6.2 The principle of equal treatment

Documentgegevens:

mr. drs. R.E. van Lambalgen, datum 01-12-2017

Datum: 01-12-2017
Auteur: mr. drs. R.E. van Lambalgen
JCDI: JCDI:ADS587016:1
Vakgebied(en): Financieel recht / Europees financieel recht
Mededingingsrecht / EU-mededingingsrecht

The previous chapter introduced the CJEU-definition of the principle of equal treatment. It should be stressed that the CJEU-definition is only one of the many manifestations of the principle of equal treatment.

In that regard, the principle of equal treatment has been aptly called “a scattered principle found in different locations and in different forms”.1 This is manifested in the variations in legal status, function, scope and wording of the principle of equal treatment. The principle of equal treatment started as a moral notion which became a general principle of law: the many Treaties and Constitutions in which the principle of equal treatment is codified, illustrate this. The principle of equal treatment exists both within and outside the EU. In the EU-context, the principle of equal treatment can be found in the Treaties and in the Charter.2 In addition, it was developed in the case-law of the CJEU.

Besides these different locations, there are different forms of the principle of equal treatment. Firstly, the principle of equal treatment is sometimes expressed in the form of a prohibition of discrimination.3 In those instances, the principle of equal treatment is related to the idea that all people are equal and should be treated as equals. Secondly, the addressees of the different manifestations of the principle of equal treatment vary: sometimes, it is aimed specifically at the legislator and the administrative bodies; sometimes, it also applies to horizontal relations.

This PhD-study focusses on the principle of equal treatment in the context of State aid to banks. Consequently, the principle of equal treatment will only be discussed to the extent that it is relevant in that specific context.4 This PhD- study is interested in the principle of equal treatment as a guiding principle for the Commission to ensure a sound/proper/good administration.5 In this function, the principle of equal treatment serves as a standard of review. From this perspective, there are essentially two definitions of the principle of equal treatment: the definition given by the CJEU and the Aristotelian formula.

The CJEU-definition of the principle of equal treatment

As explained and illustrated in the previous chapter, the Court of Justice of the European Union (CJEU) can be called upon to review the legality of administrative decision-making by the Commission. This judicial review entails that the CJEU has to check whether the decisions are in accordance with the applicable rules and legislation, and whether they are in accordance with the general principles of EU law. Since the principle of equal treatment is one of the general principles of EU law, this principle thus functions as a standard of review. In this specific function, the principle of equal treatment was primarily developed in the case-law of the CJEU. According to settled case-law, the principle of equal treatment requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified.6

The Aristotelian formula

The Aristotelian formula requires that “like cases must be treated alike, and unlike cases unalike, proportionate to the differences between them”. This formula resembles the definition of the CJEU. The striking difference between the CJEU-definition and the Aristotelian formula can be found in the last part of the Aristotelian formula: the notion that “unlike cases should be treated unalike, proportionate to the differences between them” is not reflected in the CJEU- definition.

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Bell 2004, p. 244.

The Charter of fundamental rights contains some important provisions on equality. Article 20 provides that everyone is equal before the law. Article 21 provides that “any discrimina-tion based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited”.

The non-discrimination principle is a specific form of the principle of equal treatment.

The aim of this PhD-study is not to demonstrate that the principle of equal treatment is fundamental. Entire books have been written about the principle of equal treatment. For more information on the principle of equal treatment, see: J.H. Gerards, Rechterlijke toetsing aan het gelijkheidsbeginsel. Een rechtsvergelijkend onderzoek naar een algemeen toetsingsmodel, Dissertation 2002.

In Dutch administrative law, the term “algemene beginselen van behoorlijk bestuur (a.b.b.b.)” is used to describe the principles that ensure a good administration. However, this PhD-study will not use the term “principle of good administration”, because in EU-law, this term is reserved for a specific principle.

See case T-319/11, para. 110 and case-law cited. T-487/11, para. 139. The Court refers to case C-127/07 (para. 23, 25 and 26) and case C-176/09 (para. 31 and 32). It is sometimes elaborated as follows: “The comparability of different situations must be assessed with regard to all the elements which characterize them. These elements must in particular be determined and assessed in the light of the subject-matter and purpose of the European Union act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account.”