Setting the Agenda

Abstract

This book is based on the open access book entitled ‘The Ethical Spirit of EU law’ (Springer, 2019), which was the outcome of the previous Jean Monnet Chair on ‘European integration & ethics’. The European Commission under Erasmus+ has kindly supported the previous Chair and the current Jean Monnet Chair on ‘EU Values & DIGitalisation for our CommuNITY (DIGNITY)’. In this 2019 book I have argued to fill certain gaps that occur if EU law refers to non-legal concepts such as ‘ethics’, with reference to the EU’s common values, as well as the fundamental rights, especially of the EU Charter of Fundamental Rights. The current book now continues where the previous book has ended and summarises the research output of the current Jean Monnet Chair. This chapter addresses the various objectives of this book. Which values affect which levels, the European Union (EU), the EU Member States, and individuals (objective 1)? What is the temporal, content-related, personal, and territorial scope of these values (objective 2)? What is the relationship of these values to each other, the relationship between values and fundamental rights, as well as the relationship with legal and or ethical principles (objective 3)? Finally, based on the identified status quo, the question of a possible ‘future direction of travel’ will be addressed (objective 4). This first chapter also sheds light on key terminology, such as ethics and morality, values, (general) principles of EU law, (mutual) trust, as well as soft- vs. hard-law.

These essential characteristics of EU law have given rise to a structured network of principles, rules and mutually interdependent legal relations linking the EU and its Member States, and its Member States with each other, which are now engaged, as is recalled in the second paragraph of Article 1 TEU, in a ‘process of creating an ever closer union among the peoples of Europe’.

This legal structure is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the EU that implements them will be respected.—Court of Justice (2014)¹

1.1 Point of Departure (and ‘Ethical Spirit of EU Law’)

There are various approaches of determining the right behaviour via normative standards. These normative standards can be found both within and outside the ‘legal turf’. Especially if law lags behind certain technical developments, we can often observe a tendency² in law of increasing references to non-legal concepts such as ‘ethics’ and ‘morality’. For the sake of completeness, it should be mentioned that these concepts could of course also be assigned to the legal sphere as in the case of ‘public morality’,³ which is a concept of EU law. The intention of referring to non-legal concepts is presumably mainly to have a more flexible set of instruments at hand, which is also not subject to the sometimes time-consuming adjustment procedure of a legislative process. We have seen this phenomenon in the fields of biotechnology,⁴ patient mobility,⁵ and in the field of digitalisation.⁶

In enacting legal provision, the EU is bound to the ‘rule of law’⁷ (Art 2 TEU⁸).⁹ According to the European Commission (EC)’s communication,¹⁰ one element of the rule of law is legal certainty, which, according to the Court of Justice of the EU (CJEU¹¹), requires amongst other things that “legislation must be clear and predictable for those who are subject to it”¹².¹³ Therefore, a missing determination of legal, but especially also non-legal concepts, can be a challenge,¹⁴ especially if triggering legal consequences.¹⁵ The research conducted within the first Jean Monnet Chair (2016–2019) was published in the book entitled the ‘Ethical Spirit of EU law’.¹⁶ Although the book is available ‘open access’ and was summarised in 28 theses,¹⁷ this concept shall be briefly recapitulated as follows.

The concept of the ‘ethical spirit of EU law’ concerns the EU’s approach towards ethics. It refers to the entire EU legal system, not only to single legal provisions. Every legal provision has a literal meaning and an intention. The notion of ‘spirit’ is more than just the mere intention. It is the holistic coming together of different elements, or as Montesquieu called it, the “relations [which] together constitute what I call the Spirit of Laws”.¹⁸ Dratwa has referred to a ‘lattice’ as “set of bodies and texts, of products and processes”.¹⁹ The concept of the ‘ethical spirit of EU law’ is based on the following understanding of ‘spirit’, namely “the intention of the authors of a legal system, which is reflected in a lattice of various different provisions”.²⁰

One could argue, in a metaphorical sense, this ‘spirit’ can be described as a ghost that maybe cannot be seen, but which is nevertheless present in terms of this lattice; or the discovery of a common approach which can serve as a basis of understanding of the underlying philosophy of EU law (towards ethics). This ‘ethical spirit of EU law’ requires some clarification. First, having analysed the relationship of EU law to ethics, references²¹ to all three normative theories (deontology, consequentialism, virtue ethics) support the claim for a distinct ‘ethical spirit of EU law’. It would not be sufficient to merely refer to one of these normative theories here. Second, such a spirit of a legal system obviously can change over time, for instance when in 2009 the EU became a Community or Union of values. Hence, it can be qualified as ‘in statu nascendi’, following a step-by-step approach. Finally, there is a need to fill this ‘ethical lattice’, both in case of gaps that still exist within this lattice, but equally in case of other references to ethics and morality. My key argument in this book was to fill this ‘ethical spirit’ with life via the EU’s common values, their corner stone of human dignity and fundamental rights. Both this corner stone of human dignity, the other values of Art 2 TEU and fundamental rights can be seen as a bridge between the legal and the philosophical ‘world’.

