By means of Niall Coghlan
Has the CJEU outlined the content material of many of the Article 2 TEU values?
That is the query – slim however consequential – which this put up seeks to reply to, analysing the hot Complete Court docket judgments of Instances C-156/21 Hungary v Parliament and Council and C-157/21 Poland v Parliament and Council (‘Hungary and Poland’). I succeed in 3 conclusions:
- All twelve ideas discussed in Article 2 TEU – no longer simply the primary six, as most often assumed – appear to be equally-binding values (I);
- To start with look, the Court docket decisively clarifies and even defines the content material of 7 Article 2 values. In this studying, the rule of legislation is open-textured and supercharged. Conversely, six different values (human dignity, freedom, equality, appreciate for human rights, non-discrimination and equality between men and women) are emaciated: they’re outlined by means of a small cluster of Constitution rights and TFEU provisions (II); however
- On nearer research, there are tough causes for rejecting that studying of the six different values. The simpler view is that it is a non-exhaustive first step in clarifying them (III).
I suppose that the reader is accustomed to the background and substance of the judgments, coated in this previous put up, in addition to the extensive outlines of the talk in regards to the content material and impact of the Article 2 TEU values (see most often Kellerbauer et al. 2019, ‘Article 2 TEU’). During, I seek advice from the Hungary judgment paragraphs; the identical Poland paragraphs are materially an identical.
I – A transparent growth: each sentences of Article 2 TEU include binding values
On its face, Article 2 TEU distinguishes values (within the first sentence) from different ideas (in the second one). It supplies:
‘The Union is based at the values of appreciate for human dignity, freedom, democracy, equality, the guideline of legislation and appreciate for human rights, together with the rights of individuals belonging to minorities. Those values are commonplace to the Member States in a society by which pluralism, non-discrimination, tolerance, justice, harmony and equality between men and women succeed.’
The dignity is vital; for example, just a breach of the Article 2 values allows using Article 7 TEU.
The drafting historical past of the supply means that the consideration used to be intentional (Amato et al. 2007, p. 299). While some students have doubted the consideration (e.g. Kellerbauer et al. p. 25), Union actors have tended to undertake it: (see, among others, recital 1 of the Rule of Legislation Conditionality Law ((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 Court docket perceived to undertake the similar difference in C-848/19 P Germany v Poland by means of relating to harmony no longer as a worth, however fairly as ‘probably the most traits of a society based at the values commonplace to the Member States’ (para 39; my italics; cf. (2021) RDUE 307, 327, 354 and 361). That is in keeping with a number of language variations of Article 2 TEU which say society is ‘characterized’ by means of the ones ideas (e.g. FR, ES, IT).
In Hungary and Poland, the Court docket seems to have dissolved the consideration. It held that more than a few Constitution articles ‘outline the scope of the values of human dignity, freedom, equality, appreciate for human rights, non-discrimination and equality between men and women, contained in Article 2 TEU.’ (para 157; my italics). However the final two of the ones ideas are in that article’s moment sentence, no longer its first. The Court docket reiterates their standing as values in para 158.
On this manner – with out reasoning or fanfare – the Court docket seems to have decisively widened Article 2 TEU. With the consideration collapsed, it might appear to observe ineluctably that Article 2 incorporates twelve, no longer six, values.
It’s true that somewhere else the Court docket makes use of the slippery time period ‘concept’ for positive second-sentence ideas (paras 129 and 229). However it has performed the similar for first-sentence values (e.g. C-272/19 Land Hessen, para 45). Certainly, one strand of its case-law – drawing, most likely mistakenly, on pre-Lisbon terminology – refers back to the Articles 2 and seven TEU values as ‘rules’ (C-562/21 PPU and C-563/21 PPU X and Y, para 64; C-216/18 PPU LM, paras 70-71). The most powerful argument in opposition to the above interpretation isn’t that the Court docket’s use of the phrase ‘concept’ is very important. It’s fairly that the Court docket’s use of the phrases ‘values’, ‘function’ and ‘concept’ is recently so free that its use of the phrase ‘worth’ is insignificant. But that turns out not likely right here: this used to be no longer a throwaway remark, however a part of the Court docket’s advanced conceptual research of the character of ‘the values contained in Article 2 TEU’ (paras 155-163).
