This chapter addresses various dimensions of relations. These comprise the relations of values to each other (for instance the question of the ranking of values), the relation to other provisions of EU law (covering both primary and secondary EU law), as well as the relation to other concepts. The latter category comprises the relation of values to economic and political objectives, as well as the relation of values to selected (legal and ethical) principles. These selected (legal and ethical) principles comprise the protection of vulnerable people, responsibility (including the question of human rights and human obligations), precaution, sustainability, as well as proportionality and balance.
We have already seen so far that values (e.g., those of Art 2 TEU) cannot be seen in an isolated way. Various relations have already been identified, which shall be further elaborated in the following. These relations concern first the relationship of the values to each other (Sect. 4.1), including the ranking of values, second the relation to other provisions of EU law (Sect. 4.2), covering both primary and secondary EU law, as well as third the relation to other concepts (Sect 4.3).
This section is strongly based on the previous one (Chap. 3), having covered the four scopes (ratione temporis, materiae, personae and limitis) and the implications of EU values (including justiciability and restrictions). For this reason, there will be less cross-references as it should be clear, where the relevant information can be found.
4.1 Relation Values to Each Other
4.1.1 General Observations
The relationship of values,Footnote 1 including possible conflicts, can be examined on various levels. At (1) EU level, these values may conflict with each other, as their application can lead to mutually exclusive outcomes. A value conflict can also occur from (2) a vertical perspective between the EU and the national level. Values might be interpreted differently at EU level compared to a certain Member State. Finally, (3) from a horizontal perspective, there might be a conflict of values, for instance, again a different interpretation, between two or more Member States. The cases mentioned so-far (ad 2) regarding the ‘rule of law’ often displayed a different understanding or interpretation of various values between the EU (e.g., the Commission as a ‘guardian of the treaties’, or in the end the CJEU), and single Member States, such as Poland or Hungary. Different understanding of values also occurred (ad 3) between different Member States relating to the concept of ‘mutual trust’, which is jeopardised if values are not respected or interpreted differently around Europe. In the following, the focus will be (ad 1) on the general relation of values.
Besides these different levels, values can either mutually strengthen or weaken each other, eventually leading to an above-mentioned situation of conflict. The ‘values trinity’ of democracy, the rule of law,Footnote 2 and human rights would basically be an example of values mutually strengthening each other.Footnote 3
Two other values potentially strengthening each other would be human dignity, the corner-stone of the EU’s values and the basis for fundamental rights, and equality. The combination of these two values has been referred to as “égale dignité”.Footnote 4 This concept is also known from ECtHR case-law, where the ECtHR has stated that “tolerance and respect for the equal dignity [!] of all human beings constitute the foundations of a democratic, pluralistic society”.Footnote 5 This relationship between dignity and equality, embodied in this concept of ‘égale dignité’, was also addressed by AG Stix-Hackl in case Omega. As she mentioned, “the concept of the legal equality of all is also inherent in the idea of human rights in general and human dignity in particular, so that reference is also often made of the phrase ‘égale dignité’ which embraces both concepts”.Footnote 6 Berka mentions a possible consequence of this concept: “the personal equality of all human beings, which is based on human dignity, and with which certain forms of discrimination are absolutely incompatible”.Footnote 7 Both values of human dignity and equality can be seen as self-standing values, which however can also be combined and eventually strengthen each other. Human dignity, as a ‘super-value’ can also strengthen other values, emphasising the inherent value of a human being.
Another relationship of two values strengthening each other, is the one of justiceFootnote 8 in relation to the rule of law. In recent case-law concerning the rule of law and the independence of the (national) judiciary branch of power, the ECJ, when referring to the values of Art 2 TEU, has also referred to justice, most likely to emphasise the importance of the rule of law: “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”.Footnote 9 Justice would basically also support equality, including gender equality, and (the other side of the same coin of) non-discrimination.
While democracy, as part of the values trinity’ besides the rule of law and human rights, can strengthen other values, a democratic process can also lead to a weakening of other values. Democracy can be described as a system where people take decisions based on a majority principle, as opposed to an oligarchy or dictatorship, where only a small minority decides, or one person only. Democracy can conflict with fundamental or human rights, if these rights are not respected. A possible solution will often be found in the hierarchical structure of a legal system, if fundamental rights are part of constitutional law that must be respected by ordinary law. Of course, a democratic process can also lead to a change of constitutional law (e.g., a two-thirds majority or a referendum), which can lead to a formal amendment of fundamental rights. However, as aptly stated by the Commission’s First Vice-President Timmermans: “you cannot use the argument of a democratic majority – even if it is a two-thirds majority – to weaken the rules based on the rule of law or human rights”.Footnote 10 One human right that is particularly vulnerable to decisions of a majority are the rights of minorities. This example shows the need for a balancing of those two values to safeguard both the value of decisions taken by majority (democracy), as well as the value of legitimate rights of minorities. Pluralism and tolerance would be two values that can be seen to support the rights of minorities. A democratic process can also lead to problems regarding the rule of law, as in the case of Poland.Footnote 11 The same is true with regard to human dignity and (other) human rights, which are not negotiable, as AG Stix-Hackl stated in Omega. “The right to respect for human rights runs counter in this respect to the idea that human regard is negotiable by the State, the people and the majority – and therefore counter to the idea that the individual is identified according to the community and considered to be a function thereof”.Footnote 12 Democracy obviously can also lead to a conflict with freedom, (gender) equality, pluralism, non-discrimination, tolerance, justice, and solidarity.
Another value that can weaken other values is freedom. According to Kant, the own rightFootnote 13 respectively, freedomFootnote 14 ends, where the right or the 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.Footnote 15 The freedom of one person cannot be interpreted as including freedom to breach the freedom of another person, as this is an inherent limitation of this concept of freedom. There cannot be a so-called freedom not to wear facemask during a pandemic, without infringing the rights and freedoms of other persons, which might be exposed to a communicable disease. Freedom can clash with justice, where Hermerén mentions the ‘freedom to gain wealth’Footnote 16 vs. distributive justice.Footnote 17 Freedom can also conflict with solidarity. To return to the example of the coronavirus pandemic, even if a person is male, healthy and economically well of, (a virtue of) solidarity can lead to a behaviour of taking certain precautions, such as wearing facemask, getting vaccinated, etc., knowing that the pandemic is a serious threat to vulnerable persons. Vulnerability in this regard can refer to women, who are economically and socially more affected by the related measures taken in this pandemic (lockdowns, insecure job situation, home schooling, etc.). Likewise, other people can be economically vulnerable (the poor, or again people with insecure jobs), as well as people who are vulnerable regarding their health (elderly people, or those with an immunosuppression). A very emotional topic is the one of mandatory vaccination, knowing that vaccination is one effective measure in this pandemic. In the context of compulsory vaccination, the ECtHR has emphasised “the value of social solidarity [!], the purpose of the duty being to protect the health of all members of society, particularly those who are especially vulnerable with respect to certain diseases and on whose behalf the remainder of the population is asked to assume a minimum risk in the form of vaccination”.Footnote 18 Especially, the latter situation of the relationship of freedom vs. (social) solidarity leads us to the raking of values.
4.1.2 Ranking of Values
Suppose there is a society where economic growth and freedom of research is put on the top of the ranking list and human dignity, integrity, safety and individual autonomy at the bottom. This ranking order characterizes one type of society. But if the order is reversed, and integrity, human dignity, safety and autonomy are placed on top and freedom of research and economic growth at the bottom, a different society is characterized.—Hermerén (2006, p. 21).
As stated in the ‘conditionality regulation’, “there is no hierarchy among Union values”.Footnote 19 Likewise, Habermas points out that “no value can inherently claim an unconditional primacy over other values”.Footnote 20 While this formal analysis is to be agreed with, there is also a substantive perspective. As mentioned above,Footnote 21 human dignity a ‘super-value’ can be seen as of supreme importance. Human dignity describes the anthropocentric approach, also linked to the “humanist inheritance of Europe” (recital 2 TEU) and can be qualified as “the real basis [!] of fundamental rights”.Footnote 22
Hermerén mentions that many of the values found in Europe also play an important role elsewhere in the world. However, “[i]f indeed there is a distinctive European (approach to) ethics, it has to do with the ranking order of the values”.Footnote 23 The relationship of values is also complex because it is “dynamic and not static”.Footnote 24 Likewise, a ranking of values can differ “between cultures”.Footnote 25 This is reminiscent of morality, which also differs regarding time, location and culture. Another question is whether there is only one ranking order in Europe, or whether there are several ones. According to Hermerén, this “depends also on what level of precision is chosen and on how the values are interpreted”.Footnote 26 Hermerén provides a good example for this precision of values from the field of bioethics. “For example, in the Member States of the EU there is probably common [!] agreement that the human embryo deserves protection with reference to the value of human dignity. But ‘embryo’ is defined somewhat differently [!] in the legislations of various Member States, and the protection offered also differs. So the more precisely the key terms are defined and the more clearly the values are stated, the more likely it is that differences between ranking orders in Europe will be found. But these differences could be localised in a spectrum that still is different from what is to be found in the ranking orders of other cultures.”Footnote 27 Thus, in some countries the protection of the embryo might be ranked higher (he mentions Malta, Austria or Germany), while other countries might rank medical research higher (here he mentions, the UK, Sweden Belgium and the Netherlands).
However, even in the same country different ranking orders might exist. He refers to autonomy (which can be linked to freedom), which might be ranked higher in case of the autonomy of women and the issue of abortion, as opposed to patients refusing to inform their partners about their HIV/AIDS situation. Consequently, one value can be ranked differently even in one country, given the concrete background, respectively, the different challenges faced.Footnote 28
Hermerén concludes that it is difficult to provide a final answer to this question of one (or more) ranking order(s).Footnote 29 Such a ranking order can either be established for the EU values in general, that is to say, without considering the specific field of application, or for a specific field. In the specific situation of regenerative medicine, Hermerén has suggested the principles of precaution and proportionality as to ‘guide the decision-making’ in case of a possible clash of values.Footnote 30 Nevertheless, as he aptly states, the way, how values are ranked has to be open and transparent.Footnote 31 He is also right in suggesting an “enlightened and informed debate [!] about the interpretation, ranking order and implementation of what we take to be the essential European values and how they are to be protected”.Footnote 32 Hermerén himself does not offer a “particular European ranking order of values”, although he admits, “solidarity would be one of the top values in such a hierarchy”.Footnote 33
The ranking of values is one issue, and as we have seen, it makes a difference if you place (individual) freedom, or justice and solidarity higher in this hierarchy. However, another approach is to see two values as equal in hierarchy and try to balance them. This approach is well-known from potential conflicts of fundamental rights. The ECJ has referred to the “need to reconcile the requirements of the protection of those various rights and principles at issue, striking a fair balance [!] between them”.Footnote 34 The same approach was chosen for a conflict of an economic fundamental freedom (free movement of products) and two fundamental rights (the freedom of speech and assembly), in the famous Schmidberger case. In this Austrian case, locals demonstrated on a motorway against increasing traffic and transit, leading to health and environmental damages. Both the free movement of products (Art 34 TFEU), as well as the fundamental rights (formerly general principles of EU law, now also CFR) are primary EU law. Therefore, the Court opted for a balancing approach, according to which “the interests involved must be weighed having regard to all the circumstances of the case in order to determine whether a fair balance [!] was struck between those interests”.Footnote 35
Are there limitations to such a balancing approach? Yes, there are. According to Art 52(1) CFR, “[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. Subject 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”.Footnote 36 Consequently, such a balancing approach has to respect the essence (ad 2) of these values.
In summary, the abstract character of values that is often seen as a disadvantage can conversely offer the possibility of various ranking orders that can be combined in case of less precise values. Hermerén offers another example of the Oviedo Convention,Footnote 37 where in the drafting process “it was deliberately left open when human life begins”,Footnote 38 knowing that no consensus exists in this regard. Neither between countries, nor in a single country. Human dignity, as the ‘super-value’, is also quite abstract. Maybe this is precisely the reason, why this reason can be applied to a numerous different situations. From a formal perspective, all values of Art 2 TEU are of equal value. One difference (although not a formal ranking) that can be derived from Art 2 TEU is first sentence vs. second sentence value, as second sentence values (and freedom) cannot be enforced via Art 7 TEU. A ranking of values should not be seen in a formal, but in a substantive way. Additionally, on a horizontal level, such a preference should be seen as a force that then pulls in one direction rather than the other, not as a primacy as we know it between EU law and national law. As Sommermann, has emphasised “one value must not [!] be systematically given primacy over another value, but a solution must be sought on a case-by-case basis, taking into account the varying intensity of the affectedness of the values involved”.Footnote 39 This goes in a similar direction as expressed by Habermas, according to whom “values must be brought into a transitive order with other values on a case-by-case basis”.Footnote 40 Hence, the preferred approach should be such a combination of a ranking order to be elaborated on the basis of a dialogue, as well as the Court’s balancingFootnote 41 approach. The first can also be subject to the current ‘Conference on the Future of Europe’. The latter can take place at EU level, mainly in CJEU case-law. However, such a balancing can also occur at national level.
4.1.3 Partially at National Level
In the first Jean Monnet book, I have argued to also “embrace some ideas of ‘minimal ethics’”, an approach that can also be found in Art 6 of the directiveFootnote 42 on the legal protection of biotechnological inventions.Footnote 43 While the EU should clearly strive for uniformity also in the case of the ‘common values’, following its motto of ‘united in diversity’, a certain diversity must be accepted.Footnote 44 Amongst others, this diversity approach can relate to a reconciliation, taking place at national level.
In one of the many cases decided by the Court since 2017 at the interface of EU law and religion, the Court recently had to decide on the third case concerning the slaughtering of animals.Footnote 45 As the Court has held, “the principle of prior stunning […] 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”.Footnote 46 Based on the EU regulationFootnote 47 in this field, the Court has stated that “the regulation does not itself effect the necessary reconciliation [!] between animal welfare and the freedom to manifest religion, but merely provides a framework for the reconciliation which Member States [!] must achieve between those two values”.Footnote 48
What does this quote mean for our topic? First, based on the EU regulation in this field, this is an example of some diversity in case of conflicting values. Second, the above-mentioned approach of balancing fundamental rights amongst each other, as well as in the case of economic fundamental freedoms vs. fundamental rights, has also been applied to two values, animal welfare on the one side, and the freedom of religion as another value, via the value of human rights as mentioned in the first sentence of Art 2 TEU. Third, an analysis of the relevant EU secondary law will answer the question if the balancing can take place at national level (more diversity) or should rather take place at EU level (more uniformity). In the most recent case of religious signs at work, the Court has referred to Directive 2000/78,Footnote 49 which shows that “the EU legislature did not itself effect the necessary reconciliation between the freedom of thought, conscience and religion and the legitimate aims that may be invoked in order to justify unequal treatment, […] but left it to the Member States [!] and their courts to achieve that reconciliation”.Footnote 50 Taking EU (secondary) law as an indication for where value conflicts need to be resolved goes in a similar direction as the first Jean Monnet book. There I have argued that “[b]ased on the vertical distribution of competences in the EU, one can assume in case of doubt that the legal competence also includes the competence for ethical questions”.Footnote 51
More broadly, at the interface of EU law and the national level, one must differentiate different scenarios. First, a situation (a) of referral, second a situation (b) of mutual influence, as well as a situation (c) of conflict.
