Introduction
After decades of waiting for the EU to find its ‘constitutive idea’,Footnote 1 to take its values ‘seriously’,Footnote 2 to develop a normative posture which would overcome its ‘justice deficit’,Footnote 3 the wait is finally over. The value constitutionalists proclaim the good news: ‘a new, principled constitutionalism is emerging’Footnote 4 in Luxembourg which is profoundly rewriting the old functionalist spirit of EU law and instead imbuing it with the lofty values enshrined in Article 2 of the Treaty on European Union (TEU).
While I share the desire for normative depth in EU constitutional law, I am sceptical about whether the current turn to value constitutionalism delivers on the promise. In a nutshell, I argue that its edifice is built on foundations that are too thin, since it fails to engage with the complexity and scope of values which would be necessary to support such a fundamental reinterpretation of the EU legal order.
This intervention takes a step back from immediate issues surrounding the fate of Article 2 TEU before the Court of Justice of the European Union (CJEU), such as justiciability, concretisation, and red lines, instead taking a theoretical look at some of the core assumptions undergirding the turn to values. I aim to problematise the type of broad approach to value constitutionalism which looks for nothing less than to ‘align and reorganize the entirety of EU law’ on the basis of Articles 1–19 TEU, with Article 2 at its core.Footnote 5
The main problem with the broad approach is that it tries to do too much with too little. It seeks to place values at the centre of EU constitutional law primarily on the basis of the emergent CJEU case law which centres the value of the rule of law that has been under attack in the ‘rogue’ Member States of Hungary and Poland. The Court’s moves in defence of the Union legal order have been ingenious and impressive, starting with the doctrinal breakthrough in Portuguese Judges,Footnote 6 where it reinterpreted the role of Article 2 so as to be able to intervene in national judicial organisation. This new reading of Article 2 was then deployed in defence of the independence of the judiciary in Poland,Footnote 7 before serving as a hook for operationalising the conditionality mechanisms that tied respect for the rule of law to access to EU funds.Footnote 8 It is in the conditionality judgments where the CJEU further leans into the values of Article 2 TEU, saying that they ‘define the very identity of the European Union as a common legal order’.Footnote 9
For the purposes of this article, there is no need to join the rich literature which analyses every twist and turn in the rise of Article 2 as part of the Court’s toolbox to defend the rule of law. Instead, I suggest that the Court’s case law on values to date is simply not broad and substantial enough to ground the kind of ambitious reconstructive project which value constitutionalists (and perhaps the CJEU itself) are trying to advance. To make this thinness concrete, I thematise the issue of migration and mobility regimes in relation to Article 2 values. My argument is that migration is not merely a ‘case study’ in which the EU itself has fallen short of following the values of Article 2. The charge of hypocrisy is not what interests me. Instead, I want to suggest that migration is in fact a more representative issue than judicial independence for a study of the role of values in the EU constitutional structure.
Migration is more representative than judicial independence in a number of crucial respects. First, while rule-of-law backsliding is particularly acute in a small number of Member States, the current migration control regime is arguably an area in which values are violated by many Member States and by the EU itself. Second, the wide agreement on the necessity of safeguarding judicial independence contrasts sharply with the deeply fraught nature in the balancing of values in respect of migration. Third, while judicial independence is part of the value of the rule of law, it is also a functional requirement for the operation of the Union legal order, necessary for mutual trust and other core functional pillars of EU law. With migration, functional and values-based reasons are more clearly distinct. Fourth, the rule of law and judicial independence are on the procedural or thin side of values, whereas migration management is in a very concrete sense a matter of life and death. I will return to these four themes throughout the article, for it is on their basis that I argue that migration is a more appropriate area in which to examine the role of Article 2 values in the EU legal order and European society at large.
The article proceeds in two parts. I begin in Section I by laying out the narrow and broad approaches to values in EU law and present the broad view of values constitutionalists as well as existing critiques. In Section II, I explore the relation between migration and values through three distinct but related avenues which form the core of my argument.
I. Value constitutionalists and their critics
Since this theoretical reflection takes place against a rapidly evolving doctrinal landscape, I want to distinguish the narrow and broad approaches to values in EU law, as well as position myself in relation to the CJEU’s case law. What I mean by the narrow approach to values is a view on which Article 2 TEU is appealed to only in exceptional cases, as a kind of last resort. Within this framework, directly operationalising a value would only happen as the end point of a chain of events where, for example, a Member State systematically undermines the independence of the judiciary; this seriously threatens the functioning of the Union legal order as a whole by undermining mutual trust; the procedure foreseen in the Treaty to remedy such breaches (Art 7 TEU) is not used; and there are no other justiciable resources in EU law to intervene in the composition of a national judiciary. In that situation, judges and legal academics go in search of a creative solution to the problem, which eventually results in the doctrinal breakthrough in Portuguese Judges when the CJEU finds a way to link the Article 2 value of the rule of law to Article 19, later relying on this combination to rule against Poland and Hungary over its undermining of judicial independence. In other words, the narrow version of the turn to values comes as a last resort and is used only to resolve a problem that poses a systemic threat to the functioning of the EU legal order and which cannot be resolved through previously existing doctrinal means. The arguments in my article are not aimed at the narrow approach.