1.2 Objective and Limitations of This Book

Various books have been written on single values, often focussing on the rule of law. The objective of this book is to provide an overview on all general (Art 2 TEU), and some selected specific values. In doing so, the holistic concept of the above-mentioned ‘ethical spirit of EU law’ shall be complemented with this focus on EU values. As mentioned above, a ‘spirit’ is more than just the mere intention, but the holistic coming together of different elements, hence “the intention of the authors of a legal system, which is reflected in a lattice of various different provisions”.²² By covering all EU values, the underlying philosophy of EU values shall be identified by applying, amongst others, the perspective traditionally used in EU law for the economic fundamental freedoms, i.e. the scope ratione temporis, materiae, personae and limitis. This book also strives for a holistic view in the sense of shedding more light on the relationship of the Art 2 TEU values to each other, but also in relation to other provisions of EU law. The spirit of values clearly surpasses the information comprised in two sentences of Art 2 TEU and has to be linked to the other relevant provisions of EU law. Likewise, based on the identified status quo, it is also the aim of this book to suggest how the values of the EU should be further developed for all the current and possible future crises (i.e., the ‘future direction of travel’).

Against this background, the following questions need to be answered, to depict the ‘ethical spirit of EU values’:

• Which values affect which levels, namely, from a vertical perspective, the EU, the Member States and finally the individuals (objective 1)? Especially the importance of values for individuals is key if searching for a ‘soul’ for the EU integration process.²³

• Which general values (Art 2 TEU, but also beyond this legal basis) and which specific values, respectively, application of these general values to specific fields can we identify?²⁴ What is the content of the different values (i.e., scope ratione materiae, objective 2.1) and who is entitled (only EU citizens or humans?), respectively, obliged (only Member States or also individuals?) by these values (i.e., scope ratione personae, objective 2.2)?

• References to ‘common values’ in the recent Brexit deal²⁵ raise the question of the scope ratione limitis, i.e., the internal and external perspective (objective 2.3). The ‘ethical spirit’ of EU law identified in the first book has been qualified as ‘in statu nascendi’, following a step-by-step approach, comparable to the Schuman declaration.²⁶ The same question must be addressed regarding these values and the fundamental rights. This latter scope ratione temporis will have to answer the question to what extent the values and the fundamental rights can be seen as a ‘living instrument’, the evolutionary perspective so to say (objective 2.4).

• What are the legal effects of these values and under which circumstances can these values be restricted (objective 2.5)?

• While so far, the focus of these questions was on (general and specific) values, I have also argued that the ‘ethical spirit’ requires further input from both values and fundamental rights, as well as corresponding principles. The ‘ethical spirit of EU law’, as I have argued, should also embrace ‘principlism’, as different principles might render abstract²⁷ values more easily applicable to different challenges in different sectors.²⁸ Hence this book will also have to address the relationship (objective 3) not only of these values to each other (i.e., the ranking of values), but also the relationship between values and fundamental rights (especially of the CFR),²⁹ as well as legal and or ethical principles. Talking about connections, likewise the relationship between values on the one side and economic or political objectives on the other will have to be envisaged.

• Finally, integrating this evolutionary perspective, the question of a possible ‘future direction of travel’ as the overreaching objective must be addressed (de lege ferenda), based on the identified status quo (de lege lata) of this Union of values³⁰ (objective 4).

Besides these questions to be answered by the end of this book, certain limitations must be emphasised.

Covering both the general and some specific values, this contribution cannot cover all possible details concerning each single value, as single books have been written, for instance, on one value only.³¹

While this book also focuses on human rights and (ethical and legal) principles, they will only be covered insofar as they matter in their relationship with the EU’s values, respectively, being mentioned as one of the EU’s values.

1.3 Methodology

The book on the ‘ethical spirit’ was located at the interface of law and ethics, where the latter is a branch of practical philosophy.³² Therefore, this book was about an ‘import’ from one discipline into another. The present book is primarily located within the legal field. Even if values and human rights are displayed in Fig. 1.1 between the two disciplines, they also pertain to the legal field. As mentioned earlier, values can be seen as a bridge³³ between the legal and the philosophical ‘world’,³⁴ where human rights also play an important field in both disciplines. Hence, this book will mainly take a legal perspective, while also integrating some philosophical literature.³⁵

Fig. 1.1

Relationship law and ethics, focussing on values and human rights [Further developed from Frischhut (2019), p. 3. The author wants to thank his colleague Janine Kiechl for the graphic realisation of this illustration.]

For the relationship between law and morality, Habermas has emphasised, “at the post-metaphysical level of reasoning, legal and moral rules simultaneously differentiate from traditional morals [Sittlichkeit] and appear side by side as two different but complementary varieties of norms of action”.³⁶ As he continues, “[d]espite the common point of reference, morality and law prima facie differ in that post-traditional morality is only a form of cultural knowledge, while law simultaneously acquires binding force at the institutional level. Law is not only a system of symbols, but also a system of action.”³⁷

Within this primarily legal perspective, this book will cover both legal literature and the law, as it stands today (de lege lata). This inductive approach evaluates the current situation of EU law regarding values (general and specific ones), as well as related human rights and principles. EU law considered will cover both primary EU law (e.g., Art 2 TEU, CFR), and secondary EU law, covering both hard-law as well as soft-law, e.g., political resolutions of the European Parliament (EP). From the perspective of Montesquieu’s³⁸ ‘separation of powers’,³⁹ this book will cover mainly legislation⁴⁰ (EP and Council of the EU) as well as CJEU case-law. The relevant documents have been identified by means of the open access databases of EUR-Lex and Curia (for CJEU case-law).