These examples of EU (secondary) law referring for the reconciliation of different values to the national level pertain (ad a) to the first category. Besides such a more or less explicit reference, values at EU and at national level will always (ad b) mutually influence each other (second category). EU values did not come out of nowhere, but were influenced by national constitutional law. On the other hand, EU values as stated in Art 2 TEU and as further enriched by CJEU case-law have an influence on national law via the primacy of EU law (see also below). As Calliess aptly points out, despite their linkage (“Rückkoppelung”) to national values, European values have their own and independent content.Footnote 52 High lightening the interconnectedness and mutual influence of values at the European and national level, this corresponds to what Tridimas has described as the ‘dialectical relationship’ between national law contributing to the shaping of general principles of EU law, which then again feed back into national law via national courts.Footnote 53 A mutually fertilising relationship, so to speak, in this vertical relationship.
Turning to the third category (ad c), as mentioned above,Footnote 54 value conflicts can occur at different levels, i.e., at (1) EU level, from (2) a vertical perspective between the EU and the national level, or (3) at a horizontal level between two or more Member States.Footnote 55 Calliess argues that a vertical conflict of values may be resolved in the sense of the primacy of EU law, only if the proper functioning (“Funktionsfähigkeit”) of the EU is put in question. This is the case if the core of values (“Wertekern”) is violated, but not only if the periphery of this concept (“Wertehof”) is affected (cf. the above-mentioned ‘essence’ mentioned in Art 52 CFR). In the latter situation, the principle of seeking concordance (“Konkordanzsuche”)—or one could also say ‘balancing’—applies.Footnote 56 In the context of 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.Footnote 57 Therefore, one can refer to Art 2 TEU as following only a minimum approach,Footnote 58 which is reminiscent the above-mentioned approach of ‘minimal ethics’.Footnote 59
To summarise, more uniformity (defined at EU level) in case of the core (or essence) of EU values, more flexibility (or diversity at national level) at the periphery.
4.2 Relation Art 2 TEU and Other Provisions of EU Law, Etc.
The broadest relation of Art 2 TEU and other provisions of EU law has been established in a case concerning the Polish disciplinary regime applicable to judges. As the Court has held, “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”.Footnote 60 This is the broadest link possible, which, at the same time, proves the importance of common values for the European integration process.
4.2.1 Art 2 TEU and Other TEU and TFEU Articles
Various provisions of the EU treaties are closely connected to the values enshrined in Art 2 TEU. Most provisions strengthen these common values, on the other side there is one provision where this is not necessarily the case.
To start with the latter category (not strengthening), according to Art 4(2) TEU, the EU shall not only respect the equality of Member States before the Treaties, but also their ‘national identities’.
This concept of national identities of Member States is further clarified in Art 4(2) TEU as an identity “inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government”. Additionally, the Union shall respect the Member States’ “essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security”. National security is explicitly named as one example that “remains the sole responsibility of each Member State”.
The national identity of Member States is also addressed in recital 3 CFR, according to which the “Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organisation of their public authorities at national, regional and local levels” (emphases added).
Besides this identity of Member States, the identity of the EU is addressed in the context of the CFSP (recital 11 TEUFootnote 61) and can be seen as implicitly covered in Art 2 TEU, as also mentioned in the aforementioned recital 3 CFR. In CJEU case-law, the EU identity has been emphasised via the concept of the ‘autonomy of EU law’. This must be seen “with respect both to the law of the Member States and to international law”, and which “is justified by the essential characteristics of the EU and its law, relating in particular to the constitutional structure of the EU and the very nature of that law”.Footnote 62 Besides autonomy, also the uniform application of EU law is characteristic of the EU’s identity. In Melloni, the Court has referred to the “primacy, unity and effectiveness of EU law”, which may not be compromised.Footnote 63
The motto of the EU, ‘united in diversity’, is very well reflected in all these provisions, according to which the values of the EU, on the one hand, and this national identity of the Member States, on the other, can be seen as two different forces, each tending in opposite directions.
Obviously, who has the final word differs at EU and at the national level. The German Constitutional Court has held that the in Germany “the constitutional organs must counter acts of institutions, bodies, offices and agencies of the European Union that violate the constitutional identity [!] or constitute an ultra vires act”.Footnote 64
The argument of safeguarding the ‘national identity’, as nowadays enshrined in Art 4(2) TEU, has already early on been an argument against ‘more EU’.Footnote 65 Turning back to the above-mentioned wording of Art 4(2) TEU, the Member States’ “fundamental structures, political and constitutional, inclusive of regional and local self-government” already existed at the time of becoming an EU Member State at a certain point in time, where this country also committed itself to these common values. Likewise, the “essential State functions”, including “the territorial integrity of the State”, as well as “maintaining law and order and safeguarding national security” do not obviously conflict with the EU’s common values. Consequently, Hillion is right in stating that “national specificities, safeguarded under Article 4(2) TEU, however cannot (!) permit a member’s disrespect of the values of Article 2 TEU”Footnote 66.Footnote 67
On the other side, there are various provisions strengthening the common values.
Art 4(3) TEU makes an important contribution in terms of the ‘principle of sincere cooperation’, 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”. As the Grand Chamber has recently held, the principle of solidarity “is closely linked to the principle of sincere cooperation”.Footnote 68 As mentioned by the European Commission, Art 4(3) TEU also plays an important role in the phase before Art 7 TEU.Footnote 69 More broadly, according to Art 4(3) TEU, “Member States shall take [!] any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union”. For our topic, the obligations arising (already) out of Art 2 TEU are further strengthened by this ‘principle of sincere cooperation’. This ‘mutual respect’ of sincere cooperation, if linked to the common values of Art 2 TEU, can then lead to ‘mutual trust’. Conversely, “Member States shall facilitate the achievement of the Union’s tasks and refrain [!] from any measure which could jeopardise the attainment of the Union’s objectives“.
This leads us to the next provision, Art 3 TEU on the EU’s objectives, where the first paragraph defines the “Union’s aim”, which “is to promote peace, its values [!] and the well-being of its peoples”. As the Court has held in its ECHR Avis, the “pursuit of the EU’s objectives, as set out in Article 3 TEU, is entrusted to a series of fundamental provisions”, such as the economic fundamental freedoms, etc., “which are part of the framework of a system that is specific to the EU”.Footnote 70 They “are structured in such a way as to contribute — each within its specific field and with its own particular characteristics — to the implementation of the process of integration that is the raison d’être of the EU itself”.Footnote 71 The common values certainly contribute to the EU’s raison d’être. Objectives neither impose legal obligations on the Member States, nor confer rights on individuals,Footnote 72 but are relevant for the interpretationFootnote 73 of EU primary law provisions “that are intended to give effect to them”.Footnote 74 For instance, for the justiciability of Art 2 TEU, Art 3 TEU will not contribute much. For the above-mentioned opposing situation of common values vs. national identities, objectives that “express”Footnote 75 the “common European interest”Footnote 76 can be seen as another argument for tipping the scale towards the ‘common’ values.
Another provision that strengthens the EU’s common values is Art 13(1) TEU that tasks the EU’s institutions, as well as ‘bodies, offices or agencies of the Union’,Footnote 77 to “promote” the EU’s values. While they are obviously already bound by Art 2 TEU itself, this provision on the institutional framework can be seen as kind of a ‘mission letter’, as we know it from the Commission president to the single Commissioners.
Apart from EU institutions etc., Art 49 TEU on the prerequisites of EU accession has a similar effect on Member States, at least at the time of joining the EU. A key requirement is to ‘respect’ the values referred to in Art 2 TEU and to be ‘committed to promote’ them. As the continuous adherence to these values is a key challenge, the ECJ emphasises “that the European Union is composed of States which have freely [!] and voluntarily [!] committed themselves to the common values referred to in Article 2 TEU, which respect those values and which undertake to promote them”.Footnote 78
If these obligations are not met during existing EU membership, the following provisions come into play. The relationship between Art 7 TEU and the infringement proceedings of Art 258 TFEUFootnote 79 (EC vs. MS) and Art 259 TFEU (MS vs. MS), together with Art 260 TFEUFootnote 80 (lump sum or penalty payment), has been discussed concerning a possible parallel application. The Council’s Legal Service sees no other possible procedure for the supervision of the application of the rule of law besides Art 7 TEU.Footnote 81 However, Art 7 TEU does not exclude the Commission’s possibility to deploy Art 258 TFEU to safeguard compliance with the EU’s common values, as enshrined in Art 2 TEU.Footnote 82 Likewise, 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.Footnote 83
The value that has been and continues to be most in the spotlight is the rule of law. The rule of law is also the value that has many links to other provisions of the EU treaties.
According to the European Commission, the rule of law “includes, among others, principles such as legality, implying a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibiting the arbitrary exercise of executive power; effective judicial protection by independent and impartial courts, effective judicial review[…] including respect for fundamental rights; separation of powers; and equality before the law”.Footnote 84 Within this bouquet of ‘rule of law’ principles, two in particular have been the subject of intense discussion in recent ECJ jurisprudence, which are also closely related. The effective judicial protection by independent and impartial courts, and effective judicial review.
As mentioned above, 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 protectionFootnote 85), Art 47 CFR (right to an effective remedy and to a fair trial) and Art 267 TFEU (preliminary ruling proceeding). As AG Bobek has recently confirmed, “there is only one and the same principle of judicial independence”.Footnote 86 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”.Footnote 87
Art 19(1) TEU “contains an extraordinary remedy for extraordinary situations” and requires “breaches of a certain seriousness and/or of a systemic nature”.Footnote 88 The “main elements for the Court’s analysis are those concerning the overall institutional and constitutional structure of the national judiciary”.Footnote 89 Hence, the “threshold for a breach of this provision is rather high”.Footnote 90 Art 19(1) TEU is linked to the next one via a “constitutional passerelle”.Footnote 91
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”.Footnote 92 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. Here, the “intensity of the Court’s review in relation to the independence of the judicial body in question is, in this context, moderate”, as “not all breaches of law amount to an infringement of Article 47 of the Charter”.Footnote 93
In case of Art 267 TFEU, the independence of the body making a reference is one criterion to determine whether it is a ‘court or tribunal’ in the sense of this article. A key objective in this context is to define “the interlocutors of the Court”.Footnote 94
In the words of AG Bobek, “[t]his ‘multiplication’ of legal bases with respect to the principle of judicial independence reflects its constitutional significance and its transversal nature in a community based on the rule of law”.Footnote 95 Focussing on the ‘rule of law’ and not on single components (i.e., judicial independence), “Article 47 of the Charter, as well as the second subparagraph of Article 19(1) TEU, give therefore more precise expression to that dimension of the value of the rule of law affirmed in Article 2 TEU”.Footnote 96
For our topic, this again proves the close interrelation and ‘lattice’Footnote 97 of various provisions. Therefore, it is a matter of several legal provisions, which then add up to the greater whole.
Of these three provisions that play a special role in the rule of law, or more precisely for the independence of the courts, Art 19 TEU is of particular importance. This provision is mainly about the CJEU.Footnote 98 However, the second subparagraph of Art 19(1) TEU states that the “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”. Because of the already mentioned limitations of the Charter, as provided in Art 51(1) CFR, the Court therefore seems to prefer focussing its attention on Art 19 TEU. In one of the ‘rule of law’ cases concerning Poland, the Court has stated that as regards “the material scope of the second subparagraph of Article 19(1) TEU, that provision moreover refers to ‘the fields covered by Union law’, irrespective of whether the Member States are implementing Union law within the meaning of Article 51(1) of the Charter”.Footnote 99 On this question, see also the following Sect. 4.2.2. The ECJ justifies the focus on this provision by stating as follows: “the protection of the value of the rule of law, a value which is given concrete expression by, inter alia, Article 19 TEU”.Footnote 100 Art 19 TEU has a broad field of application because even if “the organisation of justice in principle falls within the competences of the Member States, they must, in the exercise of that competence, respect the obligations arising from Union law, in particular the second subparagraph of Article 19(1) TEU”.Footnote 101
Besides the above-mentioned procedural provisions of infringement proceedings and Art 7 TEU, also Art 263 TFEU (action for annulment) has played a role in the context of the rule of law, more precisely the fourth paragraph on the legal standing of natural and legal persons. In the latter case of legal persons, as mentioned above, the Court has held that an interpretation of Art 263(4) TFEU “in the light of the principles of effective judicial review and the rule of law militates in favour of finding that a third State [here: Venezuela] should have standing to bring proceedings, as a ‘legal person’, within the meaning of [this provision]”.Footnote 102 This case can be seen as an example of the impact of the rule of law for the interpretation of other provisions of the EU treaties, in this case also with an external dimension (Venezuela benefiting from this ‘rule of law’ inspired interpretation).
Finally, there are many provisions on fundamental (or human) rights, which also display a close relationship to the values of Art 2 TEU, and even more so the human rights mentioned as a value in this provision. They are part of Sect. 4.2.3, including Table 4.1, which also covers provisions of EU law, surpassing those related to human rights. Before turning to this topic, the following excursus digs deeper on the just mentioned limitation of Art 51(1) CFR (“Member States only [!] when they are implementing Union law”) and how to get around it.
4.2.2 Reverse Solange
At a meta level,Footnote 103 both the Solange and the ‘reverse Solange’ doctrines deal with the cooperation of two separate but interconnected legal systems. The Karlsruhe based German Constitutional Court’s Solange doctrine was developed to ensure compliance of the supra-national level with some national requirements. These requirements, in Solange stemming from the German constitution, articulate and protect ‘essential conditions’ for such a cooperation. According to this doctrine formulated by Karlsruhe, such a cooperation can take place, ‘as long as’ (Solange) these requirements are fulfilled. In Solange I these requirements related to a catalogue of fundamental rights.Footnote 104 Hence, a bottom-up requirement, stemming from one Member State (Germany) and targeting the EU (more precisely, the European Community at the time). As the name already indicates, the ‘reverse Solange’ doctrine follows a similar idea but works in the opposite direction. Hence, it also relates to the same vertical situation, but in a top-down approach, thus a ‘reversed’ situation.
