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» Liberal « und » Autoritär «
¶
AC P
State Sovereignty, National Identity,
and Common Values in the European
Union
» I don’t like the S word. Its birth is illegitimate, and it
has not aged well. The meaning of sovereignty is confused and
its uses are various, some of them unworthy, some
even destructive of human values. «
Louis Henkin
I. Introduction
Sovereignty, national identity and values are concepts that elicit a wide
range of emotions and reactions, from positive to negative and every-
thing in between, and are invoked oen in international and European
discourse, albeit with various meanings and serving widely varying un-
derlying purposes. Especially in recent years, concepts once considered
outdated, relegated to irrelevance or even » dead « are prominently fea-
turing in political, academic and societal debate. Especially within the
European Union, with its high level of economic, legal and political
integration, sovereignty and the scope of exclusive domestic author-
ity has greatly diminished. Instead, there was the ever closer Union of
States with common goals, values, and various competences delegated
to international institutions. Over the last couple of years, however, sov-
ereignty, national identity and a resistance to the idea of » common Eu-
ropean values « have returned with a vengeance, as exemplified by rule
Henkin, That » S« Word: Sovereignty, and Globalization, and Human Rights, Et Ce-
tera, Fordham Law Review / , .
Anne-Carlijn Prickartz
State Sovereignty, National Identity, and Common Values in the
EU
Tagung junger Europarechtler*innen Wien
» Liberal « und » Autoritär «
Anne-Carlijn Prickartz
Tagung junger Europarechtler*innen Wien
¶
of law backsliding in several European Countries and ( the debates sur-
rounding ) Brexit.
What soon became clear is that the people and governments in-
voking sovereignty and national identity not only used wildly varying
conceptions of sovereignty, but oen incorrect and misleading ones.
Statements such as » let’s take back control «
and » we want our sovereignty
back «
show a fundamental misunderstanding of the actual legal con-
cepts of sovereignty, national identity and European common values,
and of the relationship between Member States and the EU more gen-
erally. Such misunderstandings are also present in the context of rule
of law backsliding. In response to the European Parliament voting in
favour of starting an Article -Procedure against Hungary for its alleged
breaches of EU values, Poland issued a statement in support of Hun-
gary. In this statement, the Polish foreign ministry decried the actions
of the European Parliament, stating that » [ e ]very country has its sover-
eign right to make internal reforms it deems appropriate «. In particular,
then, there seem to be some fundamental misconceptions related to
these concepts, on the one hand, and the right and ability of the EU
Member States to determine the shape and content of their domestic
government systems, on the other. In particular, it seems that those
concepts are – baselessly – invoked by EU Member States as a justifica-
tion for non-compliance with their legal obligations under EU law.
This text, then, considers these events and the legal aspects of those
events and the concepts invoked in that context. With the return to
Vote Leave, Taking back control from Brussels, < http: / /www.voteleavetakecontrol.org /
briefing_control.html
> ( accessed . . ); Toby Helm and Nosheen Iqbal, Taking back
control ? Brexit seems to offer exactly the opposite, The Guardian ( January ),
< https: / /ww w.theguardian.com / politics / / jan / / taking-back-control-brexit-
seems-to-offer-exactly-the-opposite
> ( accessed . . ).
Philip Johnston, Do you want sovereignty back ? Then vote to leave the EU, The Tele-
graph ( February ), < https: / /www.telegraph.co.uk / news / newstopics / eureferen
dum / / Do-you-want-sovereignty-back-Then-vote-to-leave-the-EU.html
>
( accessed . . ).
European Parliament, Rule of law in Hungary: Parliament calls on the EU to act, Press
Release ( September ), < http: / /www.europarl.europa.eu / news / en / press-
room / IPR / rule-of-law-in-hungary-parliament-calls-on-the-eu-to-
act
> ( accessed . . ).
Marcin Goclowski, Poland says it will block any EU sanctions against Hungary, Reu-
ters ( September ), < https: / /www.reuters.com / article / us-eu-hungary-poland /
poland-says-it-will-block-any-eu-sanctions-against-hungary-idUSKCNLTND
> ( access
ed . . ).