These various sources of law will contribute to the above-mentioned objectives in the following way:

• Objective 1 (various levels) will be answered based on an interpretation of various legal bases (e.g., Art 2 TEU), covering both hard- and soft-law, and case-law insofar relevant.

• Objective 2.1 (scope ratione materiae) will also be answered based on an interpretation of various legal documents (Art 2 TEU, soft-law) and the relevant case-law. If necessary, these legal documents also comprise the ECHR,⁴¹ which is also mentioned in Art 6(3) TEU.

• Objective 2.2 (scope ratione personae) will also be answered based on an interpretation of various legal documents (Art 2 TEU, soft-law) and the relevant case-law.

• Objective 2.3 (scope ratione limitis) will be answered both on the internal (do values require a cross-border requirement as in the case of the economic⁴² fundamental freedoms of the EU’s single market) and the external (e.g., Brexit TCA) legal documents.

• Objective 2.4 (scope ratione temporis) will mainly be covered based on literature (for the historic view) concerning the pre-Amsterdam Treaty⁴³ timeframe, and documents of the European Convention concerning the Constitutional Treaty, leading to the Lisbon Treaty. The ‘living instrument’ character will be mainly answered based on case-law.

• Objective 2.5, i.e., the possibility of restrictions of these values will mainly be addressed based on CJEU case-law on the ‘essence’ of fundamental rights, etc. The justiciability of these values will be answered based on EU law, including case-law.

• Objective 3 (relationship of values) will be based both on the status quo of EU law as well as legal and philosophical literature.

By putting all these findings together, this inductive research will try to identify a general proposition, which can be derived from these specific examples. While objectives 1–2.5 represent the status quo of the ‘Union of values’ (de lege lata), the future direction of travel (objective 4) will be based on this status quo and include my arguments de lege ferenda. Objective 3 (relationship) is located at the interface of de lege lata and de lege ferenda.

1.4 Structure

After a definition of some key terms (Sect. 1.5), the book will start with a brief introduction (Chap. 2) of what will be depicted in further details in the following chapters. The four above-mentioned scopes are part of Chap. 3, starting with the historic development so far and the evolutionary character of these values (scope ratione temporis) in Sect. 3.1, followed by the scope ratione materiae (content) in Sect. 3.2. The scope ratione personae (Sect. 3.3) addresses both those entitled, and obliged by the different values. Sect. 3.4 takes a closer look both inside and outside the EU27 (scope ratione limitis). Finally, Sect. 3.5 focuses on the possible impact of values, that is to say justiciability and restrictions. Chapter 4 addresses the relationship of values to each other, but also the relationship between values and other goals of European integration (economic and political dimension), and the relationship between the more abstract values and more concrete principles or certain human rights. These chapters depict EU law as it stands today (de lege lata). In order to clarify the red thread of this book, Chaps. 2, 3 and 4⁴⁴ are each summarised with the essential facts.

This evolutionary character leads to Chap. 5 and the future direction of travel (de lege ferenda), addressing the question of an additional narrative (Sect. 5.1), new values (Sect. 5.2), respectively, a stronger emphasis on existing concepts (Sect. 5.3). The debates about the ‘soul’ of the EU integration process, an evolving ‘EU identity’ and the objective of closing the gap between the EU and individuals will also have to address to question of values of EU individuals (Sect. 5.4).

1.5 Introduction to Key Terminology

1.5.1 Ethics (Normative Theories) and Morality

As mentioned above, values can be seen as bridge between the two disciplines of law and philosophy, as they pertain to both of them. While ethics, morality and values might all strive to determine right and wrong behaviour, they nevertheless need to be differentiated.

‘Ethics’ is a branch of practical (as opposed to theoretical) philosophy, which deals with what is morally right or wrong.⁴⁵ According to the Oxford Dictionary, ethics is “the branch of knowledge that deals with moral principles”, respectively, “moral principles that govern a person’s behaviour of the conducting of an activity”.⁴⁶ This includes normative ethics (as opposed to meta-ethics), which can be sub-divided in applied ethics and normative theories. The latter comprise deontology, consequentialism, and virtue ethics.⁴⁷ In a simplified way, one could say that deontology focuses on the act itself, consequentialism on the outcomes of this act, and virtue ethics on the agent of this act. Deontology, from the “Greek deon, that which is binding”, has been defined as a “type of moral theory that asserts that certain acts or types of act exhibit intrinsically [!] right-making features in themselves, regardless of the consequences that may come after them”.⁴⁸ In contrast, consequentialism is described as “[a]ny ethical theory that argues fundamentally that right action is an action that produces good results [!] or avoids bad results” and is a teleological type of theory, which refers to a telos⁴⁹ (goal, purpose).⁵⁰ The most prominent example is ‘utilitarianism’, an “altruistic variety of consequentialism that holds that good results are results that maximize benefits and minimize harms, even if this entails self-sacrifice”.⁵¹ Finally, virtue ethics is defined as “[a]n ethical theory that says that the central concept for ethical theory is that of a virtue, a disposition needed for human excellence or flourishing”.⁵² In a negative way it has been defined as “any approach to ethics that puts the virtues first, before analyses of acts or their consequences”, where virtues are to be understood as “traits of character that are judged to be morally admirable or valuable”.⁵³ In defining virtues⁵⁴ it is essential to emphasise “rightness in character and [!] conduct”,⁵⁵ as these character traits need to be exercised in constant behaviour. A virtuous person does “not simply do the right thing by accident, begrudgingly, or because they will get something out of it”.⁵⁶ According to Aristotle, “we become just by doing just actions, temperate by temperate actions, and courageous by courageous actions”.⁵⁷ As Zhang argues, “the cultivation of personal virtues through common moral practice seems to be necessary for holding a society together and bringing about social harmony and cooperative actions”.⁵⁸ Although these normative theories are tied to different criteria, it cannot be ruled out that they all come to the same conclusion.⁵⁹

