Defending Union Values in Judicial Proceedings. On How to Turn Article 2 TEU into a Judicially Applicable Provision

Abstract

This chapter centres on the question of how to address violations of EU values in judicial proceedings before the Court of Justice. Instead of relying on fundamental freedoms, EU secondary legislation or the Charter, this chapter explores a more promising path—engaging with Article 2 TEU itself. Yet this path rests on a crucial premise: the judicial applicability of the values enshrined in Article 2 TEU. Such a judicial applicability is far from self-evident and needs to be carefully construed. Based on recent jurisprudential developments, this chapter will propose ways to operationalise Article 2 TEU without curtailing its unrestricted scope of application. The judgments of Associação Sindical dos Juízes Portugueses, Minister for Justice and Equality (L.M.) and Commission v. Poland will be at the heart of this contribution.

This chapter draws on Spieker (2019a) and von Bogdandy and Spieker (2019).

1 Introduction

As evidenced by many contributions in this volume,¹ the developments in several EU Member States have consolidated to a larger illiberal turn posing a systemic threat to the values enshrined in Article 2 TEU. Especially the governing parties in Poland and Hungary started rejecting the model of a liberal democracy and attacking checks and balances of the political process. Much has been written on whether the Union should act² and if so, how to institutionally and procedurally address these issues.³ Yet one thing seems almost certain: any path requiring unanimity in the Council (Article 7 TEU) or a Treaty change⁴ seems to be a political pipe dream. Since backsliding Member States will be watching each other’s backs, these paths are barred.⁵

This political petrification reminds a well-known pattern of European integration: In times, when the necessary actions were not pursued in the realm of politics, the CJEU stepped in as an ‘engine of integration’ to safeguard the European integration agenda.⁶ In the late 1960s, it was the Court that compensated the political stagnation with its constitutionalizing jurisprudence.⁷ In the face of a growing legitimacy deficit on the Community level, it was the Court that developed fundamental rights as general principles.⁸ And when facing the political inertia in constructing the internal market, it was the Court that stepped in with its doctrine of mutual recognition.⁹ When it comes to countering the illiberal turn in several Member States, a similar inertia seems to beset the political plane and especially the Council as the key decision maker under the Article 7 TEU procedure. Therefore, many argued to concentrate on judicial mechanisms, to employ the infringement procedure under Article 258 TFEU¹⁰ or to interact with brave national courts via the preliminary reference procedure (Article 267 TFEU).¹¹

Although it might place an immense burden on the Court’s legitimacy,¹² there are solid arguments for involving the Court of Justice. First, the appearance of legality is crucial for governments in backsliding Member States.¹³ Since the CJEU enjoys considerable trust from both national courts and the public,¹⁴ an authoritative judgment declaring the attacks on domestic checks and balances illegal would constitute a severe set-back. Further, any non-compliance with these judgments would not only damage the façade of legality but lead to a new stage of escalation.¹⁵ Second, governments in backsliding Member States try to shift the debate on their value-compliance into the sphere of moral and ideological convictions. Such conflicts can easily turn heated and trigger antagonism or polarisation.¹⁶ Judicial procedures may help shifting the discourse to legal principles and thus into more rational channels. Third, a frequent objection of backsliding Member States is that the European Commission is ideologically biased seeking to force its own conception of the Union’s common values on the Member States.¹⁷ Being a court, the CJEU might seem more neutral than the ‘politicized’ Commission. As some observed in the context of the Euro-crisis, procedures before the Court have the potential to depoliticize conflicts and unfold an integrating potential.¹⁸ Finally, the political Article 7 TEU procedure reveals severe shortcomings with regard to procedural guarantees.¹⁹ As emphasised by Armin von Bogdandy, however, the fairness of European responses is of essence.²⁰ Such fairness is assured in CJEU procedures by granting the defendant Member State a full set of procedural rights and guarantees.

So far, jurisprudential solutions seem to have proven successful, as the Polish example demonstrates. Many Polish courts submitted references concerning the Polish reforms curtailing the judiciary.²¹ Further, the Commission successfully launched several infringement procedures.²² Already after the Court ordered interim measures,²³ the Polish government reversed some parts of its reforms.²⁴ This shows that even governments in backsliding Member States remain responsive to CJEU decisions.

This leads to the following question, which will be at the heart of this chapter: What happens when a case, in which Union values are at stake, reaches the CJEU? What substantive provisions can be invoked? The preliminary problem is that important parts of the Polish or Hungarian reforms seem to escape the scope of EU law. As such, provisions of the EU acquis, like fundamental freedoms or secondary legislation, cannot capture these measures.²⁵ And even if some developments might fall within the scope of these provisions, the infringement procedures against Hungary illustrate that relying on them can lead to superficial, eventually unsuccessful results.²⁶ The scope of the Charter of Fundamental Rights (CFR) is equally limited. On one hand, the Charter’s applicability to Member State actions is limited to ‘situations … within the scope of European Union law’.²⁷ This excludes purely internal situations, areas of not actually exercised EU competences²⁸ and purely hypothetical links.²⁹ On the other hand, threats to democracy and the rule of law are not always depictable as fundamental rights violations. Though being essentially interrelated,³⁰ democracy and the rule of law go beyond the protection of fundamental rights and include structural or institutional elements that affect the organization of State.³¹ So what is the alternative?

