University of Groningen Faculty of Law Research Paper Series. No. 19/2013. This paper can be downloaded without charge from the. Social Science Research ...
University of Groningen Faculty of Law
The Issue of Values
Dimitry Kochenov
September 2013
University of Groningen Faculty of Law Research Paper Series No. 19/2013 This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection Available at SSRN: http://ssrn.com/abstract=2295154
Electronic copy available at: http://ssrn.com/abstract=2295154
The Issue of Values Dimitry Kochenov*
This is a preliminary draft of a chapter to appear in Roman Petrov and Peter Van Elsuwege (eds.), The Application of EU Law in the Eastern Neighbourhood of the European Union, London: Routledge, 2013. Please consult the book for the final version.
Abstract: This contribution provides a brief overview of the EU’s engagement with values both internally and externally, to illustrate the problematic nature of a number of deeply-held assumptions which inform the EU’s engagement with the Member States and with the third countries alike. As the analysis of the recent legal-political developments demonstrated, we are only witnessing the first timid attempts to move away from these assumptions. The introduction of Article 7 TEU into the Treaties, treating the Rui Tavares Report seriously, as well as the spirit and the letter of the draft Association Agreement with Ukraine all point in this direction. Essentially, in dealing with values no coherent distinction can be made between the EU on the ‘inside’ as opposed to the third countries: problems can equally arise in both spheres. This makes it clear that the acquis as such is not about the values and should be treated accordingly. Its promotion in the neighbourhood is not necessarily capable of doing the trick of democratizing EU’s partners or ensuring that they adhere to the rule of law. In other words, the rules that the EU promotes are not necessarily about values and should be treated as such. This conclusion is of essential importance also for the procedural side of the EU’s engagement with the neighbours, allowing the questioning of the reported successes of the principle of conditionality. Taking the wide-spread misconceptions into account is of essential importance both when designing the EU’s engagement with the neighbourhood as well as in the context of EU’s internal reform.
*
Professor of EU Constitutional Law, University of Groningen. The author is overwhelmingly grateful to the editors for the help, patience and understanding. The drafts of this chapter were presented at workshops in Ghent in June 2012 and Kiev in April 2013.
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Electronic copy available at: http://ssrn.com/abstract=2295154
1. Introduction
The aim of this chapter is to provide a brief investigation of the connection linking the acquis and the values of the Union internally and also in the context of the EU’s preaccession strategy1 and external action.2 Such exercise sheds light on widely-shared assumptions behind the promotion of the acquis in third countries and, in particular, in the EU’s periphery. Those assumptions are not always conductive to the successful attainment of the EU’s external action objectives as laid down in the Treaties and policy documents. The chapter flashes out the inconsistent reasoning behind the belief of a direct correlation between rules and values in the context of supranational integration, drawing attention to the importance of the latter.3 It is submitted that any export of the acquis should be underpinned by more than just an urge of norm-export. The key importance of EU values as reflected in Article 2 TEU, which the EU is bound to promote in the neighbourhood4 is to be constantly kept in mind, occupying the key place in the EU’s engagement with its neighbours. Once the missing correlation between the three high points of the triangle of values, rules (the acquis) and conditionality – as a key way of promoting the rules – enters the picture, a clear need to reform the mode of EU’s engagement with the neighbourhood becomes obvious: we could be overestimating the importance of rules export thereby dangerously neglecting the valueside of the EU’s emergence as an important player in the world of international law and policy.5 1
M. Maresceau, ‘Pre-accession’, in: M. Cremona (ed.), The Enlargement of the European Union, Oxford: OUP, 2003, p. 14. 2
M. Cremona, ‘Values in EU Foreign Policy’, in: M. Evans and P. Koutrakos (ed.), Beyond the Established Legal Orders: Policy Interconnections between the EU and the Rest of the World, Oxford: Hart Publishing, 2011, p. 275. 3
This is done without focusing on the contents of the values as such, which has also been criticized in the literature. See, e.g., P. Leino and R. Petrov, ‘Between “Common Values” and Competing Universals’, European Law Journal, 15, 2009, p. 654. 4
Art. 8 TEU. See for an analysis the chapter by Christophe Hillion in this volume.
5
See, in general, D. Kochenov and F. Amtenbrink (eds.), European Union’s Shaping of the International Legal Order, Cambridge: CUP, 2013.
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Electronic copy available at: http://ssrn.com/abstract=2295154
The argument progresses in eight steps. The next section traces the importance of Article 2 TEU values in the framework of EU’s architecture, pleading for a more attentive attitude vis-à-vis the values in a context where the considerations of justice underpinning the EU are questioned6 and the ability of the current acquis to ensure adherence to the values is put in doubt7 (2). The chapter proceeds to outline the distinction between the approaches to values ‘inside’ the EU as opposed to the ‘outside’, flashing our untenable presumptions about the inherently values-inspired nature of the Member States held until very recently by the EU and the Member States alike (3). The conclusion from the initial sections is the lack of any automatic correlation between values and rules in the context of EU law (4). This fact is of essential importance for the promotion of values, not merely the export of the law is of essential importance for the Union. To demonstrate this, the chapter turns to the role played by values in the context of the EU’s external action, including the context of the preparation of enlargements (5). In the course of doing this, the chapter questions a number of deeply-held assumptions undermining the EU’s external action, making a distinction between its substantive – mostly focusing on the promotion of the acquis – and the procedural aspects – mostly focusing on the deployment of the principle of conditionality. (6). Drawing on the preaccession strategy and also on the ENP context, the dual nature of conditionality is outlined. A distinction is made between acquis-related and non-acquis-related conditionality. This is done to demonstrate that from the very first years of the deployment of the principle the EU was acutely aware of the fact that the acquis is a poor guarantor of EU values, which also explains the drafting of the Copenhagen criteria in the first place. The failure of the non-acquis-related conditionality as an instrument of values promotion is particularly telling when assessed against the success of the other facet of the same principle, i.e. conditionality as a rules promoter (7). The following section is dedicated to the assessment whether the EU learnt from the lessons from its past engagement with the outside world, coming to an uneasy conclusion that more could be done in order to dismantle the rigid structure of unfounded presumptions which 6
G. de Búrca, D. Kochenov, A.T. Williams (eds.), Europe’s Justice Deficit?, Oxford: Hart Publishing, 2014. 7
J.-W. Müller, Safeguarding Democracy inside the EU: Brussels and the Future of Liberal Order, Washington DC: Transatlantic Academy, 2013.