State Sovereignty, National Identity, and Common Values in the EU
» Liberal « und » Autoritär «
¶
prominence of the concepts of sovereignty, national identity and com-
mon ( European ) values, several ( old ) questions related to their content,
their scope and their ( legal ) significance have also re-arisen. Both these
three concepts and their use in contemporary debate point to one main
issue; namely that of the relationship and the division of competence
between the Member States and the European Union. In this text, the
concepts of sovereignty, national identity and common values are dis-
cussed in the context of this overarching issue.
II. Sovereignty – What’s in a Name ?
Although much has been written on the theories of sovereignty and its
philosophical origins, my references to sovereignty in this presentation
refer to sovereignty as a legal concept.
A. State sovereignty in international law
Specifically, the term sovereignty as used in this text is that of ( State )
sovereignty as a concept of international law. The notion of sovereignty
and of the sovereign State as we know it today is the product of several
centuries of development and contestation. Although some elements
of sovereignty can be traced back all the way to the Roman Empire,
the modern notion of sovereignty and the sovereign State is commonly
traced back to the Peace of Westphalia of . The term » Peace of West-
phalia « is commonly used to denote a series of Peace Treaties signed
in Münster and Osnabrück in that ended the Thirty Years War in
the Holy Roman Empire and the Eighty Years War ( or Dutch War of In-
dependence ) between Spain and the Dutch Republic. The two main
changes that the Peace of Westphalia introduced, and are seen as rep-
Hinsley, Sovereignty ( ) f and f; Jackson, Sovereignty in World Politics: a
Glance at the Conceptual and Historical Landscape, Political Studies XLVII / ,
-; Besson, Sovereignty, Max Planck Encyclopedia of International Law ( ) .
Gross, The Peace of Westphalia, –, American Journal of International Law
/ ; Kitzinger, From the Late Middle Ages to the Peace of Westphalia, in Fass-
bender and Peters ( eds ), The Oxford Handbook of the History of International Law
( ) .
Anne-Carlijn Prickartz
Tagung junger Europarechtler*innen Wien
¶
resenting the move towards a different international system, were the
establishment of the secular authority of territorial rulers as superior
to and independent from religious authority, and the introduction of
the idea of an international community made up of sovereign, juridi-
cally equal States.
The international system of sovereign States that has developed
since the Peace of Westphalia is thus characterized by the idea that the
international community is made up of independent and juridically
equal States with a designated territory, subject to the secular and su-
preme authority of a government, excluding external authority and in-
tervention. One of the main characteristics of the Westphalian system
is the central role of the sovereign State in international law and inter-
national relations. The sovereign State emerged as the principal actor
in the international system, both as the creator and as the subject of
international obligations. Several legal principles associated with the
› Westphalian system « reflect this idea; the principle of State sovereignty
as exclusive territorial and personal authority, the equality of States,
the prohibition of intervention into the internal affairs of other States,
and State consent as the basis ( and prerequisite ) of international legal
obligations.
Watson, The Evolution of International Society ( ) , ; Schreuer, The Waning
of the Sovereign State: Towards a New Paradigm for International Law ? European
Journal of International Law / , ; Croxton, The Peace of Westphalia of
and the Origins of Sovereignty, The International History Review / ; Philpott,
Westphalia, Authority, and International Society, Political Studies XLVII / , ;
Jackson, Sovereignty – Modern: A New Approach to an Outdated Concept, Ameri-
can Journal of International Law / , .
De Brabandere, The Impact of Supranationalism on State Sovereignty from the
Perspective of the Legitimacy of International Organisations in French ( ed ), State-
hood and Self-Determination. Reconciling Tradition and Modernity in Interna-
tional Law ( ) ; Schreuer, EJIL / , –.
Falk, Revisiting Westphalia, Discovering Post-Westphalia, The Journal of Ethics
/ , –; Held, The Changing Structure of International Law: Sovereignty
Transformed ? in Held and McGrew ( eds ), The Global Transformations Reader: An
Introduction to the Globalization Debate ( ) ; Zürn / Binder / Ecker-Ehrhardt,
International Political Authority and Its Politicization, International Theory
/ , –; Gross, AJIL / , –.
