The question whether references to ethics should be understood as an unconditional reference (to one or more philosophical theories), or only as pointing towards a certain idea (question No. 3), has already been answered in the previous chapter (in terms of the second option). This question (concerning the philosophical lens) is separate from another question (now, concerning the legal lens), whether these notions shall be imported in an unaltered way (i.e. absolute approach), or whether they shall be imported by placing them in the legal context (i.e. relative approach? As mentioned above,Footnote 1 for the relation of law and science, a relative approach has been preferred.Footnote 2 I have argued elsewhereFootnote 3 that references in legal texts to ethics and morality have to be seen within the limitation that those philosophical concepts necessarily have to be reflected within the legal order itself.Footnote 4 In other words, concepts that cannot, in one way or another be traced in the legal order itself (and which therefore are alien to this legal order), consequently cannot come into consideration. The same argumentation is also upheld in this book; hence, these normative theories and other philosophical concepts have to be imported in a relative way and need to be reflected in the EU legal order. While this legal order can be seen as autonomous, it shall nevertheless respect principles of justice (relative autonomy). Thus, in the following, this legal lens will add some pieces to further enrich the lattice developed so far, and, as we will see, will confirm some of the findings of the previous chapter.

5.1 From the Schuman Plan to Today’s Vertical Distribution of Competences

On 9 March 1950, the then French foreign minister and founding father of the EU, Robert Schuman highlighted, amongst others, the following idea in his ground-breaking declarationFootnote 5: “Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity”.Footnote 6 The same applies to the ‘ethical spirit of EU law’, which has developed since then, and which will continue to do so in the future. The background of this declaration was World War II and its atrocities. Hence, the atmosphere of this time might have been inspired by deontology, while neo-functionalism can rather be seen as consequentialist.

This integration process, started with the “pooling of coal and steel production” and has further developed according to the spill-over phenomenon, resulting in the vertical distribution of competences,Footnote 7 as we know it today. This distribution of competences to pass legal documents can also have an impact on the ethical spirit. For instance, ‘public health’ falls within the MS competence. As we have seen above,Footnote 8 in order to alleviate the fear of MS that, based on economic single market rights, patients could seek unethical treatment abroad, the relevant EU directive states as follows: “[n]o provision of this Directive should be interpreted in such a way as to undermine the fundamental ethical choices of Member States”.Footnote 9 This is quite remarkable as the directive, besides a clear statement in EU primary law,Footnote 10 emphasizes several times the competences of MS in this regard, that is to say from a legal perspective. From a strictly legal angle, this reference to ethics would not have been necessary; nevertheless, it clearly demonstrates the increasing role of ethics in EU law. Although this example, like others classified in this ‘protection shield’ category, is not very ambitious, it can be taken as a role model where the vertical distribution of legal competences can also play a role for the question at which vertical level ethical questions would be decided. These considerations can be summarised as follows: based on this vertical distribution of competences, one can, in case of doubt assume that the legal competence also includes the competence for ethical questions.Footnote 11 On the other hand, if EU secondary law explicitly refers to the MS for deciding issues of ethical nature, this goes in the same direction as this presumption. Likewise, as in similar cases, the EU’s common values can be a limitation to this ‘national competence’.

5.2 Preambles TEU and CFR

Based on what we have already seen in Sect. 3.1.1, the preambles of the TEU and the CFR provide important guidance with regard to the ethical spirit of EU law.

Searching for the groundwork of ethics in EU law, one comes across the preamble of the CFR, which refers to the “spiritual and moral heritage” of the Union.Footnote 12 It is worth mentioning that the preamble only uses the wording “conscious of”, as opposed to the wording used for the common valuesFootnote 13: “based on”,Footnote 14 respectively “is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity”.Footnote 15 In terms of the already covered terminology, presumably the term of ‘morality’ has been chosen, in order to refer to a factual (historically developed) situation, and not to the one of ‘ethics’, which would be the philosophical approach to define morality. As one might already suspect, these terms (‘spiritual’ and ‘moral’ heritage) are not defined regarding their content. In terms of geography, they can be seen as to refer to Europe, presumably as composed at the time of the drafting of the Charter.Footnote 16 We are faced with the same challenge that we have already seen many times in this book, that is to say the reference of law to another discipline, which in this case requires primarily a historical approach.Footnote 17 Hence, this moral heritage does not define the ‘ethical spirit’, it just adds up to the lattice identified so far.

