This chapter shall provide a short overview covering the legal bases of values in the EU (Sect. 2.1), addressing the different levels (EU, Member States, and individuals) affected (Sect. 2.2), and besides the general values (Art 2 TEU) address (a selectionFootnote 1 of) specific values, respectively, these general values in specific fields (Sect. 2.3). Hence, setting the agenda in terms of both providing a general overview, and addressing some questions (cf. Sect. 2.4), to be answered in the rest of this book. The lessons learned are then summarised in Sect. 2.5.

2.1 Legal Bases: The Hub of Art 2 TEU, and Its Spokes

Introduced by the Lisbon Treaty, Art 2 TEU is the key legal basis for the EU’s common values, which has been referred to as the “‘untouchable core’ of the EU legal order”.Footnote 2 However, Art 2 TEU (cf. also Sect. 3.2) in itself is not enough, as the values mentioned therein refer to various other provisions of EU law.

One prominent example is the CFR, as Art 2 TEU refers to “human rights, including the rights of persons belonging to minorities”. ‘Human rights’ (“moral rights possessed by all human beings simply in virtue of their humanity”Footnote 3) must be differentiated from ‘fundamental rights’ (“fundamental rights form spheres of natural freedom of the individual which, as negative norms of competence, oppose state intervention and secure the exercise of individual freedom”Footnote 4), as well as ‘citizens’ rights’.Footnote 5 However, it is worth mentioning that most of the articles of the CFR refer to humans and not only to EU citizens, such as Art 2 CFR (right to life: “everyone”), or Art 4 TEU (right not to be tortured: “no one”), to name but a few. Additionally, the corner-stone of the EU’s common values, human dignity, figures prominently as the title of the first chapter, as the first article, as well as the “the real basis of fundamental rights”.Footnote 6

Just to name another example, non-discrimination (and equality) can be found in various provisions of EU law (not to mention the vast CJEU case-law).Footnote 7 Non-discrimination based on citizenship, or the origin of the product is a key principle of the EU’s economicFootnote 8 fundamental freedoms. Non-discrimination based on other criteria (ethnic minorities, religion or belief, disability, age, sexual orientation, and gender) in the fields of employment & vocational training, education, access to goods and services, as well as social protection can be found in various EU directives (cf. also Art 19[1] TFEU).Footnote 9

Finally, Art 21(1) CFR extends this list by referring to “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”.

Besides individual values, a general reference to the values of this hub (Art 2 TEU) can also be found elsewhere in the EU treaties.

  • From an internal perspective, the values of Art 2 TEU figure prominently in Art 3(1) TEU on the EU’s objectives, according to which the “Union’s aim is to promote peace, its values and the well-being of its peoples”. For countries striving to join the EU, Art 49 TEU requires both respect for “the values referred to in Article 2” as well as the commitment to promote them. In recent case-law, the ECJ has referred to Art 49 TEU emphasising that by joining the EU via this procedure, the states have “freely and voluntarily committed themselves to the common values referred to in Article 2 TEU”.Footnote 10 It seems that by referring to Art 49 TEU, the ECJ wants to emphasise the binding nature of Art 2 TEU, the importance of these values, and the non-negotiable compliance.Footnote 11 Regarding the rule of law, the ECJ has proclaimed what has been called a ‘non-regression’Footnote 12 principle.Footnote 13 Mader has argued that beyond the rule of law, this ‘non-regression’ principle is basically also applicable to other EU values.Footnote 14 For Member States, Art 7 TEU would provide a sanction procedure in case of breach of these values,Footnote 15 which so far has proven rather useless due to the high requirements.Footnote 16 Hence, sometimes it was referred to as the ‘nuclear option’.Footnote 17 For the EU’s institutions, Art 13(1) TEU refers to the Union’s ‘institutional framework’, “which shall aim to promote its values”.Footnote 18

  • Art 14 TFEU refers to “the place occupied by services of general economic interest in the shared values of the Union”.Footnote 19 As mentioned by Calliess, these “horizontal clauses thus highlight certain values of the EU and help them to prevail in individual cases”.Footnote 20

