A. The Values: The Context and the Road Map
1 This entry argues that there must be a certain European Union (EU or ‘Union’) content attached to the guiding values of the political community. These values, while clearly anchored in the domestic legal systems and the constitutional traditions of the Member States, must take on their own meaning if they are indeed to serve as a behavioral and identitarian yardstick for the Union and for belonging to the Union. If such a core cannot be agreed upon and enforced in times of crisis, then the integration project itself is undermined and loses its ethos.
2 Despite the necessity to build a more conceptual approach to the values within the EU, writing about the European values has never been an easy endeavor.
3 On the one hand, the term “values” has been finally taken up by the language of the Treaties (Art. 2 Treaty on European Union (‘TEU’)). With this, the EU opened itself to the discussions of the ‘union beyond a Common Market’ with the ethical face (Frischhut). With the values in the EU, it is not only the endlessly contentious catalogue of these values, but also their exact status, framing and expression, as well as the very purpose of inserting the values into the language of the Treaties (Boekestein).
4 On the other hand, many questions persist. How should we understand this treaty elevation of the ‘values talk’? Should we read it as the ultimate sign that the EU is on the path towards becoming a (dreaded to many) federal state with its own Union identity? Is Article 2 TEU to be constructed like a homogenous clause along the lines of constitutional provisions? Is it laying down a groundwork for the identity of the Union? It was rightly pointed out that the way the values have been inserted into, and presented in, the treaties is marred with incoherence and leaves us with more questions than with answers. Douglas-Scott raises some of these uneasy and pertinent questions: ‘Why are some ambitions described as aims or objectives rather than values? … Why should peace, or social justice, be classified as aims rather than values? And what to make of the fact that so many different values and aims, and principles, of a different ideological bent appear grouped together? … Are [the values] universal, and if so, can’t they truly have developed from the singular, particular European inheritance?’ (Douglas - Scott, 413). She then concludes on a somber note: ‘Overall, the early Treaty provisions present themselves as a rather incoherent jumble … by an overabundance of other objectives, principles and policy statements, their [values] expression in the Lisbon Treaty provides a confusing and particularly inept way to construct a meaningful moral identity or philosophical framework for the EU’ (Douglas-Scott, 413-14.). And then there is a terminological conundrum: are we focusing on the European values or the values of the European Union?
5 All these questions and the importance of locating the constitutional core that would help define the European Union beyond the common market have gained prominence with the worrying pattern of the democratic backsliding in some Member States (Koncewicz, 2020). This process has called into question the assumption of commonality among the States and their fidelity to the (allegedly) shared constitutional core of the Union. One must be very clear, though, that not everything should be grouped under the high-handed tag of ‘value crisis’ in the EU. When properly defined, it is not about well-intentioned disagreements among reasonable democrats on how best to implement a technical piece of EU law or bring its domestic legislation into line with the requirements of the EU law. There is a categorical difference between a lack of implementation of EU law and/or interference with citizens’ EU rights, on the one hand, and the blatant rejection of the Court of Justice’s (‘Court’) authority, targeting national judges for sending preliminary rulings to the Court or masterminding a hate campaign against the judges that dare to say ‘no’ to such practices of intimidation, on the other. It is argued here that it is exactly these extreme examples of—in this case rule of law—breaches that demand, and will continue to demand in 2023 and beyond, the explicit spelling out of the constitutional core of the EU that is shared by all as part of once implicit and non-negotiable elements of the original consensus that brought all its parties together.
6 While commitment to the EU project by all actors involved has been crucial (Standard Eurobarometer 89, 2018), one of the tenets of ‘value crisis’ is that today such an assumption is no longer valid. Rather it operates as the counterfactual since not all member states are ready to acknowledge that the values—rule of law in particular—are indeed common and shared. It shows that the argument from distinctiveness is often abused by the backsliding states. The analysis argues that the politics of resentment (Koncewicz, 2019a; Koncewicz, 2020) have challenged us to revisit the forgotten founding narratives centered around the ‘First Principles’ (Edward) of European integration (dimension of the past), to rethink Europe’s present vocation (dimension of the present), and finally, to embrace new vistas (dimension of the future). Resentment-driven constitutional capture poses an existential threat to post-1945 Europe and its founding narratives of living together and forbearance that animated Europe’s Founding Fathers. The post-1945 liberal consensus (Walker; Koncewicz, 2020; Koncewicz, 2021) was built around the paradigm of never-again constitutionalism and was reinforced by the legal commitment to ensure that dictatorships would never arise out of constitutionalism (Dupré, 2015. Political power at the domestic level was to become subject to new international and supranational setting of constraints with on the power depending on continuous adherence to the core values of liberalism that transcend momentary desires. While human rights were given a special place in this international and supranational system of checks imposed on the domestic pouvoir constituant, they were never meant to be alone. The states have recognized that liberal democracies would work best alongside two complementary safeguards, including: (1) the rule of law and the constitution as the supreme law of the land; and (2) mechanisms of supranational and international control whereby self-governing states hold each other accountable according to principles of human rights, guarantees of democracy, and openness to the world (Dupré). In this way, the European integration was always a project with deep political ends, which used economic instruments as means to achieve those political objectives. Weiler argues that ‘in its meta-objectives the project went even beyond politics. It had a spiritual dimension: redefining human relations, the way individuals relate to each other and to their community’ (Weiler 2010, 2). Consequently, the uneasy blend of the functional (pragmatism) and the idealist (values) strands were the defining features of the integration from the get-go. The existence of a set of common values was implied from the very beginning. The Communities were thought to be the celebration of liberal democracies and only open to states that would adhere to the rule of law and human rights. This implicit commitment in turn provokes fundamental questions about the belonging and identity around common and shared values.
