Volume 47 (2010) / Issue 3
Anneli Albi, 'From the Banana Saga to a Sugar Saga and beyond: Could the Post-communist Constitutional Courts Teach the EU a Lesson in the Rule of Law?' (2010) 47 Common Market Law Review, Issue 3, pp. 791–829
During the Banana Saga in the 1990s, several German courts questioned the level of review of EU measures by the EU Courts. This article explores recent direct actions and domestic cases regarding the sugar market in the new Member States, which seem to corroborate the concerns raised during the Banana Saga. The point of departure is a recent judgment of the General Court, upholding the validity of a European Commission Regulation that retroactively imposed a fine on a country for surplus sugar held by private individuals, despite the fact that the Court acknowledged the absence of a textual basis for the Commission’s requirement to eliminate private household sugar, and despite the Court’s agreement that in practice it had been impossible to eliminate such sugar. The Court upheld the fine on the basis of teleological reasoning. The judgment is contrasted with the case law of post-communist constitutional courts, where in reaction to experiences during the Communist regime, a strong protection has been granted to legal certainty, non-retroactivity and property rights, and it is prohibited to impose obligations or sanctions retroactively or without a statute. It will be suggested that a more rigorous approach to the protection of these rights and principles, which the post-communist constitutional courts regard as the central elements of the rule of law, ought to become part of the EU’s “common constitutional traditions”.
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