This goes hand in hand with the reference to the “cultural, religious and humanist inheritance of Europe”, from which the TEU draws ‘inspiration’.Footnote 18 While the previous reference of the CFR (i.e. the ‘spiritual and moral heritage’) opened the legal field for this ‘ethical spirt’,Footnote 19 this second reference can fill it regarding its content. Let us start with the reference to humanism.Footnote 20 Although covering a broad range, humanism can be understood as “any philosophical perspective that assigns preeminent value to human beings, their experiences, their interests, and their rights”,Footnote 21 “based on the freedom, responsibility, and rationality of human beings”.Footnote 22 This goes hand in hand with the recitals of the preambles of the CFR, which “places the individual at the heart of [the Union’s] activities”,Footnote 23 as well as of the TEU, according to which “decisions are taken as closely as possible to the citizen”.Footnote 24 Recently in the context of ethical challenges of robotics, the EP referred to the “intrinsically European and universal humanistic values that characterise Europe’s contribution to society”.Footnote 25

The two references in the CFR (“spiritual and moral heritage”) and in the TEU (“cultural, religious and humanist inheritance”)Footnote 26 require a few words on the relationship between EU law and religion. When the European Convention drafted the CFR, there were ‘highly emotional disputes’Footnote 27 concerning a possible reference to God (invocatio dei), respectively a reference to (one or more) religion(s).Footnote 28 These have finally been solved by deviating language versions referring to the already mentioned ‘spiritual and moral heritage’, whereas only the German version refers to religion and none of them to ‘God’.Footnote 29 Therefore, on the one hand, the reference to the ‘spiritual and moral heritage’ can neither be seen as a commitment to a single religion (for example, Christianity), nor to several religions (such as, Christianity, Judaism, while excluding Islam); on the other hand, also atheists and agnostics should be seen as bearers of this heritage.Footnote 30

‘Time is a great healer’, and this heated dispute was finally ‘resolved’ years later with the amendments brought by the Lisbon Treaty, as the second recital of the TEU refers to the inspiration, drawn “from the cultural, religious and humanist inheritance of Europe”. A similar analysis applies with regard to humanism. As mentioned above,Footnote 31 a reference to humanism in an earlier draftFootnote 32 in the end has not made it into the preamble of the CFR, and now figures in this (second) recital of the TEU.

We have already seen another similarity between religion and humanism in the Polish GMO case mentioned above, where Poland had argued with “Christian and Humanist ethical principles”, opening the door for intriguing questions of the relationship of EU law and religion, as well as humanism.Footnote 33 However, since Poland did not fulfil its burden of proof, there was no room for the CFEU to make any statement in this regard; however, against the background of the principle of judicial restraint, one had not much to hope for in terms of content anyway.

The reserved relationship of EU law and religion is somehow also confirmed by some Eurobarometer surveys. During the last years, peace, respect for human life and human rights have constantly been ranked top in terms of personal values of Europeans, and peace, human rights and democracy in terms of values representing the EU (see Fig. 5.1), while religion has been constantly ranked very low in both categories.Footnote 34

Fig. 5.1
figure 1

[Source Eurobarometer 77 (2012), pp. 9 and 12; Eurobarometer 74 (2010), pp. 32 and 33; Eurobarometer 72 (2009), Vol. 2, pp. 148 and 152; Eurobarometer 69 (2008), 1. Values of Europeans, pp. 15 and 22; Eurobarometer 66 (2007), p. 28]

Eurobarometer surveys on EU values

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Nonetheless, it would be wrong to state that there is no influence of religion for our quest for the ‘ethical spirit of EU law’. Moyn has convincingly argued that “religious constitutionalism” had some influence and inspired the concept of dignity.Footnote 35 To make a long story short, religion has had an influence on the understanding of ‘human dignity’, which plays a key role for the ‘ethical spirit of EU law’.Footnote 36 In summary, one can speak of an indirect influence of religion on the ethics of the EU.

Referring to the EU integration process in its entirety, the four references to the “ever closer union”Footnote 37 can also be applied to the ‘ethical spirit of EU law’ in the sense of a steadily developing concept, a ‘spirit in statu nascendi’, so to speak.Footnote 38 According to Meyer, the ideal picture of a draft for the future is also associated with an ‘ethical claim’.Footnote 39 This evolutionary aspect goes hand in hand with the above comments on the Schuman declaration.

