The Union’s common values, democracy, the rule of law and fundamental rights, are under pressure. Rule of law dismantling in several Member States, widespread violations of European refugee law or the European responses to the financial crisis, arguably adopted on democratically shaky ground, are just some examples of 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. The CJEU seems to have turned Article 2 TEU into an operational, judicially applicable provision. The purpose of the research project is to capture this emerging constitutional jurisprudence and to analyse whether, why, and how Article 2 TEU could be judicially applied. In a first step, obstacles towards a judicial application of Article 2 TEU will be addressed: The oscillating nature of “values”, the provision’s questionable direct effect, its unrestricted scope of application and the CJEU’s contested jurisdiction over value issues. In a second step, the thesis will analyse the Court’s relevant case law and demonstrate in this light how the judicial applicability of Article 2 TEU could be construed. The third part will explore the potentials and risks of such an activated Article 2 TEU.
This project submits that Article 2 TEU is an essentially Janus-faced provision: Its potential, function and specificity changes with regard to the situation in which it is applied. In inter-systemic situations (with regard to Member States), Article 2 TEU could be interpreted as a justiciable homogeneity clause allowing to enforce a minimum degree of compliance with the Union’s foundational values in the Member States. This would provide a new judicial tool to counter the rising illiberal turn in some Member States. In intra-systemic situations (with regard to EU institutions), Article 2 TEU could become the focal point of an axiological interpretation of primary and secondary law and thus counter the often-voiced concerns of an “over-constitutionalisation” of the Treaties.
Beware, though: Placing Article 2 TEU in the hands of the Luxembourg judges does not come without risks. Inter-systemically, constitutional pluralism, tolerance and the federal balance are at the stake. Intra-systemically, the CJEU 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 decide unilaterally on the shape and form of a community’s foundational values?