Ethics must be differentiated from morality, which reflects the attitudes of what is right or wrong, relative to culture, region and time. According to the Oxford Dictionary, morality is about “principles concerning the distinction between right or wrong or good and bad behaviour”, respectively, “a particular system of values and principles of conduct”.⁶⁰ As Beauchamp & Childress define in their seminal book, morality “refers to norms about right and wrong human conduct that are widely shared and for a stable societal [!] compact”, it “encompasses many standards of conduct, including moral principles, rules, ideals, rights, and virtues”, where “[w]e learn about morality as we grow up”.⁶¹ Hence, morality refers to factual rules (‘mores’) and codes of conduct in a specific (cultural, territorial and temporal) social system.⁶² This is also reflected in the concept of ‘public morality’, which is one of the reasons of justification that can limit the economic fundamental freedoms, as enshrined in Art 36 TFEU (for the free movement of goods). As the Court has held, “in principle it is for each Member State to determine in accordance with its own scale of values and in the form selected by it the requirements of public morality in its territory”.⁶³ Hence, we can identify this regional and cultural element (territory of each Member State), where attitudes can change over time and are based on values (“with its own scale of values”). This leads us to the next concept, the one of ‘values’.

1.5.2 Values (and Foundations)

Values cannot only be seen as a bridge between law and philosophy,⁶⁴ they can be found in various disciplines.⁶⁵ Values can have a social, political, legal, artistic and economic connotation, though the latter two will not be addressed any further.⁶⁶

In social science, “values are the basic attitudes of people who stand out due to their special firmness, conviction of correctness and emotional foundation”.⁶⁷ They are described as some sort of ‘civil religion’, as anyone who in a discussion “goes further enters a taboo area, leaves the secure basic consensus of society”.⁶⁸ The totality of values forms the “value system of a society, which constructs identity over it”.⁶⁹ As Di Fabio stresses, “in a best-case scenario, values have an integrative function by bringing human behaviour and social requirements into harmony”, they have “an ideal meaning, they create sense, they set a fixed point for a logical system of social relations, for moral orientation, for meaningful life”.⁷⁰

Values in the sense of political science⁷¹ 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 orientated. Two types of guiding ideas can be distinguished, namely, values (value-based guiding ideas) and other (in themselves value-neutral) guiding ideas.”⁷² Schmitz mentions human dignity, democracy, and the rule of law, amongst others, as values, and the federal principle or subsidiarity as more or less value-neutral guiding ideas.⁷³ As Schroeder mentioned, if a norm “is referred to as a value, this means to elevate it on the political or ethical level”.⁷⁴ This shows the connectedness of these various levels or disciplines. At the same time, this quotation makes clear that these various levels are not mutually exclusive, which is particularly true for political and legal science.

In legal science, values or basic values (valeurs fondamentales) are described as “assets that a legal system recognizes as predetermined and imposed”.⁷⁵ They can serve as both guidelines for interpretation and standard of judicial review, and they can “develop a legitimizing meaning”.⁷⁶ Concerning 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.⁷⁷ With regard to Art 2 TEU, Hilf and Schorkopf have defined values as “recognised rules that guide a subject in decision-making situations”.⁷⁸

Calliess distinguishes between guiding values (“Leitwerte”), basic values (“Grundwerte”) and individual values (“Einzelwerte”).⁷⁹ ‘Guiding values’ have been (at least implicitly) at the basis of EU integration process right from the beginning. They comprise peace, integration, and market freedom,⁸⁰ as well as solidarity and subsidiarity.⁸¹ These guiding values can be seen as specific to the supra-national⁸² integration process of the EU, as started in 1950 with the Schuman declaration. The ‘basic values’, on the other hand, are not so much EU specific, but have developed from the constitutional traditions common to the Member States,⁸³ and have then become structural features of the EU. They comprise democracy, the rule of law, freedom, and fundamental rights (see now Art 2 TEU). These ‘basic values’ are not specific to the EU integration process, but relate to the similarities of asserting public authority, whether at supra-national or national level.⁸⁴

In terms of their function, values have a “normative orientation function” in that they distinguish good from bad and right from wrong.⁸⁵ According to Schroeder, values are “ethical, supra-positive norms[, which] have an orientation and ordering function”.⁸⁶ Like morality, also values develop over time and adapt to societal circumstances, as they must be seen against the background of their historic development.⁸⁷ Human dignity is a good example in that regard, as it has been a reaction to the atrocities of the Second World War.⁸⁸ According to Hermerén, common values are “one of several ways of keeping the member states of the European Union together by referring to values they have in common and by pointing out differences between these values and others”.⁸⁹

Before Art 2 TEU, the CJEU had referred to the ‘(very) foundations’ of the Community, which nowadays is the EU.