The broad vision of the values-based constitutionalism, on the other hand, aims for a wholesale recasting of the EU constitutional framework, as indicated earlier. This approach can be disambiguated to three parts. First, there is a much greater willingness to reach for values in cases which are of smaller systemic risk to EU law as a whole, such as the Malta citizenship case.Footnote 10 The second aspect is a project of reinterpreting or reconstructing the entire edifice of EU constitutional law, whether it’s tying primacy and effet utile to the rule of law,Footnote 11 or deconstitutionalising the four freedoms.Footnote 12 The third part of the project is perhaps most ambitious of all and seeks to go beyond EU law by saying something normative and factual about European society and even ‘Europe’ as a whole. This more ambitious project is closely associated with Heidelberg and is spearheaded by Armin von Bogdandy, Jürgen Bast, and Luke Dimitrios Spieker. My intervention is a sceptical response to this broad project.
The basic contention of the value constitutionalists is that they are undertaking a reconstruction of EU law on the basis of an emerging and transformative strand of CJEU case law. This story starts with the description of the Union legal order as one with a special telos in Opinion 2/13,Footnote 13 runs through the case law described earlier, culminating in the recent Commission v Hungary Footnote 14 ruling in which the Court found that Hungary’s anti-LGBT+ law constitutes a separate violation of Article 2 values, in addition to its violations of secondary law and Charter rights, as such taking another bold step in expanding the justiciability of Article 2 TEU. This decision is seen as ‘historic’ by value constitutionalists von Bogdandy and Spieker,Footnote 15 confirming their reframing of EU constitutional law through the prism of Article 2. My worries and reservations are aimed at their broad vision of value constitutionalism and so I can reserve my judgement over whether it makes a compelling interpretation of the CJEU’s case law. While the early cases could be interpreted narrowly, the latest foray of the Court does perhaps fit better with their broad account. If that turns out to be the case, then my critique would be aimed at the CJEU as well.
A. Building value constitutionalism
Since value constitutionalism is first and foremost a project of axiological arrangement, let us start at the top. What is Europe and what does it stand for? By quickly turning Europe into the EU and then into its constitutional law, von Bogdandy answers: ‘since 2009, it stands for European society’.Footnote 16 This European society is intimately tied with Article 2 TEU since ‘European legal standards “prevail”’ in it, in both a normative as well as a factual manner.Footnote 17 This connection is crucial since value constitutionalists such as von Bogdandy seek to ground their transformative approach to constitutional law in something more than ‘mere’ law, instead turning to society itself. Yet this is accomplished less by careful sociological research into the values that prevail in this or that part of European society than in a theoretical move grounded in a reading of Hegel which suggests that ‘legal structures express social structures’.Footnote 18 This means that the main way through which we know that European society stands for the rule of law, democracy, human rights, and so on is the very fact that Member States enshrined these values in Article 2 TEU. European Union constitutional law is shaped by European society, but the relationship also flows in the other direction, for ‘the law can itself bring forth social change’.Footnote 19 The source of law’s power to shape societal values resides not primarily in its coercive or action guiding qualities but instead in nothing less than its ‘transcendental normativity’.Footnote 20 This is a rather full-bodied expression of Hegelian idealism, which of course has a long pedigree in theorising of EU law,Footnote 21 and is enjoying something of a renaissance in the present moment.Footnote 22 More prosaically, it is perhaps the most recent expression of Pescatore’s vision of the European Community and its law as ‘a system, that is to say a structured, organised, finalised whole’.Footnote 23
Once the basic identity among Europe, European society, EU constitutional law, and Article 2 values is established at the axiological pinnacle, the ground is ready for an ambitious project of reconstruction. Bast and von Bogdandy posit Articles 1–19 TEU as the basis of their value constitutionalism. Within that, it is ‘the first five paragraphs of the EU Treaty (Arts. 1, 2 and 3(1) TEU) [which] lay down the basic principles of EU constitutional law’.Footnote 24 Furthermore, it is the 12 values enumerated in Article 2 TEU which form the core of EU constitutional law, with the value of the rule of law having ‘primacy over the other principles of Article 2 TEU’.Footnote 25 Spieker proposes a similar three-tiered axiological scheme, one which has ‘Article 2 TEU at its summit (the EU’s constitutional core), provisions giving expression to an EU value on the second level (the EU’s substantive constitution), and the rest of EU primary law on a third one’.Footnote 26 All of this implies far-reaching implications for theoretical understanding of the edifice of EU law. For example, the old and more functional principles which we used to consider as the core parts of EU constitutional law, such as autonomy, primacy, and effectiveness, must now ‘be reconstructed in the light of Article 2 TEU, as manifestations of its rule-of-law principle’.Footnote 27 While these constitutional principles were developed before there was any sign of values in the Treaties, we should now understand them as manifestations of those values. Other aspects of EU constitutional law which we used to think of as central, such as the four freedoms or the broader edifice of ‘the EU’s so-called “economic constitution”’ are now to be relegated to the lowest, third tier of EU constitutional law.Footnote 28 The equation of European society with the values enshrined in Article 2 TEU thus allows for a project of constitutional interpretation which is a kind of distillation, which can turn the formal equality of all Treaty provisions into a substantive axiological order that zooms in all the way through Articles 1–19, to Article 2, and even to the rule-of-law provision as the very core of the core. Again, the core not only of EU constitutional law but of European society as a whole.
