One fattened, six starved? The Article 2 TEU values after the rule of law conditionality judgments
Has the CJEU defined the content of most of the Article 2 TEU values?
This is the question – narrow but consequential – which this post seeks to answer, analysing the recent Full Court judgments of Cases C-156/21 Hungary v Parliament and Council and C-157/21 Poland v Parliament and Council (‘Hungary and Poland’). I reach three conclusions:
- All twelve concepts mentioned in Article 2 TEU – not just the first six, as typically assumed – seem to be equally-binding values (I);
- At first glance, the Court decisively clarifies or even defines the content of seven Article 2 values. On this reading, the rule of law is open-textured and supercharged. Conversely, six other values (human dignity, freedom, equality, respect for human rights, non-discrimination and equality between women and men) are emaciated: they are defined by a small cluster of Charter rights and TFEU provisions (II); but
- On closer analysis, there are powerful reasons for rejecting that reading of the six other values. The better view is that this is a non-exhaustive first step in clarifying them (III).
I assume that the reader is familiar with the background and substance of the judgments, covered in this earlier post, as well as the broad outlines of the debate about the content and effect of the Article 2 TEU values (see generally Kellerbauer et al. 2019, ‘Article 2 TEU’). Throughout, I refer to the Hungary judgment paragraphs; the equivalent Poland paragraphs are materially identical.
I – A clear expansion: both sentences of Article 2 TEU contain binding values
On its face, Article 2 TEU distinguishes values (in the first sentence) from other concepts (in the second). It provides:
‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’
The distinction is important; for instance, only a breach of the Article 2 values enables the use of Article 7 TEU.
The drafting history of the provision suggests that the distinction was intentional (Amato et al. 2007, p. 299). Whilst some scholars have doubted the distinction (e.g. Kellerbauer et al. p. 25), Union actors have tended to adopt it: (see, amongst others, recital 1 of the Rule of Law 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). Indeed, the Court appeared to adopt the same distinction in C-848/19 P Germany v Poland by referring to solidarity not as a value, but rather as ‘one of the characteristics of a society founded on the values common to the Member States’ (para 39; my italics; cf. (2021) RDUE 307, 327, 354 and 361). This is consistent with several language versions of Article 2 TEU which say society is ‘characterised’ by those concepts (e.g. FR, ES, IT).
In Hungary and Poland, the Court appears to have dissolved the distinction. It held that various Charter articles ‘define the scope of the values of human dignity, freedom, equality, respect for human rights, non-discrimination and equality between women and men, contained in Article 2 TEU.’ (para 157; my italics). But the last two of those concepts are in that article’s second sentence, not its first. The Court reiterates their status as values in para 158.
In this way – without reasoning or fanfare – the Court appears to have decisively widened Article 2 TEU. With the distinction collapsed, it would seem to follow ineluctably that Article 2 contains twelve, not six, values.
It is true that elsewhere the Court uses the slippery term ‘principle’ for certain second-sentence concepts (paras 129 and 229). But it has done the same for first-sentence values (e.g. C-272/19 Land Hessen, para 45). Indeed, one strand of its case-law – drawing, perhaps mistakenly, on pre-Lisbon terminology – refers to the Articles 2 and 7 TEU values as ‘principles’ (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 against the above interpretation is not that the Court’s use of the word ‘principle’ is significant. It is rather that the Court’s use of the words ‘values’, ‘characteristic’ and ‘principle’ is currently so loose that its use of the word ‘value’ is insignificant. Yet that seems unlikely here: this was not a throwaway comment, but part of the Court’s developed conceptual analysis of the nature of ‘the values contained in Article 2 TEU’ (paras 155-163).
Given the breadth and power of the Article 2 values, this apparent widening of Article 2 TEU may prove to be an important expansion of both the scope of the values and of the Court’s power. That is tempered by two considerations: first, certain second-sentence concepts are closely related to first-sentence ones (such as non-discrimination and equality between women and men, both related to equality; compare Burgorgue-Larsen et al. 2007, p. 56 and 58-59). Second, the Court appears to establish structural relationships between the values and other primary law that significantly restrict the scope of the former. It is to this that I turn now.