In the seminal Kadi judgement of 2008,⁹⁰ in the context of the “allocation of powers fixed by the Treaties or, consequently, the autonomy of the [EU] legal system”, the ECJ had referred to its “exclusive jurisdiction”,⁹¹ which forms “part of the very [!] foundations of the Community”,⁹² as “such review is a constitutional [!] guarantee forming part of the very foundations of the Community”.⁹³

Besides the Court’s judicial review, in Kadi the Court had also referred to “the principles of liberty, democracy and respect for human rights and fundamental freedoms enshrined in Article 6(1) EU as a foundation of the Union”⁹⁴.⁹⁵ Principles, which “form part of the very foundations of the Community legal order, one of which is the protection of fundamental rights, including the review by the Community judicature of the lawfulness of Community measures as regards their consistency with those fundamental rights”.⁹⁶

First, this pre-Lisbon article can basically now be found in Art 2 TEU,⁹⁷ and second, what was referred to as ‘principles’ is now coined as ‘values’.⁹⁸ Hence, one can legitimately argue that the ‘foundations’ are now part of the concept of ‘values’, on which the “Union is founded” (Art 2 TEU). While also a principle could be referred to as a foundation, the picture of a foundation and the reference to the ‘constitutional guarantee’ help to better understand the concept and meaning of EU values. The notion of ‘foundation’ can also be found in Strasbourg case-law, where the ECtHR has referred to “tolerance and respect for the equal dignity of all human beings [as] the foundation of a democratic and pluralistic society”.⁹⁹ Tolerance, human dignity, equality, democracy and pluralism are all values that now figure in Art 2 TEU.

Values have been described as “undetermined, they are multi-layered, subjective and contextual”.¹⁰⁰ Values are clearly quite abstract. However, this should not be seen as criticism, as values are abstract by nature. This is not only true for values at EU level, as “shared commitment to abstract ideals is a feature of all constitutions”.¹⁰¹ Besides their abstractness, values do not have any specific limitations, “since they are not restricted to certain legal consequences or addressees”.¹⁰² This distinguishes them from principles.

1.5.3 Values and (General) Principles

Valid norms oblige their addressees, without exception and equally, to behave in a way that fulfils generalised behavioural expectations, whereas values are to be understood as intersubjectively shared preferences. Values express the preferability of goods that are considered desirable in certain collectives and can be acquired and realised through purposeful action.—Streinz (2018, p. 10)

Like values, also principles, as a concept, can be found in various disciplines. Generally, principles refer to “basic truth”, or “general law of cause and effect”.¹⁰³ In the following, the focus will be on legal and ethical or moral principles.

According to the Oxford Dictionary, values are defined as “principles or standards of behaviour”, respectively, “one’s judgment of what is important in life”.¹⁰⁴

In their seminal book ‘Principles of biomedical ethics’, Beauchamp & Childress have defined the following “four clusters of moral principles”: respect for autonomy, non-maleficence, beneficence, and justice. Autonomy is described as “a norm of respecting and supporting autonomous decisions”, non-maleficence as “a norm of avoiding the causation of harm”, beneficence as “a group of norms pertaining to relieving, lessening, or preventing harm and providing benefits and balancing benefits against risks and costs”, and finally justice as “a cluster of norms for fairly distributing benefits, risks, and costs”.¹⁰⁵ This approach referred to as ‘principlism’ has the advantage of being more determined (i.e., less abstract) and ‘user-friendly’, as being better applicable to different challenges in different fields.

In legal science, principles have been referred to as “legal norms laying down essential elements of a legal order”,¹⁰⁶ or as “a basic, fundamental rule, which is – albeit broad – binding”.¹⁰⁷ Yet another definition describes a principle as “a general proposition of law of some importance from which concrete rules derive”.¹⁰⁸ According to Schroeder, principles “are understood as legal norms which do not state specific rights or duties, but which are of a general nature and need being concretised by the legislative, the executive and the judiciary”.¹⁰⁹ Likewise, legal principles are also less abstract¹¹⁰ and more determined. However, comparing principles¹¹¹ to statutory provisions, principles are naturally more abstract.¹¹²

Contrasting principles from the afore-mentioned values, they have legal consequences and addressees, as also addressed by Habermas’ opening quotation. For instance, the principle of proportionality is, amongst others, addressed at the Member States, which must respect it when limiting the EU’s fundamental freedoms. A breach of this principle can have the legal consequence of rendering a national measure inapplicable according to the primacy¹¹³ of EU law. The relationship between more abstract values and more concrete principles can be found in the 2006 health values, where “[b]eneath [!] these overarching values, there is also a set of operating principles”.¹¹⁴ According to Sommermann, shared values of a community aim semantically deeper than the statement of principles.¹¹⁵

While it is important to distinguish the concept of values from legal principles,¹¹⁶ we must acknowledge that constitutional law can define one concept as “value, objective, fundamental right, principle or otherwise”,¹¹⁷ hence they are not mutually exclusive. Solidarity is a good example, which can be found in Art 2 TEU as one of the EU’s common values, and a legal principle.¹¹⁸ Comparing the four ‘principles of biomedical ethics’ of Beauchamp & Childress to Art 2 TEU reveals that the same word (‘justice’) can be qualified as different concepts, once as a value (Art 2 TEU), in the other case as a principle.