  • From an external perspective, the above-mentioned Art 3(5) TEU (objectives), tasks the EU to “uphold and promote its values and interests” in “its relations with the wider world”. This includes the EU’s neighbourhood policy (Art 8 TEU; “founded on the values of the Union”), external action (Art 21[2] [a] TEU; “safeguard its values, fundamental interests”, etc.), foreign and security policy (Art 32 TEU; “assert its interests and values on the international scene”), as well as common security and defence policy (Art 42[5] TEU; “protect the Union’s values and serve its interests”).

Hence, we can refer to Art 2 TEU as a hub, which via its spokes is linked to various provisions of EU law, both EU primary and EU secondary law, both hard- and soft-law (remains to be shown), both legislative and executive documents, and case-law.

2.2 Different Levels

Looking at the wording of Art 2 TEU, the first sentence refers to values on which the EU “is founded”: “respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities”. Hence, these values address the EU as an international (more precisely, supra-national) organisation, including its institutional framework (cf. Art 13 TFEU). The wording of “is founded” implies that these values are pre-existing to the Lisbon Treaty.Footnote 21 The same applies to the EU’s agencies and other bodies, which are obviously subject to EU primary law (comprising these values). Member States, which have signed the EU treaties, are bound by these values as well.

The second sentence is more sophisticated: “These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” First, this sentence addresses the level of the Member States, not the EU. Additionally, it addresses a society in all Member States. This seems to imply that there is one European society, which can be found in the current 27 Member States. In case of the afore-mentioned concept of ‘public morality’Footnote 22 we can identify a collective concept, as it is defined by public authorities and not by single individuals.Footnote 23 A similar question is also pertinent concerning this second sentence. Are those valuesFootnote 24 addressing individuals, which are members of such a society, or only this collective society as such? While the justiciability of values (de lege lata) will be addressed later,Footnote 25 the question remains if values are needed (de lege ferenda) at the level of individuals (EU citizens and third-country nationals living in the EUFootnote 26).

In a recent case concerning restrictive measures against Iran, AG Hogan has referred to the “right of a business to decide according to its own ethical [!] sense of business values [!] that it will not do business with regimes of that kind [i.e., Iran]” as “a core element of the freedom of conscience protected by Article 10(1) of the Charter and the freedom to conduct business within the meaning of Article 16 of the Charter”.Footnote 27 This quotation illustrates the link between ethics and values and refers to the level of individuals (natural or legal persons), besides the above-mentioned levels of the EU and the Member States.

Besides these different levels, there are various documents in specific fields, which are specifically directed at individuals. In the following, some selected examples will be briefly depicted.

2.3 Specific Values, Respectively, Values in Specific Fields (Selection)

While one could reflect on specific values in various fields, the following excerpt will focus on a selection of those fields, where relevant EU documents exist (Sects. 2.3.1–2.3.4), respectively, one in statu nascendi (Sect. 2.3.5). See also Sect. 3.2.3 for further details.

These general common values of the EU have been applied to two areas (digitalisation and non-financial reporting, partly in sports) and further specified in others (health and partly in sports), as can be seen below from Table 2.1 (non-exhaustive overview).Footnote 28

Table 2.1 EU common values applied and further specified [Frischhut (2019), p. 35]
Full size table

In terms of the legal status, no example except for the non-financial reporting directive, is legally binding (soft-law).

