Different Scopes and Implications (De Lege Lata)

Abstract

This chapter covers the temporal, content-related, personal, and territorial scope of these values. The temporal scope (scope ratione temporis) addresses the historic development of EU values and addresses the ‘living instrument’ character of these values and of the Charter of Fundamental Rights. The content-related scope (scope ratione materiae) provides a detailed overview on the various values of human dignity, democracy, the rule of law, human rights (including those of minorities), solidarity, justice, equality, including equality between women and men, non-discrimination, freedom, pluralism, and tolerance. Within each section, the following questions will be addressed: What is the legal quality of the relevant concept: A value, a (general) principle (of EU law), an objective, and/or a fundamental right? Is the relevant concept defined, or at least to some extent determined (either in the Treaties, in EU Secondary law, or in case-law)? If not determined in law, can we find some clarification in philosophical literature? Where in EU law can we trace this concept? The personal scope (scope ratione personae), addresses the question of who is entitled and who is obliged by the various values. Finally, the territorial scope (scope ratione limitis), addresses the situation of values both inside and outside the EU27. Finally, the implications, of values in terms of the question of their justiciability and the possibility of restrictions are covered.

Based on the general introduction into this topic (previous Chap. 2), let us now turn to the scope of these values. Section 3.1 will focus on the historic development so far and the evolutionary character of these values (scope ratione temporis), followed by the scope ratione materiae (content) in Sect. 3.2. Section 3.3 addresses the scope ratione personae, covering both those entitled and obliged by various values. The external perspective (scope ratione limitis), i.e., taking a closer look both inside and outside the EU27, will be covered in Sect. 3.4. Finally, Sect. 3.5 focuses on the implications, i.e. questions of justiciability and restrictions.

3.1 Scope Ratione Temporis

3.1.1 Development of Values

The history of European integration can be described as a step-by-step approach.¹ The European Coal and Steel Community (ECSC) Treaty of April 1951 did neither refer to values, nor to human rights. What it mentioned in its preamble is ‘world peace’ (“paix mondiale”), and the idea expressed in the Schuman declaration (of May 1950) of concrete actions, which create a real solidarity (“réalisations concrètes créant d’abord une solidarité de fait”).²

In academia, already in 1979, Walter Hallstein has identified the following values of European Community integration: peace, uniformity, equality (between both citizens and Member States), freedom, solidarity, prosperity, progress, and security (own translation).³ Peace was the overreaching objective of the ECSC Treaty, which Schuman strove to achieve via economic integration. Uniformity and equality (non-discrimination) can be seen as essential features (or legal principles) of EU (or Community) law, prosperity, progress, and security rather as concrete achievements of this integration process. What remains are equality, freedom, and solidarity, as three of today’s values. Although not part of the chapter on values (Grundwerte), Hallstein has also addressed fundamental rights (Grundrechte).⁴ Likewise, in relation to the European Community, Calliess (in 2004) referred to the ‘magic triangle of values’ of peace, economy and integration,⁵ three concepts, which might rather be seen as two fields (economic and institutional integration), in order (also) to safeguard peace. This European integration process at the time can be qualified as an ‘association of functional integration’ (‘Zweckverband funktioneller Integration’), as coined by Ipsen.⁶

Since the ECJ had decided (in 1970) in case Internationale Handelsgesellschaft that Community (today: EU) law also enjoys primacy over national constitutional law,⁷ there was a need also to recognise fundamental rights at Community level.⁸ Already in 1969, the ECJ had introduced the concept of “fundamental human rights enshrined in the general principles of Community law and protected by the Court” in Stauder, although there was no fundamental rights infringement in this particular case.⁹ In case Internationale Handelsgesellschaft, the ECJ had clarified that these “general principles of law” are “inspired by the constitutional traditions common to the Member States”.¹⁰ This source of inspiration has later been expanded in 1974 to include international treaties,¹¹ and (in 1975) to the ECHR.¹² This approach of the ECJ has been endorsed by both the EU institutions (in 1977),¹³ and by the Member States in the Treaty of Maastricht (February 1992)¹⁴.¹⁵ Already the European Council of April 1978 endorsed this joint declaration of EU institutions (from 1977) and referred to “the cherished values of [the] legal, political and moral order”.¹⁶ In the end,¹⁷ this development¹⁸ has been codified (with other sources¹⁹) in the CFR.²⁰

Besides this internal development, if we turn to the external perspective,²¹ i.e., accession of new Member States, the European Council meeting in June 1993 in Copenhagen has defined the following criteria for accession to (what today is) the EU:²²

Membership requires that the candidate country has achieved [a] stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, [b] the existence of a functioning market economy and the capacity to cope with competitive pressure and market forces within the Union. Membership presupposes the candidate’s [c] ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union.

Besides the (ad b) economic (functioning market economy, etc.) and the (ad c) legal (ability to take on the so-called acquis²³), the (ad a) political category of the 1993 Copenhagen criteria (“stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities”) are well-known values of today’s Art 2 TEU.

A brief look into the constitutional debate²⁴ reveals that these 1993 political ‘Copenhagen-criteria’ correspond to what the so-called 1984 ‘Spinelli-draft’ of the EP had mentioned in its preamble: “commitment to the principles of pluralist democracy, respect for human rights and the rule of law”.²⁵ The 1994 EP ‘Herman-draft’ first referred to values, and listed quite some of those mentioned today in Art 2 TEU: “stressing that membership of the European Union is based on values [!] shared by its peoples, in particular freedom, equality, solidarity, human dignity, democracy, respect for human rights and the rule of law”.²⁶

In 1997, the Amsterdam Treaty has taken the next step, enshrining concepts that today figure in Art 2 TEU, although under a different terminology. According to Art F(1), “[t]he Union is founded on the principles [!] of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States”.²⁷ While primary law at the time clearly referred to principles, these concepts have sometimes been referred to as values (“valeurs fondamentales”) in academia.²⁸ Compared to the 1994 ‘Herman-draft’, equality, solidarity, and human dignity did not make it in the 1997 Amsterdam Treaty, besides not adopting the ‘value’ terminology. Today, liberty has been replaced by freedom and the notion of ‘values common to the Member States’ was part of this first sentence, where the second sentence did not yet exist. Two values were missing, that is equality and human dignity.

The latter value of human dignity occurred in ECJ case-law as of 2001.²⁹ In a case concerning the patentability of isolated parts of the human body, the ECJ has held that it “is for the Court of Justice, in its review of the compatibility of acts of the institutions with the general principles of Community law, to ensure that the fundamental right [!] to human dignity and integrity is observed”.³⁰ The concept of ‘human dignity’ did it not come out of nowhere, but was mentioned in recital 38³¹ of the directive³² relevant to this dispute. Briefly to mention that in case-law before 2001, the Court itself has not referred to human dignity, although it was put forward as an argument by the parties of the proceeding,³³ or mentioned in relevant EU secondary law.³⁴ As in the case of the Treaty of Amsterdam referring to principles, here we have the concept of human dignity denominated as a fundamental right, before it later on was referred to as a value.

Three years later (i.e., in 2004), in the famous Omega case, the ECJ has held that “the Community legal order undeniably strives to ensure respect for human dignity as a general principle of law”.³⁵ This case was about the question of whether Germany could be obliged to allow laserdromes, which offer ‘playing at killing’ via the freedom of services, as one of the EU’s fundamental economic³⁶ freedoms. These fundamental freedoms are not unlimited and can be restricted in case of proportional national measures, regarding accepted ‘reasons of justification’. Human dignity, as a German ‘constitutional principle’ has been accepted by the ECJ as a ‘general principle of law’, which can feed into ‘public policy’ as a well-known³⁷ reason of justification.³⁸ This did not only allow Germany to prohibit these laser games, but also put this German ‘constitutional principle’ of human dignity on the European agenda.

The transition from principles to values finally occurred in the European Convention leading to the Constitutional Treaty (October 2004).³⁹ Already in February 2003, a draft referred to values, also including human dignity, where freedom was still referred to as liberty. There was already a second sentence, although still worded differently.⁴⁰ Another draft form June 2003 referred to equality (instead of liberty) and added pluralism and non-discrimination to the second sentence, and the beginning of this sentence was similar to today’s version (“These values are common to the Member States in a society […]”).⁴¹ Although the Constitutional Treaty has not entered into force because of the two negative referenda in France and the Netherlands (May and June 2005),⁴² its Art I.2 corresponds to today’s Art 2 TEU. Hence, since the entry into force of the Lisbon Treaty, the EU can be referred to as a Community⁴³ (or now: Union) of values.⁴⁴

This historic development, as mentioned above, can be summarised as follows (see Table 3.1). Please note that this overview only summarises what has been outlined so far. There are both additional documents,⁴⁵ which have not been integrated, and, apart from human dignity and fundamental or human rights, other values have also been addressed in CJEU case-law.⁴⁶ The box where this concept first occurred in this overview (again, not considering other documents), is highlighted in bold. The columns of Table 3.1 should be read in chronological order (from left to right), where the column on the left (Art 2 TEU) should be seen as a reference, keeping in mind that the column on the right (Constitutional Treaty) corresponds to the Lisbon Treaty (i.e., Art 2 TEU).

Table 3.1 Historic development of Art 2 TEU values (excerpt)

To summarise, the overall development of EU integration can be depicted as follows (see Fig. 3.1). This process started with integration in the economic field. It then also embraced human rights (mainly developed by the CJEU) and spilled over to political integration via the Maastricht Treaty. Finally, the Lisbon Treaty made the CFR legally binding and enshrined the common values in Art 2 TEU. It is important to emphasise that the respective following steps do not replace but supplement the previous ones.

Fig. 3.1

Development of EU integration (own illustration)

Thus, several building blocks were gradually put together and first found their way into primary law under the label of principles, and finally became values through the Treaty of Lisbon. These building blocks have also been identified in academia and many of them developed by the CJEU case-law, which is especially true for fundamental rights. Likewise, also the European Council contributed to the shaping of these values, amongst others via the Copenhagen criteria. These various steps mentioned so far always went into a certain direction, although certain contributions (e.g., the reference to values in the ‘Herman-draft’ of 1994) were not adopted (e.g., the 1997 Amsterdam Treaty, only referring to principles). While the values in the EU treaties have not been changed since the signing of the Lisbon Treaty (signed 13 December 2007), we must acknowledge that Art 2 TEU represents the consensus at the time. This raises the question, whether the 2007 status quo can or should be further developed.

3.1.2 Living Instruments

The ECHR preamble takes an evolutive approach,⁴⁷ which is also true for the EU.⁴⁸ As it is “firmly rooted”⁴⁹ in ECtHR case-law, “the Convention is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today”.⁵⁰ These changing circumstances concern economic and social conditions, and changes in ethical perceptions.⁵¹ As a corollary, the Court must, for instance, “have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved”.⁵²

This dynamic⁵³ and evolutive interpretation can be seen as a sub-category of teleological interpretation,⁵⁴ which, as mentioned above,⁵⁵ refers to the telos (goal, purpose) of a provision. This ‘living instrument’ approach is especially relevant in case of indeterminate legal concepts and can be problematic in case of precise facts.⁵⁶ Besides broad concepts, this approach of referring to ‘present-day conditions’ is especially relevant for concepts relating to a non-legal discipline, as in the case of morality.⁵⁷ Morality refers to attitudes of what is right or wrong, relative to culture, region and especially time. Besides morality, also public order⁵⁸ is a concept that is open to such an evolutionary interpretation.⁵⁹ As we have seen in the previous section, in Omega the ECJ has used the well-established concept of ‘public policy’ to accommodate the German constitutional principle of ‘human dignity’.

To the best knowledge of the author, for the first time in December 2020, the ECJ⁶⁰ has held that “the Charter is a living instrument [!] which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today”.⁶¹ Hence, an identical wording as we know it from ECtHR case-law.⁶² This qualification led the ECJ to the result that “changes in values [!] and ideas, both in terms of society and legislation, in the Member States” must be taken into account. This case decided by the Grand Chamber was about the obligation to stun animals before they are killed, and possible derogations in the context of ritual slaughter. As the ECJ has held in this case, animal welfare is a “value [!] to which contemporary democratic societies have attached increasing importance for several years”, which consequently “may, in the light of changes in society, be taken into account to a greater extent in the context of ritual slaughter and thus help to justify the proportionality of legislation such as that at issue in the main proceedings.”⁶³

The key findings of this case⁶⁴ (stunning of animals) can be summarised as follows:

While the Court has formally referred to the CFR (not Art 2 TEU) as a ‘living instrument’, in the following the ECJ has referred to values, where “changes in society” need to be considered. This ‘living instrument’ character of both the CFR and value is not surprising, given the fact that both Art 2 TEU and the CFR are mutually connected.⁶⁵ Likewise, ECJ president Lenaerts has referred to both “the Treaties and the Charter as a ‘living instrument’”.⁶⁶

Referring to the CFR as a living instrument, the Court has addressed the necessity to consider “changes in values and ideas, both in terms of society and legislation”.⁶⁷ Changes in society relate, for instance, to the evolutive concept of (public) morality. Changes in legislation must be taken into account as well. It is worth mentioning that both in the case that led to the first reference to human dignity,⁶⁸ and in this ‘stunning of animals’ case, the Court has not ‘invented’ the relevant value ‘from scratch’ but has adopted what already existed in EU secondary law. In case of ‘stunning of animals’, the preamble (recital 4) of the relevant regulation stated that “[a]nimal welfare is a Community value [!] that is enshrined in the Protocol (No 33)”.⁶⁹

The evolutive character in this particular case can also be seen, compared to earlier case-law. In 2001, the Court has “declined the invitation”⁷⁰ to recognise animal welfare as a ‘general principle of law’.⁷¹ While from a formal perspective both ‘general principles of EU law’ and values are EU primary law, qualifying animal welfare as a value can clearly be seen as ‘more’ from a substantive perspective.

This case-law does not stand out as the first case adopting this ‘living instrument’ approach but can also be seen as a change of paradigm as now we have the first value not entitling human beings, but animals. This can be seen as a shift from a mainly anthropocentric to a more bio-centric approach. This analysis regarding values corresponds to what was identified concerning the ‘ethical spirit’ of EU law.⁷² On the question of who is entitled by EU values, see also Sect. 3.3.1.

On a broader scale, this evolutive character also corresponds to what has been identified for the ‘ethical spirit’ of EU law, which has been qualified as ‘in statu nascendi’, comparable to the step-by-step approach of the Schuman declaration.⁷³

Finally, we can find values not only in Art 2 TEU, but via the evolutive interpretation of the CFR as a living instrument also outside this key provision, namely, in case of animal welfare in Art 13 TFEU.⁷⁴

This last finding leads us to the content of these values.

3.2 Scope Ratione Materiae

In the following, some light should be shed on the content of these values, keeping in mind that whole books have been written on single values⁷⁵ only, e.g., approx. 700 pages on ‘understanding human dignity’.⁷⁶ Levits has aptly stated that just as physics cannot provide us with an exact definition of the basic physical categories of mass and time, and yet we work with them, we also do not need an exact definition of values.⁷⁷ Nevertheless, it is worth shedding more light on the content of these values.

3.2.1 Common and Constitutional Values of Art 2 TEU

Let us first take a closer look at the common values, enshrined by the Lisbon Treaty in Art 2 TEU, which reads as follows:

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.

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.

The first sentence states the values, which according to the wording are pre-existing (“founded on”).⁷⁸ Unlike most documents of EU secondary law (typically in one of the first articles), the treaties do not entail an official definition of these values. The second sentence seems to have a different legal significance, as the wording does not refer to the EU, but to the MS, precisely their society. Perhaps one would expect a plural here, but the second sentence speaks of “a society”. According to Pechstein, this formulation fluctuates between (desirably guided) description and prescription,⁷⁹ and can be seen as ‘less’, as it cannot trigger Art 7 TEU (sanctions in case of violations of values).⁸⁰

In the following, the values of Art 2 TEU will be shortly depicted not in the order of this provision, but following this structure:

• Human dignity, as the corner-stone of the EU’s values

• Democracy, the rule of law, and human rights (including those of minorities), as the ‘three pillars’ of the Council of Europe⁸¹

• Solidarity

• Justice

• Equality, including equality between women and men, non-discrimination

• Freedom, pluralism, tolerance

Within each section, the following questions will be addressed:

• What is the legal quality of the relevant concept: A value, a (general) principle (of EU law), an objective, and/or a fundamental right?

• Is the relevant concept defined, or at least to some extent determined? Either in the Treaties, in EU Secondary law, or in CJEU case-law? If not determined in law, can we find some clarification in philosophical literature?

• Where in EU law can we trace this concept?

Please note if in the following reference is made to the EU treaties, this refers to the latest consolidated version.⁸²

3.2.1.1 Human Dignity

In terms of legal quality, human dignity⁸³ can be qualified as a value and as a human right (Art 1 CFR). According to the CFR explanations, human dignity is also referred to as a fundamental right,⁸⁴ and can even be qualified as “the real basis [!] of fundamental rights”.⁸⁵ In the famous Omega case, the Court has clarified that “the Community legal order undeniably strives to ensure respect for human dignity as a general principle of law”.⁸⁶ Art 21(1) TEU (external action) refers to various principles, including human dignity. Hence, human dignity can also be qualified as a principle. However, human dignity is not mentioned in Art 3 TEU (objectives).

Human dignity is both the first value mentioned in Art 2 TEU and the first title of the CFR. It also figures prominently in the first article of the CFR. All of this is no coincidence, similar as in the case of the German constitution,⁸⁷ where human dignity can be found in Art 1(1).⁸⁸ For all these reasons, human dignity could be seen as a ‘super-value’.⁸⁹ This is reminiscent of the reasons of justification in the field of the economic fundamental freedoms of the internal market. While those reasons are part of EU primary law and therefore formally equal, it is settled case-law of the Court that “health and life of humans rank foremost [!] among the assets and interests protected by TFEU”.⁹⁰ Again, from a formal perspective, all values have the same legal quality. However, content wise human dignity can be seen as of supreme importance.⁹¹

According to the Oxford Dictionary, dignity can be defined as “the state or quality of being worthy of honour or respect”.⁹² The term dignity goes back to the Latin word dignitas, which can be translated with worthiness, honour, or honourability.⁹³ Human dignity is not defined in the EU treaties, neither positively nor negatively, as Borowsky mentions because this is ‘hardly possible’.⁹⁴ Hermerén mentions the following examples that are against human dignity and the closely related concept of integrity: “eugenics, discrimination, stigmatisation, commercialisation, reproductive cloning, and degrading treatment, including trafficking and instrumentalisation of human beings”.⁹⁵

Where in EU law can we trace this concept? Two CFR⁹⁶ articles refer to dignity. According to Art 25 CFR, the “Union recognises and respects the rights of the elderly to lead a life of dignity [!] and independence”, and Art 31(1) CFR states that “[e]very worker has the right to working conditions which respect his or her health, safety and dignity [!]”.

Besides EU primary law, there are also several examples of EU secondary law, which address human dignity, to name but a few:

• While space precludes a comprehensive overview, there are some EU directives in the field of migration referring to human dignity. This is true for the ‘mass influx’ directive,⁹⁷ the return directive,⁹⁸ ‘asylum reception’,⁹⁹ ‘common procedures’,¹⁰⁰ and ‘asylum qualification’.¹⁰¹

• Likewise, in other examples of EU secondary law we find references to human dignity, such as in the case of the services directive,¹⁰² in case of citizens’ rights,¹⁰³ in case of combatting terrorism¹⁰⁴ or in the ‘Schengen Borders Code’. According to the latter, border guards when performing their duties must “fully respect human dignity”,¹⁰⁵ as also confirmed by the ECJ.¹⁰⁶ An early example can be found in the contested¹⁰⁷ field of the legal protection of biotechnological inventions. The directive of 1998 clarified that patent law must respect “the dignity and integrity of the person” (recital 16) and that “processes to produce chimeras from germ cells or totipotent cells of humans and animals” that “offend against human dignity” are consequently excluded from patentability (recital 38).¹⁰⁸

• An interesting reference to human dignity can also be found in soft-law, in a resolution of the European Parliament against the commodification¹⁰⁹ of citizenship, more precisely the selling of Maltese¹¹⁰ citizenship to ‘third-country nationals’ to then also acquire EU citizenship.¹¹¹ Parliament clearly stated that “the rights conferred by EU citizenship are based on human dignity and should not be bought or sold at any price”, as “EU citizenship should never become a tradable commodity”.¹¹² This commodification occurring in various countries has been rightly criticised in literature.¹¹³

As we have also seen so far, human dignity also plays an important role in CJEU case-law, sometimes related to the above-mentioned examples of EU secondary law.

• In Omega, the Court has accepted the German prohibition of laser games (‘playing at killing’), which can be seen as a restriction of the economic fundamental freedom of providing such services. As aptly stated by AG Stix-Hackl in this case, this German prohibition must be seen against the background of German history and the atrocities of the Second World War.¹¹⁴ In finding a possible reason of justifying the German restriction, the Court has accepted human dignity, “a fundamental constitutional principle and supreme constitutional value” of Germany,¹¹⁵ as a ‘general principle of law’ at European level. This general principle of EU law, encapsulated in the ‘reason of justification’ of ‘public policy’, ultimately led to the German provision not being qualified as an infringement of the freedom to provide services.¹¹⁶ Hence, an example of the Court referring to human dignity irrespective of EU secondary law, and qualifying it as a ‘general principle of law’.