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are richly applied in the context of value promotion since the pre-accession time (8). The recent association agreement with Ukraine confirms the fears expressed in the chapter: while overstating the importance of the promotion of concrete rules, it pays relatively little attention to the values on which the Union founded (9). The conclusion briefly restates the main findings of the chapter: rules are not values; promoting the transposition of the acquis and value export do not necessarily correlate with each other. More attention to value- (as opposed to rules-) export is absolutely necessary, should the Union be serious about building a ‘ring of friends’ in the neighbourhood.
2. Values in the EU legal system: a reality check
The European Union is not going through the easiest period in its history at the moment. Crucially, this is not uniquely related to the problems experienced by the Economic and Monetary Union (EMU) and the euro, the single currency.8 The crisis we are facing also concerns the national interpretation of – and leaving up to – the values9 on which the Union is reportedly built.10 To put it differently: while the Union has a tradition of deference vis-à-vis the Herren der Verträge in the area of values as mentioned in Article 2 TEU (which include, most importantly, democracy, the rule of law, and human 8
F. Amtenbrink, ‘Europe in Times of Economic Crisis: Bringing Europe's Citizens Closer to One Another?’, in: M. Dougan, N.Nic Shuibhne and E. Spaventa (eds.), Empowerment and Disempowerment of the European Citizens, Oxford: Hart Publishing, 2012, p. 171; D. Adamski, ‘Europe’s (Misguided) Constitution of Economic Prosperity’, Common Market Law Review 50, 2013, p. 47. 9
On values in the context of EU integration see, most importantly, A. Williams, ‘Taking Values Seriously: Towards a Philosophy of EU Law’, Oxford Journal of Legal Studies, 20, 2009, p. 549. J.H.H. Weiler, ‘On the Distinction between Values and Virtues in the Process of European Integration’ (unpublished). On the particular context of EU’s external relations: Cremona (2011), op cit. p. 275; S. Lucarelli, ‘Values, Principles, Identity and European Union Foreign Policy’, in: S. Lucarelli and I. Manners (eds.), Values and Principles in European Union Foreign Policy, London: Routledge, 2006); E. Herlin-Karnell, ‘EU Values and the Shaping of the International Context’, in: D. Kochenov and F. Amtenbrink (eds.), European Union’s Shaping of the International Legal Order, Cambridge: CUP, 2013. 10
For a general analysis see Müller (2013), op. cit.; G. Halmai, ‘From the “Rule of Law Revolution” to the Constitutional Couter-Revolution in Hungary’, European Yearbook of Human Rights, 2012, p. 54; M. Bánkuti, G. Halmai and K.L. Scheppele, ‘Hungary’s Illiberal Turn: Dismantling the Constitution’, Journal of Democracy, 21, 2012, p. 138.
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rights protection) the starting assumptions on which the Union has been built and which are necessarily reflected in this tradition do not anymore hold true for all the Member States, necessarily affecting the Union’s self-vision internally11 – and also externally,12 its raison d’être.13 Traditionally it has been like this that at the core of the Union lay a firm belief that all the Member States fundamentally and unavoidably adhere to Article 2 TEU essentials, allowing the Union to practice equality between the Member States,14 building the Internal Market and key policy areas on the presumption of mutual recognition15 and leaving the organisation of the constitutional matters as well as the administrative coiné16 to the national level of the law.17 Any kind of retaliation between the Member States in cases of non-compliance was ruled out entirely at least since Bosch18 no matter how badly some of the Member States would behave. All this led to a gradual emergence of mature federal structures19 with a division of competences leaning
11
The very idea of constitutionalism in Europe is moving towards more safeguards and enforcement: W. Sadurski, Constitutionalism and the Enlargement of Europe, Oxford: OUP, 2012. 12
G. de Búrca, ‘EU External Relations: The Governance Mode of Foreign Policy’, in: B. Van Vooren, S. Blockmans and J. Wouters (eds.), The EU’s Role in Global Governance: The Legal Dimension, Oxford: OUP, 2013. 13
On the special role in the world as an indispensable part of the EU’s raison d’être see G. de Búrca, ‘Europe’s raison d’être’, in: D. Kochenov and F. Amtenbrink (eds.), European Union’s Shaping of the International Legal Order, Cambridge: CUP, 2013. 14
Art. 4(2) TEU.
15
Case 8/74, Procureur du Roi v. Benoît and Gustave Dassonville [1974] ECR 837.
16
National procedural autonomy has clear limits: Case 33/76, Rewe Zentralfinanz eG & Rewe-Zentral AG v. Landwirtschaftskammer für das Saarland [1976] ECR 1989; Case 45/76, Comet BV v. Productschap voor Siergewassen [1976] ECR 2043. 17
For a clear analysis of the division of competences see e.g. A. von Bogdandy and J. Bast, ‘The European Union’s Vertical Order of Competences: The Current Law and Proposals for Reform’, Common Market Law Review, 39, 2002, p. 227. 18
Case 13/61, Kledingverkoopbedrijf de Geus en Uitdenbogerd v. Robert Bosch GmbH and Maatschappij tot voortzetting van de zaken der Firma Willem van Rijn [1962] ECR 45 (English special edition). 19
K. Lenaerts and K. Gutman, ‘“Federal Common Law” in the European Union’, American Journal of Comparative Law, 54, 2006, p. 1. See also R. Schütze, ‘On “Federal” Ground: The European Union as an (Inter)National Phenomenon’, Common Market Law Review, 46, 2006, p. 1069; J.-C. Piris, ‘L’Union Européenne: vers une nouvelle forme de fédéralisme?’, Revue trimestrielle de droit européen, 41, 2005, p. 243.