Taking up the latest jurisprudential developments, this chapter explores a more promising path: relying on Article 2 TEU itself. That provision states at a prominent position: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights … These values are common to the Member States …’. Article 2 TEU presents two features qualifying it especially for countering the illiberal tendencies in EU Member States. First, it has an unrestricted scope of application—it applies to any Member State act irrespective of any link to (other) EU law.³² Second, it is not confined to ensuring ‘respect for human rights’, but also threats to democracy and the rule of law in their structural, institutional dimension.

Yet this path rests on a central premise: the judicial applicability of the values enshrined in Article 2 TEU. This applicability, however, is far from self-evident and needs to be carefully construed. While much has been written on the Union’s common values,³³ their position in EU law and how they feature in the CJEU’s jurisprudence,³⁴ there still remains a plethora of uncertainties. As such, this chapter will first address uncertainties related to the values’ legal nature, their direct effect and the jurisdiction of the Court (Sect. 2). Based on the CJEU’s recent jurisprudence, this contribution will then propose ways to operationalise Article 2 TEU without curtailing its unrestricted scope of application (Sect. 3). The judgments of Associação Sindical dos Juízes Portugueses (ASJP),³⁵Minister for Justice and Equality (L.M.),³⁶ and Commission v. Poland³⁷ will be at the heart of this analysis. Placing an activated Article 2 TEU in the hands of Luxembourg will most certainly raise doubts and criticism. Therefore, this chapter will close by anticipating likely objections and advancing possible rejoinders (Sect. 4).

2 Uncertainties Surrounding the Judicial Application of Article 2 TEU

Before engaging with the most recent case law, it seems worthwhile to analyse the uncertainties and potential shortcomings that might prevent a judicial application of Article 2 TEU. These uncertainties can be narrowed down to three key points: Its nature (Sect. 2.1), direct effect (Sect. 2.2), and the jurisdiction of the CJEU (Sect. 2.3).

2.1 Nature: Do Article 2 TEU Values Have Any Legal Effect?

Scott Shapiro once wrote that ‘there is often no way to resolve specific disagreements about the law without first resolving disagreements about the nature of law’.³⁸ This holds especially true for an overarching provision like Article 2 TEU. By using the term ‘value’, the Treaty drafters introduced a rather ambiguous notion into EU primary law.³⁹ Values are widely used in very different contexts: law, politics, economics, philosophy, ethics, religion, sociology, psychology … Values are very close to what Uwe Pörsken called ‘plastic words’⁴⁰—empty formulas that mean everything and nothing. As context-dependent shapeshifters, they can be used in different fields with different meanings.

In law, values are generally juxtaposed with ‘principles’ and ‘rules’,⁴¹ and in the Treaties especially with ‘competences’ and ‘objectives’.⁴² Yet values somehow transcend these dichotomies without revealing their precise character. One might justifiably ask why the drafters burdened the Treaties with such a can of worms. Unfortunately, analysing the European Convention’s travaux is of no further use. Although several members saw the uncertainties tied to values and suggested replacing them with principles,⁴³ the term remained in the draft without being grounded in a solid theory of what they were supposed to be.⁴⁴

As such, it is not self-evident that Article 2 TEU values unfold legal effects. Some even doubt their status as law.⁴⁵ Such doubts, however, are hardly convincing. The values of Article 2 TEU are laid down in the operative part of a legal text. They are applied in legally determined procedures by public institutions (Article 7 and 49(1) TEU) and their disregard leads to sanctions, which are of legal nature.⁴⁶ In fact, the legal framing of the Union’s values seems almost inevitable. The rule of law warrants that normative requirements enforced by public institutions are laid down in the form of law. Otherwise, the mechanisms of Article 7 or Article 49 TEU would provide political morality with public authority without making it subject to any constitutional limitations.⁴⁷ For this reason, Article 2 TEU values are necessarily part of EU law.

Yet, the views on their exact nature differ considerably. First, Article 2 values can be understood as ‘rules’, as they form legal parameters relevant for both the sanctioning mechanism under Article 7 and the admission procedure under Article 49 TEU. Second, one could argue that values are in fact ‘principles’.⁴⁸ Indeed, the Treaty drafters used both notions in a rather undifferentiated way.⁴⁹ Further, the ‘values’ enshrined in the first sentence of Article 2 TEU were termed ‘principles’ in Article 6(1) TEU-Nice/Amsterdam, which is generally understood as a predecessor of Article 2 TEU. Finally, one could perceive Article 2 TEU as a new form of legal category, which still has to be determined. Whatever the response to this question might be, one thing seems rather clear: Article 2 TEU does not only contain a set of rough ideals or solemn aspirations—it unfolds legal effects.