Given the breadth and tool of the Article 2 values, this obvious widening of Article 2 TEU might end up to be the most important growth of each the scope of the values and of the Court docket’s energy. This is tempered by means of two concerns: first, positive second-sentence ideas are carefully associated with first-sentence ones (corresponding to non-discrimination and equality between men and women, each associated with equality; evaluate Burgorgue-Larsen et al. 2007, p. 56 and 58-59). 2d, the Court docket seems to determine structural relationships between the values and different number one legislation that considerably limit 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, felony simple task used to be a an important worry with the Article 2 TEU values (CONV 528/03, p11). The values are obscure. They’re additionally freed from the carefully-crafted constraints at the Constitution which – for the entire discretion it grants the Court docket – is proscribed to the scope of EU legislation, options extra exact drafting, and is bindingly connected to the ECHR and Explanations. Because the values’ felony and constitutional significance develop, it’s going to change into increasingly more pressing to explain their content material to be able to explain their limits
To start with sight, Hungary and Poland are a decisive step against such readability. In two sentences, the Court docket 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, appreciate for human rights, non-discrimination and equality between men and women, 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 men and women and make allowance the EU legislature to undertake secondary regulation supposed to put into effect the ones values.’
On its face, this exhaustively defines those six values. Their content material is made up our minds by means of that of ten identical Constitution rights and 5 TFEU provisions. Breaking it down, it’s in all probability that:
- The 3 equality values correspond to Articles 20 (equality sooner than the legislation), 21 (non-discrimination) and 23 (equality between men and women) of the Constitution, along with TFEU provisions on intercourse equality mainstreaming (Article 8) in paintings (Article 153(1)(j)) and pay (Article 157(1)) and on anti-discrimination mainstreaming (Article 10) and regulation (19(1)).
- Freedom is outlined by means of Articles 6 (proper to liberty and safety), 10-13 (freedom of concept/faith, expression, meeting & affiliation, and humanities and sciences) and 15-16 (freedom of career and industry).
- Human dignity and appreciate for human rights haven’t any corresponding Constitution articles. They’re probably outlined by means of the sum of the above Constitution rights.
This slim, exhaustive means stands in stark distinction to the judgment’s construction of the price of the rule of legislation. The Court docket reiterates its long-standing case-law: Article 19 TEU offers ‘concrete expression to’ and protects ‘positive sides of’ that worth, and it should in flip be interpreted ‘within the gentle of’ Article 47 of the Constitution (paras 160-2). It then is going additional. First, ‘positive sides’ also are safe by means of ‘Articles 47 to 50 of the Constitution, contained in Name VI, entitled “Justice”’ (para 160). 2d, this worth contains the main of non-discrimination and the safety of basic rights (para 229). 3rd, its scope is influenced by means of different requirements, together with the ones of the Venice Fee and the Court docket’s case-law (para 230 and 236). The language is expressly non-exhaustive.
The rule of legislation is thus advanced, meaty and open. It subsumes different values; is partially, however no longer totally, carried out and safe by means of Article 19 TEU and 4 Constitution articles; and it’s porous to non-Treaty or even non-EU requirements. Conversely, human dignity, freedom, appreciate for human rights and the 3 equality values are easy, bony and closed. A small cluster of Constitution rights and different provisions ‘defines’, fairly than partially protective, them.
Taken actually, that is exactly what the Court docket says. The Court docket has a tendency intently to rearticulate its imaginative and prescient of the Union’s constitutional structure in Complete Court docket judgments. This ‘exhaustive’ interpretation would, additionally, supply simple task and transparent limits to these six values, addressing the worries discussed above. Nonetheless, individually it will have to be rejected for the explanations I give beneath.
III – Room for enlargement: the simpler, non-exhaustive interpretation of the six values
There are 3 the explanation why the above interpretation of the six values will have to be rejected. The simpler view is that the Court docket partially, no longer exhaustively, clarified their content material.
First, paras 157-158 of the judgment don’t seem to be as transparent 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 recently to be had use equivalents (Danish: præciseres (however cf. fastlægger (‘identify’) in para 158); Hungarian: pontosítja; Polish, paras 193-4: precyzują; Italian, paras 193-4: precisano). This phrase is notoriously tough to translate into English (ECA 2016, pp 47-8), and is ordinarily translated as specify or explain fairly than outline. Certainly, while the Court docket’s personal follow varies, it has a tendency to translate ‘préciser los angeles portée’ as explain 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 has a tendency to be the interpretation of ‘définir los angeles portée’ (e.g. C-3/20 AB, para 83).
This issues as a result of explain, point out or préciser are much less absolute than outline. They needn’t be learn as exhaustive. And certainly, not anything within the context of those judgments means that it used to be supposed to be exhaustive.
Certainly, two contextual components favour the non-exhaustive studying. First, the Court docket held that the 3 equality values have been précisées by means of positive Constitution rights and, one after the other, by means of positive TFEU provisions. But those are inconsistent. For example, the TFEU provisions don’t come with equality sooner than the legislation (cf. Article 20 of the Constitution, and in addition Hungary, para 229). In a similar fashion, Articles 8 and 10 TFEU come with a narrower checklist of safe grounds than the ones present in Article 21 of the Constitution. That is in keeping with the ones provisions partially enforcing or specifying the ones values; it’s inexplicable if every précision is exhaustive.