State Sovereignty, National Identity, and Common Values in the EU
» Liberal « und » Autoritär «
¶
B. Sovereignty as ( domestic ) authority
As a legal concept, the term sovereignty is used to denote a State’s legal
authority, which is supreme vis-à-vis the State’s population and terri-
tory, and is recognized as such between and by other States. In mod-
ern international law, the sovereignty of a State has three aspects: the
State’s territorial authority, its personal authority, and its independ-
ence. The territorial authority of a State encompasses the power of
a State to exercise supreme authority over persons and objects within
its territory, while personal authority is the power of States to exer-
cise supreme authority over its citizens, within the State’s territory and
abroad. The independence of a State has an internal and an external
aspect: not only does the sovereign State have the freedom of decision
and action within its territory, it also has this independence externally,
in its relations with other States and other international actors. Sole
arbitrator Huber, in the Island of Palmas case of , thus described
sovereignty as follows: » [ s ] overeignty in the relations between States sig-
nifies independence. Independence in regards to a portion of the globe is the
right to exercise therein, to the exclusion of any other State, the functions
of a State «.
As a corollary of their sovereignty and the rights and obligations
emanating therefrom, States have the right to freely choose and develop
their domestic political, economic, social and cultural systems. States
do not have to adopt a certain domestic government model in order to
» qualify « for sovereignty; a capitalist republic can be just as much a sov-
Kelsen, The Principle of Sovereign Equality of States as a Basis for International
Organization, The Yale Law Journal / , ; Krasner, Abiding Sovereignty, In-
ternational Political Science Review / , ; Roth, The Enduring Significance
of State Sovereignty, Florida Law Review / , , ; Jackson, Sovereignty:
Evolution of an Idea ( ) .
Oppenheim, International Law: a Treatise. Volume I ( ) , Jennings and Watts,
Oppenheim’s International Law: Volume I Peace ( ) , f; Cassese, Inter-
national Law ( ) f; Shaw, International Law ( ) f, ff; Jackson, Sov-
ereignty ( ) ; Besson, MPEPIL .
Detter de Lupis, International Law and the Independent State ( ) –; Jen-
nings / Watts, Oppenheim’s International Law ( ) ; Butler, Unravelling Sover-
eignty. Human Rights Actors and the Structure of International Law ( ) –;
Jackson, Sovereignty ( ) –.
The Island of Palmas Case ( United States of America v The Netherlands ) [ ] RIAA
, .
Anne-Carlijn Prickartz
Tagung junger Europarechtler*innen Wien
¶
ereign State as a socialist monarchy or a liberal democracy. This free-
dom of choice enjoyed by sovereign States includes their constitutions,
the way they arrange their governmental structures, and the choice of
their heads of State. Also here, this internal freedom to choose and de-
velop domestic systems is complemented by an external aspect, which
excludes interference in the choice and development of these systems
by other, external actors.
That is not to say, however, that there are no external influences or
regulations applicable to sovereignty and the State’s capacity to act on
the national and international level. Sovereignty does not only mandate
that a State must have consented to an international obligation in order
to be bound by it, it also establishes a State’s capacity to consent to and
thus be bound by international obligations. As the Permanent Court of
Justice declared in its Wimbledon judgment of , » the right of entering
into international engagements is an attribute of sovereignty «, rather than
a restriction. Sovereignty is not, and arguably never has been, abso-
lute. In particular, a State’s sovereignty and the scope of its domestic
authority is limited by the international obligations it has consented
to, including those obligations arising out of the membership of inter-
national organizations. By becoming a party to treaties, or by joining
international organizations, States limit ( the scope of ) their domestic
authority and decision-making capacity, oen by transferring certain
competences to these organizations.
Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v United
States of America ) ( Merits ) [ ] ICJ Rep , para –; Declaration on Princi-
ples of International Law concerning Friendly Relations and Co-operation among
States in Accordance with the Charter of the United Nations, UNGA Res ( XXV )
( October ) UN Doc A / RES / / ; Jackson, Sovereignty ( ) .
Jennings and Watts, Oppenheim’s International Law ( ) ; Cassese, Interna-
tional Law ( ) –.
