Article 2 TEU

Article 2 TEU Marcus Klamert and Dimitry Kochenov Forthcoming in Manuel Kellerbauer, Marcus Klamert and Jonathan Tomkin (eds), The Treaties and the Charter of Fundamental Rights – A Commentary, Oxford: Oxford University Press, 2019, pp. 22–30. This is the last draft. Please consult the Commentary for the final text with correct pagination. Abstract: This contribution contains a concise annotated analysis of Article 2 TEU, the EU Treaty’s key provision on values, prepared for the Oxford Commentary and aiming to give a reliable first overview of basic history and all the key elements and functions of this provision. Key words: EU values, EU Rule of Law, Article 2 TEU, EU democracy 1 Article 2 TEU The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. Selected bibliography Carlos Closa and Dimitry Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (CUP 2016) András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values: Ensuring Member State Compliance (OUP 2017) Maria Luisa Fernández Esteban, The Rule of Law in the European Constitution (Kluwer Law 1999) Dimitry Kochenov, Amichai Magen, and Laurent Pech (eds), (Special Section) ’The Great Rule of Law Debate in the European Union’ [2016] 54 JCMS 1054 Dimitry Kochenov, ‘EU Law without the Rule of Law. Is the Veneration of Autonomy Worth It?’ [2015] 34 YEL 51 Päivi Leino and Roman Petrov, ‘Between “Common Values” and Competing Universals’ [2009] 15 ELJ 654 Koen Lenaerts and Marlies Desomer, ‘Bricks for a Constitutional Treaty of the European Union: Values, Objectives and Means’ [2002] 27 EL Rev 377 Laurent Pech, The Rule of Law as a Constitutional Principle of the European Union (Jean Monnet Working Paper No 04/09) Laurent Pech and Kim Lane Scheppele, 'Illiberalism witihin: Rule of Law Backsliding in the EU' [2017] CYELS 3 Malcolm Ross and Juri Borgmann-Prebil (eds), Promoting Solidarity in the European Union (OUP 2010) Werner Schroeder (ed), Strengthening the Rule of Law in Europe: From a Common Concept to Mechanisms of Implementation (Hart 2016) Christian Tomuschat, ‘Common Values and the Place of the Charter in Europe’ [2002] 14 Revue européenne de droit public 159 Andrew Williams, ‘Taking Values Seriously: Towards a Philosophy of EU Law’ [2009] 20 OJLS 549 Essential case law Case C-441/17 R, Commission v Poland, paragraph 102: ‘[E] ffective application of EU law . . . [is] an essential component of the rule of law, a value enshrined in Article 2 TEU on which the Union is founded’. Case C-455/14 P, EUPM in Bosnia and Herzegovina, paragraph 41: The ‘Union is founded, in particular, on the values of equality and the rule of law’. Case C-362/14, Schrems, paragraph 95: The very existence of effective judicial review designed to ensure compliance with provisions of EU law is inherent in the existence of the rule of law. Opinion 2/13, ECHR II, paragraph 168: The EU is built on the premise that the EU’s values are shared among the MS implying mutual trust that EU law implementing them will be respected. Case 36/02, Omega, paragraph 34: Human dignity is a justification for MS obstacles to trade. Case 377/98, Netherlands v EP and Council, paras 70–7: Human dignity is a general principle of EU law and a standard of review and a guidance for the interpretation of secondary law. Case 294/83, Les Verts, paragraph 23: The EEC is a Community based on the rule of law. Case 138/79, Roquette Frères, paragraph 33: The EP’s role in the legislative process reflects the fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly. Main legal instruments The Commission’s rule of law framework sets out whether the rule of law is upheld in each MS.1 1 Commission Communication, A New EU Framework to Strengthen the Rule of Law, COM(2014)158. 2 Commentary A. General remarks B. Status, nature, and function of values C. Individual values A. General remarks According to the ECJ, ‘[The EU] legal structure is based on the fundamental premise that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU’.2 The values of Article 2 TEU can thus be said to be at the very ‘untouchable core’ of the EU legal order. 