The principle of equality as a transnational principle

The chapter presents the shortcomings of the principle of equality as a source of European Union (EU) law and discusses these shortcomings in light of the origin and development of the principle as a transnational phenomenon.
The equality principle has been developed by the Court of Justice of the EU (CJEU) with reference to the common constitutional traditions of Member States and international law instruments. Elevating a principle found in some Member States to a general binding EU law principle can be viewed as the phenomenon of creating supranational law based on transnational principles. The chapter analyses the national transposition and implementation of a legal principle created through this process. The chapter examines resistance in transposition as a question of the procedural and substantive legitimacy of a supranational rule based on transnational principles. This is then interpreted in light of the theory of critical legal positivism. The theory gives insights into the possible interrelations between the application of a norm and the legal culture of the legal actors, which can act as a learning point for future developments in supranational EU law on the basis of transnational principles.

The use of a principle of equality can be portrayed in a number of contexts. The chapter will use the principle as a freestanding principle challenging national acts. The chapter defines ‘principle’, as an unwritten rule or basic consideration recognized as a common interpretation vehicle. A principle, in this understanding, has a legal content of its own, and can function as a source of law.