• The Court also had to decide on the above-mentioned directive on the protection of biotechnological inventions. According to the Court, with this directive “the EU legislature intended to exclude any possibility of patentability where respect for human dignity [!] could thereby be affected and that it follows that the concept of ‘human embryo’ within the meaning of Article 6(2)(c) of that directive must be understood in a wide sense.”¹¹⁷ Based on the wording “to exclude any possibility of patentability”, Bührer has concluded an absolute character of human dignity.¹¹⁸ However, one should keep in mind that this refers to the approach of the relevant directive. Concluding from there to the concept of human dignity as such (as part of Art 2 TEU) might go too far. An action for annulment against this directive argued that “patentability of isolated parts of the human body [according to this] Directive reduces living human matter to a means to an end, undermining human dignity”.¹¹⁹ This argument is reminiscent of the Kantian approach of treating human beings as subjects¹²⁰ and not as objects. As stated by the AG in this case, the “human body is the vehicle for human dignity. Making living human matter an instrument [!] is not acceptable from the perspective of human dignity”.¹²¹ However, in the end this action has been dismissed by the Court, as human dignity has been guaranteed by the directive.¹²²

• In the context of asylum qualification,¹²³ the Court had to decide on the fear of persecution on grounds of sexual orientation, and possible infringements of human dignity when it comes to how to prove one’s sexual orientation. One way to investigate this was by means of “homosexual acts to be performed, the submission of the applicants to possible ‘tests’ in order to demonstrate their homosexuality or even the production by those applicants of evidence such as films of their intimate acts”.¹²⁴ The Court has made clear that “besides the fact that such evidence does not necessarily have probative value, such evidence would of its nature [!] infringe human dignity, the respect of which is guaranteed by Article 1 of the Charter”.¹²⁵

• In the field of ‘international protection’, the Court has held that respect for human dignity leads to the following minimum standard, in case of “a person wholly dependent on State support finding himself, irrespective of his wishes and personal choices, in a situation of extreme material poverty”.¹²⁶ In such a case, human dignity can determine a certain ‘minimum level’. As the Court has held, such a situation, which “does not allow [this person] to meet his most basic needs, such as, inter alia, food, personal hygiene, and a place to live, and that undermines his physical or mental health or puts him in a state of degradation incompatible [!] with human dignity”.¹²⁷

• In the context of the citizens’ rights directive and for questions of social assistance benefits, the Court has emphasised, “the predominant function of the benefits at issue in the main proceedings is in fact to cover the minimum [!] subsistence costs necessary to lead a life in keeping with human dignity”.¹²⁸ Hence, again human dignity leading to a minimum level of (social) benefits.

• However, in case of the above-mentioned citizens’ rights directive, human dignity via the concept of ‘public policy’¹²⁹ can even be used as argument against a person in case of expulsion and certain serious crimes, mentioned in the Geneva Convention.¹³⁰ According to the Court, the conduct of an individual “that shows the persistence in him of a disposition hostile to the fundamental values enshrined in Articles 2 and 3 TEU, such as human dignity and human rights [is] capable of constituting a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”,¹³¹ i.e., public policy.¹³²

• In the context of the European Arrest Warrant (EAW), in the seminal Aranyosi and Căldăraru judgement, the Court has used human dignity as an argument for qualifying Art 4 CFR (prohibition of torture and inhuman or degrading treatment or punishment) as an absolute right, i.e., without the possibility for limitations. “As regards the prohibition of inhuman or degrading treatment or punishment, laid down in Article 4 of the Charter, that prohibition is absolute [!] in that it is closely linked to respect for human dignity, the subject of Article 1 of the Charter”.¹³³ As the Court further outlined in another case, Dorobantu, “the respect for human dignity that must be protected pursuant to that article would not be guaranteed if the executing judicial authority’s review of conditions of detention in the issuing Member State were limited to obvious inadequacies only”.¹³⁴

• In a case from the 1990s, the Court had to decide on equal treatment of men and women in matters of employment and occupation¹³⁵ in case of a transsexual¹³⁶ person and gender reassignment. Roughly 13 years before the entry into force of the Lisbon Treaty, the Court has held that to “tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity [!] and freedom to which he or she is entitled, and which the Court has a duty to safeguard”.¹³⁷ Hence, the Court linked equal treatment (directive), human dignity and freedom. The combination of dignity and equality has been referred to as “égale dignité”.¹³⁸ This concept is well known from ECtHR case-law. In a case on ‘hate speech’, the Strasbourg Court has stated that “tolerance and respect for the equal dignity [!] of all human beings constitute the foundations of a democratic, pluralistic society”.¹³⁹

Having covered some case-law on human dignity, it is worth taking a closer look at the opinion of AG Stix-Hackl in the seminal Omega case.

Nowadays, the second recital of the TEU refers to 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”.¹⁴⁰ This goes in a similar direction as Stix-Hackl, referring to human dignity as “an expression of the respect and value to be attributed to each human being on account of his or her humanity”, which “concerns the protection of and respect for the essence [!] or nature of the human being per se – that is to say, the ‘substance’ of mankind”.¹⁴¹

The key element of human dignity is that it is not “negotiable by the State, the people and the majority”, hence endowing individual human beings “with inherent and inalienable rights”.¹⁴²

This leads to the afore-mentioned reference to the Kantian understanding that a human being is “a person (subject) and must not be downgraded to a thing or object”.¹⁴³

Stix-Hackl also addresses the relational aspect of human dignity and self-determination and freedom, where “the idea of the dignity of man also often finds expression in other concepts and principles”.¹⁴⁴ She also addresses the relationship between dignity and equality, embodied in the above-mentioned concept of ‘égale dignité’.¹⁴⁵

The German Constitutional Court, which stated as follows, has addressed the relationship of human dignity not to other concepts but to the current contextual framework: “What respect for human dignity requires in detail cannot be completely detached from the respective social conditions […]. A violation of the claim to respect can not only lie in the humiliation, branding, persecution or ostracism of persons […], but also in the commercialisation of human existence.”¹⁴⁶

In summary, human dignity is not only the ‘corner-stone’¹⁴⁷ of the EU’s common values. It is also a human right itself (Art 1 CFR), as well ‘the real basis [!] of fundamental rights’, a general principle of law, and a principle; however, not an official EU objective according to Art 3 TEU.¹⁴⁸

Human dignity refers to the idea of an intrinsic¹⁴⁹ value, which all human beings possess, and which cannot be taken from them (i.e. inalienable).

According to Böckenförde, the conceptual core of human dignity, with reference to Kant’s object formula, comprises the status and recognition of one’s own subject, the freedom to develop oneself, the exclusion of humiliation and instrumentalisation in the manner of a thing.¹⁵⁰

At the same time, human dignity stands out as a good example of the same concept sometimes interpreted in opposite directions. For instance, suicide as being against the Kantian idea of human dignity, or others arguing for a right to ‘die in dignity’. The Austrian¹⁵¹ Constitutional Court has emphasised that the right to free self-determination includes both the right to shape one’s life, and the right to die with dignity.¹⁵² Frenz has even referred to autonomy as the “very heart of human dignity”.¹⁵³

Human dignity has often been referred to as a European concept,¹⁵⁴ which, however, can also be found elsewhere in the world.¹⁵⁵

Samuel Moyn has convincingly written about the history¹⁵⁶ of this concept, which has been nourished by both¹⁵⁷ religion and secular ideas, what he refers to as “religious constitutionalism”.¹⁵⁸

Several examples of EU secondary law and CJEU case-law, as depicted in a non-exhaustive way above, have helped to further sharpen the content of this concept. Still, one must accept that such a value, even if legally binding as ‘general principles of EU law’ (also in combination with ‘public policy’), must remain abstract to a certain extent. Having shed some light on this abstract concept, let us now turn to the other values.

3.2.1.2 Democracy

In terms of legal quality, democracy is both a value (Art 2 TEU) and a principle¹⁵⁹ of EU law.¹⁶⁰ This double legal character is already visible from the preamble of the TEU, where the second recital speaks of “universal values” and the fourth recital of “principles”.¹⁶¹ However, democracy is not an official objective of the EU (Art 3 TEU), nor has it been qualified as a general principle of EU law.¹⁶² Democracy is not exactly defined, but quite some provisions (see below) clarify this concept, amongst them also some fundamental rights (title V CFR, on citizens’ rights). On a broader scale,¹⁶³ democracy also occurs within one of the United Nations’ (UN) Social Development Goals (SDGs), more precisely SDG16.¹⁶⁴

According to the Oxford Dictionary, democracy is “a system of government by the whole population or all the eligible members of a state, typically through elected representatives”.¹⁶⁵ The EU’s motto ‘united in diversity’ also applies to the different forms of democracy, which can be identified in various Member States (more republican, monarchy, etc.).

The EU comprises both elements of a representative and of participatory democracy. According to Art 10(1) TEU, “the functioning of the Union is to be based on representative democracy, which gives concrete expression to democracy as a value”.¹⁶⁶ Art 20(2)(b) TFEU on citizens’ rights states “the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State”. The right to vote and to stand as a candidate in municipal elections is further clarified in a directive.¹⁶⁷ At EU level, this representative democracy has a direct and an indirect dimension. EU citizens are “directly represented at Union level in the European Parliament”¹⁶⁸ (Art 10[2] [1] TEU),¹⁶⁹ and indirectly in the European Council and the Council of the EU (Art 10[2] [2] TEU).

This system of representative democracy was complemented, with the Treaty of Lisbon, “by instruments of participatory democracy, such as the [European citizens’ initiative] mechanism, the objective of which is to encourage the participation of citizens in the democratic process and to promote dialogue between citizens and the EU institutions”.¹⁷⁰

The term of ‘democracy’ “derives from its Greek origins in demos (the people) and kratos (rule) and refers to a form of government based on rule by the people with popular sovereignty as its defining feature”.¹⁷¹ This rule by the people has been emphasised by the ECJ already in early case-law. Regarding the involvement of the EP in the legislative process (of the Community at the time), the Court has referred to the institutional balance, which “reflects at Community level the fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly”.¹⁷²

Citizen involvement¹⁷³ is enshrined in Art 10(3) TEU, according to which every citizen has “the right to participate in the democratic life of the Union”.¹⁷⁴ This can take place individually, or in a collective way. Individual involvement can relate to elections but should not be seen to be restricted to one moment every 5 years. According to Art 39 CFR, every EU citizen has the right to vote and to stand as a candidate at elections to the European Parliament and according to Art 40 CFR regarding municipal elections. Please note, that (even within title V on ‘citizens’ rights’) these two articles are one of the few, which only entitle EU citizens, and not all human beings.¹⁷⁵ A collective form of involvement would be the already mentioned EU citizens’ initiative (ECI).¹⁷⁶ In this context of the ECI, the General Court has used the value of democracy to derive a broad interpretation of ‘the concept of legal act’.¹⁷⁷

A prerequisite for both forms of citizens’ involvement (especially between elections) is transparency¹⁷⁸ and that decisions are “taken as openly and as closely as possible to the citizen” (Art 10[3] TEU; see also Art 1[2] TEU). Transparency is also addressed in two relational aspects. First in case of the “open, transparent and regular dialogue with representative associations and civil society”,¹⁷⁹ which all EU institutions shall maintain (Art 11[2] TEU), and by giving “citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action” (Art 11[1] TEU). Second, in case of the “broad consultations with parties concerned to ensure that the Union’s actions are coherent and transparent” (Art 11[3] TEU), which the European Commission “shall carry out”.

While in a democracy, decisions of the people are taken by majority, also the rights of minorities must be taken into account, both as a value of the EU (Art 2 TEU, “human rights, including the rights of persons belonging to minorities”) and from an ethical¹⁸⁰ perspective. As emphasised by Tridimas, the CJEU and the ECtHR “both understand democracy in the same way, namely, not merely as a majoritarianism but as ‘tolerance, pluralism, and broadmindedness’”.¹⁸¹

Besides this internal dimension,¹⁸² in terms of the external dimension, Art 21(1) TEU tasks the EU to adhere to “the principles” of democracy (etc.) “on the international scene”.

Democracy is not only about the involvement of people, but also about the equal¹⁸³ involvement.¹⁸⁴ According to Art 9 TEU, “the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies”. This requirement can be particularly challenging when it comes to lobbying.¹⁸⁵

Besides minority rights and equality, democracy is also closely linked other values, such as freedom (or liberty). As the Austrian Constitutional Court has emphasised, the democratic constitutional state, as constituted by the Austrian Federal Constitution, presupposes the freedom and equality of all people.¹⁸⁶ In the famous Wightman case (on Brexit), the ‘Full Court’ has emphasised “the importance of the values of liberty and democracy, […] which are among the common values referred to in Article 2 of that Treaty and in the preamble to the Charter of Fundamental Rights of the European Union, and which thus form part of the very foundations of the European Union legal order”.¹⁸⁷

The relationship between democracy and some fundamental rights (Art 39 CFR [EP] and Art 40 CFR [municipal elections]) has already been addressed. Some fundamental rights (also related to the concept of freedom) that are highly relevant for democracy are freedom of thought (Art 10 CFR), freedom of expression and information (Art 11 CFR), freedom of assembly and of association (Art 12 CFR), and the right to education¹⁸⁸ (Art 14 CFR). As the Court has stated, the right to freedom of expression as guaranteed in Art 11 CFR “constitutes one of the essential foundations [!] of a pluralist, democratic society, and is one of the values on which, under Article 2 TEU, the Union is founded”.¹⁸⁹

Apart from these provisions of EU law, the Council of Europe, to which all EU Member States are contracting parties, has also shaped the concept of democracy. Art 3 of the (first) protocol to the ECHR states the “right to free elections”.¹⁹⁰ Having just mentioned various freedoms that could also be used against the concept of democracy, from ECtHR case-law we know the “principle of a ‘democracy capable of defending itself’”.¹⁹¹ In terms of the two courts of the EU and the Council of Europe, the CJEU and the ECtHR “share the same liberal underpinnings”, as emphasised by Tridimas.¹⁹²

The direct (EP) and the indirect (European Council and Council of the EU) dimension of representative democracy have already been mentioned. It is worth addressing Habermas’ concept of a “‘doubled’ sovereign”. This concept consists of “the European citizens and the European peoples (the States)”, which also might require Treaty reform.¹⁹³ Concerning this indirect dimension, he has addressed the following challenge: “While conflicts between the states are negotiated in the Council, the European citizens lack an arena in which they can even recognise their shared social interests across national boundaries and transform them into political conflicts”.¹⁹⁴ Such an arena is necessary to reflect on different conceptions of the ‘common good’.¹⁹⁵ In the words of Rosenfeld, democracy “requires self-government by the citoyen joined with all other citoyens in pursuit of the common good [!], which Rousseau calls ‘la volonté génerale’ (‘the general will’)”.¹⁹⁶ Habermas also addressed the necessity for a “European public sphere” that does not necessarily need new and additional media, but “[n]ational arenas [that] have to be opened up” and national media need to “perform a complex task of translation”.¹⁹⁷

In summary, it can be said that the value and principle of democracy has gained more importance throughout European integration. This is confirmed by the fact when searching in EU encyclopaedias, one would rather find the keyword of ‘democratic deficit’, instead of ‘democracy’.¹⁹⁸ Clearly, the process of making the EU more democratic has not yet reached its peak, both regarding the representative and the participatory element. Possible improvement lies both in proposals to change EU primary law (cf. Habermas), and strengthening existing tools. The long struggle for a mandatory transparency register and an inclusion of the Council of the EU has happened at a rather late stage of the EU integration process.¹⁹⁹ Citizen involvement has to take place during elections, but especially also in-between. Throughout such a timeline, equality of citizens, transparency and integrity are of utmost importance. Hence, democracy is related to various other values, such as equality, freedom, human rights, and many more.

3.2.1.3 Rule of Law

In 1986²⁰⁰ in Les Verts, the ECJ has stated that the Community (now EU) “is a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty”.²⁰¹ In academia,²⁰² the rule of law has been referred to as a “central principle of constitutional governance”,²⁰³ respectively, that it concerns the “restraint of state power”²⁰⁴ and according to the Commission, it is “a prerequisite for the protection of all fundamental values listed in Article 2 TEU”.²⁰⁵ Hallstein has referred to a ‘community of law’ (Rechtsgemeinschaft).²⁰⁶ According to Classen, the rule of law is about the idea “that all domination is not solely factual but can be traced back to certain rules”.²⁰⁷ AG Bobek has referred to the rule of law as “one of the primary [!] values on which the European Union is founded”.²⁰⁸ All these quotations prove the importance of this value, which has recently given rise to numerous CJEU judgements.

Where does the rule of law occur in the EU treaties? Besides Art 2 TEU and the CFR (recital 2), the rule of law is mentioned twice in the TEU preamble, once as a value (recital 2), and once as a principle (recital 4). Art 21 TEU, on the EU’s external action also refers twice to the rule of law, which shall guide “Union’s action on the international scene” (para 1) and where the Union shall support the rule of law in defining and pursuing “common policies and action” (para 2, lit a).²⁰⁹

In a nutshell, the rule of law shall set certain constraints on the exercise of public authority.²¹⁰ While the concept of the rule of law might differ in the Member States, there is a certain consensus based on the case-law of the CJEU, the ECtHR, and based on notably the Council of Europe’s Venice Commission. They “provide a non-exhaustive list of these principles and hence define the core meaning of the rule of law as a common value of the EU in accordance with Article 2 TEU”.²¹¹

Those principles, which are part of the ‘rule of law’, “include legality, which implies a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibition of arbitrariness of the executive powers; independent and impartial courts; effective judicial review including respect for fundamental rights; and equality before the law”.²¹²

Paul Craig distinguishes between formal and substantive meanings of the rule of law. The formal conception refers to “the manner in which the law was promulgated (was it by a properly authorised person, in a properly authorised manner, etc.); the clarity of the ensuing norm (was it sufficiently clear to guide an individuals’ conduct so as to enable a person to plan his or her life, etc.); and the temporal dimension of the enacted norm, (was it prospective or retrospective, etc.)”.²¹³ The substantive conception goes beyond that and tries to derive certain substantive rights from the rule of law, “which are then used to distinguish between ‘good’ laws, which comply with such rights, and ‘bad’ laws which do not”.²¹⁴ The EU, and the Council of Europe,²¹⁵ clearly follow both approaches.²¹⁶ Likewise, the Commission also identifies formal and substantive requirements of the rule of law, where the substantive requirements (i.e. ‘good’ vs. ‘bad’ laws) refer to the yardstick of “the general principles of law which include fundamental rights”.²¹⁷ Hence, this means “that respect for the rule of law is intrinsically [!] linked to respect for democracy and for fundamental rights: there can be no democracy and respect for fundamental rights without respect for the rule of law and vice versa”.²¹⁸ Besides fundamental rights, Calliess also refers to the principle of proportionality²¹⁹ as a substantive element of the rule of law.²²⁰

Without claiming to provide a comprehensive overview on various elements of the rule of law as identified by the European Commission²²¹ and the Venice Commission of the Council of Europe,²²² in the following some clarification should be provided:²²³

Legality: This “fundamental principle”²²⁴ implies a transparent, accountable, democratic and pluralistic process for enacting laws. As AG Bobek has recently stated, “in a system that is compliant with the rule of law, there should be at least some transparency and accountability”.²²⁵

Legal certainty: As stated by the ECtHR, this element of the rule of law implies “that the domestic law must be formulated with sufficient precision”.²²⁶ This general principle²²⁷ of EU law requires, amongst others, that “legislation must be clear and predictable for those who are subject to it”.²²⁸ However, as the Austrian Constitutional Court has emphasised, the constitutional requirement of certainty (“Bestimmtheitsgebot”) does not mean that the legislature may not also use indeterminate legal terms.²²⁹

Prohibition of arbitrariness of the executive powers: As stated by the ECtHR, this element of the rule of law implies “adequate legal protection against arbitrariness”.²³⁰ In EU law, this “general principle” requires that “any intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, must have a legal basis and be justified on the grounds laid down by law, and, consequently, those systems provide, albeit in different forms, protection against arbitrary or disproportionate intervention”.²³¹

Independent and impartial courts (closely connected to ‘judicial review’, i.e. the next element): According to the ECJ, the Union (at the time, the Community), is “based on the rule of law in which its institutions are subject to judicial review of the compatibility of their acts with the Treaty and with the general principles of law which include fundamental rights”.²³² “Individuals are therefore entitled to effective judicial protection of the rights they derive from the Community legal order, and the right to such protection is one of the general principles [!] of law stemming from the constitutional traditions common to the Member States”.²³³ Now, since the Lisbon Treaty, the ECJ links the rule of law to Art 19 TEU, “which gives concrete expression to the value of the rule of law”.²³⁴ “The very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law”.²³⁵ Key elements in this regard are “the guarantees of independence and impartiality required under EU law [that] presuppose rules that are such as to dispel any reasonable doubt, in the minds of individuals, as to the imperviousness of the body in question to external factors and its neutrality with respect to the interests before it”.²³⁶ The independence of courts “forms part of the essence [!] of the right to effective judicial protection”²³⁷.²³⁸ This includes the necessity “that judges are protected from external intervention or pressure liable to jeopardise their independence”, both with regard to direct (instructions) and indirect (appearance of lack of independence or impartiality, prejudicing individuals’ trust) influence, to prevent the risk of “political control of the content of judicial decisions”.²³⁹ These requirements are essential for “trust which justice in a democratic society governed by the rule of law must inspire in individuals”.²⁴⁰ The recent Commission’s rule of law report has revealed quite some differences concerning ‘perceived judicial independence’, ranging from high (above 75%, Austria, Finland, Germany, the Netherlands, and Luxembourg) to countries like Croatia, Poland and Slovakia, where the level of perceived judicial independence remains low (below 30%).²⁴¹

Effective judicial review²⁴² (continued), including respect for fundamental rights: According to the ECJ, “the Community is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EC Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions”.²⁴³ This also includes “the principle of the separation of powers which characterises the operation of the rule of law”.²⁴⁴

Equality before the law: This element is now enshrined in Art 20 CFR, according to which “[e]veryone is equal before the law”. The Commission also addressed Art 21 CFR on non-discrimination.²⁴⁵

As stated by the European Commission, these elements have been recognised as general principles of EU law.²⁴⁶

Like in case of other values, the close relationship between values becomes obvious. According to the Venice Commission, the rule of law is “a fundamental ingredient of any democratic society”.²⁴⁷ The rule of law, together with democracy and human rights have been referred to as the ‘three pillars’ of the Council of Europe.²⁴⁸

In terms of legal quality, as we have seen some elements of the rule of law (e.g., legal certainty, protection of legitimate expectations, fundamental rights) have been recognised as general principles of EU law. Additionally, besides being a value (Art 2 TEU and TEU preamble, recital 2), the rule of law is also a principle (TEU preamble, recital 4). The rule of law is not explicitly mentioned in the EU’s objectives (Art 3 TEU). In the CFR, it explicitly only figures in the preamble, indirectly of course in various articles (Art 20, Art 21, Art 47, Art 49, to name but a few). On a broader scale, the rule of law also occurs within SDG16.²⁴⁹

So far, the “nuclear option”²⁵⁰ of Art 7 TEU²⁵¹ has not proven successful, especially in a situation where two proceedings against two countries should be launched. If those two countries mutually support each other, both proceedings can be blocked in the end. Based on the idea that the EU is more than a cash machine, this led to the idea of protecting the EU’s budget from rule of law breaches (the so-called ‘conditionality’ mechanism²⁵²), which has been viewed quite critically in literature.²⁵³ Another important element of enforcing the rule of law has been the ECJ, which emphasised the requirement of independent courts, as one key element of the rule of law. The Commission contributed to the whole situation with its annual rule of law reports.²⁵⁴ Where the Art 7 TEU procedure mainly driven by the Council and the European Council has not proven successful, the ECJ has made an important contribution, as “respect for the rule of law is essential for the protection of the other fundamental values on which the Union is founded”.²⁵⁵

3.2.1.4 Human Rights

In the ‘ethical spirit of EU law’, I have argued for EU values and human rights to fill the gaps that might occur in case of EU law referring to non-legal concepts such as ethics, where in the end one lacks the necessary determination. Human rights, as developed by the CJEU and as nowadays enshrined in the CFR, are also mentioned as one of the values of Art 2 TEU.