3 They arguably were implied from the start of the integration process, assuming that it was only open to democratic European states adhering to the rule of law and human rights protection (an understanding reconfirmed by numerous declarations of the EEC institutions and the text of the Preamble of the EEC).4 The values found more detailed expression in the articulation in 1993 of what is known as the Copenhagen criteria for accession5 which aimed at the ‘export’ of the hitherto unwritten principles now at the core of Article 2 TEU to the candidate countries of Central and Eastern Europe.6 Those accession criteria7 were stated to include ‘the stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities’.8 2 Opinion 2/13, Accession to the European Convention of Human Rights (ECHR II), EU:C:2014:2454, para 168. See now also Case C-455/14 P, EUPM in Bosnia and Herzegovina, EU:C:2016:569, para 41. 3 See Nicolaos Lavranos, ‘Revisiting Article 307 EC: The Untouchable Core of Fundamental European Constitutional Law Values and Principles’ in Filippo Fontanelli, Giuseppe Martinico, and Paolo Carrozza (eds), Shaping Rule of Law through Dialogue: International and Supranational Experiences (Europa Law Publishing 2009) 119. 4 See e.g. European Council Declaration on European Identity [1973], Annex 2 Chapter II, 7th General Report EC; Joint Declaration by the EP, the Council and the Commission on the respect of fundamental rights [1977] OJ C103/1; EP Declaration on fundamental rights and freedoms [1989] OJ C120/51; Interinstitutional declaration on democracy, transparency and subsidiarity [1993] OJ C329/133; Panayotis Soldatos and Georges Vandersanden, ‘L’admission dans la CEE – Essai d’interprétation juridique’ [1968] CDE 674. 5 As the criteria were agreed by the Copenhagen European Council in 1993. 6 Marc Maresceau, ‘Quelques réflexions sur l’application des principes fondamentaux dans la stratégie d’adhésion de l’UE’ in Le droit de l’Union européenne en principes: Liber amicorum en l’honneur de Jean Raux (LGDJ 2006) 69; Dimitry Kochenov, EU Enlargement and the Failure of Conditionality: Preaccession Conditionality in the Fields of Democracy and the Rule of Law (Kluwer Law 2008) Chapters 1 and 2; Kalypso Nicolaïdis and Rachel Kleinfeld, Rethinking Europe’s ‘Rule of Law’ and Enlargement Agenda: The Fundamental Dilemma (Jean Monnet Working Paper No 12/12). 7 E.g. Dimitry Kochenov, ‘Behind the Copenhagen Façade: The Meaning and Structure of the Copenhagen Political Criterion of Democracy and the Rule of Law’ [2004] 8(10) European Integration online Papers 1. 8 The Criteria also included the requirement for MS to have a functioning market economy and the ability to assume the obligations of membership of the Union. The criteria were further supplemented by the Madird European Council in 1995. 3 The Treaty codification of these then unwritten principles started with Article F(1) ToM, which introduced democracy as a basis of the Union. The ToA then amended the provision to include a reference to rule of law and human rights before renumbering it as Article 6(1) TEU.9 The ToL completed the codification of the criteria by enlarging the list to include minority protection. It further rebranded the newly-codified principles as ‘values’. The values became closely linked to the ‘sanctions’ clause in Article 7 TEU, since it was a breach of those values that could trigger the sanctions process. The values are further reflected in the Preamble of the Treaty, which records the attachment of the MS ‘to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law’.10 The Lisbon revision of the provision came about by initiative of the Laeken European Council 2001 in the wake of the development of a new EU bill of rights, the CFR, on the one hand and the ad hoc sanctions against Austria in 2000 on the other hand. Among many other proposals, the European Convention for the ConstT had discussed including references to God or religious traditions. Article I-2 ConstT included equality in its first part. The Conference of the Heads of States and Governments added minority rights and the equality of men and women, and split the provision into two sentences. This version was taken over by the ToL in unchanged form and replaced the pre-Lisbon ‘principles’ wording of Article 6 TEU-ToN. Article 2 TEU merges what formerly was provided in several articles to create one single ‘homogeneity’ clause. 