Briefly to mention that such essential requirements for cooperation between different systems have also been argued for a horizontal situation (between Member States),Footnote 105 as well as in a ‘diagonal relationship’ between the supra-national EU and international organisations.Footnote 106 For all these various emanations (vertical bottom-up, vertical top-down, horizontal, diagonal) it is worth emphasising the core element of a presumptionFootnote 107 that those essential requirements are fulfilled. However, this presumption is not absolute and can be rebutted.Footnote 108
It is important to clarify that the CFR fulfils different functions in relation to the EU, compared to the Member States.Footnote 109 In case of the EU, due to the competences increasing over time, the Charter can be seen as the primary ‘bill of rights’ and its main function relates to legitimacy. In case of the Member States, already bound by their national provisions, the function is a different one. In their case, the concern is rather a possibly diverging application of the CFR in the 27 Member States, endangering the autonomy and uniform application of EU law. In Melloni, the Court has referred to the “primacy, unity and effectiveness of EU law”, which may not be compromised.Footnote 110
To understand this theory, it is important to remember Art 51(1) CFR and the limited applicability it implies in case of Member States, as the CFR “provisions […] are addressed […] to the Member States only [!] when they are implementing Union law”. As a reminder, not only does the CFR have a different function in case of the EU, also the CFR poses less challenges in terms of its applicability to the EU. The ‘reverse Solange’ doctrine of von Bogdandy et al.Footnote 111 has been developed, to overcome this limitation of Art 51(1) CFR) regarding Member States.
At the beginning, the ‘reverse Solange’ doctrine was linked to the ‘substance of rights’ doctrine developed by the Court in Ruiz Zambrano. The particularity of this doctrine becomes clear only when compared with the ‘normal’ situation under EU law. Normally a cross-border element (i.e. two Member States) is required to enjoy the rights conferred by the EU’s economic fundamental freedoms or EU citizenship-related rights (Art 20 to Art 25 TFEU). However, according to this doctrine this is not the case, if national measures “have the effect of depriving citizens of the Union of the genuine enjoyment of the substance [!] of the rights conferred by virtue of their status as citizens of the Union”Footnote 112.Footnote 113 To cut it short, von Bogdandy et al. had expected a certain future development of this ‘substance of rights’ doctrine, which did not take place.Footnote 114 Therefore, they have later on taken a slightly different approach.
Instead of Ruiz Zambrano, they now rely on ECJ case-law focussing on our topic of the EU’s values. Art 2 TEU is intended to help overcome the limitations emanating from Art 51(1) CFR. von Bogdandy et al. have taken the related case-law “one step further and propose[d] to basically define this ‘substance’ with reference to the essence of fundamental rights enshrined in Article 2 TEU”.Footnote 115 Hence, they have adopted the two elements of a high threshold and the willingness of the Court to apply a different rationale in this exceptional field, and have transferred this approach from EU citizenship rights to the task of filling the EU’s values with life. At the same time, this shall ensue the enforceability of these concepts. As will be depicted in the following, the ‘vigilance of individuals’ is one ingredient to this doctrine, besides the application to purely internal (i.e., no cross-border situation between two Member States) situations.
In 2012, von Bogdandy et al. have summarised their doctrine as follows: “beyond the scope of Article 51(1) CFREU Member States remain autonomous in fundamental rights protection as long as it can be presumed that they ensure the essence of fundamental rights enshrined in Article 2. However, should it come to the extreme constellation that a violation is to be seen as systemic, this presumption is rebutted. In such a case, individuals can rely on their status as Union citizens to seek redress before national courts”.Footnote 116 Taking the Ruiz Zambrano case-law to the next level does however not mean to replace it, as their doctrine applies to “both citizenship and fundamental rights protection”.Footnote 117 Consequently, in essence, this doctrine argues, that any court in the EU (including the CJEU) can scrutinise any national measure if the essence (!) of the EU’s values of Art 2 TEU, as further substantiated by EU law (e.g., CFR) is affected.
This bottom-up approach (any court in the EU) builds on a longstanding and successful approach that was developed early on by the ECJ. Already in the seminal Van Gend en Loos case, the Court has referred to the “vigilance of individuals concerned to protect their rights”.Footnote 118 This was a clever move to supplement the top-down approach of infringement proceedings (now Art 258 TFEU) via bottom-up enforcement of EU law via individuals, acting both in their, as well as in the interest of the EU.Footnote 119 This clever decentralised approach also applies for this ‘reverse Solange’ doctrine.
The advantage of Art 2 TEU, compared to Art 51(1) CFR, is that it applies in all situations, as “it applies to any Member State act irrespective of any other link to EU law”.Footnote 120 One challenge of this approach could be seen in the fact that values are per se rather abstract. From ECJ case-law we know the requirements of a provision so that it can produce a direct effect. The Court has emphasised the requirements “of unconditionality and sufficient precision required in order to produce a direct effect”.Footnote 121 However, in this respect, von Bogdandy et al. do not see a problem, as the ECJ now takes a broader view of these criteria.Footnote 122 They also do not claim that all Art 2 TEU values are directly applicable. The above-mentioned analysis on the justiciability of these Art 2 TEU values can be seen as complementary to this theory and to feed into it.
They also go into a similar direction, arguing for a combination of Art 2 TEU with other Treaty provisions and argue for a value-based interpretation.Footnote 123 This is not only true for provisions of EU law (based on the hierarchy of EU law), but also for national lawFootnote 124 (based on the primacy of EU law). As they aptly state, this “value-oriented interpretation has a twofold effect: while it operationalises Article 2 TEU through a specific provision, it simultaneously justifies a broader reading of the specific provision in light of the values at stake. This ‘mutual amplification’ of the combined provisions leads to a much more predictable but still powerful effect against illiberal tendencies”.Footnote 125
One prominent combination of Art 2 TEU with another provision of EU law is the already-mentioned Art 19 TEU concretising the ‘rule of law’.Footnote 126 The importance of Art 19 TEU and the preliminary ruling proceeding (Art 267 TFEU) has to be seen against the background of the high barriers of Art 264(4) TFEU (action for annulment in case of natural or legal persons).Footnote 127 In their words, Art 19 TEU leads to a situation where “the entire national judiciary has to be in line with the EU value of the rule of law”.Footnote 128
Having depicted this doctrine that perfectly feeds into this book’s approach of giving a key role to the values of the EU, it is worth addressing what would have been alternatives to this doctrine. One idea addressed by former Commission Vice-President Reding of “abolishing Article 51 of the […] Charter of Fundamental Rights, so as to make all fundamental rights directly applicable in the Member States”Footnote 129 is challenging due to legal character of EU primary law and the necessity of all Member States having to agree to modifications. A second approach of a “creative reinterpretation”Footnote 130 to interpret Art 51 CFR ‘away’ has aptly been criticised as an approach that can “hardly convince”.Footnote 131
4.2.3 Art 2 TEU and Human Rights-Related Provisions
The statements made so far, where mainly on provisions of EU primary law, however excluding human rights-related provisions, to address them collectively at this point. Located at the bottom of the hierarchy of EU law, EU secondary law will be covered below in Sect. 4.2.4.
Human rights are covered in Art 2 TEU as a value of the first sentence. As Calliess mentions, “fundamental rights are subjectifying and concretising the fundamental values of the EU”.Footnote 132 Human rights are also prominently addressed in Art 6 TEU. Paragraph 1 of this provision refers to the CFR (“same legal value as the Treaties”), para 2 to the ECHR (accession of the EU to the ECHR), and para 3 to the general principles of EU law, “as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States”. The relationship between Art 2 TEU and selected CFR articles has already been covered, as well as the general principles of EU law. The relation of Art 2 TEU to the general principles of EU law and the CFR was described as a “thorny question”.Footnote 133 This statement essentially referred to whether the concepts should be uniform or different, depending on whether the Member States are implementing EU law (see also above Sect 4.1.2). Other concepts, such as selected ethical (but also some legal) principles will be covered in Sect. 4.3.
This chapter will focus on the relationship between values and human rights-related provisions, illustrated by three tables. The values of Art 2 TEU are compared to the CFR and further provisions of EU law in Table 4.1. Likewise, the values of the first (Table 4.2) and of the second (Table 4.3) sentence of Art 2 TEU will be linked to the ECHR.
Turning first to Table 4.1Footnote 134 (see above) it must be emphasised that this overview is an excerpt of the most relevant provisions. In the case of democracy, one could also mention Art 1(2) TEU on transparency, Art 21(1) TEU on democracy in the external dimension, as well as other CFR articles (freedom of assembly, freedom of information, etc.) as covered above in Sect. 220.127.116.11. In case of the rule of law, one could also name Art 20 CFR (equality before the law) and Art 21 CFR (non-discrimination), as one element of this concept.
Table 4.1 displays a close connection between Art 2 TEU and the structure of the CFR, of both first and second sentence values. First sentence values cover dignity (title I), freedom(s) (title II) and equality (title III). 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), etc. Second sentence values cover solidarity (title IV) and justice (title VI), where the latter is also closely related to first sentence ‘rule of law’. Non-discrimination and equality between women and men, also mentioned in the second sentence, are also closely related to equality (title III). Tolerance and pluralism are not explicitly covered in the CFR structure, they can rather be seen as underlying values, and implicitly covered.
Finally, the column on the right-hand side shall also emphasise the relationship to other provisions of EU primary law, as explained above in the presentation of the individual values. Table 4.1 will not be further explained and is only intended to give an impression regarding values, CFR rights and other provisions.
The relationship between human rights and values also requires consideration of the ECHR. As all EU Member States are at the same time contracting parties of the Council of Europe, they are also bound to the ECHR.Footnote 135 Furthermore, Art 6(3) TEU addresses the fundamental rights, as guaranteed by the ECHR and as resulting from the “constitutional traditions common to the Member States”, as “general principles of the Union’s law”. Hence, the values now enshrined in Art 2 TEU were able to draw inspiration from the pre-existing concepts stemming from the Member States’ constitutional traditions, as they themselves have been inspired by the ECHR, as well as directly from the ECHR. Reference to the ECHR obviously also comprises the ECtHR case-law, as the Strasbourg court has shaped the ECHR enshrined fundamental rights in a similar way, as the Luxembourg court did in the EU.Footnote 136
For the reason of size, the two sentences of Art 2 TEU have been split up into two tables (Tables 4.2 and 4.3). Nevertheless, it must be emphasised that especially the columns on the right-hand side are only an excerpt, referring to selected ECtHR case-law.
Good evidence of the close connection between these values can be found in the following quote, comprising five of them: “Tolerance and respect for the equal dignity of all human beings is the foundation of a democratic and pluralist society”.Footnote 137
Equal dignity (or in the French original version: “respect de l’égale dignité”), as also mentioned by AG Stix-Hackl in Omega,Footnote 138 displays the relationship between equalityFootnote 139 and human dignity. Human dignity stands out as a famous example of an Art 2 TEU value, that is not explicitly mentioned in the ECHR, but has found its place in ECtHR case-law. The same is true for solidarity, recently covered by the ECtHR in the context of the permissibility of mandatory vaccination and Art 8 ECHR. This is remarkable, as solidarity as such cannot be found in the ECHR. However, in this situation of a communicable diseaseFootnote 140 behaviour of one person affects not only the person itself, plus those in close contact, but likewise society at large.
This topic can be linked to the value of democracy. One question that currently divides man people (and sometime even society at large) can mainly be solved via dialogue. As the ECtHR has held, “[o]ne of the principal characteristics of democracy is the possibility it offers of resolving a country’s problems through dialogue […]”.Footnote 141 The Strasbourg Court has mentioned some other ingredients for “a ‘democratic society’”, as “the Court has attached particular importance to pluralism, tolerance and broadmindedness”.Footnote 142
The mutual relationship of the different levels (Member States, ECHR, and finally also EU) can be seen from the ECtHR’s quotation of the “rule of law as an element of the common heritage of the Contracting States”.Footnote 143
The EU’s motto of ‘united in diversity’ can be seen to be reflected in the ECtHR’s quotation on pluralism, which “is also built on genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs and artistic, literary and socio-economic ideas and concepts”.Footnote 144 In the field of minorities, besides the “purpose of safeguarding the interests of the minorities themselves” the ECtHR has emphasised the aim “to preserve a cultural diversity of value to the whole community”.Footnote 145 These quotations reveal the constructive elements of pluralism or diversity, not possibly destructive ones. While the ECtHR quotations rather refer to societal issues, in law we have already seen that sometimes ‘constitutional pluralism’ can tend towards an illiberal approach. However, this is not necessarily the case, as ‘constitutional pluralism’ is “neither a purely liberal nor a purely illiberal theory”.Footnote 146 Hence, as mentioned in Art 6(3) TEU, the element of “constitutional traditions common to the Member States” is key (emphasis added).
Finally, “justice must not only be done, it must also be seen to be done”.Footnote 147 This quotation and the link of justice to confidence goes in a similar direction as for the function of ethics in EU law, as I have argued elsewhere.Footnote 148
Like Table 4.1, Tables 4.2 and 4.3 will not be further explained and are only intended to give an impression of the relationship between the values of the EU and the ECHR, respectively selected ECtHR case-law.
4.2.4 Art 2 TEU and Secondary Law
After the focus on provisions of EU primary law, let us now turn to the relationship between Art 2 TEU values and secondary law. We know this relationship from the CFR, where the ECJ took the approach of secondary law filling CFR provisions ‘with life’, as in the case of Art 31 (2) CFRFootnote 149 (fair and just working conditions) and Directive 2003/88/ECFootnote 150 on working time. As the Court stated, “Directive 2003/88 gives specific form to the fundamental right expressly enshrined in Article 31(2) of the Charter of Fundamental Rights of the European Union and must, therefore be interpreted in the light of that Article 31(2)”.Footnote 151 Due to the hierarchy of EU law, EU secondary law can obviously give “specific form” to EU primary law, if it does not contradict the latter. Another consequence of the hierarchy of EU law is the requirement to interpret EU secondary law in the light of EU primary law, as also emphasised by the ECJ in this judgement.
This relationship between CFR provisions and EU secondary law can also be applied to another provision of EU primary law, i.e., the values enshrined in Art 2 TEU. This value-conform interpretation has also been stressed in literature.Footnote 152
We have seen some EU directives referring to human dignity, for instance, in the field of migration (‘mass influx’ directive,Footnote 153 ‘return directive’,Footnote 154 ‘asylum reception’,Footnote 155 ‘common procedures’,Footnote 156 as well as ‘asylum qualification’Footnote 157), in the field of economic services,Footnote 158 citizens’ rights,Footnote 159 in case of combatting terrorism,Footnote 160 in the ‘Schengen Borders Code’, as well as in the field of the legal protection of biotechnological inventions.Footnote 161
One value, which has been shaped in EU secondary law, as well as CJEU case-law, is non-discrimination, including equalityFootnote 162 between women and men. Several non-discrimination directives have been mentioned above in Fig. 3.2 and in Sect. 18.104.22.168.