Having so far concentrated on the EU, let us now briefly turn to the European Economic Area (EEA),¹¹⁹ linking Norway, Iceland, and Liechtenstein to the EU. Former EFTA Court President Carl Baudenbacher has edited a book comprising the following ‘fundamental principles of EEA law’:¹²⁰ legislative homogeneity,¹²¹ judicial homogeneity,¹²² (no) reciprocity,¹²³ sincere cooperation,¹²⁴ sovereignty,¹²⁵ prosperity in the EEA,¹²⁶ priority,¹²⁷ authority of the EFTA Court,¹²⁸ proportionality,¹²⁹ equality¹³⁰ and state liability.¹³¹ As we can see, some principles are very specific to the EEA in terms of linking these three countries to the EU: legislative and judicial homogeneity and the “twin maxim”¹³² of reciprocity, and priority setting of EEA/EFTA states in secondary legislation.¹³³ Other principles can also be found in the EU: sincere cooperation (Art 4[3] TEU), institutional balance (instead of reciprocity¹³⁴), authority of the CJEU (Art 19 TEU), equality (as a value, Art 2 TEU), as well as proportionality and state liability (as two general principles of EU law). Prosperity, which should be measured “not only in purely financial terms, but also in the social welfare of its citizens, including the protection of its workers and the environment”¹³⁵ might rather be an objective (cf. Art 3[1] TEU “well-being of its peoples”) than a principle. Besides principles, the EEA agreement (recital 2) also refers to a “privileged relationship” between (what is now) the EU and its Member States on the one side, and the EFTA States on the other, “which is based on proximity, long-standing common values [!] and European identity”.¹³⁶

Besides ‘principles’ (“a general proposition of law of some importance from which concrete rules derive”¹³⁷), ‘general principles’¹³⁸ have been defined as “fundamental [!] propositions of law which underlie a legal system and from which concrete rules or outcomes may be derived”.¹³⁹ In this regard, ‘general’ refers to a certain “level of abstraction that distinguishes it from a specific rule”.¹⁴⁰ Hence, as mentioned above, a principle is less abstract than a value, but more abstract compared to a statutory provision. In other words, a principle “states a reason which gives argument in one direction but does not necessitate a particular result”, as “principles incorporate a minimum substantive content and guide the judicial enquiry on that basis”.¹⁴¹ While this level of abstraction might be true for both principles and general principles of law, in case of ‘general principles of (EU) law’ the notion of ‘general’ can “refer to principles which transcend specific areas of law and underlie the legal system as a whole”.¹⁴² In the same way, the element of ‘general’ in case of a ‘general principles of law’ “may also refer to the degree of recognition or acceptance”.¹⁴³ General principles of law have a twofold impact, as they can be “sources of rights and obligations”.¹⁴⁴

‘General principles of EU law’ are developed by the CJEU¹⁴⁵ via a ‘comparative evaluation’ (“wertende Rechtsvergleichung”), as Advocate General (AG) Roemer coined it in the first ECJ case recognising fundamental rights at EU (or more precisely, at the time: Community) level.¹⁴⁶ In other words, the CJEU does “not look for a common denominator”.¹⁴⁷ In its selective and creative method of developing new ‘general principles of EU law’, a principle is only derived from specific rules of EU law “if it is in accordance with the objectives of the Treaty”.¹⁴⁸ Nowadays, this brings Art 3 TEU (EU objectives) into the game, which in its first paragraph emphasises the promotion of peace, the EU’s values and the well-being of its peoples as the EU’s aim. This shows the close relationship between values, (general) principles, and other concepts.

Although some might argue that principles cannot be sharply distinguished from general principles of law (and there might be some overlapping), the qualification as a ‘general principle of EU law’ matters, as they enjoy “constitutional status”¹⁴⁹ and “have equivalent status with the founding Treaties”,¹⁵⁰ hence they can be qualified as EU primary law. This qualification of ‘general principles of EU law’ as EU primary law is noteworthy as usually (cf. Art 48 TEU) it is up to the Member States to make new or amend existing EU primary law.