Besides the legal quality of ‘human rights’ and as a value, fundamental rights have also been qualified as general principles of EU law.²⁵⁶ The reference to human rights in Art 2 TEU does not really conflict with the notion of ‘fundamental rights’ as used in the CFR. As already mentioned throughout this book, almost all articles of the CFR entitle human beings, even within the provisions on citizens’ right. Human rights are only mentioned in Art 3 TEU as objectives in the context of the EU’s “relations with the wider world” (para 5). Human rights are mentioned twice in the TEU preamble, once as a value (“the inviolable and inalienable rights of the human person”, recital 2), and once as principles (“respect for human rights and fundamental freedoms”, recital 4). On a broader scale, fundamental freedoms also occur within SDG16.²⁵⁷

The definition of human rights (see also below) can be cut short, as the concept of human rights as been extensively discussed in literature of both law and philosophy. The CJEU case-law starting in 1969, shaping fundamental rights as general principles of law and today’s case-law further elaborating the CFR-based rights contribute to this concept. Whole books²⁵⁸ and commentaries²⁵⁹ have been written on the CFR, etc. Therefore, only a few selected aspects will be addressed in the following.

Not only are human rights one of the values addressed in Art 2 TEU, also the CFR refers to the “indivisible, universal values” on which “the Union is founded” (recital 2), and to the “preservation and to the development of these common values” (recital 3). A close connection between the values enshrined in Art 2 TEU and the CFR can also be found in the structure of the latter:²⁶⁰ dignity (title I), freedom(s) (title II), equality (title III), solidarity (title IV) and justice (title VI). Citizens’ rights (title V) can be seen to be closely related to democracy in terms of elections to the EP (Art 39 CFR) and at municipal elections (Art 40 CFR). Likewise, other articles are also closely connected to democracy, such as the right to good administration (Art 41 CFR), access to documents (Art 42 CFR), the European Ombuds(wo)man (Art 43 CFR) and the right to petition (Art 44 CFR). The remaining articles are more related to the concept of EU citizenship (Art 45 CFR, Art 46 CFR), however, also linked to democracy.

Human rights are also strongly connected to other values, as they concretise other values, such as human dignity, freedom, and the substantive element of the rule of law.²⁶¹

Fundamental or human rights²⁶² cannot only be found in the CFR but are still also part of the CJEU’s case-law identifying and shaping ‘general principles of EU law’ (Art 6[3] TEU),²⁶³ “as they result from the constitutional traditions common to the Member States” (Art 52[4] CFR). Other international treaties and especially the ECHR (Art 52[3] CFR) also play an important role. In terms of the external dimension, Art 21(1) TEU tasks the EU to “be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world”, namely, “the universality and indivisibility of human rights and fundamental freedoms”, etc.

The ECHR in its title refers to ‘Human Rights and Fundamental Freedoms’. Likewise, the CFR also refers to “rights and freedoms” (Art 52[1] CFR, Art 54 CFR, Art 47 CFR). Freedoms can also be seen as a value and as an emanation of one type of human rights, which are often distinguished in positive and negative rights. Beauchamp and Faden explain it as follows: “This distinction is based on the difference between the right to be free to do something (a right to non-interference) and the right to be provided by others with a particular action, good, or service (a right to benefits). A negative right is a right to be free to pursue a course of action or to enjoy a state of affairs, whereas a positive right is a right to obtain a good, opportunity, or service.”²⁶⁴ This is reminiscent of the two types of freedom,²⁶⁵ the ‘freedom’ to, and the ‘freedom from’.²⁶⁶ In the context of the right to healthcare, it has been argued to rather follow a “tri-partite structure of duties: duties to respect, protect, and fulfil”,²⁶⁷ an idea that can also be found in the United Nations’ ‘Committee on Economic and Social and Cultural Rights’ General Comment No 14.²⁶⁸

Within the CFR, discussion centres on the legal qualification of various provisions as rights or (only) as principles. Art 51(1) CFR tasks those bound by the CFR²⁶⁹ to “respect the rights” and to “observe the principles”. Principles are clearly ‘less’ compared to ‘rights’, as Art 52(5) CFR states that “[t]he provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only [!] in the interpretation of such acts and in the ruling on their legality”. It is mainly²⁷⁰ up to the explanations²⁷¹ “drawn up as a way of providing guidance in the interpretation” of the CFR (Art 52[7] CFR²⁷²), to clarify which provision is qualified as a right, and which only as a ‘CFR principle’.

Linking this distinction of CFR rights and principles to the above-mentioned relationship between values and (general) principles,²⁷³ we can identify directly legally enforceable principles, such as proportionality, and these principles in the sense of ‘interpretation guidelines’, which can impact at an indirect level. Hence, we can identify rather abstract values, more concrete legal principles, and finally ‘CFR principles’ that can be qualified as less in the sense of ‘legal value’. Both EU values and ‘CFR principles’ can have an indirect impact in terms of contributing to the interpretation of other provisions of EU law. A direct impact of (serious) human rights violations has recently been enacted in a Council regulation and a decision ‘concerning restrictive measures against serious human rights violations and abuses’.²⁷⁴

3.2.1.5 Rights of Minorities

The rights of minorities are especially addressed as one sub-category of human rights within the values enshrined in Art 2 TEU. In terms of legal quality, besides Art 2 TEU and the link to human rights, minorities do not occur in Art 3 TEU on the EU’s objectives. The rights of minorities as such are not mentioned as general principles of EU law.²⁷⁵

As mentioned above, the political category of the 1993 Copenhagen criteria refers to “stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities”.²⁷⁶ In terms of the historic genesis of Art 2 TEU it noteworthy, that the “reference to the rights of minorities was included in the final text by the Inter Governmental Conference of June 2004”, which followed “the pattern of many Central and Eastern European constitutions which make express reference to the protection of minority rights separately and in addition to classic human rights”.²⁷⁷

This value is not further defined in the EU treaties. According to the Oxford Dictionary, a minority is defined as “a smaller group of people within a community of country, differing from the main population in race, religion, language or political persuasion”.²⁷⁸ These criteria are reminiscent of some criteria in the context of non-discrimination.²⁷⁹

Art 21(1) CFR that mentions several grounds, according to which discrimination is prohibited, also mentioning “membership of a national minority”. Although not directly addressing minorities, Art 22 CFR tasks the EU to “respect cultural, religious and linguistic diversity”.

Clarification of the content of this concept can be found in the Council of Europe’s ‘Framework Convention for the Protection of National Minorities’,²⁸⁰ which also relates to ‘national’ minorities. The wording of Art 2 TEU is consequently broader than Art 21 CFR and this Council of Europe document. Hence, national and ethnic²⁸¹ minorities are clearly covered. A broader reading can also include other minorities.²⁸² Nationality and ethnicity have been clarified by the General Court as follows: “although nationality is a legal and political link between an individual and a sovereign State, the concept of ethnicity has its origin in the idea that societal groups share the sense of belonging to a common nation, religious faith, language, cultural and traditional origins and backgrounds”.²⁸³

In literature, it has been clarified that these rights of minorities address individuals, not minorities as a group.²⁸⁴ As in the case of equality (equal rotation between Member States),²⁸⁵ it is worth mentioning that the concept of minority occurs again for the advantage of Member States in case of voting in the Council and a ‘blocking minority’.²⁸⁶ So to speak, another form of minority protection, but on the level of the Member States. Hence, not addressing the core of this value.

The protection of minorities is clearly related to democracy and pluralism.²⁸⁷ While decisions of the people are taken by majority, this necessarily includes the need to provide some safeguards for minorities.²⁸⁸

3.2.1.6 Solidarity

As AG Sharpston has stated, “[s]olidarity is the lifeblood of the European project”.²⁸⁹ Based on this opinion, Bieber has aptly stated that solidarity is a manifestation of the comprehensive principle of mutual responsibility.²⁹⁰ Solidarity is another value enshrined in Art 2 TEU that is not defined, neither in the treaties,²⁹¹ nor in CJEU case-law,²⁹² although both shed some light on the meaning of this ‘concept’, as depicted in the following. Solidarity is a good example of the horizontal nature of such a “multifaceted”²⁹³ concept, which occurs as an EU value (Art 2 TEU),²⁹⁴ as an EU objective (Art 3 TEU), as a (general) principle,²⁹⁵ and in the form of fundamental rights (Title IV CFR, Articles 27–38).²⁹⁶

According to the Oxford Dictionary, solidarity is defined as the “unity or agreement of feeling or action, especially among individuals with a common interest”, respectively, as “mutual support within a group”.²⁹⁷

In the EU treaties, solidarity as a concept can explicitly²⁹⁸ be found several times. The Lisbon Treaty has introduced the solidarity clause of Art 222 TFEU, which requires the Member States to act jointly “in a spirit [!] of solidarity” in case of terrorist attacks, and natural or man-made disasters.²⁹⁹ The preamble of the TEU (recital 6), amongst others,³⁰⁰ refers to the “solidarity between their [i.e. of the Member States] peoples”, and Art 3 (3)(3) TEU (on the EU’s objectives) to the “solidarity among Member States”. In the political field, we can find “political solidarity among Member States” in the Common Foreign and Security Policy (CFSP);³⁰¹ other provisions in the same field refer to “mutual solidarity”.³⁰² These examples can be seen to fall within the ‘internal field’, i.e., mainly relating to the relationship of the EU and Members States amongst themselves.

Besides the solidarity between the EU and MS and another MS (Art 222 TFEU), and the above-mentioned examples of solidarity between MS, we can also find “solidarity between generations” as another reference to solidarity in Art 3 TEU³⁰³ (on the EU’s objectives). This ‘solidarity between generations’ has recently been stressed by the German Constitutional Court (BVerfG) in the field of climate change. Although the BVerfG has not explicitly referred to solidarity, it has referred to the obligation³⁰⁴ of Germany “to protect the natural foundations of life, also in responsibility for future generations”, which “also concerns the distribution of environmental burdens between the generations”.³⁰⁵ This idea of burden sharing has also been addressed in a different sector.

In the field of border checks, asylum and immigration, Art 80 TFEU refers to the “the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member State”. In the context of this provision, some Member States have legally challenged the so-called ‘relocation decision’, which aimed at relocating third-country nationals from Italy and Greece to other Member States, due to the sudden inflow in fall 2015, especially to those two countries.³⁰⁶ As the ECJ has stated, in case of such an emergency situation (cf. Art 78[3] TFEU³⁰⁷), the burdens must “be divided between all the other Member States, in accordance with the principle of solidarity and fair sharing of responsibility between the Member States, since, in accordance with Article 80 TFEU, that principle governs EU asylum policy”.³⁰⁸ The Council, when adopting the contested decision, “was in fact required […] to give effect to the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States”.³⁰⁹ The actions of the Slovak Republic and Hungary against the relocation decision have consequently been dismissed and the principle of solidarity (and fair sharing of responsibility) has been confirmed.

After this field of ‘policies on border checks, asylum and immigration’ (Arts 77–80 TFEU) and the before-mentioned internal examples of solidarity, we can also find examples of solidarity in the external field. In its relations with the wider world, the Union is tasked to “promote its values [!] and interests and contribute to the protection of its citizens”, and to “contribute to peace, security, the sustainable development of the Earth, solidarity [etc.]” (Art 3[5] TEU).³¹⁰ This objective is complemented by Art 21(1) TEU (on general provisions on the Union’s external action), which requires the “Union’s action on the international scene [to] be guided by the principles which have inspired its own creation, development and enlargement”. These principles comprise “democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law”. The coherence between the internal and external field is convincing. However, interesting to note is that Art 2 TEU values are referred to as principles, and that not all values of Art 2 TEU are mentioned here. Finally, a last reference to solidarity can be found in the TFEU preamble (recital 6), which refers to “solidarity which binds Europe and the overseas countries”.

Besides EU Treaties (and the above-mentioned corresponding CJEU clarifications), we can also find some elucidation in CJEU case-law. In an early case from 1973, the ECJ has stressed the “equilibrium between advantages and obligations flowing from” EU membership (more precisely, “adherence to the Community” at the time).³¹¹ This quotation can be interpreted as an ECJ statement against ‘cherry picking’. Being a member of a community obviously entails advantages and disadvantages, as “[i]n permitting Member States to profit from the advantages of the Community, the Treaty imposes on them also the obligation to respect its rules”.³¹² If a Member State would unilaterally break those rules, it would endanger this equilibrium and bring into question “the equality of Member States before Community law”, as the “duty of solidarity [!] accepted by Member States by the fact of their adherence to the Community strikes at the fundamental basis [!] of the Community legal order”.³¹³ This idea has also recently been confirmed by the General Court, emphasising that “the principle of solidarity entails rights and obligations both for the European Union and for the Member States”.³¹⁴ This principle binds the EU and the Member States, as “the European Union is bound by an obligation of solidarity towards the Member States and, on the other hand, the Member States are bound by an obligation of solidarity between themselves and with regard to the common interest of the European Union and the policies pursued by it”.³¹⁵

The principle of solidarity has also been linked with the principle of sincere cooperation,³¹⁶ according to which “the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties” (Art 4[3] TEU).³¹⁷ As the General Court has stated in the field of energy solidarity, “[t]he ‘spirit of solidarity’ referred to in Article 194(1) TFEU is the specific expression in this field of the general principle of solidarity between the Member States”, which “is at the basis of the whole Union system in accordance with the undertaking provided for in Article 4(3) TEU”.³¹⁸ As Klamert aptly states, both the principle of sincere cooperation and solidarity serve the cohesion of the Union,³¹⁹ however they also must be differentiated; at the same time, they are both “cooperative and value based”.³²⁰

Solidarity in this context of energy policy “also entails a general obligation on the part of the European Union and the Member States, in the exercise of their respective competences, to take into account the interests of the other stakeholders”.³²¹ This “implies, inter alia, obligations of mutual assistance in the event that, following for example natural disasters or acts of terrorism, a Member State is in a critical or emergency situation”.³²² The effects of the principle of energy solidarity (Art 194[1] TFEU) have been described as “not merely political but legal”.³²³ According to the ECJ, “the spirit of solidarity between Member States, mentioned in that provision, constitutes a specific expression, in the field of energy, of the principle of solidarity, which is itself one of the fundamental principles of EU law”.³²⁴

In the field of social security, the ECJ was asked to characterise social security schemes applying the principle of solidarity. In a positive way, they are “in particular” characterised as follows:³²⁵

by the compulsory nature of affiliation both for insured persons and for the insurance bodies; contributions which are fixed by law in proportion to the income of the insured persons and not the risk they represent individually on account of their age or state of health; the rule that compulsory benefits set by law are identical for all insured persons and do not depend on the amount of the contributions paid by each; and a mechanism for the equalisation of costs and risks through which schemes that are in surplus contribute to the financing of those with structural financial difficulties.

In a negative way, they have been defined in the same judgement as “not applying the principle of solidarity and are, therefore, engaging in an economic activity”, in case of organisations managing “an insurance scheme based on a system of optional affiliation, operating according to a principle of capitalisation under which there is a direct link between the amount of the contributions paid by the insured person and their financial performance, on the one hand, and the benefits provided to that insured person, on the other, and incorporating extremely limited elements of solidarity”.³²⁶ This positive and negative definition can be seen as a characterisation of the European welfare approach. Precaution³²⁷ and solidarity have been mentioned as characteristics of this European approach, in distinguishing it from the American.³²⁸

To summarise, as stated by AG Campos Sánchez-Bordona, it “is difficult, however, to infer from the foregoing collection of provisions a full and all-encompassing definition of solidarity in EU law”.³²⁹ Nevertheless, based on what has been depicted so far,³³⁰ in the following this ‘concept’ (see below) shall be described as far as possible.

Solidarity has occurred in various fields, such as state aid,³³¹ agriculture,³³² energy,³³³ migration,³³⁴ social security,³³⁵ solidarity between producers,³³⁶ and in EU citizenship,³³⁷ to name but a few. The European Commission has clarified its understanding of solidarity in different fields, such as the social field³³⁸ or in health,³³⁹ where obviously solidarity has been extensively discussed in the field of the pandemic.³⁴⁰ Jacqué has referred to institutional and financial solidarity.³⁴¹

In EU law, we can find solidarity as a value (Art 2 TEU), as an EU objective (Art 3 TEU), as a (general) principle, and in the form of fundamental rights. In the context of another value, the above-mentioned ‘rule of law’, the question has occurred if there are different types of ‘judicial independence’, as this concept is linked to Art 19(1) second sentence TEU (effective legal protection³⁴²), Art 47 CFR (right to an effective remedy and to a fair trial) and Art 267 TFEU (preliminary ruling proceeding³⁴³). As AG Bobek has recently confirmed, “there is only one and the same principle of judicial independence”.³⁴⁴ However, this “same content does not necessarily mean the same outcome in an individual case”, as these “three provisions are different as to their scope and purpose within the structure of the Treaties” and this “difference means that a slightly different type of examination must be carried out under each of the three provisions”.³⁴⁵ The same approach should be embraced in case of solidarity. Therefore, solidarity is referred to as a ‘concept’, as this meta-level terminology can be seen as more neutral.

The status³⁴⁶ of this horizontal³⁴⁷ and multifaceted concept has been described as “materially constitutional”³⁴⁸ or as a “constitutional principle”³⁴⁹ The “variety of forms in which the principle of solidarity manifests itself makes it difficult for that principle to be applied in the same way and to the same extent in all areas of EU competence”.³⁵⁰ This finding is true for all values (and principles), as we must accept that a broad field of application does not favour a precise definition.

This is also because solidarity in EU law clearly has both a political and a legal dimension. This analysis does not mean that solidarity cannot have an ethical dimension too, for example, but not exclusively, when EU law refers to the ‘spirit’ of solidarity.

Solidarity also has a social dimension, where Viehoff and Nicolaïdis have offered a ‘solidarity compass’ “which locates solidarity at the intersection of two continuums, namely one between (self) interest and community, and one between altruism and obligation”.³⁵¹ The idea is then to reach a balanced approach in the middle of the two axes.³⁵²

Solidarity applies at different levels in a horizontal and a vertical way, as solidarity “is a notion which appears to be linked to relations both horizontally (between Member States, between institutions, between peoples or generations and between Member States and third countries) and vertically (between the European Union and its Member States), in a variety of contexts”.³⁵³ However, according to Klamert it “primarily governs horizontal relationship” between Member States.³⁵⁴

Especially in the CFSP,³⁵⁵ the mutual aspect of solidarity has been stressed. This approach is reminiscent of mutual trust, as described above³⁵⁶ and refers to this relational dimension, where trust and solidarity should not be seen as a ‘one-way street’.³⁵⁷

Prainsack and Buyx have defined³⁵⁸ solidarity as “an enacted commitment to carry ‘costs’ (financial, social, emotional or otherwise) to assist others with whom a person or persons recognise similarity in a relevant respect”.³⁵⁹ From what we have seen in EU law, the concept of solidarity clearly has this element of action (‘to assist’), which we have seen both in the field of energy solidarity case-law and as an element of the principle of loyalty (Art 4[3] TEU). The element of ‘similarity’ is found in our context in the EU membership of Member States, respectively, in EU citizenship in case of EU citizens. Solidarity as a concept naturally gains relevance in a situation of need³⁶⁰ or emergency, as mentioned in the field of energy.³⁶¹

Prainsack and Buyx also distinguish three ‘tiers’ of solidarity.³⁶² An inter-personal tier (No 1), which refers to solidarity practised between individuals. Tier No 2 applies to ‘group-based or community-based practices’, where solidarity between individuals becomes common in a specific context or community that it is seen as ‘normal’. The next step would be the codification (or ‘solidification’, as mentioned by the authors) of these “values or principles enacted and emerged through group or community-based practices” via “contractual, legal or administrative norms” (tier No 3).³⁶³ The concept of solidarity, as identified³⁶⁴ here in this book, ideally should embrace all three tiers. While the approach of Prainsack and Buyx seems to primarily emerge from tier No 1 to (eventually) tier No 3, in case of the EU the question is whether solidarity enshrined in the EU treaties (as depicted above) can also make its way down to the group (No 2) and the individual (No 1) level.³⁶⁵

The ECJ has also referred to the idea of balance (or equilibrium) regarding the advantages and obligations of EU membership. This idea has also been expressed in one field also covered by solidarity-related case-law, i.e., social security. In this context, according to the ECJ “the risk of seriously undermining the financial balance [!] of the social security system may constitute an overriding reason in the general interest capable of justifying a barrier” to the economic fundamental freedoms.³⁶⁶

At the level of Member States, solidarity has been described as “an expression of the fundamental principle of the equality [!] of the Member States in the European Union”.³⁶⁷ The above-mentioned examples in the field of solidarity have also revealed the relation to other concepts. Also due to the mention in Art 80 TFEU, in migration the ECJ has referred to solidarity and fairness (on justice see in the following).