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towards the Member States as the main holders of constitutional and human rights responsibility.20 The situation described continued unchanged for decades – remaining constant until very recently. Indeed, the Member States have even been successful in blackmailing the Union to adhere to these norms itself:21 the whole story of the national constitutional courts’ defiance is nothing else but a reminder that the Member States, themselves democratic and respecting human rights, could not accept that the Union would violate such standards, triggering a fundamental change in the case-law of the Court:22 Stork is indeed bad law23 and the intentions of those who brought the fundamental change about, ultimately, do not matter.24 The strong tradition of human rights protection at the EU level is thus a result of Member States’ pressure aiming to ensure that the values of the Member States and those of the Union are indeed shared. The moralité of this story is that in advancing its rules – the acquis – and striving to achieve its goals, the Union is always bound by the fundamental values on which it is built and on which the Member States rest, as now reflected in Article 2 TEU, but also in the Charter of Fundamental Rights of the European Union.25 Yet, following an array
20
This inclination is most clearly observable in Art. 51 of the Charter of Fundamental Rights of the European Union. For the problematic nature for this provision see e.g. M. van den Brink, ‘EU Citizenship and EU Fundamental Rights: Taking EU Citizenship Rights Seriously?’, Legal Issues of Economic Integration, 39, 2012, p. 273. 21
See e.g. M. Shapiro, ‘The European Court of Justice’, in: P. Craig and G. de Búrca (eds.), The Evolution of EU Law, Oxford: OUP, 1999, p. 321; G. Davies, ‘Constitutional Disagreement in Europe: In Search of Legal Pluralism’, Eric Stein Working Papers (Prague) No. 1/2010; B. Davis, Resisting the European Court of Justice, Cambridge: CUP, 2012. 22
J.H.H. Weiler and N.J.S. Lockhart, ‘“Taking Rights Seriously” Seriously: The European Court of Justice and Its Fundamental Rights Jurisprudence’, Common Market Law Review, 32, 1995, p. 51 (Part I) and p. 579 (Part II). 23
Case 1/58, Friedrich Stork & Cie v. High Authority of the European Coal and Steel Community [1959] ECR 17 (English special edition). For the whole story see, e.g., B. de Witte, ‘The Past and Future Role of the European Court of Justice in the Protection of Human Rights’, in: P. Alston (ed.), The EU and Human Rigths, Oxford: OUP, 1999, p. 864. 24
Weiler and Lockhart (1995), op. cit., p. 71.
25
K. Lenaerts, ‘Exploring the Limits of the EU Charter of Fundamental Rights’, European Constitutional Law Review, 8, 2012, p. 375; A. Knook, ‘The Court, the Charter, and the Vertical Division of Powers in the European Union’, Common Market Law Review, 42, 2005, p. 367.
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of relatively recent developments first started with the alarm call of FPÖ in Austria,26 it is becoming clear that the constitutional system of the EU is not as robust and functional as it seemed. This was further confirmed in M.S.S.27 where the European Court of Human Rights (ECtHR) has seemingly stated the obvious: not all the Member States de facto adhere to the values of Article 2 TEU. Moreover, crucially, presuming that the contrary were true, thus just routinely applying EU law is wrong, said the ECtHR: Belgium was found in breach of the Convention for sending an asylum seeker who first entered the EU through Greece back to that country, as EU law required. In other words, faithful application of EU law potentially violates the provisions of the European Convention on Human Rights (ECHR) in some cases. Core presumptions informing the essence of what the Union is built upon can thus be in contradiction with Article 2 TEU and also violate the ECHR. Lately, still more perfectly expected discoveries concerning the essence of the EU and its Member States have been made: Greek asylum policy is not a far-fetched exception. Discoveries of profound inconsistencies between the EU’s official story and the actual modalities of its functioning threaten to become the rule, pointing to the unsustainability of the founding assumptions behind the EU legal order.28 So while Romania and Bulgaria are captured by corruption,29 in Hungary the ruling Fidesz party turned constitutional politics into the politics of the day-to-day30 – as has been openly (and most exceptionally) stated by the Venice Commission.31 More and more Member States put to 26
See e.g. the Wise Men Report: M. Ahtissaari, J. Frowein, and M. Orejta, ‘Report on the Austrian Government’s Commitment to the Common European Values, in particular concerning the Rights of Refugees and Immigrants, and the Evolution of the Political Nature of the FPÖ’, International Legal Materials, 40, 2001, p. 102. 27
M.S.S. v. Belgium and Greece [2011] App. No. 30696/09.
28
D. Kochenov ‘The EU in Its Most Serious Crisis Ever (and That’s Not the Euro Crisis)’, Verfassungsblog, 13 June 2013. 29
V.I. Ganev, ‘Post-Accession Hooliganism: Democratic Governance in Bulgaria and Romania after 2007’, East European Politics and Society, 27, 2013, p. 1. 30
E.g. Bánkuti, Halmai and Scheppele (2012), op. cit., p. 138. A number of high-profile reports criticising the Hungarian situation has been released by NGOs and international organisations. See, most importantly, European Commission for Democracy through Law (Venice Commission), Opinion on the Fourth Amendment of the Fundamental Law of Hungary (Adopted by the Venice Commission at its 95th Plenary Session), Venice, 14–15 June 2013. 31
Venice Commission (2013), op. cit., p. 30.
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test, if not question the letter and the spirit of Article 2 TEU and the very idea of the Union as an organisation based on the values of democracy and the rule of law.