Armed with this distilled understanding of the EU constitutional framework, Article 2 TEU can take on an ever-greater role in reshaping the jurisprudence of the CJEU. While these authors started the 2010s at the then commonly accepted position that values expressed in Article 2 TEU amount to guidelines and political aspirationsFootnote 29 and as such have no direct effect, they have over the past 15 years greatly expanded their view on the justiciability of values. The first step was to consider Article 2 as a ‘hook’ for a ‘Reverse Solange’ doctrine, arguing that it could be applied ‘in combination with other Treaty provisions’.Footnote 30 In other words, Article 2 ‘requires concretization’Footnote 31 before it can be applied to specific cases. This has now been dropped, and the logical conclusion of this construction of EU constitutional law has been reached, one in which the Court should be empowered to adjudicate cases directly on the basis of Article 2 TEU. While this should only happen in cases that are sufficiently serious, systemic, or exceptional, all of these are moving goalposts which move with the evolving situation. Spieker, for example, encourages autonomous application of Article 2 to Hungary, given ‘the gravity of the situation’.Footnote 32 Attacks on the independence of the judiciary in Hungary surely amount to a systematic assault on Article 2 values and their autonomous application can be justified on that ground. Sometimes, however, it is not the systematic but the exceptional nature of the situation which justifies autonomous application of values, such as in the proposed overriding of the explicit unanimity requirement in Article 31(1) TEU, given that ‘the Russian war of aggression is … an exceptional case’.Footnote 33 When the proposed autonomous application is extended to cases such as the Maltese CBI scheme, the emphasis seems to change to the seriousness of the infraction, since the situation in Malta surely cannot be described as posing a systemic or exceptional risk. Beyond justiciability, the scope of Article 2 TEU has also widened greatly in the theorising of our authors, starting as a standard which should be ‘interpreted narrowly’ and ‘be read as negatively determining what is not allowed’, all the way to the injunction that the Court should develop a ‘positive content of the values enshrined in Article 2 TEU’.Footnote 34 What emerges beyond the numerous well-worked-out technical details is a transformed picture of EU law itself, a re-foundation of the entire edifice on the basis of Article 2 values.
B. The critics
Such a profound rethinking of EU constitutional law, and indeed of the relationship between law and European society at large, is bound to receive a strong pushback. Before laying out my own worries about this turn to value constitutionalism, I sketch out some of the existing critiques.
At a very general methodological level, van den Brink argues that values constitutionalism as an ‘approach to EU constitutional law is fundamentally unsound’.Footnote 35 It falls prey to the ‘old’ style of European legal thought, one which is too doctrinal and legalistic, without paying proper attention to all the contextual and critical work which has been done to date. This is perhaps best epitomised by von Bogdandy’s statement that ‘[n]owhere Europe is more real than in the law’.Footnote 36 Evoking Shapiro’s famous critique of European lawyers to make the point, this approach can be seen as a ‘constitutional law without politics’.Footnote 37 The evidence for this critique of value constitutionalism is sought in the manner in which it narrows the interpretative scope of EU law, by proposing to interpret the entire edifice through Articles 1–19, then Article 2, and finally by advancing the value of the rule of law as the core of the core of EU constitutional law. The contention that the rule of law could, through the principle of legality, build a European society in which trust and solidarity prevail is a particularly thin or procedural vision of the world.Footnote 38 Such an accusation could appear as a strawman were it not for some of the arguments explicitly advanced by von Bogdandy, such as that ‘European society will only be fully at ease with itself once many citizens understand the trilogues of the EU as an integral aspect of their democracy’.Footnote 39 That is to say, he suggests that we should forget about the old quibbles over the democratic deficitFootnote 40 and the many ideas for reforming the Union so as to be more representative and accountable,Footnote 41 and instead learn to celebrate that most opaque of procedures so long as it realises the values enshrined in Article 2. It is not that democracy or human dignity disappear but that they are reinterpreted through the prism of the rule of law which makes them unduly thin and distorts their full meaning. Thus, the first type of critique is that values constitutionalism is too juridical, narrow, and depoliticising.