3.2.1.7 Justice

Justice has been referred to as “relative to social meanings”,³⁶⁸ and “as a human construction, and it is doubtful that it can be made in only one way”.³⁶⁹ At the same time, it is an essential element of every society. Justice also fulfils a similar purpose as the rule of law, i.e. to avoid arbitrary decisions.

In 2010, Williams has argued “[…] justice as a governing ideal has failed to be taken seriously in the EU”.³⁷⁰ This is remarkable, even though when searching in the consolidated version of the EU treaties, the word of ‘justice’ occurs 276 times, prominently also as part of the ‘are of freedom, security and justice’. Williams’ analysis obviously addresses a qualitative, not a quantitative dimension. Justice has rather been covered in literature, than in CJEU case-law.³⁷¹ Most prominently, justice essentially describes the EU’s judiciary branch of power, the Court of Justice. In German, law (Recht) and justice (Gerechtigkeit) are closely related.

Although one has to admit that justice “has no fixed meaning, no settled criteria”,³⁷² according to the Oxford Dictionary, justice is defined as “the quality of being fair and reasonable”.³⁷³ These two elements of fairness (in its relation to justice) and reasonableness (cf. the cardinal virtue of practical wisdom) are both covered below.

Justice affects the relationship of human beings (social component) concerning rights and obligations, or more broadly, advantages or disadvantages and in the end is related to questions of morality in the sense of ‘what is the right thing to do’³⁷⁴. As Aristotle has stated, justice “is complete virtue, not without qualification, but in relation to another person”.³⁷⁵

Justice can be seen as a virtue or as a principle. Justice as a virtue refers to “traits of character that are judged to be morally admirable or valuable”.³⁷⁶ According to Aristotle, “justice is the greatest of the virtues […]. We express this in the proverb, ‘In justice is all virtue combined’”.³⁷⁷ Justice (iustitia) is also one of the ‘cardinal virtues’, besides temperance (temperantia), courage (fortitudo) and practical wisdom (prudentia).³⁷⁸ The already mentioned principlism approach of Beauchamp and Childress has justice as one of the four principles, besides respect for autonomy, non-maleficence and beneficence, where justice is described as “a cluster of norms for fairly distributing benefits, risks, and costs” (on distributive justice, see below).³⁷⁹

Justice can also be seen as a normative principle, according to which standards are to be established. Justice as a principle can be related to actions of individual human beings (e.g., standards for an individual judge, such as audiatur et altera pars) or to institutional frameworks for human beings (e.g., court proceedings for fundamental rights violations).

There are various types of justice, also depending on the relationship of the entities concerned. In case of a vertical situation of unequal entities (e.g., public authorities³⁸⁰ and sub-ordinated individuals), distributive justice (iustitia distributiva) is about the distribution³⁸¹ of rights or obligations, advantages or disadvantages.³⁸² Such challenges arise in particular in the case of scarce resources and potential conflicts between various individuals. Criteria applied shall be objective, coherent³⁸³ (i.e., logical, continuous, and comprehensible) and consistent (i.e., not entailing a contradiction) in application, to avoid arbitrariness.³⁸⁴ One can either follow an egalitarian approach (leading to the same result), or a proportional one.³⁸⁵

In case of a horizontal situation of equal entities (e.g., private individuals), exchange justice (iustitia commutativa) aims at establishing equivalence of performance and consideration.³⁸⁶ This applies especially in the field of private law and includes the valuation of rights and obligations, advantages, and disadvantages, and the equality of the persons involved (e.g., in consumer issues). Corrective justice (iustitia regulativa sive correctiva) concerns compensation (and or punishment) in case of damage occurred, where questions revolve around the valuation of the damage, responsibility of individuals involved, adequacy of damages payments, etc.

Especially in complex situations, procedural justice relates to the idea of fairness in the process. Principles such as impartiality, transparency, equality of arms, rules of interpretation or the burden of proof, etc. can try to lead to a fair decision. However, given the complexity of the situation at hand, these principles might increase the chance of a fair or fairer decision, but might not provide a guarantee.³⁸⁷

There are various theories of social justice³⁸⁸ in terms of what people owe each other in a society, in terms of rights and obligations, or more broadly, advantages or disadvantages.³⁸⁹ One important contribution in this context is the ‘capability approach’, which “gives a central role to a person’s actual ability to do the different things she values doing” by focussing “on human lives, and not just on the resources people have”.³⁹⁰ Hence, by “proposing a fundamental shift in the focus of attention from the means of living to the actual opportunities a person has, the capability approach aims at a fairly radical change in the standard evaluative approaches widely used in economics and social studies”.³⁹¹

Justice can put an emphasis on freedom, which leads to a far-reaching privatisation of the issue. According to this theory of libertarianism, the focus is not on the common good, but on individuals. In his book ‘Anarchy, State, and Utopia’ published in 1974, Robert Nozick has argued for a minimal state³⁹² taking only care of the most essential tasks (e.g., internal, and external security³⁹³).

The liberal school does not only focus on freedom, but also on equality. Three years before Nozick, in 1971³⁹⁴ John Rawls has published his ‘Theory of Justice’, putting an emphasis on fairness. Rawls tries to establish a well-ordered society that is based on a common understanding of justice. Everyone has different interests that can influence the interpretation of a just situation, such as “his place in society, his class position or social status; […] his fortune in the distribution of natural assets and abilities, his intelligence and strength, and the like”.³⁹⁵ Therefore, he proposes the thought experiment of a ‘veil of ignorance’: “I assume that the parties are situated behind a veil of ignorance. They do not know how various alternatives will affect their own particular case and they are obliged to evaluate principles solely on the basis of general considerations.”³⁹⁶ Additionally, he offers two principles of justice: “First: each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties of others [= egalitarian liberalism]. Second: social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all.”³⁹⁷

Turning now to a third theory, communitarianism unlike libertarianism places the focus not on individuals, but on the common good. Questions of social justice must be placed in the concrete context as shaped by culture and history.³⁹⁸ Famous proponents comprise Alasdair MacIntyre,³⁹⁹ Amitai Etzioni,⁴⁰⁰ Michael Walzer⁴⁰¹ and Michael Sandel. In ‘Justice. What’s the right thing to do?’, published 2010, Sandel argues that a “just society can’t be achieved simply by maximizing utility or be securing freedom of choice. To achieve a just society, we have to reason together about the meaning of the good life, and to create a public culture hospitable to the disagreements that will inevitably arise.”⁴⁰²

Besides these various types of justice, there can also be a clash of law and justice, as also between law and morality⁴⁰³.⁴⁰⁴ According to the Radbruch formula, for the sake of legal certainty, in principle “positive law, secured by legislation and power, takes precedence even when its content is unjust and fails to benefit the people, unless the conflict between statute and justice reaches such an intolerable degree that the statute, as ‘flawed law’, must yield to justice”.⁴⁰⁵ Radbruch’s formula attempted to challenge intolerable unjust law (for example, of the Nazi regime) by the principle of justice. Radbruch’s approach must be seen against the background of legal positivism,⁴⁰⁶ whereby law and morality have been strictly separated. As Hart put it: “I argue in this book that though there are many different contingent connections between law and morality there are no necessary conceptual connections between the content of law and morality: and hence morally iniquitous provisions may be valid as legal rules or principles. One aspect of this separation of law from morality is that there can be legal rights and duties which have no moral justification of force whatever”.⁴⁰⁷ As justice is one of the EU’s common values, there should be no rule of positive EU law that infringes this value. This raises the issue of the justiciability of this value.⁴⁰⁸

In terms of legal value, the value of justice has been described as a ‘descriptive ideal’, having a purely programmatic character, as its content is undetermined and therefore hardly justiciable.⁴⁰⁹

The issue of justiciability can also be addressed regarding fairness. So far, fairness was address in the context of procedural justice (as relating to the idea of fairness in the process), and as part of the liberal school, where in his ‘Theory of Justice’, Rawls puts an emphasis on fairness. Although they are often used synonymously, the two concepts of fairness and justice must be kept neatly apart, just as in the case of ethics and morality.⁴¹⁰ While definitions of these concepts are challenging, Morelli offers the following: “A moral principle used to judge procedures for distributing benefits and burdens among parties”.⁴¹¹ This definition is reminiscent of distributive justice. He also admits “the concepts of justice and fairness are closely related”, however “not identical”. According to Morelli, the terms just/unjust “often carry a stronger tone of condemnation than fair/unfair.⁴¹²

Identifying the general principles of EU law, Tridimas stated that the “meaning of fairness is so vague that it lacks objective determination”, also because what “appears fair to one person may appear unfair to another”.⁴¹³ In one of the earlier cases, the Court had to decide on the question of whether the application of a regulation “may be suspended in an individual case for reasons of fairness”.⁴¹⁴ The Court stated “that there is no such thing as a general principle of objective unfairness under Community law. The Court has held that there is no legal basis in Community law for exemption on grounds of natural justice from charges due under that law”.⁴¹⁵ Hence, a clear rejection and again a reference to both fairness and (natural) justice. Comparing this case to a more recent one might help to understand the possible underlying motivation of the Court. Poland once tried to challenge a Directive on genetically modified organisms⁴¹⁶ arguing with both “fears expressed by the general public in Poland concerning the harm posed by GMOs”⁴¹⁷ and with the religion and values of “most members of the Polish Parliament”.⁴¹⁸ Likewise, in this case it was not surprising that the Court did not allow a Member State to derogate from the provisions and obligations of a Directive based on “ethical or religious arguments”.⁴¹⁹ These two cases can be summarised as follows: ethics and values are important in EU law, but they cannot be used to remove obligations under EU law. Tridimas in the end has concluded that “[i]n short, the principle [of fairness] is too abstract to have any autonomous normative concept outside the bounds of other principles such as equality, legitimate expectations, or proportionality”.⁴²⁰

In terms of legal quality, justice is a value, not a general principle of EU law⁴²¹ or an objective (Art 3 TEU). Justice-related rights can be found in title VI CFR, comprising the right to an effective remedy and to a fair trial (Art 47 CFR), the presumption of innocence and right of defence (Art 48 CFR), principles of legality and proportionality of criminal offences and penalties (Art 50 CFR), and ne bis in idem (Art 50 CFR⁴²²). On a broader scale, justice is part of SDG16.⁴²³

Although this value is part of the judicial branch of power in the EU (Court of Justice), this concept at the interface of law and philosophy is mainly determined by the philosophical literature, where it can be seen as a principle and or as a virtue. For the EU, all types of justice questions can be of relevance. Questions of distributive justice in case of EU funding, relocation decisions, etc. Questions of exchange justice less in the case of classical private law,⁴²⁴ but in case of consumer protection law.⁴²⁵ Finally, questions of corrective justice can be an issue in case of compensation of damages, such as in the case of breach of competition law (private enforcement⁴²⁶).

Justice has been more an issue in academia⁴²⁷ than in case-law,⁴²⁸ and should be taken more seriously, as argued by Williams.⁴²⁹ In a judgement from 2007, the Court has held that “on grounds of consistency and justice”, an entity must be able to contest a legal measure.⁴³⁰ This ‘basis’ has been used after the entry into force of the Lisbon Treaty to link this statement to the values enshrined in Art 2 TEU and to link justice not to coherence, but to the rule of law.⁴³¹ In some recent ‘rule of law’ judgements, the ECJ has stated as follows: “In particular, it follows from Article 2 TEU that the European Union is founded on values, such as the rule of law, which are common to the Member States in a society in which, inter alia, justice [!] prevails”.⁴³² It remains to be seen, whether this reference to justice can be seen as a turning point, towards taking justice more seriously.

3.2.1.8 Equality

Equality is another value enshrined in Art 2 TEU⁴³³ that is not defined in the EU treaties. Equality can be qualified as an EU value (Art 2 TEU) and as a (general⁴³⁴) principle⁴³⁵ of EU law. In its form of equality between women and men⁴³⁶ it is also an EU objective (Art 3[3] [2] TEU). Finally, equality is also a fundamental right (Title III CFR, Art 20 CFR). As clarified by the Court, according to “the principle [!] of equal treatment”, “comparable situations must not be treated differently and […] different situations must not be treated in the same way unless such treatment is objectively justified”.⁴³⁷

The concept of equality (including ‘equal’ treatment, etc.) occurs approx. 50 times in the consolidated version of the EU treaties,⁴³⁸ relating to various issues. Most prominently, Art 4(2) TEU tasks the Union to “respect the equality of Member States before the Treaties as well as their national identities”. Equality does not only apply at the level of Member States, but also of individuals. According to Art 9 TEU, “the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies”. These two provisions reveal that equality has a vertical and a horizontal dimension, where the higher level (vertical) has an obligation to treat the members of a certain group (peers at a horizontal level) in an equal way. In case of ‘services of general interest’, according to Prot No 26,⁴³⁹ the “shared values [!] of the Union in respect of services of general economic interest” (cf. Art 14 TFEU) “include in particular” “a high level of quality, safety and affordability, equal treatment [!] and the promotion of universal access and of user rights”. Besides these and other more specific examples (e.g., equal rotation between Member States,⁴⁴⁰ equally authentic languages⁴⁴¹), equality also has a horizontal dimension. According to the horizontal clause of Art 8 TFEU, in “all its activities, the Union shall aim to eliminate inequalities” (and to promote equality, between men and women). In addition to this internal dimension, the principle of equality also has an external dimension in the context of the EU’s external action (Art 21[1] TEU).

As aptly stated by ECJ president Koen Lenaerts,⁴⁴² in negative terms equality is the opposite of the (adapted) maxim in George Orwell’s ‘Animal Farm’, according to which ‘all animals are equal, but some animals are more equal than others’.⁴⁴³ According to the Oxford Dictionary, equality—in positive terms—is “the state of being equal, especially in status, rights, or opportunities”.⁴⁴⁴

Equality and justice (see above⁴⁴⁵) are closely related, as already stated by Aristotle.⁴⁴⁶ Equality requires a standard that has general validity beyond the individual case. Both in law (see above) and philosophy, certain maxims are applied in this context, according to which substantially the same things are to be treated equally and substantially unequal things are to be treated unequally. The distinctions (and unequal treatment based on them) must be grounded on an objective reason. The criteria according to which a differentiation is applied have to be consented by society and can change over time. In ancient Greece, there was obviously a consensus that differentiation based on a person’s status (free person vs. slave) was acceptable. As a more recent example, differentiation based on a person’s sexual orientation (e.g., homosexuality) was an accepted criterion some time ago (even making it punishable under criminal law) and is now considered discrimination. Equality can aim at equal entitlement (equality of origin) or aim at a situation where a decision leads to an equally actual situation (equality of result). Applying the ‘golden mean’ to equality, Aristotle has stated that “the equal is a sort of mean between excess and deficiency”.⁴⁴⁷

Equality must be differentiated from equity. Laws are by nature very general. Therefore, justice might need to be considered in individual cases, as a strict application of the law might lead to undue hardship, going against the spirit of the law. As Aristotle has stated in his ‘Nicomachean Ethics’: “And this is the very nature of what is equitable – a correction of law, where it is deficient on account of its universality”.⁴⁴⁸ Despite this prominent supporter, equity can also be problematic, as it can conflict with the principle of legal certainty⁴⁴⁹ and lead to potential abuses of the law.

Hence, equality is not only closely related to the value of justice, but also to the principle (and value) of non-discrimination. The two can be seen as two sides of the same coin, once in terms of a positive (equality) and once in terms of a negative (non-discrimination) explanation of the same idea. This close relationship can also be seen in the two CFR articles on equality before the law⁴⁵⁰ (Art 20) and non-discrimination (Art 21). The ECJ has referred to the “principle of equal treatment [a]s a general principle of EU law, now enshrined in Articles 20 and [!] 21 of the Charter”.⁴⁵¹ However, in another case, the EJC has assessed these two provisions separately.⁴⁵² In a case of alleged discrimination based on obesity decided some years after⁴⁵³ the entry into force of the Lisbon Treaty, the ECJ has not (!) accept a general principle of non-discrimination on grounds of obesity. Although obesity is neither mentioned in the EU treaties (e.g., Art 10 TFEU, Art 19 TFEU) nor in EU secondary law,⁴⁵⁴ the Court could have invoked Art 20 CFR for additional reasons, such as obesity. However, the Court did not opt for this approach.⁴⁵⁵ Consequently, the relationship between Art 20 CFR (equality) and Art 21 CFR (non-discrimination) remains to some extent unclear and should be seen as two sides of the same coin. In literature, it has simply been described as a reflection of the “Aristotelian principle that ‘likes should be treated alike’”.⁴⁵⁶

As we have also seen, in terms of legal value, equality can be seen as a value (Art 2 TEU), a principle, a fundamental right (e.g., Art 20 CFR, equality before the law) and has been characterised as a (general) principle of EU law. It is also interesting to note that the ECJ has used equality of individuals and of Member States as an argument for the primacy of EU law.⁴⁵⁷

3.2.1.9 Equality Between Women and Men

In terms of legal quality, in EU law the equality between women and men occurs as an EU value (Art 2 TEU), as an EU objective (Art 3[3] [2] TEU), as a (general)⁴⁵⁸ principle (Art 157 TFEU; see below), as well as in the form of fundamental rights (Art 23 CFR). The predecessor provision of Art 157 TFEU was qualified as a fundamental right by the ECJ at an early stage. As stated in the seminal case of Defrenne II, “[t]here can be no doubt that the elimination of discrimination based on sex forms part of those fundamental rights”.⁴⁵⁹ Besides including minorities in Art 2 TEU, another change “made by the 2004 Inter Governmental Conference was the express reference to the principle of equal treatment between men and women in the final sentence”.⁴⁶⁰ On a broader scale, gender equality is part of SDG5.⁴⁶¹

Equality between women and men can be found at various levels of EU law. Both in EU primary law (Art 157 TFEU), and in EU secondary law. According to Art 157(1) TFEU, “[e]ach Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied”. This provision has “direct effect in proceedings between individuals”.⁴⁶² This principle “is a particular expression of the general principle of equality which prohibits comparable situations from being treated differently unless the difference is objectively justified”⁴⁶³ and “imposes, clearly and precisely, an obligation to achieve a particular result”.⁴⁶⁴

Art 157(4) TFEU also allows for positive discrimination, also referred to as affirmative action⁴⁶⁵ measures to establish “full equality in practice” in favour of the “underrepresented sex”.⁴⁶⁶ Likewise, Art 23(2) CFR states that the “principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex”. Art 23(1) CFR expands the equality between women and men besides “employment, work and pay” to “all areas”.

Besides the employment field, the equality between women and men is also part of the horizontal clause of Art 8 TFEU, according to which in “all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women”. Hence, another example of mainstreaming. A specific provision can be found in social policy. According to Art 153(1) (i) TFEU, the EU shall support and complement the activities of the Member States, amongst others, in the field of “equality between men and women with regard to labour market opportunities and treatment at work”.

In EU secondary law, we can find provisions on equal treatment in the field of ‘employment and occupation’,⁴⁶⁷ ‘access to and supply of goods and services’,⁴⁶⁸ and in ‘activities in a self-employed capacity’.⁴⁶⁹

While the treaties clearly speak about women and men, two questions arise. The first refers to intersexual people, i.e., whose biological sex is not clearly ‘male’ or ‘female’. There rights have been strengthened recently, as, for instance, in Austria, where the Constitutional Court has stated that “Art. 8 ECHR therefore grants persons with a variant of sexual development compared to male or female the constitutionally guaranteed right that regulations based on sex recognise their variant of sexual development as an independent gender identity, and in particular protects people with an alternative gender identity from an externally determined gender assignment”.⁴⁷⁰ Please note that there is no German translation for gender and the VfGH has referred to “Geschlechtsentwicklung”, i.e., referring to sex.

The second question relates to the question of referring to this biological concept of ‘sex’, or to the social construct of ‘gender’. Fischer mentions that in the Inter Governmental Conference (IGC) leading to the Lisbon Treaty, the ‘gender debate’ and the question of whether more than just the two genders of man and woman should be recognised did not enter the debate at any point.⁴⁷¹ This has changed in the meantime and nowadays, it is common to refer to gender, in academia,⁴⁷² in case of the ECJ⁴⁷³ and in case of EU institutions.⁴⁷⁴ However, while it is easier to adapt the terminology in EU secondary law, in case of EU primary law this is clearly more challenging. Hence, a similar legal situation as for the notion of ‘race’ (Art 10 TFEU, Art 19[1] TFEU, Art 21 CFR), which is nowadays often avoided as it could give rise to misunderstandings.

3.2.1.10 Non-discrimination

In terms of legal quality, besides being a value enshrined in Art 2 TEU, non-discrimination is both a long-standing⁴⁷⁵ and a key principle of EU law. Non-discrimination is also a general principle⁴⁷⁶ of EU law, and one of the objectives addressed in Art 3(3) (3) TEU, according to which the EU “shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child”. Finally, non-discrimination is also a human right figuring in Art 21 CFR.⁴⁷⁷ If one sees non-discrimination and equality as two sides of the same coin, then also Art 20 CFR (equality before the law) must be named.⁴⁷⁸ On a broader scale, non-discrimination also occurs within SDG16.⁴⁷⁹

The Oxford Dictionary defines discrimination as “the unjust or prejudicial treatment or different categories of people, especially on the grounds of race, age or sex”,⁴⁸⁰ which highlights the link of justice and non-discrimination, and to the societal dimension (‘prejudice’). According to the ECJ, “discrimination can arise only through the application of different rules to comparable situations or the application of the same rule to different situations”.⁴⁸¹ The definition of equality exhibits the above-mentioned picture of two sides of the same coin:⁴⁸² “The Court has consistently held that the principle of equal treatment requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified”.⁴⁸³ The tricky question in either case is the comparability of the two situations compared. The Court offers to following guidance: “It should be recalled that the requirement relating to the comparability of the situations for the purpose of determining whether there is a breach of the principle of equal treatment must be assessed in the light of all the elements which characterise them”.⁴⁸⁴

Where in EU law can we trace this concept?⁴⁸⁵ As already exhibited above, non-discrimination can be found (a) in the EU’s provision on the economic fundamental freedoms of the single market, (b) in various harmonisation measures, and (c) in the CFR. Various provisions prohibit discrimination based on different criteria.