3. ‘Inside’ versus the ‘outside’
Crucially, the only conclusion to be drawn from these developments is that a number of presumptions informing the essential self-perception of the Union and lying at the core of its law simply do not hold. This discovery is reflected in the mixed and diverse responses of the Union to the problems identified. So the responses to the recent problematic developments in Greece, Hungary, Romania, Austria and other Member States have been anything but uniform and coherent. Most importantly, however, the value crisis, which EU law is now facing, was expected, at least in part, quite long ago. Indeed, the only difference between what was feared and what is actually happening is that the Union’s leaders almost uniquely mistrusted only the “outside” – all those postCommunist and post-totalitarian states – believing, probably sincerely, that the “inside” – the actual Member States – was secure and would not be facing the problems similar to those plaguing the third countries as well as candidate and acceding states.32 The Copenhagen criteria of 199333 were a rational response to this fear: first subject those willing to accede to clear binding conditions to be fulfilled in order to ensure that they are good enough and will not cause problems. The recent Rui Tavares Report34 thus rounds up the circle: building on Jan-Werner Müller’s idea,35 the European Parliament
32
On this terminology and the history of this misleading perception see D. Kochenov, EU Enlargement and the Failure of Conditionality, The Hague: Kluwer Law International, 2008, pp. 9–62. 33
Bull. EC 6-1993, point I.13. For analyses see, e.g., C. Hillion, ‘The Copenhagen Criteria and Their Progeny’, in: C. Hillion (ed.), EU Enlargement: A Legal Approach, Oxford: Hart Publishing, 2004, p. 19; D. Kochenov, ‘Behind the Copenhagen Façade. The Meaning and Structure of the Copenhagen Political Criterion of Democracy and the Rule of Law’, European Integration online Papers, 8 (10), 2004, p. 1. 34
European Parliament Committee on Civil Liberties, Justice and Home Affairs, Report on the Situation of Fundamental Rights: Standards and Practices in Hungary (Pursuant to the European Parliament Resolution of 16 February 2012) (2012/2130(INI)), 2013. Rapporteur: Rui Tavares (Tavares Report). 35
Müller (2013), op. cit., pp. 24–25.
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wants to see the creation of a ‘Copenhagen Commission’ to monitor the actual Member States’ compliance with the values.36 It has thus been conceded at the highest level that the fundamental presumption of a radical difference, values-wise, between the ‘inside’ and the ‘outside’ in the context of European integration simply does not hold. The proposal to convene a ‘Copenhagen Commission’ is the most recent in a queue of incoherent responses to this newly-discovered reality, which also includes Article 7 TEU37 and, crucially, the case of N.S.,38 where the Court of Justice pretends not to notice any of the outstanding problems. We are told that EU law, even if it is based on the assumption that all the Member States are “good enough” in the face of an obvious reality that it is not quite true,39 should prefer legal fiction to reality.40 At the essence of the Tavares proposal is a realization that the distinction between the “inside” and the “outside” of the Union, involving the presumption of automatic and irreversible adherence to the values of Article 2 TEU by the “inside”, is simply unfounded. In this context, the courage of admitting this – which the Member States also possess, to which the inclusion of Article 7 TEU into the Treaty system testifies – could be the first step of engaging with the outstanding problems. It can only provoke surprise that the ECJ is still playing with fire by refusing to see the missing link between the presumption it entertains and real life.
36
Tavares (2013), op. cit., para. 68.
37
W. Sadurski, ‘Adding Bite to a Bark: The History of Article 7, EU Enlargement, and Jörg Haider’, Columbia Journal of European Law, 16, 2010, p. 385. 38
Joined cases C-411/10 N.S. v. Secretary of State for the Home Department and C-493/10 A.S.M. et al. v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform [2011] OJ C274/21. 39
As exposed with such abundant clarity by the ECt.HR in M.S.S.
40
N.S., op.cit., paras 78–83.
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4. Values versus rules
All these developments are of crucial importance for the future of the Union. They demonstrate the importance of values both internally and externally and illustrate the essential difference between values on the one hand and rules on the other. The Union is now starting to discover – hard way, which is regrettable – that its law (as well as policies) has always actually been about rules, not values, with the correlation between the two not always being clear. This can be illustrated at a number of different levels, ranging from the handling of the essential value of peace41 to the missing ethical explanations behind the outline of the scope ratione materiae of EU law.42 The latter is complicated by the fact that otherwise non-existent borders between the Member States, which the Internal Market pledged to abolish43 came to play the essential role in assigning jurisdiction: an approach causing a lot of quite obvious suffering and confusion.44 As Andrew Williams clarified, the EU unquestionably failed to emerge as an actor of peace, although officially cherishing it as a value on the ‘inside’, i.e. in Tervuren, not in Srebrenica.45 Similarly, although expecting such developments would be justifiable, the EU failed to emerge as an international actor of distributive justice.46 Moreover, when the core ethical issues arise in front of the Court of Justice, they are solved with references to the Treaty text, which is usually interpreted strictly with the (internal) market logic in mind.47 In essence, this means only one thing: the EU is an
41
A. Williams, The Ethos of Europe, Cambridge: CUP, 2009, pp. 22–64.
42
D. Kochenov, ‘Citizenship without Respect’, Jean Monnet Working Paper (NYU Law School) No. 8/10, 2010. 43
Art. 3(3) TEU.
44
Kochenov (2010), op. cit.
45
Williams (2009 ‘Ethos’), pp. 22–64.
46
A. Williams, ‘The EU, Interim Global Justice and the International Legal Order’, in D. Kochenov and F. Amtenbrink (eds.), European Union’s Shaping of the International Legal Order, Cambridge: CUP, 2013. 47
A. Williams, ‘Taking Values Seriously: Towards a Philosophy of EU Law’, Oxford Journal of Legal Studies, 20, 2009, p. 549; D. Kochenov, ‘The Citizenship Paradigm’, Cambridge Yearbook of European Legal Studies, 15, 2012–2013.