1.5.4 (Mutual) Trust

According to the Oxford Dictionary, trust is defined as the “firm belief in the reliability, truth, or ability of someone or something”.¹⁵¹ As Onora O’Neill has stated, “trust is needed precisely when and because we lack certainty about others’ future action: it is redundant when action or outcomes are guaranteed”.¹⁵² Hence, “in judging that someone is reliable we look to their past performance”¹⁵³ in order to overcome this uncertainty.¹⁵⁴ Considering experience can lead to the willingness of one entity to have confidence in the behaviour of another entity concerning future actions (‘trust’). Often trust will be related to a particular topic.¹⁵⁵ One entity might trust another entity regarding a certain topic (citizens might trust that the EU can guarantee peace), but not another one (citizens might not trust the EU when it comes to GMOs). One entity can trust another entity (one-way), or they can trust each other (in either direction). If trust is not a one-way street, it is further strengthened overall. As Hardin emphasised, “[a] reciprocal trusting relationship is mutually reinforcing for each truster, because each person then has built-in incentive to be trustworthy”.¹⁵⁶

This leads us to the notion of ‘mutual trust’, which requires some interaction (e.g., dialogue) as an action item, and a temporal component. Turning again to Hardin, “[t]he prototypical case of mutual trust at the individual level involves an interaction that is part of a long sequence of exchanges between the same parties”.¹⁵⁷ Besides this temporal and action component, there is also a level of proximity, which tends to increase trust, as we “commonly trust our parents, siblings, close friends, spouses, and others who are close to us in this way within varying limits”.¹⁵⁸

Let us now turn to the EU. In the context of fundamental rights (and the ‘Common European Asylum System’) the question has been addressed, whether “major operational problems in a given Member State, meaning that there is a substantial risk that asylum seekers may, when transferred to that Member State, be treated in a manner incompatible with their fundamental rights”¹⁵⁹ can destroy mutual trust between Member States.¹⁶⁰ As the Court has stated in the seminal N.S. case: “At issue here is the raison d’être [!] of the European Union and the creation of an area of freedom, security and justice [AFSJ] and, in particular, the Common European Asylum System, based on mutual confidence [!] and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights.”¹⁶¹ Three comments: First, although the ECJ referred to mutual confidence, this can be equated with mutual trust. Second, the Court referred to human rights, not values, and, finally, the Court’s statement involves a certain threshold (“major operational problems”, “substantial risk”). This presumption has been linked by the Court to the “duty of the Member States to interpret and apply [EU secondary law] in a manner consistent with fundamental rights”.¹⁶²

The concept of mutual trust also¹⁶³ applies to the EU’s common values, as clarified in Achmea:¹⁶⁴

EU law is thus based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised, and therefore that the law of the EU that implements them will be respected. It is precisely in that context that the Member States are obliged, by reason inter alia of the principle of sincere cooperation set out in the first subparagraph of Article 4(3) TEU, to ensure in their respective territories the application of and respect for EU law, and to take for those purposes any appropriate measure, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the EU […].

The extension of this case-law to values is not surprising and at the same time convincing, as the fundamental rights are part of Art 2 TEU. Likewise, the “principle of mutual trust is a constitutional principle”.¹⁶⁵ The duty to interpret and apply EU secondary law in the light of the fundamental freedoms can be extended to a value-conform interpretation of EU law.¹⁶⁶ The above-mentioned level of proximity leading to increased trust can be seen in the opposite situation of third countries. As the Court had held regarding the CETA¹⁶⁷ agreement with Canada, “that principle of mutual trust, with respect to, inter alia, compliance with the right to an effective remedy before an independent tribunal, is not applicable in relations between the Union and a non-Member State”.¹⁶⁸

However, this “fundamental premiss” can be rebutted. ‘Mutual trust’, as emphasised by ECJ president Lenaerts, should not be confused with ‘blind trust’.¹⁶⁹ Hence, “[t]rust must be ‘earned’ by the Member State of origin through effective compliance with EU fundamental rights standards”.¹⁷⁰

To sum up, trust is based on experience, orientated towards the future¹⁷¹ and (ideally) not a one-way street. Mutual trust is related to proximity (e.g., EU membership¹⁷²), based on interaction (e.g., dialogue) and has a temporal component. The well-known approach in EU law to refer to a high level of protection¹⁷³ can also contribute to enhancing trust, as recently addressed by the ECJ in the specific context of animal welfare.¹⁷⁴ As ECJ President Koen Lenaerts has aptly expressed, “[i]t is said that ‘[t]rust takes years to build, seconds to destroy and forever to repair’”.¹⁷⁵ This mutual trust is based on the EU’s common values (including fundamental rights), and while emphasised for the relationship “between the Member States”, it is also crucial for the relation with EU citizens,¹⁷⁶ as will be shown in the remaining chapters.¹⁷⁷

1.5.5 Soft-Law

Besides the concepts covered so far, the distinction of hard-law and soft-law will also play a role in this book. Therefore, the last concept to be dealt with in this chapter is that of ‘soft law’. In the context of ethics and values in the field of digitalisation¹⁷⁸ we can find both the idea that “ethical principles are only efficient where they are also enshrined in law”, and the statement that “where it would be premature to adopt legal acts, a soft law framework should be used”.¹⁷⁹

Jabloner has defined soft-law as “a generic term for social controls that are related to law but do not share its binding force”.¹⁸⁰ Hence, the decisive difference between hard- and soft-law is the lack of its legally binding nature. A narrower definition of soft-law refers only to documents enacted by authorities, which theoretically could enact hard-law, but—for legal or political reasons¹⁸¹—opt for “softer forms of social controls”.¹⁸² According to the broader definition, also NGOs, associations, etc. could enact soft-law, according to the narrower definition this would only be possible in case of authorities like the European Parliament, etc.