In case of (ad a) the fundamental freedoms of the internal market (Art 26 TFEU) discrimination based on the origin of the product (free movement of goods) or based on citizenship (person-related freedoms) is prohibited.⁴⁸⁶ As the Court has held, the fundamental freedoms prohibit “not only overt discrimination on grounds of nationality, but also all covert forms of discrimination which, through the application of other criteria of differentiation, lead in fact to the same result”.⁴⁸⁷ The shift from a market-based system to one also introducing EU citizenship can be seen in Art 18(1) TFEU, which prohibits “any discrimination on grounds of nationality” even in case of a lack of an economic activity.⁴⁸⁸

Different and more criteria can be found (ad b) in Art 19(1) TFEU. According to this article, “the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”. Figure 3.2 provides an overview of these existing directives (the numbers referring to these directives),⁴⁸⁹ and the one Commission proposal⁴⁹⁰ still in the legislative pipeline.⁴⁹¹

Fig. 3.2

Overview non-discrimination directives [Source: own illustration, based on EC Staff Working Document accompanying the proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, Summary of the Impact Assessment, SEC(2008) 2181 final 2.7.2008, p. 3]

Likewise, also in other fields the same criteria (as just mentioned concerning Art 19[1] TFEU) are mainstreaming via the horizontal clause of Art 10 TFEU. According to this provision, in “defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”.

Finally, (ad 3) Art 21(1) CFR extends (in the following, additional ones are printed in Italics) this list of criteria by referring to discrimination “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”. It is worth mentioning that, for instance, language can also be a disguised form of discrimination based on nationality. This broader range of criteria can also be found in various migration-related directives, such as entry and residence of third-country nationals (TCN) for the purpose of research, etc.,⁴⁹² single permit for TCN,⁴⁹³ long-term resident TCN,⁴⁹⁴ on returning illegally staying TCN,⁴⁹⁵ and in the field of family reunification.⁴⁹⁶

Non-discrimination is not an absolute right, as there are various reasons that can justify limitations to the right not to be discriminated. Reasons of justification can be found in various provisions, (e.g., Art 36 TFEU for the free movement of goods, or Art 6⁴⁹⁷ Directive 2000/78,⁴⁹⁸ to name but a few).

To summarise, non-discrimination is a value (Art 2 TEU), a key (general) principle of EU law, one of the objectives, and figures in the CFR. It cannot only be seen as one side of a coin, where equality is the other, it is also strongly related to another values, namely, justice (see Sect. 3.2.1.7).

3.2.1.11 Freedom

As mentioned above, the value of freedom was previously (Treaty of Amsterdam and in some Convention documents) referred to as liberty.⁴⁹⁹ In Kadi the ECJ had 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”.⁵⁰⁰ This reference to principles (and not values) is not surprising, as Kadi was rendered roughly 15 months before the entry into force of the Lisbon Treaty. Today, the preamble of the TEU refers both to the universal value of “freedom” in the second recital, and to the “principles of liberty [etc.]” in the fourth recital.⁵⁰¹ Freedom is not defined in the EU treaties.⁵⁰²

According to the Oxford Dictionary, freedom can be defined as “the power or right to act, speak or think as one wants”, as well as “the state of not being imprisoned or enslaved”. ‘Freedom from’ is defined as “the state of not being subject to or affected by (something undesirable)”, and, although of less importance for our topic, ‘the freedom of’ as “a special privilege or right of access, especially that of full citizenship of a city granted to a public figure as an honour”.⁵⁰³ Liberty, on the other hand, is, amongst others, defined as “the state of being free within society from oppressive restrictions imposed by authority on one’s behaviour or political views”, respectively, “the state of not being imprisoned or enslaved”.⁵⁰⁴ In literature, freedom has been referred to as “a sphere of individual decision and responsibility free from regulatory interference”, emphasising the individual⁵⁰⁵ element due to the introduction of equality in Art 2 TEU.⁵⁰⁶ However, referring to ECJ judgement Wightman⁵⁰⁷ (i.e. Brexit), freedom can also have a notion of collective self-determination.⁵⁰⁸

Where in EU law can we trace this concept? The concept of freedom occurs several times in the consolidated version of the EU treaties. Freedom is part of the ‘area of freedom, security and justice’ (AFSJ),⁵⁰⁹ of the economic ‘fundamental freedoms’ of the internal market (freedom of movement for workers, freedom of establishment, etc.),⁵¹⁰ as well as part of the ‘human rights and fundamental freedoms’,⁵¹¹ such as freedom of thought or freedom of assembly. Due to this broad range of freedoms, it is difficult to narrow it down to a single understanding, as various fields (from human rights to economic market rights) are covered.

Freedom can be seen as both a ‘freedom to’ and a ‘freedom from’.⁵¹² In positive terms, ‘freedom to’ can relate to the individual right to self-determination⁵¹³ or autonomy.⁵¹⁴ In negative terms, ‘freedom from’ can relate to the absence of foreign domination, or even tyranny.⁵¹⁵ According to Pechstein, freedom represents the rejection of any form of forced collectivism of communist or fascist character.⁵¹⁶ From this, he also concludes the basic primacy of the individual over the collective.⁵¹⁷ By its very nature, this primacy cannot be unlimited, as otherwise, a conflict with the value of solidarity could arise.⁵¹⁸ Concerning the sovereignty of the states and the Union vis-à-vis individuals, freedom implies the necessity of limiting authority (cf. also ‘the rule of law’⁵¹⁹), the proof of its necessity for the pursuit of legally recognised objectives and its strict definition in laws or comparable norms.⁵²⁰ In addition to this vertical relationship, freedom can also play an important role on a horizontal level between individuals in the sense of ‘private autonomy’.⁵²¹ ‘Private autonomy’, now enshrined in Art 16 CFR,⁵²² can be seen as a necessary basis for the economic fundamental freedoms, more broadly the internal market, “a highly competitive social market economy” (Art 3[3] TEU), as well as an “open market economy with free competition” (Art 119[1] TFEU).⁵²³ Finally, this Art 119(1) TFEU can also be seen as the basis for the concept of freedom from an economic perspective (“an open market economy with free competition”).

However, as already addressed by Kant, the own right⁵²⁴ respectively, freedom⁵²⁵ ends, where the right or freedom of another one begins. This statement makes clear that freedom can never be unlimited in a society, as it would impede the freedom of another. This can be seen as a limitation that is inherent to the concept itself and not stemming from the outside. As already mentioned, the relation of freedom to other values (of Art 2 TEU) must be addressed,⁵²⁶ as a too broad understanding of freedom can conflict with solidarity, which is also essential in a society.

Consequently, as we have seen, freedom is closely related to fundamental rights and to other values such as democracy and the rule of law. Freedom is a broad and multi-faceted⁵²⁷ concept. Against this background, some even doubt, whether the value of freedom has an independent normative meaning.⁵²⁸ In terms of legal value, the value of freedom can rather give “guidance for the interpretation and development of EU law”,⁵²⁹ but has not been qualified as a general principle⁵³⁰ of EU law. Freedom does not occur in Art 3 TEU (objectives), only its emanation as the ‘area of freedom, security and justice’ (Art 3[2] TEU).

3.2.1.12 Pluralism

Pluralism has been referred to as “an important value and a source of strength in Europe”⁵³¹ and is reminiscent of the EU’s motto of ‘united in diversity’.⁵³² Pluralism⁵³³ is another value enshrined in Art 2 TEU that is not defined, neither in the treaties, nor in CJEU case-law. Pluralism is neither an official objective of the EU (Art 3 TEU), nor a general principle of EU law.⁵³⁴ In the CFR, pluralism occurs in Art 11(2) CFR (see below).

Besides Art 2 TEU, the concept of pluralism occurs two more times in the EU treaties.

Art 11(2) CFR⁵³⁵ refers to ‘freedom and pluralism of the media’,⁵³⁶ which “shall be respected”. According to Council conclusions from 2020, “the concept of media pluralism has many aspects and encompasses all measures that ensure access to a variety of information and content sources and allow diverse actors with different opinions to have equal opportunities to reach the public through the media”⁵³⁷.⁵³⁸ As we have seen, equality (or equal opportunities) also play(s) an important role in democracy and in the field of lobbying.

Pluralism is strongly connected with democracy, another value.⁵³⁹ In the context of enlargement, the Commission has referred to the requirement to “guarantee democratic freedoms, including political pluralism, the freedom of expression and the freedom of religion”.⁵⁴⁰ In academia, pluralism has been described as “an element of democracy”.⁵⁴¹ For the interpretation of EU secondary law (the Directive on privacy and electronic communications⁵⁴² more precisely), the ECJ has, amongst others,⁵⁴³ referred to the freedom of expression, which “constitutes one of the essential foundations of a pluralist, democratic society, and is one of the values on which, under Article 2 TEU, the Union is founded”.⁵⁴⁴ Hence, pluralism can refer to a diversity of views, interests, etc., which may also be publicly expressed.

According to the Oxford Dictionary, pluralism is defined as follows: “a form of society in which the members of minority groups maintain their independent cultural traditions”, as “a political theory or system of power-sharing among a number of political parties”, and in philosophy as “a form of society in which the members of minority groups maintain their independent cultural traditions”.⁵⁴⁵ In literature, pluralism has been described as “a normative framework for an ordered plurality”, which “stands for the right to be different and to do things one’s own way in recognition of equal human dignity”.⁵⁴⁶

Discussing pluralism, Neil Walker has referred to the value of pluralism that allows us “to make sense of how the interconnected legal, political and social diversity of Europe is and might legitimately be addressed through processes that remain conductive to a settled pattern of integration”.⁵⁴⁷ Pluralism cannot only affect various fields (law, politics, social life), it can also relate to different levels. Legal and constitutional⁵⁴⁸ pluralism “refers to the specific forms of power evolving within these legal orders and their momentary constellations and capacity to influence the other legal orders and social relations constituted by them”.⁵⁴⁹ In a nutshell and in a simplified way, this constitutional pluralism is about various (national and inter- or supra-national) legal systems and the question, which of them has the final word in the end.⁵⁵⁰

However, as pluralism occurs as a value “common to the Member States in a society”, it has at least also a societal dimension. This dimension is closely connected to the afore-mentioned value of democracy and the possibility of diverse actors (including especially minorities) to have and to address different opinions.

In terms of legal value, the value of pluralism can rather give “guidance for the interpretation and development of EU law”,⁵⁵¹ but is not a general principle⁵⁵² of EU law. Pluralism has therefore been described as a ‘descriptive ideal’ and has a purely programmatic character, as its content is undetermined and therefore hardly justiciable.⁵⁵³

3.2.1.13 Tolerance

In the consolidated version of the EU treaties, tolerance occurs only once as one of the EU’s common values in Art 2 TEU. Tolerance is neither part of the EU’s objectives enshrined in Art 3 TEU, nor a principle. Tolerance cannot be found as a human right in the CFR.

According to the Oxford Dictionary, tolerance is defined as “the ability or willingness to tolerate the existence of opinions or behaviour that one dislikes or disagrees with”.⁵⁵⁴ Tolerance is practised towards actions and attitudes that are seen as problematic, but which are thought to be tolerable.⁵⁵⁵ The Latin word ‘tolerare’ can be translated with to suffer or to endure, which reveals a rather negative connotation.⁵⁵⁶

Rosenfeld has distinguished between “repressive tolerance”, if “imposed by the strong on the weak”, which can be qualified as “paradoxical to the extent that tolerance of the intolerant may pave the way for the latter to take power and do away with tolerance”.⁵⁵⁷ Therefore, he has proposed “tolerance grounded on mutual respect”,⁵⁵⁸ which can be linked to both equality (‘mutual’) and human dignity (‘respect’).

In terms of legal value, the value of tolerance can rather give “guidance for the interpretation and development of EU law”,⁵⁵⁹ but is not a general principle⁵⁶⁰ of EU law. Tolerance has been described as a ‘descriptive ideal’ and has a purely programmatic character, as its content is undetermined and therefore hardly justiciable.⁵⁶¹ However, it can be supported by creating favourable framework conditions.⁵⁶² The question remains, if tolerance should also be seen as a virtue.⁵⁶³

3.2.1.14 Lessons Learned

Hence, what are the lessons learned from Sect. 3.2.1?

The term of a ‘concept’ has been used to have a neutral umbrella term. Such a concept can be qualified as a value, a principle, a general principle of EU law, and/or as an objective. Justice, for instance, can also be seen as a virtue and is even one of the four ‘cardinal virtues’.

Freedom or solidarity have been such broad concepts and occurring in different fields that it is difficult to narrow them each down to a single understanding.

In case of solidarity, we have seen various levels (horizontal, vertical) and various tiers. An interpersonal tier, a group- or community-based one, as well as in a third step, the codification. The question remains, whether these perspectives (levels and tiers) can be transferred to other values.⁵⁶⁴

Various of these concepts have a horizontal⁵⁶⁵ dimension, as in the case of equality (Art 8 TFEU), non-discrimination (Art 10 TFEU), solidarity and equality between women and men (Art 8 TFEU).⁵⁶⁶

While the questions of limitations will be addressed below (Sect. 3.5.2), we have seen that a value such as freedom cannot be unlimited. Based on the Kantian idea that one right or freedom ends, where another right or freedom begins, freedom is not unlimited and can conflict, for instance, with solidarity. There is no unlimited freedom of human behaviour in a pandemic and a community will only be able to overcome these challenges if individuals display a sense of solidarity with the vulnerable.⁵⁶⁷

In this context of solidarity, the Court has addressed the relationship between rights and obligations stemming from EU membership. The question is whether the same idea can be transferred to human rights, complementing existing rights with human obligations.⁵⁶⁸

This leads to the next issue. All values also address the thorny question of putting an emphasis more on the collective or on the individual perspective. A collective perspective can have the advantage of taking enough care of the common good. This idea of the common good has already been addressed by Plato in the ‘Republic’, stating that “the best guardians are those who care most for their country and her interest”.⁵⁶⁹

Likewise, the justiciability (Sect. 3.5.1) of certain values remains to be depicted. Justice has been described as hardly justiciable. The same will apply for pluralism and tolerance. However, one concept (e.g., justice) can be twinned with another one (e.g., rule of law) to become effective, as can be seen in recent case-law. While the distinction between the two sentences of Art 2 TEU clearly matters, at the same time it should not be overestimated, as various values are important for both the EU and for the MS.

This is closely related to the question of how much a concept is or is not determined content-wise. Non-discrimination, referred to in this book, as a ‘key principle’ of EU law is much determined, based on EU secondary law and extensive case-law. In case of solidarity, one might assume less clarification, but as we have seen above, we have found quite some elucidation. Tolerance and pluralism figure rather at the end of those concepts whose content is sufficiently determined.

In the Copenhagen criteria,⁵⁷⁰ in the Commission’s ‘rule of law’ communication from 2014, as well as in the Brexit deal (TCA) we have seen the ‘values trinity’ (or three pillars’⁵⁷¹) of democracy, the rule of law, and human rights. In Kadi, roughly 1 year before the entry into force of the Lisbon Treaty, the Court had referred to almost the same three concepts, addressing liberty instead of the rule of law and referring to principles, not values.

A concept like justice has a strong philosophical background. However, even a ‘subcategory’ such as ‘social justice’, one of the EU’s objectives and addressed in the 2006 health values conclusions, can be understood quite differently, ranging from libertarianism to communitarianism. Likewise, various types of justice (distributive, exchange, procedural) can apply to various dimensions.

Unsurprisingly, many values are determined by Council of Europe documents, such as the rule of law by the Venice Commission, or democracy and human rights by the ECHR (and its protocols). The same is true for the ECtHR case-law.

The question has been addressed, whether the content of one value, for instance, the rule of law, should be different under the ‘general principles of EU law’ and the CFR, as opposed to Art 2 TEU.⁵⁷² This should be clearly rejected, as it would run counter to the unity⁵⁷³ of EU law. This approach is based on AG Bobek’s rejection of different types of ‘judicial independence’ (in the context of the rule of law), in the context of the three provisions of Art 19(1) second sentence TEU (effective legal protection), Art 47 CFR (right to an effective remedy and to a fair trial) and Art 267 TFEU (preliminary ruling proceeding). This approach stressing uniformity does of course not mean that this same content necessarily leads to the same outcome in an individual case.

As Calliess rightly mentions, when it comes to concretising the content of a recognised European value, the first step is to compare the content of the corresponding values of the Member States.⁵⁷⁴ In the field of fundamental rights of the CFR, the commentary of Meyer & Hölscheidt⁵⁷⁵ provides a valuable starting point for this legal comparison.⁵⁷⁶ This goes into a similar direction as Art 6(3) TEU in the context of fundamental rights referring to the “constitutional traditions common to the Member States”. Insofar as values can also be qualified as fundamental rights, this idea of Art 6(3) TEU applies not only by analogy.

Early on in EU integration, the question was discussed⁵⁷⁷ to what extent the structural elements of the Member States and the EU integration process need to be homogenous.⁵⁷⁸ A similar question was raised concerning the equivalence of fundamental rights protection between the ECHR and the EU (respectively, the Community, at the time).⁵⁷⁹ This discussion of homogeneity⁵⁸⁰ can refer to human rights and related values. Concerning the rule of law, Schroeder has emphasised that the “claim for the rule of law should […] not be understood as a claim for homogeneity”, as there are structural differences and one has to accept the “constitutional pluralism”, enshrined in the EU treaties.⁵⁸¹ Likewise, the ECtHR has also emphasised that ‘equivalent’ does not mean ‘identical’.⁵⁸² Hence, we can refer to Art 2 TEU as following only a minimum approach,⁵⁸³ which is reminiscent of ‘minimal ethics’, as described in the open-access book⁵⁸⁴ to the first Jean Monnet Chair.

This is because the Union is not a federation but a public authority ‘sui generis’.⁵⁸⁵ Hence, there might by a uniform approach when it comes to the core of a value, but some diversity at the periphery (see also Table 6.1).

Many of the values (e.g., pluralism) are reminiscent of the EU’s motto ‘united in diversity’. This fact can be described with two opposing pools, both of which must be accepted as existing and between which a balance must be struck. On a broader scale, this dichotomy can also be found in the two opposing concepts of the ‘ever closer union’⁵⁸⁶ and the Union’s respect of Member States’ ‘national identities’.⁵⁸⁷ The first argument goes in the direction of more integration, the second argument is often used for less EU and more national sovereignty. According to Scholtes, ‘constitutional identity’ is a legitimate concept, which however shall not be abused by illiberal tendencies.⁵⁸⁸ While there is no unique definition of ‘illiberalism’, it has been described in the context of “the relativization of the rule of law and human rights and in the constitutionalization of populist nationalism, identity politics, patrimonialism, clientelism, and corruption”.⁵⁸⁹ A similar analysis applies for ‘constitutional pluralism’, which has been described as “neither a purely liberal nor a purely illiberal theory”.⁵⁹⁰ Therefore, in the above-mentioned Art 6(3) TEU the element of ‘common’ is of utmost importance for these “constitutional traditions common to the Member States”.⁵⁹¹

While all values have an equal legal status as being part of the same legal provision (Art 2 TEU), AG Bobek has referred to the rule of law as “one of the primary values”. As it is the basis of fundamental rights and the first value mentioned in Art 2 TEU, human dignity has a supreme importance and has been referred to as a ‘super-value’.

We have seen various relations of values.⁵⁹² Democracy as the decision of the majority must respect the rights of minorities and is also related to pluralism. Both justice in relation to solidarity and in relation to non-discrimination can each be seen as two sides of a same coin.

The idea of a balance (or an equilibrium) has also been addressed by the Court in the context of solidarity, especially regarding the advantages and obligations of EU membership. The elevation of this idea on a broader scale remains to be seen.⁵⁹³

We have also seen some innovative elements, for instance, responsibility for future generations, addressed by the German Constitutional Court, or animal welfare, qualified by the ECJ as an EU value outside Art 2 TEU.

Finally, we have also seen some suggestions for reforming single values, for instance, Habermas on democracy. This can require Treaty reform, or simply to strengthen existing tools.

While ethics and values are closely related,⁵⁹⁴ fairness, justice or national values cannot be used by Member States to circumvent their existing legal obligations under EU law.

After these findings on Art 2 TEU values, let us now turn to values outside Art 2 TEU, as well as specific values, respectively, values in specific fields.

3.2.2 Other Values, Outside Art 2 TEU

Besides the common values enshrined in Art 2 TEU, the question arises whether values can also be identified outside this provision. One example is animal welfare. As mentioned above, the Court has interpreted the CFR as a ‘living instrument’⁵⁹⁵ and, based on an idea addressed in an EU regulation (see below), accepted a new value outside Art 2 TEU.

The Court has held: “as follows from recital 4 of that regulation, the principle of prior stunning provided for in that provision reflects an EU value [!], namely animal welfare, as now enshrined in Article 13 TFEU, according to which the European Union and the Member States must pay full regard to the welfare requirements of animals, when formulating and implementing animal welfare policy”.⁵⁹⁶ Hence, “[a]nimal welfare, as a value to which contemporary democratic societies have attached increasing importance for a number of years, may, in the light of changes in society, be taken into account to a greater extent”.⁵⁹⁷

It must be noted for the sake of clarity that the ECJ would be less inclined to create a value outside Art 2 TEU if there were no clear connecting factors. In case of animal welfare, the Court has not ‘invented’ the relevant value ‘from scratch’ but has applied what already existed in EU primary and secondary law. In the field of EU secondary law, the preamble of the relevant regulation stated that “[a]nimal welfare is a Community value [!] that is enshrined in the Protocol (No 33)”.⁵⁹⁸ In the field of EU primary law, “since animals are sentient beings”, Art 13 TFEU emphasises animal welfare. These are two anchors that make it easier for the Court to adopt the concept of animal welfare as a value.

The above-mentioned ‘living-instrument’ approach opens the door for other values to be added, while it remains to be seen, which might follow next.