The second strand of critique adds that this is a fundamentally conservative project, one which aims to fix and defend the current status quo. At first sight, this is a surprising line of attack since the project appears quite radical and in von Bogdandy’s version is explicitly billed as one of ‘reconstruction’. While a reconstruction would imply a thorough reforming programme based on the principles of the existing legal order, his version of value constitutionalism ends up justifying or redescribing the extant EU constitutional law on many key points. Beyond the defence of the trilogues, he suggests that we should understand those older and more functional principles such as autonomy and primacy as manifestations of the rule of law. Rather than reform, such an approach seeks ‘to protect the EU’s legal political framework as it currently is against illiberal threats from within, rather than to transform the socio-economic and political dimensions of European societies’.Footnote 42 This is not necessarily an essential feature of values constitutionalism, as evidenced by Spieker’s radical proposal to ‘downgrade’ the status of the EU’s economic constitution.Footnote 43 However, the overall aim of the project could be described as seeking to defend the liberal character of the EU from its illiberal enemies without and within.
If the first critique was that values constitutionalism amounts to a new depoliticisation of EU constitutional law, against the interdisciplinary and contextual advances made in the discipline, then the third line of critique could be that this depoliticisation is itself a type of politics. Loughlin’s critical reading of von Bogdandy is that this is a specifically German endeavour, one which seeks to make EU law in the image of German constitutional law. This includes ‘themes of “revolution from above” given more precise form by the European judiciary, the pivotal role of university professors in shaping the idea of European society (a more cosmopolitan synonym for “the German nation”)’.Footnote 44 This formulation can of course be read as a frontal attack, but it is in a certain sense a description of a process in which elite academics provide the Court with arguments and rhetorical imagery—think of President Lenaerts’s evocation of 12 as the most perfect number for European valuesFootnote 45—so as to fundamentally reconstruct EU constitutional law and with it European society at large. This is, in a sense, the internal logic of value constitutionalism itself.
The fourth type of critique contends that the EU itself often does not live up to the values of Article 2, thus creating an incongruency with the project of value constitutionalism. For example, framing the project around the rule-of-law crisis in Hungary and Poland paints the EU itself in a very favourable light but implicitly excludes those areas ‘that could portray the EU in a less favourable light (eg, focusing on the rule of law crisis rather than the refugee crisis)’.Footnote 46 Spieker sees the problem and acknowledges that to the critics of the EU’s own conduct ‘it might seem deeply unsatisfactory that this book treated the EU’s own commitment to Article 2 TEU only in passing’.Footnote 47 This omission is justified by the purported focus of ‘laying the groundwork’ rather than engaging with ‘specific issues’.Footnote 48 A general orientation is of course necessary and to be welcomed, but the decision over what constitutes groundwork and what a specific example is precisely what needs to be established and cannot be taken for granted. My contention is that the governance of migration broadly construed is a much more general and representative case of the state of values in EU law and European society at large than the crucial but more procedural issue of judicial independence as a necessary component of the rule of law.
This brief exposition of existing critiques allows me to make my arguments against the broad reading of Article 2 TEU. My project takes the fourth critique as a starting point before developing novel arguments against value constitutionalism.
II. Values and migration, a troubled relationship
In this part of the article, I focus on three different aspects of the EU’s migration policy which complicate the story told by value constitutionalists about the role of values in EU law and European society at large. I do so by analysing two aspects of migration policy, namely externalisation as exemplified by the EU–Turkey Statement and fragmentation of Schengen caused by a prolonged and widespread reintroduction of temporary border checks. These examples are chosen from the vast range of EU migration policy for their usefulness in interrogating the interaction between migration and values in EU law.
I begin by discussing the relationship between values and other non-values-based reasons for action, such as political pressures or policy objectives. I then juxtapose conflicting interpretations of values, proposing that in the sphere of migration management European disagreement over the meaning of values goes all the way down. Finally, I look at alternative constructions of values within EU law, centring freedom of movement rather than the rule of law. All of these interventions are made towards an overall suggestion that a values-based approach to EU constitutional law needs to grapple with some deeper and more intractable problems than those raised by the rule-of-law backsliding. Migration is one fruitful way into this problem.
