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One fattened, six starved? The Article 2 TEU values after the rule of legislation conditionality judgments – European Regulation Weblog


Has the CJEU outlined the content material of a lot of the Article 2 TEU values? 

That is the query – slim however consequential – which this publish seeks to reply, analysing the latest Full Courtroom judgments of Circumstances C-156/21 Hungary v Parliament and Council and C-157/21 Poland v Parliament and Council (‘Hungary and Poland’). I attain three conclusions:

  • All twelve ideas talked about in Article 2 TEU – not simply the primary six, as sometimes assumed – appear to be equally-binding values (I);
  • At first look, the Courtroom decisively clarifies and even defines the content material of seven Article 2 values. On this studying, the rule of legislation is open-textured and supercharged. Conversely, six different values (human dignity, freedom, equality, respect for human rights, non-discrimination and equality between ladies and men) are emaciated: they’re outlined by a small cluster of Constitution rights and TFEU provisions (II); however
  • On nearer evaluation, there are highly effective causes for rejecting that studying of the six different values. The higher view is that this can be a non-exhaustive first step in clarifying them (III).

I assume that the reader is aware of the background and substance of the judgments, coated in this earlier publish, in addition to the broad outlines of the talk in regards to the content material and impact of the Article 2 TEU values (see typically Kellerbauer et al. 2019, ‘Article 2 TEU’). All through, I confer with the Hungary judgment paragraphs; the equal Poland paragraphs are materially equivalent.

 I – A transparent enlargement: each sentences of Article 2 TEU include binding values

On its face, Article 2 TEU distinguishes values (within the first sentence) from different ideas (within the second). It supplies:

‘The Union is based on the values of respect for human dignity, freedom, democracy, equality, the rule of legislation and respect for human rights, together with the rights of individuals belonging to minorities. These values are frequent to the Member States in a society by which pluralism, non-discrimination, tolerance, justice, solidarity and equality between ladies and men prevail.’

The excellence is essential; as an example, solely a breach of the Article 2 values allows the usage of Article 7 TEU.

The drafting historical past of the supply means that the excellence was intentional (Amato et al. 2007, p. 299). While some students have doubted the excellence (e.g. Kellerbauer et al. p. 25), Union actors have tended to undertake it: (see, amongst others, recital 1 of the Rule of Regulation Conditionality Regulation ((EU, Euratom) 2020/2092) and AG Bot’s Opinion in C-643/15 and C-647/15 Slovakia and Hungary v Council, para 19). Certainly, the Courtroom appeared to undertake the identical distinction in C-848/19 P Germany v Poland by referring to solidarity not as a price, however moderately as ‘one of many traits of a society based on the values frequent to the Member States’ (para 39; my italics; cf. (2021) RDUE 307, 327, 354 and 361). That is in step with a number of language variations of Article 2 TEU which say society is ‘characterised’ by these ideas (e.g. FR, ES, IT).

In Hungary and Poland, the Courtroom seems to have dissolved the excellence. It held that varied Constitution articles ‘outline the scope of the values of human dignity, freedom, equality, respect for human rights, non-discrimination and equality between ladies and men, contained in Article 2 TEU.’ (para 157; my italics). However the final two of these ideas are in that article’s second sentence, not its first. The Courtroom reiterates their standing as values in para 158. 

On this means – with out reasoning or fanfare – the Courtroom seems to have decisively widened Article 2 TEU. With the excellence collapsed, it could appear to comply with ineluctably that Article 2 comprises twelve, not six, values.

It’s true that elsewhere the Courtroom makes use of the slippery time period ‘precept’ for sure second-sentence ideas (paras 129 and 229). But it surely has completed the identical for first-sentence values (e.g. C-272/19 Land Hessen, para 45). Certainly, one strand of its case-law – drawing, maybe mistakenly, on pre-Lisbon terminology – refers back to the Articles 2 and seven TEU values as ‘ideas’ (C-562/21 PPU and C-563/21 PPU X and Y, para 64; C-216/18 PPU LM, paras 70-71). The strongest argument towards the above interpretation just isn’t that the Courtroom’s use of the phrase ‘precept’ is critical. It’s moderately that the Courtroom’s use of the phrases ‘values’, ‘attribute’ and ‘precept’ is at present so free that its use of the phrase ‘worth’ is insignificant. But that appears unlikely right here: this was not a throwaway remark, however a part of the Courtroom’s developed conceptual evaluation of the character of ‘the values contained in Article 2 TEU’ (paras 155-163).

Given the breadth and energy of the Article 2 values, this obvious widening of Article 2 TEU might show to be an essential enlargement of each the scope of the values and of the Courtroom’s energy. That’s tempered by two issues: first, sure second-sentence ideas are intently associated to first-sentence ones (akin to non-discrimination and equality between ladies and men, each associated to equality; evaluate Burgorgue-Larsen et al. 2007, p. 56 and 58-59). Second, the Courtroom seems to ascertain structural relationships between the values and different major legislation that considerably prohibit the scope of the previous. It’s to this that I flip now.