Several times throughout this book, we have seen examples of ethics comprising not only rights, but also duties.Footnote 40 According to Meyer, although there were concerns about ‘basic obligations’ in totalitarian regimes, the Convention did not want to completely ignore the idea of an ‘asymmetric guarantee of connection’ to fundamental rights, not least because of classical philosophical guidelines.Footnote 41 This finally resulted in the following recital of the CFR preamble: “Enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations.”Footnote 42 The distinction between ethical and legal obligations is likely to echo in the pair of concepts of responsibilities and duties, where ethical obligations may arise both in relation to fellow human beings and to human society, and in relation to future generations.Footnote 43

Values and human dignity have already been addressed several times. To finish with the guidance provided by the preambles of the TEU and the CFR with regard to the ethical spirit of EU law, the CFR addresses the “peaceful future based on common values” as well as “the indivisible, universal values of human dignity, freedom, equality and solidarity”, on which “the Union is founded”.Footnote 44 The TEU preamble refers to the inspiration, drawn “from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law”.Footnote 45 This leads us to human dignity in the next chapter, as well as to the other values in the subsequent one.

5.3 Human Dignity

Regardless of whether one sees the origin of human dignity in the Christian emphasis on the image of man as God or in a mixture of ancient and humanistic traditions and the Enlightenment, it is a central theme in the European philosophy and history of law.Footnote 46

All in all, human dignity has its roots deep in the origins of a conception of mankind in European culture that regards man as an entity capable of spontaneity and self-determination. Because of his ability to forge his own free will, he is a person (subject) and must not be downgraded to a thing or object.Footnote 47

Despite its paramount role today, it is remarkable that human dignityFootnote 48 was not initially part of the ECHR, signed on 4 November 1950.Footnote 49 Human dignity entered the Council of Europe sphere with the Oviedo convention, and it was only in 2002 that the ECtHR held that “[t]he very essence of the Convention is respect for human dignity and human freedom”.Footnote 50,Footnote 51 Also in France, the Conseil Constitutionnel first dealt with human dignity in the field of bioethics.Footnote 52 Likewise elsewhere in Europe, human dignity has also only slowly emerged as the supreme constitutional principle in the constitutions of the MS.Footnote 53 Besides the above-mentioned influence of religion,Footnote 54 also the German constitution as well as Roman Herzog, who chaired the European Convention elaborating the CFR (1999–2000), had some influence on our understanding of human dignity.Footnote 55

Human dignity is not only the first value mentioned in Art 2 TEU, it is both the first title, as well as the first article of the CFR. According to Meyer, the CFR Convention refused to address human dignity as a value only in the preamble, thereby depriving it of the character of a fundamental right.Footnote 56 Consequently, human dignity can be seen as a value, as a human right,Footnote 57 as well as according to both the CFR explanations and the EGE,Footnote 58 as the basis for principles that are more specific, rightsFootnote 59 and obligations. This is why human dignity has been referred to as the corner stoneFootnote 60 of both the CFR and the values.

However, as accentuated by Di Fabio, in law, human dignity must also be respected in its non-legal meaning.Footnote 61 This is in line with the statement of the EGE, according to which “[t]he respect of the dignity of the human person is at the root of the ethics of science and new technologies as well as of human rights”.Footnote 62 In a resolution 1.5 years before the mandate of the GAEIB expired, the EP emphasized, “that it is essential to establish ethical standards, based on respect for human dignity”.Footnote 63 Human dignity as the bridge between the two disciplines of law and practical philosophy, so to speak.Footnote 64

As we have already seen especially with regard to EGE opinions, human dignity predominantly has this notion of treating human beings as subjects, not merely as objects.Footnote 65 Also in literature, human dignity is usually explained with reference to Immanuel Kant.Footnote 66 As Dickson and Eleftheriadis highlighted, “in a way, Kant’s theory is a predecessor to that of Rawls and a predecessor to some relevant contemporary views of the European Union”.Footnote 67 This Kantian notion of human dignity can be exemplified by the following currentFootnote 68 example. In a recent resolution on integrity in sports, the EP pointed out that “athletes, in particular minors, face increasing economic pressures, and are treated as commodities, and have therefore to be protected against any form of abuse, violence or discrimination that may occur in the course of their participation in sport”.Footnote 69 Although the Union, with its commitment to human dignity, which places the human person at the centre of its action, clearly sees itself as an anthropocentric order of values,Footnote 70 animals can also enjoy protection and respect due to their intrinsic value.