2.2 Direct Effect: Are Article 2 TEU Values Directly Applicable?

Nevertheless, the acknowledgment of legal effects does not necessarily entail Article 2 TEU’s direct applicability (or even justiciability).⁵⁰ Indeed, the values—for example, the rule of law—are extremely vague and open.⁵¹ Hence, it is not entirely clear whether Article 2 TEU fulfils the essential criteria for direct effect: A Treaty provision must be precise, clear, and unconditional.⁵² While these rigid criteria have often been criticized,⁵³ recent jurisprudential developments indicate a more nuanced understanding of direct effect. Concerning the direct effect of Charter rights, the Court started to distinguish between two categories:⁵⁴ first, ‘mandatory effect’, meaning that a provision is sufficient in itself to entail a right or obligation;⁵⁵ and second, the ‘unconditional nature’, meaning that a right does not need ‘to be given concrete expression by the provisions of EU or national law’.⁵⁶

According to this recent understanding, the application of Article 2 TEU faces three options. First, Article 2 TEU could be perceived as mandatory and unconditional and thus apply as a self-standing provision.⁵⁷ Second, Article 2 TEU could lack a mandatory effect but still be unconditional. In this case, Article 2 TEU could be considered by the CJEU or national courts through some sort of (non-binding?) value-oriented interpretation of EU and national law. A third option would be that Article 2 TEU is mandatory but not unconditional. It would need to be applied with a more specific provision giving concrete expression to the values enshrined in Article 2 TEU.⁵⁸ Such a combined approach could be construed in two ways: On one hand, Article 2 TEU could be applied directly but informed by a more specific provision. On the other hand, one could apply a specific provision of EU law giving expression to a value enshrined in Article 2 TEU and thus operationalizing the latter.

2.3 Jurisdiction: Does the Court Have Competence to Review the Member States’ Value Compliance?

Even if we assume that Article 2 TEU has direct effect and creates directly applicable (and thus in principle justiciable) obligations for the Member States, it is not said that the CJEU has jurisdiction to assess and enforce Article 2 TEU compliance in the Member States. Generally, the Court’s competence encompasses the interpretation and assessment of the ‘law’ (Article 19(1)(1) TEU). This includes Union law in all its shapes, forms, and manifestations.⁵⁹ In this light, it seems very likely that the Court has a competence to interpret and assess Article 2 TEU as well. Yet it is highly debated whether the Article 7 TEU procedure and the Court’s limited competence to review the latter (Article 269 TFEU) bar an assessment and enforcement of Article 2 TEU values via the Article 258 or 267 TFEU procedures⁶⁰—especially beyond the scope of application of (other) EU law.⁶¹

Nevertheless, there are good arguments in favour of the Court’s jurisdiction. While the former Treaties have kept the EU’s foundational principles out of the Court’s reach,⁶² the Lisbon Treaty does not contain any comparable limitation with regard to Article 2 TEU. First, Article 269 TFEU is an exception to the CJEU’s general competence under Article 19(1)(1) TEU, which must be interpreted narrowly. Second, the political Article 7 TEU and the judicial Article 258/267 TFEU procedures have very different objects and consequences. Article 7 TEU concentrates on a political situation and entails, as a last resort, the suspension of Member States’ rights. In contrast, the Court adjudicates an individual case and its sanctioning powers are limited to Article 260 TFEU (penalty payments).⁶³ For this reason, there seems to be no identity between the judicial and the political procedures that would afford exclusivity to the latter.

3 Turning Article 2 TEU into a Judicially Applicable Provision

In an emerging line of jurisprudence, the CJEU could be seen as resolving these uncertainties by developing Article 2 TEU into a judicially applicable provision justiciable before the Court. The pierre fondatrice of this emerging jurisprudence is the judgment in Associação Sindical dos Juízes Portugueses (ASJP). In this seminal case, the Court established the Member States’ obligation to guarantee the judicial independence of virtually the whole national judiciary irrespective of any specific link to EU law (Sect. 3.1). Although this stance can also be reconstrued as a manifestation of the well-established effet utile rationale (Sect. 3.2), I propose a reading relying on Article 2 TEU. According to my understanding, the Court opted for a combined approach, operationalising Article 2 TEU through a specific provision of EU law (here Article 19(1)(2) TEU). This operationalisation, it is argued, leads to a ‘mutual amplification’ of both provisions: While the specific provision of EU law translates Article 2 TEU into a judicially applicable legal obligation, the operationalized Article 2 TEU charges and eventually extends the scope of application of the specific provision. Such a reading kills two birds with one stone: it leads to the judicial application of Article 2 TEU without limiting its unrestricted scope. As such, it allows reviewing and sanctioning any Member State action violating the Union’s common values in judicial proceedings before the CJEU—irrespective of any link to other EU law. Finally, this approach is not confined to Article 19 TEU but could be extended to any provision giving expression to a value enshrined in Article 2 TUE (Sect. 3.3).

