January 23
2022
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Trajan Shipley
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6th November 2021
Institutional law Justice & Litigation

FIDE 2021: Panel discussion on Article 2 TEU

Following the rapporteurs’ presentations, a final panel discussion was held on the role of courts in upholding the EU’s foundational values enshrined in Article 2 TEU, with a panel composed of CJEU, ECtHR and national judges and academics. Moderator Prof. Rick Lawson noted at the start that Article 2 TEU contains other important values beyond the rule of law, although the discussion overall focused on the interplay between EU values and national constitutional traditions of Member States.

CJEU judge Rossi started by attempting to put Article 2 and its values in context, both as conditions for membership and in relation with the obligations arising from the principle of mutual trust and Article 19 TEU. She further noted that Article 4(2) TEU embodies in the EU legal order the theory of counterlimits developed in national legal systems, but made clear that it cannot prevail over Article 2. In this sense, in case of divergence between national constitutions and EU fundamental principles, only two solutions are constitutional revision or withdrawal from the EU.

ECtHR judge O’Leary stressed that the core values of Article 2 mirror those in the Statue of the Council of Europe, and reminded that the current dialogue between the CJEU and ECtHR on issues like the rule of law is driven by national judges. According to her, some principles of the EU legal order may create a false impression of a top-down imposition vis-à-vis national legal systems, but reckoned that there is a need to engage with this issue and consider the possible risks of a ‘discourse of values’ without meaningful dialogue between European and national constitutional courts. She also noted that EU values as such find their origin in national values.

In response to this, Slovenian Constitutional Court President Knez elaborated on how the move from a Community to a Union has made the intertwining of values at the national, EU, and international level more complex. He expressed the view that national constitutional courts sometimes perceive that dialogue is diminished when the CJEU, in answering a preliminary question, it de facto ends up deciding the case and thereby sidelining national courts. In his view, dialogue should accommodate national and EU sensibilities on values issues.

Judge Kees Sterck focused on the independence of the judiciary, noting that ‘values are law’, in contrast to the recent Polish Constitutional Court’s assertion that Article 2 TEU values cannot be categorised as legal principles. He stressed that judges have the duty to defend the rule of law, even when that implies entering into the political debate. For his part, Prof. Kosar focused on the limits of courts to uphold the EU’s fundamental values. In his view, there is a need for more informal links of communication between EU, constitutional and international scholarship and networks, and to address judicial bodies’ politicisation issues.

The open discussion was very much focused on the relationship of EU values with common constitutional national traditions, and on the relationship between Articles 2 and 4(2) TEU. Specific attention in this sense was drawn to the status of the ‘common constitutional tradition’ provision in EU law as a principle, value or fundamental provision. Judge Knez stressed that the wording may add more confusion to the debate, and that what should really matter is the actual content. Judge O’Leary built on that by noting the need to involve more constitutional courts and scholars on the development of these issues. Judge Rossi insisted on reading Article 4(2) TEU together with the rest of principles enshrined in said provision. Prof. Kosar further noted that other actors, such as the legislature or citizens, should also have a say in the debate on the EU standard of common constitutional values.

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