11 Articles 21(1) and (2)(a) TEU on the Union’s external action and Article 8 TEU on the EU’s neighbourhood policy make reference to the Union’s values. Article 23 TEU relating to the CFSP in turn refers to Article 21 TEU. The Union is nothing less but obliged to promote its values in the world: Article 3(5) TEU on the Union’s objectives states that in its relations with the wider world, the Union shall uphold and promote its values and interests. There is also a connection with Article 4(2) TEU on the national identities of the MS, if we perceive Article 2 TEU as expression of a corresponding ‘EU identity’:12 outlining the constitutional core of the Union as a legalpolitical system. Crucially, Article 2 TEU (just like, inter alia, Articles 7, 49, and 50 TEU) transcends the scope of application of Union law as well as the scope of the competences of the EU.13 Different from the objectives in Article 3 TEU, the values in Article 2 TEU are not directly linked with the competences and policy areas of the Union. ‘The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.’ Moreover, Article 49 TEU made eligibility for accession conditional on respect of the values now laid down in Article 2. 10 Preamble, 4th Recital ToL. See Günter Wilms, Protecting Fundamental Values in the European Union Through the Rule of Law (RSCAS Books 2017) 5–6. 11 Compare Article 23(1) of the German Basic Law (Grundgesetz). 12 For well-founded academic criticism, see, Justine Lacroix, ‘Does Europe Need Common Values?’ [2009] 8 Eur J Political Theory 141; Martijn W. Hesselink, Private Law and the European Constitutionalisation of Values (Amsterdam Law School Research Paper No 2016-26); Giulio Itzcovich, ‘On the Legal Enforcement of Values: The Importance of Constitutional Context’ in Jakab and Kochenov, Enforcement (see biblio). 13 See Frank Schorkopf, ‘Art 2 EUV’ in Eberhard Grabitz, Meinhard Hilf and Martin Nettesheim (eds), Das Recht der Europäische Union, Kommentar (Beck 2017) para 18. 9 4 B. Status, nature, and function of values It is unclear whether the values listed in the two sentences of Article 2 TEU have a different status. While the first sentence speaks of values upon which the Union is founded, the second sentence lists certain values that are common to the MS and prevail in ‘a society’. Whether those values are considered to form part of the ‘society of the MS’ or the ‘society of the Union’ is ambiguous. From a systematic point of view, it seems unlikely that the Treaty would ascribe values to the MS. Moreover, such a reading would imply that the MS cumulated would be said to constitute a single society. On the other hand, if the list is considered to represent values for the EU as a whole, it is unclear why there are overlaps between the two sentences (eg. ‘equality’ and ‘equality between women and men’, or ‘rule of law’ and ‘justice’). Some of the values appearing under Article 2 TFEU are well-known general principles of Union law that are laid out more fully elsewhere in the Treaties, such as the prohibition on discrimination set out in Article 18 TFEU or the respect for human (fundamental) rights including human dignity in Article 6 TEU and in the CFR. Rights of persons belonging to minorities are now also covered by the CFR, yet with a limited focus (see Article 22 CFR).14 Title II of the TEU lays out the democratic set up of the EU. The values which also have the status of general principles of Union law may be applied as standards of review for Union law measures (or national measures giving effect to Union law), and in the case of fundamental rights can also be relied on by individuals.15 Other values, such as freedom, pluralism, or tolerance, unless they are concretized in the form of enforceable rights such as in the CFR, have a different function (see also Introduction to Title I). Being programmatic values, they can give guidance for the interpretation and development of EU law. In Kadi, the Court referred to the ‘principle’ of liberty (besides democracy, human rights, and fundamental freedoms) as limiting derogations from primary law otherwise allowed under Article 351 TFEU (ex Article 307 EC) or Article 347 TFEU (ex Article 297 EC).16 Moreover, as mentioned, most values in Article 2 TEU were qualified as principles before the ToL, a partial ‘downgrade’ criticized in the literature. 