2.3.1 Health

In 2006, thus 3 years before the entry into force of the Lisbon Treaty, the EU health ministers have declared the health values of “universality, access to good quality care, equity, and solidarity”.Footnote 29 This example is not an application of the general values, but a concretisation, resulting in mainly distinct values, where only solidarity is part of both the general and these specific values.Footnote 30 For this example of health values, we can identify the EU’s motto of ‘united in diversity’,Footnote 31 as these Council conclusions of 2006 emphasise “that the practical ways in which these values and principles become a reality in the health systems of the EU vary significantly between Member States, and will continue to do so”.Footnote 32 However, as de Ruijter has emphasised, the “2006 Council Conclusions may help shape the interpretation of fundamental rights in the context of EU health law”.Footnote 33 Unlike the general values, this document sheds further light on the content of these values. Equity,Footnote 34 for instance, is determined in the sense that it “relates to equal access according to need, regardless of ethnicity, gender, age, social status or ability to pay”. It is also worth mentioning that “[b]eneath [!] these overarching values, there is also a set of operating principles”,Footnote 35 which cover quality, safety, care that is based on evidence and ethics, patient involvement, redress, privacy and confidentiality.Footnote 36

Apart from this official document of EU health ministers, it is worth mentioning that also NGOs follow a similar approach. The statement entitled “Public health for the future of humanity. One planet, One people, One health” of October 2020Footnote 37 refers to the following “key values in addressing the global pandemic, namely solidarity, equity, trust, autonomy, equal moral respect, and vulnerability”. There are clearly some similarities between these six values and the EU’s health values: Solidarity as an EU value (and legal principle), equity (depending on the definition) linked to equality, justice, and non-discrimination as EU value (and principle), autonomy as (depending on the interpretation) related to human dignity, equal moral respect (in the author’s reading also related to human dignity) and vulnerability as a concept, which can be found both in ethics and in human rights.Footnote 38 Depending on the organisation of health systems, one could still argue that these values are directed at Member States, respectively, public stakeholders in health systems.

2.3.2 Sports

This finding does not apply to the next field of sports. An EP resolution on integrity, etc. in sportsFootnote 39 took both the approach of promoting the general EU values (“such as pluralism, tolerance, justice, equality and solidarity”),Footnote 40 but also coined distinct values (“such as respect, friendship, tolerance and fair play”;Footnote 41 or “such as mutual respect, tolerance, compassion, leadership, equality of opportunity and the rule of law”Footnote 42). The 2018 Council conclusions on promoting the common values of the EU through sport mainly refer to distinct values (printed in Italics), when they state that “sport can teach values such as fairness, teambuilding, democracy, tolerance, equality, discipline, inclusion, perseverance and respect that could help to promote and disseminate common values of the EU”.Footnote 43 The same is true, when they state that “[v]alues such as mutual respect, fair play, friendship, solidarity, tolerance and equality should be natural to all those involved in sport”.Footnote 44 First, as we can see, most of those values are not part of Art 2 TEU. Second, friendship and related values are clearly directed at individuals and not at public stakeholders.

2.3.3 Digitalisation

While these values in the field of sports will mainly concern natural persons, digitalisation will most of the time concern legal persons, i.e. (big) corporations. In this field, the Ethics Advisory Group established by the European Data Protection Supervisor has referred to dignity, freedom, autonomy, solidarity, equality, democracy, justice and truth, to leap from the EU’s general common values to ‘digital ethics’.Footnote 45 As we can see, the majority of values are those form Art 2 TEU (e.g., not comprising the rule of law, non-discrimination, tolerance), while also embracing autonomy. Autonomy can be seen as part of human dignity, and a principle from the ‘principlism’ of Beauchamp and Childress,Footnote 46 as Floridi et al. advocated applying this substantiveFootnote 47 concept for the field of digitalisation, respectively, more precisely for artificial intelligence (AI).Footnote 48

In the field of digitalisation, various EU documentsFootnote 49 refer to EU values and have also led to individuals dealing with questions of AI etc.Footnote 50 The EP, for instance, proposes a “European certificate of ethical compliance”, amongst others based on “Union values [and] Union ethical principles by design”.Footnote 51 The approach of combining values and principles can also be found outside the EU. As recently emphasised by the UNESCO in its recommendation on the ethics of AI, a “set of values […] inspires desirable behaviour and represents the foundations of principles, the principles unpack the values underlying them more concretely so that the values can be more easily operationalised in policy statements and actions”.Footnote 52 In this field, many discussions have recently taken place at EU level, that is why this question will be further discussed in Chap. 4.Footnote 53

The current EC proposal for an AI act refers to the “objective of the Union of being a global leader in the development of secure, trustworthy and ethical artificial intelligence”, by “laying down a uniform legal framework in particular for the development, marketing and use of artificial intelligence in conformity with Union values”.Footnote 54 However, not all EU documents in the area of digitization contain references to ethics or values. The Digital Markets Act (DMA)Footnote 55 contains only one reference, the Digital Services Act (DSA)Footnote 56 contains no reference to the EU’s common values.