In summary, the legal lens confirms the importance of the corner stone of human dignity for the ‘ethical spirit of EU law’, just as we have already seen it from the philosophical lens.

5.4 EU Values (Continued) and Human Rights

Does this also hold true for the other common values of the EU and for human rights,Footnote 71 do they also contribute to the lattice forming the ‘ethical spirit’? The increasing role of human rights, culminating in the now legally binding CFR, corresponds to the before mentioned anthropocentric view and humanism.

As also reflected in the CJEU’s case-law, values can entail not only rights, but also obligations: They can also result in negative consequences, as in the following example. This was about a Dutch decision declaring a foreigner to be an “undesirable immigrant”, where “a disposition hostile to the fundamental values enshrined in Articles 2 and 3 TEU, such as human dignity and human rights”, can be qualified as being against ‘public policy’.Footnote 72,Footnote 73

If we turn to this concept of ‘values’, it is necessary to differentiate, as values can have an ethical, political, legal, artistic and economic connotation, though the latter two are not discussed any further.

From a social science point of view, according to Di Fabio “values are the basic attitudes of people who stand out due to their special firmness, conviction of correctness and emotional foundation”. He continues as follows: “values appear like relics from a past epoch, they have not yet taken part in the disenchantment and rationalization of the modern world, they stand between ‘is’ and ‘ought’, they act normatively, but are subject to change through social factuality”.Footnote 74 The latter statement corresponds with the evolutionary aspect of the ‘ethical spirit’.

Values in the sense of political science (‘Staatswissenschaften’) are “guiding ideas for the activities of political institutions based on political-philosophical value judgements. Every political community needs a bundle of guiding ideas, to which its basic order is oriented. Two types of guiding ideas can be distinguished, namely values (value-based guiding ideas) and other (in themselves value-neutral) guiding ideas.”Footnote 75

Finally, from the legal point of view, “values describe goods that a legal system recognises as given or abandoned”.Footnote 76 In this context, values may serve as interpretive guidelines as well as standards of norm control, and unfold a legitimatory meaning.Footnote 77 The challenge is the determination of the content, as values are indeterminate, multi-layered, subjective, contextual, and culturally shaped.Footnote 78 As mentioned earlier,Footnote 79 values are more abstract than principles, as the former lack specific limitations, in particular with regard to specific legal consequences and addressees.Footnote 80 The lack of these limitations contrasts values from state objectives (principles) or fundamental rights (subjective rights).Footnote 81 With regard to the German Basic Law, the Federal Constitutional Court has stated that the Basic Law is not a value-neutral order and that its value order expresses a fundamental strengthening of the validity of fundamental rights.Footnote 82

According to Walter Hallstein, certain values have been part of the integration process, even before the Lisbon Treaty has officially enshrined them in Art 2 TEU.Footnote 83 The EU has transformed itself from, an ‘association of functional integration’ (‘Zweckverband funktioneller Integration’Footnote 84), as Hans Peter Ipsen coined it, into a political union (Maastricht Treaty), that also respects human rights (CFR, etc.), and finally into a ‘community of values’.Footnote 85,Footnote 86 The key word for this metamorphosis is ‘homogeneity’. Homogeneity demands, “a supranational Union and its Member States must have the same basic political and philosophical orientation”, where this “requirement of homogeneity of value systems is already known from another federal organizational form, namely the federal state”.Footnote 87 However, homogeneity of value orders does not mean uniformity of value orders, “homogeneity means affinity of essence, not equality of essence, congruence in essential points, not total congruence”.Footnote 88 Applying this concept of homogeneity to EU integration means that the Union must also implement the common fundamental values; however, it can do so “in its own specific way”.Footnote 89 “This is part of the development of the Union’s own identity, which must be more than a mere mirror of the identity of the Member States”, where an important step was the development of a separate catalogue of fundamental rights.Footnote 90

Nowadays, the EU’s values have mainly been shaped and further enriched in its practical application by the CJEU.Footnote 91 For the EU’s commonFootnote 92 values, we have also seen a sector-specific approach also comprising distinct values, when looking at health, non-financial reporting, sports and digitalization.Footnote 93 There is a resemblance to ethics, where the CJEU clearly took a sector-specific approach, if we only compare the Brüstle and the Mayr case (fertilization vs. transfer into uterus).Footnote 94

As part of the Court’s ‘judicial self-restraint’, when dealing with the notion of ‘public morality’, the Court referred to national values.Footnote 95 However, the Court’s statement in OmegaFootnote 96 that there is no need for a consensus amongst all MS could be answered differently today, now having legally binding common values.Footnote 97 In other words, a more uniform rather than diverse approach from a vertical (EU vs. MS) perspective.