A. In the face of higher policy priorities
Following from the fourth critique of value constitutionalism discussed earlier, migration policy is an obvious contender for questioning whether the EU lives up to the values the Treaties tell us that it is founded on, the first of them being respect for human dignity. Beyond the immediate and often brutal consequences that the externalisation policies have on asylum seekers and migrants,Footnote 49 we can stay on the terrain of the rule of law to begin interrogating the relationship between values and the EU’s migration policy. Here I am building on Moreno-Lax’s work in which she has argued that the ‘utter disregard for core procedural and substantive rule of law foundations in this domain is cause for concern’.Footnote 50 This is nowhere clearer than in the EU–Turkey Statement, in which Turkey commits to accept back all irregular migrants from the EU which are not in need of international protection while the EU commits 6 billion EUR to support Turkey’s asylum capacity and resettle Syrian refugees. At its core, the deal is about exchanging money for readmission of irregular migrants. Adopted in 2016, the Statement has since served as a template of a successful migration policy to be emulated and built upon. What is fascinating about the Statement is the lack of concerted opposition from any quarter in the system. Instead, a kind of consensus ‘has formed around the acceptability of the Statement’.Footnote 51
The disregard for the rule-of-law value of Article 2 starts with the conclusion of the Statement, with ‘the EU’ acting outside of the principle of conferral. By concluding an informal ‘deal’ with Turkey, the EU attempts to leave the realm of law and instead produce a purely political document. The proper course of action which would respect the rule of law was obvious to everyone involved. The EU has a competence to conclude readmission agreements based on Articles 79(3) and 216 of the Treaty on the Functioning of the European Union (TFEU). The procedure for doing so is provided for in Article 218 TFEU. By acting outside of the usual procedure where a legal basis for the agreement is provided so as to ascertain that the EU indeed has the competence to act, in concluding the Statement the EU has acted ultra vires. In part, it was institutional balance as enshrined in Article 13(2) TEU that was at stake, for by bypassing the procedure laid out in Article 218 TFEU the European Parliament (EP) was completely excluded from the process. This in turn goes against the idea of democracy as a value in EU law, as expressed by the duo of Articles 2 and 10 TEU.Footnote 52 This is what makes the Court’s ruling in NF, NG, and NM v European Council Footnote 53 so strange. When families of Afghan and Pakistani asylum seekers sought annulment, the Court concluded that it lacked the jurisdiction to review the Statement since it was solely an act of the Member States rather than of Union institutions. The judgment rested on pained formalist tests in which reference to ‘the EU’ in the Statement itself had to be talked away as a mere rhetorical flourish and the presence of the President of the Commission and the European Council at the meeting discounted since they were not officially invited to attend.Footnote 54 As Moreno-Lax has argued, this looks like a classic case of judicial passivism.Footnote 55 Crucially, what is at stake here is not the level of scrutiny the Court should apply in the field of migration, where broader deference to the legislator is to be expected. Instead, the issues I am highlighting sit at the core of the constitutional rule-of-law review pertaining to the principle of conferral and institutional balance. It is on this score, inter alia, that the Court fell short. Like the Court, the EP also accepted this sidelining of its democratic function and chose not to challenge the Statement. We are thus left with this uneasy consensus, where the Statement in one fell swoop violates the values of human dignity, the rule of law, and democracy.
The upshot of this brief sketch is not to prosecute the case that the project of value constitutionalism is hypocritical in the light of the EU’s own grave violations of the values it is founded on. Beyond that, this example shows us that the power of values is relative when these come up against a number of other, non-values-based reasons for action. I take it as a given that all other things being equal the European Council, the European Commission, the CJEU, and the EP would much prefer to fully respect the values of Article 2 in their pursuit of migration management. But often all other things are not equal, and in the case of the Statement it appears that there were overriding imperatives which trumped the value of values. The ‘paramount priority’ was not to create a migration policy which respects values but to create one which is ‘fast and operational’, a migration policy that would not only speedily return unwanted migrants but also be successful in ‘addressing and preventing irregular migration’ in the first place.Footnote 56 These higher policy objectives of deterring unwanted migration are themselves driven by a complex mix of national political pressures, economic logics, and geopolitical shifts. This is not a migration-specific scenario. We can think of a number of situations in which non-values-based reasons may override the commitment to Article 2 values. Depending on one’s point of view this would include the response to the Eurocrisis, in terms of both the ESM escaping EU law and the overriding of national democratic processes in indebted Member States which for some constituted nothing less than authoritarian liberalism on the part of the Union.Footnote 57 One could plausibly read the EU’s muted response to arguably illegal wars and war crimes in Gaza and Iran similarly as expressions of security, energy, geopolitical, and other interests overriding whatever commitment to values is present in the Union and its Member States. Much closer to home, even in the rule-of-law crisis in Hungary and Poland and the operationalisation of Article 2 to defend against illiberal backsliding, the situation is in part a result of the Member States’ unwillingness to proceed with Article 7 procedure, which is more plausibly understood as states behaving in a realist rather than a value-driven manner.
What emerges from looking closely at a key plank of the EU’s migration policy such as the EU–Turkey Statement from the perspective of Article 2 values is a picture very different from the one painted by the response to the rule-of-law backsliding in Hungary and Poland. Here the problem is EU-wide rather than locally present in a few Member States. The respect for values such as human dignity and the rule of law comes into direct tension with national democratic mandates and other systemic pressures, creating a trade-off which is much less present in the case of national judicial independence where the functional and the values-based responses closely track one another. Finally, as important as judicial independence is as a value, with externalisation of migration policy we are addressing Article 2 values in much thicker terms. And, to my understanding, that is the point of the entire turn to value constitutionalism, to provide a thicker and deeper normative content to EU law.