B. Value Discourse for the Union
7 According to the most eloquent proponent of value turn, in the European studies A. Williams, the pragmatism and utilitarian analysis through the prism of principles and legal order geared up solely to the attainment of the objectives of the common market are the key reasons why the value discourse never really took off within the EU (Williams). He adds to this the lack of political resolution to make clear the identity and substance of values applicable to, and respected by, the EU. While he argues that the principles are those legal norms that lay down essential elements of a legal order, values engage a different understanding. Quoting Habermas, he points out that ‘a sense of obligation attaches to principles whereas a sense of purpose is emitted by values, which are to be understood as intersubjectively shared preferences. Values are, therefore, those ends deemed worthy of pursuit. Politically, they ‘describe those qualities and states of condition that are considered desirable for shaping action or political programmes’(Williams, 256 - 257). He continues that while ‘the principles command action and enable judgment, albeit within interpretive parameters, values recommend. They are more aspirational in character, helping to provide a sense of ‘ultimate ends’ and filling those gaps which appear when principles fail to provide sufficient guidance or conflict with each other’. (Williams, emphasis in the original, Williams, 257).
8 Values as ideals need practice and doing. Frischhut adds that values can be approached from the social science point of view, political science, and legal point of view. He quotes Di Fabio (2004, 3) that ‘from the social science point of view values are the basic attitudes of people who stand out due to their social firmness, conviction of correctness and emotional foundation’. Importantly, values ‘act normatively, but are subject to change through social factuality’ (Frischhut, 2019, 131). From the political science perspective ‘values are guiding ideas for the activities of political institutions based on political–philosophical value judgments’ (Schmitz, 2005, 80 as quoted in Frischhut, 131). And ‘from the legal perspective, values describe goods that a legal system recognizes as given or abandoned’ (Reimer, 2003, as quoted in Frischhut, 131). As such ‘they may serve as interpretive guidelines, standards of norm control, and unfold a legitimatory meaning’ (Calliess, 2004, 1034 as quoted in Frischhut, 131).
9 The understanding of the EU values as advocated here corresponds to the Nicolaidis concept of demoicracy. The idea of European demoicracy connotes that the EU ‘is best conceived as connecting separate but interdependent sovereign peoples, a “Union of peoples who govern together but not as one”’. Union as opposed to Unity (Nicolaidis, 2016, 144). For her, the EU brings together ‘nation states which at their best can be thought of as clusters of “organized empathy”, the training schools for empathy for neighbors-as-strangers’ (Nicolaidis, 2016, 143). She has argued that to the extent that these peoples do not merge into one single European people, this is a Union of others. Others not in the sense of perfect strangers, or the essentialist understanding of other ethnic nationals. Others as simply the recognition that different political communities forge their own ‘overlapping consensus’ through their own political ways and languages, their own political bargaining mode, their own notions of what the role of the state should be etc. Demoicracy is ‘a polity which involves relations between ‘peoples’ rather than simply states or their official representatives, relations underpinned by the various ways in which people accept and practice their interdependency, including the way they open their own house under the ultimate Kantian requirement of hospitality’ (Nicolaidis, 2016, 146). Such interdependence must be practiced, taught, and internalized (Klingeman and Weldon). In other words, commonality and sharing must become a lived experience.
10 Either the States at drafting stage assumed this sharing and commonality element for a fact or recognized that this is a desired state of things still to be attained, strived for, and practiced before reaching the promised land of being indeed shared. In the former case, they got in front of themselves and stated the counterfactual, all at the same time being unaware of the legal consequences of a situation on the ground where this counter-factuality would be corroborated. In the latter scenario, the states would be giving a nod to a process and working toward the goal. Sharing and commonality would not be then a given and already realized state of art but rather a destination and an objective to be achieved and then practiced.
11 These are important signposts for the analysis that follows.
C. The Values: The Narratives and Trajectories
12 Taking the dynamism as the indispensable feature of the integration project, a ‘narrative approach’ is useful in capturing the dynamics of the process and its internal shifts. Article 2 TEU should be seen as an attempt to coalesce the European project around a narrative(s) that would legitimate the European project and generate support for it. In other words, it not only rediscovers and rejuvenates the EU story, but also builds a mythology for the EU (Blokker 2021; Blokker, 2022). The story-telling is a process as the myth must be forged, transmitted, and also challenged (Bell, 2003; Bell, 2008). Importantly only a story that is told, retold, shaped, and reshaped will reflect the myth(s) as it really is. For the foundational myth, the time factor plays a role. Foundational myths and story tellers who not only tell, but also adapt and rediscover myths. A successful political myth not only provides an answer to why are we together but also deals with a question what we should be doing once we decide to come together and govern ourselves (della Salla, 7). When it comes to the EU, there is not one myth, nor one single narrative. Its foundational myths explain the decision why we decided to come together in 1951 (macro level). In the European context that would be peace, prosperity, and crucially, democracy (de Burca). The foundational myths not only anchor political entity and shape our belonging, but also give rise to derivative myths which are more tangible and evolve as the community grows. Derivative myths on the other hand justify the continuing existence (micro level) what we do.
13 Pursuance of the myth(s) that define, (re)define and explicate the EU goes hand in hand with the ever-closer union with its own trajectories. Indeed ever-closer union has been meant to be one of never-ending process of becoming and rediscovering. Delving into the vocation of the Communities, and now the Union, Weiler (2010, 6) has identified two trilogies. First was a direct manifestation of the European circumstances in 1951. For the generation which experienced the horrors of war, the depredations of want, and witnessed the murderous (genocidal) excesses of nationalism, Peace, Prosperity and Supranationalism (as a proxy for those arrangements designed to combat the excesses of the nation-state) expressed their noble vision, the holy trinity, of the project. While he acknowledges the changing dynamics and importance of these foundational values, their disappearing mobilizing force, he argues none the less that values, as a political artifact, have remained central to the European construct. Therefore, for him values have never been a side game. They go to the core of Europe’s self – understanding as a community of values. This first trilogy has accompanied and informed the project since its inception. The Second trilogy has come about as a result of practice, outside pressure, and internal dynamics and it has come to encompass the democracy, human rights, and rule of law. These two trilogies help then better to understand the evolution of the text itself in response to changing context.
