By 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 publish seeks to reply, analysing the current Full Court docket 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 Court docket decisively clarifies and even defines the content material of seven Article 2 values. On this studying, the rule of regulation is open-textured and supercharged. Conversely, six different values (human dignity, freedom, equality, respect for human rights, non-discrimination and equality between men and women) 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 it is 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 usually Kellerbauer et al. 2019, ‘Article 2 TEU’). All through, I seek advice from the Hungary judgment paragraphs; the equal Poland paragraphs are materially an identical.
I – A transparent growth: each sentences of Article 2 TEU comprise binding values
On its face, Article 2 TEU distinguishes values (within the first sentence) from different ideas (within the second). It gives:
‘The Union is based on the values of respect for human dignity, freedom, democracy, equality, the rule of regulation and respect for human rights, together with the rights of individuals belonging to minorities. These values are widespread to the Member States in a society wherein pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women prevail.’
The excellence is essential; for example, solely a breach of the Article 2 values permits 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 Legislation 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 Court docket appeared to undertake the identical distinction in C-848/19 P Germany v Poland by referring to solidarity not as a worth, however moderately as ‘one of many traits of a society based on the values widespread to the Member States’ (para 39; my italics; cf. (2021) RDUE 307, 327, 354 and 361). That is according to 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 Court docket seems to have dissolved the excellence. It held that numerous Constitution articles ‘outline the scope of the values of human dignity, freedom, equality, respect 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 these ideas are in that article’s second sentence, not 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 excellence collapsed, it might appear to observe ineluctably that Article 2 comprises twelve, not six, values.
It’s true that elsewhere the Court docket makes use of the slippery time period ‘precept’ for sure second-sentence ideas (paras 129 and 229). Nevertheless it has achieved 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 will not be that the Court docket’s use of the phrase ‘precept’ is important. It’s moderately that the Court docket’s use of the phrases ‘values’, ‘attribute’ and ‘precept’ is presently so unfastened 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 Court docket’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 could show to be an essential growth of each the scope of the values and of the Court docket’s energy. That’s tempered by two issues: first, sure second-sentence ideas are intently associated to first-sentence ones (corresponding to non-discrimination and equality between men and women, each associated to equality; examine Burgorgue-Larsen et al. 2007, p. 56 and 58-59). Second, the Court docket seems to determine structural relationships between the values and different major regulation 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 Court docket – is restricted to the scope of EU regulation, options extra exact drafting, and is bindingly linked to the ECHR and Explanations. Because the values’ authorized and constitutional significance develop, it would change into 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 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, respect 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 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 regulation), 21 (non-discrimination) and 23 (equality between men and women) 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 regulation. The Court docket reiterates its long-standing case-law: Article 19 TEU offers ‘concrete expression to’ and protects ‘sure features of’ that worth, and it should in flip be interpreted ‘within the mild of’ Article 47 of the Constitution (paras 160-2). It then goes additional. First, ‘sure features’ 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 Court docket’s case-law (para 230 and 236). The language is expressly non-exhaustive.
The rule of regulation is thus complicated, meaty and open. It subsumes different values; is partly, however not fully, carried out 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 Court docket says. The Court docket tends rigorously to rearticulate its imaginative and prescient of the Union’s constitutional structure in Full Court docket judgments. This ‘exhaustive’ interpretation would, furthermore, present certainty and clear limits to these six values, addressing the considerations talked about above. Nonetheless, for my part it ought 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 the reason why the above interpretation of the six values ought to be rejected. The higher view is that the Court docket partly, not exhaustively, clarified their content material.
First, paras 157-158 of the judgment are usually 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 presently 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 tough to translate into English (ECA 2016, pp 47-8), and is ordinarily translated as specify or make clear moderately than outline. Certainly, while the Court docket’s personal apply 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 elements favour the non-exhaustive studying. First, the Court docket held that the three equality values have been précisées by sure Constitution rights and, individually, by sure TFEU provisions. But these are inconsistent. For example, the TFEU provisions don’t embrace equality earlier than the regulation (cf. Article 20 of the Constitution, and in addition Hungary, para 229). Equally, Articles 8 and 10 TFEU embrace a narrower checklist of protected grounds than these present in Article 21 of the Constitution. That is according to 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). Fairly, they’re a part of the Court docket’s rejection of the argument that Article 7 TEU was a lex specialis for implementing the Article 2 values. Their function was to indicate that ‘quite a few provisions of the Treaties…grant the EU establishments the facility to look at, decide the existence of and, the place applicable, to impose penalties for breaches of the values…’ (para 159). The query was whether or not Treaty provisions carried out sure values – not whether or not they outlined them.
Second, the ‘exhaustive’ interpretation could be very tough to reconcile with the scheme of the Constitution and the Court docket’s standing case-law. I’ll spotlight simply three of essentially the most severe points:
- First, respect for human rights could be exhaustively outlined by 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.
- Second, human dignity could be outlined with none reference to any proper in Title I (DIGNITY) of the Constitution. This consists of the best to human dignity itself (Article 1) in addition to rights with an intimate connection to human dignity, corresponding to the best 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 Court docket’s case-law has interpreted that worth earlier than (C-331/16 and C-366/16 Ok, 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 intensive 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 title. 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 gives 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 Court docket seems to have abolished (I above). But the above interpretation would go away the values significantly lopsided. The rule of regulation could be complicated, meaty and open. The Court docket has hinted at a equally open method to the worth of democracy (C-502/19 Junqueras Vies, para 63; examine Wightman, paras 62-67 and Poland, para 309). Conversely, six of the remaining values could 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 elements – linguistic and contextual interpretation; the scheme of the Constitution and former case-law; and the scheme of Article 2 TEU itself – are usually not definitive. However they do represent a strong case that, however its language, the Court docket’s matching of values to Constitution rights and first regulation was a primary sketch of how values, basic ideas, rights, major regulation and substance work together – not a closing definition. On this view, the challenge of ‘precising’ the twelve Article 2 TEU values has solely simply begun.
Postscript
If the above evaluation is true, it leaves us with a closing query: how did the paragraphs regarding 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 Court docket ought to make sure the idea of préciser is constantly 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 hanging that the Court docket 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 hanging, 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 Court docket has taken a daring step to offer form to the values’ content material and structural relationship with different major regulation. Superficially, this units limits on these notably highly effective provisions. This contrasts, furthermore, with the Court docket’s persevering with reluctance to offer form to the Constitution’s rights/ideas distinction – one other space the place the drafters left the Court docket to show soup into regulation. But the Court docket took this step within the summary, with out enter from its Advocate Normal, and with out reasoning. The result’s complicated and deformed. Maybe a contentious Full Court docket case was not the place to take this step.
I wish to thank Charlotte Piveteau and the European Legislation Weblog editors for his or her useful feedback, and Helga Molbæk-Steensig for her assist with the Danish language.