B. Who gets to interpret values?
In Section II.A, I advanced an explanation of the EU–Turkey Statement which is sceptical of the power of values in the hotly contested field of migration policy. One way to push against that would be to turn my talk of higher policy priorities and the need for speed and flexibility, into an expression of values. Goldner Lang illuminatingly shows how values can act as both a shield and a sword. As one would expect, those who champion the rights of migrants rely on values of human dignity and the rule of law to advance their cause. What is perhaps more surprising is that ‘those demanding stricter migration and asylum policies equally invoke EU values’.Footnote 58 From their perspective, aggressive migration policy measures, such as the Statement, are no longer seen as transgressions of EU values which must be remedied or explained away. Instead, these policies could be defended as ‘a balance between the protection of democracy and public security, and the protection of migrants’ rights’.Footnote 59 What we can safely term a more conservative interpretation of values sometimes revolves around the figure of the ‘European way of life’. This phrase is understood by President von der Leyen as one which includes ‘solidarity, peace of mind and security’. These are in turn linked to ‘legitimate fear and concerns about the impact of irregular migration’ and ‘the need for well-managed legal migration’.Footnote 60
The deeply contentious nature of the values is recognised by value constitutionalists, with von Bogdandy saying that they ‘stand at the heart of major cleavages in European society’, including how to respond to ‘the influx of migrants’.Footnote 61 It would be a mistake, however, to think of the value constitutionalist project as a kind of neutral theoretical framework within which the various cleavages present in European society can play out through democratic and legal processes. Instead, they structure and circumscribe the nature and extent of possible diversity in the interpretation of values which I submit is unrepresentative of the actual European society. In other words, value constitutionalists advance an axiological ordering of EU law and of Article 2 values. They of course acknowledge diversity and tensions between the different manifestations and interpretations of these values, indeed proposing their framework of value constitutionalism as the best umbrella under which these disagreements can be played out and mediated. The problem is that large parts of European society would not agree to the kind of narrow framing of the field within which reasonable disagreements can take place.
Perhaps the most persuasive value constitutionalist answer to the contested nature of values is to admit a range of diverse interpretations while demarcating a set of ‘red lines’ beyond which no policy balancing is permitted to go. The logic of the red-lines approach is present in the Reverse Solange proposals,Footnote 62 has recently been elaborated by AG Ćapeta,Footnote 63 and is adopted by Goldner Lang in relation to migration, who argues that the ‘essence of EU values and the absolute rights of non-refoulement, human dignity, and the right to life, mark the limits of permissible balancing between migrants’ rights and broader policy objectives such as public security and national identity’.Footnote 64
The appeal of this approach is obvious, for it gives a concrete expression to the idea of unity in diversity and can make values both open-ended and operationalised. The issue such a proposal faces, however, is that what is at stake in the interpretation of values sometimes goes ‘all the way down’. There are certainly issues in European society where the red-lines approach would work, but I argue that when it comes to migration the disagreements currently run too deep.
To elaborate this point I want to make a theoretical comparative connection to Balkin’s analysis of conflicting interpretations of norms in US constitutional law.Footnote 65 Balkin and other CLS authors such as KennedyFootnote 66 start from the premise that liberals and conservatives in the US agree on a basic set of values, on the ‘Liberal paradigm’ which consists of the rule of law, representative democracy, individual rights, private property, and so on. While they agree on this broad framework, as opposed to a more religious or socialist pantheon of values, their disagreements over the meaning of these values in some highly salient domains go all the way down. That is to say, each side interprets and frames these commonly agreed values so as to support or oppose abortion, the death penalty, LGBT+ rights. According to Balkin, our disagreements over values, at least in their legal form, have a crystalline structure which is to say that at each juncture one can opt for a more communalist or more individualist interpretation. There is simply no coming together over some common core which we could ring-fence and around which we could construct a non-controversial set of red lines. While Article 2 values at their most general are not necessarily contradictory—for example one can advance a sophisticated account of how democracy and the rule of law mutually constitute each other à la HabermasFootnote 67—any specific articulation of these values will contradict another specific articulation. This is the case since ‘what gives a principle force and meaning is its differentiation from other principles, and that these differentiations will always be in conflict with each other’.Footnote 68 Those who take up the language of values as either sword or shield in their approach to the EU’s migration policy do not merely disagree on the details while coming together on a shared understanding of non-refoulment, human dignity, and the right to life. I contend that they disagree over the very essence of each of these rights.
This type of general objection against a unified view of values does not necessarily impinge on applying them in any specific case before the Court. Concretisation of an Article 2 value in various primary and secondary law instruments can attenuate these tensions considerably. Black letter law can authoritatively resolve the underlying normative dispute. That is not what my critique is aimed at. Instead, I am sceptical of the grand ambition of value constitutionalists whose attempt is to unify the disparate strands of EU constitutional law and indeed of European society at large under the umbrella of Article 2. The plea against theoretical univocity I developed in this section is well summed up by Unger, who says that ‘the many conflicts of interest and vision that lawmaking involves, fought out by countless minds and wills working at cross-purposes, would have to be the vehicle of an immanent moral rationality whose message could be articulated by a single cohesive theory’,Footnote 69 for this type of endeavour to make sense. The point is that at least some of the value constitutionalists, such as von Bogdandy, precisely subscribe to this kind of Hegelian idea of a cunning of reason which permeates the structure of EU law despite the great cacophony of different value determinations and other interests which actually shaped it.