Case of the SS Wimbledon [ ] Publ PCIJ Series A, No I, . See also Jurisdiction of
the European Danube Commission between Galatz and Braila [ ] Publ PCIJ, Series
B, No , at .
James, The Practice of Sovereign Statehood in Contemporary International Society,
Political Studies XLVII / , ; Brand, Sovereignty: The State, the Individual, and
the International Legal System in the Twenty First Century, Hastings International
and Comparative Law Review / , –.
State Sovereignty, National Identity, and Common Values in the EU
» Liberal « und » Autoritär «
¶
C. Sovereignty and domestic authority in
the European Union
The restrictions placed on a State’s sovereignty and the extent and scope
of its freedom of choice and action thus depend on its international obli-
gations, which, as mentioned above, include its memberships in interna-
tional organizations. By joining the European Union, the Member States
have transferred competences upon the European Union, thereby limit-
ing their ability to act and make decisions in the area of the competences
transferred. In the context of the European Union, this includes many
competences that are directly related to and impact upon the Member
State’s freedom in the area of domestic systems. In fact, certain domes-
tic systems and institutions are part of the criteria for membership that
a prospective Member State must fulfil in order to be eligible for mem-
bership. These systems, included in the so-called » Copenhagen Criteria «
aer the European Council meeting they were defined at, include de-
mocracy, the rule of law, a functioning market economy, and adherence
to the aims of political, economic and monetary union. More generally,
Article Treaty on European Union ( TEU ) stipulates that » any European
State which respects the values referred to in Article and is committed to
promoting them may apply to become a member of the Union «. Member-
ship in the European Union is thus only open to European States which
respect certain values and principles, including – but not limited to – de-
mocracy, the rule of law, respect for human rights, pluralism, and toler-
ance. Although there is no general agreement on whether the values
listed in Article TEU are justiciable and / or can be legally enforced in na-
tional or European courts, it is precisely a Member State’s compliance
European Commission, Conditions for membership, < https: / /ec.europa.eu / neigh-
bourhood-enlargement / policy / conditions-membership_en
> ( accessed . . ).
Treaty on European Union: Consolidated Version of the Treaty on European Union
[ ] OJ C / , Article ( emphasis added ).
Treaty on European Union ( ) Article : » The Union is founded on the values of
respect for human dignit y, 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. « .
Kochenov, On Policing Article TEU Compliance, Polish Yearbook of International
Law XXXIII / ; Kochenov, The Acquis and Its Principles. The Enforcement of the
» Law « versus the Enforcement of » Values « in the EU, in Jakab / Kochenov ( eds ), The
Enforcement of EU Law and Values: Ensuring Member States’ Compliance ( ).
Anne-Carlijn Prickartz
Tagung junger Europarechtler*innen Wien
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with those values that the procedure provided for in Article TEU seeks
to achieve. More generally, by becoming a member of the European Un-
ion, Member States have committed themselves to various limitations on
their freedom to » make internal reforms «, ranging from economic obliga-
tions to social and cultural ones. The construction and development of
the Common Market and its fundamental freedoms, the Customs Un-
ion, and the Economic and Monetary Union have limited Member States’
ability to freely determine – inter alia – their competition laws, state aid
laws, their commercial policy, customs duties, and rules pertaining to
the ( non- ) discrimination of foreign workers, products, services or capi-
tal. Other competences ( partially ) transferred to the EU relate eg to social
policy, culture and cultural heritage, education, and public health.
All in all, as sovereign States, the EU Member States have entered
into an extensive set of international obligations, including several ob-
ligations related to their internal systems, oen limiting their capacity
to undertake internal reforms that would be incompatible with their EU
law obligations. The invocation of » sovereignty « by a Member State as a
justification for internal reforms that are incompatible with EU obliga-
tions might hold a certain symbolic weight in the eyes of that Member
State, it is not a legal defense releasing them from their obligations or
protecting them against the enforcement thereof. In particular in the
context of the EU and the extent of legal and political integration rep-
resented by it, the sovereignty of the Member States and their domestic
freedom of decision-making has been greatly affected.