Moreover, paras 157-158 don’t worry Hungary’s felony simple task problem (cf. paras 222-290). Fairly, they’re a part of the Court docket’s rejection of the argument that Article 7 TEU used to be a lex specialis for enforcing the Article 2 values. Their function used to be to turn that ‘a large number of provisions of the Treaties…grant the EU establishments the ability to inspect, resolve the lifestyles of and, the place suitable, to impose consequences for breaches of the values…’ (para 159). The query used to be whether or not Treaty provisions carried out positive values – no longer whether or not they outlined them.
2d, the ‘exhaustive’ interpretation can be very tough to reconcile with the scheme of the Constitution and the Court docket’s status case-law. I will be able to spotlight simply 3 of essentially the most critical problems:
- First, appreciate for human rights can be exhaustively outlined by means of reference to only 10 of the 50 Constitution rights. It’s tough 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.
- 2d, human dignity can be outlined with none connection with any proper in Name I (DIGNITY) of the Constitution. This contains the precise to human dignity itself (Article 1) in addition to rights with an intimate connection to human dignity, corresponding to the precise in opposition to torture (C-404/15 and C-659/15 PPU Aranyosi, para 85). Certainly, as famous above, it’s unclear what impartial content material the price would grasp. But the Court docket’s case-law has interpreted that worth sooner than (C-331/16 and C-366/16 Okay, para 46) and, simply six days after Hungary, re-affirmed that Articles 1 and four of the Constitution enshrine ‘probably the most basic values’ of the Union (C-483/20 XXXX, para 29).
- 3rd, the articulation of freedom and of the 3 equalities is extra in depth and believable. Nonetheless, the price of freedom would follow to just 7 of the 14 rights in Name II (FREEDOMS) of the Constitution, it sounds as if picked at the arbitrary foundation that they have got the phrase ‘freedom’ or ‘liberty’ of their identify. Member States’ freedom would no longer be integrated, opposite to C-621/18 Wightman, paras 62-67.
3rd, this ‘exhaustive’ interpretation would result in a completely deformed Article 2 TEU. The textual content of Article 2 TEU supplies no foundation for any difference or hierarchy between the values – different, this is, than the implied difference between the primary and moment sentences which the Court docket seems to have abolished (I above). But the above interpretation would depart the values critically lopsided. The rule of thumb of legislation can be advanced, meaty and open. The Court docket has hinted at a in a similar fashion open method to the price of democracy (C-502/19 Junqueras Vies, para 63; evaluate Wightman, paras 62-67 and Poland, para 309). Conversely, six of the rest values can be easy, bony and closed, outlined by means of a subset of Constitution articles and different provisions, selected haphazardly and with out one phrase of reasoning.
Those 3 components – linguistic and contextual interpretation; the scheme of the Constitution and former case-law; and the scheme of Article 2 TEU itself – don’t seem to be definitive. However they do represent an impressive case that, however its language, the Court docket’s matching of values to Constitution rights and number one legislation used to be a primary caricature of ways values, basic rules, rights, number one legislation and substance have interaction – no longer a last definition. In this view, the venture of ‘precising’ the twelve Article 2 TEU values has best simply begun.
If the above research is true, it leaves us with a last query: how did the paragraphs in regards to the six values come to be so complicated? Let me end with 3 ideas in this.
First, the English language phrase ‘outline’ is the primary reason for bother. The Court docket will have to be sure the idea that of préciser is continually and as it should be translated in long term. (Higher consistency and accuracy in its use of the phrases ‘worth’ and ‘concept’ would even be useful: see I above).
2d, it’s hanging that the Court docket cites 8 provisions with regards to equality, seven with regards to freedom, and none with regards to dignity. One wonders whether or not the juge rapporteur’s draft integrated a fuller, extra balanced mapping of values onto the Constitution and TFEU, just for portions of this mapping (or even reasoning?) to be excised right through deliberation. One reality this is hanging, if circumstantial: the juge rapporteur were section of the Constitution Operating Crew within the Conference that drafted the Constitutional Treaty.
In spite of everything, even at the slim studying articulated above, the Court docket has taken a daring step to offer form to the values’ content material and structural courting with different number one legislation. Superficially, this units limits on those in particular tough provisions. This contrasts, additionally, with the Court docket’s proceeding reluctance to offer form to the Constitution’s rights/rules difference – every other house the place the drafters left the Court docket to show soup into legislation. But the Court docket took this step within the summary, with out enter from its Recommend Common, and with out reasoning. The result’s complicated and deformed. Most likely a contentious Complete Court docket case used to be no longer where to take this step.
I wish to thank Charlotte Piveteau and the Eu Legislation Weblog editors for his or her useful feedback, and Helga Molbæk-Steensig for her assist with the Danish language.