17 Clarifying the legal function of those values that are not also 14 See also the Framework Convention for the Protection of National Minorities (opened for signature 1 February 1995, entered into force 1 February 1998) ETS No 157 and the European Charter for Regional or Minority Languages (opened for signature 5 November 1992, entered into force 1 March 1998) ETS No 148. Article 2 TEU does not recognize the right of existence of minorities as such, but merely of the rights of individuals belonging to them. Respect for and protection of minorities is also an element of the Copenhagen criteria (see para [10]). On the limitations of the current framework constituting minority protection as a ‘value’, see Anneleen Van Bossuyt, ‘L’Union européenne et la protection des minorités: Une question de volonté politique’ [2010] 3-4 CDE 425 (440–444); Dimitry Kochenov and Timofey Agarin, ‘Expecting Too Much? European Union’s Minority Protection Hide-and-Seek’ [2017] 1 European Non-Discrimination Law Review 1. 15 See Commentary on Article 6 TEU. 16 Joined Cases C-402/05 P & C-415/05 P, Kadi, EU:C:2008:461, paras 301–3. 17 Laurent Pech, ‘“A Union Founded on the Rule of Law”: Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law’ [2010] 6 EUConst 359; Dimitry Kochenov, ‘The Acquis and Its Principles: The Enforcement of the “Law” vs. the Enforcement of “Values” in the EU’ in Jakab and Kochenov, Enforcement (see biblio). 5 recognized as general principles by the Court would be essential for understanding the enforceability of Article 2 TEU (see below).18 The claim that the values in Article 2 TEU are ‘common’ to the MS is important for creating a common value base shared between all MS and the EU, making the EU a community not only of law but also of values. This base, expressing the collective preferences of the MS,19 has another implication. The EU is built on the premise that each MS shares these values with all the other MS, and recognizes that they share them with it, which would imply and justify the existence of mutual trust between the MS ‘that those values will be recognised and, therefore, that the law of the EU that implements them will be respected.’20 Values are, in this sense, absolutely indispensable for the operation of the Union.21 This arguably concerns not only the adherence to the procedural aspects of mutual trust, but also to the substance of values.22 While strengthening these values thus seems indispensable,23 the reinforcement of values and the protection of fundamental rights in particular, has not been sufficient reason for the Court to condone the accession of the EU to the ECHR.24 The values mentioned in Article 2 TEU in toto are made operational by the sanctions mechanism in Article 7 TEU (see, however, Article 269 TFEU on the limited jurisdiction of the ECJ), as well as, in the view of the European Commission confirmed in part by the ECJ, 25 through falling within the scope of the acquis, thus making the ordinary infringement proceedings applicable (see Article 258, but also 259 TFEU).26 Other Treaty means could be available.27 Moreover, adherence to the Article 2 values is precondition for accession to the EU, providing ex ante control of adherence by all the MS. Article 49 TEU limits membership to European states that respect the Article 2 values (enshrining the Christophe Hillion, ‘Overseeing the Rule of Law in the EU’ in Closa and Kochenov, Oversight (see biblio). See Michael Potacs, ‘Wertkonforme Auslegung des Unionsrechts?’ [2016] 51 EuR 164 for arguments in favour of their function as standard of interpretation for both primary and secondary law. 19 Christian Calliess in Christian Calliess and Matthias Ruffert (eds), EUV/ AEUV (5th ed, Beck 2016) Article 2 para 13. 20 Opinion 2/13, ECHR II, para 168; Case C-284/16, Achmea, para 34. See Koen Lenaerts, ‘La vie après l’avis: Exploring the principle of mutual (yet not blind) trust’ [2017] 54 CML Rev 805. On mutual trust, see also Commentary on Article 4 TEU. 21 Roland Bieber and Francesco Maiani, ‘Sans solidarité point d’Union européenne’ [2012] 48 RTDeur 265. 22 Dimitry Kochenov, ‘The EU and the Rule of Law – Naïveté of a Grand Design?’ in Maurice Adams et al. (eds), Constitutionalism and the Rule of Law: Bridging Idealism and Realism (CUP 2017); Roland Bieber and Francesco Maiani, ‘Enhancing Centralized Enforcement of EU Law: Pandora’s Toolbox?’ [2014] 51 CML Rev 1057. 23 Carlos Closa, ‘Reinforcing the Rule of Law: Normative Arguments, Institutional Proposals and Procedural Limitations’ in Closa and Kochenov, Oversight. 24 For such argument see View of AG Kokott in Opinion 2/13, ECHR II, EU:C:2014:2475, para 164. 