the common organisation of the grain market was valid. The plaintiff had claimed that such system was not compatible with the principles of German constitutional law. In its ruling, the Court refused to impugn a Community act for incompatibility with the constitutional law of a Member State. Nevertheless, the Court added that:
“… an examination should be made as to whether or not any analogous guarantee inherent in Community law has been disregarded. In fact, respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to Member States, must be insured within the framework of the structure and objectives of the Community. It must therefore be ascertained, in the light of the doubts expressed by the Verwaltüngsgericht, whether the system of deposits has infringed rights of a fundamental nature, respect for which must be ensured in the Community legal system.”
While Stauder v. City of Ulm confirmed that fundamental rights exist in EC law, and Internationale Handelsgesellschaft identified the constitutions of member states as a primary source of these rights, Nold v. Commission went a step further. In the first place it confirmed that it would not hesitate to annul an EC rule which goes contrary to fundamental rights. Secondly, it pointed towards international treaties as a new source of fundamental rights or, in the words of the ECJ, “international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories.” In fact, in Hauer v. Land Rheinland-Pfaltz the provisions of the European Convention on Human Rights were analysed .
One will note that the ECJ has adopted a different approach to fundamental rights as opposed to other general principles which it has accepted. This is essentially due to the need that was felt to “appease” the German courts into accepting the supremacy of EC law, even if in conflict with the Member States’ constitution. The Court is more influenced by national legislation when applying this general principle. The reasoning of the ECJ is that the EC notion of fundamental human rights is inspired by the concepts behind municipal law provisions: the Court does not concede that it may be actually applying the Member States’ internal law. It is debatable whether the Court is required to apply every fundamental right found in all Member States, or a right which is accepted in some Member States, or whether the Court is to look for a trend. Ultimately, it is up to the Court to decide which fundamental rights it should or should not apply. Nevertheless, a strong presence of policy considerations is felt: the Court would probably accept a right protected in only one Member State if it is not prejudicial to the fundamental scope of the European Community.
Another general principle applied by the ECJ is that of proportionality. This principle is derived from German law (there referred to as Verhältnismässigkeit) where it underlies certain provisions of the German Constitution. This principle first affected EC law in the Internationale Handelsgesellschaft case. It was stated that
“A public authority may not impose obligations on a citizen except to the extent to which they are strictly necessary in the public interest to attain the purpose of the measure.”
It is clear, therefore, that if the burdens imposed are clearly out of proportion to the object in view, the measure will be annulled by the Court. This principle appears to affect the economy of the internal market and consequently has an extensive application within the Community. Proportionality has since found confirmation in the EC Treaty itself where in Article 3b it is stated that “An action of the Community shall not go beyond what is necessary to achieve the objectives of the Treaty.” The Court will tend not to interfere unless there is blatant and obvious infringement of the principle. Even with the incorporation of the principle into the Treaty, the creative role of the ECJ is still felt: as proportionality is a relative concept, it is up to the Court to determine whether a measure is disproportionate or otherwise. The Skimmed-Milk Powder case mentioned above was partly decided on the basis of proportionality: forcing animal-feed producers to purchase skimmed-milk powder was not necessary in order to diminish the surplus.
A number of procedural rights were considered so essential by the ECJ that they were declared to be general principles of law. These would include the right to a hearing which was considered as a general principle in Transocean Marine Paint Association v. Commission. This case made extensive references to English law in adopting the right to a hearing into Community law. Advocate General Warner examined the various legal systems of Member States and emphasised the role natural justice played in England. He showed that the notion of audi alteram partem is, in one way or another, also present in most other Member States. The Court adhered to Warner’s opinion when it stated that “a person whose interests are perceptibly affected by the decision taken by a public authority must be given the opportunity to make his point of view known.” This was considered by the Court to be a general rule of Community law. This principle was later referred to by the ECJ as “the rights of the defence” and today also covers rights such as that of non-self-incrimination and legal representation.
The principle of legal certainty is one of the widest generality. Specifically, however, it has been applied to refer to the principle of legitimate expectations and the principle of non-retroactivity. The origin of the former principle is German law and, according to this notion, EC measures must not, in the absence of an overriding matter of public interest, violate the legitimate expectations of those concerned. This concept requires the encouragement of a reasonable expectation, a reliance on that expectation and a loss resulting from the breach of that expectation. The ECJ clearly stated this principle in August Töpfer & Co. GmbH v. Commission. The plaintiff, who was an exporter, adhered to a Community scheme wherein he could cancel his licence if the value of a particular refund fell due to currency fluctuations. An EC Regulation suddenly withdrew this right of cancellation, evidently to the plaintiff’s disadvantage. Töpfer sought to annul this Regulation since it breached the principle of legitimate expectations. This principle was upheld by the ECJ, even though the case failed on the merits.
According to the principle of non-retroactivity, a measure cannot take effect before it is published. This concept was successfully invoked in R v. Kirk which dealt with non-retroactivity of penal provisions brought into effect by an EC Regulation. An important pronouncement was that in Defrenne v. Sabena (No.2) wherein the ECJ stated that, given the exceptional circumstances, important considerations of legal certainty required that its ruling on the direct effects of Article 119 should not apply retrospectively. The Court sought to limit the claims concerning wages to those who had already instituted proceedings to that effect. This may be seen as a denial of justice but this case was clearly an exception. Barring the exceptional Defrenne v. Sabena, the ECJ would probably state the law as it always was and thus the judgement would have a retroactive effect. The ECJ has a powerful role to play here: where its judgement may have serious consequences as regards the past, it may direct the application to future cases. There may be undesirable consequences either way and it is up to the Court to attempt to limit damages, both to the individuals and to the Community itself.
The concept of subsidiarity must be distinguished from the other general principles discussed above. This is because, unlike the above principles, it is not a creation of the ECJ but is indeed a written provision introduced by the Maastricht Agreement. The second paragraph of Article 3b of the EC Treaty as inserted by the said Agreement reads:
“In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.”
In the opinion of Professor T C Hartley however, “in view of its generality and affinity to the other general principles, especially proportionality, it will probably be treated in the same way by the Court.”
J Steiner in her Textbook on EEC Law, notes that “in the absence of any indication as to the scope or content of these general principles, it has been left to the Court of Justice to put flesh on the bones provided by the Treaty.” Indeed, the creativity of the ECJ has been aptly fulfilled since general principles today are a major source of European Community law.
©1996, Aron Mifsud-Bonnici
For private educational use only. Any other use is strictly prohibited under Maltese law and international treaties. The article does not purport to give any legal advice.