However, the Court will always be willing to recognise certain circumstances, which have a specific importance for a country, for example because of the historical context. This was the case in the following examples. For instance, the national value of human dignity in Germany,Footnote 98 due to the atrocities of the Nazi regime, falling under ‘public policy’. The fight against the mafia as a specifically important principle of morality in Italy, which corresponds with the EU’s values (see infra).Footnote 99 Finally, the ‘Law on the abolition of the nobility’, an element of national identity in the context of Austrian constitutional history, falling under ‘public policy’ as well as under Art 4(2) TEU (respect for the national identities of MS).Footnote 100 In the Italian case on EU trademark law, the GC has referred to EU values in the following way:

The Court takes the view that such criminal activities breach the very values on which the European Union is founded, in particular the values of respect for human dignity and freedom as laid down in Article 2 TEU and Articles 2, 3 and 6 of the Charter of Fundamental Rights of the European Union. Those values are indivisible and make up the spiritual and moral heritage of the European Union.Footnote 101

We have already seen various links between the EU’s values (including human dignity), the legal lens so to speak, and the philosophicalFootnote 102 one. According to Larenz, to ‘judge’ (‘werten’) is an inner invitation to comment with regard to a moral value, whereby not according to one’s own highly personal values, but according to the general consciousness of values of a legal community.Footnote 103 These values have to be objective, correspond with a general mode of action and judgement and must be an adequate expression of this value requirement; in other terms, bad habits cannot be such a yardstick.Footnote 104 While in previous times, values have also been considered as non-legal concepts, which need to be imported into the legal sphere,Footnote 105 nowadays we have to accept that values do not only have a legal meaning, but also a philosophical one.Footnote 106 In other words, values stand between law and morality,Footnote 107 and in this way, they fulfil a bridge function.

As mentioned above, starting with a market for coal and steel, the EU finally also turned into a ‘community of values’. According to Mandry, this notion, “on the one hand, describes the supranational European collectivity founded on common value convictions and a sense of belonging together, and on the other hand, the political-ethical quality of the political organization, namely the institutions and attitudes of the European Union.”Footnote 108 As mentioned earlier, the notion of ‘ethos’ refers to the attitude, convictions, customs and behaviours of a person,Footnote 109 or even of an institution.Footnote 110 From an ethical perspective, the self-image as a ‘community of values’ can help to describe the ‘ethos’ of the EU.Footnote 111 From a social perspective, the ‘community of values’ is obviously an idea that is intended to express the ‘identity’ of the EU.Footnote 112 As Calliess rightly points out, the totality of values forms the value system of a society, which, according to social science, constructs identity over it.Footnote 113 Besides the more institutional angle of the ‘community of values’, what is most important are the expectations of citizens with regard to legitimate and ‘good’ political action.Footnote 114

As we know, the ‘community of values’ has a threefold impact: on the EU, on the Member States and on citizens.Footnote 115 Focussing on the citizens, as the EP has recently emphasized, “European democracy needs a European identity, a genuinely European demos”.Footnote 116 The question of whether and how a ‘European identity’ is further developed and strengthened, has to be differentiated from the question of how the ‘community of values’ affects the citizens, keeping in mind that they are closely connected. As mentioned earlier,Footnote 117 the first sentence of Art 2 TEU mentions the values the EU is founded on. This sentence affects all three ‘stakeholders’, the EU, the MS and the citizens. The second sentence mentions values that “are common to the Member States in a society”, which is then further described by means of these values. These values are societal values, which also concern the relationship of private persons.Footnote 118 Already thirteen years ago, Rensmann argued that the metamorphosis of the EU into a ‘community of values’, which has been legally implemented for a long time, must still be understood by the citizens in order to become the basis for the development of a European consciousness, respectively EU identity.Footnote 119 To close the circle with the homogeneity mentioned above, “despite their feedback to national values, European values have their own independent content, which must be worked out.”Footnote 120 Citizen participation will be of utmost importance for both the ‘community of values’, as well as for the ‘ethical spirit’.