14 Many documents, short of the Treaty text, have shown attention to the pervasiveness of the values in the integration project. These scattered statements gained visibility and prominence with the adoption in 1993 in Copenhagen by the European Council of the so-called Copenhagen criteria for Accession (Kochenov, 2008; Klamert and Kochenov). These included the ‘stability of institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities’ . The Treaty codification of the hitherto unwritten principles took place with Article F(1) TEU. It introduced the democracy as the basis of the Union. Article F(1) was amended by the Treaty of Amsterdam to include reference to rule of law and human rights before renumbering it as Article 6(1): ‘the EU is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States’. Importantly, the language used was one of principles. It was not until Lisbon Treaty that the upgrade was made, and the principles have been elevated to the values common to the Member States (Art. 2 TEU) to be enforced through Article 7 TEU. Article 2 TEU is important as it conveys a message of the liberal self-understanding of the Union. In ‘Article 2 TEU, all member states declare who they are and what they stand for; they articulate the deep logic of their institutional practice and the moral convictions of their citizens. In short: Article 2 TEU positivizes the Union’s self-understanding as a community of values’ (von Bogdandy, 2019, 8). With such an upgrade a novel chapter in the EU integration and journey in an ever-closer union has started: traversing from one thus far dominant register (legal: talk of normative principles) to ethical and bringing to the fore issues of legitimacy that go beyond the market and instead embrace questions on the belonging.
15 This leap of faith was both ambitious and risky. Ambitious because it assumed as proven that meanings of certain fundamental values are shared and risky because it entered a terra incognita, unsure of what happens when the values assumed as proclaimed to be common and shared are questioned. The Preamble to the TEU (Koncewicz, 2022) mentions that the signatories were ‘[r]esolved to mark a new stage in the process of European integration undertaken with the establishment of the European Communities’ and then emphasizes that it ‘[draws] inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law’. The preamble of the Charter of the Fundamental Rights builds on the TEU when it says: ‘[t]he peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values’ (emphasis added) (recital 1) and continues in recital 2 ‘[c]onscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice’ (emphasis added). In this way while the second recital opens the legal field of the EU for the ethical spirit, Article 2 TEU fills it with content (Frischhut).
D. Understanding Article 2 Treaty on European Union. The Content
16 The Communities were brought into existence on the understanding that only democratic European states respecting the rule of law and human rights would be trustworthy and good enough to join the community of equal and liberal-minded member states. According to Article 2 TEU ‘[t]he 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’ (emphasis added). While many agree that this loosely worded and full of conceptual ambiguity provision marks a veritable Copernican moment in the history of EU law, many doubters point out that the proper characterization and categorization of this provision is extremely difficult (Boekestein).
17 Article 2 TEU might be seen as the new phase in the European integration. It sets out the novel agenda that responds to the problems of authority and its legitimacy in the post-foundational phase. With the permissive consensus long gone, the EU is in dire need of legitimating and (re)legitimating its existence (de Burca). Walker points out such a new agenda is defined by the return to ideals. It neither dismisses the idea of mission legitimacy as an anachronism for a mature polity nor views its democratic process as a sufficient alternative. The mission must be adjusted to the twenty-first century. He argues: ‘the historical problem of the EU lies neither in the rigidity of its mission nor in its having become stale or exhausted, but in an abiding failure to treat seriously enough the development of a deep and distinctive purpose and set of guiding values’ (emphasis added) (Walker, 16).
18 This is where Article 2 TEU has an important systematizing, tone setting, and mobilizing role to play. It affects all three stakeholders in EU law: the EU, the Member States, and the citizens. Becoming a community of values is a process and must never be reduced to one point in time. Only with the engagement of all three stakeholders will the European values command their own content and work out its own parameters. While ‘the value talk’ has a special role to play here, it is at the same time fraught with the dangers of overreach and conceptual pitfalls. On the one hand, it can act as a catalyst for reinforcing the commonality and belonging, but on the other it can easily create a sentiment among some Member States of being pushed out or subjected to the tyranny of values. Thus, achieving the balance is anything but easy.
19 Article 2 TEU has two parts: founding of the Union and the claim to commonality. While the former is about axiological anchoring the legal and political system and brings to the fore the questions of mega-politics centered around identity and belonging, the latter searches for the glue that binds the Union legal order. Trying to make sense of the very general and open-ended character of this provision and explain its gist, it is argued that, while interrelated, these two parts differ in quantitative sense. The founding is static and expresses the moment in time. The anchoring on the other hand in commonality is about process and not one point in time. Rather the commonality is born out of becoming, interacting, living together, and learning from the other. The more this process goes on, the more substantive contours of the consensus follow in the footsteps of the becoming. As such Article 2 TEU expresses broad parameters of belonging and when read considering Article 4 TEU does not, and must not settle the decision, on the finalité politique of the Union. Accepting the commonality of fate and values does not and must not lead to cancelling out the Member States’ claim to distinctiveness within the community.
20 The reference to values in Article 2 TEU has also two dimensions: the acceptance—the Union is founded on shared values—and the practice. While the former speaks to a textual perspective and the grand narrative of Values, the latter focuses on the context and praxis centered around Virtues. Only when values are translated into, and functions through virtues of ‘doing Values’, that the reference to the values in the treaties takes on tangible meaning. Values are practiced and the praxis builds a sentiment of indeed being shared and experienced together. Values without virtues resemble an empty shell: full of constitutional rhetoric, but not much more. The Member States sign the Treaty in good faith and commit themselves to a certain discipline that goes beyond the interests and preferences of any one State. In this way they recognize that such a discipline will be binding on them in their collective actions in the European public sphere. The acceptance tells only half of the story, though. The outcome of the exchanges is recognized and legitimated only when it respects the procedural frameworks that constrain and discipline the process of reaching the compromise. The latter must be discourse-based. Crucially, though, for the discourse to have this tone-setting and defining impact, it must be anchored in at least some recognition of commonality and essentials and the responsibility for the common good that this discourse serves. We are part of the legal order and the Community, and the element of sharing must be not only be present throughout the process, but also assumed at the very beginning.