3.1 The Groundbreaking Judgment in ASJP

On its face, ASJP seems like a rather innocent case. A Portuguese court asked the CJEU whether salary reductions for judges adopted in the context of an EU financial assistance program violated judicial independence. Generally, there are two Treaty provisions guaranteeing judicial independence: Article 47 CFR and Article 19(1)(2) TEU. The former only operates under the scope defined in Article 51(1) CFR. The salary reductions were part of spending cuts conditional for financial assistance under the EU financial crisis mechanisms. Since the Court already applied the Charter in comparable situations,⁶⁴ Advocate General Øe proposed to grasp this thin material link and rely on the CFR.⁶⁵ The CJEU could have followed this approach and ASJP would have disappeared discreetly as another clarification of the meandering post-Åkerberg Fransson case law. Yet, this is not what happened. The Court referred to Article 19(1)(2) TEU, which stipulates that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.’ Such effective legal protection presupposes an independent judiciary.⁶⁶

According to the Court, this obligation applies ‘irrespective of whether the Member States are implementing Union law, within the meaning of Article 51(1).’⁶⁷ This is already indicated by the different wording of both provisions. Article 19(1)(2) TEU limits its scope to ‘the fields covered by Union law’, whereas the Charter applies to ‘situations … within the scope of European Union law’.⁶⁸ ‘Fields’ are different from ‘situations’. According to this semantic difference, ‘fields covered by Union law’ could be understood in a more extensive manner.⁶⁹ But how broad should the scope of Article 19(1)(2) TEU be? The Court refers to the preliminary ruling mechanism under Article 267 TFEU: ‘[T]hat mechanism may be activated only by a body responsible for applying EU law which satisfies, inter alia, that criterion of independence’.⁷⁰ ‘Responsible for applying EU law’ includes all authorities which are potentially in the situation of applying it.⁷¹ This means practically every Member State court.⁷² For Article 19(1)(2) TEU to be triggered, it is not necessary that the respective Member State court actually adjudicates a matter of EU law in the specific case at hand; the mere potentiality of dealing with such matters suffices.

After the Court’s stance in ASJP, Article 19(1)(2) TEU reaches even situations which do not present any other link to EU law. Accordingly, ASJP has been interpreted as establishing a ‘quasi-federal standard’⁷³ for judicial independence. How does the Court justify this ample scope? A thorough analysis of ASJP reveals two (complementary) rationales, a functional and axiological one.⁷⁴ A similar reading has been advanced by Advocate General Tanchev in Miasto Łowicz. According to him, the ample scope is justified because

Article 19 TEU is a concrete manifestation of the rule of law, one of the fundamental values on which the European Union is founded under Article 2 TEU, and Member States are bound under the second subparagraph of Article 19(1) TEU to ‘provide remedies sufficient to ensure effective legal protection’. Structural breaches of judicial independence inevitably impact on the preliminary ruling mechanism under Article 267 TFEU and therefore on the capacity of Member State courts to act as EU Courts.⁷⁵

In this sense, the CJEU’s broad interpretation of Article 19(1)(2) TEU can be justified both by a recourse to the functioning of the EU’s judicial system and the values enshrined in Article 2 TEU.

3.2 First Rationale: Securing the Functioning of the EU’s Judicial System

At first sight, the CJEU seems to employ the well-established effet utile rationale. First, the Court refers to the functioning of the preliminary reference procedure in Article 267 TFEU. National courts have an indispensable position in the effective and uniform application of EU law.⁷⁶ As they are obliged to apply EU law in the respective Member States even where it may conflict with national law, they are considered to be the first ‘Union courts’⁷⁷ and as such an arm of EU law.⁷⁸ Such a system cannot work if Member State courts are not independent. Not without reason, one of the key pre-conditions for a court to be eligible for launching preliminary references is its independence.⁷⁹ Second, the rationale behind Article 19(1)(2) TEU supports the Court’s findings. Despite a limited extension of the demanding locus standi criteria for individual actions before the CJEU (see Article 263(4) TFEU),⁸⁰ the drafters of the Lisbon Treaty retained the decentralized judicial system based on both the CJEU and Member State courts.⁸¹ The function of Article 19(1)(2) TEU is to ensure that this diffused judicial system works and that no protection gaps arise.⁸² This necessarily enables the CJEU to specify and harmonize Member States’ provisions regarding judicial remedies and procedures.⁸³ These two considerations seem to strongly indicate that the CJEU is relying on its well-known effet utile argument.⁸⁴ In this light, ASJP could be read as an important step in the jurisprudential line of Simmenthal, Opinion 1/09 and Unibet.