In case of democracy, we can find EU secondary law for both representative democracy,Footnote 163 as well as for participatory democracy. In the latter case via the European citizens’ initiative, as further clarified in the corresponding regulation.Footnote 164 Indirectly, democracy also benefits from transparency, as, for instance, enshrined in case of the regulation on access to documents,Footnote 165 to name but one example.
One important example in the field of the ‘rule of law’ is the so-called ‘conditionality’ regulation,Footnote 166 which most likely might have more impact in terms of enforcing compliance in the Member States compared to the blocked Art 7 TEU procedure.
Pluralism has been further clarified in the soft-law Council conclusions from 2020 in the field of the media.Footnote 167 Justice is another value with further clarification in a recent soft-law document.Footnote 168
Solidarity as a value, for instance, in the field of financial support, can be found in the regulation on the ‘European Union Solidarity Fund’. While it initially was about natural disasters, it now also covers major public health emergencies.Footnote 169 While at the beginning of the COVID-19 crisis, there was a clear lack of solidarity, the Commission in its soft-law document on cross-border cooperation in healthcare stressed the “encouraging and important signal of European solidarity”.Footnote 170 ‘The European Solidarity Corps Programme’ covers ‘participation of young people in (humanitarian aid-related) solidarity activities’.Footnote 171
There are various advantages of linking EU primary law-based values with EU secondary law. First, one does not have to worry about justiciability, as an EU regulation is directly applicable, and an EU directive binding via the national implementation measures. Second, the document at the lower end of the legal hierarchy can benefit from the authority of a provision enshrined in EU primary law. Third, this approach also enhances the uniformity and systematic interpretation of EU law as such. Finally, the advantage of placing a value of EU primary law in a certain document of EU secondary law is that a rather abstract value can be specified in a concrete field as necessary and reasonable under the respective conditions. Based on the clear hierarchy of EU law, such a specification obviously must respect the value of EU primary law. This question had been covered by the Court concerning the above-mentioned directiveFootnote 172 of 1998 on the legal protection of biotechnological inventions. In the end, the Court dismissed the action, as the directive has guaranteed human dignity.Footnote 173
4.3 Relation Values to Other Concepts
So far, we have seen the relationship of values amongst each other (Sect. 4.1), values in relation to other provisions of EU primary law (Sect. 4.2.1), with a special emphasis on human rights-related provisions (Sect. 4.2.3), as well as EU secondary law (Sect. 4.2.4). Before then turning to a possible ‘future direction of travel’ and some ideas de lege ferenda in Chap. 5, it is now time to take a broader perspective, a “view from ten thousand feet”Footnote 174 so to say.
As we have seen above, (see Fig. 3.1) the historic process of European integration started with integration in the economic field (1st step). As a new (supra-national) authority can also impact on fundamental rights, the next step consisted of the CJEU developing fundamental rights as general principles of law (2nd step). Having now covered various relations, another relation consisted of the spill-overFootnote 175 effect from economic to political integration via the Maastricht Treaty (3rd step). Finally, the Lisbon Treaty made the CFR legally binding and enshrined the common values in Art 2 TEU, turning EU integration alsoFootnote 176 into a ‘union of values’ (4th step).
4.3.1 Relation Values and Economic or Political Objectives
As human rights (2nd step) are also mentioned as values (4th step) in Art 2 TEU, let us look at the relationship of values towards economic (1st step) and political (3rd step) objectives.
In two of its landmark cases, the ECJ had to deal with the economic fundamental freedoms (part of the 1st step) and other concepts.
In Schmidberger the ECJ had to resolve a conflict of an economic fundamental freedom (free movement of products) and two fundamental rights (the freedom of speech and assembly), which arose as some Austrians demonstrated on a motorway against increasing traffic and transit, because of health and environmental concerns. As both the free movement of products (Art 34 TFEU), as well as the fundamental rights (formerly general principles of EU law, now also CFR) are EU primary law, the Court opted for a balancing approach. According to this, “the interests involved must be weighed having regard to all the circumstances of the case in order to determine whether a fair balance [!] was struck between those interests”.Footnote 177 Hence, a relationship of the economic perspective (1st step) and fundamental rights (2nd step), where none of them enjoys primacy over the other, but where a ‘fair balance’ must be achieved.
One year after Schmidberger (i.e. in 2004), the ECJ has held in the famous Omega case that “the Community legal order undeniably strives to ensure respect for human dignity as a general principle of law”.Footnote 178 In this case on laserdromes and ‘playing at killing’, the Court has held that the economic fundamental freedoms (here, of services) are not unlimited and that they can be restricted in case of proportional national measures, with regard to accepted ‘reasons of justification’. What later become an EU value with the Lisbon treaty (signed 2007, entered into force 2009) and in this case occurred as a German ‘constitutional principle’, was accepted by the ECJ as a ‘general principle of law’, which can feed into ‘public policy’ as a so-called reason of justification.Footnote 179 This allowed Germany to prohibit these laser games, but also put this German ‘constitutional principle’ of human dignity on the European agenda. As in the case of Omega, neither values (4th step) nor economic fundamental freedoms (1st step) are absolute.
As Tridimas has aptly analysed, judgements such as Schmidberger and Omega “show that the Court promotes an integration model based on value diversity which views national constitutional standards not as being in a competitive relationship with the economic objectives of the Union but as forming part of its policy”.Footnote 180
In terms of a historic process, human rights (2nd step) and values (4th step) must be differentiated, although Art 2 TEU establishes a link between them by naming human rights as oneFootnote 181 value.
Let us now turn to their relationship with the political level (3rd step). The relationship of the economic perspective (1st step) to the political one (3rd one) is well displayed in the spill-over effect, not only covering one economic field (e.g., coal and steel) to spill-over to other economic fields, but eventually also from the economic to the political field.
The example of taking sanctions against governments of third countries, companies, groups, or organisations (e.g., terrorist groups) and individuals supporting the targeted policies (e.g., involved in terrorist activities, etc.), shows the close relationship between the economic (1st step) and the political (3rd step) field.Footnote 182 Sanctions are mostly economic in nature. However, the imposition of sanctions is a political decision. The above-mentioned Kadi case on the CFSP and restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban illustrated the close link between those two fields.Footnote 183 In this case, Art 1 of the relevant Council document issued a flight ban, and Art 2 declared “[f]unds and other financial resources held abroad by the Taliban [to] be frozen”.Footnote 184
Obviously, sanctions must be targeted in order “to minimise adverse consequences for those not responsible for the policies or actions leading to the adoption of sanctions”, especially concerning “local civilian population and on legitimate activities in or with the country concerned”.Footnote 185 Additionally, the imposed measures “must always be proportionate to their objective”.Footnote 186 This goes in a similar direction as the imperative to respect human rights and EU values when imposing sanctions. In Kadi, the Court has linked this economic, respectively, political perspective to the requirement to consider fundamental rights and principles, respectively, values. As already mentioned, Kadi was decided roughly one year before the entry into force of the Lisbon Treaty, that is why the Court did not refer to ‘values’, but 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”.Footnote 187
This topic of sanctions has recently been supplemented by ‘restrictive measures against serious human rights violations and abuses’,Footnote 188 the EU’s so-called “shiny new tools”Footnote 189 in its “human rights and foreign policy toolbox”,Footnote 190 to address serious human rights violations and abuses worldwide.
As already mentioned earlier, Art 21 TEU tasks the Union also on the international scene to adhere to the ‘principles’ of “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” (para 1), as well as to “safeguard its values” (para 2 lit a). This reference to values and principles leads us to the next relationship.
4.3.2 Relation Values and Selected (Legal and Ethical) Principles
Already in the first Jean Monnet book, I have argued to embrace principlismFootnote 191 and moral disunitarianism.Footnote 192 According to the latter, “moral generalities, to the extent that they exist, are at best domain-specific”.Footnote 193
As we have seen above,Footnote 194 values are described as “assets that a legal system recognizes as predetermined and imposed”.Footnote 195 They can serve as both guidelines for interpretation as well as standard of judicial review, and they can “develop a legitimizing meaning”.Footnote 196 Principles have been referred to as “legal norms laying down essential elements of a legal order”,Footnote 197 or as “a basic, fundamental rule, which is – albeit broad – binding”.Footnote 198 Yet another definition describes a principle as “a general proposition of law of some importance from which concrete rules derive”.Footnote 199 Contrasting principles from values, the former have legal consequences and addressees.
For instance, in EU law the principle of proportionality can have legal consequences, rendering non-proportional restrictions imposed by Member States against the EU’s economic fundamental freedoms inapplicable. The approach of Beauchamp & Childress in biomedical ethics, referred to as ‘principlism’, has the advantage of being more determined (i.e., less abstract) and therefore more ‘user-friendly’.Footnote 200
While it is important to distinguish values from principles, we seen that they are not mutually exclusive. As we have seen regarding ‘solidarity’, this concept can be found in Art 2 TEU as one of the EU’s common values, as well as a legal principle.Footnote 201
Consequently, values are more abstract, nonetheless important, but can benefit from more concrete principles, as principles can have legal consequences and certain addressees. Those legal principles can be supplementedFootnote 202 by ethical principles, which often might be overlapping, as in case of Beauchamp & Childress’ principlism, comprising autonomy, non-maleficence, beneficence, and justice. Such clarification in philosophy in general, respectively, in a certain field (e.g., biomedical ethics) cannot be per se binding in law but can offer valuable clarification. We have seen the fruitful relationship between more abstract values and more concrete principles in the 2006 health values, where “[b]eneath [!] these overarching values, there is also a set of operating principles”.Footnote 203
Three issues are currently preoccupying our society: climate change, the pandemic, and digitalisation. In the latter field, the Commission’s ‘2030 Digital Compass’Footnote 204 from March 2021 mentions the necessity to set up “a comprehensive set of digital principles” for, amongst others, a “secure and trusted online environment”. In the same document, the Commission proposes to draft a document comprising these “digital principles and rights”, which should be adopted as an “an inter-institutional solemn declaration between the European Commission, the European Parliament and the Council”.
In two of my recent papers, I have taken this approach of the ‘2006 health values conclusions’ of combining (see Fig. 4.1) more abstract values and more concrete principles (vertical level) to provide a road map of values and principles that can be used to help address some challenges in the field of digitalisation. On the horizontal level, the general values (left column) have been complemented by these 2006 health values (right column). This overview was developed covering the topic of robotic medicine; hence, the general values have been complemented by health values and principles, thereby also covering the document from where the idea for this combination was taken from. As can be seen from Fig. 4.1, lawFootnote 205 in the sense of legal provisions other than values and legal principles will always remain the minimum standard. The selection of these legal and ethical principles obviously depends based on the challenge at hand. Again, this overview was developed for challenges at the interface of digitalisation and health.
In the following, five of these concepts pertaining to the legal and/or the ethical realm shall be briefly depicted, as they can be of relevance for all three challenges (i.e., climate change, the pandemic, and digitalisation), currently preoccupying our society: vulnerability, responsibility, precaution, sustainability, as well as proportionality and balance.
Vulnerability is a concept, which can be found both in ethics and in human rights.Footnote 206 Vulnerability refers “to the human capability of being wounded, either physically or mentally”, which consequently can affect all (!) human beings.Footnote 207 While there is no official definition of people considered to be vulnerable, we have already seen this concept regarding minorities, women (both in general, but also in the pandemic), the elderly, children, people with disabilities, or migrants.Footnote 208 Several of the already mentioned directives in the field of migration put special emphasis on vulnerable persons. For instance, Directive 2013/33/EU on asylum receptionFootnote 209 refers to “minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation” (Art 21) and provides various distinct rulesFootnote 210 for the relevant vulnerable group.
Vulnerable people are more likely to be discriminated and to face violations of human rights. While vulnerability is closely related to human dignity and human rights, Andorno has convincingly argued that vulnerability is a condition, not the foundation of human rights.Footnote 211 Human dignity is the foundation of human rights, where vulnerability is an important argument for enhanced vigilance and protection. Going into a similar direction as affirmative action,Footnote 212 considering vulnerability in the end can lead to an equal situation, as also envisaged by the principle of non-discrimination.
We have seen vulnerability in ter Meulen’s ‘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”.Footnote 213 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”.Footnote 214 In a simplified way, this concept can be seen as a combination of solidarity and vulnerability.
Solidarity, or more precisely ‘social solidarity’, was a key argument for the ECtHR in case Vavřička on compulsory vaccination. As the ECtHR has emphasised, “the value of social solidarity [!], the purpose of the duty being to protect the health of all members of society, particularly those who are especially vulnerable with respect to certain diseases and on whose behalf the remainder of the population is asked to assume a minimum risk in the form of vaccination”.Footnote 215
Protecting the vulnerable will be important for all three mentioned challenges, climate change, the pandemicFootnote 216 (as just mentioned), and digitalisation. In the latter field, we can observe a lot of power and information asymmetries, where vulnerability is an important concept to be kept in mind.
22.214.171.124 Responsibility (Human Rights and Human Obligations)
So far, we have seen responsibility in case of ‘corporate social responsibility’ (CSR) in the field of ‘non-financial reporting’, or in Bieber’s statementFootnote 217 on solidarity as a manifestation of the comprehensive principle of ‘mutual responsibility’. On a timeline, the BVerfG has referred to the obligation of Germany “to protect the natural foundations of life, also in responsibility for future generations”.Footnote 218 The idea of burden sharing has also been addressed in the field of migration, where Art 80 TFEU refers to the “the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member State”, as also confirmed by ECJ.Footnote 219
Human rights (and values) have been declared as a bridge between law and philosophy (cf. Fig. 1.1). Human rights, in a simplified way, strive to protect individuals in relation to public authorities, as the latter can take binding decisions on these individuals. Human rights, without wanting to sound pejorative, can sometimes display a rather consumerist attitude. Either individuals demand non-interference (negative rights), or they expect certain active services (positive rights). In either case, they are beneficiaries, not the obliged ones. This is where the idea of human obligations comes into play.
While various authors have addressed this idea, it shall briefly be depicted drawing on Onora O’Neill, famous British philosopher and crossbench member of the House of Lords.Footnote 220 As she mentioned, “we are likely to reach a convincing account of human rights more directly by way of an account of human obligations” (p. 77), as “[a]ny human right must have as its counterpart some obligation” (p. 78). Referring to the example of black and white squares on a chessboard, she concluded that “rights and claimable obligations cannot be separated” (p. 80).