25 In Case C-64/16 Associação Sindical dos Juízes Portugueses, EU:C:2018:117, the ECJ established that national violations of the principle of judicial independence, a core part of the rule of law in Article 2 TEU, fall within the scope of EU law via Article 19(1)(2) TEU, irrespective of whether the MS are implementing Union law within the meaning of Article 51(1) of the Charter (para 29), potentially opening up a possibility of bringing other elements of the values enumerated in Article 2 TEU within the scope of EU law. 26 See Commission’s Rule of Law Framework. See Kim Lane Scheppele, ‘The Case for Systemic Infringement Actions’ in Closa and Kochenov, Oversight. 27 Christophe Hillion, ‘Overseeing the Rule of Law in the EU: Legal Mandate and Means’ in Closa and Kochenov, Oversight. 18 6 Copenhagen criteria28) and are committed to promoting them (see Article 49 TEU). Also the implementation of the EAW as an expression of the principle of mutual recognition and thus mutual trust can only be suspended in the event of serious and persistent breach by one of the MS of the principles referred to in Article 2 TEU, and in accordance with the procedure provided for in Article 7 TEU. 29 Article 13(1) TEU requires the institutional framework, thus the EU institutions, to ‘promote’ the EU’s values, which arguably bars them from acting contrary to the Article 2 values. 30 In the face of the perceived ineffectiveness of the current system of the enforcement of values in the EU, numerous reform suggestions have been made.31 C. Individual values Respect for human dignity is the first value listed in Article 2 TEU. This prominence is also reflected by Article 1 CFR, according to which human dignity is inviolable, it must be respected and protected (see Article 1 CFR).32 It is a general principle of law and has been invoked by the Court for justifying an obstacle to the fundamental freedoms.33 As a general principle of EU law it is also a standard of review and a guidance for the interpretation of secondary law. 34 The Court has spoken of a fundamental right to human dignity and integrity.35 Freedom and pluralism are reflected in Chapters I and II of the CFR. They mainly comprise rights against the state (i.e. the EU). Pluralism is an element of democracy, which for the EU is defined in Title II TEU. The Court qualified the involvement of the EP in the former cooperation procedure as expression of a ‘fundamental democratic principle . . . that the peoples should take part in the exercise of power through the intermediary of a representative assembly’. 36 The Commission defined democratic freedoms as including political pluralism, the freedom of expression and the freedom of religion, independent 28 Conclusions of the Presidency—Copenhagen, 21–2 June [1993] SN 180/1/93 REV 1. While the text of the political criteria is very broad, the Commission’s pre- accession candidate country assessment practice allows the distillation of the substance of what was required: Kochenov, Failure of Conditionality, Chapters 1 and 2. 29 Joined Case C-404/15 & C-659/15 PPU, Aranyosi, EU:C:2016:198, para 81. See Recital 10 of the Council Framework Decision on the European arrest warrant and the surrender procedures between MS [2002] OJ L190/1. See Joined Cases C-148-150/13, A, EU:C:2014:2406, paras 53 and 65; Case C-182/15, Petruhhin, EU:C:2016:630, paras 42–3. 30 See Potacs, ‘Wertkonforme Auslegung’ 169. 31 See e.g.Closa and Kochenov, Oversight. 32 See Joined Cases C-148-150/13, A, paras 53 and 65. 33 Case C-36/02, Omega, EU:C:2004:614, para 34. 34 Case C-377/98, Netherlands v EP and Council, EU:C:2001:523, paras 70–7. See also Case C-23/12, Zakaria, EU:C:2013:24, para 40. 35 Case C-377/98, Netherlands v EP and Council, para 70. Cf. James Q. Whitman, 'On Nazi "Honour" and the New European "Dignity"', in Christian Joerges and Navraj Singh Ghaleigh (eds.), The Darker Legacies of Europe (Hart 2003) 243. 36 Case 138/79, Roquette Frères, EU:C:1980:249, para 33; Case C-300/89, Commission v Council (Titanium Dioxide), EU:C:1991:244, para 20. 