Public policy as a ground for ex officio application of European union law

Abstract

Public policy is a concept that has different meanings depending on the context in which it is used. What they have in common is that it always expresses certain fundamental principles of a given legal order, respect for which must be guaranteed by the courts at all costs. The European Union has developed its own public policy, the components of which do not entirely overlap with the public policy of the Member States. The Court of Justice and the General Court are responsible for observing of their own motion the formal legality of the acts challenged before them, as well as the absolute procedural conditions for the admissibility of actions that are considered to be a matter of public policy of the European Union. As regards national courts, the concept of public policy is used in the case-law of the Court of Justice in two ways. First, the Court of Justice establishes that a certain provision of Union law falls within public policy and links this to the need for its application by the national courts of their own motion. Such nature is recognized for Articles 101 and 102 TFEU. In other cases, the Court places public policy in the context of national law, referring to the principle of equivalence and on this basis requires the relevant provisions to be applied ex officio. In this case, the national legal understanding of public policy and the procedural regime provided therein for provisions of this rank remain the main factors.