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extremely weak justice actor, as the rules it promotes, respects, and enforces are not necessarily informed by the values underlying its ethical position.48 The idea of the Internal Market prevails and is, as such, treated as a value commensurable with other concerns.49 It follows that the connection between the EU’s acquis on the one hand and the values which the EU officially espouses on the other is all but direct. EU’s rules are not about EU’s values. To put it differently, the acquis is not necessarily about the values on which the Union is founded. Moreover, the acquis cannot be taken as a guarantor of such values’ enforcement and promotion. While numerous explanations of the reasons behind this reality can be offered, the basic finding itself seems to be hardly questionable. In the words of Joseph Weiler, the market now stands alone, “without a mantle of ideals”.50 And those ideals, to remind the readers, were peace, taming the state (or supranationalism51), and better life for all. The Internal Market, chosen as a tool to get us there, de facto replaced these quite effectively – this notwithstanding the recent nods, however persuasive, in the direction of EU citizenship as an alternative tool.52 Given the justice deficit in the EU as well as the clear difference and the missing immediate correlation between rules and values, it is difficult to claim that the acquis, in essence, is about the achievement of the values of Article 2 TEU. Numerous examples invoked above ranging from the Hungarian constitutional coup by legal means branded by the Fundamental Rights Agency of the EU as a ‘constitutional crisis’53 to the EMU’s
48
G. de Búrca, D. Kochenov and A. Williams (eds.), Europe’s Justice Deficit?, Oxford: Hart Publishing, 2013. 49
Kochenov (2012–2013), op. cit.; D. Kochenov and R. Plender, ‘EU Citizenship: From and Incipient Form to an Incipient Substance?’, European Law Review, 37, 2012, p. 369. 50
J.H.H. Weiler, ‘Bread and Circus: The State of the European Union’, Columbia Journal of European Law, 4, 1998, pp. 223, 231. 51
A. Somek, ‘On Supranationality’, European Integration online Papers, 5 (3), 2010, p. 1. For the external dimension see D. Kochenov and F. Amtenbrink, ‘Introduction: The Active Paradigm for the Study of EU’s Place in the World’, in: D. Kochenov and F. Amtenbrink (eds.), European Union’s Shaping of the International Legal Order, Cambridge: CUP, 2013, p. 1. 52
Kochenov (2012–2013), op. cit.
53
Fundamental Rights Agency of the European Union, Fundamental Rights: Challenges and Achievements in 2012, Vienna: FRA, 2013, pp. 22–25.
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troubles with far-reaching effects on those very values54 – democracy, the rule of law etc. in troubled countries like Greece, Portugal, Cyprus and many others – stand as clear illustrations of this simple point. To claim that the acquis is a promoter of values is misleading. Values are one thing. The acquis is a different thing.
5. EU values and the external action
As has already been mentioned, the disconnect between values and norms has been quite obvious to the drafters of the Copenhagen criteria in the nineties: should a presumption that the acquis is a guarantor of values (both implicitly and explicitly – but wrongly of course – adopted when dealing with the internal EU context) be held true in the context of the EU’s enlargements, no Copenhagen criteria would be necessary at all. Why bother if we have the acquis? With the adoption of the Copenhagen criteria, however, the difference was made crystal clear: the EU ensures that the values are respected by those who are not yet in, while presuming that a similar mechanism is not necessary for the actual Member States. A lot has been written about this discrepancy,55 but no clear illustration as to why it is deadly important, not merely a curious academic observation, could be cited before Hungary happened. Hence the Copenhagen Commission proposal (among others56): let us enforce the values internally, the acquis is not about values. Past the enlargement station and the EU (pre-)accession law the consequences of this internal/external disconnect is overwhelmingly important. It has to do with what is actually expected of the EU’s engagement with the wider world, in particular with its immediate neighbours.57 The goal is quite clear: ‘a ring of friends’.58 Treaty provisions 54
See, e.g., B. de Witte, A. Héritier, and A.H. Trechsel (eds.), The Euro Crisis and the State of European Democracy, Florence, EUI, 2013. 55
See, e.g., the literature cited in Kochenov (2008 ‘EU Enlargement’), op. cit.
56
See a scholarly exchange about Jan-Werner Müller’s proposal in the Verfassungblog, Spring 2013.
57
A special provision is now dedicated to the relations with the EU’s neighbourhood: Article 8 TEU. For analyses see e.g. the chapter by Christophe Hillion in this volume; P. Van Elsuwege and R. Petrov, ‘Towards a New Generation of Agreements with the Neighbouring Countries of the European Union? Scope, Objectives and Potential Application of Article TEU’, European Law Review, 36, 2011, p. 688.
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supply further details: ‘the Union’s aim is to promote peace, its values and the wellbeing of its peoples’.59 An answer to the question of what this all is actually about – ensuring that ‘friends’ use our law or the law similar to our law (as the first option), or ensuring that their values are similar to what Article 2 TEU describes (as the second option) – is so easy that the question itself could seem superficial. Having friends does not mean they start pealing the egg on the same side as you60 or follow the same naming convention for their children. It is about the shared understanding – at least a very basic one – of the right and wrong. Not rules, but values. It is crucial to realize in this context that by simply proclaiming that the values are shared between the EU and particular third countries – the ENP partners for instance61 – the EU does not solve, but rather exacerbates the problematic element behind its task of the promotion of values in the world, thus undermining the effectiveness of the EU’s external engagement.
6. Questionable assumptions behind EU’s external engagement
Once the EU’s external engagement is approached from the perspective of making a clear distinction between the values on the one hand and the acquis on the other, a word of caution is necessarily due in the context of the EU’s desires to export the acquis in order to achieve the goals set for the Eastern Partnership, the ENP and also EU’s external action as such. This is not to say that replicating the EU’s obvious successes in a number of areas is a wrong way to take for the countries willing to be successful in the
58
For the analysis of the emergence of the term and the ideology behind it see e.g. D. Kochenov, ‘The Eastern Partnership, The Union for the Mediterranean and the Remaining Need to Do Something with the ENP’, CRCEES Working Papers (Glasgow) WP2009/01, 2009. 59
Art. 3(1) TEU.
60
Which should not be used as a pretext to go to war either.
61
See, e.g., Kochenov (2008 ‘EU Enlargement’), op. cit., pp. 10–12 (and the literature cited therein).