21 ‘Being founded’ not only implies that at any given moment all the values essential to the consensus must be shared, but it also acknowledges that the differences should not be simply waived off. While the belief in the founding (‘anchoring’) made the parties come together, it was always accompanied by the constitutional good faith among the parties to the consensus. Differences and disagreements can only be ironed out and managed within the consensus-friendly arrangement and disposition of the constituent parties. Anchoring in the commonality does not have to be read as imposing and ordaining, but rather as inviting to search for the common understanding within the pre-agreed framework. It creates the space for talking about possible tensions that might arise in the daily practice and operation of the consensus. In this sense practice (how the consensus operates?) follows the act of founding. The latter secures the former in that practice will be always read in the light of the original decision to share and disagree, all this in good faith.
22 The reading of Article 2 TEU that is advocated here accepts this provision as the cornerstone of a novel and emerging part of the acquis called ‘the very foundations of the Union legal order” (Kadi, para. 304). Already in the Opinion 1/91 on the proposed agreement on the European Economic Area (EEA), the Court has opined that the machinery of the courts established by the EEA agreement had the potential of interfering with the autonomy of the EU law and thus violates Article 220 Treaty establishing the European Communities (‘TEC’) (today Art. 19 TEU), and more generally ‘the very foundations of the Community’ (fr. ‘fondements mêmes de la Communauté’, Opinion 1/91, para. 71). As a result, Article 310 TEC does not provide any basis for setting up by an international agreement a system of courts which would conflict with these foundations. The language used by the Court reminds of the how the Court framed the principle of supremacy in Simmenthal case. It held there that ‘[a]ny provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent community rules from having full force and effect are incompatible with those requirements which are the very essence of community law’ (emphasis added) (Simmenthal, para. 22). More recently in Kadi, the Court held, in response to arguments by Member States that Article 307 TEC justifies derogations from primary EU law and fundamental rights in order to comply with their obligations under the United Nations, that: ‘Those provisions cannot, however, be understood as authorising any derogation from the principles of liberty, democracy and respect for human rights and fundamental freedoms enshrined in Article 6(1) EU as a foundation of the Union’ (emphasis added, Kadi, para. 303). It continued at paragraph 304: ‘Article 307 EC may in no circumstances permit any challenge to the principles that form part of the very foundations of the Community legal order, one of which is the protection of fundamental rights, including the review by the Community judicature of the lawfulness of Community measures as regards their consistency with those fundamental rights’ (Kadi, para. 304). Importantly by linking ‘principles’ (emphasis added) (Kadi, para. 303) to ‘the foundations’ (emphasis added) (Kadi, para. 304), the Court is not talking about traditional general principles of law. This time the principles are not seen as dominating argumentative reason, but rather as encircled within, and justified as part of, the overarching concept provided by the foundations. Thus, much more is at stake. There are certain foundational principles (at the time of Kadi) that define the core of the Union. The Court has been indeed foreshadowing the changes to the treaties and laying the groundwork for what has become since then Article 2 TEU. Opinion 1/91 and Kadi were about the foundational values that differentiate the Union as a community based on certain shared essentials that bind all the parties and actors acting within the European public space.
23 Reading Article 2 TEU against this background better explains the normative importance of it. It is suggested here that Article 2 TEU should not only be read in the light of this case law (element of continuation and anchoring) but also as adding new legal and political layer to the judicial development of core features of the EU legal order (element of opening). In this way the Court has emphasized that there exists a core layer of values and principles that defines the essence of the Union membership and builds the parameters for belonging to the Community. The core should consist of certain essential values and principles that define the EU legal order. The Court is choosing a superior principle in the light of which it decides to resolve the cases. Constantinesco has elaborated on this idea on internal differentiation within the Treaty legal fabric or what he aptly termed ‘constitutional normativity’: ‘[t]he Court has established a hierarchy between Constitutional norms and values: all the Treaty provisions are not at the same level. Some are rather technical others have a fundamental importance’ (Constantinesco, 79). In case of conflict, the most important provision, the principal rule has to be followed. The ensuing super-constitutionality becomes a governing mechanism for ordaining the norms and values within the Treaty framework. Among such fundamental principles he mentions judicial protection and the generality of judicial review (Constantinesco).
24 From the combined reading of Simmenthal – Les Verts – Opinion 1/91 – Kadi chain novel the ‘the very foundations of the Union” (fr. ‘les bases memes de la Communaute’; Simmenthal, para. 18), ‘the essence of Union law’ (fr. ‘les exigences inhérentes a la nature meme du droit Communautaire’; Simmenthal, para. 22), ‘the very foundations of the Union legal order’ (fr. fondements mêmes de l’ordre juridique Communautaire; Kadi, para. 304) comprise today: a) the supremacy of the EU law that undergirds the autonomy of this law; b) institutional balance established by the treaties; c) the function of the guardian of the Union legality under Article 19 TEU and the judicial review; d) protection of fundamental rights by way of core function of the Court that is the judicial review; e) liberty; f) democracy; g) rule of law. While one can certainly think of a more structured and categorically clear list of the essentials, one thing is beyond doubt. These elements make up the constitutional fabric of the EU legal order to which all the Member States commit. Article 2 TEU now not only builds on this case law, but also anchors the concept of ‘very foundations of the Union legal order’ in the treaties and then adds new values that comprise the foundations of the Union. The noun ‘foundations’ used by the Court and the verb ‘founded on’ in Article 2 TEU make for a perfect match.
E. The Values: Of the Core(s) and Margin(s)
25 Agreeing on the core that binds us should never be seen as imposing uniformity but rather understood as enforcing these basic features of the legal order and the consensus that are essential to its functioning, and more broadly, to its survival. This is not ‘imposed uniformity’ but rather the acceptance of being bound by the essential principles that make up the EU. It is argued here that the European consensus loses its ethical face and credibility when it fails to enforce the agreed-upon constitutional essentials. After all, if we cannot agree on the core of our commitments, then the whole political community—and undoubtedly the EU is a political community—loses much of credence and credibility. The choice of words—enforcing credible commitments, not imposing uniform standards—is particularly important as it frames and orders our discourse about the (allegedly) shared values as we struggle to move along. The value discourse in the supranational context must tread a fine line and needs conceptual framing and re-framing that steers clear of a sentiment that some values are imposed or not shared at all. All too often, too much is read into the differences, instead of focusing on, and locating, the commonalities that are shared.