Human rights are important at a vertical level (individuals in relation to public authorities) and shall not be replaced. Human obligations should rather be seen to supplement human rights, especially at a horizontal level in relation to fellow individuals. Apart from not interfering (negative rights), public authorities should not be the only ones making a contribution (positive rights) to society. On the long run, a society will be more successful if also individuals contribute, where such contributions should not only relate to taxes and the like.
Similar ideas have also been voiced by Aleida AssmannFootnote 221 and others. German philosopher Richard David Precht has addressed similar claims, especially in the context of the COVID-19Footnote 222 pandemic. As one suggestion for a human obligation, he has suggested a voluntary year (15 h a week) after retirement, to make a contribution to society.Footnote 223 In a similar way as it is unsustainable (see below, Sect. 126.96.36.199) to always consume and not to contribute, a society cannot persist if citizens turn into consumersFootnote 224 and only demand but are not willing to contribute to the ‘common good’.Footnote 225
As mentioned above, Hermerén has suggested the principles of precaution and proportionality (see below) as to ‘guide the decision-making’ in case of a possible clash of values.Footnote 226 The precautionary principle is addressed in the context of environmental policy, although not further defined (Art 191 TFEU).
According to case-law, the “precautionary principle constitutes a general principle of EU law”.Footnote 227 Based on “the precautionary principle, it must be accepted that, where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent”.Footnote 228 In other words, when applying the precautionary principle, there is no requirement to provide “conclusive scientific evidence of the reality of the risk and the seriousness of the potential adverse effects were that risk to become a reality”.Footnote 229 The precautionary principle has to be seen in the context of a high level of protection in the fields of human health,Footnote 230 consumer protectionFootnote 231 and the environment,Footnote 232 as well as in the context of sustainable development (see below).
Precaution is advisable if consequences are intensive, irreversible, and/or affect, especially the vulnerable. Precaution should apply in case of climate change, as some consequences might be irreversible, or only hardly reversible. Likewise, climate change also often strongly affects the vulnerable. Finally, in digitalisation, certain algorithms and collected data can have huge impact and a certain precaution is therefore advisable. In case of a communicable diseaseFootnote 233 that spreads into a pandemic disease, as in the case of COVID-19, certain consequences have been intensive (social, economic, mental health, etc.) and often affected the vulnerable (poorer countries, the poor even in richer countries, women, children, etc.). Hence, a certain precaution is advisable, knowing that these waves are easier to be stopped if action is not delayed. As mentioned above, precaution shall go hand-in-hand with proportionality (see below Sect. 188.8.131.52), as also suggested by others in the field of quarantinesFootnote 234 or vaccination policies.Footnote 235
Sustainability as an idea occurs in a threefold way in EU law. In (1) a more general way (not strictly related to the environment), (2) in relation to the environment, and finally (3) in the external sphere.
In (ad 1) a more general way, in promoting “economic and social progress for their peoples”, the EU shall take “into account the principle of sustainable development” (recital 9 TEU) and according to Art 3(3) TEU “shall work for the sustainable development of Europe”, as one of the EU’s objectives. Likewise, the CFR (recital 3) also requires the Union to “promote balanced and sustainable development”. Art 11 TFEU, the cross-sectional clause (ad 2) in the field of the environmental states that “[e]nvironmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development”. This is complemented by Art 37 CFR, according to which a “high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development”. In (ad 3) the external sphere, Art 3(5) TEU on the EU’s objectives tasks the Union to “contribute to peace, security, the sustainable development of the Earth”. More precisely, Art 21(2) TEU (general provisions on the Union’s external action) shall “foster the sustainable economic” (lit d) and “help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development” (lit f).
Besides EU primary law, in the field of EU secondary law, a former regulation (on tropical forests) had provided a definition of ‘sustainable development”: this “means the improvement of the standard of living and welfare of the relevant populations within the limits of the capacity [!] of the ecosystems by maintaining natural assets and their biological diversity for the benefit of present and future generations”.Footnote 236
This is reminiscent of what Hans Jonas had already defined as an ‘ecological imperative’ in his 1979 book on responsibility. A categorical imperative (Kant) for the environment, so to say. “Act so that the effects of your action are compatible with the permanence of real human life on earth” (translation).Footnote 237
‘Future generations’ have also been addressed by the BVerfG in terms of ‘solidarity between generations’ and climate change. The BVerfG has emphasised the obligation 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”.Footnote 238 This is even more remarkable considering how difficult it sometimes is already for currently living people to bring their case before a court.
Sustainable decisions do not only matter in the field of climate change, but likewise in a pandemic. Opening up a country too early cannot only be an issue of precaution (see above), but in the end can also be unsustainable. Even if it is not obvious at first glance, sustainable solutions are particularly relevant in the field of digitalisation, as this area is growing more and more and requires important resources such as rare-earth elements, as well as the huge energy consumption.
184.108.40.206 Proportionality & Balance
Proportionality is the decisive element at the end of the analysis of a case within the economic fundamental freedoms, is also an element of the limitation of relative fundamental rights, as we have seen above,Footnote 239 and applies elsewhere.Footnote 240 Art 51(1) CFR explains the relational element of proportionality: “Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others”. A certain measure must be put in relation with an accepted reason of justification, or as mentioned here, a recognised objective of general interest.
The principle of proportionality then consists of three elements, suitability, necessity and ‘proportionality stricto sensu’, where the latter one is not always applied by the CJEU. According to the first element of suitability, “the measure at issue must indeed contribute to achieving the aim pursued”, and the question “is whether the measure has any benefits at all for the legitimate interests on which the Member State relies”.Footnote 241 If the objective is to avoid the spreading of a communicable disease (e.g., BSE), making importers of potentially contaminated meat to simply pay money, then this measure will not be suitable to achieve this objective (public health). The second element on the necessity of the measure “concerns the question whether an alternative [!] measure is realistically available that would protect the Member State’s legitimate interests just as effectively, but would be less restrictive [!] of [e.g., the fundamental freedoms]”.Footnote 242 In the case of the import of potentially contaminated meat, strict controls on meat coming from clearly not affected areas (i.e., the measure) might go beyond what is necessary, in order to protect public health (i.e., the objective). Finally, the third element of ‘proportionality stricto sensu’ can be expressed as follows. “[T]he greater the degree of detriment to the principle of [the fundamental freedoms], the greater must be the importance of satisfying the public interest on which the Member State relies”, hence “the Member State must demonstrate that the level of protection it decides to afford to its legitimate interests is commensurate with the degree of interference this causes in intra-Community trade”.Footnote 243 As AG Maduro further clarifies, the difference in relation to the second element “is that, as a result of the third test, a Member State may be required to adopt a measure that is less restrictive of intra-Community trade, even if this would lead to a lower [!] level of protection of its legitimate interests”.Footnote 244 Here, in a similar way as the above-mentioned margin of appreciation doctrine of the ECtHR, the CJEU “usually allows the Member State a certain amount of discretion in choosing the desired level of protection to be afforded to the public interest at issue”.Footnote 245 Consequently, “different Member States may attribute different values to the legitimate interests they consider worth protecting”, unless EU law “already clearly identifies a common level of protection of the legitimate interest under consideration”.Footnote 246
Proportionality is not only a legal principle applied by both the CJEU and the ECtHR,Footnote 247 but it can also be found in ethical literature.Footnote 248 As Kirste has aptly stated, a proportionality review is also related to values.Footnote 249 In either case, proportionality is about finding a balance between two competing elements, for instance, the economic fundamental freedoms on the one side, and legitimate reasons (accepted by the CJEU) of the Member States to restrict these freedoms. In the field of energy solidarity, the ECJ has emphasised the balance between various interests: “the EU institutions and the Member States are required to take into account, in the context of the implementation of that policy, the interests both of the European Union and of the various Member States that are liable to be affected and to balance [!] those interests where there is a conflict”.Footnote 250 In a recent case on the Islamic veil, the ECJ has also stressed the necessity to strike “a fair balance” between various CFR rights.Footnote 251
To bring things full circle, let us again turn to where we started in this chapter (‘Relation values to other concepts’, Sect. 4.3). Concerning the four major historic steps (1st step: economic integration; 2nd step: economic fundamental rights; 3rd step: political integration; 4th step: values) of European integration, we have seen the necessity to balance these sometimes-competing elements.
The following figure (Fig. 4.2) is not meant to diminish the importance of values, which are in the spotlight of this book. Nor shall it be seen to weaken fundamental (or human) rights, which have luckily seen an increasing importance in EU law. It is rather meant to acknowledge the fact that in everyday decisions, values will not be the only concern of decision-makers. On the one hand, we have economic integration, the starting point of EU integration, comprising both the economic fundamental freedoms and harmonisation of national law. Already in this field, we have competing and non-economic interests. Early in the Cassis case, the ECJ has accepted ‘mandatory requirements in the general interest’, as case-law developed reasons of justification for restrictions to the fundamental freedoms, besides the Treaty based reasons (e.g., Art 36 TFEU).Footnote 252 Human rights can be seen as complementing these non-economic reasons. Many of these concepts overlap with what the CJEU has developed in its case-law, public health (Art 35 CFR), environmental protection (Art 37 CFR), consumer protection (Art 38 CFR), etc. Additionally, one also must acknowledge the political and geo-political perspective, both in the EU’s internal, but especially also in its externals sphere. The CFSP is only one prominent example to be named in this context. This map is not meant to be a tool for the legal solution to a specific case; rather, it should raise awareness of these four elements and invite to strive a balanced solution. As in the case of the golden mean of Aristotle, this golden mean cannot simply be achieved according to an arithmetic progression.Footnote 253
4.4 Lessons Learned
Already in the summary of the previous chapter (cf. Sect. 3.6), we have seen the various relations between values and other provisions of EU law, which have now been further covered in this chapter. The question of the relationship of the values to each other (Sect. 4.1) has revealed that ideally values strengthen each other. This was the case for the ‘values trinity’ of democracy, the rule of law and human rights. We have also seen this phenomenon for justice and the rule of law, as justice in itself has been qualified as hardly justiciable. We have also seen the ‘combination’ of human dignity and equality, i.e., ‘égale dignité’. Likewise, pluralism, tolerance and rights of minorities are inherently linked, as a pluralist and tolerant society cannot deny these human rights of minorities. Obviously, values can also weaken each other, for instance democratic decisions leading to a limitation of human rights. Values also have limitations in themselves, for instance the freedom of one person that is inherently limited by freedom of other persons. As Art 2 TEU values are all EU primary law, there can be no formal but only a substantive ranking of values. For the same reason, there can be no technical primacy of one value over another one. Within a country (united in diversity), there can be one or more ranking orders, the same holds true for the situation between two countries. It might be easier to establish such a ranking in specific fields. In the field of healthcare, precaution (Sect. 220.127.116.11) and proportionality (Sect. 18.104.22.168) have been suggested. Ultimately, a ranking of the EU’s common values has to take into account the above-mentioned ideas of balancing (cf. also Sect. 22.214.171.124) and the minimum approach (more unity in the core of a concept, potentially more diversity at the periphery). In addition, a transparent public debate about these fundamental questions (e.g., ranking the protection of the embryo or medical research higher) is indispensable.
The values of the hub of Art 2 TEU have various relations to other provisions of EU law (Sect. 4.2), covering both primary and secondary EU law. The Court (Polish disciplinary regime) has even held that compliance with the EU’s values is a precondition for the enjoyment of all the rights deriving from the EU treaties. Like for the relation of EU values to each other (see above), also in the relation to other provisions of EU law we can identify some provisions potentially strengthening these values. This is the case for the principle of sincere cooperation (Art 4 TEU), the EU’s objectives (Art 3 TEU), the EU’s institutional framework (Art 13 TEU), and the accession requirements (Art 49 TEU). On the other hand, Art 4(2) TEU referring to the respect of national identities could be seen as a potential argument weakening the common values. However, it has been convincingly argued that this provisionFootnote 254 does not allow a Member State to disrespect Art 2 TEU. One prominent example of three provisions of this lattice adding up to a greater whole are Art 19(1) second sentence TEU, Art 267 TFEU and Art 47 CFR in the context of the rule of law. They represent one single principle of judicial independence, despite their different purposes, also requiring different types of examination.
For the enforcement of EU values, the ‘reverse Solange’ doctrine can be an important contribution in case of systematic violations, as any court in the EU (including the CJEU) can scrutinise any national measure if the essence (!) of the EU’s values of Art 2 TEU, as further substantiated by EU law (e.g., CFR) is affected. In this context we have also seen the strong link to human rights (both CFR and ECHR), which is not surprising, given the fact that human rights figure amongst the values mentioned in Art 2 TEU. Likewise, there are also multiple relations of the hub of Art 2 TEU and EU Secondary law, working in either direction and leading to mutual benefits (value-conform interpretation, further clarification, easier justiciability, etc.).
Based on the historic development of EU integration we have also seen the relation to other concepts (Sect. 4.3). EU integration has started with economic integration, adding human rights, the political dimension, and finally turning the EU into a Union of values. Each subsequent step builds on and does not replace the previous one(s).
As already mentioned various times, the author puts an emphasis on the mutual beneficial relation of EU values and principles, which feeds into to overall idea of broader ‘concepts’. While such a selection will always remain subjective to a certain degree, there is good reason to have chosen the three current challenges of climate change, the pandemic and digitalisation. Besides these recent concerns, this also corresponds to what has been covered earlier in this book (cf. Chap. 3). One such concept is vulnerability, which goes into a similar direction as humanitarian solidarity (literature) and social solidarity (ECtHR). It is essential for a community, especially in an era of increasing gaps, to ‘leave no one behind’ (see Sect. 5.3). Another concept is responsibility, where this book as argued to supplement human rights with human obligations. This complementary element can also be seen as an element of the suggested balancing approach (cf. the ‘circle of balance’ to acknowledge the four existing dimensions of EU integration). For the pandemic, climate change and for digitalisation precaution is key in order to deal with uncertainties that can have a huge impact on our societies. In the current climate crisis, sustainability does not require much explanation (see Sect. 5.2).
An emphasis on values and ethics is key for maintaining or regaining citizens’ trust (see Sect. 5.1), amongst others for decision-making and digitalisation. So far, Art 2 TEU puts an emphasis on the EU itself and the Member States. Hence, the question remains to which extent also citizens need to move into the spotlight. This includes the questions of supplementing values with virtues (see Sect. 5.4).
On a broader scale, one would have to distinguish both various areas (law, ethics, policy, religion, aesthetics, etc.), as well as various kinds of values (personal, impersonal, intrinsic or extrinsic). The author wants to thank Göran Hermerén for valuable feedback in this regard; for further details, see Hermerén (2015). Concerning areas, the following will mainly focus on law (and ethics), on extrinsic vs. intrinsic values, see infra Sect. 5.2. For reasons of space, more detailed explanations must be refrained from.