7 judicial and constitutional authorities, free and fair elections, the alternation of different political parties in power and the recognition of the role of the opposition.37 Non-discrimination is a principle of Union law centrally provided in Articles 19 and 18 TFEU and in Chapter III of the CFR and has been recognized a fundamental unwritten principle by the Court.38 Both CFR and TFEU cover equality between women and men. Equality, on the one hand, refers to individuals and is thus another expression of nondiscrimination.39 On the other hand, it refers to the status of MS ‘before the Treaties’, as it is provided in Article 4(2) TEU. In this sense, it is closely connected to the principle of solidarity, which requires a balance of rights and obligations as consequence of EU membership, as well as to the rule of law.40 Rule of law can be defined as rules that bind the authorities both procedurally and substantively, the latter above all through fundamental rights. In its understanding of the rule of law the EU— and in particular the Commission— is clearly inspired by the ‘checklist’ of the Venice Commission for Democracy through Law of the Council of Europe.41 In the present context, rule of law has the following connotations:42 - - - Whether the rule of law is upheld in each MS. This is the subject of the Commission’s document A New EU Framework to Strengthen the Rule of Law.43 Poland has been the first MS to which this has been applied (see Commentary on Article 7 TEU). The Court has introduced a number of rule of law principles to EU law, which are especially relevant when the EU is directly enforcing its rules, such as proportionality, legitimate expectations, prohibition of retroactive application, and legal certainty.44 The Court has emphasized that the former EEC were ‘a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty’, for which purpose the Treaty European Commission, ‘Agenda 2000—For a Stronger and Wider Union, Bulletin of the EU Supplement 5/97 on the Basis of COM(97) 2000 Final’ [1997] S 5/97, 40. This idea of democracy, when applied to the EU, has been criticized by academic commentators: Philip Allott, ‘European Governance and the Rebranding of Democracy’ [2002] 27 EL Rev 60; Gareth Davies, ‘Social Legitimacy and Purposive Power: The End, the Means and the Consent of the People’ in Dimitry Kochenov, Grainne de Búrca, and Andrew Williams (eds), Europe’s Justice Deficit? (Hart 2015) 259. 38 Case C-300/04, Eman and Sevinger, EU:C:2006:545. 39 See the title of Chapter III CFR. 40 See Commentary on Article 4 TEU, paras [10–15]. 41 Compare the elements of the concept in COM(2014)158 and in Venice Commission Document CDLAD(2016)007-e ‘Rule of Law Checklist’ (adopted in 106th Plenary Session, Venice, 11–12 March 2016), as well as in the earlier version thereof: Venice Commission Document CDL-AD(2011)003rev-e ‘Report on the Rule of Law’ (adopted in 86th Plenary Session, Venice, 25–6 March 2011). 42 See Pech, Rule of Law (see biblio). 43 Commission’s rule of law framework. 44 Case C-90/95, De Compte, EU:C:1999:158, para 35; Case 120/86, Mulder, EU:C:1988:213, para 24; Case 98/78, Racke, EU:C:1979:14, para 20; Case 169/80, Gondrand Freres, EU:C:1981:171, para 17; Case 222/86, Unectef/ Heylens, EU:C:1987:442, para 15; Case T-461/08, Evropaïki Dynamiki/ EIB, EU:T:2011:494, para 118. 37 8 - - established a complete system of legal remedies and procedures. 45 The very existence of effective judicial review designed to ensure compliance with provisions of EU law would be inherent in the existence of the rule of law.46 It can also be seen as a problem of rule of law if EU law is not applied indiscriminately to all MS.47 The Commission has seen rule of law as encompassing suitably qualified judges and guarantees of their independence, and police forces that are adequately paid and trained.48 The rule of Union law in the sense of overall compliance by MS with Union law obligations has also been mentioned in this context, as has been competence creep. 49 This, however, stretches the original meaning of rule of law and confuses it with compliance respectively constitutional overreach/judicial activism. Like equality, solidarity can be understood as a reference to the relations between the MS, which is expressly provided for in Article 4(2) TEU. 50 Alternatively, it refers to solidarity towards and among the Union citizens.51 From a systematic view Article 2 TEU is more likely to refer to the latter. This citizen-centred kind of solidarity is now also covered by Title XX CFR. In case law it has played a role in the following constellations: - As a counter-balance to the fundamental freedoms, allowing MS to justify certain measures otherwise deemed restrictive.52 As an element in the state aid assessment of services of general economic interest.53 As grounds for imposing duties of financial solidarity to citizens able to show some degree of integration into the society.54 Justice has been in the shadow of other, presumably easier concretizeable values and principles until a recent turn in the literature towards attempting to take it seriously, as one 45 Case 294/83, Les Verts, EU:C:1986:166, para 23; Case C-229/05 P, Oçalan, EU:C:2007:32, para 109; Joined Cases C-402/05 P & C-415/05 P, Kadi, EU:C:2008:461, para 281. 