26 Article 2 TEU is aspirational and forward-looking. The hope is that process would indeed reveal the common core of our Union of others, no longer perfect strangers, but not yet perfect neighbors. Crucially, accepting commonality means that the demoicracy would be able, on the one hand to enforce a change on the part of the component and weave it within the whole, and on the other introduce an element of corrective censure when a behaviour of a component would create unacceptable externalities and as such go beyond the parameters of the emerging and broadly stated overlapping consensus in the Union of others. Such threshold is neither easy to identify nor overstep. This is so because of inherent flexibility of the consensus and the in-built mutual tolerance of others. And yet, such threshold must exist if the Union of others is not to take a retrograde step and degenerate into union of perfect strangers. Integration through law must be in lockstep with the renewing the commitment to the essentials of the formative consensus and their evolution through time.
27 The commitment to the essential and principled core of the European public space must be front and center. Article 2 TEU expresses this most basic commitment that all parties undertake when they decide to join. The commitment is not based on the exact identity but rather about the principled commitment to the essentials that make up the core. The problem is not with the acceptance of this starting point but rather with the articulation of the explicit contents and parameters of the core and the contours of the behavior that will not be tolerated when judged against the essential core (von Bogdandy, 2019). The core has been thus far taken for granted, now it is brought to the fore. Von Bogdandy has been arguing for the deployment of the basic principles which he understood as the norms that constitute a normatively grounded function for the exercise of public authority; they define the elementary legitimating fundamentals considering the necessity for public action to be justified (Bogdandy, 2014). Article 2 TEU stipulates such basic principles for the legitimate exercise of public authority. It should be used as a reservoir for developing broad parameters for the values in light of the diversified environment as mandated by Article 4(2) TEU. Such a process of incremental development should stop short of adopting the homogenous clause. Dialogue is possible only when grounded in some basic commonality and shared vernacular. The values in Article 2 TEU help build the latter while informing the former. We belong to the community of values which we accept as to its core that is present both at the supranational and domestic level (first step); we acknowledge that such a core does indeed exist and that it informs the parameters for what stands as the legitimate exercise of power within the community of values (second step); we acknowledge the readiness to listen to other voices (third step); and finally (fourth step) we are ready to continually re-read our own particular understandings and frameworks with the consideration for others’ so that the admissible margins for dissent would never dominate the core that binds us to a common discipline. The moment margins start tearing the core apart, the entire idea of political community comes apart at the seams.
28 The shared meaning will be always collaborative if the core is accepted and respected. What must be common and what should remain different is part of the ongoing discourse that brings together various discourses under the roof of a community that all parties have agreed to uphold and develop in good faith and in awareness of, and respect for, such a core. Once the core of the values that define the legitimate action in the European public space is being called into question, the entire enterprise loses much of its allure and pertinence. The values of Article 2 TEU form the principle of principles: a core of the constitutional settlement that keeps bringing the states and their citizens together. Article 2 TEU expresses an overarching rationale: that the political power within the European public space must be a constrained one. While the commitment to the core is intact, the working out of the consequences, trimming down, or expanding the content never ends. While a core accepts diversity among the component parts, it at the same draws on the decision to join and demands loyalty that is the corollary of this very decision to join and participate. A core defines the most essential commitments. Article 2 TEU serves this legitimating and mobilizing function and takes the EU discourse to a level of mega-politics of self-understanding and belonging (Editorial Comments, 2017).
29 What comes out of this discourse now will show whether the core was indeed present and accepted (even if implicitly) or whether it was always shaky and contested. In the latter case the decision to join in pursuance of the commonality of values and in furtherance of connectedness was based on a false premise since the very beginning (Klingemann and Weldon). All this is of the cardinal importance given how value-less the discourse within the EU was. The practice of the EU and its institutions were never driven by values. As expertly shown by Williams, the Court has never relied on any understood value or a set of values but by centering on principles particularly the principle of effectiveness. This, one might say, deficiency, was:
a product of the political inability to adopt any coherent understanding of values, prudential or moral, emerging from any convincing collective consciousness underpinning the EU. Rather, the principles and virtues adopted in EU law have been arranged around the central goal of giving effect to the Treaties. A tendency to the technical rather than the ethical thus permeates the law (Williams, 258).
The need to give effect to the treaties through the language of principles reigned supreme and ultimately lead up to the impoverished institutional ethos of the EU. It is clear that the language has an important symbolic potential, in particular given the thus far constraining effect of the text of the treaties on the practice of the Court.
30 The common constitutional core of the European public space as expressed in Article 2 TEU sets binding parameters on the actions of all those within the jurisdiction of the Union. Clearly Article 2 TEU is not a homogenous provision in the sense of a closure and a last word, but rather must be put in the context of an evolutive process and multilayered environment of which it forms part and which it, in a sense, crowns. This multilayered environment is informed and shaped by common constitutional traditions of the Member States and the European Convention on Human Rights. This diversified content does not detract from its originality. Article 2 TEU opens the normative space of the Union and as such is much more than traditional drawing inspirations but still less than imposing unitary and identical requirements. Rather the core is defined as broadly as possible so that various reasonable interpretations of the core commitments might find shelter and co-exist, if the essence is not called into question. The concept of the core is not about sameness (identity) but, as it rests on the overlapping consensus, is more elusive and difficult to pin down. As will be argued, this is an asset, not a disadvantage. Importantly, homogeneity of value orders does not necessarily cancel out the diversity of these very orders and the importance of maintaining them as such. Nor does it impose uniformity of these autonomous orders. Crucially for the understanding of the values espoused here Homogeneity means affinity of essence, not equality of essence, congruence in essential points, not total congruence (Schmitz).