As Berger (2021), p. 11 mentions, an illiberal democracy will most likely fall short on both democracy and the rule of law.
Bührer (2020), p. 167.
ECtHR judgement of 4 December 2003, Gündüz vs. Turkey, 35071/97, para 40.
AG Stix-Hackl opinion of 18 March 2004, Omega, C-36/02, EU:C:2004:162, para 80.
Berka (2019), p. 668, translated with DeepL.
On justice and equality, see Walzer (1983).
ECJ judgement of 20 April 2021, Repubblika, C-896/19, EU:C:2021:311, para 62. See also ECJ judgement of 18 May 2021, Asociaţia “Forumul Judecătorilor Din România”, joined cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, EU:C:2021:393, para 160; ECJ judgement of 22 June 2021, Venezuela vs. Council, C-872/19 P, EU:C:2021:507, para 48; ECJ judgement of 15 July 2021, Commission vs. Poland (Régime disciplinaire des juges), C-791/19, EU:C:2021:596, para 50.
Berger (2021), pp. 11–12.
AG Stix-Hackl opinion of 18 March 2004, Omega, C-36/02, EU:C:2004:162, para 77.
“Das Recht ist also der Inbegriff der Bedingungen, unter denen die Willkür des einen mit der Willkür des anderen nach einem allgemeinen Gesetze der Freiheit zusammen vereinigt werden kann”, Kant (1966), pp. 34–35.
“Eine jede Handlung ist recht, die oder nach deren Maxime die Freiheit der Willkür eines jeden mit jedermanns Freiheit nach einem allgemeinen Gesetze zusammen bestehen kann”, Kant (1966), p. 35.
See also Hermerén (2006), p. 21.
In other terms, this could be seen as the above-mentioned ‘private autonomy’, also enshrined in Art 16 CFR.
Hermerén (2006), p. 21.
ECtHR judgement of 8 April 2021, Vavřička and Others v. The Czech Republic, 47621/13 and 5 others, para 279 (see also para 306).
Regulation (EU, Euratom) 2020/2092 of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, OJ 2020 LI 433/1, recital 6. See also Berger (2021), p. 11.
Habermas (1992), p. 310; translated with DeepL.
OJ 2007 C 303/17. See also AG Stix-Hackl opinion of 18 March 2004, Omega, C-36/02, EU:C:2004:162, para 76, “the underlying basis and starting point for all human rights distinguishable from it”.
Hermerén (2006), p. 23.
Hermerén (2006), p. 25.
Hermerén (2006), p. 30.
Hermerén (2006), p. 25.
Hermerén (2006), p. 35.
Hermerén (2006), p. 38.
ECJ judgement of 15 July 2021, WABE, joined cases C-804/18 and C-341/19, EU:C:2021:594, para 84. In this case of religious signs at work, the balancing referred to the following CFR rights: Art 21 CFR (non-discrimination), Art 10 CFR (right to freedom of thought, conscience and religion), Art 14(3) CFR (right of education), and Art 16 CFR (freedom to conduct a business).
ECJ judgement of 12 June 2003, Schmidberger, C-112/00, EU:C:2003:333, para 81.
The absolute right not to be tortured (Art 3 ECHR) has already been mentioned; ECtHR judgement of 1 June 2010, Gäfgen vs. Germany, 22978/05, para 87.
Convention for the protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (adopted 4 April 1997, entered into force 1 December 1999), ETS No 164.
Hermerén (2006), p. 11.
Sommermann (2020), p. 268; translated with DeepL.
Habermas (1992), p. 315; translated with DeepL.
See also Sommermann (2020), p. 264.
Directive 98/44/EC of 6 July 1998 on the legal protection of biotechnological inventions, OJ 1998 L 213/13.
Frischhut (2019), p. 146, in thesis No 26.
According to Scharfbillig et al. (2021) “the EU slogan ‘United in diversity’ […] can be understood mostly through the lens of values diversity within Member States and less so between them”.
Following these two cases: ECJ judgement of 29 May 2018, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others, C-426/16, EU:C:2018:335; ECJ judgement of 26 February 2019, Oeuvre d’assistance aux bêtes d’abattoirs, C-497/17, EU:C:2019:137.
ECJ judgement of 17 December 2020, Centraal Israëlitisch Consistorie van België and Others, C-336/19, EU:C:2020:1031, para 41.
Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing, OJ 2009 L 303/1, as amended by OJ 2018 L 122/11.
ECJ judgement of 17 December 2020, Centraal Israëlitisch Consistorie van België and Others, C-336/19, EU:C:2020:1031, para 47.
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ 2000 L 303/16.
ECJ judgement of 15 July 2021, WABE, joined cases C-804/18 and C-341/19, EU:C:2021:594, para 87.
Frischhut (2019), p. 144, in thesis No 9.
Calliess (2004), p. 1042.
Tridimas (2006), p. 553, with further references.
I.e., at the beginning of Sect. 4.1.1.
See also Calliess (2004), p. 1042.
Calliess (2004), p. 1042.
Schroeder (2016), p. 11.
Frischhut (2019), pp. 27, 146.
ECJ judgement of 15 July 2021, Commission vs. Poland (Régime disciplinaire des juges), C-791/19, EU:C:2021:596, para 51; see also ECJ judgment of 21 December 2021, Euro Box Promotion and Others, joined cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, EU:C:2021:1034, para 162.
“[…] reinforcing the European identity and its independence in order to promote peace, security and progress in Europe and in the world”.
ECJ judgement of 6 March 2018, Achmea, C-284/16, EU:C:2018:158, para 33.
ECJ judgement of 26 February 2013, Melloni, C-399/11, EU:C:2013:107, para 60.
BVerfG judgement of 21 June 2016, OMT programme, 2 BvR 2728/13, 2 BvR 2729/13, 2 BvR 2730/13, 2 BvR 2731/13, 2 BvE 13/13, headnote 3 (no emphasis added).
Concerning human rights, see von Bogdandy (2000), p. 1317.
Hillion (2016), p. 63.
See also Helsinki Rule of Law Forum (2022), p. 2, whereas “[c]onstitutional identity cannot serve as a pretext for departing from the fundamental principles of the rule of law”. AG Collins opinion of 20 January 2022, RS (Effet des arrêts d’une cour constitutionnelle), C-430/21, EU:C:2022:44, para 62 has emphasised that “[v]ague, general and abstract assertions” of Member States in this regard are not enough. He also made clear that “assertions of national identity must respect the common values referred to in Article 2 TEU” (para 64).
ECJ judgement of 15 July 2021, Germany vs. Poland [energy solidarity], C-848/19 P, EU:C:2021:598, para 41.
EC communication ‘A New EU Framework to Strengthen the Rule of Law’, COM (2014) 158 final/2 19.3.2014.
ECJ opinion of 18 December 2014, Adhésion de l’Union à la CEDH, Avis 2/13, EU:C:2014:2454, para 172.
ECJ opinion of 18 December 2014, Adhésion de l’Union à la CEDH, Avis 2/13, EU:C:2014:2454, para 172; no emphasis added.
ECJ judgement of 24 January 1991, Alsthom vs. Sulzer, C-339/89, EU:C:1991:28, para 9. See also ECJ judgement of 3 June 2010, Caja de Ahorros y Monte de Piedad de Madrid, C-484/08, EU:C:2010:309, paras 46–47.
ECJ judgement of 9 February 1982, Polydor and Others vs. Harlequin and Others, C-270/80, EU:C:1982:43, para 16; ECJ judgement of 3 October 2000, Échirolles Distribution, C-9/99, EU:C:2000:532, para 24.
Klamert (2019), p. 32.
Klamert (2019), p. 32.
AG Kokott opinion of 4 May 2016, Poland vs. Parliament and Council, C-358/14, EU:C:2015:848, para 163.
Cf. Sect. 3.3.2.
ECJ judgement of 20 April 2021, Repubblika, C-896/19, EU:C:2021:311, para 61.
Cf. Closa and Kochenov (2016), p. 185.
On the challenges of invoking this provision, see Closa and Kochenov (2016), pp. 185–186.
Council of the EU, Opinion of the Legal Service of 27.5.2014. Commission’s Communication on a new EU Framework to strengthen the Rule of Law: compatibility with the Treaties, 10296/14, p. 5 (pt. 17).
Griller (2020), p. 161.
EC ‘A New EU Framework to Strengthen the Rule of Law’, COM (2014) 158 final/2 19.3.2014 and EC ‘Further strengthening the Rule of Law within the Union’, COM(2019) 163 final 3.4.2019.
“Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”.
AG Bobek opinion of 20 May 2021, Prokuratura Rejonowa w Mińsku Mazowieckim, joined cases C-748/19 to C-754/19, EU:C:2021:403, para 162 (no emphases added).
AG Bobek opinion of 20 May 2021, Prokuratura Rejonowa w Mińsku Mazowieckim, joined cases C-748/19 to C-754/19, EU:C:2021:403, para 163.
AG Bobek opinion of 8 July 2021, Getin Noble Bank, C-132/20, EU:C:2021:557, para 39; emphases added.
AG Bobek opinion of 8 July 2021, Getin Noble Bank, C-132/20, EU:C:2021:557, para 37; emphases added.
AG Bobek opinion of 8 July 2021, Getin Noble Bank, C-132/20, EU:C:2021:557, para 38; emphases added.
AG Tanchev opinion of 6 May 2021, Commission vs. Poland (Régime disciplinaire des juges), C-791/19, EU:C:2021:366, para 69.
AG Bobek opinion of 8 July 2021, Getin Noble Bank, C-132/20, EU:C:2021:557, para 40; emphases added.
AG Bobek opinion of 8 July 2021, Getin Noble Bank, C-132/20, EU:C:2021:557, para 41; emphases added.
AG Bobek opinion of 8 July 2021, Getin Noble Bank, C-132/20, EU:C:2021:557, para 60; no emphasis added.
AG Bobek opinion of 8 July 2021, Getin Noble Bank, C-132/20, EU:C:2021:557, para 35; emphases added.
AG Bobek opinion of 4 March 2021, Euro Box Promotion and Others, joined cases C-357/19 and C-547/19, EU:C:2021:170, para 74; emphases added. See also AG Bobek opinion of 4 March 2021, DNA- Serviciul Teritorial Oradea, C-379/19, EU:C:2021:174, para 47, and AG Bobek opinion of 4 March 2021, FQ and Others, joined cases C-811/19 and C-840/19, EU:C:2021:175, para 51.
As further complemented, by Art 251 to Art 281 TFEU.
ECJ judgement of 15 July 2021, Commission vs. Poland (Régime disciplinaire des juges), C-791/19, EU:C:2021:596, para 53; emphases added. See also ECJ judgement of 18 May 2021, Asociaţia “Forumul Judecătorilor Din România”, joined cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, EU:C:2021:393, para 192.
ECJ judgement of 20 April 2021, Repubblika, C-896/19, EU:C:2021:311, para 63.
AG Tanchev opinion of 6 May 2021, Commission vs. Poland (Régime disciplinaire des juges), C-791/19, EU:C:2021:366, para 63, emphases added.
ECJ judgement of 22 June 2021, Venezuela vs. Council, C-872/19 P, EU:C:2021:507, para 50.
The following is essentially based on von Bogdandy and Spieker (2020a).
BVerfG order of 29 May 1974, Solange I, BvL 52/71, BVerfGE 37, 271, para 56.
von Bogdandy and Spieker (2020a), p. 530, with further details.
Likewise, “mutual trust between the Member States […] is based on the fundamental premiss that Member States share a set of common values”, ECJ judgement of 15 July 2021, Commission vs. Poland (Régime disciplinaire des juges), C-791/19, EU:C:2021:596, para 50.
von Bogdandy and Spieker (2020a), p. 530. On ‘homogeneity’, ‘strukturelle Kongruenz’, or ‘equivalence’, all pointing into a similar direction, see Sect. 126.96.36.199. See also ECtHR judgement of 30 June 2005, Bosphorus vs. Ireland, 45036/98, para 156: “However, any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient”, on the equivalence between the ECHR and fundamental rights in what today is the EU.
This paragraph draws on von Bogdandy and Spieker (2020a), p. 527.
ECJ judgement of 26 February 2013, Melloni, C-399/11, EU:C:2013:107, para 60. Meanwhile, see also Art 54 CFR (level of protection).
ECJ judgement of 8 March 2011, Ruiz Zambrano, C-34/09, EU:C:2011:124, para 42.
See Sect. 1.5.4 and the threshold in case of mutual confidence, as mentioned in ECJ judgement of 21 December 2011, N. S. and Others, joined cases C-411/10 and C-493/10, EU:C:2011:865.
von Bogdandy and Spieker (2020a), p. 533.
von Bogdandy et al. (2012), p. 491.
von Bogdandy et al. (2012), p. 491; no emphases added.
von Bogdandy et al. (2012), p. 491.
ECJ judgement of 5 February 1963, Van Gend en Loos, C-26/62, EU:C:1963:1, p. 13.
Important to note that the bottom-up vs. top-down perspective mentioned at the beginning of this section (relating to one level setting up requirements for this presumption) should not be confused with the aspect addressed here, that is to say enforcement in a bottom-up (via individuals) or top-down (via the Commission) way.
von Bogdandy and Spieker (2020a), p. 531; no emphases added.
ECJ judgement of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften, C-684/16, EU:C:2018:874, para 68 (here, in the context of a directive).
ECJ judgement of 5 October 2004, Pfeiffer and Others, joined cases C-397/01 to C-403/01, EU:C:2004:584, para 114, the “requirement for national law to be interpreted in conformity with [EU] law is inherent in the system of the Treaty, since it permits the national court, for the matters within its jurisdiction, to ensure the full effectiveness of Community law when it determines the dispute before it”.
von Bogdandy and Spieker (2020a), p. 536.
von Bogdandy and Spieker (2020a), p. 535.
Jakab (2017), p. 255.
von Bogdandy and Spieker (2020a), p. 528.
Calliess (2004), p. 1040; translated with DeepL.
Hillion (2016), p. 70.
This table does not cover those values addressed in Art 3 TEU on the EU’s objectives.
The UK is an example of a country not being bound to the CFR anymore (due to Brexit), but to the ECHR.
First, referring to general principles of law, later also interpreting the CFR.
ECtHR judgement of 16 July 2009, Feret vs. Belgium, 15615/07, para 64 (own translation, emphasis added).
AG Stix-Hackl opinion of 18 March 2004, Omega, C-36/02, EU:C:2004:162, para 80.