2.3.4 Non-financial Reporting

Let us now, in the broader context of corporate social responsibility (CSR),Footnote 57 turn to one field where we can find legally binding rules, addressing certain big corporations. An EU directive of 2013 provides certain rules on financial reporting.Footnote 58 In 2014, this directive was amended to also include non-financial and diversity reporting.Footnote 59 Two Commission guidelines provide further information, one from 2017 on the methodology for non-financial reporting,Footnote 60 and another one from 2019 on climate-related information.Footnote 61 This 2014 directive itself refers to a “non-financial statement containing information […] relating to, as a minimum [!], environmental, social and employee matters, respect for human rights, anti-corruption and bribery matters”.Footnote 62 Hence, this directive does not only refer to one of the values (human rights) mentioned in Art 2 TEU, but also to other topics that can be of relevance for EU values.

It is important to mention that this 2014 directive does not prescribe a specific standard. While mentioning some explicit examples (e.g., ISO 26000), in providing this information, recital 9 allows undertakings that they “may rely on national frameworks, Union-based frameworks […], or international frameworks […], or other recognised international frameworks.” Hence, undertakings can rely on different standards, but in the following, one will be further depicted, due to his relevance for the topic at hand.

Based on these EU rules on non-financial reporting for some large companies, the common good matrix, which lies at the heart of the Common Good Balance Sheet, is based on the ‘values’Footnote 63 of human dignity, solidarity and social justice,Footnote 64 environmental sustainability, transparency and co-determination (see Fig. 2.1).

Fig. 2.1
figure 1

Common good matrix (Source: https://www.ecogood.org/en/common-good-balance-sheet/common-good-matrix/)

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While the EU Directive refers to “environmental, social and employee matters, respect for human rights, anti-corruption and bribery matters”, this example of the Common Good Matrix stands out for its strong emphasis on EU values (human dignity, solidarity, justice) and related principles (sustainability, transparency) that are explicitly addressed. Co-determination can be seen to be linked to democracy. While this example was already mentioned in ‘The Ethical Spirit of EU law’,Footnote 65 in drafting this book, the author had the opportunity to talk to the spiritus rector of this Common Good Matrix, Christian Felber.Footnote 66

The Common Good Matrix idea is based, among others,Footnote 67 on the Aristotelean idea that sees money not as the end, but only as a means to an end.Footnote 68 Without going too much into details, this matrix is based on the ‘common good’,Footnote 69 which the Oxford dictionary defines as “the benefit or interests of all”.Footnote 70 The common good shall not be determined in a utilitarian way, but shall relate to the good of all, hence a strong link to human dignity (see below). An important idea is that the good of everyone has equal value.

How have these values been chosen? According to Felber and Heindl, in the economy, “the same values should be honoured and lead to success that are enshrined in the constitutions of democratic states (constitutional values) and make human relationships successful (relational values)”.Footnote 71 Having analysed various constitutions of democratic countries worldwide, they have identified these above-mentioned values. Hence, a bottom-up approach based on legal comparison.

In a similar way as within this book, the question occurs, how shall the content of these values be filled with life? The common good and these values shall be decided by those affected in a democratic decision, hence, again bottom-up. This task has to be done now, and in the future by future generations.Footnote 72

Hence, the shaping of the content of these values should be seen as an ongoing and dynamic democratic process that, again, shall not take place top-down, but in a bottom-up way.Footnote 73

Within this concept, the common good and human dignity shall be seen as the two poles of state action.Footnote 74 Equality and freedom are not explicitly mentioned but seen as being closely related to human dignity.