II – One value fattened, six starved: the exhaustive interpretation of the six values
From the start, legal certainty was a crucial concern with the Article 2 TEU values (CONV 528/03, p11). The values are vague. They are also free of the carefully-crafted constraints on the Charter which – for all the discretion it grants the Court – is limited to the scope of EU law, features more precise drafting, and is bindingly linked to the ECHR and Explanations. As the values’ legal and constitutional importance grow, it will become increasingly urgent to clarify their content so as to clarify their limits
At first sight, Hungary and Poland are a decisive step towards such clarity. In two sentences, the Court appears to define no fewer than six values:
‘157 […] Articles 6, 10 to 13, 15, 16, 20, 21 and 23 of the Charter define the scope of the values of human dignity, freedom, equality, respect for human rights, non-discrimination and equality between women and men, contained in Article 2 TEU. […]
158 Furthermore, Articles 8 and 10, Article 19(1), Article 153(1)(i) and Article 157(1) TFEU define the scope of the values of equality, non-discrimination and equality between women and men and allow the EU legislature to adopt secondary legislation intended to implement those values.’
On its face, this exhaustively defines these six values. Their content is determined by that of ten equivalent Charter rights and five TFEU provisions. Breaking it down, it is most likely that:
- The three equality values correspond to Articles 20 (equality before the law), 21 (non-discrimination) and 23 (equality between women and men) of the Charter, together with TFEU provisions on sex equality mainstreaming (Article 8) in work (Article 153(1)(j)) and pay (Article 157(1)) and on anti-discrimination mainstreaming (Article 10) and legislation (19(1)).
- Freedom is defined by Articles 6 (right to liberty and security), 10-13 (freedom of thought/religion, expression, assembly & association, and arts and sciences) and 15-16 (freedom of occupation and business).
- Human dignity and respect for human rights have no corresponding Charter articles. They are presumably defined by the sum of the above Charter rights.
This narrow, exhaustive approach stands in stark contrast to the judgment’s development of the value of the rule of law. The Court reiterates its long-standing case-law: Article 19 TEU gives ‘concrete expression to’ and protects ‘certain aspects of’ that value, and it must in turn be interpreted ‘in the light of’ Article 47 of the Charter (paras 160-2). It then goes further. First, ‘certain aspects’ are also protected by ‘Articles 47 to 50 of the Charter, contained in Title VI, entitled “Justice”’ (para 160). Second, this value includes the principle of non-discrimination and the protection of fundamental rights (para 229). Third, its scope is influenced by other standards, including those of the Venice Commission and the Court’s case-law (para 230 and 236). The language is expressly non-exhaustive.
The rule of law is thus complex, meaty and open. It subsumes other values; is partly, but not completely, implemented and protected by Article 19 TEU and four Charter articles; and it is porous to non-Treaty and even non-EU standards. Conversely, human dignity, freedom, respect for human rights and the three equality values are simple, bony and closed. A small cluster of Charter rights and other provisions ‘defines’, rather than partly protecting, them.
Taken literally, this is precisely what the Court says. The Court tends carefully to rearticulate its vision of the Union’s constitutional architecture in Full Court judgments. This ‘exhaustive’ interpretation would, moreover, provide certainty and clear limits to those six values, addressing the concerns mentioned above. Nevertheless, in my view it should be rejected for the reasons I give below.
III – Room for growth: the better, non-exhaustive interpretation of the six values
There are three reasons why the above interpretation of the six values should be rejected. The better view is that the Court partly, not exhaustively, clarified their content.
First, paras 157-158 of the judgment are not as clear as first appears. Whilst the English language version uses the word ‘defines’, the French uses the word ‘précisent’. The other language versions currently available use equivalents (Danish: præciseres (but cf. fastlægger (‘establish’) in para 158); Hungarian: pontosítja; Polish, paras 193-4: precyzują; Italian, paras 193-4: precisano). This word is notoriously difficult to translate into English (ECA 2016, pp 47-8), and is ordinarily translated as specify or clarify rather than define. Indeed, whilst the Court’s own practice varies, it tends to translate ‘préciser la portée’ as clarify the scope (e.g. C-347/20 SIA, para 46) or indicate the scope (e.g. C-654/18 Interseroh, para 69); define the scope tends to be the translation of ‘définir la portée’ (e.g. C-3/20 AB, para 83).
This matters because clarify, indicate or préciser are less absolute than define. They need not be read as exhaustive. And indeed, nothing in the context of these judgments suggests that it was intended to be exhaustive.
Indeed, two contextual factors favour the non-exhaustive reading. First, the Court held that the three equality values were précisées by certain Charter rights and, separately, by certain TFEU provisions. Yet these are inconsistent. For instance, the TFEU provisions do not include equality before the law (cf. Article 20 of the Charter, and also Hungary, para 229). Similarly, Articles 8 and 10 TFEU include a narrower list of protected grounds than those found in Article 21 of the Charter. This is consistent with those provisions partly implementing or specifying those values; it is inexplicable if each précision is exhaustive.