3.2.3 Specific Values, Respectively, Values in Specific Fields

The EU’s common values have been applied to, and further specified in various fields.⁵⁹⁹ For reasons of scope, not all possible questions can be dealt with in this section.⁶⁰⁰

Some values addressed in the field of sports might rather be seen as virtues.⁶⁰¹ The EP resolution on integrity, etc. in sports besides referring to some general EU values (pluralism, tolerance, justice, equality [of opportunity], solidarity, tolerance, respect for human rights and the rule of law) refers to respect, friendship, fair play, prosperity, peace, mutual respect, compassion and leadership.⁶⁰² The 2018 Council conclusions on promoting the common values of the EU through sport besides referring to some general EU values (fairness,⁶⁰³ democracy, tolerance, equality and solidarity) mainly referred to teambuilding, discipline, inclusion, perseverance, (mutual) respect, fair play and friendship.⁶⁰⁴ Hence, rather virtues than values.

For the following two reasons, the remainder of this section focuses on the area of health. On the one hand, in 2006 the EU health ministers have adopted a distinct document on values in the field of health. On the other hand, against the background of the current pandemic, an illustration of these health values seems appropriate.

In light of the increasing cases of EU citizens relying on their rights under the (passive) economic freedom to receive (also healthcare) services, which lead to various ECJ judgements developing the right to patient mobility,⁶⁰⁵ the Member States wanted to take back the steering wheel. Therefore, they formulated a ‘statement on common values and principles’ annexed to these 2006 Council conclusions.⁶⁰⁶ These conclusions, which qualify as ‘soft-law’,⁶⁰⁷ tasked⁶⁰⁸ the Commission to respect these values and principles “when drafting specific proposals concerning health services” (pt. 7), as well as the other institutions (mainly the EP) “to ensure that common values and principles contained in the Statement are respected in their work” (pt. 8). These statements have to be seen against the background of the political decision to remove (pt. 1) health services from the scope of the general services directive⁶⁰⁹ (adopted end of 2006), and to draft a distinct (pt. 2) directive on ‘patients’ rights in cross-border healthcare,⁶¹⁰ finally adopted in 2011. The conclusions themselves address “social cohesion and social justice”,⁶¹¹ to which the health systems “make a major contribution” (pt. 7).

The conclusions seem to be based on a similar assumption as Art 2 TEU referring to values on which the Union “is founded”, by ‘recalling’ “the overarching values of universality, access to good quality care, equity and solidarity” (pt. 5).⁶¹² Solidarity, as already part of Art 2 TEU, in this context is described to be “closely linked to the financial arrangement of our national health systems and the need to ensure accessibility to all”. As we have seen above,⁶¹³ strictly speaking, equality has to be differentiated from equity. Equity, according to this statement, “relates to equal access according to need, regardless of ethnicity, gender, age, social status or ability to pay”. This understanding of equity is close to equality, respectively, the flipside of non-discrimination. Hence, we have at least two specific health values: universality and access to good quality care. Universality “means that no-one is barred access to health care”. Access to good quality care is not defined as a value but is further clarified in one of the principles “[b]eneath these overarching values”.

These principles, which are all explained in this statement, are quality, safety, care that is based on evidence and ethics, patient involvement, redress, privacy, and confidentiality. While these values and principles are common to the various health systems, the implementation differs, “and will continue to do so”. This statement is reminiscent of the EU’s motto of ‘united in diversity’.

To summarise, compared to Art 2 TEU, here we can identify more clarification, which is obviously easier in this specific field of health. Another take-away is the combination of more abstract values and more concrete principles, as well as a combination of new and the application of existing values, such as equality (or equity) and solidarity.

Besides this elucidation of solidarity (accessibility to all), we can also find some interesting clarification in literature. In the field of health law and policy, de Ruijter et al. have referred to solidarity as “redistribution and risk pooling” not only within Member States, but also between them.⁶¹⁴

Meulen defines solidarity as “a preference for collaboration to reach common goals as well as a justification for the subservience of one’s individual interests to the collective interest of the group or of a society”,⁶¹⁵ which “expresses the idea of mutual dependency”.⁶¹⁶ Meulen also refers to ‘humanitarian solidarity’, “which reflects the concern and responsibility for individuals who are not able any more to take care of themselves due to debilitating conditions and diseases, like dementia and psychiatric disorders”.⁶¹⁷ As he states elsewhere, “[t]his principle can be defined as a responsibility to protect those persons whose existence is threatened by circumstances beyond their control, particularly natural fate or unfair social structures”.⁶¹⁸ In a simplified way, this concept can be seen as a combination of solidarity and vulnerability.⁶¹⁹ Finally, in terms of the relation of solidarity to another value, namely, justice, he emphasises that solidarity does not replace justice. The two should rather be seen as two sides of a coin, where justice concerns “the rights and liberties of autonomous, self-interested individuals”, while solidarity “concerns the mutual recognition and well-being of the members who are connected in the life world”.⁶²⁰ It will not escape the attentive reader that this image of two sides of a coin has already occurred concerning the relationship between equality and non-discrimination.

After these clarifications on the scope ratione materiae of values within and outside Art 2 TEU, let us now turn to the scope ratione personae.

3.3 Scope Ratione Personae

This scope ratione personae concerns the two related questions of who is entitled and who is duty bound by these values, respectively, concepts.

3.3.1 Who Is Entitled?

The TEU preamble refers to the “cultural, religious and humanist inheritance of Europe” (recital 2). According to Calliess, this reference to Humanism should be understood as pointing to the values of equality of humans, freedom, and the validity of reason (“Geltung der Vernunft”).⁶²¹ These references and the already mentioned concepts of human dignity and human rights clearly point to an anthropocentric view.

Besides this general analysis, let us now turn to the different values. For various values enshrined in Art 2 TEU it is obvious, whom they entitle. Human dignity and human rights clearly entitle all human beings. As already mentioned, in the CFR we can only find a few articles that explicitly entitle EU citizens only. In case of ‘rights of persons belonging to minorities’, individuals of a minority group are entitled, not minorities as a group.⁶²² Likewise, ‘equality between women and men’ entitles all human beings.⁶²³ However, as mentioned above, based on what can been identified in EU secondary law, this will have to be seen broader in terms of gender.

Broadly speaking, equality and non-discrimination entitle human beings. According to Art 20 CFR “[e]veryone is equal before the law”. Just to refer to Art 21 CFR, it depends on the relevant criteria who can be entitled by this provision of primary law, respectively, by the above-mentioned anti-discrimination directives. Equality is, as we have seen, a broad concept. According to Art 4(2) TEU, the Member States are entitled that their equality before the Treaties is respected by the Union. In a similar way, Art 9 TEU entitles EU citizens to “receive equal attention” from EU institutions, etc.

The rule of law and its various elements will entitle all human beings, who are subject to the exercise of public authority, of both the EU and the Member States. Various elements of the rule of law (legality, legal certainty, prohibition of arbitrariness, independent and impartial courts and effective judicial review, equality before the law), as depicted above, will entitle individuals (not necessarily only EU citizens, but also TCN) to rely on the different general principles of EU law.

Likewise, freedom, pluralism and tolerance will also entitle all human beings.⁶²⁴ The only challenge here will be that the content, which is not precisely defined, makes the question of who is entitled seem rather theoretical. In case of the economic fundamental freedoms of the internal market, EU citizens⁶²⁵ can be entitled, in case of the free movement of products even TCN.⁶²⁶ In case of fundamental freedoms as fundamental rights, depending on the relevant rights, all human beings or EU citizens only can be entitled.

The analysis for justice is somehow similar, however more nuanced. Justice is another broad concept, mainly determined in philosophy. Justice is about the relationship of human beings, hence it can be seen to entitle all human beings in all different forms (both in its vertical and in its horizontal dimension, as well as in the case of corrective or procedural justice).

Democracy can be limited to EU citizens in case of elections, but can obviously be extended to TCN when it comes to good administration, transparency, etc. Art 9 TEU also stresses the principle of equality of citizens in the attention they get from EU institutions, etc.

Solidarity is a broad concept, but it may not only entitle individuals, but also addresses solidarity between Member States (e.g., Art 222 TFEU).

All these values can lead to an entitlement in a direct way, as well as indirectly via a value-conform interpretation⁶²⁷ of EU secondary or of national law. Based on Art 19 TEU, both the CJEU and national courts and tribunals have a “responsibility for ensuring judicial review in the EU legal order”, which includes the duty “that in the interpretation and application of the Treaties the law is observed”,⁶²⁸ as well as “the principle that national law must be interpreted in conformity with EU law”.⁶²⁹

So far, the above-mentioned anthropocentric view has been confirmed. Having defined the ‘ethical spirit of EU law’, there are also examples of a bio-centric attitude, emphasising the intrinsic value of animals.⁶³⁰ A milestone has been the ECJ judgement of December 2020, where animal welfare has been qualified as a ‘value’.⁶³¹ An additional step would be to entitle the environment.⁶³² Before turning to the future direction of travel (Chap. 5), let us turn to the related question of who is bound by these values.

3.3.2 Who Is Obliged?

Before we look at the question of which individual values bind whom, we first turn to the binding effect of the values for the EU in general. The first paragraph of Art 3 TEU defining the EU’s objectives stipulates that the “Union’s aim is to promote peace, its values and the well-being of its peoples”. This provision clearly states the obvious, the Union as an addressee of its own values. The same holds true for the external perspective, where Art 3(5) TEU states the same for the Union’s ‘relations with the wider world’. Besides the Union as an organisation, also its ‘elements’ are covered. Art 13(1) TEU states that the “Union shall have an institutional framework which shall aim to promote its values [and] advance its objectives”. This is a direct, as well as via the above-mentioned Art 3 TEU in addition an indirect, obligation to respect the values enshrined in Art 2 TEU. The ‘elements’ of this organisation bound to these values are the EU institutions listed in Art 13(1) TEU, the two ancillary bodies mentioned in Art 13(4) TEU, i.e., the Economic and Social Committee (EESC) and the Committee of the Regions (CoR), as well as all other ‘bodies,⁶³³ offices⁶³⁴ or agencies⁶³⁵ of the Union’.⁶³⁶ Besides these arguments, in enacting EU secondary law and acting under the EU treaties, the hierarchy of EU law makes the values of the EU binding for these ‘elements’. Let us now have a closer look at the different individual values.

Member States have to comply with EU values at the time of accession (cf. Art 49 TEU) and EU membership (Art 2 TEU). On individuals, see below.

Those obliged by fundamental rights are obviously public authorities. This is true for fundamental rights via general principles of EU law and for the ECHR. The question of the obligation of fundamental or human rights (including the rights of minorities) in terms of the Charter of Fundamental Rights depends on Art 51(1) CFR. According to this provision, the “provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law”.

• In case of the EU, the binding character of the CFR does not raise major questions and can be seen in a similar way as just mentioned regarding Art 2 TEU.⁶³⁷

• In case of the Member States, the crucial question is obviously the limitation of “when they are implementing Union law”. As Lock mentions, this is a major difference between the CFR and the ECHR or national human rights provisions, as the latter two apply without such a restriction; that is why the EU cannot be qualified as a “human rights organization” and the CJEU not as a “human rights court”.⁶³⁸ Besides the implementation of EU law in a strict sense (e.g., application of an EU regulation or transposition of an EU directive), also derogations from the economic fundamental freedoms⁶³⁹ are covered.⁶⁴⁰ Additionally, in Åkerberg Fransson, the ECJ has clarified that the “applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter”.⁶⁴¹ Lenaerts has expressed the essence of this statement as follows: “Metaphorically speaking, this means that the Charter is the ‘shadow’ of EU law. Just as an object defines the contours of its shadow, the scope of EU law determines that of the Charter”.⁶⁴² There are also limitations to this broad concept (1. implementation in a strict sense; 2. derogation; 3. applicability of EU law).⁶⁴³ If EU law does not apply, also CFR rights cannot be invoked against Member States. This can be the case if a certain topic falls outside the scope of the EU’s competences, or if the scope of EU secondary law is not given.⁶⁴⁴ Hence, the question of when Member States are bound by the CFR remains tricky.⁶⁴⁵ In a recent Brexit-related case that took place before the end of the transitional period, the Court had to deal with a situation of a (former) Member State having adopted national law that is more favourable (!) compared to the relevant EU directive on citizens’ rights,⁶⁴⁶ which consequently cannot be seen as a situation of ‘implementing’ EU law. However, as such a situation falls under Art 21(1) TFEU (right to move and reside freely within the territory of the Member States), those more favourable national rules can be seen to implement this provision of EU primary law that consequently triggers the obligation “to comply with the provisions of the Charter”.⁶⁴⁷ The circle to the values of the EU is then closed insofar as this results in the obligation for the member states to enable a life “in dignified conditions”, “in accordance with Article 1 of the Charter”.⁶⁴⁸

• The same (difficult) analysis applies for the question of an obligation of individuals, the so-called question of a possible horizontal effect of CFR rights. An indirect effect via public authorities, for instance, interpreting national legislation in light of the CFR is less of a problem. However, a direct effect is more challenging. In case of a CFR provision⁶⁴⁹ (Art 21, non-discrimination) that can also be qualified as a ‘a general principle of EU law’ and is further defined in an EU directive (Directive 2000/78⁶⁵⁰⁾, the Court has accepted that this situation can “confer on individuals a right which they may rely on as such in disputes between them [i.e., horizontal] in a field covered by EU law”.⁶⁵¹ As is often the case, an AG has aptly described this situation metaphorically as follows: “In fact, in this area, the Charter has proved to be of exceptional practical importance, becoming – to use the jargon of alchemists – the philosophers’ stone of EU law enabling base norms (directive provisions that do not have a horizontal effect) to be transmuted into precious ones (those that do). It was on such occasions that the rules governing reliance on the Charter in relations between individuals were worked out”.⁶⁵² Such a situation is obviously only possible “on the condition that a link exists between that provision of the Charter and the provision of the directive in question”.⁶⁵³

• In the following cases of horizontal situation, the Court has allowed the disapplication of provisions of national law that are contrary to a directive, “when general principles of EU law, including those given specific expression in the Charter, so require”:⁶⁵⁴ the principle of non-discrimination on grounds of age,⁶⁵⁵ the principle of non-discrimination on grounds of religion or belief,⁶⁵⁶ and the right to effective judicial protection,⁶⁵⁷ all with regard to Directive 2000/78/EC,⁶⁵⁸ as well as in the case of Directive 2003/88/EC⁶⁵⁹ concerning the annual leave as guaranteed by Art 31(2) CFR.⁶⁶⁰

After the first value of human rights, let us now turn to the next value. Based on the historic background, human dignity can be seen as a reaction to the atrocities of the Second World War. Hence, this value is binding on public authorities, both the EU and the Member States.

The same holds true for the rule of law as a broad concept, which also obliges public authorities. The different elements of the rule of law (legality, legal certainty, prohibition of arbitrariness, independent and impartial courts and effective judicial review, equality before the law), as depicted above, make it easier to lead to legal obligations, e.g., via general principles of EU law.

Democracy obviously obliges the public authorities of the EU, respectively, the Member States, for instance, organising elections to the European Parliament or at the national level.

Equality is, as we have seen, a broad concept. According to Art 4(2) TEU, the Union is obliged to respect the equality of Member States. Art 9 TEU stipulates a similar obligation of the EU institutions, etc. regarding EU citizens, which shall “receive equal attention”. Equality before the law (Art 20 CFR) and non-discrimination (Art 21 CFR) will oblige both the EU and the Member States, based on the requirements of Art 51 CFR, as mentioned above.

The same is true for equality between women and men. Likewise, here also public authorities will be duty bound. However, here we have one exception, as the ECJ has clarified in Defrenne I, that (what is now) Art 154 TFEU, “applies not only to the action of public authorities, but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals”.⁶⁶¹ Hence, an exceptional example of a so-called horizontal effect, as discussed above regarding the CFR.⁶⁶²

As we have seen, freedom is a broad concept and will mainly oblige public authorities. This broad concept can also include the economic fundamental freedoms, which exceptionally can also oblige private individuals.⁶⁶³ As we have seen, the concept of freedom can also refer to a horizontal level in the sense of ‘private autonomy’, but it will be difficult in this context to argue for direct obligations for individuals stemming from Art 2 TEU. Apart from that, the value of freedom has been seen as only being able to give guidance for the interpretation and development for EU law. Hence, it can have an impact on possible obligations rather in an indirect⁶⁶⁴ way, by shaping the content of other legally binding provisions.

Besides freedom, in case of pluralism and tolerance the challenge is that the relevant content is not precisely defined. Pluralism of the media is clearly an obligation for public authorities and results from Art 11(2) CFR. The importance of this obligation in the context of democracy has already been mentioned.⁶⁶⁵ Tolerance can be important for public authorities. However, it can also rather seen as a virtue, which obviously cannot be enforced by legal means. These Art 2 TEU values can rather give ‘guidance’ for the interpretation of EU law.

The analysis for justice is somehow similar, however more nuanced. Justice is another broad concept, mainly determined in philosophy. In its vertical dimension, it would oblige public authorities, in its horizontal also individuals.

• In terms of ‘distributive justice’ (iustitia distributiva) we would have public authorities that are obliged in relation to sub-ordinated individuals (i.e., a vertical situation of unequal entities).

• In terms of ‘exchange justice’ (iustitia commutativa) we would have individuals being mutually obliged (i.e., a horizontal situation).

• In terms of ‘corrective justice’ (iustitia regulativa sive correctiva) we would have those having caused a damage (or committed a criminal act) being obliged to compensate for the damage (or to accept the punishment).

• The wording here is ‘would have’ because this is a theoretical reasoning, given the reluctance to ‘take justice more seriously’. Hence, this would rather affect public authorities (mainly the EU) and implies accepting these philosophical clarifications in law. Another issue is the combination of justice with other values (e.g., the rule of law), which can result in a different impact.⁶⁶⁶

• The situation might differ if a value (justice) is combined with certain legal principles. This would be conceivable in the case of ‘procedural fairness’. Public authorities are bound to CFR rights, such as Art 47 CFR (effective remedy), Art 48 CFR (presumption of innocence), Art 49 CFR (legality and proportionality), Art 50 CFR (ne bis in idem), etc. They are also be bound to general principles of EU law, such as non-discrimination, proportionality, legal certainty, protection of legitimate expectations, rights of defence, the principle of effectiveness, as well as liability of both the EU and Member States (i.e., state liability).⁶⁶⁷

• As mentioned above, one question is also, whether justice can or should also be seen as a virtue, which of course cannot be legally enforced.

Non-discrimination is part of the CFR (see above), but also a distinct value and a key principle of EU law. Non-discrimination in terms of the fundamental freedoms binds public authorities, certain entities that can enact collective measures,⁶⁶⁸ as well as exceptionally private individuals⁶⁶⁹.⁶⁷⁰ Once EU directives are implemented into national law, they are also binding for individuals via these national implementation measures. Hence, there is less necessity for discussing a binding effect of non-discrimination as a value of Art 2 TEU only.

Based on the afore-mentioned⁶⁷¹ definition of the Oxford dictionary, solidarity would both entitle and bind individuals (with a common interest). The solidarity clause of Art 222 TFEU entitles and binds Member States. The same is true for the other afore-mentioned provisions that also refer to the Member States’ relationship. Likewise, Art 80 TFEU (migration) is legally binding for Member States, as confirmed by the ECJ regarding the ‘relocation decision’. Art 222 TFEU also obliges the EU in relation to Member States (vertical situation). The solidarity between generations, as one of the EU’s objectives (Art 3 [3] [2] TEU) can be of indirect relevance, although we have seen an application of this idea in BVerfG case-law. In the external sphere, Art 21(1) TEU tasks the Union to respect the principle of solidarity.

The binding effect on Member States does not require a cross-border effect (i.e. two Member States involved) as in the case of the economic fundamental freedoms.⁶⁷² Hence, values also apply only if one Member State is concerned.

A binding effect on individuals can also take place via EU secondary law, referring to certain EU values. A value that otherwise would not be binding for individuals can become binding if referred to in a legally binding document. This can be an EU regulation that is binding in its entirety and directly applicable, or an EU directive, which must be transposed into national law (Art 288 TFEU). Hence, a similar effect as in the case of soft-law referred to in hard-law.⁶⁷³

• Various EU non-discrimination directives can lead to legal obligations for individuals via the transposition into national law.⁶⁷⁴

• Non-financial reporting can also lead to a situation where some large companies are dealing with certain EU values via the Common Good Balance Sheet.⁶⁷⁵

• In the field of digitalisation various EU documents⁶⁷⁶ refer to EU values and have also led to individuals dealing with questions of AI etc.⁶⁷⁷ 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”.⁶⁷⁸

• Against the backdrop of various challenges arising in the field of Artificial Intelligence, various companies refer to values that can also be found in Art 2 TEU, although on a voluntary basis.⁶⁷⁹

3.4 Scope Ratione Limitis

From an external perspective and on a timeline, we can address the question of (1) countries joining the EU, (2) the external activities of the Union (during membership, so to say), as well as (3) the topic of a country leaving the EU, which turns previous internal questions into external ones. As (ad 1) a country having joined the EU has to maintain its obligations regarding EU values, we will first turn to the external perspective, and then return to the internal one for some additional remarks. Additional, because so far, the previous sections have mainly covered this internal angle.

3.4.1 The External Perspective

Hence, let us now turn to the external perspective. For the first question of a country joining the EU, the inbound situation so to say, we have already seen the Copenhagen criteria as set up by the European Council in June 1993. Besides economic and legal criteria, the following political criteria have been addressed: “stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities”.⁶⁸⁰ Nowadays, Art 49(1) TEU⁶⁸¹ states “[a]ny European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union”. This further clarifies the political category of the Copenhagen criteria and enlarges the values to those mentioned in Art 2 TEU. To verify “compliance with the values referred to in Article 2 TEU [that] constitutes a precondition [!] for the accession to the European Union of any European State applying to become an EU member”,⁶⁸² the Commission “undertakes a very profound screening”,⁶⁸³ based on different chapters.⁶⁸⁴ It remains to be seen (the internal perspective; see below) if the same scrutiny takes place, once a country has achieved the status of EU membership.