3.3 Second Rationale: Operationalizing the Values in Article 2 TEU

Yet there is another, potentially groundbreaking explanation for the ample scope of Article 19(1)(2) TEU leaving the beaten tracks and venturing into uncharted territories of EU law. In the crucial passage of ASJP, the Court states that ‘Art. 19 TEU … gives concrete expression to the value of the rule of law stated in Article 2’.⁸⁵ According to my understanding, this recourse to values lays the groundworks for the judicial applicability of Article 2 TEU. The Court implicitly rejected a self-standing application of Article 2 TEU and opted for a combined approach (see supra Sect. 2.2). It operationalizes Article 2 TEU through a specific provision of EU law (here Article 19(1)(2) TEU).⁸⁶ How does this operationalization work and what is its effect?

Like the Charter, Article 19(1)(2) TEU’s scope of application is a derived one. It only applies within the ‘fields covered by Union law’.⁸⁷ This means, however, that some kind of ‘Union law’ is needed to trigger its scope. Since Article 2 TEU presumably lacks direct effect and is thus no self-standing provision either, it would per se not allow for such a triggering.⁸⁸ Taken in isolation, both provisions are therefore not applicable: Article 19 because of its derived scope and Article 2 TEU because of its lacking direct effect. What could be a way out of this impasse?

At first glance, Article 19(1)(2) TEU would have to be triggered by other Union law (e.g. a directive or fundamental freedoms). In consequence, Article 2 TEU operationalized by Article 19(1)(2) TEU would depend on the scope of other Union law and could not operate beyond that.⁸⁹ Such a limitation, however, seems to severely neglect Article 2 TEU’s foundational character and its unrestricted scope of application: The Member States are bound by it even in areas not covered by any (other) Union law.⁹⁰ Limiting Article 2 TEU to the scope of other Union law would frustrate its overarching importance and deprive the recourse to Union values of any added-value.

And indeed, the CJEU did not seem to have limited the scope of Article 19(1)(2) TEU (operationalizing Article 2 TEU) to the scope of any other Union law applying. It established standards for practically any Member State court. How does the Court reach this conclusion? According to my understanding, the combined reading of Article 2 TEU with a specific provision leads to a cumulation of their legal effects—a mutual amplification: While the specific provision of EU law (here Article 19 TEU) translates Article 2 TEU into a specific legal obligation, the operationalized Article 2 TEU triggers and determines the scope of application of the specific provision.⁹¹ In this interplay, each contributes what the other lacks—specificity and scope (see Fig. 1).

Fig. 1

Mutual amplification

As it is Article 2 TEU, which determines the scope, the operationalized obligations can apply beyond the scope of any other Union law to any Member State action. In this sense, the idea of mutual amplification kills two birds with one stone: It allows for the judicial applicability of Article 2 TEU through a specific provision without losing its unrestricted scope.

Eventually, this approach could be extended to any norm of EU law containing a specific obligation and ‘giving expression’ to values enshrined in Article 2 TEU. As already mentioned, Article 2 TEU contains the values of ‘respect for human rights,’ democracy, and the rule of law. The Charter can be understood as a specific realisation of these values.⁹² As such, a mutual amplification of Article 2 TEU and Charter rights seems possible.

The Court’s judgment in L.M. could be a first, careful step in this direction. The case dealt with the surrender of a Polish national, who is wanted to face trial in Poland and was arrested in Ireland based on an European Arrest Warrant (EAW). The referring Irish High Court asked whether the surrender could be denied on the basis that the rule of law in Poland has been systematically damaged and the respective person would thus face trial in a jurisdiction where an independent judge is not guaranteed. The CJEU applied the two-pronged Aranyosi-test⁹³ and extended it to violations of the essence of the right to a fair trial (Article 47 CFR).

While the CJEU left the final assessment of the situation in Poland to the referring court, this test eventually allows reviewing the conformity of a situation which falls at first glance beyond the scope of Union law with the essence of a Charter right. Although the issue of an EAW is clearly within the scope of Union law as defined by Article 51(1) CFR, this is not the case for what is scrutinized under the Aranyosi-test. In L.M., neither the Polish judicial reforms nor the specific domestic criminal proceedings presented any apparent link to EU law—except for Article 2 TEU. Nevertheless, the referring Court is under the obligation to examine this situation for its compliance with EU standards (the essence of Article 47 CFR). One could of course argue that this review competence is a result of the specificities of mutual recognition regimes or that the assessment of the internal situation in Poland is only conducted indirectly in order to determine whether the EAW has to be executed or denied. Yet, similar to ASJP, the Court establishes a nexus between the essence of Article 47 CFR and Article 2 TEU:

Judicial independence forms part of the essence of the fundamental right to a fair trial … which is of cardinal importance as a guarantee … that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded.⁹⁴

In this spirit, the Court started to increasingly connect Article 2 TEU and Charter rights in its recent case law. In Tele2 Sverige, for instance, the Court established a continuum between the freedom of expression under Article 11 CFR and the value of democracy under Article 2 TEU.⁹⁵ In light of these links, one could argue that the concept of mutual amplification is not limited to the situation in ASJP, but instead open to all provisions of EU law giving concrete expression to Article 2 TEU values.