31 Similar sentiment has been expressed by Nicolaidis. She has argued that that Europe is not constituted by separate demoi nor demoi-made-into-one but by distinct political demoi progressively opening to each other and to each other’s democratic systems. This openness can be seen as, in a way, asymptotic: ‘it is sharing, pooling, enmeshing, but not unifying’ (Nicolaidis, 2012, 252). We might call it a discursive homogeneity/congruence that reflects the sui generis nature of the community in which others come together and agree to govern in unison, but not as one. The task of finding the right balance is not straightforward. On the one hand, the EU must uphold the common core of Article 2 TEU values, and on the other it must make sure that the particular way in which a value is realized at the national level is respected. The values of Article 2 TEU form the very untouchable core of the European legal order. While such positivization was a major step, the values enshrined therein were implied in the integration process from the beginning given the democratic and liberal credentials of the Communities.
32 The evolution is the function of time and all the developments that took place since the first Communities. The interpretation of Article 2 TEU must be placed in its historical and temporal context. As much as the ever-closer union among the peoples of Europe continues, Article 2 TEU and its ambitious language must be seen as part of this sometimes painstaking process of self-learning, self-discovery, and change. Article 2 TEU adds an important new layer to the process and underpins it with the novel ethical undercurrents. Appreciating, this opening calls for a radical reformative approach called here the four Rs: Readiness–- Renewal – Reappraisal – Reexamination. Such approach must be respectful and is the cornerstone for the necessary behavioral shift that would take us—plural European peoples—to the veritable mutual acknowledgement and constructive deference. The latter would straddle the respect for, and by, distinct peoples who do not want to be regarded as one and yet aim for more than ‘being the Other’. In the end of this process mutual trust would be born. Honest distancing from oneself will allow us seeing and appreciating us through the other. Respecting certain core of the values does not mean that the discretion to manage (often) very important margins—term used here in a non-pejorative and non-dismissive way—is cancelled out. Rather the core circumscribes the choices and frames them in more systemic terms, all this while leaving still important discretionary choices to the component parts. It is only by accepting this truth, that any political community has a chance to survive and carry on. Managing one’s choices within a broader systemic framework is the sign of our participation in this larger community and acquiescence that the core defines our commitments toward the community that we co-author and co-shape as we go. At some point the existential question must be asked is: are you ready to respect certain essentials as a matter of identity and belonging to the community? This two-way interrogation between the core and the margins is clearly visible in the case law of the Court that brought to the fore the language of values. In the cases dealing the so-called reform of the judiciary in Poland the Court was safeguarding the core—rule of law; effective judicial protection; judicial independence—while leaving important choices as to the organization of the judiciary at the state level to individual Member States. The community imposes a discipline (core) within which the margins—again understood in non-pejorative sense—should be foreclosed. Constitutional patriotism as an on-going process of continuous interrogation of the values shared by a specific community through the prism of a small set of shared norms. Liberal community—if there is one thing, we can all agree on, this is it: the liberal credentials of the integration project—must recognize different interpretations of a common good and must be open to many voices. Yet at the same time it must recognize certain core that keeps the community together. Such a recognition of the core does not have to call for a uniformity as the necessary consequence (Lacroix).
33 The consensus will last if there is a bona fide desire to strike the reasonable balance between European unity and national diversity. It recognizes that the result must be always a function of two sides talking to each other. Bargaining is a less diplomatic form of dialogue. While the the latter assumes that problems will be somehow sorted out, the former faces up to the reality that sometimes a conflict will indeed require one party to the disagreement to step back and defer to the other. However, this will never cancel out the validity of the consensus because disagreement and deferral are not seen through antagonistic lenses, and commonality of the core values continues despite occasional frictions. If anything, the contours of the original consensus might even evolve in response to the repeated calls for re-examination of the original deal, without however calling into question its very identity built around rule of law, democracy, and human rights.
G. Value Discourse for the European Union: What’s Next?
37 For the values talk to straddle the fine line between sharing commonality and nurturing the necessary distinctiveness the EU must regain the original myth and its initial lofty self-understanding as an authoritarianism-curbing entity. This original myth followed the unstated and implicit assumption of a community made up of liberal democracies or a community that settles for the imperfect and recognizes that in less-than-perfect world not all Member States are good enough. Now the resentment-driven constitutional capture replaces the founding narratives with zero-sum politics, a vision of ‘us versus them’ and a competing constitutional narrative of fundamental disagreement over values. It proclaims that ‘we, the European peoples’ are not ready to live together in one pluralistic constitutional regime. It challenges the standard story of the origin of the EU: that it was founded to bring peace and prosperity to Europe by ending the possibility of war and encouraging the common rebuilding of economies.
38 With this background transformation, the value discourse for the European Union must be anchored in the principled pragmatism. It must recognize the validity and relevance of the original position of all participants in the bargaining. It holds out a hope that the discursive opening will allow the participants to co-exist and make the system work. Yet, for a consensus to work, ‘we, the European peoples’ should acknowledge certain fundamentals that bind and discipline us and that brought us together. Part of the deal behind the overlapping consensus has always been the acknowledgment that parties are ready to enter a bargaining process to find similar grounds of understanding of the fundamental commitments. Bargaining presupposes managing the disagreement over time to build a common understanding of the basic principles. However, and this is crucial for proper understanding Article 2 TEU, the parties with unreasonable and irrational doctrines that question the liberal democracy as a form of government must be excluded from the consensus. This is so because the disagreement must not undermine all parties’ commitment to support liberal democratic principles under a democratic constitutional regime.
39 While the robust transnational value discourse calls for the engagement of, and commitment to, the EU project from all actors involved, this begs the question as to what happens when the assumptions underlying Article 2 TEU are no longer applicable? To face this challenge, a shift in language is called for. First, compliance with the values must not be presumed. Second, one must avoid the interpretation which would make Article 2 TEU as superfluous or redundant. Therefore, the question of respect for the EU law and respect for the values must not be conflated. This follows from the fact that Article 2 TEU goes beyond the acquis. And then there is argument from per non est: there must be normative character attributed to Article 2 TEU because it is part of the legal text that is the treaties (also von Bogdandy, 2019). Strengthening the oversight assumes the initial commitment by all the parties and calls for their understanding of this foundational commitment to the community they have brought into existence. As such the oversight goes beyond mere enforcement as it combines the legal, political, and societal (Jakab and Kochenov). The oversight is doomed to failure if this initial consent and its continuous understanding are missing.