Likewise, freedom and the rule of law do not figure amongst the values chosen, as the two of them are rather seen as prerequisites for companies, so that they are able to conduct their business.

Hence, we can identify all of the EU’s values that are explicitly mentioned, such as human dignity, human rights (including minorities), (social) justice and solidarity. Some are implicitly covered, as content-wise there is a strong link of freedom and equality (including non-discrimination) to human dignity. Democracy can be seen as both a prerequisite (as a selection criterion for the countries chosen), and included in the sense of self-determination. Likewise, freedom and the rule of law are also seen as prerequisites. Two values do not figure in this list: Those are the two values rather related to human beings, namely, pluralism and tolerance.Footnote 75 In EU law, sustainabilityFootnote 76 and transparencyFootnote 77 are qualified as principles, not as values.

Last but not least it is important to emphasise that these obligations do not affect human beings, but legal persons.

This is an example of values having a direct impact on (large) companies, where we find an application of some of the EU’s values, respectively, principles of sustainability and transparency. In terms of an outlook, it shall be mentioned that due to “a widening gap between the sustainability information companies report and the needs of the intended users of that information” the current legislative framework shall be revised and placed with the overall objective of the ‘European Green Deal’.Footnote 78

2.3.5 Lobbying and Beyond

While these specific fields are not exhaustive, the author wants to mention one, where values and ethics play an important role in (re-)gaining citizens’ trust in the EU, i.e., the controversial field of lobbying. Often citizens have the impression that big corporations can simply ‘buy laws’, as unfortunately some politicians have actively ‘contributed’ in creating such an impression.Footnote 79

In her speech from July 2019 setting out the political guidelines of the Commission for 2019–2024, President Ursula von der Leyen expressed her will to “support the creation of an independent ethics body common to all EU institutions”.Footnote 80 Likewise, the European Parliament has also supported this idea and on 16 September 2021 has adopted a resolution ‘on strengthening transparency and integrity in EU institutions by setting up an independent EU ethics body’.Footnote 81

The author has drafted a study commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the AFCO Committee, how to set up such an ‘Independent Ethics Body’ (IEB). This study was based on an analysis of the status quo in the EU, and on a comparison covering France, Ireland and Canada.

France stands out as a country with a strong ethics watchdog, the ‘Haute Autorité pour la transparence de la vie publique’ (HATVP).Footnote 82 The Rules of Procedure of this body require the HATVP members, rapporteurs and officials to perform their duties with integrity, probity, transparency, impartiality and independence.Footnote 83 Another benchmark in this field is Canada with its ‘Conflict of Interest and Ethics Commissioner’ (CIEC). The ‘Code of Values for Employees of the Conflict of Interest and Ethics Commissioner’Footnote 84 addresses the vision to support a “culture of integrity to achieve a high degree of public confidence”. The four values mentioned in this regard comprise respect for people (fostering “inclusion, civility and dignity”), professionalism (inducing diligence, consistency, and a spirit of collaboration), integrity (building and maintaining trust “by upholding the highest ethical standards”), and impartiality (independence, objectivity, non-partisan behaviour, and maintaining diversity of views). Notably, the staff must adhere to the “highest [!] ethical standards”, to achieve a “high [!] degree of public confidence”.Footnote 85 This is an approach, which could also prove useful for the EU.Footnote 86

After a long struggle, the voluntaryFootnote 87 transparency register comprising the European Parliament and the European Commission was finally turned into a mandatoryFootnote 88 transparency register, also now comprising the Council of the EU.

2.4 Relations

These sections of this chapter so far have already addressed some of the following questions. This section shall only address (some additional) questions, which will then be further elaborated and answered in Chap. 4.