Due to the broad case-law, other elements of (gender) equality, respectively, non-discrimination are not further covered in this analysis.
Cf. Frischhut (2021).
ECtHR judgement of 17 September 2009, Manole and Others vs. Moldova, 13936/02, para 95.
ECtHR judgement of 14 February 2006, Christian Democratic People’s Party vs. Moldova, 28793/02, para 64.
ECtHR judgement of 3 September 2013, M.C. and Others vs. Italy, 5376/11, para 60 (translated with DeepL, emphasis added).
ECtHR judgement of 3 May 2007, Bączkowski and Others vs. Poland, 1543/06, para 62.
ECtHR judgement of 18 January 2001, Beard vs. the United Kingdom, 24882/94, para 104.
Canihac (2021), p. 504.
ECtHR judgement of 23 April 2015, Morice vs. France, 29369/10, para 78.
“Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.”
Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time, OJ 2003 L 299/9.
ECJ judgement of 9 March 2021, Radiotelevizija Slovenija (Période d’astreinte dans un lieu reculé), C-344/19, EU:C:2021:182, para 27; see also ECJ judgement of 9 March 2021, Stadt Offenbach am Main (Période d’astreinte d’un pompier), C-580/19, EU:C:2021:183, para 28.
Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, OJ 2001 L 212/12, Art 21 (voluntary return) and Art 22 (enforced return).
Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ 2008 L 348/98, recital 2, recital 17, Art 8(4).
Directive 2013/33/EU of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), OJ 2013 L 180/96, Art 20(5) “dignified standard of living”, see also recitals 11, 18, 25, and 35.
Directive 2013/32/EU of 26 June 2013 on common procedures for granting and withdrawing international protection, OJ 2013 L 180/60, Art 13(2)(d) and recital 60.
Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), OJ 2011 L 337/9, recital 16 (“Directive seeks to ensure full respect for human dignity and the right to asylum”). See on this provision, ECJ judgement of 14 May 2019, M, joined cases C-391/16, C-77/17 and C-78/17, EU:C:2019:403, para 82.
Directive 2006/123/EC of 12 December 2006 on services in the internal market, OJ 2006 L 376/36, recitals 27 and 41.
Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States […], OJ 2004 L 158/77, as corrected by OJ 2007 L 204/28, recital 15.
Directive (EU) 2017/541 of 15 March 2017 on combating terrorism […], OJ 2017 L 88/6, Art 25 and recitals 1 and 2.
Directive 98/44/EC of 6 July 1998 on the legal protection of biotechnological inventions, OJ 1998 L 213/13.
On equality, see for instance, EC recommendation (EU) 2018/951 of 22 June 2018 on standards for equality bodies, OJ 2018 L 167/28.
Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals, OJ 1994 L 368/38, as amended by OJ 2013 L 158/231. See also Art 40 CFR.
Regulation (EU) 2019/788 of 17 April 2019 on the European citizens’ initiative, OJ 2019 L 130/55, as amended by OJ 2019 L 257/1.
Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 2001 L 145/43. See also Art 15(3) TFEU, Art 42 CFR.
Regulation (EU, Euratom) 2020/2092 of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, OJ 2020 LI 433/1. See also, supra, Sect. 3.5.1.
Council conclusions on safeguarding a free and pluralistic media system, OJ 2020 C 422/8, pt. 16.
Council conclusions ‘Access to justice – seizing the opportunities of digitalisation’, OJ 2020 CI 342/1.
Council Regulation (EC) No 2012/2002 of 11 November 2002 establishing the European Union Solidarity Fund, OJ 2002 L 311/3, as amended by OJ 2020 L 99/9.
EC communication ‘Guidelines on EU Emergency Assistance on Cross-Border Cooperation in Healthcare related to the COVID-19 crisis’, OJ 2020 CI 111/1.
Regulation (EU) 2021/888 of the European Parliament and of the Council of 20 May 2021 establishing the European Solidarity Corps Programme […], OJ 2021 L 202/32.
Directive 98/44/EC of 6 July 1998 on the legal protection of biotechnological inventions, OJ 1998 L 213/13.
ECJ judgement of 9 October 2001, Netherlands vs. Parliament and Council, C-377/98, EU:C:2001:523, para 71; besides other reasons.
Taken form the title of Cohen (2010).
For further details, see Frischhut (2003), pp. 33–34.
It is important to emphasise that the respective following steps do not replace but supplement the previous ones.
ECJ judgement of 12 June 2003, Schmidberger, C-112/00, EU:C:2003:333, para 81.
ECJ judgement of 14 October 2004, Omega, C-36/02, EU:C:2004:614, para 34.
ECJ judgement of 14 October 2004, Omega, C-36/02, EU:C:2004:614, para 41.
Tridimas (2006), p. 556, emphases added.
On the other hand, two, if “the rights of persons belonging to minorities” are counted separately.
Source and further details: Council of the EU (2020).
ECJ judgement of 3 September 2008, Kadi and Al Barakaat International Foundation vs. Council and Commission, joined cases C-402/05 P and C-415/05 P, EU:C:2008:461.
Council common position 1999/727/CFSP of 15 November 1999 concerning restrictive measures against the Taliban, OJ 1999 L 294/1; N.B. No longer in force.
Council of the EU (2020).
General Secretariat of the Council (2018), p. 7.
ECJ judgement of 3 September 2008, Kadi and Al Barakaat International Foundation vs. Council and Commission, joined cases C-402/05 P and C-415/05 P, EU:C:2008:461, para 303.
Council Regulation (EU) 2020/1998 of 7 December 2020 concerning restrictive measures against serious human rights violations and abuses, OJ 2020 LI 410/1, as amended by OJ 2021 LI 445/10; Council Decision (CFSP) 2020/1999 of 7 December 2020 concerning restrictive measures against serious human rights violations and abuses, OJ 2020 LI 410/13, as amended by OJ 2021 LI 445/17.
Editorial Comments (2021), p. 621.
EP resolution of 14 March 2019 on a European human rights violations sanctions regime (2019/2580(RSP)), para 3.
Frischhut (2019), p. 142, cf. also thesis No 25 on p. 146.
Frischhut (2019), p. 143.
Brännmark (2016), p. 481; see also Brännmark and Sahlin (2010), and the following quotation on medical ethics, which can be applied analogously to our topic: “what disunitarianism points to is a conception of medical ethics where morality, politics, and law are more strongly integrated”; Brännmark (2019), p. 10.
Supra, Sect. 1.5.3.
Reimer (2003), p. 209; translated with DeepL.
Calliess (2004), p. 1034; translated with DeepL.
Streinz (2018), p. 10.
Tridimas (2006), p. 1.
Beauchamp and Childress (2019), p. 13.
See supra, Sect. 188.8.131.52.
The author wants to thank Göran Hermerén for his feedback emphasising that principles can also promote and protect values.
Council conclusions on Common values and principles in European Union Health Systems, OJ 2006 C 146/1; see supra, Sect. 2.3.1.
EC ‘2030 Digital Compass: the European way for the Digital Decade’, COM(2021) 118 final 9.3.2021, p. 13.
E.g. Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data […] (General Data Protection Regulation), OJ 2016 L 119/1 [GDPR].
Andorno (2016), p. 257.
Emphasising the responsibility towards vulnerable persons: VfGH judgement of 11.12.2020, Prohibiting any form of assisted suicide without exception is unconstitutional, G 139/2019, para 69. On vulnerability and justice, see Sajó (2015).
Directive 2013/33/EU of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), OJ 2013 L 180/96.
E.g., in case of detention (Art 11), in the field of healthcare (Art 17), and in a distinct chapter IV on vulnerable persons, also regarding minors (Art 23), unaccompanied minors (Art 24), victims of torture and violence (Art 25), etc.
ter Meulen (2017), p. ix.
ter Meulen (2017), p. 185.
ECtHR judgement of 8 April 2021, Vavřička and Others v. The Czech Republic, 47621/13 and 5 others, para 279 (see also para 306).
See also Shafik (2021), pp. 163, 186–187.
BVerfG order of 24 March 2021, Constitutional complaints against the Climate Protection Act partially successful, 1 BvR 2656/18, 1 BvR 96/20, 1 BvR 78/20, 1 BvR 288/20, 1 BvR 96/20, 1 BvR 78/20, para 193 (translation, emphases added).
ECJ judgement of 6 September 2017, Slovakia vs. Council [relocation], joined cases C-643/15 and C-647/15, EU:C:2017:631 [relocation], para 291, see also paras 253, 293. Confirmed in ECJ judgement of 2 April 2020, Commission vs. Poland (Temporary mechanism for the relocation of applicants for international protection), joined cases C-715/17, C-718/17 and C-719/17, EU:C:2020:257, para 80 (emphasis added).
For a good take on freedom and responsibility in the current pandemic, see Chadwick (2021).
Precht (2021), p. 131.
See, infra, Sect. 5.3.
GC judgement of 16 September 2013, ATC and Others vs. Commission, T-333/10, EU:T:2013:451, para 79.
GC order of 28 September 2007, France vs. Commission, T-257/07 R, EU:T:2007:300, para 61 (emphases added).
GC judgement of 11 September 2002, Alpharma vs. Council, T-70/99, EU:T:2002:210, para 155.
Art 9, Art 114(3), and Art 168(1) TFEU.
Art 114(3), Art 169(1) TFEU.
Art 3(3), Art 114(3), Art 191(2) TFEU. The latter provision explicitly mentions “the precautionary principle”.
Council Regulation (EC) No 3062/95 of 20 December 1995 on operations to promote tropical forests, OJ 1995 L 327/9; N.B. No longer in force (Art 2 ).
Jonas (1979), p. 36.
BVerfG order of 24 March 2021, Constitutional complaints against the Climate Protection Act partially successful, 1 BvR 2656/18, 1 BvR 96/20, 1 BvR 78/20, 1 BvR 288/20, 1 BvR 96/20, 1 BvR 78/20, para 193 (translation). This “includes the need to treat the natural foundations of life with such care and to leave them to posterity in such a state that subsequent generations could not continue to preserve them only at the price of radical abstinence of their own [...]”.
Cf. Directive (EU) 2018/958 on a proportionality test before adoption of new regulation of professions, OJ 2018 L 173/25.
AG Maduro opinion of 13 July 2006, Ahokainen und Leppik, C-434/04, EU:C:2006:462, para 24.
AG Maduro opinion of 13 July 2006, Ahokainen und Leppik, C-434/04, EU:C:2006:462, para 25.
AG Maduro opinion of 13 July 2006, Ahokainen und Leppik, C-434/04, EU:C:2006:462, para 26 (emphases added).
AG Maduro opinion of 13 July 2006, Ahokainen und Leppik, C-434/04, EU:C:2006:462, para 26.
AG Maduro opinion of 13 July 2006, Ahokainen und Leppik, C-434/04, EU:C:2006:462, para 26.
AG Maduro opinion of 13 July 2006, Ahokainen und Leppik, C-434/04, EU:C:2006:462, para 26 (emphasis added).
ECtHR judgement of 23 September 1998, Lehideux and Isorni vs. France, 24662/94, concurring opinion of judge Jambrek, para 3; referring to ECtHR judgement of 23 July 1968, Case “relating to certain aspects of the laws on the use of languages in education in Belgium” vs. Belgium, 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64, para 5: “The Court recognised quite early in its jurisprudence that both the historical context in which the Convention was concluded and new developments require ‘a just balance between the protection of the general interest of the community and the respect due to fundamental human rights, while attaching particular importance to the latter’”.
Kirste (2020), p. 181.
ECJ judgement of 15 July 2021, Germany vs. Poland [energy solidarity], C-848/19 P, EU:C:2021:598, para 73.
ECJ judgement of 15 July 2021, WABE, joined cases C-804/18 and C-341/19, EU:C:2021:594, para 84: “It must therefore be observed that the interpretation of Directive 2000/78 thus adopted is in accordance with the case-law of the Court and that it ensures that, when several fundamental rights and principles enshrined in the Treaties are at issue, such as, in the present case, the principle of non-discrimination enshrined in Article 21 of the Charter and the right to freedom of thought, conscience and religion guaranteed in Article 10 of the Charter, on the one hand, and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions recognised in Article 14(3) of the Charter and the freedom to conduct a business recognised in Article 16 of the Charter, on the other hand, the assessment of observance of the principle of proportionality must be carried out in accordance with the need to reconcile the requirements of the protection of those various rights and principles at issue, striking a fair balance between them” (emphases added).
ECJ judgement of 20 February 1979, Rewe vs. Bundesmonopolverwaltung für Branntwein, C-120/78, EU:C:1979:42, para 8.
Aristotle (2000), p. 30, 1106b.
AG Kokott opinion of 15 April 2021, Stolichna obshtina, rayon “Pancharevo”, C-490/20, EU:C:2021:296, para 70 has recently emphasised that this is concept is “an autonomous concept of EU law the interpretation of which is a matter for the Court”.
Andorno, R. (2016). Is vulnerability the foundation of human rights? In A. Masferrer & E. García-Sánchez (Eds.), Human dignity of the vulnerable in the age of rights: Interdisciplinary perspectives (Ius Gentium: Comparative perspectives on law and justice) (Vol. 55, pp. 257–272). Springer International Publishing. https://doi.org/10.1007/978-3-319-32693-1_11
Aristotle (Ed.). (2000). Cambridge texts in the history of philosophy. Nicomachean ethics. Cambridge University Press.
Assmann, A. (2018). Menschenrechte und Menschenpflichten: Schlüsselbegriffe für eine humane Gesellschaft. Picus Verlag.
Beauchamp, T. L., & Childress, J. F. (2019). Principles of biomedical ethics (8th ed.). Oxford University Press.
Berger, M. (2021). Einführung in ausgewählte Kapitel des Europarechts: Werte der Union - Grundrechte - Raum der Freiheit, der Sicherheit und des Rechts (1. Auflage). Facultas.
Berka, W. (2019). Gleichheit als Rechtsprinzip in Europa. Zeitschrift Für Öffentliches Recht, 74(4), 651–671. https://doi.org/10.33196/zoer201904065101
Bieber, R. (2021). Wechselseitige Verantwortung der Mitgliedstaaten. Ein Rechtsprinzip der Europäischen Union? Zeitschrift für Europarechtliche Studien, (1), 221–230. https://doi.org/10.5771/1435-439X-2021-1-221
Boxill, B. (2010). Discrimination, affirmative action, and diversity in business: Chapter 18. In G. G. Brenkert & T. L. Beauchamp (Eds.), The Oxford handbook of business ethics (pp. 535–562). Oxford University Press.
