The Union’s common values – democracy, the rule of law and fundamental rights – are under pressure. The ongoing attacks in several Member States against an independent judiciary, free press, academia and civil society organisations are the most blatant example for these challenges. Against this backdrop, the Court of Justice has set a remarkable development in motion. In a rather recent line of cases – Opinion 2/13, Associação Sindical dos Juízes Portugueses, Achmea, L.M., Wightman and Commission v. Poland – the values enshrined in Article 2 TEU took centre stage.
This PhD thesis argues that the Court’s recourse to Article 2 TEU goes far beyond constitutional pathos: Article 2 TEU has been turned into an operational, judicially applicable provision. The project attempts to capture this emerging jurisprudence and to analyse whether and how Article 2 TEU could be judicially applied. This will concern the oscillating nature of “values”, the provision’s indeterminacy and problematic direct effect as well as the Court’s contested jurisdiction. At its core, the project aims at advancing a new understanding of Article 2 TEU – as a Janus-faced provision. In its EU dimension, Article 2 TEU should be understood as a foundational provision of the EU legal order that outlines the basic tenets of an EU constitution. In its Verbund dimension, encompassing both the EU and the Member States in their entirety, Article 2 TEU should be interpreted as a constitutional homogeneity clause. The project will explore the potential of such an understanding in each of these dimensions.
Beware, though: Placing an activated Article 2 TEU in the hands of the Luxembourg judges does not come without risks. On the one hand, the Court might overstretch its judicial function and transgress the lines drawn by the separation of powers. This might lead to the more general question: Should courts unilaterally decide on the shape and form of a community’s foundational values? On the other hand, constitutional pluralism, tolerance and the federal balance are at stake. In order to secure the EU’s federal balance, the effects of Article 2 TEU with regard to the Member States need to be restrained as far as possible.