Besselink, The Bite, the Bark, and the Howl. Article TEU and the Rule of Law Ini-
tiatives, in Jakab / Kochenov ( eds ), The Enforcement of EU Law and Values: Ensuring
Member States’ Compliance ( ); Streinz, Principles and Values in the European
Union, in Hatje / Tichý ( eds ), Liability of Member States for the Violation of Funda-
mental Values of the European Union ( ) –.
Cf Resolution / adopted by the Hungarian Parliament in response to the Ta-
vares Report of the European Parliament: » We, Hungarians, do not want a Europe
any longer where freedom is limited and not widened. We do not want a Europe any
longer where the Greater abuses his power, where national sovereignty is violated and
where the Smaller has to respect the Greater. We have had enough of dictatorship aer
years behind the iron curtain. «; Halmai, How the EU Can and Should Cope with
Illiberal Member States, Quaderni Costituzionali XXXVIII / , –.
Avbelj, Theorizing Sovereignty and European Integration, Ratio Juris / , .
State Sovereignty, National Identity, and Common Values in the EU
» Liberal « und » Autoritär «
¶
III. National Identity
Similar to sovereignty, the concept of » national identity « can have vari-
ous meanings and is used in widely varying contexts. When used in this
text, the term » national identity « should be understood as the concept of
national identity as it is found in the EU and the EU Treaties. First intro-
duced with the Treaty of Maastricht, the current national identity clause
is contained in Article ( ) TEU, which stipulates that » The Union shall re-
spect the equality of Member States before the Treaties as well as their na-
tional identities, inherent in their fundamental structures, political and
constitutional, inclusive of regional and local self-government. It shall re-
spect their essential State functions, including ensuring the territorial in-
tegrity of the State, maintaining law and order and safeguarding national
security. In particular, national security remains the sole responsibility of
each Member State «. Not only are the explicitly mentioned fundamental
political and constitutional structures, including regional and local self-
government, covered by this provision, but also the choice of » systems
of government «
such as monarchy or republicanism, national symbols,
State objectives including democracy and rule of law, and national con-
ceptions of fundamental rights. The clause was first introduced to serve
as a counterweight to the increase in the content and scope of the EU’s
competences starting with the Treaty of Maastricht, and to delimit the
scope of these new and extended EU competences, on the one hand, and
of certain domestic competences and functions on the other.
This was the wording of part of the original provision introduced with the Treaty of
Maastricht: Treaty on European Union [ ] OJEC C / , Article F ( ): » The Union
shall respect the national identities of its Member States, whose systems of government
are founded on the principles of democracy. « .
Von Bogdandy / Schill, Die Achtung der nationalen Identität unter dem reformierten
Unionsvertrag. Zur unionsrechtlichen Rolle nationalen Verfassungsrechts und zur
Überwindung des absoluten Vorrangs, Zeitschri für ausländisches öffentliches
Recht und Völkerrecht / , ; Von Bogdandy / Schill, Overcoming Absolute Pri-
macy: Respect for National Identity under the Lisbon Treaty, Common Market Law
Review / , ; Pernice, Der Schutz nationaler Identität in der Europäischen
Union, Archiv des öffentlichen Rechts / , –; Blanke, Article [ The Re-
lations Between the EU and the Member States ] in Blanke / Mangiameli ( eds ), The
Treaty on European Union. A Commentary ( ) .
Guastaferro, Beyond the Exceptionalism of Constitutional Conflicts: The Ordinary
Functions of the Identity Clause, Yearbook of European Law / , –; Fara-
guna, Constitutional Identity in the EU – A Shield or a Sword ? German Law Journal
/ , –.
Anne-Carlijn Prickartz
Tagung junger Europarechtler*innen Wien
¶
The protection of the national identity of the Member States thus
carves out certain domestic spheres of decision-making that are re-
served for the Member States and to be respected by the European Un-
ion. In terms of the division of competences and authority between the
EU and the MS, Article ( ) TEU represents a binding obligation of the
EU to respect a Member State’s national identity and its domestic im-
plementation. Along with the other principles listed in Article and
TEU, it guides the exercise of the competences by the EU and its institu-
tions: when exercising their competences, the EU’s institutions should
refrain from pursuing objectives that could disproportionally adversely
affect the national identity of a Member State or Member States. As
part of the provisions that govern the relationship and the division of
competences between the EU and the Member States, Article ( ) TEU
has been described as a protector of sovereignty and sovereign rights.