II – One worth fattened, six starved: the exhaustive interpretation of the six values

From the beginning, authorized certainty was an important concern with the Article 2 TEU values (CONV 528/03, p11). The values are imprecise. They’re additionally freed from the carefully-crafted constraints on the Constitution which – for all of the discretion it grants the Courtroom – is proscribed to the scope of EU legislation, options extra exact drafting, and is bindingly linked to the ECHR and Explanations. Because the values’ authorized and constitutional significance develop, it should grow to be more and more pressing to make clear their content material in order to make clear their limits

At first sight, Hungary and Poland are a decisive step in direction of such readability. In two sentences, the Courtroom seems to outline no fewer than six values:

‘157 […] Articles 6, 10 to 13, 15, 16, 20, 21 and 23 of the Constitution outline the scope of the values of human dignity, freedom, equality, respect for human rights, non-discrimination and equality between ladies and men, contained in Article 2 TEU. […]

158 Moreover, Articles 8 and 10, Article 19(1), Article 153(1)(i) and Article 157(1) TFEU outline the scope of the values of equality, non-discrimination and equality between ladies and men and permit the EU legislature to undertake secondary laws supposed to implement these values.’

On its face, this exhaustively defines these six values. Their content material is decided by that of ten equal Constitution rights and 5 TFEU provisions. Breaking it down, it’s most probably that:

  • The three equality values correspond to Articles 20 (equality earlier than the legislation), 21 (non-discrimination) and 23 (equality between ladies and men) of the Constitution, along with TFEU provisions on intercourse equality mainstreaming (Article 8) in work (Article 153(1)(j)) and pay (Article 157(1)) and on anti-discrimination mainstreaming (Article 10) and laws (19(1)).
  • Freedom is outlined by Articles 6 (proper to liberty and safety), 10-13 (freedom of thought/faith, expression, meeting & affiliation, and humanities and sciences) and 15-16 (freedom of occupation and enterprise).
  • Human dignity and respect for human rights haven’t any corresponding Constitution articles. They’re presumably outlined by the sum of the above Constitution rights.

This slim, exhaustive method stands in stark distinction to the judgment’s growth of the worth of the rule of legislation. The Courtroom reiterates its long-standing case-law: Article 19 TEU provides ‘concrete expression to’ and protects ‘sure facets of’ that worth, and it should in flip be interpreted ‘within the gentle of’ Article 47 of the Constitution (paras 160-2). It then goes additional.  First, ‘sure facets’ are additionally protected by ‘Articles 47 to 50 of the Constitution, contained in Title VI, entitled “Justice”’ (para 160). Second, this worth consists of the precept of non-discrimination and the safety of elementary rights (para 229). Third, its scope is influenced by different requirements, together with these of the Venice Fee and the Courtroom’s case-law (para 230 and 236). The language is expressly non-exhaustive.

The rule of legislation is thus complicated, meaty and open. It subsumes different values; is partly, however not fully, applied and guarded by Article 19 TEU and 4 Constitution articles; and it’s porous to non-Treaty and even non-EU requirements. Conversely, human dignity, freedom, respect for human rights and the three equality values are easy, bony and closed. A small cluster of Constitution rights and different provisions ‘defines’, moderately than partly defending, them. 

Taken actually, that is exactly what the Courtroom says. The Courtroom tends fastidiously to rearticulate its imaginative and prescient of the Union’s constitutional structure in Full Courtroom judgments. This ‘exhaustive’ interpretation would, furthermore, present certainty and clear limits to these six values, addressing the issues talked about above. However, for my part it needs to be rejected for the explanations I give under.

III – Room for development: the higher, non-exhaustive interpretation of the six values

There are three explanation why the above interpretation of the six values needs to be rejected. The higher view is that the Courtroom partly, not exhaustively, clarified their content material.

First, paras 157-158 of the judgment usually are not as clear as first seems. While the English language model makes use of the phrase ‘defines’, the French makes use of the phrase ‘précisent’. The opposite language variations at present obtainable use equivalents (Danish: præciseres (however cf. fastlægger (‘set up’) in para 158); Hungarian: pontosítja; Polish, paras 193-4: precyzują; Italian, paras 193-4: precisano). This phrase is notoriously troublesome to translate into English (ECA 2016, pp 47-8), and is ordinarily translated as specify or make clear moderately than outline. Certainly, while the Courtroom’s personal follow varies, it tends to translate ‘préciser la portée’ as make clear the scope (e.g. C-347/20 SIA, para 46) or point out the scope (e.g. C-654/18 Interseroh, para 69); outline the scope tends to be the interpretation of ‘définir la portée’ (e.g. C-3/20 AB, para 83). 

This issues as a result of make clear, point out or préciser are much less absolute than outline. They needn’t be learn as exhaustive. And certainly, nothing within the context of those judgments means that it was supposed to be exhaustive.

Certainly, two contextual components favour the non-exhaustive studying. First, the Courtroom held that the three equality values have been précisées by sure Constitution rights and, individually, by sure TFEU provisions. But these are inconsistent. As an example, the TFEU provisions don’t embrace equality earlier than the legislation (cf. Article 20 of the Constitution, and likewise Hungary, para 229). Equally, Articles 8 and 10 TFEU embrace a narrower listing of protected grounds than these present in Article 21 of the Constitution. That is in step with these provisions partly implementing or specifying these values; it’s inexplicable if every précision is exhaustive.