4 Anticipating Objections and Advancing Rejoinders

In sum, the Court’s stance in ASJP could be interpreted as making the values in Article 2 TEU judicially applicable through a mutual amplification with a specific provisions of EU law. The decisions following ASJP reveal a twofold development. First, the Court is willing to scrutinize and sanction Member State actions under the operationalised Article 2 TEU. Although the CJEU refrained from finding any violation in ASJP, the judgment served as a stepping stone for the infringement proceedings against Poland.⁹⁶ Second, the CJEU seems to develop the diffused and decentralized EU judicial network into a value monitoring and enforcement mechanism. Today, violations of operationalised Union values can reach the CJEU not only via infringement proceedings initiated by the Commission (constellation in Commission v. Poland) but also through preliminary reference procedures—either by ‘brave’ national courts directly against national measures (constellation in ASJP or A.K.) or by courts in other Member States assessing cooperation with backsliding Member States under mutual recognition regimes (constellation in L.M.).

Without a doubt, the proposed reading of ASJP and its progenies leads to a considerable development of the law. It seems to immensely extend the scope of Union law and the Court’s jurisdiction. Indeed, no Member State area seems to escape the obligations stemming from Article 2 TEU. As such, Article 2 TEU could become the core of a European Constitution with federalizing potential, threatening the federal equilibrium established by the Treaties. Therefore, this proposal of activating Article 2 TEU will most certainly raise doubts and criticism. The following section aims at anticipating some of this critique by referring to one of the CJEU’s most accomplished national counterparts—the Bundesverfassungsgericht (BVerfG).

4.1 Framing Possible Objections

Generally, it seems uncontested that EU primary law is characterised by a special, evolutive dynamic⁹⁷ and has to be interpreted accordingly.⁹⁸ Due to the partial incompleteness of the EU legal order, the creative judicial development of the law⁹⁹ has been an accepted feature of the CJEU’s legal reasoning since the very beginning.¹⁰⁰ This must apply especially in situations of new and unprecedented challenges that threaten the EU’s very foundations.

There are, however, two key limits to such a judicial development of the law, which the BVerfG sketched out in Honeywell:¹⁰¹ Horizontally, the Court should respect the inter-institutional separation of powers. Accordingly, ‘[t]he Court of Justice is … not precluded from refining the law by means of methodically bound case-law’ respecting its judicial function.¹⁰² ‘[A]s long as the Court of Justice applies recognised methodological principles’, the judicial development of the law by the CJEU has to be accepted.¹⁰³ Vertically, a ‘major limit on further development of the law by judges at Union level is the principle of conferral’.¹⁰⁴ Under this premise, it is essential to anchor the proposed reading of ASJP and the idea of mutual amplification carefully in the Court’s case law and established methods of legal reasoning. At the same time, its impact must be strictly limited in order to safeguard the Union’s federal equilibrium epitomised by Articles 4(2) or 5(1) TEU.

4.2 Methodologically Unsound?

Despite evident difficulties in agreeing on a common European legal methodology,¹⁰⁵ the CJEU’s interpretation generally revolves around ‘the spirit, the general scheme and the wording of the Treaty’¹⁰⁶ and concentrates especially on a mixture of systematic and teleological considerations.¹⁰⁷ On one hand, the Court can consider the telos of a respective provision itself. On the other hand, it can refer to a telos detached from said provision by referring to objectives or principles of the EU legal order. This second type could be described as systematic or meta-teleological interpretation.¹⁰⁸ In this light, there is a twofold, interlocking methodological justification for the idea of mutual amplification between Article 2 TEU and a specific provision of EU law.

First, the Court can rely on a teleological, concretizing, or gap-filling interpretation of Article 2 TEU itself—a practice accepted, for example, by the BVerfG as a methodologically sound endeavour.¹⁰⁹ Specifying the obligations enshrined in Article 2 TEU by relying on existing provisions of the acquis not only provides such specificity, but is also much more restrained than filling the gap solely based on case law and praetorian principles. In doing so, a parallel could be drawn to the Court’s case law on Union objectives. Although these objectives do not have any direct effect,¹¹⁰ the Court found ways to make them judicially applicable. It stated that the Union’s objectives ‘are necessarily applied in combination with the respective chapters of the EC Treaty intended to give effect to those principles and objectives’.¹¹¹

Second, the Court can employ a systematic or meta-teleological interpretation of the specific provision operationalizing Article 2 TEU (e.g. Article 19(1)(2) TEU, Charter rights or any other provision giving specific expression to Article 2 TEU). Although the existence of hierarchies in EU primary law is highly disputed,¹¹² some provisions—like objectives—seem to have been treated as primus inter pares and served as guiding stars for its interpretation.¹¹³ After Lisbon, objectives seem to have been placed behind the Union’s common values. Article 2 TEU symbolises a ‘shift from a legal entity that … exists to strive for certain goals to one which, above all, expounds what it stands for.’¹¹⁴ This shift should find its expression in the Court’s legal methodology. Hence, it does not seem far-fetched to propose a new kind of meta-teleological interpretation—not in light of the Union’s objectives, but in light of its common values: An axiological interpretation.¹¹⁵ Under this method, the specific provision would be interpreted in light of the Union’s founding values as enshrined in Article 2 TEU. In case of specific provisions, which have no derived (like Article 19(1)(2) TEU or the Charter) but nonetheless a limited scope of application (e.g. cross-border requirements), this could lead to a careful teleological reduction of their restricted scope insofar as Article 2 TEU values are at stake.¹¹⁶