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course of democratic and economic reforms.62 It is about the essential presumptions informing the exercise of the export of the acquis as such. These are quite clear and have two facets: a procedural and a substantive one. The main problematic assumption on the substantive side consists of a widelyheld belief, seemingly embraced by the Member States and the Union alike, that, firstly, the acquis is behind the EU’s values, underpinning the connection between the Internal Market and Article 2 TEU. Secondly, it is the belief that the promotion of the acquis in the wider world automatically contributes to the promotion of EU’s values in the third countries. Thirdly, it is the belief that the approximation of legislation of the third countries with the acquis, even if conducted to a limited degree, is beneficial also when regarded from the values’ perspective. There are no empirical studies to proof that these assumptions are true. Moreover, the recent examples of Hungary and other problematic Member States would rather seem to be pointing to the fact that they cannot be. Besides these substantive presumptions, the Union also entertains procedural ones, which turn out to be potentially as harmful, especially in the medium- to long-term perspective, as the substantive ones. The core presumption in this second camp concerns the success of the EU’s conditionality deployed in the context of the preparation of the EU’s enlargements. This presumption, which has never been proven by the institutions – and was only rarely questioned by scholars63 – let to the transposition of the preaccession approaches to the deployment of conditionality into the ENP and Eastern Partnership context.64 Even if the principle of conditionality could function well in the context of the ENP as transposed from the pre-accession context, which was seriously doubted by scholars,65 this would have no correlation with the actual promotion of EU
62
Legal transplants can often work effectively: A. Watson, Legal Transplants: An Approach to Comparative Law, 2nd ed., Athens, GA: University of Georgia Press, 1993. 63
See, e.g., Kochenov (2008 ‘EU Enlargement’).
64
A. Magen, ‘The Shadow of Enlargement: Can the European Neighbourhood Policy Achieve Compliance’, Columbia Journal of European Law, 12, 2006, p. 383; D. Kochenov, ‘The ENP’s New Developments: Imitating Change – Ignoring the Problems’, Comparative European Politics, 9, 2011, p. 581. 65
Magen, op. cit., p. 383.
14
values,66 since, as has been demonstrated above, the substantive presumption of the connection between the values on the one hand and the acquis on the other is simply untenable.67
7. The two facets of conditionality
All the above notwithstanding, it would nevertheless be premature to simply dismiss the procedural presumptions outright. In fact, once a clear distinction between rules and values is made, conditionality can be deployed in a successful manner at least in the context of one of the two areas of the EU’s engagement. Although this has not usually been stated straight away, this is exactly how conditionality used to function in the context of the pre-accession, bringing obvious positive results, in terms of a solid and successful transposition of the acquis in the Member States of Central and Eastern Europe. Rooted in the Copenhagen criteria, the principle of conditionality knew two clearly-identifiable sides: acquis-related and non-acquis related conditionality.68 The origins of this distinction could be found in the text of the criteria itself, which contained legal, economic, and also political conditions. The latter, which included, inter alia, democracy, the rule of law, respect for and the protection of human rights as well as minority rights, were clearly far-removed from the acquis sensu stricto, as they mostly lay within the sphere of competence of the Member States as such and could not be regulated by the Union for two overwhelmingly clear and interrelated
66
D. Kochenov, ‘The ENP Conditionality: Pre-Accession Mistakes Repeated’, in: L. Delcour and E. Toulmets (eds.), Pioneer Europe? Testing EU Foreign Policy in the Neighbourhood, Baden-Baden: Nomos, 2008, p. 105. 67
Id., p. 119.
68
F. Schimmelfennig and U. Sedelmeier, ‘Governance by Conditionality: EU Rule Transfer to the Candidate Countries of Central and Eastern Europe’, Journal of European Public Policy, 11 (4), 2004, pp. 669–73; F. Schimmelfennig and U. Sedelmeier, (eds.), The Europeanization of Central and Eastern Europe, Ithaca, NY: Cornell University Press, 2005; D. Kochenov, ‘Why the Promotion of the Acquis is Not the Same as the Promotion of Democracy and What Can Be Done in Order to Also Promote Democracy instead of Just Promoting the Acquis’, Hanse Law Review, 2, 2006, p. 2.
15
reasons: the Union did not have competence to act in these fields internally and the Union had no substantive approaches to acting in these fields due to the lack of internal competence. As a consequence, a clear distinction can be drawn between the deployment of the principle of conditionality in the areas covered by the acquis as opposed to those areas, which are not covered by it. This clearly pointed in the direction of a realization that the acquis as such could not play a role of a promoter and guarantor of values – precisely what all the Copenhagen political criteria in essence were about. Consequently, while conditionality dealing with fisheries, migration or the Internal Market rules in general was unquestionably a success, the deployment of the principle in other fields was nothing short of a resounding failure, boasting no correlation between the reported progress and the actual situation on the ground in terms of tangible improvements in the area of EU’s values to be, which could be explained through the Union’s engagement.69 Spectacular shortcomings directly related to the Copenhagen political criterion could be outlined, ranging from the area of minority protection 70 to establishing functional judiciaries,71 civil service,72 and non-discrimination regimes.73 The failure of non-acquis-related conditionality deployment manifested itself at a number of planes, discussed in detail elsewhere.74 Probably the most telling example of the solid nature of this criticism is related to the current developments in Hungary, Romania and a number 69
Kochenov, (2008 ‘EU Enlargement’), op. cit. In general, the Eastern enlargement was unquestionably a success, of course – see G. Pridham, Designing Democracy: EU Enlargement and Regime Change in Post-Communist Europe, Basingstoke: Palgrave Macmillan, 2005, M.A. Vachudova, Europe Undivided: Democracy, Leverage and Integration after Communism, Oxford: Oxford University Press, 2005. 70
J. Hughes and G. Sasse, ‘Monitoring the Monitors: EU Enlargement Conditionality and Minority Protection in the CEECs’, Journal on Ethnopolitics and Minority Issues 2003; D. Kochenov, ‘The Summary of Contradictions: Outline of the EU’s Numerous Approaches to Minority Protection’, Boston College International and Comparative Law Review, 31, 2008, p. 1; D. Kochenov, V. Poleshchuk and A. Dimitrovs, ‘Do Professional Linguistic Requirements Discriminate? – A Legal Analysis: Estonia and Latvia in the Spotlight’, European Yearbook of Minority Issues, 10, 2013. 71
D. Smilov, ‘EU Enlargement and the Constitutional Principle of Judicial Independence’, in: W. Sadurski, A. Czarnota and M. Kryger (eds.), Spreading Democracy and the Rule of Law?, New York, NY: Springer, 2006. 72
Kochenov (2008 ‘EU Enlargement’), op. cit., pp. 191–223.