Moreover, paras 157-158 don’t concern Hungary’s authorized certainty problem (cf. paras 222-290). Quite, they’re a part of the Courtroom’s rejection of the argument that Article 7 TEU was a lex specialis for implementing the Article 2 values. Their goal was to point out that ‘quite a few provisions of the Treaties…grant the EU establishments the facility to look at, decide the existence of and, the place acceptable, to impose penalties for breaches of the values…’ (para 159). The query was whether or not Treaty provisions applied sure values – not whether or not they outlined them.

Second, the ‘exhaustive’ interpretation can be very troublesome to reconcile with the scheme of the Constitution and the Courtroom’s standing case-law. I’ll spotlight simply three of probably the most severe points:

  • First, respect for human rights can be exhaustively outlined by reference to only 10 of the 50 Constitution rights. It’s troublesome to make sense of this proposition. It’s, on its face, flatly inconsistent with paragraphs 303-304 of C-402/05 P and C-415/05 P Kadi I
  • Second, human dignity can be outlined with none reference to any proper in Title I (DIGNITY) of the Constitution. This consists of the precise to human dignity itself (Article 1) in addition to rights with an intimate connection to human dignity, akin to the precise towards torture (C-404/15 and C-659/15 PPU Aranyosi, para 85). Certainly, as famous above, it’s unclear what impartial content material the worth would maintain. But the Courtroom’s case-law has interpreted that worth earlier than (C-331/16 and C-366/16 Okay, para 46) and, simply six days after Hungary, re-affirmed that Articles 1 and 4 of the Constitution enshrine ‘one of many elementary values’ of the Union (C-483/20 XXXX, para 29). 
  • Third, the articulation of freedom and of the three equalities is extra in depth and believable. Nonetheless, the worth of freedom would apply to solely 7 of the 14 rights in Title II (FREEDOMS) of the Constitution, apparently picked on the arbitrary foundation that they’ve the phrase ‘freedom’ or ‘liberty’ of their identify. Member States’ freedom wouldn’t be included, opposite to C-621/18 Wightman, paras 62-67.

Third, this ‘exhaustive’ interpretation would result in a completely deformed Article 2 TEU. The textual content of Article 2 TEU supplies no foundation for any distinction or hierarchy between the values – different, that’s, than the implied distinction between the primary and second sentences which the Courtroom seems to have abolished (I above). But the above interpretation would go away the values significantly lopsided. The rule of legislation can be complicated, meaty and open. The Courtroom has hinted at a equally open method to the worth of democracy (C-502/19 Junqueras Vies, para 63; evaluate Wightman, paras 62-67 and Poland, para 309). Conversely, six of the remaining values can be easy, bony and closed, outlined by a subset of Constitution articles and different provisions, chosen haphazardly and with out one phrase of reasoning. 

These three components – linguistic and contextual interpretation; the scheme of the Constitution and former case-law; and the scheme of Article 2 TEU itself – usually are not definitive. However they do represent a strong case that, however its language, the Courtroom’s matching of values to Constitution rights and first legislation was a primary sketch of how values, basic ideas, rights, major legislation and substance work together – not a closing definition. On this view, the mission of ‘precising’ the twelve Article 2 TEU values has solely simply begun.

Postscript

If the above evaluation is correct, it leaves us with a closing query: how did the paragraphs in regards to the six values come to be so complicated? Let me end with three ideas on this.

First, the English language phrase ‘outline’ is the primary reason for hassle. The Courtroom ought to make sure the idea of préciser is persistently and precisely translated in future. (Higher consistency and accuracy in its use of the phrases ‘worth’ and ‘precept’ would even be useful: see I above).

Second, it’s placing that the Courtroom cites eight provisions regarding equality, seven regarding freedom, and none regarding dignity. One wonders whether or not the juge rapporteur’s draft included a fuller, extra balanced mapping of values onto the Constitution and TFEU, just for components of this mapping (and even reasoning?) to be excised throughout deliberation. One truth right here is placing, if circumstantial: the juge rapporteur had been half of the Constitution Working Group within the Conference that drafted the Constitutional Treaty.

Lastly, even on the slim studying articulated above, the Courtroom has taken a daring step to offer form to the values’ content material and structural relationship with different major legislation. Superficially, this units limits on these notably highly effective provisions. This contrasts, furthermore, with the Courtroom’s persevering with reluctance to offer form to the Constitution’s rights/ideas distinction – one other space the place the drafters left the Courtroom to show soup into legislation. But the Courtroom took this step within the summary, with out enter from its Advocate Basic, and with out reasoning. The result’s complicated and deformed. Maybe a contentious Full Courtroom case was not the place to take this step.

I wish to thank Charlotte Piveteau and the European Regulation Weblog editors for his or her useful feedback, and Helga Molbæk-Steensig for her assist with the Danish language.

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