Furthermore, paras 157-158 do not concern Hungary’s legal certainty challenge (cf. paras 222-290). Rather, they are part of the Court’s rejection of the argument that Article 7 TEU was a lex specialis for implementing the Article 2 values. Their purpose was to show that ‘numerous provisions of the Treaties…grant the EU institutions the power to examine, determine the existence of and, where appropriate, to impose penalties for breaches of the values…’ (para 159). The question was whether Treaty provisions implemented certain values – not whether they defined them.
Second, the ‘exhaustive’ interpretation would be very difficult to reconcile with the scheme of the Charter and the Court’s standing case-law. I will highlight just three of the most serious issues:
- First, respect for human rights would be exhaustively defined by reference to just 10 of the 50 Charter rights. It is difficult to make sense of this proposition. It is, on its face, flatly inconsistent with paragraphs 303-304 of C-402/05 P and C-415/05 P Kadi I.
- Second, human dignity would be defined without any reference to any right in Title I (DIGNITY) of the Charter. This includes the right to human dignity itself (Article 1) as well as rights with an intimate connection to human dignity, such as the right against torture (C-404/15 and C-659/15 PPU Aranyosi, para 85). Indeed, as noted above, it is unclear what independent content the value would hold. Yet the Court’s case-law has interpreted that value before (C-331/16 and C-366/16 K, para 46) and, just six days after Hungary, re-affirmed that Articles 1 and 4 of the Charter enshrine ‘one of the fundamental values’ of the Union (C-483/20 XXXX, para 29).
- Third, the articulation of freedom and of the three equalities is more extensive and plausible. Still, the value of freedom would apply to only 7 of the 14 rights in Title II (FREEDOMS) of the Charter, apparently picked on the arbitrary basis that they have the word ‘freedom’ or ‘liberty’ in their name. Member States’ freedom would not be included, contrary to C-621/18 Wightman, paras 62-67.
Third, this ‘exhaustive’ interpretation would lead to a permanently deformed Article 2 TEU. The text of Article 2 TEU provides no basis for any distinction or hierarchy between the values – other, that is, than the implied distinction between the first and second sentences which the Court appears to have abolished (I above). Yet the above interpretation would leave the values seriously lopsided. The rule of law would be complex, meaty and open. The Court has hinted at a similarly open approach to the value of democracy (C-502/19 Junqueras Vies, para 63; compare Wightman, paras 62-67 and Poland, para 309). Conversely, six of the remaining values would be simple, bony and closed, defined by a subset of Charter articles and other provisions, chosen haphazardly and without one word of reasoning.
These three factors – linguistic and contextual interpretation; the scheme of the Charter and previous case-law; and the scheme of Article 2 TEU itself – are not definitive. But they do constitute a powerful case that, notwithstanding its language, the Court’s matching of values to Charter rights and primary law was a first sketch of how values, general principles, rights, primary law and substance interact – not a final definition. On this view, the project of ‘precising’ the twelve Article 2 TEU values has only just begun.
If the above analysis is right, it leaves us with a final question: how did the paragraphs concerning the six values come to be so confusing? Let me finish with three thoughts on this.
First, the English language word ‘define’ is the first cause of trouble. The Court should ensure the concept of préciser is consistently and accurately translated in future. (Greater consistency and accuracy in its use of the words ‘value’ and ‘principle’ would also be helpful: see I above).
Second, it is striking that the Court cites eight provisions relating to equality, seven relating to freedom, and none relating to dignity. One wonders whether the juge rapporteur’s draft included a fuller, more balanced mapping of values onto the Charter and TFEU, only for parts of this mapping (and even reasoning?) to be excised during deliberation. One fact here is striking, if circumstantial: the juge rapporteur had been part of the Charter Working Group in the Convention that drafted the Constitutional Treaty.
Finally, even on the narrow reading articulated above, the Court has taken a bold step to give shape to the values’ content and structural relationship with other primary law. Superficially, this sets limits on these particularly powerful provisions. This contrasts, moreover, with the Court’s continuing reluctance to give shape to the Charter’s rights/principles distinction – another area where the drafters left the Court to turn soup into law. Yet the Court took this step in the abstract, without input from its Advocate General, and without reasoning. The result is confusing and deformed. Perhaps a contentious Full Court case was not the place to take this step.
I would like to thank Charlotte Piveteau and the European Law Blog editors for their helpful comments, and Helga Molbæk-Steensig for her help with the Danish language.