Making Do With What We Have: On the Interpretation and Enforcement of the EU’s Founding Values

Abstract

Article 2 of the Treaty on European Union (TEU) solemnly proclaims that the EU is founded on the respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. Yet, a growing body of case law concerning rule of law backsliding continuously reminds us of the lack of a dedicated functional mechanism to remedy this. We are left with a fragmented understanding of the founding values and a patchy framework for their enforcement: whilst there is increasing guidance on judicial independence and the rule of law, no founding value has been defined comprehensively. The legal classification of the founding values is equally unclear, as is their position in the EU’s constitutional framework. This paper makes do with what we have, to offer systematic, normative, and substantive clarifications on Article 2 TEU. Systematically, it places the founding values in the constitutional context of the EU’s and Member States’ legal orders and discusses their autonomy, interpretation, and function. Normatively, this paper objects to the direct enforcement of the founding values by reference to their constitutional significance and over-constitutionalization. Substantively, it favors the indirect enforcement of the founding values and explores the connections between Article 2 TEU and other Treaty provisions.

Crossing the Rubicon? The Commission’s use of Article 2 TEU in the infringement action on LGBTIQ+ rights in Hungary

“…29 Rather, the Commission based its claim on Article 19 TEU in several infringement actions related to the independence of the judiciary in Poland, 30 or on different provisions of the Charter of Fundamental Rights in a series of cases against Hungary. 31 In these cases, Article 2 TEU played at best an 'ancillary' function, 32 for example to support the broad interpretation of Article 19 TEU and the principle of judicial independence as an expression of the rule of law. 33 More fundamentally, doubts remain whether Article 2 TEU is at all enforceable in infringement actions, whether it can be used as a stand-alone provision and ground of infringement in these cases, and whether it could even be used to capture breaches of EU values that would not otherwise fall within the scope of EU law.…”