“As a line from Game of Thrones has it, ‘what is dead may never die’”.¹⁸³ With these words, AG Bobek has started his opinion on the legally binding nature of certain documents and the resulting consequences for Art 263 TFEU (action for annulment) and Art 267 TFEU (preliminary ruling). This quotation refers to the question of whether it is possible to annul (kill) a document, which is not legally binding (i.e., already dead). Under Art 263 TFEU, the Court can review “all measures adopted by the institutions which are intended to have legal force”.¹⁸⁴ Hence, “[a]n action for annulment must therefore be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects”.¹⁸⁵ In order to determine, whether a certain document “produces binding legal effects, it is necessary to examine the substance of that act and to assess those effects on the basis of objective criteria, such as the content of that act, taking into account, where appropriate, the context in which it was adopted and the powers of the institution which adopted the act”.¹⁸⁶

Art 263 TFEU (action for annulment) and Art 267 TFEU (preliminary ruling)¹⁸⁷ are just two procedures at EU level that prove the practical consequence of this classification of hard- or soft-law.¹⁸⁸ More generally, individuals should be able to know whether a certain document is binding for them and therefore can result in rights or obligations. This issue addresses a similar underlying problem as identified earlier in case of binding (EU) law referring to non-legal concepts, which in the end are not sufficiently determined in terms of content.¹⁸⁹ This can be a problem regarding legal certainty, which requires amongst other things that “legislation must be clear and predictable for those who are subject to it”.¹⁹⁰ In the case, where the Game of Thrones quotation of AG Bobek was taken from, the Court has in the end decided that these guidelines had no binding force and consequently could not be subject to an action for annulment (Art 263 TFEU).¹⁹¹ However, the Court can assess the validity of such acts in a preliminary ruling proceeding (Art 267 TFEU).¹⁹²

One challenge in this regard is the difficulty in distinguishing soft- from hard-law. At a procedural level, soft-law can become binding indirectly via courts, which must take soft-law into account in their interpretation. According to Art 288(5) TFEU, “[r]ecommendations and opinions shall have no binding force”. As the Court has stated in Grimaldi, “true recommendations” are documents that “are not intended to produce binding effects” on the persons to whom they are addressed, hence “cannot create rights upon which individuals may rely before a national court”.¹⁹³ A distinction has to be drawn between individuals and national courts, as the latter are nonetheless “bound to take those recommendations into consideration in order to decide disputes submitted to them, in particular where they are capable of casting light on the interpretation of other provisions of national or [Union] law”.¹⁹⁴ One could conclude that via the Grimaldi case-law, the initiative is not upon the individual, but upon the court, but the latter’s decision can in the end affect individuals.

Soft-law can also become binding in another indirect but more substantive way. A second document of hard-law referring to a former soft-law document can make the latter binding in an indirect way. For instance, for the definition of ‘small and medium-sized enterprises’ (SMEs), the EU regulation establishing the InvestEU Programme from 2021¹⁹⁵ refers to an EC recommendation from 2003.¹⁹⁶ This horizontal situation at EU level is less problematic, compared to a vertical situation, where one or more (up to 27) Member States might decide to make an EU soft-law document legally binding indirectly, for instance, if a national authority “declare[s] that it complies”¹⁹⁷ with this EU soft-law document.¹⁹⁸ This vertical situation is not only more challenging concerning legal certainty (at the interface of two legal systems), but also more problematic with regard to the principle of uniformity.¹⁹⁹

Besides the above-mentioned problems for individuals, EU bodies issuing soft-law could “create parallel sets of rules which bypass the legislative process and which might have an impact on institutional balance”.²⁰⁰ As Jacqué has aptly emphasised, for the Court the institutional balance “is a substitute for the principle of the separation of powers that, in Montesquieu’s original exposition of his philosophy, aimed to protect individuals against the abuse of power”.²⁰¹ Hence, this represents a possible double problem not only for the EU institutions but also for individuals.

1.6 Practical Information for the Reader

Finally, this introduction shall end with some practical information for the reader. While literature can be found under ‘references’ at the end of each section, the following documents are listed at the end of this book. The case-law (clustered according to relevant court etc., then in chronological order), EU primary law etc. (in chronological order), EU directives and regulations (in alphabetical order), Eurobarometer surveys (on EU values), other (EU, Council of Europe, and United Nations) legal documents (in alphabetical order), as well as other national legal documents (according to country). Please note, if reference is made to the EU treaties, this refers to the latest consolidated version (OJ 2016 C 202). This document as well as all other EU legal documents can be found on EUR-Lex, the EU’s legal database (https://eur-lex.europa.eu/), respectively at the CJEU’s website (https://curia.europa.eu). Finally, in order to make the text more digestible for the reader, certain key words are highlighted in bold. In a similar way, emphases, but also omissions and notes in quotations have been marked by square brackets ([!], […], etc.). This book has been finished in December 2021, some updates have been integrated as of April 2022.