The indeterminacy arising from the open texture of values is not necessarily general, or always the same everywhere. While the death penalty may be a point of contention in the US, it is not in the EU. Similarly, while there may be philosophical disagreements about the precise nature of the rule of law, making it an essentially contested concept, there is enough agreement with respect to the independence of the judiciary as one component of the rule of law to make it workable. It is a good thing that we can draw red lines around independent courts and defend those, but that line of the CJEU case law is simply too thin as a basis for a sweeping theory of EU constitutional law, especially at a time in which we cannot seem to find the societally agreed red lines that pertain to the value of human dignity of the most vulnerable, such as the migrants crossing the Mediterranean Sea.
C. Other values in Article 2
While value constitutionalists centre Article 2 TEU in its entirety as the core of the EU legal order, their analysis puts a heavy accent on the rule of law, with democracy in second place, and little attention paid to the other values which might also arise in the context of migration management. This is understandable as a reconstruction of the Court’s case law on values, for ‘Article 2 TEU has never been used as a standalone legal basis for migrants’ rights’ before the Court.Footnote 70 Arguably, a CJEU-centric account of EU constitutional law is in this respect too partial and hierarchical to do justice to the complexity of values in EU law and European society.Footnote 71
By looking at the way the EU’s migration policy manifests internally through the temporary reintroduction of border checks within Schengen, freedom can be cast as another Article 2 value which is under stress in the current system of migration management. The case NW v Landespolizeidirektion Steiermark is instructive in this regard, also due to the fact that it almost did not happen, thus highlighting the contingency of which cases appear before the Court.
Schengen has been fragmenting since 2015, principally through the reintroduction of temporary border checks across a number of Member States.Footnote 72 Strictly speaking, these are not the EU’s migration policy, but instead an instance of self-help by individual Member States in the absence of a satisfactory common policy on internal checks to combat secondary migration. Border checks have effectively been in place from 2015 to the present day, with no end date in sight, and it seems safe to say that they have become quasi-permanent, such that the promise of Schengen as an area without internal frontiers is in this sense compromised. While most intra-Schengen borders remain open, it is the entrenched and predictable variable geometry of the reintroductions of border checks that amounts to a fragmentation of Schengen as a whole. The border checks were initially introduced as part of the Member States’ response to the refugee and migration crisis of 2015. Although they rested on a solid legal basis for the first two years, until November 2017, these measures have arguably been incompatible with EU law ever since. It is at this point that the Landespolizeidirektion case enters the picture.
In the judgment, the Court affirmed a hard limit of six months, including all extensions, for the reintroduction of border checks within Schengen on the basis of Article 25(4) of the Schengen Borders Code (SBC). This strong ruling, however, came as a result of scholarly activism which triggered the preliminary reference in the first place. The Commission, which under Article 27(4) of the SBC is required to issue an opinion if it has concerns about the proportionality of border checks, failed to do so despite taking a view during oral hearing that it indeed considered Austria’s measures to be disproportionate.Footnote 73 The Court reproached the Commission for this serious failure, stating ‘that it is essential, in order to ensure proper operation of the rules established by the Schengen Borders Code’,Footnote 74 that the Commission fulfils its obligations as the guardian of the Treaties, issuing an opinion and where necessary referring a Member State to the Court. The commentators also noticed the Commission’s passivity, saying that ‘the Commission…remained silent’,Footnote 75 that it ‘was absent’.Footnote 76
The Commission could simply be admonished for failing to live up to its role as the guardian of the Treaties enshrined in Article 17 TEU, but the question is instead what led the Commission to not forcefully defend the accomplishment of Schengen. Kelemen and Pavone’s account of this passivity is that the Commission has been engaging in under-enforcement so as to secure support in the European Council for its legislative agenda.Footnote 77 Scheppele draws on this work to argue that the Commission has been too weak and slow in bringing infringements on the rule-of-law cases against Hungary and Poland.Footnote 78 The suggestion is that enforcement and legislative priorities come into tension, with the former giving way to the latter. While this is contested terrain in political science, I would suggest that the Commission simply felt that it could not afford to enforce EU law fully in relation to migration. The politics in a number of Member States would not bear it. In this respect, the internalisation of migration policy through border checks within Schengen bears structural similarities to externalisation policies such as the EU–Turkey Statement, insofar as the breaking of the constitutional norms and values works through an emergent tacit consensus in which the Member States and the institutions participate together.