40 ‘The value crisis’ has exposed the volatility of the implicit understanding(s). The journey within the implicit understood as the shared understanding of essentials was present in the past but as the Community grew, evolved, and differentiated, ‘the shared’ became contestable. Seen from that perspective, the rule of law crisis brings to light the misunderstandings and calls into question the avowed shared dimension of the implicit core of the Union. The rule of law crisis has the potential to play both an explicatory and revealing role. It might bring to the surface essential elements of the constitutional bargain and open the discussion on the final contours of what was presumed as fundamental yet implicit in the parties’ decision to join the Communities back in 1951. The crisis is elevating constitutional abeyances (Foley) to the mainstream constitutional discourse and testing the limits of acceptance. The ambiguity and obscurity that defined the original constitutional abeyances is now replaced by open and critical bargaining over the explicit and the states’ limits of acceptance. The novelty of the approach put forward here lies in introducing the dynamic understanding of the meaning of values. The values do evolve in response to changing socio-political circumstances of the political community they are supposed to anchor and define. The term used to reflect these dynamics is ‘value becoming’. The ‘becoming’ strives to reconcile distinct national identities on the one hand, with the necessity of anchoring the community in the shared commonality of meanings and practices, on the other. The communal anchoring does not compete with, nor cancels out the pertinence of the arguments from national distinctiveness. Rather it offers a novel point of reference for all parties to the consensus and a common denominator that underpins their loyalties to the community. This necessary compromise is indispensable to respect both sensitivities—keeping the identities relevant and anchoring the community at the same time. The readiness to honor this compromise and the results it yields is the price that all parties and stakeholders must be ready to pay in their collective capacity as Member States. It is also the most vivid acknowledgment of their continued adherence to the evolving imperfect and fragile consensus.
41 When talking about the values in the EU one should be clear that upfront rejection of the core understanding of first principles that binds us together is not reasonable within the consensus’s meaning. For the European Union to have a chance to survive, the language it uses and perspectives through which it looks at the Member States must change. ‘Essential characteristics of EU law’ (term used by the Court in Opinion 2/13, para. 167; fr. ‘caractéristiques essentielles’) today must go beyond traditional first principles of supremacy and direct effect, to embrace the rule of law, separation of powers, independence of the judiciary, and enforceability of these mechanisms as part of the ever-evolving consensus. Together these essential characteristics of EU law have given rise to what the Court has imaginatively called ‘a structured network of principles, rules and mutually interdependent legal relations’ (fr. ‘un réseau structuré de principes, de règles et de relations juridiques mutuellement interdépendantes’) linking the EU and its Member States, and its Member States with each other, which are now engaged, as is recalled in the second paragraph of Article 1 TEU, in a ‘process of creating an ever-closer union among the peoples of Europe’ (Opinion 2/13, para. 167) This is the core of the Union that should be front and center, defended and made explicit now (Koncewicz, 2021, 2022a, 2022d). For this to happen, though, the language, and perspectives through which the EU looks at the Member States, must be challenged and change. ‘[E]ssential characteristics of EU law’ (Opinion 2/13, para. 167), must go today beyond traditional first principles of supremacy and direct effect, to embrace the rule of law, separation of powers, independence of the judiciary, and enforceability of these principles as part of the ever-evolving consensus and its very essence.
42 This analysis has identified four interconnected pillars of, and challenges for the value discourse within the EU. All four must be taken seriously and go hand in hand with the process of filling the concept of EU values with content. First, the EU must rethink EU membership and the lenses through which it looks at its Member States: this requires a bold conceptual shift from the EU as a market-driven entity to a democracy-enforcing supranational community of equal states invested in the supranational legal order and committed to the common project and its systemic and organisational principles. The standard legal framework of enforcement and monitoring dominated by the perspective of rights must also embrace constitutional essentials and structures that make up the fabric of the legal order. The supranational legal discipline sets out the acceptable limits for the use of state power and values have a focalizing role to play here. Second, the EU must critically retool its own legal apparatus, mechanisms, and approaches in response to the changing political and legal environment. This calls for the holistic approach that would straddle the political and the legal with each side knowing what and how the other is doing in pursuance of their own fidelities to the system. Third, the EU must refocus its own narrative which should concentrate around the catalogue of fundamental first principles of transnational governance that respond to the commonality of the project: the challenge that the EU is facing boils down to not so much the lack of common points of reference, but rather to the lack of understanding among the peoples of Europe of why and how the quality of democracy and the rule of law in one of the Member States should matter to them. Fourth, all of us writing on the values as the normative centerpiece of the EU universe must pay more attention to tracking down, understanding, and explaining ‘the social life’ and the practice of ‘the supranational legality’ of which values now form crucial part.
43 Rethinking calls for more than retooling the legal register. When the shared element is questioned and undermined, one must avoid danger of being trapped in the world of legal expertise and arcane legalistic approaches to dealing with the fractures in the consensus. The question how the EU constitutional design should be adapted to better reflect and protect at the same time the element of commonality must go hand in hand with revisiting why and in the name of whom? The challenge here lies in moving beyond the text and to reconstruct ‘the social life’ or, using the transnational equivalent, ‘practice’ (Aman and Greenhouse) of the supranational law and the treaties. As the EU supranational governance and law are not only about the (imperfect) text(s), but equally about the actors’ actions based on these text(s), the terms social life and practice have the potential to explain how the document and the institutions serve the citizens of the EU. They would bring together the normative (text), empirical (institutions) and sociological. The question how ‘the Treaty’, understood as an imaginary reference point for our European fidelity, expresses (or not) aspirations of the European citizens, and how it helps (or not) them change their lives for better, is still neglected (Editorial Comments, 2016). As things stand right now, domestic rule of law and politics in the (backsliding) Member States are of no concern to the Dutch, French, etc, people. Simply put, they are not seen as forming part of the shared understanding of the values that are proclaimed as shared.
