Conclusion

Abstract

In a similar way as in the book on the ‘ethical spirit of EU law’ (Frischhut, M. The ethical spirit of EU law. Springer International Publishing. https://doi.org/10.1007/978-3-030-10582-2, 2019), this book on ‘the ethical spirit of EU values’ is summarised in 28 theses. The first fourteen theses rather depict the status quo. The other theses rather address the future direction of travel, where some of these theses can pertain to both categories. This summary structured in 28 theses shall contribute to the objective of stimulating debate on the question of EU values and their importance not only for the European Union (EU), its Member States, but also for individuals.

Finally, and for the sake of the debate on EU values, the book is summarised in the following theses.¹ This will include both the summary of the status quo identified so far, as well as the author’s suggestions for improvement.²

Status Quo

• 1. Values can pertain to various disciplines and they function as a bridge between law and philosophy (ethics).

• 2. Values have been enshrined in Art 2 TEU. This provision is a hub, where other articles of EU primary and secondary law feed into, filling these concepts with life. These values have been applied to two areas (digitalisation and non-financial reporting, partly in sports), and further specified in others (health and partly in sports) (cf. objective 2.1).

• 3. Various values have been referred to as ‘concepts’ in the sense of a neutral umbrella term, as some Art 2 TEU values can be qualified as a value, a principle, a general principle of EU law, and/or as an EU objective (Art 3 TEU). As mentioned by AG Bobek concerning ‘judicial independence’,³ it is preferable to take the approach of single concepts (e.g., of solidarity) instead of various distinct concepts in different fields, although the application of one concept in different fields (e.g., migration, energy, social security) can lead to different outcomes.

• 4. EU values address the EU and the Member States, even in purely internal situations (i.e. no cross-border situation) and outside the EU’s competences. Individuals are addressed more in terms of EU secondary law referring to values (e.g., in migration, in digitalisation) or as (not legally binding) virtues. Strengthening values at all three levels (ad objective 1) is essential for the ‘soul’ for the EU integration process.

• 5. Content-wise, non-discrimination, human rights, the rule of law and solidarity are much determined; tolerance and pluralism less so. Human dignity, democracy, equality (also between women and men) and the rights of minorities can be positioned in the middle concerning this question of enough substantive determination (ad objective 2.1). Freedom and justice are two broad concepts, which can benefit from the above-mentioned positioning at the interface of law and philosophy.

• 6. Human dignity can be seen as a ‘super-value’, respectively, as the corner stone of EU values, strongly influenced by a Kantian understanding. It has also found expression in EU secondary legislation.

• 7. The rule of law, justice, democracy, human rights and freedom as more institutional values shall secure the individual, especially against arbitrary decisions, equality and non-discrimination shall avoid that some are “more equal than others”.⁴

• 8. The approach of linking more abstract values to more concrete principles has been identified both in the case of the general value of the rule of law, as well as in the case of the specific health values. The advantage lies in the fact that principles combined with values provide more clarity (legal addressees and legal consequences) in addition to more abstract⁵ values.

• 9. EU values are binding (ad objective 2.2) for the EU, and for the Member States, as mentioned above, even outside EU competences or in the absence of a cross-border situation. Human rights can exceptionally be binding on individuals via general principles of EU law. Gender equality is also binding between individuals (case Defrenne⁶), non-discrimination, for instance, can become binding between individuals in case of implemented EU directives.

• 10. This question is linked to the justiciability of values (ad objective 2.2). Following existing literature,⁷ values can be distinguished between a justiciable hard conceptual core⁸ (‘Begriffskern’) and a non-justiciable soft conceptual periphery (‘Begriffshof’); see also Table 6.1. Some values as freedom, justice, pluralism and tolerance are hardly justiciable. However, one concept (e.g., justice) can be twinned with another one (e.g., rule of law, or non-discrimination) to become effective. Non-discrimination (and equality as the other side of the same coin) and gender equality are justiciable as general principles of EU law and as fundamental rights, solidarity as a general principle of EU law. From the first sentence of Art 2 TEU, human dignity, democracy, the rule of law, human rights and the already mentioned equality are justiciable.