Although it is in principle the domestic institutions that determine
the content of their national identity, as a concept of EU law, however,
it would seem that the Court of Justice of the EU is the organ compe-
tent to rule on its content and scope in the EU legal order. This, in turn,
raises the issue of problems connected to the interpretation of Arti-
cle ( ) TEU generally and the determination of the content of » national
identity « in the respective Member States specifically. The fact that Arti-
cle ( ) TEU is a provision of the EU Treaties and part of EU law points
towards the jurisdiction of the Court of Justice of the EU. It would,
however, be very difficult ( and possibly outside the scope of its com-
Konstadinides, Dealing with Parallel Universes: Antinomies of Sovereignty and the
Protection of National Identity in European Judicial Discourse, Yearbook of Euro-
pean Law / , –.
Guastaferro, Beyond the Exceptionalism of Constitutional Conflicts: The Ordinary
Functions of the Identity Clause, Yearbook of European Law / , ; Cloots,
National Identity in EU Law ( ) –; Konstadinides, Dealing with Parallel
Universes: Antinomies of Sovereignty and the Protection of National Identity in
European Judicial Discourse, Yearbook of European Law / , –.
Guastaferro, Beyond the Exceptionalism of Constitutional Conflicts: The Ordinary
Functions of the Identity Clause, Yearbook of European Law / , –; Van
der Schyff, The Constitutional Relationship between the European Union and its
Member States: The Role of National Identity in Article ( ) TEU, European Law
Review / , –; Cloots, National Identity in EU Law ( ) –.
Besselink, National and Constitutional Identity before and aer Lisbon, Utrecht Law
Review / , –; Pernice, Der Schutz nationaler Identität in der Europäischen
Union, Archiv des öffentlichen Rechts / , ; Van der Schyff, The Constitu-
tional Relationship between the European Union and its Member States: The Role
of National Identity in Article ( ) TEU, European Law Review / , –.
State Sovereignty, National Identity, and Common Values in the EU
» Liberal « und » Autoritär «
¶
petence
) for the Court to determine the exact content of a Member
State’s national and constitutional identity, not to mention the sensitiv-
ity connected to the European Court ( s ) determining such content. This
does not mean that the EU’s Member States have carte blanche to adopt
national measures and / or reforms under the guise of those measures
being protected by their national identity and thus by Article ( ) TEU.
Rather, the Court of Justice will assess the proportionality of a Member
State’s invocation of national identity as justification for the adoption
of certain measures contrary to EU law or for non-compliance with EU
obligations more generally. The available case-law on national identity,
whether explicitly as provided by Article ( ) or more indirectly using
other related concepts such as » public policy «
, is characterized by such
proportionality assessments.
IV. Common Values
The underlying premise of the Article TEU-Procedure, and arguably
of the entire European Project, is the idea that the European Union is
founded on certain values and principles that are shared among and can
be found in the Member States. In the wording of Article TEU, the » Un -
ion 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,
Besselink, National and Constitutional Identity before and aer Lisbon, Utrecht
Law Review / , : › Strictly legally, the ECJ lacks the formal competence to do
so, as adjudicating an alleged infringement of Article ( ) EU would involve an inter-
pretation of national constitutional law. This is incompatible with Article EU ( for-
merly EC ) which limits the jurisdiction of the ECJ to the interpretation of EU law,
which according to continuous standing case law excludes the interpretation of national
law. Also substantively, the ECJ is not in the position to determine what is and what is
not part of the constitutional identit y of a Member State, even if this is to determine
whether EU law remains within the limits of Article ( ) EU.’.
CJEU . . , C- / Omega Spielhallen GmbH, ECLI:EU:C: : para –.
See eg: CJEU . . , C- / Omega Spielhallen GmbH, ECLI:EU:C: : ;
CJEU . . , C- / Commission v Luxembourg, ECLI:EU:C: : ; CJEU
. . , C- / Sayn-Wittgenstein, ECLI:EU:C: : ; CJEU . . ,
C- / Runevič Vardyn, ECLI:EU:C: : ; CJEU . . , C- / Anton Las,
ECLI:EU:C: : .