Brännmark, J. (2016). Moral disunitarianism. The Philosophical Quarterly, 66(264), 481–499. https://doi.org/10.1093/pq/pqv114
Brännmark, J. (2019). The independence of medical ethics. Medicine, Health Care, and Philosophy, 22(1), 5–15. https://doi.org/10.1007/s11019-018-9842-1
Brännmark, J., & Sahlin, N.-E. (2010). Ethical theory and the philosophy of risk: First thoughts. Journal of Risk Research, 13(2), 149–161. https://doi.org/10.1080/13669870903126192
Bührer, T. (2020). Das Menschenwürdekonzept der Europäischen Menschenrechtskonvention. Schriften zum Europäischen Recht. Duncker & Humblot.
Burri, S. (2015). Equal treatment: The EU approach. In F. Pennings (Ed.), Research handbooks in European law. Research Handbook on European Social Security Law (pp. 231–256). Edward Elgar Publishing.
Calliess, C. (2004). Europa als Wertegemeinschaft: Integration und Identität durch europäisches Verfassungsrecht? Juristenzeitung, 59(21), 1033–1084.
Calliess, C. (2016). Art. 2 [Die Werte der Union]. In C. Calliess & M. Ruffert (Eds.), EUV/AEUV: Das Verfassungsrecht der Europäischen Union mit Europäischer Grundrechtecharta (5th ed., pp. 36–48). C.H. Beck.
Canihac, H. (2021). Is constitutional pluralism (il)liberal? on the political theory of European legal integration in times of crisis. German Law Journal, 22(4), 491–505. https://doi.org/10.1017/glj.2021.22
Canor, I. (2013). My brother’s keeper? Horizontal Solange: “an ever closer distrust among the peoples of Europe”. Common Market Law Review, 50(2), 383–421.
Chadwick, R. (2021). Freedom and responsibility in the Covid debate. Bioethics, 35(7), 607. https://doi.org/10.1111/bioe.12937
Closa, C., & Kochenov, D. (2016). Reinforcement of the rule of law oversight in the European Union: Key options. In W. Schroeder (Ed.), Strengthening the rule of law in Europe: From a common concept to mechanisms of implementation (pp. 173–196). Hart Publishing.
Cohen, I. G. (2010, March). Medical tourism: The view from ten thousand feet. Hastings Center Report, 11–12.
Council of the EU. (2020, October 20). Sanctions: How and when the EU adopts restrictive measures. https://www.consilium.europa.eu/en/policies/sanctions/
Dratwa, J. (2014). How values come to matter at the European Commission: Ethical experimentations of Europe. Politique Européenne, (45), 86–121.
Editorial Comments. (2015). Safeguarding EU values in the member states – Is something finally happening? Common Market Law Review, 52(3), 619–628.
Editorial Comments. (2021). A new tool in the union’s human rights toolbox. Common Market Law Review, 58(3), 621–634.
European Union Agency for Fundamental Rights, & Council of Europe. (2016). Handbook on European law relating to access to justice. Publications Office of the European Union.
Feinberg, W. (2003). Affirmative action. In H. LaFollette (Ed.), The Oxford handbook of practical ethics (pp. 272–299). Oxford University Press.
Frischhut, M. (2003). Die Rolle der Judikative in der Ausformung der Verbandsgewalt supranationaler Organisationen: EuGH, Andengerichtshof, Supreme Court und Conseil Constitutionnel im Vergleich. Peter Lang.
Frischhut, M. (2015). “EU”: Short for “ethical” union? The role of ethics in European Union law. Heidelberg Journal of International Law, 75(3), 531–577.
Frischhut, M. (2019). The ethical spirit of EU law. Springer International Publishing. https://doi.org/10.1007/978-3-030-10582-2
Frischhut, M. (2020a). EU values and ethical principles for AI and robotics with special consideration of the health sector. In M. Hengstschläger & Austrian Council for Research and Technology Development (Eds.), Digital transformation and ethics (pp. 244–274). Ecowin Verlag.
Frischhut, M. (2020b). EU Werte und ethische Prinzipien für KI und Robotik unter besonderer Berücksichtigung des Gesundheitssektors. In M. Hengstschläger & Rat für Forschung und Technologieentwicklung (Eds.), Digitaler Wandel und Ethik (pp. 286–318). Ecowin Verlag.
Frischhut, M. (2020c). Strengthening transparency and integrity via the new ‘Independent Ethics Body’ (IEB). Study requested by the European Parliament’s AFCO committee: PE 661.110. https://www.europarl.europa.eu/thinktank/en/document.html?reference=IPOL_STU%282020%29661110
Frischhut, M. (2021). Communicable and other infectious diseases: The EU perspective. In T. K. Hervey & D. Orentlicher (Eds.), The Oxford handbook of comparative health law (pp. 77–96). Oxford University Press.
Frischhut, M. (2022). Book review, Richard David Precht, Von der Pflicht: Eine Betrachtung. München: Goldmann Verlag, 2021. 174 pages. ISBN: 978-3-442-31639-7. European Journal of Health Law, 29(2), 321–325.
Frischhut, M., & Greer, S. L. (2017). EU public health law and policy – Communicable diseases. In T. K. Hervey, C. Young, & L. E. Bishop (Eds.), Research handbook on EU health law and policy (pp. 315–346). Edward Elgar Publishing.
General Secretariat of the Council. (2018, May 4). Sanctions guidelines – Update: Doc No 5664/18.
Grabenwarter, C., & Pabel, K. (2021). Europäische Menschenrechtskonvention (7. Auflage). Manz Verlag; C.H. Beck.
Griller, S. (2020). Theorie und Praxis der Sanktionierung von Verstößen gegen das Gebot der Rechtsstaatlichkeit gemäß Art 2 EUV. In C. Grabenwarter & E. Vranes (Eds.), Die EU im Lichte des Brexits und der Wahlen: Faktoren der Stabilität und Desintegration: 19. Österreichischer Europarechtstag 2019 (pp. 149–167). Manz Verlag.
Habermas, J. (1992). Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats. Suhrkamp.
Helsinki Rule of Law Forum. (2022). A declaration on the rule of law in the European Union. European Law Journal, eulj.12419. Advance online publication. https://doi.org/10.1111/eulj.12419
Hermerén, G. (2006). European values, ethics and law: Present policies and future challenges. Jahrbuch Für Wissenschaft Und Ethik, 11(1), 5–40.
Hermerén, G. (2008). European values – And others: Europe’s shared values: Towards an ever-closer Union? European Review, 16(3), 373–385. https://doi.org/10.1017/S1062798708000318
Hermerén, G. (2015). Werte. In D. Sturma & B. Heinrichs (Eds.), Handbuch Bioethik (pp. 165–173). J.B. Metzler.
Hermerén, G. (2021). The ethics of regenerative medicine. Biologia Futura, 72, 113–118. https://doi.org/10.1007/s42977-021-00075-3
Hillion, C. (2016). Overseeing the rule of law in the EU: Legal mandate and means. In C. Closa & D. Kochenov (Eds.), Reinforcing rule of law oversight in the European Union (pp. 59–81). Cambridge University Press.
Jakab, A. (2017). Application of the EU charter in national courts in purely domestic cases. In A. Jakab & D. Kochenov (Eds.), The enforcement of EU law and values: Ensuring member states’ compliance (pp. 252–262). Oxford University Press.
Jonas, H. (1979). Das Prinzip Verantwortung: Versuch einer Ethik für die technologische Zivilisation. Insel Verlag.
Kant, I. (1966). Metaphysik der Sitten: Herausgegeben von Karl Vorländer. Verlag von Felix Meiner.
Kirste, S. (2020). Das B-VG als Werteordnung – Zum Abschied vom Mythos einer wertneutralen Spielregelverfassung? Zeitschrift für öffentliches Recht, 75(1), 173–194. https://doi.org/10.33196/zoer202001017301
Klamert, M. (2019). Article 3 TEU. In M. Kellerbauer, M. Klamert, & J. Tomkin (Eds.), Commentary on the EU Treaties and the Charter of Fundamental Rights (pp. 31–34). Oxford University Press.
Lenaerts, K. (2017). Die Werte der Europäischen Union in der Rechtsprechung des Gerichtshofs der Europäischen Union: Eine Annäherung. Europäische Grundrechte-Zeitschrift, 44(21-23), 639–642.
O’Neill, O. (2002). Autonomy and trust in bioethics. Cambridge University Press.
O’Neill, O. (2016). Justice across boundaries: Whose obligations? Cambridge University Press. https://doi.org/10.1017/CBO9781316337103
O’Neill, O. (2019). Gerechtigkeit über Grenzen: Pflichten in der globalisierten Welt. Claudius.
Peroni, L., & Timmer, A. (2013). Vulnerable groups: The promise of an emerging concept in European human rights convention law. International Journal of Constitutional Law, 11(4), 1056–1085. https://doi.org/10.1093/icon/mot042
Pierik, R. (2020). Vaccination policies: Between best and basic interests of the child, between precaution and proportionality. Public Health Ethics, 13(2), 201–214. https://doi.org/10.1093/phe/phaa008
Polakiewicz, J., & Sandvig, J. (2016). The Council of Europe and the rule of law. In W. Schroeder (Ed.), Strengthening the rule of law in Europe: From a common concept to mechanisms of implementation (pp. 115–134). Hart Publishing.
Potacs, M. (2016). Wertkonforme Auslegung des Unionsrechts? Europarecht, 51(2), 164–176.
Precht, R. D. (2021). Von der Pflicht: Eine Betrachtung (Originalausgabe, 1. Auflage). Goldmann Verlag.
Raposo, V. L. (2021). Quarantines: Between precaution and necessity. A look at COVID-19. Public Health Ethics, 14(1), 35–46. https://doi.org/10.1093/phe/phaa037
Reding, V. (2013, September 4). The EU and the rule of law – What next? Speech/12/379. https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_13_677
Reimer, F. (2003). Wertegemeinschaft durch Wertenormierung? Die Grundwerteklausel im europäischen Verfassungsvertrag. Zeitschrift für Gesetzgebung, 208–217.
Sajó, A. (2015). Victimhood and vulnerability as sources of justice. In D. Kochenov, G. de Búrca, & A. T. Williams (Eds.), Europe’s justice deficit? (pp. 337–348). Hart Publishing.
Sandel, M. J. (2010). Justice: What’s the right thing to do? Farrar, Straus and Giroux.
Savulescu, J. (2020). Good reasons to vaccinate: Mandatory or payment for risk? Journal of Medical Ethics, 47(2), 78–85. https://doi.org/10.1136/medethics-2020-106821
Scharfbillig, M., Smillie, L., Mair, D., Sienkiewicz, M., Keimer, J., Pinho Dos Santos, R., Vinagreiro Alves, H., Vecchione, E., & Scheunemann, L. (2021). Values and identities - A policymaker’s guide. Publications Office of the European Union. https://publications.jrc.ec.europa.eu/repository/handle/JRC126150. https://doi.org/10.2760/022780
Schroeder, W. (2016). The European Union and the rule of law: State of affairs and ways of strengthening. In W. Schroeder (Ed.), Strengthening the rule of law in Europe: From a common concept to mechanisms of implementation (pp. 3–34). Hart Publishing.
Sedmak, C. (2015). Gemeinwohl und Verwundbarkeit. In W. J. Pfeil & S. Urnik (Eds.), Gesellschaftliche Verantwortung und Gemeinwohl als Unternehmensziele (pp. 1–14). Manz.
Shafik, M. (2021). What we owe each other. Princeton University Press.
Sommermann, K.-P. (2020). § 3 Die gemeinsamen Werte der Union und der Mitgliedstaaten. In M. Niedobitek (Ed.), Europarecht: Grundlagen und Politiken der Union (2nd ed., pp. 257–292). De Gruyter.
Steiner, E. (2016). The rule of law in the jurisprudence of the European court of human rights. In W. Schroeder (Ed.), Strengthening the rule of law in Europe: From a common concept to mechanisms of implementation (pp. 135–154). Hart Publishing.
Streinz, R. (2018). Principles and values in the European Union. In A. Hatje & L. Tichý (Eds.), Europarecht Beiheft: 2018, Beiheft 1. Liability of member states for the violation of fundamental values of the European Union (1st ed., pp. 9–22). Nomos Verlag.
ter Meulen, R. (2017). Solidarity and justice in health and social care. Cambridge University Press.
Timmermans, F. (2015, February 11). EU framework for democracy, rule of law and fundamental rights (debate).
Tridimas, T. (2006). The general principles of EU law (2nd ed.). Oxford University Press.
von Bogdandy, A. (2000). The European Union as a human rights organization? Human rights and the core of the European Union. Common Market Law Review, 37(6), 1307–1338.
von Bogdandy, A. (2003). Doctrine of principles: Jean Monnet working paper series No. 9/03.
von Bogdandy, A., Antpöhler, C., & Ioannidis, M. (2017). Protecting EU values reverse Solange and the rule of law framework. In A. Jakab & D. Kochenov (Eds.), The enforcement of EU law and values: Ensuring member states’ compliance (pp. 218–233). Oxford University Press.
von Bogdandy, A., Kottmann, M., Antpöhler, C., Dickschen, J., Hentrei, S., & Smrkolj, M. (2012). Reverse Solange: Protecting the essence of fundamental rights against EU member states. Common Market Law Review, 49(2), 489–519.
von Bogdandy, A., & Spieker, L. D. (2019). Countering the judicial silencing of critics: Article 2 TEU values, reverse Solange, and the responsibilities of national judges. European Constitutional Law Review, 15(3), 391–426. https://doi.org/10.1017/S1574019619000324
von Bogdandy, A., & Spieker, L. D. (2020a). Protecting fundamental rights beyond the charter: Repositioning the reverse Solange doctrine in light of the CJEU’s article 2 TEU case-law. In M. Bobek & J. Adams-Prassl (Eds.), The EU charter of fundamental rights in the member states (pp. 525–546). Bloomsbury Publishing.
von Bogdandy, A., & Spieker, L. D. (2020b). Reverse Solange 2.0: Die Durchsetzung europäischer Werte und die unions- und strafrechtliche Verantwortung nationaler Richter. Europarecht, 55(3), 301–331.
Walzer, M. (1983). Spheres of justice: A defense of pluralism and equality. Basic Books.
Williams, A. T. (2009). Taking values seriously: Towards a philosophy of EU law. Oxford Journal of Legal Studies, 29(3), 549–577. https://doi.org/10.1093/ojls/gqp017
© 2022 The Author(s)
About this chapter
Cite this chapter
Frischhut, M. (2022). Relations. In: The Ethical Spirit of EU Values. Springer, Cham. https://doi.org/10.1007/978-3-031-12714-4_4
Publisher Name: Springer, Cham
Print ISBN: 978-3-031-12713-7
Online ISBN: 978-3-031-12714-4