The more interesting aspect of the fragmentation of Schengen, however, is that it sheds light on the value of freedom, an Article 2 value which receives little attention in the theorising of the value constitutionalists. Let us try to connect the promise of Schengen as an area without internal frontiers to the value of freedom. The SBC and the CJEU proudly affirm that Schengen is an ‘area in which the free movement of persons without internal border controls is ensured’;Footnote 79 as such, it stands as one of the main achievements of the EU. The achievement of Schengen can be understood as a corollary of the four fundamental freedoms, namely the free movement of persons, services, goods, and capital. It is also an integral component of the project of identity-building, of ‘fostering a supranational political identity of Union citizens’.Footnote 80 At an even deeper level, the removal of internal frontiers forms part of the broader vision of the EU as a project of European integration aimed at making Europe ‘whole again’, by overcoming the physical and legal ‘walls’ and ‘curtains’ that have divided the continent in the post-Second World War period. Salomon and Rijpma even reach to Arendt for her idea that freedom requires a spatial boundedness which is ‘especially clear for the greatest and most elementary of all negative liberties, the freedom of movement’.Footnote 81 Here Arendt is of course evoking the basic principle of liberty theorised by Hobbes, which is the idea of freedom as a lack of constraints on physical movement. Schengen can thus be understood as a concrete realisation of one of the core tenets of political liberalism.
By following this logic, it is plausible to consider the undermining of Schengen as an existential risk to the values of the EU, one among many others. Given its importance, one would expect the Union’s institutions to be steadfast and vigorous in defending the achievements of Schengen. The Court has done so in NW v Landespolizeidirektion Steiermark, but the Commission has failed to live up to the promise. As for the Member States, they have found a way to keep shifting the legal basis and so the practical response to the judgment has been compliance with the letter but breach in spirit, with temporary reintroductions of border checks further proliferating since the Landespolizeidirektion ruling.
The fragmentation of Schengen is also a good illustration of the dual nature of values, both as necessary for the functioning of the EU legal order and as normative commitments. As AG Ćapeta instructively laid out, Article 2 is a choice which speaks to ‘the vision of what a good society is’.Footnote 82 At the same time as being a normative commitment, respect for Article 2 values ‘enables the functioning of the EU legal order’Footnote 83 since it acts as a premise on the basis of which mutual trust and hence mutual recognition are possible. One of my arguments for the importance of considering migration management in our assessment of values is that here it is easier to see how the functional and normative components diverge. When it comes to the independence of the national judiciaries, it is not only the value of the rule of law that is at stake but the very practical operation of EU law for which mutual trust is required. That is to say, even if one did not subscribe to Article 2 values in a normative sense, there would still be good practical reasons for enforcing independence of national courts from the perspective of the functioning of EU law. The temporary reintroduction of border checks within Schengen, however, splits the difference. It is clearly in breach of the value of freedom as expressed in the achievement of an area without internal frontiers. However, the way these border checks are conducted is optimised so as to cause minimal disruption to the functioning of the internal market. If every truck were checked, say at the border between Germany and Austria, this would seriously impede the functioning of the internal market. Instead, the value of freedom is undermined in the sense that one may at any crossing potentially be stopped and so there is an internal frontier between many Member States, while precautions are taken to square this practice with the normal functioning of other parts of EU law.Footnote 84
III. Conclusion
The main thrust of this intervention was to challenge the theoretical edifice of value constitutionalists on the grounds that its foundations are too thin. While the Court is to be commended for defending the value of the rule of law by pushing against the erosion of judicial independence in Hungary and Poland, this strand of the case law is not thick enough to warrant a wholesale reconstruction of EU constitutional law on the basis of Article 2 values. By approaching the question of values in EU law and European society through the prism of migration, a much more complex picture emerges. In the case of externalisation policies such as the EU–Turkey Statement, values give way to other pressing policy priorities; they yield to non-values-based reasons. When values are used to articulate a defence of the current migration policies, the deep indeterminacy of values emerges, for Article 2 can be mobilised both as a shield and as a sword in relation to the treatment of migrants. While such indeterminacies can be mitigated through legal concretisation and levels of societal consensus, I argued that current battles over migration policy reveal the troubling fact that European society is not currently able to draw a set of clear red lines around values such as human dignity which could act as common grounding for values on which the Union is founded. In this respect at least, judicial independence is an ‘easy’ case which does not properly stress-test the question of commonality of values. Lastly, migration management throws other Article 2 values into the spotlight, beyond the rule of law, democracy, and human dignity, such as the value of freedom. The temporary reintroduction of border checks within Schengen is an instructive case of a policy which erodes the value of freedom but does so in a way that is minimally disruptive to the functioning of the EU legal order. The upshot of the article is a scepticism of the good news proclaimed by the value constitutionalists, a scepticism of any unified normative basis for the EU law at the present moment. That in no way diminishes the need for such a normative vision. Instead, this intervention is an invitation to take value constitutionalism seriously, to consider values in the complex registers of the current European conjuncture, such as those presented by the problem of migration.
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