This first comprises the relationship of values to each other (Sect. 4.1). What is the overall relationship between the first and the second sentence of Art 2 TEU? Do they have a different legal significance, respectively, do they address different stakeholders, and are they mutually exclusive, or are there overlaps between the two sentences, respectively, between those addressed by these values, both in terms of rights, and in terms of obligations (see also Sect. 3.3). Is the value of non-discrimination the substantive materialisation of the more abstract concept of justice? Besides the two sentences of Art 2 TEU, there can always be conflicting situations between two values. For instance, can the value of democracy limit the rule of law (cf. Poland, Hungary, etc.),Footnote 89 or the human rights of minorities?

Section 4.2 will cover the relationship between Art 2 TEU and other provisions of EU law. This includes other provisions of EU primary law, which can either reinforce (e.g., Art 4[3] TEU) or weaken (Art 4[2] TEU) the EU’s common values (Sect. 4.2.1). Besides values, also human rights have a ‘constitutional dimension’.Footnote 90 Therefore, also the relationship between Art 2 TEU and other human rights provisions (e.g., CFR, ECHR) must be analysed (Sect. 4.2.3). The relationship of EU values can also be important for the so-called ‘reverse Solange’ doctrine, which was developed in 2012 and which becomes more important against the background of ‘illiberal’ tendencies (Sect. 4.2.2).

Finally, the relationship between values and other concepts (Sect. 4.3) can be important to determine the content, as vague legal provisions leading to legal consequences can be a problem concerning legal certainty, as part of the rule of law.Footnote 91 More concrete legalFootnote 92 principles (and other legal provisions) can therefore fill such a concept with substance.

2.5 Lessons Learned

Hence, what are the lessons learned from this chapter?

Values have been enshrined in Art 2 TEU, but this provision is a hub, where other articles of EU primary and secondary law feed into, filling these concepts with life. Maybe non-discrimination is one of the best examples, having displayed some of the provisions that can be seen as jigsaw pieces of the greater puzzle.

It is important to have general values, which necessarily must remain rather abstract, as they play a role in several fields. However, we also have to see the role of these general values in specific fields. For instance, what does human dignity mean in digitalisation, what does solidarity mean in health under ‘normal circumstances’, or in a pandemic more specifically?

The health values have also contributed the idea of linking more abstract values to more specific legal (and or ethical) principles, as the latter provide more clarity (legal addressees and consequences) and are less abstract.

The health field has also highlighted an approach following the EU’s motto of ‘united in diversity’. Common values do not necessarily have to be completely uniform but can leave some leeway where necessary. This idea will have to be further developed in the following.

Values in a specific content might also have the advantage of providing more substance. Again, this should not be seen as a criticism of abstract general values, as too detailed values most likely will be unapt for a broad range of fields, to which they need to be applied.

One last word on the health field. Here it was also interesting to see that NGOs in a specific field seem to go into a similar direction as the health ministers at the time. Seems there is intrinsic consensus. This of course does not mean that there cannot be disagreement on other issues.

The field of sports contributed to the finding of values addressing the individual, such as perseverance, respect, mutual respect, friendship, and fair play. While there can be a lengthy discussion whether these should be seen as personal values or rather as virtues (“goodness and rightness in character and [!] conduct”Footnote 93), it is paramount to also include this level of individuals.

Non-financial reporting stands out as one example where human rights and values can have a binding impact via hard-law, besides the other examples of soft-law. This is an important element in applying values to various fields as whether to best intervene in a regulatory approach via soft- or hard law, respectively, on a timeline at what stage a transition from soft- to hard-law might prove necessary, in case the former should be insufficient.

Finally, the field of lobbying and more broadly of ethics in public decision-making has brought to light the necessity of values and ethics to (re-)gain citizens’ trust. The above-quoted approach of the striving for the “highest [!] ethical standards”, to achieve a “high [!] degree of public confidence” can clearly be seen as an approach also worth striving for inside the EU. Here, too, it should be emphasised once again that ethical standards include values and do not exclude them. This quotation from Canada has also revealed that valuable benchmarks can be found both outside the EU’s institutional framework, and even outside Europe.