On a timeline, the second aspect relates to the proper external activities of the EU. Some relevant provisions have already been mentioned and shall now be put in context. While one can safely argue that Art 2 TEU itself is already binding for the EU’s internal and external activities,⁶⁸⁵ Art 3(5) TEU (EU objectives) for instance, clarifies this as follows: “In its relations with the wider world, the Union shall uphold and promote its values and interests […]”. These EU external relations can be clustered into the following elements:

Before the Lisbon Treaty, the European Neighbourhood Policy (ENP) has been based on soft-law and got “formally constitutionalize[d]” via Art 8 TEU.⁶⁸⁶ The idea is to surround the EU “with a ring of friends”,⁶⁸⁷ although there is not a single approach concerning the different regions.⁶⁸⁸ Art 8 TEU tasks the Union to “develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation”. Good neighbourliness is not mentioned in Art 2 TEU, in literature it is referred to as “a nascent principle in international law”.⁶⁸⁹ However, the wording in Art 8 TEU is not enough to qualify it as an additional value.

Within title V of the TEU, values are address both in Chapter 1 on general provisions on the Union’s external action (cf. Art 21 TEU), as well as twice in Chapter 2 on provisions on the common security and defence policy. In the latter case, both in Section 1 on common provision (cf. Art 32 TEU) and in Section 2 on the common security and defence policy (cf. Art 42 TEU).

Art 21(1) TEU links the internal to the external dimension by requiring that the “Union’s action on the international scene shall be guided by the principles [!] which have inspired its own creation [etc.]”, “democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity [etc.]”. Notably some Art 2 TEU values are here referred to as principles. As we have seen above,⁶⁹⁰ all these values have also been qualified as principles. Besides these principles, Art 21(2) TEU defines the EU’s objectives for external action. These objectives have been clustered in horizontal and more policy-specific objectives.⁶⁹¹ As part of the first category, the first objective (lit a) mentioned is to “safeguard its values [!], fundamental interests, security, independence and integrity”. Hence, some concepts of Art 2 TEU figuring in this article as principles and a general reference to the Union’s values.

The Court has confirmed the importance of values in the external sphere in a case concerning an EU-Tanzania Agreement regarding “compliance with the principles of the rule of law and human rights, as well as respect for human dignity”.⁶⁹² The Court has emphasised that “such compliance is required of all actions of the European Union, including those in the CFSP, as is clear from the provisions, read together, set out in the first subparagraph of Article 21(1), Article 21(2)(b) and (3) TEU, and Article 23 TEU. That being the case, the Court must also assess that agreement in the light of its aim.”⁶⁹³

Art 32 TEU and Art 34 TEU are provisions striving to “strengthe[n] systematic cooperation between Member States in the conduct of policy” (Art 25[c] TEU) as well as to contribute to “an ever-increasing degree of convergence of Member States’ actions” (Art 24[2] TEU).⁶⁹⁴ Against this background, Art 32 TEU tasks the Member States to consult one another and to ensure “that the Union is able to assert its interests and values [!] on the international scene” (para 1). One value that is explicitly mentioned in this provision is “mutual solidarity”.

The last provisions of the afore-mentioned three articles is Art 42 TEU, in Section 2 (common security and defence policy). This article clarifies that the “common security and defence policy shall be an integral part of the common foreign and security policy” (para 1). According to para 5 of the same provision, the Council may entrust the execution of a task to a group of Member States, which “are willing and have the necessary capability for such a task” (Art 44 TEU, with further details). The requirement for executing such a task entrusted to a capable group of Member States is “to protect the Union’s values and serve its interests” (Art 42[5] TEU).⁶⁹⁵

An important clarification has been made by the ECJ recently in a case relating to the question of whether a third country (Venezuela) can be qualified as a ‘legal person’ within the meaning of Art 263(4) TFEU (action for annulment), a question that has been answered in the affirmative. An argument against this solution would have been that allowing “third States to bring such actions before the EU Courts against acts of the European Union would risk compromising the reciprocity [!] between the European Union and those States”, one of “the basic principles of public international law”.⁶⁹⁶ As the ECJ has confirmed, the “obligations of the European Union to ensure respect for the rule of law [!] cannot in any way be made subject to a condition of reciprocity as regards relations between the European Union and third States”.⁶⁹⁷ Consequently, Venezuela can benefit from this interpretation of EU law in Europe, even if a reciprocal situation of EU legal persons in Venezuela would not be the case.

The external dimension of values and especially human rights can also be seen in the ‘restrictive measures against serious human rights violations and abuses’,⁶⁹⁸ the so-called EU’s “shiny new tools”⁶⁹⁹ in its “human rights and foreign policy toolbox”,⁷⁰⁰ to address serious human rights violations and abuses worldwide. This includes freezing of funds and economic resources of those involved in serious human rights violations or abuses.

Although the EU is not a member of the United Nations (UN), all Member States are. According to Art 42(1) TEU, the Union shall act “in accordance with the principles of the United Nations Charter”.⁷⁰¹ The preamble of the latter refers to fundamental human rights, the dignity and worth of the human person, the equal rights of men and women, justice, freedom, tolerance, living together in peace with one another as good neighbours, as well as to the common interest.⁷⁰² In the context of another international organisation in this field, the North Atlantic Treaty Organization (NATO), the Heads of State or Government in a recent summit meeting have referred to the values “including individual liberty, human rights, democracy, and the rule of law”.⁷⁰³ Consequently, in either case we can find many similarities.

As mentioned above, a third question to be addressed is about a country that has left⁷⁰⁴ the EU, as in the case of the United Kingdom, the outbound perspective, so to say. After the referendum from 23 June 2016, the clarification of the UK Supreme Court that the UK parliament must be involved,⁷⁰⁵ and many other steps,⁷⁰⁶ the United Kingdom has finally used the possibility to leave the EU, based on Art 50 TEU. This provision, inserted by the Lisbon Treaty, refers to arrangements for the withdrawal⁷⁰⁷ and future relations (para 2). The Trade and Cooperation Agreement (TCA)⁷⁰⁸ on future relations, also referred to as the Brexit deal, comprises three interesting provisions when it comes to values.

The preamble starts by reaffirming the commitment “to democratic principles, to the rule of law, to human rights, to countering proliferation of weapons of mass destruction and to the fight against climate change, which constitute essential elements of this and supplementing agreements” (recital 1). Another example of referring to some Art 2 TEU values as principles, respectively, as ‘elements’, but not as ‘values’. Besides the rejection of weapons of mass destruction, addressing climate change in this context is most remarkable.

The three values of democracy, the rule of law and the protection of fundamental rights and freedoms of individuals are also emphasised in the context of part three on ‘law enforcement and judicial cooperation in criminal matters’. Art 524 TCA bases this cooperation on the “long-standing respect” of these three values, although not labelling them as ‘values’. Fundamental rights and freedoms of individuals are based on the Universal Declaration of Human Rights (UDHR)⁷⁰⁹ as well as the ECHR, as more international and ‘neutral’ documents.⁷¹⁰ More reference to EU documents would probably not have been acceptable to the UK.

Finally, within part six on ‘dispute settlement and horizontal provisions’, with Art 763 TCA entitled ‘democracy, rule of law and human rights’ we find a provision addressing the same three values. This provision tasks the contracting parties to “continue to uphold the shared values and principles of democracy, the rule of law, and respect for human rights, which underpin their domestic and international policies”. Para 1 continues by reaffirming the TCA parties’ “respect for the Universal Declaration of Human Rights and the international human rights treaties to which they are parties”. Art 763(2) TCA addresses a ‘double external’ perspective, as the TCA parties “shall promote such shared values and principles in international forums” and “shall cooperate in promoting those values and principles, including with or in third countries”.

To summarise, we can find three of the EU’s values, referred to as principles, values, or both. References to other European (ECHR) and international (UDHR) documents seem to be an attempt to create continuity but on a more ‘neutral’ basis. Looking at the above-mentioned timeline from an actus contrarius perspective, one could of course address the question if values must play or have not to play the same role in case of accession and in case of departure. The more the content of the agreement on future relations resembles the content of past EU membership (even if keeping in mind certain opt-outs), the more it is convincing, although not legally binding, to base this relationship on same or similar values. To close the circle, despite the question if the same values should play a role in case of joining and leaving the EU, the same three values of democracy, the rule of law and human rights have been identified both in the Copenhagen criteria⁷¹¹ as well as in Art 763 TCA.⁷¹²

3.4.2 The Internal Perspective

As an additional remark on the internal situation in relation to what has been covered so far: Art 2 TEU and all the related provisions of EU primary and secondary law obviously apply within the EU and the Member States. As mentioned above, the values do not require a cross-border situation, as we know it from the economic fundamental freedoms. Hence, the Member States are obliged to respect the values also outside the scope of EU law⁷¹³ and as Klamert and Kochenov⁷¹⁴ add even outside the competences of the EU. A different opinion is held by the Council’s Legal Service, according to which “a violation of the values of the Union, including the rule of law, may be invoked against a Member State only [!] when it acts in a subject matter for which the Union has competence based on specific competence-setting Treaty provisions”.⁷¹⁵

A second additional comment ties with the external perspective just discussed. As “compliance with the values referred to in Article 2 TEU [that] constitutes a precondition [!] for the accession to the European Union of any European State applying to become an EU member”,⁷¹⁶ one would expect that to be the end of the discussion. Certain illiberal⁷¹⁷ tendencies have made clear that EU membership is no guarantee for the continued commitment to EU values.

Referring to the requirements to become an EU member, the Court has emphasised the “that the European Union is composed of States which have freely and voluntarily [!] committed themselves to the common values now referred to in Article 2 TEU, which respect those values, and which undertake to promote them”.⁷¹⁸ Based on this pacta sunt servanda perspective of obligations committed without coercion (‘free and voluntarily’), the Court has addressed a possible reduction of the level of protection of EU values compared to the time of accession. The Court has made clear that “compliance by a Member State with the values enshrined in Article 2 TEU is a condition for the enjoyment of all of the rights deriving from the application of the Treaties to that Member State. A Member State cannot, therefore, amend its legislation in such a way as to bring about a reduction [!] in the protection of the value of the rule of law, a value which is given concrete expression by, inter alia, Article 19 TEU. Member States are thus required to ensure that, in the light of that value, any regression [!] of their laws on the organisation of justice is prevented, by refraining from adopting rules which would undermine the independence of the judiciary”.⁷¹⁹ While it might sound obvious, this statement of the Court (Grand Chamber) is an important contribution in a ‘Community (or Union) of values’. The question that remains to be answered is how possible violations of these obligations can be enforced. This leads us to the next section.

3.5 Implications (Justiciability and Restrictions)

After these four scopes (ratione temporis, materiae, personae and limitis), let us now turn to the implications of EU values, including their justiciability and possible restrictions.⁷²⁰

3.5.1 Justiciability and Other Implications of Values

The values contained in Article 2 TEU have been identified and are shared by the Member States. They define the very identity of the European Union as a common legal order. Thus, the European Union must be able to defend those values, within the limits of its powers as laid down by the Treaties.—Court of Justice (2022)⁷²¹

As we have already seen above,⁷²² values can be approached from different angles. These perspectives comprise, amongst others, social science, political science, and law.

According to social science, “values are the basic attitudes of people who stand out due to their special firmness, conviction of correctness and emotional foundation”.⁷²³ Likewise, personal values can also be seen as virtues, inner dispositions, or character traits, which also need to be practised and cultivated. These virtues cannot be enforced in a legal procedure.

Values in the sense of political science are “guiding ideas for the activities of political institutions based on political-philosophical value judgements”.⁷²⁴ As political science and law are closely related, values in this sense can also have a certain impact, but more likely rather an indirect one on the legal justiciability of values.

Finally, in legal science, values, or basic values (valeurs fondamentales) are described as “assets that a legal system recognizes as predetermined and imposed”.⁷²⁵ In this latter field, the following question remains: What is the legal value of the EU’s common values? In which way can they be enforced in a legal procedure?

As we have also already seen, values are per se rather abstract. Unlike principles or fundamental rights, values do not have specific legal consequences or addressees.⁷²⁶ In a court case, a principle such as proportionality can lead to a non-justifiable restriction of fundamental freedoms being qualified as incompatible with EU law. Based on the primacy of EU law, the practical impact is then the non-application of this mentioned provision. As mentioned above,⁷²⁷ fundamental rights generally grant subjective rights, unless a provision, for example of the CFR, is to be qualified merely as a ‘CFR principle’. According to Art 52(5) CFR, these ‘CFR principles’ are “judicially cognisable only [!] in the interpretation of such acts and in the ruling on their legality”.⁷²⁸ This would again be an indirect impact. In terms of a direct impact, CFR rights have had a huge practical impact on the CJEU case-law, especially since the entry into force of the Lisbon Treaty.

Sommermann⁷²⁹ has offered the following solution concerning the justiciability of values. According to him, values are open legal concepts in which a distinction can be made between a justiciable hard conceptual core (“Begriffskern”) and a non-justiciable soft conceptual periphery (“Begriffshof”). Art 7(1) TEU, for instance, refers to “a clear risk of a serious [!] breach by a Member State of the values referred to in Article 2 [TEU]”. This ‘serious breach’ can be interpreted as referring to the conceptual core of values. Hence, a breach relating only to the periphery of a value cannot lead to an Art 7 TEU proceeding.⁷³⁰

This distinction of core and periphery also has to be seen from the perspective of evolution and the relationship between law and ethics.⁷³¹ Such a development (evolution) will be easier to accept concerning the periphery, but more difficult concerning the core of a value. From a vertical perspective (EU and Member States) and with increasing integration, the conceptual core can grow, while maintaining a certain elasticity due to the changing societal context.⁷³² At the interface of law and ethics, Böckenförde⁷³³ has discussed this distinction of core and periphery concerning human dignity. He has basically accepted a passerelle between law and ethics via opening clauses (‘Schleusenbegriffe’), such as public policy⁷³⁴ (‘öffentliche Ordnung’). Although he accepts that human dignity is an open concept with a certain degree of variation, in his view, this does not apply to the solid core.

The values enshrined in Art 2 TEU can have various implications. In a similar way as mentioned above,⁷³⁵ on a timeline we can distinguish (1) the time before joining the EU, (2) EU membership, as well as (3) the timeframe of a country having left the EU.

The most important implications for a country that (ad 1) wants to join the EU are the requirements of Art 49 TEU, according to which a European State has to respect the values of Art 2 TEU and has to be committed to promote them, to be able to become a member of the Union.⁷³⁶ As mentioned above,⁷³⁷ based on different chapters,⁷³⁸ the Commission “undertakes a very profound screening of the form and functioning of government, of the exercise of the rule of law with all its different facts and of the observation of fundamental rights”.⁷³⁹ Jumping to a country (ad 3) having left the EU, the values of the EU will be binding insofar as they occur in the agreement “setting out the arrangements for [a country’s] withdrawal”, respectively, in the “framework for its future relationship with the Union”, as foreseen in Art 50(2) TEU.⁷⁴⁰

Most questions will arise in relation to (ad 2) the period of upheld EU membership. In this case, we need to distinguish, first, the structural difference of the two sentences of Art 2 TEU,⁷⁴¹ as well as, second, the implications for the EU itself, its Member States and individuals. The two issues are to some extent combined, as the first sentence of Art 2 TEU addresses the EU, which is founded on these values, and the second sentence addresses the level of the Member States, more precisely a society (N.B. singular) in these Member States.

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. 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. (Emphases added.)

According to Sommermann, the reference to ‘societal values’ is to be understood in the sense that the aim both in the Member States and the Union must be to improve the framework conditions for societal values.⁷⁴² According to literature,⁷⁴³ the values of the second sentence cannot be enforced against Member States via the Art 7 TEU procedure (see below). This procedure has mainly a political, but also a legal component, where the ECJ has jurisdiction (Art 269 TFEU) to decide on the legality of an act adopted by the European Council or by the Council, however only regarding procedural aspects of Art 7 TEU. Hence, in this procedure, values can be justiciable in the sense of triggering such a procedure, but with a limited ECJ jurisdiction. As this “nuclear option”⁷⁴⁴ has never been triggered and at the same time come to an end so far, it remains to be seen, how the ECJ will deal with the distinction between the content-related and the procedural perspectives.

While these concepts of the second sentence are sometimes referred to as “valuing features of society”,⁷⁴⁵ Art 2 TEU addresses them as ‘values’.⁷⁴⁶ Nevertheless, despite the terminology of this provision (‘values’), the two sentences have different legal meanings. Let us first turn to the second sentence.

• Pluralism and tolerance are the two values, which can rather give guidance for the interpretation of EU law, and have programmatic character, due to their rather undetermined content. They can neither be invoked at EU level, for instance, in an action for annulment (Art 263 TFEU),⁷⁴⁷ nor can they be invoked in an Art 7 TEU procedure against Member States. The same will hold true for infringement proceedings, initiated by the Commission (Art 258 TFEU) or another Member State (Art 259 TFEU). The only possibility, although not very likely, in all these cases would be a combination with other Art 2 TEU values. Pluralism (of the media) could be an additional ‘argument’ in case of democracy, a first sentence value. The largely undetermined content of both pluralism and tolerance makes it also difficult to have a direct impact not only in the case of the EU, but also in case of individuals. In the latter case, these two values could rather be seen as virtues, which individuals can voluntarily exercise, but cannot be forced to do so.

• A similar analysis applies in case of justice, which has been described as hardly justiciable.⁷⁴⁸ Arguing in an action for annulment (Art 263 TFEU) that EU secondary law contradicts the concept of justice will be very unlikely to be successful,⁷⁴⁹ unless combined with other values, for instance, non-discrimination or the rule of law. This argument also applies in case of Member States, both regarding an Art 7 TEU procedure,⁷⁵⁰ as well as in the case of infringement proceedings. If at all, justice could again be a supporting argument. In case of individuals, justice could also be seen as a virtue.

• Non-discrimination and equality between women and men are less challenging, as besides being a value (Art 2 TEU), they can also be qualified as general principles of EU law and as fundamental rights.⁷⁵¹ In this capacity, they are closely linked to ‘human rights’ addressed in the first sentence. This affects both the EU (e.g., action for annulment), as well as the Member States, however rather in case of infringement proceedings. An Art 7 TEU proceeding solely based on a violation of non-discrimination or equality between women and men would not be very likely. In case of individuals, these two values can become justiciable not only vertically in relation to public authorities (EU and Member States), but horizontally, especially in case of implemented non-discrimination directives. The ECJ, as mentioned above, has answered the question of the horizontal application of Art 21 CFR (non-discrimination) in the affirmative.⁷⁵²

• Solidarity can also be qualified as a general principle of EU law and as a fundamental right, besides being a value. This makes it easier in terms of its justiciability. We have seen solidarity as an argument in an action for annulment of the EU’s ‘relocation decision’. While the Court has referred to the ‘principle’ of solidarity,⁷⁵³ I have argued so far for a broader view of ‘concepts’, comprising various elements that can be qualified as a value, as a (general) principle of EU law, as an EU objective, and/or as a fundamental right. The Court seems to have a clear preference to refer to principles, to avoid the thorny discussion of the justiciability of a value as such, respectively, first vs. second sentence values. In the same relocation case, the Court has applied the principle of solidarity and fair burden sharing (Art 80 TFEU) between Member States.⁷⁵⁴ In the field of energy solidarity, the Court has rejected the German argument that the principle of solidarity is too ‘abstract’, and by referring to its Art 80 TFEU related case-law has confirmed the binding legal effects of Art 194(1) TFEU on both the Member States and institutions of the EU.⁷⁵⁵ Solidarity as a principle can also be invoked in case of infringement proceedings.⁷⁵⁶ Merely the alleged violation of solidarity cannot be the basis for a procedure under Art 7 TEU.⁷⁵⁷ Solidarity between individuals would be an important concept especially in the current pandemic. Call it solidarity or the rule ‘that you are to love your neighbour’,⁷⁵⁸ a ‘spirit’ of solidarity can lead to behaviour that is considerate of fellow human beings. However, this would again rather be a virtue than a justiciable value.

Let us now address the same question regarding those values addressed in the first sentence of Art 2 TEU, on which the EU is founded. As a general observation it can be stated that these first sentence values are binding on the EU in terms of their wording,⁷⁵⁹ but are of course also relevant for the Member States.

• As we have seen so far, human dignity is a concept that fulfils all elements, except for an EU objective. Hence, a value, a human right, respectively, a fundamental right (besides being the basis of fundamental rights), a general principle of law, as well as a principle. In case of the EU, in an action for annulment, human dignity has been an argument to challenge the directive on the legal protection of biotechnological inventions.⁷⁶⁰ In case of Member States, human dignity has sometimes been encapsulated in the legal ‘reason of justification’ of ‘public policy’, which makes it justiciable. While most cases mentioned above were rendered in preliminary ruling procedures, similar questions would be seen similarly also in infringement proceedings. While it would be legally possible, it is less likely and would require a major infringement to trigger an Art 7 TEU procedure. In case of individuals, human dignity can be justiciable as a general principle of EU law (cf. the Omega case), or via various directives comprising this concept (in the field of migration, the services directive, the EU citizens’ directive, the Schengen borders code, to name but a few). Questionable tests to prove an asylum seeker’s sexual orientation have been clearly rejected by the Court as an infringement of human dignity. Hence, also an impact on individuals, respectively, a proof for the justiciability of human dignity.