Anne-Carlijn Prickartz
Tagung junger Europarechtler*innen Wien
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solidarity and equality between women and men prevail «. They are, there-
fore, not only values and principles that form the foundation of the Euro-
pean Union and the European project, but also values and principles that
Member States ought to observe and respect. At first glance, rule of law
backsliding and the introduction of illiberal and anti-democratic laws
and policies in several EU Member States might call the » commonness «
or shared character of these values into question, or at least raise the is-
sue of ( uniform ) interpretation and content of the values listed in Arti-
cle TEU. Even if those values and principles are considered common to
the Member States, it is possible that different Member States interpret
those values ( or aspects thereof ) differently. And to a certain degree, as
discussed above in relation to Article ( ) TEU and the elements of State
authority it » protects «, Member States are free to interpret values such as
» democracy « or » rule of law « in accordance with their domestic traditions
and systems. Their freedom to do so, however, is of course limited by
the existence and content of common European ( or even international )
standards, such as rule of law principles or democratic and fundamen-
tal rights standards. In those cases, the respect for those common values
and standards is not an » internal affair « but part of the larger EU legal
framework, even if enforcement in particular cases may be difficult or
non-existent.
Although Article TEU only lists the values and does not directly
spell out their content within the European legal order, there are several
sources that provide substance and indicate the European ( minimum )
standards required for a Member State to be considered compliant with
EU values. Those standards can be found in the Treaties, in the general
principles of EU law, in the Charter of Fundamental Rights, and in the
case-law of the Court of Justice of the EU. Articles – TEU, for example,
not only provide for democratic principles applicable to the EU and EU
institutions, but also provide for certain rules related to the Member
States, such as the rule that the Heads of State or Government and the
governments representing the Member States in the European Coun-
cil and the Council must be democratically accountable either to their
national Parliaments or to their citizens ( Article ( ) TEU ). Article
Treaty on European Union ( ) Article ( emphasis added ).
Boskovits, Unity and Disunity in the European Union and Respect for Common
Values: Article TEU and Institutional Dilemmas on the Borders of Integration
Law, European Politeia – / , –.
State Sovereignty, National Identity, and Common Values in the EU
» Liberal « und » Autoritär «
¶
TEU provides for the role of the national parliaments in the » good func-
tioning « of the EU, to which they shall » contribute actively «. The prin-
ciple of democracy is also considered part of the general principles of
EU law, where their content is informed not just by international stand-
ards ( eg Article of the International Covenant on Civil and Political
Rights and Article of Protocol to the European Convention on Hu-
man Rights, which both provide for the right to vote in genuine periodic
elections
), but also by the opinions of the European Commission for
Democracy through Law ( the » Venice Commission «). Similarly, several
fundamental rights and principles commonly associated with democ-
racy and the other values listed in Article TEU are listed in and pro-
tected by the Charter of Fundamental Rights, such as the freedom of ex-
pression, including freedom and pluralism of the media ( Article ), the
freedom of assembly and association ( Article ), freedom of the arts
and sciences, including academic freedom ( Article ), various rights
related to equality ( Articles – ) and solidarity ( Articles – ), and
several specific political ( democratic ) rights ( Articles – ). Lastly,
many of the values have been addressed by the Court of Justice of the
European Union, which has identified several aspects and standards
that are part of the values of the EU and must therefore be respected in
the Member States. Concerning the rule of law, for example, the Court
of Justice has long held that principles such as legality, legal certainty,
proportionality, the protection of legitimate expectations, and the ob-
ligation to state reasons are expressions of the rule of law and must
be protected. Another aspect of the rule of law and democracy high-
lighted by the Court in recent years is that of the independence of the
International Covenant on Civil and Political Rights ( adopted December ,
in force March ) UNTS ; Protocol to the Convention for the Protec-
tion of Human Rights and Fundamental Freedoms ( adopted March , entry
into force May ) ETS .
Haratsch, Democracy – A Value common to the Member States of the European
Union, Eur Beihei , –.