46 Case C-362/14, Schrems, EU:C:2015:650, para 95; Case C-455/14 P, EUPM in Bosnia and Herzegovina, EU:C:2016:569, para 41. 47 See Commentary on Article 4 TEU, paras [9] and [12]. 48 Commission, Agenda 2000—For a stronger and wider Union, Bulletin of the EU Supplement 5/97 on the basis of COM(97)2000final. 49 Editorial Comments, ‘The Rule of Law in the Union, the Rule of Union Law and the Rule of Law by the Union: Three interrelated problems’ [2016] 53 CML Rev 597; Justin Lindeboom, 'Why EU Law Claims Supremacy' [2018] 38 OJLS 328. 50 See Commentary on Article 4 TEU, see also Article 3(3) TEU. 51 See Commentary on Article 4 TEU, para [10]. See also Irina Domurath, ‘The Three Dimensions of Solidarity in the EU Legal Order: Limits of the Judicial and Legal Approach’ [2013] 35 European Integration 459. 52 See Malcolm Ross, ‘Solidarity: A New Constitutional Paradigm for the EU?’ in Ross and BorgmannPrebil, Promoting Solidarity (see biblio) 23; Ulla Neergaard, ‘EU Health Care Law in a Constitutional Light: Distribution of Competences, Notions of ‘Solidarity’, and Social Europe’ in Johan van de Gronden et al. (eds), Health Care and EU Law (Springer, 2011) 19. 53 Case T-289/03, BUPA, EU:T:2008:29. See Commentary on Article 14 TFEU. 54 Case C-413/01, Ninni-Orasche, EU:C:2003:600; Case C-209/03, Bidar, EU:C:2005:169, para 60. 9 would expect to treat a principle featuring in the name of the ECJ.55 As a key principle behind determining what is due to whom, justice is positioned at the core of any mature constitutional system. In this sense, the turn of the legal studies in the EU towards a critical engagement also with the justice component of Article 2 TEU is a positive sight. It remains to be seen how the ECJ will build on this principle. The academic literature has largely been very critical of the EU’s engagement with Article 2 TEU values, focusing on the framing of justice and other relevant values squarely in internal market terms.56 Especially the view of EU constitutionalism as an autonomous autopoetic system expressed, inter alia, in Opinion 2/13 has been severely criticized as undermining the core principles of Article 2 TEU— especially the rule of law— rather than furthering compliance with them. 57 Moreover, the supranational politics of austerity resulted in well-founded doubts about the actual role Article 2 TEU plays in the framing of EU law,58 moving the debate about the actual function of this provision beyond the nowclassical democratic deficit debate and the difficulties related to the enforcement of this provision at the MS level (see also Commentary on Article 7 TEU). Editorial comments, ‘The Critical Turn in EU Legal Studies’ [2015] 52 CML Rev 881; Floris de Witte, Justice in the EU (OUP 2015); Kochenov, de Búrca, and Williams, Europe’s Justice Deficit?; Andrew Williams, The Ethos of Europe (CUP 2009); Williams, ‘Taking Values Seriously’ (see biblio). 56 Christian Joerges and Maria Weimer de Matta, ‘A Crisis of Executive Managerialism in the EU: No Alternative?’ in Gráinne de Búrca, Claire Kilpatrick, and Joanne Scott (eds), Critical Perspectives on Global Governance. Liber Amicorum David M Trubek (Hart 2014) 297; Marija Bartl, ‘Internal Market Rationality, Private Law and the Direction of the Union: Resuscitating the Market as the Object of the Political’ [2015] 21 ELJ 572; Gustav Peebles, ‘“A Very Eden of the Innate Rights of Man”? A Marxist Look at the European Union Treaties and Case Law’ [1997] 22 Law and Social Inquiry 581. 57 Opinion 2/13, ECHR II. See Dimitry Kochenov, ‘EU Law Without the Rule of Law. Is the Veneration of Autonomy Worth It?’ [2015] 34 YEL 51; Piet Eeckhout, ‘Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue’ [2015] 38 Fordham Intl LJ 955. 58 Claire Kilpatrick, ‘On the Rule of Law and Economic Emergency: The Degradation of Basic Legal Values in Europe’s Bailouts’ [2015] 35 OJLS 325. 55 10