• 11. Like EU integration process itself, EU values have emerged step-by-step. They have been identified in literature early on (e.g. Hallstein 1979⁹), have existed for quite some time as principles,¹⁰ and have been enshrined in the EU treaties via Art 2 TEU. This evolution (ad objective 2.4) is however not finished and can also occur outside the hub of Art 2 TEU via ECJ case-law (stunning of animals case¹¹).

• 12. According to ECJ case-law, common values are the basis for mutual trust between Member States. However, trust is also essential between the EU and individuals (see thesis No 26).

• 13. Limitations of values (ad objective 2.5) are possible, although more at the periphery, less in the core of the relevant concept. For instance, based on the Kantian idea that one right or freedom ends, where another right or freedom begins, freedom is not unlimited and can conflict, for instance, with solidarity.¹²

• 14. Values also have an external dimension, where the three values of democracy, the rule of law and human rights have been identified both early on in the Copenhagen criteria, as well as recently in the Brexit deal (Art 763 TCA).

Future Direction of Travel

• 15. Basically, EU values (Art 2 TEU) are human-centric,¹³ and the same is true for fundamental rights (including the CFR). ECJ case-law has added animals (stunning of animals case¹⁴) to the beneficiaries of EU values. A possible next step would be to add the environment (see also thesis No 27).

• 16. As Habermas has emphasised, in the field of democracy EU citizens need “an arena in which they can even recognise their shared social interests across national boundaries and transform them into political conflicts”.¹⁵ Such an arena would be important to reflect on different conceptions of the ‘common good’, both in the short (Conference on the Future of Europe¹⁶) and in the long run.

• 17. Solidarity in the EU can be related to the three tiers identified by Prainsack and Buyx,¹⁷ only that the direction seems to be reversed. That is to say, moving from tier No 3 (codification, or ‘solidification’), to tier No 2 (‘group-based or community-based practices’), and finally, as a virtue, to tier No 1, the interpersonal tier. Likewise, in the field of mandatory vaccination, the ECtHR has emphasised the importance of ‘social solidarity’, i.e. between individuals (on human obligations, see also thesis No 28).

• 18. Justice is a concept where many have struggled to find a definition. As emphasised by the ECJ, in “a society in which, inter alia, justice prevails”,¹⁸ we “have to reason together about the meaning of the good life”,¹⁹ as suggested by Sandel.

• 19. Tolerance and pluralism are two values that are less determined, but where the state should create certain framework conditions, to foster them. Additionally, they could be seen as virtues (see also theses No 27 and 28) of individuals, outside the legal turf.

• 20. In the ‘ethical spirit of EU law’ I have argued for encompassing the idea of minimal ethics, to step-by-step move from a more diverse to a more uniform approach of this ethical spirit in the vertical relationship between the EU and its Member States.²⁰ The same minimum approach²¹ should be adopted for the ethical spirit of EU values, having more unity in the core, and potentially more diversity in the periphery of these concepts, with a tendency towards more unity over time. As also argued by Calliess,²² 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 conceptual core of values (‘Wertekern’) is violated, but not only if the conceptual periphery (‘Wertehof’) is affected (cf. the above-mentioned ‘essence’ mentioned in Art 52[1] CFR). At the periphery of a value, a balancing approach has to be applied.²³ At the conceptual periphery of a value it will also be easier to accept new technological or societal developments (evolution) and possible limitations. On these various questions concerning the conceptual core or periphery of values, see Table 6.1.

• 21. A ranking of values (ad objective 3) should not be seen in a formal, but substantively.²⁴ 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. The corner stone or ‘super-value’ of human dignity will obviously tend to pull more in its direction. Individuals should decide the ranking EU values, following a communitarian approach. To some extent, the ranking of values will also be an issue of the CJEU.

• 22. From the CJEU, we also know the approach of striving for a balanced approach, which was applied in relation to different fundamental rights, as well as in relation of fundamental rights and economic fundamental freedoms. Early on (in 1973), the ECJ has emphasised the necessity of balance (or equilibrium) in the field of solidarity.²⁵ In relation of EU values to the earlier steps of EU integration, namely, economic and political integration, as well as human rights, a balanced approach should be achieved, without diminishing the importance of EU values (the ‘circle of balance’).