73
D. Kochenov, ‘Democracy and Human Rights – Not for Gay People?: EU Eastern Enlargement and Its Impact on the Protection of the Rights of Sexual Minorities’, 13 Texas Wesleyan Law Review, 2007, 459. 74
Kochenov (2008 ‘EU Enlargement’), op. cit., pp. 297–314.
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of other countries which successfully passed all the acquis- and values-related thresholds providing vivid – if not shocking – illustrations of why the Union’s engagement with the values even in the context of the pre-accession strategy was (and is) totally inadequate. All in all, while conditionality is a usable instrument to promote the acquis in the context of the pre-accession strategy, it is not a suitable means of value export, to which the story of non-acquis-related conditionality in the pre-accession phase clearly testifies.75 The reasons for this are clear and the institutions unquestionably tried to tackle those by introducing the political Copenhagen criteria as distinct from the acquis in the first place, underlining the lacking correlation between the promotion of the acquis and securing the new Member States’-to-be adherence to the values of what is now Article 2 TEU. As has been mentioned before, human rights protection was a result of a rather long fight, where the Member States’ courts imposed on the EU what the Treaties did not require, thus forming some very thin acquis in this sphere. The story was somewhat different in other fields: the EU is famous for the proverbial democratic deficit. Although based on the rule of law, the substance of this concept is not entirely clear 76 – especially once one considers substantive, not merely procedural rule of law, which Lord Slynn presumably had in mind delivering his famous Hamlyn lectures.77 The story of minority protection acquis is probably even more difficult than all the other fields outlined.78 While claiming jurisdiction to go into the substance of all these concepts was not difficult in the context of the pre-accession strategy, where Article 49 TEU directly
75
Id.
76
E.g. L. Pech, ‘Promoting the Rule of Law Abroad: On the EU’s Limited Contribution to the Shaping of an International Understanding of the Rule of Law’, in: D. Kochenov and F. Amtenbrink (eds.), European Union’s Shaping of the International Legal Order, Cambridge: CUP, 2013, p. 108. 77
Lord Slynn, Introducing the European Legal Order, London: Stevens and Sons, 1992. For a great overview see L. Pech, ‘The Rule of Law as a Constitutional Principle of the European Union’, Jean Monnet Papers (NYU Law School) No. 04/09, 2009. 78
D. Kochenov, ‘European Union's Minority Protection’, in: W. Kymlicka and J. Boulden (eds.), International Approaches to Governing Ethnic Diversity, Oxford: OUP, 2013.
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implies that compliance with the values of the Union is secured,79 the Union was offered little in terms of substance of these concepts.80 It would be a mistake, however, to treat only non-acquis-related conditionality as a methodological attempt of the EU to engage with the promotion of its values. In fact, given that the belief that full membership of the Union with all the perceived benefits of the Internal Market held the correlation between the promotion of the values and the promotion of the acquis as a presumed and widely accepted truth, acquis-related conditionality could also be regarded as part of the value export exercise. The refusal to make a distinction between values and rules thus amounted to the principled stance of the Union. Regarded in this vein, the Union seemingly could arrive at the value-charged ideal of the ‘ring of friends’ via two conditionality informed routs: i.e. either via the deployment of the acquis conditionality and the Community method, which is its necessary and unalienable component – or via the non-acquis conditionality, which is a direct way to the values as it were. As it became obvious, however, that the acquis is not necessarily about the values, these assumptions behind EU’s conditionality approaches came to be shattered.
8. Lessons learnt
The lessons drawn by the Union from its own pre-accession performance as a values promoter were radically different if one compares the internal and the external planes of its legal-political engagement. Internally, the Union learnt a big deal from the drawback of its pre-accession action. There is a clear correlation between the reinforcement of the Union’s approach to values internally and the drawbacks of their pre-accession deployment. This can be illustrated by a number of examples ranging from the very text 79
Kochenov (2008 ‘EU Enlargement’), op. cit., p. 80.
80
E.g. Kochenov (2005), op. cit., passim.
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of Article 2 TEU to the incorporation of Article 7 TEU and also the latest moves in the direction of the internal value enforcement, including the EP’s endorsement in the Rui Tavares report of the ‘Copenhagen Commission’ proposed by Jan-Werner Müller. As demonstrated by Wojciech Sadurski, enlargements – and, in particular, the attempts to be effective in solving the values conundrum – triggered an important, even if subtle, reappraisal of the very essence of the EU’s constitutional system.81 The situation is quite different on the external plane. Regrettably, very few, if any, lessons were drawn by the Union from the problematic conduct of the pre-accession exercises that brought in new Member States of a nature questionable from the point of view of Article 2 TEU.
The management of EU enlargements thus affected the
possibility of attaining the values of EU’s external action and also shattered the perception of the solid nature of the Union’s internal constitutional structure, which presupposed the existance of a rule of law Union reliant on the democratic Member States guided by the rule of law, both tires respecting and protecting human rights of the shared citizenry.82 The whole story of the ENP and the Eastern Partnership stands as a clear illustration of the EU’s chronic inability to internalize the lessons drawn from past mistakes.83 Three key assumptions plaguing the promotion of the EU’s values in the context of the pre-accession, were then transferred to the ENP plane: the assumption of an existing correlation between the acquis and values; the assumption of the effectiveness of conditionality in the areas not covered by the acquis; and the assumption of the achievability of the ‘ring of friends’ objective through the combination of the promotion of EU law and the application of the conditionality principle. It is thus highly doubtful whether the EU will be in the position to deliver on
81
Sadurski (2012), op. cit.