44 This last finding explains why in 2023 - and most probably beyond - the EU faces a challenge of mega-politics. By belonging to the supranational legal order, its actors limit their choices by committing to the order’s practice and its understanding of legality. What must be appreciated and studied more is the critical interaction between the legal dimension of the integration—search for optimal tools and enforcement competences to safeguard the integrity of the EU order—and its ethical face—narrative and justification that would explain in the name of whom the EU acts to defend its first principles. This is where the ‘EU value discourse’ faces its true constitutional challenge before it can lay claim to the most noble proposition that a ‘a value’ becomes ‘Our value’.
45 The recurrent questioning of the element of sharing spelt out in Article 2 TEU poses two fundamental questions and one concern. Have we with the simple insertion of Article 2 TEU managed to move beyond ad hoc short- erm patching-up of the sinking ship? Are the EU and its Member States ready for radical rethinking of the system’s ailments? So far, I think, we have not, and the EU is not ready yet. As for the concern, there is only so much even the most creative interpretation(s) of the remedial framework can do to remedy the constitutional design. At some point the design error will be too great to be overcome by an interpretation, and treaty changes might indeed be needed (Koncewicz, 2022a; Koncewicz, 2022d). The crisis goes beyond mere legal, though. The commonality of values and the initial decision to come and live together are now being called into question. The core values of the consensus—rule of law, democracy, and human rights—are relegated to the background. As we move forward, we desperately need a narrative to explain why the dangerous trend of ‘values marginalization’ must be stopped at all costs and why the EU should have a mandate here.
46 Article 2 TEU must play a role of myth-reservoir provided that the text would be carried over into the context. Only when commitments to live by the rules of the game are enforced, will they become credible commitments. If the union of states does not make a leap towards community of values shared by, and enforced in the name of, the European peoples’ values’ crises (at worst) and disagreements over values (at best). The robust value discourse must weave together high hopes and, yes, also disappointments, and healthy skepticism. The latter must be as much part of our discussion about the values as the former. No doubt, the question of who will be the storyteller of Europe’s first principles at the age of the politics of resentment is crucial. For any myth to survive Europe, though, it needs not only crafty storytellers but also a good story to tell, an engaged audience to listen, counterstrategies to defend the myth(s), and counternarrative(s) to explain and justify the original consensus that brought states and European people together. Europe seems to be falling short in all these registers of myth-telling, defending, and building new myths for the generations to come.
47 As the Union moves forward, ponders, and narrates (Blokker, 2021; Blokker, 2022) its myths, the memory why the states joined each other in 1952 is of fundamental importance. Should it fail to be guided by this memory and by the equal and equally enforceable respect for first principles, another Białowieża Forest disaster (Koncewicz, 2019d) capturing a judiciary in yet another Member State, repeated refusals to obey the decisions of the Court etc will spill-over and doom the survival of the Union. Such amnesia would set free the majoritarian politics and shatter one of the founding myths of the first Communities; that of constrained political power. This sober conclusion might indeed herald the end to the post-war liberal consensus (Krastev; Dawson and Henley).
48 When we agree to share, the underlying assumption is that we will be able to draw the red lines of what is prohibited and ultimately counteract, once the lines so drawn are overstepped (von Bogdandy, 2019). Otherwise, the recognition of commonality loses much of its purpose. Membership ethos explains that Member States are bound to adopt a certain attitude toward other actors and is reflected, among others, in their duty to have due regard to the Union system and abide by the most fundamental treaty rules (Editorial Comments, 2014). Today, this idealized notion of membership resembles a myth in search of both the storyteller and the public interested to listen. As European societies evolve and advance, it must be asked whether ‘we the European peoples’ are ready to continue living together in a constitutional regime, internally divergent, and one that is ready to respond to the exigencies and demands of new realities? Tully’s canoe metaphor eloquently summarizes the challenge, promise and a dream behind this question:
Perhaps the great constitutional struggles and failures around the world today are groping towards the third way of constitutional change, symbolised by the ability of the members of the canoe to discuss and reform their constitutional arrangements in response to the demands for recognition as they paddle. A constitution can be both the foundation of democracy and, at the same time, subject to democratic discussion and change in practice (Tully, 1995, 29).
49 The value talk treads a thin line. It is at the same time fraught with the dangers of overreach and conceptual pitfalls. On the one hand, it can act as a catalyst for reinforcing the commonality and belonging, but on the other it can easily create a sentiment among some member states of being pushed out or subjected to the tyranny of values. Therefore, it needs a conceptual framing and re-framing that would steer clear of a sentiment that some values are imposed or not even shared at all.
50 In the post-war, Europeans trusted that Europe can be rebuilt not only by forging a market (pragmatism), but also by anchoring it in the law and in the values that were believed to be shared (idealism). Fear of Authoritarianism and „Never again constitutionalism” drove the integration at its inception and must be rediscovered now. The choice of words (enforcing credible commitments, not imposing uniform standards) is particularly important as it frames and ordains our discourse about the shared values as we struggle to move along.
51 For the values discourse in the EU it is crucial to accept that all actors must embrace the shared values as their own and acknowledge their commitment to their own and the Union’s democratic aspirations and core values of the European public space of dignity, equality, rule of law, and freedom. In other words, at the very minimum, all actors to the consensus must be ready to read their local mandate through the credible commitments that trample the momentary desires of the people and their representatives and embrace the values that define us as Europeans and our community as a community of law. A community that springs from the dream of coming together and the reality of (still) living apart. Therefore, the challenge of transition from traditional seeing “other - as - a stranger” to more demanding embracing “other - as - a neighbor” with whom we agree to share certain constitutional essentials and together live by First Principles, is staring right into our eyes.
52 ‘Every political community needs a bundle of guiding ideas, to which its basic order is oriented’ (Schmitz, 2005, 80). Indeed, the EU and its values discourse are faced with the challenge of building a supranational consensus around basic values while catering to the existing domestic overlapping consensuses. The values and the mutual trust highlight this challenge perfectly, even though they often come with more questions than answers. More broadly, this imperfection and uncertainty speak to the very DNA that has been woven into the European project and its founding myth of ‘an ever-closer union among peoples of Europe’ (Art. 1 TEU). The value discourse must be part of this ever-evolving landscape and never stray away from the project’s and consensus’ in-built contestation and bargaining.