• 23. The above-mentioned ranking of EU values can overlap with a balancing of values among themselves. In case of relevant EU secondary law, an analysis of the same will reveal if this balancing can take place at the national level (potentially leading to more diversity) or should rather take place at EU level (potentially leading to more uniformity), as suggested by the ECJ in the animal stunning case.²⁶

• 24. The ‘reverse Solange’ doctrine, developed for the cooperation of various levels, is a valuable contribution for enforcing of EU values,²⁷ as further substantiated by other provisions of EU law. It allows individuals, apart from the constraints of Art 51(1) CFR, to bring their case in a situation of systemic violations to any court in the EU, including the CJEU, to 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 doctrine perfectly feeds into the manifold relations (ad objective 3) as identified in this book. These include the close connection of Art 2 TEU and the CFR, as well as other fundamental rights, e.g. as general principles of EU law. In the context of the Council of Europe, the ECHR should also be mentioned. We have also seen an important relation of Art 2 TEU to various examples of EU secondary law and the above-mentioned relation of values that are more abstract and more concrete principles.

• 25. The (ethical and or legal) principles of vulnerability, responsibility²⁸ (including human obligations), precaution, sustainability, as well as proportionality and balance can play an important role in some current challenges, our societies are currently facing (i.e., climate change, the pandemic,²⁹ and digitalisation).

• 26. In terms of the future direction of travel (ad objective 4) for this ethical spirit of EU values, trust should be established as an additional³⁰ (complementary) narrative, where based on a strengthening of values, transparency and integrity the EU should strive to achieve the highest ethical standards.³¹ This is especially true in sensitive issues, as well as in EU decision-making (i.e., lobbying).

• 27. As in the Brexit (cf. objective 2.3) agreement (fight against climate change), environmental protection should be upgraded to an EU value, i.e. added to Art 2 TEU. At the level of individuals, values can be supplemented by virtues, where respect for nature would be an important virtue and where inspiration can be drawn from both inside Europe (e.g., cardinal virtues) and from the outside (e.g., certain native cultures).

• 28. The EU should strive for a more communitarian approach, for which it must be reflected at EU level in whose interest decisions are made, i.e., the common good and less lobbying of particular interests. This communitarian approach should also apply at Member State level (again, lobbying via the Council as only one example). At the level of individuals, this approach can manifest itself in the form of human obligations, which are not intended to replace virtues and/or human rights but to complement them.

The objective of this book was to complement the holistic concept of the ‘ethical spirit of EU law’ with EU values. As already mentioned, the notion of ‘spirit’ is more than just mere intention, but the holistic coming together of different elements, hence “the intention of the authors of a legal system, which is reflected in a lattice of various different provisions”.³² As mentioned in the introduction, the goal of this book is the identification of the underlying philosophy of EU values, also in relation to the EU’s approach towards ethics.

Table 6.1 Conceptual core and periphery

Likewise, the ‘ethical spirit of EU values’ is deeply rooted in the relationship of EU values to the rest of the EU acquis. Those values identified in Art 2 TEU can be seen as a hub, linking various provisions of EU primary and secondary law. This holistic point of view combines well with the approach chosen here to speak of concepts, since different legal qualifications (value, principle, general principle of EU law, and/or EU objective) can be grouped together. Especially the combination of more abstract values and more concrete legal principles can offer an important contribution, not only but also for the justiciability of these concepts. While more concrete and justiciable elements of these concepts are important for enforcement by individuals, elements that are more abstract are important in order to offer guidance both for current and for future challenges. Within the existing dimensions of EU integration (i.e., economic integration, human rights and non-economic purposes, political integration, and values), a balanced approach has to be found within the existing status quo.

Based on this current situation, it is beyond doubt that trust will become more and more important, hence the suggestion of an additional narrative of the EU. For the relationship of EU citizens and people living in the EU, besides virtues, a more communitarian and solidarity-based approach (also focussing on the vulnerable persons) would strengthen the resilience of our society on the long run. Beyond the relationship of humans, following the ‘one health’ or ‘planetary health’ approach, it would also be advisable to move from a human-centric or anthropocentric view to a more bio-centric approach.³³ Along these lines, if animal welfare has been qualified as an EU value it can also be argued (argumentum a minori ad maius) that ‘human health’ can also be seen as a value.³⁴ Strengthening both human health as well as the environment is not a contradiction, rather a necessary complementary approach. Overall, such a more holistic approach would acknowledge the relations of humans, animals and the environment, as also painfully experienced during the COVID-19 pandemic.