Eventually, the idea of a mutual amplification—two mutually complementing and reinforcing provisions—is not unprecedented in the Court’s case law. In a rather recent line of cases, the Court had to decide on the interplay of rights stemming from directives and Charter rights in horizontal situations between private parties. These cases concerned the question of whether a national provision in a case between two individuals conformed with EU law—first with rights stemming from specific directives and second with EU fundamental rights. Directives do not apply horizontally.¹¹⁷ The fundamental rights at issue apply horizontally¹¹⁸—yet they are accessory to the scope of Union law (Art. 51(1) CFR). Thus, the Charter applies only in case its scope is triggered by the directive.¹¹⁹ Taken in isolation, neither of them is applicable. The Court, however, relied on a creative solution based on the notorious Mangold judgment.¹²⁰ Taken together, both the directive as well as the fundamental right contribute to what the other lacks: Scope and horizontal effect. The directive, although not directly applicable, has ‘the effect of bringing within the scope of European Union law the national legislation at issue …, which concerns a matter governed by that directive’.¹²¹ Once the scope is triggered, it is the Charter right that applies horizontally in the case at hand. To add another layer to this complex interplay, the Court applies the Charter right (or the general principle) in a manner that is exactly equivalent to the right enshrined in the directive. This becomes most apparent in Kücükdeveci, where the Court stated that Directive 2000/78 ‘gives specific expression’ to the general principle of non-discrimination.¹²² The Court de facto applied the Directive as the principle’s (or right’s) specific expression.¹²³ As such, this reasoning is a perfect example for the cumulation of legal effects sketched out above: The general principle allows for the horizontal application, while the Directive triggers the scope of Union law and provides for specificity.

4.3 Pretext for a Power Grab?

Naturally, the bold reading of the Court’s case law as proposed above has the potential of severely upsetting the Union’s federal equilibrium epitomised by Articles 4(2) or 5(1) TEU.¹²⁴ Therefore, it is essential to put safeguards in place ensuring that Article 2 TEU does not become the ‘pretext for a power grab’.¹²⁵ These essential safeguards, however, should not be applied in a way that frustrates the respect for Article 2 TEU values either. Both considerations have to be carefully balanced against each other. In my view, the outcome of this balancing exercise could be a threefold limitation ensuring Article 2 TEU’s function and simultaneously providing a safety net for the ‘federal bargain’.

Limiting the Obligations Enshrined in Article 2 TEU

First, Article 2 TEU must be interpreted in a restrictive manner as being triggered only in exceptional situations. On the one hand, Article 2 TEU cannot impose high standards upon the Member States, since such an interpretation could not be squared with the legally guaranteed constitutional autonomy of the Member States.¹²⁶ Concerning the ‘respect for human rights’, some have proposed operating with the concept of ‘essence’.¹²⁷ Insofar as the ‘essence’ of Charter rights is concerned, they are also protected as values under Article 2 TEU, while Article 51(1) CFR continues to delimit the application of the full fundamental right acquis. On the other hand, Article 2 TEU can hardly force detailed obligations upon the Member States, because this would ignore the actually existing constitutional pluralism in the Union. Due to the practically countless possibilities of how to bring the abstract values to life, Article 2 TEU cannot—from a mere practical perspective—be understood as containing very detailed obligations.¹²⁸ Accordingly, Article 2 TEU’s high degree of abstraction necessarily correlates with a lower degree of review by the Court. Where does that leave us? One feasible solution could be to understand Article 2 TEU as establishing only a regime of ‘red lines’.¹²⁹ On a conceptual level, Article 2 TEU would determine negatively what is not allowed, without positively determining how things should be instead. In a nutshell, Article 2 TEU would apply only in exceptional situations and only in the form of ‘red lines’.