82
On the concept of EU citizenship see e.g. D. Kochenov, ‘The Essence of European Citizenship Emerging from the Last Ten Years of Academic Debate: Beyond the Cherry Blossoms and the Moon?’, International and Comparative Law Quarterly, 62, 2013, p. 97. 83
Kochenov (2008 ‘The ENP Conditionality’), op. cit., p. 105.
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the obligations imposed on it by Article 8 TEU, as rightly outlined by Christophe Hillion elsewhere in this volume.84
9. EU-Ukraine example
All these problems notwithstanding, the advanced framework of the EU’s engagement with its neighbourhood sees constant attempts to incorporate EU values at a level going beyond the constant restatement of the aspirational maxim that the values are ‘shared’ between the EU and the ENP partners. The new draft Association Agreement with Ukraine, upgrading the values to the level of principles, points in this direction quite clearly. Most importantly, it is likely that this agreement – given that it is the first of its kind – will serve as an example for the future Association Agreements with the states of Eastern Europe and the Caucasus. Consequently, taking the EU-Ukraine agreement as an example goes beyond the mere importance of this instrument for the built-up of the EU-Ukraine relations as it sets the general approach for other Eastern neighbours as well. While the values issue is clearly not the most important one in the Agreement, should one look through the humongous bulk of rules it sets up and of the concrete areas covered,85 the analysis of the instrument shows that the adherence to values could come to play the key role here, depending on the practice which is to emerge in the course of the Agreement’s implementation. A number of provisions in the preamble and also in the main text of the Agreement point to this possibility. In fact, the Agreement is clear that the relationship between the EU and Ukraine will actually be based on common values,86 which are clearly named in the Agreement – worded in the vein of Article 2
84
See Christophe Hillion’s chapter in this volume. See also Art. 3(1) TEU.
85
For an analysis, see the chapter by Guillaume Vander Loo in this volume.
86
See Recital 2 of the preamble: ‘close and lasting relationship that is based on common values’.
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TEU.87 References to common European history88 and Ukraine’s ‘European identity’89 – however blurred – help underline the importance of the common values heritage. Crucially, however, common values are named as the ‘essential elements’90 of the Agreement, thus underpinning all the substantive clauses in the document, which seems to be of crucial importance. Most importantly, however, Article 2 of the Agreement, opening the title on ‘General Principles’ de facto elevates all the values of Article 2 TEU to the level of binding principles underlying the entirely of EU-Ukraine relations under the Agreement.91 It is clearly a step forward, compared even with the EU’s internal engagement with the values on which the Union is built, to be clear in identifying that the whole point of building closer ties between the EU and Ukraine is about the promotion of values, rather than simply seeking mutual gains.92 Article 6 of the Agreement makes a reference to the ‘principles common to the Parties’93 as the main goal of cooperation aiming at the success of the domestic reforms in Ukraine. It is crystal clear, in this context, that what is meant by the ‘principles’ is in fact a reference to the values of Article 2 TEU combined with an attempt to endow the values language with a binding force in the light of Article 2 of the Agreement, where the principles-values connection is made. This can be read as a confident move beyond overemphasizing the acquis and also seems to point in the direction of a distinction being introduced by the partners between the values on the one side and the Agreement’s acquis on the other. This distinction is of fundamental importance in the context of the main deficiencies plaguing 87
Id.: ‘respect for democratic principles, rule of law, good governance, human rights and fundamental freedoms, including the rights of persons belonging to national minorities, non-discrimination of persons belonging to minorities and respect for diversity, human dignity and commitment to the principles of free market economy’. 88
Id., recital 3.
89
Id., recital 4.
90
Id., recital 7 (emphasis added).
91
Art. 2 of the Agreement: ‘[Values of Art. 2 TEU] constitute essential elements of the Agreement’. The same is restated in Art. 3 of the Agreement, where a number of key Art. 2 TEU values, including the rule of law are named as ‘central to enhancing the relationship between the Parties’. 92
Art. 1(2)(a) of the Agreement seems to be pointing in this direction: ‘to promote gradual rapprochement between the Parties based on common values’. 93
Art. 6 of the Agreement.
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EU’s engagement with values outlined above. Add to this the references to individual values and principles throughout the text94 and the far-reaching nature of the Agreement as an important attempt to enhance EU’s engagement with the values side of improving its neighbourhood become even clearer.
10. Conclusion
This chapter provided a brief overview of the EU’s engagement with values both internally and externally, to illustrate the problematic nature of a number of deeply-held assumptions which inform the EU’s engagement with the Member States and with the third countries alike. As the analysis of the recent legal-political developments demonstrated, we are only witnessing the first timid attempts to move away from these assumptions. The introduction of Article 7 TEU into the Treaties, treating the Rui Tavares Report seriously, as well as the spirit and the letter of the draft Association Agreement with Ukraine all point in this direction. Essentially, in dealing with values no coherent distinction can be made between the EU on the ‘inside’ as opposed to the third countries: problems can equally arise in both spheres. This makes it clear that the acquis as such is not about the values and should be treated accordingly. Its promotion in the neighbourhood is not necessarily capable of doing the trick of democratizing EU’s partners or ensuring that they adhere to the rule of law. In other words, the rules that the EU promotes are not necessarily about values and should be treated as such. This conclusion is of essential importance also for the procedural side of the EU’s engagement with the neighbours, allowing the questioning of the reported successes of the principle of conditionality. Taking the widespread misconceptions into account is of essential importance both when designing the EU’s engagement with the neighbourhood as well as in the context of EU’s internal reform. 94
E.g. a reference to the rule of law in Article 14 of the Agreement.
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