• The ‘values trinity’ of democracy, the rule of law, and human rights has prominently figured in various documents covered so far.⁷⁶¹ Human rights and the rule of law “cannot be equated” but are “interdependent” and overlap with regard to the requirement of effective legal protection.⁷⁶² These values play an important role at all three levels. In case of the EU, the justiciability is clear from various sources. Early on in Les Verts, the ECJ has stated that the Community (now EU) is “based on the rule of law”.⁷⁶³ Although the EU is sometimes criticised for its democratic deficit, the Court has clearly addressed democracy in terms of the participation of the European Parliament in the legislative process.⁷⁶⁴ Human rights are binding for the EU via Art 51(1) CFR, respectively, Art 6 TEU. In the preliminary ruling-based case Schecke, the Court has declared provisions of EU secondary law as invalid, because of breaching CFR-based rights (especially Art 8, data protection).⁷⁶⁵ The same analysis holds true concerning Member States. In the above-mentioned case of Les Verts, the ECJ has also addressed the Member States, which are bound by the rule of law. The CFR rights via the same Art 51(1) CFR also bind them, although to a smaller extent.⁷⁶⁶ Democracy is binding on the Member States, for instance, in case of municipal elections (Art 20[2] [b] TFEU). Both a directive and Art 40 CFR add up to this concept, making it clearly justiciable.⁷⁶⁷ Individuals can rely on democracy-related rights, for instance, in case of an EU citizens’ initiative (ECI), as further clarified in EU secondary law. As the Court has clarified in Puppinck, “the particular added value of the ECI mechanism resides not in certainty of outcome, but in the possibilities and opportunities that it creates for Union citizens to initiate debate on policy within the EU institutions”.⁷⁶⁸ Human rights are clearly justiciable; the special situation of ‘CFR principles’ has already been mentioned (Art 52[5] CFR). CFR rights can obviously be invoked by individuals in vertical situations in relation to public authorities (EU, Member States). As mentioned above,⁷⁶⁹ the Court has accepted that a CFR provision (Art 21, non-discrimination), which can also be qualified as a ‘a general principle of EU law’ and which is further defined in an EU directive^, can “confer on individuals a right which they may rely on as such in disputes between them [i.e., horizontally] in a field covered by EU law”.⁷⁷⁰ Art 21 CFR also prohibits discrimination due to “membership of a national minority”. Hence, also this value of the first sentence is covered by this analysis. The last value of this trinity, the rule of law, also impacts on individuals. Within the rule of law, AG Bobek has recently analysed the relationship of three provisions concerning ‘judicial independence’, as one element of this value. This concept is linked to Art 19(1) second sentence TEU (effective legal protection), Art 47 CFR (right to an effective remedy and to a fair trial), as well as Art 267 TFEU (preliminary ruling proceeding). As Bobek stated, “there is only one and the same principle of judicial independence”, which, however, can lead to different outcomes, as these three provisions differ in scope and purpose.⁷⁷¹ While Art 19(1) TEU “contains an extraordinary remedy for extraordinary situations” and requires “breaches of a certain seriousness and/or of a systemic nature”, Art 47 CFR “embodies a subjective right of any party to proceedings” and “requires a detailed assessment of all the circumstances that are specific to the case in question”.⁷⁷² In this context, the justiciability of the rule of law and its various elements (legality, legal certainty, prohibition of arbitrariness, effective judicial review, as well as equality before the law), amongst others, takes place via Art 47 CFR.

• As we have seen above,⁷⁷³ equality can be qualified as a value, as a general principle of EU law and a fundamental right (Art 20 CFR). For the relationship between the latter provision and Art 21 CFR (non-discrimination), the author has suggested to see it as two sides of the same coin. This leads to the interesting situation of dealing with a coin that combines two values (respectively, concepts), two (equality and human rights) from the first and one from the second sentence of Art 2 TEU. Following this approach, a similar analysis as mentioned above with regard to non-discrimination (respectively, human rights) applies. Hence, this ‘coin’ affects both the EU (e.g., action for annulment) and the Member States, however rather in case of infringement proceedings. An Art 7 TEU proceeding solely based on a violation of non-discrimination or equality between women and men would not be very likely. In case of individuals, this ‘coin’ can become justiciable not only vertically in relation to public authorities (EU and Member States), but horizontally especially in case of implemented non-discrimination directives, as well as horizontally as confirmed by the ECJ with regard to Art 21 CFR (non-discrimination). The Court’s reluctance to apply Art 20 CFR (equality before the law) to develop new criteria (e.g., obesity) beyond existing EU primary and secondary law has already been mentioned.⁷⁷⁴

• The last first sentence value of freedom proves that a generalising analysis of first vs. second sentence values is not differentiated enough. First, it much depends on which freedom one has in mind, as freedom as a value is not defined. As covered above, one could think about various possible emanations, the AFSJ, or the economic fundamental freedoms of the EU’s internal market. In case of the EU, it is not likely that a justiciable version of the value of freedom could be successfully invoked in an action for annulment of EU secondary law. If at all, this could only be the case if using freedom as a supporting argument. As mentioned above, freedom can rather give “guidance for the interpretation and development of EU law”⁷⁷⁵ and has not been qualified as a general principle of EU law.⁷⁷⁶ For the same reasons, freedom on its own cannot be seen as justiciable in case of Member States, both with regard to Art 7 TEU, as well as in the case of infringement proceedings. Likewise, freedom could be a supporting argument alongside other justiciable values. Finally, in the case of individuals, the same analysis applies, i.e., as a supplementary argument, unless freedom is taken as a fundamental right or as an economic fundamental freedom. In the latter two cases, justiciability can clearly be confirmed.

These key findings can be summarised as follows:

According to literature, the second sentence values cannot be enforced via the political Art 7 TEU procedure (see below).⁷⁷⁷ From the first sentence, one might have to add freedom.

In law, justice, pluralism, and tolerance have been described as hardly justiciable, hence three second sentence values.⁷⁷⁸ The same analysis applies for the first sentence value of freedom, unless seen as an economic fundamental freedom or a fundamental right. However, one concept (e.g., justice) can be twinned with another one (e.g., rule of law) to become effective, as can be seen in recent case-law.⁷⁷⁹

The first sentence values of human dignity, democracy, equality, the rule of law and respect for human rights (including those of minorities) are justiciable. Either in themselves, or as concepts, due to the dual or multiple qualification as principles, general principles of law, etc. The second sentence values of non-discrimination, solidarity and equality between women and men are justiciable, as they can also be qualified as (general) principles (of law). As mentioned in an opinion on energy solidarity, “even though the principle of solidarity is multifaceted and deployed at different levels, its importance in primary law as a value and an objective in the process of European integration^[…] is such that it may be regarded as significant enough to create legal consequences”.⁷⁸⁰

This question of the justiciability of EU values is closely related to how much a concept is or is not determined content-wise. Non-discrimination, referred to in this book as a ‘key principle’ of EU law is much determined, based on EU secondary law and extensive case-law. In case of solidarity, one might assume less clarification, but as we have seen above, we have found quite some elucidation. Tolerance and pluralism figure rather at the end of those concepts whose content is sufficiently determined. In addition to this question of the degree of determination of the content of a certain concept, one can add the approach of a justiciable hard conceptual core (“Begriffskern”) and a non-justiciable soft conceptual periphery (“Begriffshof”), as mentioned by Sommermann.⁷⁸¹

A common phenomenon of enforcing EU values is the approach to draw on their parallel legal quality as principles. We have seen this in case of solidarity in the energy sector,⁷⁸² as well as in the case of democracy and equality in ‘rule of law’-proceedings. In the latter case, Hungary had tried to challenge an EP resolution in an Art 7 TEU proceeding. The main question centred on Art 354 TFEU, which stipulates the voting requirements (not counting abstentions as votes cast when adopting the contested resolution). The ECJ stated that “Article 354 TFEU, read in the light of the principle [!] of democracy and the principle [!] of equal treatment, it should be noted that those two principles are values [!] on which the European Union is founded, in accordance with Article 2 TEU”.⁷⁸³ In the end, the Court rejected both arguments of Hungary and neither saw an infringement of the principle of democracy, nor of the principle of equality.⁷⁸⁴

Besides these Art 2 TEU values, soft-law-based values as in the case of the 2006 Health Conclusions can obviously not be justiciable in a direct way. If considered in the interpretation of legally binding EU documents, they can have an indirect impact. In the context of a sectoral policy (social policy), the Court has argued that the “fact that the objectives of [such a provision] are in the nature of a programme does not mean that they are deprived of any legal effect”, as they “constitute an important aid, in particular for the interpretation of other provisions of the Treaty and of secondary […] legislation”.⁷⁸⁵

Two of the elements already mentioned,⁷⁸⁶ are to be explored in more detail, the sanctions procedure of Art 7 TEU, as well as the ‘conditionality’ mechanism.

The procedure of Art 7 TEU has been a reaction to the Austrian government in 2000,⁷⁸⁷ and can be qualified as mainly a political tool, as the key involved EU institutions are the Council (of Ministers) and the European Council.

In a first step (‘risk of a serious breach’), the Council “may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2” (para 1). The initiative can come from several EU institutions⁷⁸⁸ and requires a quite high threshold in the Council (“acting by a majority of four fifths of its members”), in addition to the prior “consent” of the European Parliament. In terms of the already mentioned⁷⁸⁹ ‘audiatur et altera pars’ principle, before “making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure”. Another procedural safeguard can be found in the last sentence of para 1, according to which the Council “shall regularly verify that the grounds on which such a determination was made continue to apply”.

In a second step (‘existence of a serious and persistent breach’), the European Council “may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2” (para 2). The initiative can come from two EU institutions⁷⁹⁰ and requires an even higher threshold, that is to say unanimity (!) in the European Council, besides again the prior “consent” of the European Parliament. In addition to this approval of the EP, in terms of procedural safeguard, again this decision can only be taken “after inviting the Member State in question to submit its observations”. Both this unanimity in the European Council (second step), as well as the “majority of four fifths of its members” in the Council (first step) are the reasons why Art 7 TEU, which has been referred to as a “nuclear option”,⁷⁹¹ is very difficult to trigger. This is especially true if two procedures are initiated against two countries (e.g., Poland⁷⁹² and Hungary⁷⁹³), which will mutually block the decision (unanimity⁷⁹⁴) in the European Council concerning the other country. Of course, the same would apply, if there would be only one procedure against one country that is supported by at least one other Member State.

In a third step (‘sanctions’) and based on⁷⁹⁵ the second step of the European Council, the ball is then back in the court of the Council (of Ministers). For deciding on the sanctions, only a qualified majority is required in the Council (para 3). A proposed voting in the Council, the latter “may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council”. As always in such a situation, the tricky question is to design tailored sanctions that affect the right and not the wrong addresses. Former ECJ judge Maria Berger mentions that some sanctions against Austria at the time⁷⁹⁶ were not only “ridiculous, but also counterproductive in the sense that the Austrian population rallied behind the then ÖVP/FPÖ government and the then Austrian Chancellor could credibly threaten a referendum on Austria’s exit from the EU”.⁷⁹⁷ A similar challenge arises in case of sanctions against third countries. Therefore, that is why in this decision on sanctions according to para 3, the Council “shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons”. These possible sanctions do explicitly not comprise the possibility to exclude a Member State from the EU. What is explicitly foreseen is the fact that “obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.”

In a fourth step (‘amend or revoke’), it is again the Council that can decided according to the same requirement (qualified majority), “subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed” (para 4).

As Art 7(5) TEU clarifies, “[t]he voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of this Article are laid down in [Art 354 TFEU]”. This essentially means that the state in question does not vote. Based on the wording of this article, Griller⁷⁹⁸ has concluded that it is not possible to join two proceedings into one, to overcome the above-mentioned blocking situation.

To summarise, Art 7 TEU is mainly a political procedure, however also with some legal components, as the ECJ has limited jurisdiction for procedural questions (“solely of the procedural stipulations”, Art 269 TFEU). Likewise, the sanctions (suspension voting or other rights) clearly pertain to the legal⁷⁹⁹ sphere. Besides the political vs. legal qualification, one can clearly state that Art 7 TEU so far has not proven successful. Referring to Art 7 TEU as the ‘nuclear option’ can refer both to the idea that it can be seen as the last resort, as well as to these high thresholds for decision making both in the Council (four fifths majority, for the first step), as well as in the European Council (unanimity, for the second step). The relationship between Art 7 TEU and the infringement proceedings of Art 258 TFEU (EC vs. MS) and Art 259 TFEU (MS vs. MS) has been discussed regarding a possible parallel application. Griller has argued convincingly that major (systematic) breaches can be the object of an Art 7 TEU procedure, single elements can be part of an infringement proceeding.⁸⁰⁰

Based on the afore-mentioned idea that the EU is more than a cash machine, this led to the idea of protecting the EU’s budget from rule of law breaches (the so-called ‘conditionality’ mechanism of Regulation 2020/2092⁸⁰¹), which has been viewed quite critically in literature.⁸⁰² From the different values of Art 2 TEU, this mechanism only applies for one of them, the ‘rule of law’. Despite this focus, Art 2 (a) takes a broader approach by emphasising that the “rule of law shall be understood having regard to the other [!] Union values and principles enshrined in Article 2 TEU”. The link of the rule of law to budgetary issues is established via “the principles of sound financial management”, for which the “respect for the rule of law is an essential precondition” (recital 7). This regulation lists various other measures supporting respect for the rule of law (recital 14) and is based on the relevant ECJ case-law (recital 10) and even provides a definition⁸⁰³ of the rule of law, which corresponds to what has been mentioned above.⁸⁰⁴ The procedure⁸⁰⁵ shall be “objective, impartial and fair, and should take into account relevant information from available sources and recognised institutions” (recital 16) and the measures adopted have to respect the principle of proportionality (recital 18). Sanctions must be regularly monitored by the Commission and the situation eventually has to be reassessed (recital 24). It is only consistent, that some concepts of Art 2 TEU are also mentioned in this regulation for the “procedure for adopting and lifting the measures”, namely, “the principles of objectivity, non-discrimination and equal treatment of Member States”, besides a “non-partisan and evidence-based approach” (recital 26). Like in case of Art 7 TEU, the impact on individuals (“potential impact on final recipients and beneficiaries”) must be taken into account (recital 19).⁸⁰⁶ As Tridimas emphasises, the regulation refers to ‘breaches’ (plural), which “may suggest that a single breach does not suffice”.⁸⁰⁷

According to Art 288(2) TFEU, a regulation has general application, is binding in its entirety, and is directly applicable in all Member States. The Commission has announced to issue guidelines, which has been criticised by the European Parliament as not being necessary for the application of this regulation.⁸⁰⁸ Besides the more general issue of hard- (EU regulation) vs. soft-law (these guidelines), controversy centres on a possible delay of such a procedure. Based on the European Council Conclusion from December 2020⁸⁰⁹ the Commission wants to issue the guidelines only after (!) an introduced action for annulment regarding the regulation. Parliament has criticised this delay and had announced⁸¹⁰ an action for failure to act (Art 265 TFEU) against the Commission. Tridimas aptly states that such guidelines can provide more clarity (transparency, foreseeability, consistency), but cannot be seen as a conditio sine qua non for the application of the regulation.⁸¹¹ In its recent rule of law report, the Commission has clarified that the “Regulation applies as of 1 January 2021” and has committed itself to the fact that “any breach that occurs from that day onwards will be covered”.⁸¹²

Art 2 TEU can become justiciable both in combination with other provisions, as well as indirectly via a value-conform interpretation of other provisions of EU or of national law. Both questions will be featured (in Chap. 4), after the next question of possible restrictions of values.

3.5.2 Restrictions of Values

After justiciability, one question that remains is the possibility of restrictions on the values of the EU. A common pattern in law is the two-step approach of a principle, which can be subject to certain exceptions. The fundamental freedoms of the internal market represent principles, from which exceptions may be made given a justifiable reason.

Human dignity as a fundamental right (Art 1 CFR) is qualified as “inviolable”. This would imply that no restrictions could take place. However, a too strict understanding could lead to a situation where any impact on human dignity as a possibly absolute right would lead to an infringement. Bührer has qualified human dignity in the context of the patentability of biotechnological inventions as an absolute character,⁸¹³ although one must keep in mind the wording of this particular directive in this field. We have also seen human dignity as an argument to qualify Art 4 CFR (no torture) as an absolute right,⁸¹⁴ comparable to ECtHR case-law. While the wording of Art 1 CFR is a strong argument for human dignity as a non-restrictable concept,⁸¹⁵ the preferable solution is to see human dignity as an inalienable right, which is only infringed if a certain threshold is reached. Instead of the typical principle and exception solution, the same solution (i.e., possibility to sort out certain cases) can be reached by deciding if a case needs to be classified below (i.e., no infringement) or above (i.e., infringement) the threshold. This approach would be in line with the above-mentioned⁸¹⁶ case where the Court has held that respect for human dignity leads to a minimum standard, in case of “a person wholly dependent on State support finding himself, irrespective of his wishes and personal choices, in a situation of extreme material poverty”.⁸¹⁷ A minor impact will not affect human dignity, however a situation, which “does not allow [a person] to meet his most basic [!] needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his physical or mental health or puts him in a state of degradation [is] incompatible with human dignity”.⁸¹⁸

Fundamental or human rights, including those of minorities, can be restricted, unless they are qualified as absolute rights. In the famous Gäfgen case, the ECtHR has qualified the right not to be tortured (Art 3 ECHR) as an absolute right.⁸¹⁹ Most rights are relative rights, which can be restricted in accordance with the requirements of Art 52(1) CFR. According to this provision, “[a]ny limitation on the exercise of the rights and freedoms recognised by this Charter must be [1.] provided for by law and [2.] respect the essence of those rights and freedoms”. Additionally, according to “[3.] the principle of proportionality, limitations may be made only if they are necessary and genuinely meet [4.] objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others”.

We have seen that a value such as freedom cannot be unlimited. Based on the Kantian idea that one right or freedom ends, where another right or freedom begins, freedom is not unlimited and can conflict, for instance, with solidarity. There is no unlimited freedom of human behaviour in a pandemic and a community will only be able to overcome these challenges if individuals display a sense of solidarity with the vulnerable. Freedom in terms of a human right can be limited, as explicitly provided, for instance, in Art 5 ECHR (lawful detention after conviction, etc.). While these exceptions do not figure in Art 6 CFR (right to liberty and security), the CFR explanations do refer to Art 5 ECHR. Likewise, the economic fundamental freedoms can be limited by the well-known ‘reasons of justification’.

Democracy has various elements, representative and participatory ones. Both can be restricted. Art 3 of Prot No 1 ECHR provides for “free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”. As the ECtHR has held, “[a]lthough those rights are important, they are not [!] absolute” and that “there is room for implied limitations”.⁸²⁰ Hence, a temporary suspension of voting rights can be possible. In case of participatory democracy, the high rejection rate⁸²¹ of the EU citizens’ initiative clearly shows its limitations.

We have seen above that equality and non-discrimination are two sides of the same coin. Likewise, we have seen that there can be exceptions to these values. The same applies for equality between women and men, where positive discrimination (or affirmative action⁸²²) can be seen as one example.

The rule of law, justice and solidarity are ideals that should be attained. As mentioned above,⁸²³ justice and solidarity can also be seen as two sides of a coin. For all three values, the question is rather if these requirements are fulfilled, not if there can be exceptions. A legal system and society should strive for the goal of justice, as well as for solidarity. The legal system shall respect the requirements of the rule of law.

Pluralism and tolerance are broad concepts. For the same reasons why these values are not justiciable, the question of whether there can be restrictions on these broad concepts is superfluous.

Besides this question of possible restrictions, the other question covered in Sect. 3.5 (justiciability) is also linked to the relationship between Art 2 TEU and other provisions of EU primary or secondary law, including the CFR. This leads us to the next topic of relations in Chap. 4.

3.6 Lessons Learned

In addition to summaries of parts of this chapter (see Sect. 3.2.1.14 for the scope ratione materiae, and within Sect. 3.5.1), in the following the key ideas of the whole chapter shall be shortly highlighted and linked to the next chapters.

In terms of the scope ratione temporis we have seen the ‘living instrument’ character of both the CFR and EU values and the corresponding necessity to take into account changes in terms of both society and legislation. We have also seen a shift from a mainly anthropocentric to a more bio-centric approach (see infra Sects. 4.3.2.4 and 5.2). This ‘living instrument’ character is essential if abstract values shall be able to provide answers to new challenges, such as the pandemic, climate change (on the idea of precaution, see Sect. 4.3.2.3), or digitalisation (see Sect. 4.3.2).

An analysis of the various values (scope ratione materiae) has revealed the various relations between the values and other provisions of EU law. Human dignity has been qualified as the real basis of fundamental (or human) rights. In case of human rights (on vulnerable persons, see Sect. 4.3.2.1), we have seen the close connection between Art 2 TEU and the CFR, both in terms of structure and content. We have also seen the relations between justice and the rule of law, where the conditionality mechanism is an important reaction to the inadequate procedure of Art 7 TEU. Two values that are also closely related are equality and non-discrimination, which can be seen as two sides of the same coin.

From solidarity we can take-away the idea of going to a meta-level by referring to ‘concepts’, due to the manifold elements. For instance, solidarity can have a political, legal, ethical and social dimension. It can apply at various levels, i.e. between Member States, between institutions, between peoples or generations, etc. Underneath the meta-level notion of a ‘concept’ we can accommodate different elements of different legal quality, namely rather abstract values, more concrete legal principles,⁸²⁴ and finally ‘CFR principles’ that can be qualified as less in the sense of ‘legal value’. Both EU values and ‘CFR principles’ can have an indirect impact in terms of contributing to the interpretation of other provisions of EU law.

In the context of solidarity, we have also seen the idea of addressing the necessity of balance (see Sect. 4.3.2.5). Likewise, another take-away is the combination of rights and obligations, where it remains to be seen, if this idea can also be transferred to human rights, complementing existing human rights with human obligations (see Sects. 4.3.2.2 and 5.3). We have also seen that values cannot be unlimited, as in case of freedom that necessarily has to be limited in a community (see Sect. 5.3) and therefore has to end, where the freedom of the next person begins.

Within the values of Art 2 TEU, we have also seen the idea of a minimum approach. In the spirit of the EU’s motto (‘united in diversity’), this means a more unified approach at the core, as well as more diversity at the periphery of a concept.

Outside Art 2 TEU, we have seen animal welfare as a new value. Besides those general values of Art 2 TEU, we have also seen these values in specific fields, as well as specific values. While sometimes not legally binding, this approach has the advantage of providing more clarification in a certain sector.

The scope ratione personae can briefly be summarised as entitling human beings (only rarely EU citizens only), and binding public authorities (EU and Member States). Individuals can be affected (in terms of both rights and obligations) via interpretation of other norms, especially EU Secondary law (on values and virtues, see Sect. 5.4).

The implications of EU values have to be seen in a differentiated manner with regard to the first vs. the second sentence of Art 2 TEU, as the values of the second sentence and freedom cannot be enforced via Art 7 TEU. In this context of enforcement, the above-mentioned parallel legal quality as values and principles can also be of relevance, as seen in the case of solidarity, democracy and equality. Justice, pluralism and tolerance are hardly justiciable; however, one concept (e.g., justice) can be linked to another one (e.g., the rule of law) to become effective. The justiciability of values is also related to the extent of determination of their content. Values can also be restricted (e.g., freedom, non-discrimination) in case of human dignity, it is advisable to quality an infringement only above a certain threshold.