Several of the aspects mentioned here were listed in the Report that preceded the
activation of the Article TEU procedure against Hungary by the European Parlia-
ment: European Parliament – Committee on Civil Liberties, Justice and Home Affairs,
Report on a proposal calling on the Council to determine, pursuant to Article ( )
of the Treaty on European Union, the existence of a clear risk of a serious breach
by Hungary of the values on which the Union is founded, ( / [ INL ] ).
Von Danwitz, Values and the Rule of Law: Foundations of the European Union – An
inside Perspective from the ECJ, Potchefstroom Electronic Law Journal / ,
–.
Anne-Carlijn Prickartz
Tagung junger Europarechtler*innen Wien
¶
judiciary, which is under threat in several Member States. Here, the
Court has made clear that the concept of judicial independence as con-
tained in Article TEU is an expression of the rule of law ( as a com-
mon value of the EU ), and presupposes » in particular, that the body
concerned exercises its judicial functions wholly autonomously, with-
out being subject to any hierarchical constraint or subordinated to any
other body and without taking orders or instructions from any source
whatsoever, and that it is thus protected against external interventions
or pressure liable to impair the independent judgment of its members
and to influence their decisions «.
All this is to show that, although one could debate whether there is
EU-wide agreement on the substantive content of the common values of
Article TEU, there are extensive legal rules, principles and judgments
that provide, in detail, the content of those principles within the Eu-
ropean legal order to be respected and complied with by the Member
States. Also here, then, Member States are not free to consider ( com-
pliance with ) those values part of their internal affairs, where they are
free to make decisions and undertake reforms however they see fit, but
rather have committed themselves to those values as part of binding
( and oen supreme ) EU law.
V. Conclusion
The concepts discussed in this text are concepts that, in recent years,
have increasingly featured in public discussion and in connection to
CJEU . . , C- / Associaçao Sindical dos Juízes Portugueses v Tribunal de Contas,
ECLI:EU:C: : ; CJEU . . , C- / Commission v Poland ( Indépendance
de la Court supreme ) ( Order of the Vice-President ), ECLI:EU:C: : ; Von Dan-
witz, Values and the Rule of Law: Foundations of the European Union – An inside
Perspective from the ECJ, Potchefstroom Electronic Law Journal / , –; Ko-
vács / Scheppele, The fragility of an independent judiciary: Lessons from Hungary
and Poland – and the European Union, Communist and Post-Communist Studies
/ ; Halmai, How the EU Can and Should Cope with Illiberal Member States,
Quaderni Costituzionali XXXVIII / , –.
CJEU . . , C- / Associaçao Sindical dos Juízes Portugueses v Tribunal de Con-
tas, ECLI:EU:C: : para ; Von Danwitz, Values and the Rule of Law: Founda-
tions of the European Union – An inside Perspective from the ECJ, Potchefstroom
Electronic Law Journal / , –.
State Sovereignty, National Identity, and Common Values in the EU
» Liberal « und » Autoritär «
¶
recent developments within the EU. Although legal concepts with a dis-
tinct legal meaning, they have been used not only in support of various
EU-sceptic developments and opinions, but also to explain or justify
non-compliance with EU law and EU membership obligations. In dis-
cussing these topics as legal concepts more generally, and in the context
of their use and misuse in current debates and events, I have attempted
to shed some light on these topics and their content, and on the ( in ) va-
lidity of their invocation in various contexts.
Importantly, it is necessary to distinguish between any symbolic or
political meaning that is given to invocations of sovereignty, national
identity, and common or / vs national values, on the one hand, and their
role and content as concepts of international and European law on the
other hand. It may be possible to invoke national identity ( in the sense
of Article ( ) TEU ) or certain national understandings of European
values as justification for national measures or omissions, but – logi-
cally – only within the parameters set by European law and obligations.
In specific cases and concerning specific measures or conduct, an in-
dividual analysis will be necessary to determine those parameters and,
accordingly, to determine which » internal reforms « a Member State can
indeed undertake. For States that are members of the EU, it is within
that context that concepts such as sovereignty, national identity, and
common values can meaningfully be invoked, and it is their content
and scope in the European legal order that will determine the outcome
of such invocation.