Limiting the EU’s Competence

Second, I argue that the Union’s ‘Verbandskompetenz’ (its competence as a legal order) to enforce Member State’s Article 2 TEU compliance beyond the scope of (any other) Union law is limited to the thresholds of Article 7 TEU. Indeed, the only provision explicitly empowering the EU legal order to enforce EU values or sanction violations thereof beyond the scope of (any other) Union law is Article 7 TEU. Hence, this provision contains a strong indication that the EU’s Verbandskompetenz is limited at least to the substantive thresholds triggering Article 7 TEU (a ‘serious and persistent breach’).¹³⁰ This could provide the starting point for a workable restriction operating in form of a sliding scale (see Fig. 2): The more or the clearer a situation falls within the scope of other EU law, the more the EU and the less the respective Member State is affected. This means that in case of a clear link to EU law, every violation of Article 2 TEU values can be sanctioned by EU institutions (e.g. under the Charter). If the link is weaker or nonexistent, it approaches the confines of Article 7 TEU. To assess and sanction every violation in such situations would exceed the EU’s Verbandskompetenz. Therefore, the more the situation departs from the scope of Union law and comes solely under Article 2 TEU, the more a violation must reach the thresholds of Article 7, and the more it must constitute a ‘serious and persistent’ breach to be claimed before the CJEU.

Fig. 2

Sliding Article 7 TEU scale

Limiting the Exercise of the CJEU’s Jurisdiction

Finally, there are several ways in which the CJEU might limit the exercise of its jurisdiction over Article 2 TEU: First, as proposed by the Reverse Solange doctrine, the Court could introduce a presumption of value compliance accompanied by a high threshold for its rebuttal. Such a threshold could be fixed on the level of systemic deficiencies—a notion which is well-established throughout the European legal space.¹³¹ Therefore, simple and isolated infringements upon the values enshrined in Article 2 TEU would not suffice to rebut the proposed presumption. The justification for such a presumption could be derived from the principle of mutual trust. Although mutual trust has been invoked only horizontally between the Member States,¹³² this does not mean that it is excluded in the vertical relationship of EU and Member States. Indeed, mutual trust is based on or at least intrinsically linked to the principle of loyal and sincere cooperation in Article 4(3) TEU.¹³³ The principle of mutual loyalty, however, expressly extends to Union institutions and hence the CJEU as well.¹³⁴ Similar developments could be predicted for the principle of mutual trust.

A second option could consist of a more deferential approach, leaving the final determination of value compliance in the hands of national courts—at least in case of preliminary references. Indeed, the Court can vary and adjust the degree of specificity it applies.¹³⁵ While it sometimes leaves the final determination to the referring court,¹³⁶ it can also fully assess the situation in the respective Member State.¹³⁷ These variations are no random exercise but a conscious judicial choice.¹³⁸ A differential approach can not only lead to a burden sharing between the interacting courts but is also more respectful towards national autonomy.¹³⁹ The Court’s stance in L.M. and in A.K. especially could be understood as an expression of this deferential attitude. Yet deference does not come without risks. In A.K., for instance, the Court left the final decision of whether the new Polish disciplinary chamber violates judicial independence to the referring court.¹⁴⁰ Thus, both the Polish government as well as the affected judiciary tried to capitalize on the judgment and claimed it as a victory.¹⁴¹ The referring court decided that the disciplinary chamber does not comply with the standards of independence set out by the CJEU.¹⁴² Instead of changing the problematic appointment procedures, however, the Polish government countered with a new bill aimed at tightening its control over the judiciary and preventing judges from questioning the independence of peers.¹⁴³ Further, it increased its disciplinary proceedings against critical judges.¹⁴⁴ As these continuing attacks demonstrate, deference is a two-edged sword: While it shows greater respect for national autonomy and diversity, it risks leaving affected national courts with a burden too heavy to shoulder. In this sense, the CJEU will have to carefully assess the situation in the respective Member State before determining the degree of deference applied.

5 Conclusion

In entering the European Union and opening their respective legal orders for direct effect and primacy, the Member States simultaneously accepted an openness towards internal developments and decisions taken by other Member States. The EU does not only extend the ‘transnational reach’ of each Member State, but also creates a situation of mutual vulnerability.¹⁴⁵ Internal developments in one Member State can lead to spill-over effects in all other Member States. The complex network of cooperation created by the European Union is not only enabling, it is transmitting and intensifying these effects. Especially through the introduction of majority decisions in the Council, each Member State partially and indirectly governs all others. As Commissioner Jourova put it: ‘the EU is like a chain of Christmas lights. When one light goes off, others don’t light up and the chain is dark.’¹⁴⁶ Therefore, it is of utmost importance to secure Member States’ adherence to the Union’s common values as an underlying basis and essential safety net on which cooperation can take place.

The last 2 years have shown that the Court seems more than willing to protect this common value basis against the illiberal turn in some Member States. The judgment in ASJP especially represents a veritable stepping stone towards a strong union of values—a judgment on par with van Gend en Loos, Costa/ENEL, or Les Verts.¹⁴⁷ With ASJP, the Court turned Article 2 TEU into a judicially applicable provision and paved the way for its activation in the EU value crisis. According to the interpretation advanced in this chapter, the Court renders Article 2 TEU applicable by operationalizing it through specific provisions of EU law without, however, losing its unrestricted scope. Due to this mutual amplification, any Member State act can be scrutinized under the operationalised Article 2 TEU—albeit under very restrictive conditions and only in very exceptional circumstances. As such, Article 2 TEU has become the Archimedean point for judicial proceedings against backsliding Member States.