Article 2 TEU Values - Democracy, Solidarity, and the Concept of an EU-wide society - Lecture 9 - EU Law

What are the 3 concerns arising from Article 2 TEU in relation to defining ‘society’?

Raises questions as to what ‘society’ is

• not just being a society of member states, but suggests a EU-wide society, this suggests that Article 2 TEU is not what member states have solely agreed upon internationally

• focused on a society exceeding beyond member states and indicates the court has more freedom to develop the law in ways that maintain/bring about a European society

• EU bases Article 2 TEU as a component of it’s ‘fundamental rights’ protection and as a basus for its own constitutional legal identity (bear in mind, it is it’s own legal instrument) and courts statements on a european identity upholds the EU legal common order, what if non-compliance/backsliding occurs, is the EU legal order at stake then?

How do Article 4 TEU and Article 2 TEU conflict with one another - when it comes to the term ‘society’?

• Article 4 TEU outlines that member states should be respected, equality of member states and acknowledgment of national constitutional entities

• This conflicts with Article 2 TEU as it already assumes the ‘same’ set of values are held inter-state across various member states (such as respecting human dignity, democracy and etc), but what if member states don’t necessarily comply with this and backslide?

Commission v Republic of Malta (Citizenship by Investment case) on Article 2 TEU values, what is the context, issue and outcome?

Context → Malta had set up a special scheme for acquiring Maltese nationality by naturalisation which targeted investors, called ‘the 2020 investor citizenship scheme’. Under that scheme, a foreign investor applying for Maltese nationality had to fulfil five conditions. Some member states have similar schemes, but with requirements still attached to it, however the Maltese application of citizen has placed on restrictions/requirements, where they didnt require actual residence of the Maltese territory.

Issues and arguments made against Malta → The Commission argued that the 2020 investor citizenship scheme amounted to commoditising EU citizenship, which undermined the essence and integrity of that status and called into question the principle of mutual trust regarding decisions granting nationality adopted by the Member States.

• You can only have EU citizenship on the basis of living within a member state, you cannot have EU citizenship as independent from the member state. The reason why Malta is charging a high price on their citizenship, is selling not only their Maltese citizenship but EU citizenship, which impacts the entirety of member states within EU as they then have access to the 4 economic freedoms and free access to the EU's common market

Outcome → The court rejected the notion of transactions and commercialising citizenship as a means of undermining trust and democracy amongst member states.

What did AG Collins argue in relation to the ‘Citizenship for Investment’ case? And why did the CJEU concluded contrary to AG Collins?

AG Collins’ argument -

• AG Collins in essence sided with the Maltese government: while a Member State, in accordance with its own nationality laws, may require proof of a genuine link, EU law does not define, much less require, the existence of such a link in order to acquire or to retain that nationality.

• AG Collins emphasised the respect for the sovereignty of each member state, and emphasised that it constituted a wholly unlawful erosion of Member States’ competence in a highly sensitive field which they have clearly decided to retain under their exclusive control.

CJEU’s argument -

• It reasoned that nothing in the wording or scheme of the Treaties supported the contention that EU law only applied to naturalisation policies that constituted a serious breach of the values and objectives of the EU. (EU Law applied BEYOND that)

• Citizenship is special because it is linked to an area of 'freedom, security and justice without internal frontier' as reference to Article 3(2) - It is an economic rationale for citizenship, as it is linked to the 4 economic freedoms which allow you to engage in economic activities in the EU.

• Naturalisation policies have consequences for the functioning of the EU as a common legal order - since union citizens enjoy political rights of participation within the EU.

• Union citizenship is based on the common values contained in Article 2 TEU and on the mutual trust between the Member States as regards the fact that none of them is to exercise that power in a way that is manifestly incompatible with the very nature of Union citizenship.

  • The bond of nationality of a Member State is formed by the special relationship of solidarity and good faith between that State and its nationals and the reciprocity of rights and duties. But the Maltese scheme violates principle of sincere cooperation by undermining reciprocity and mutual trust.

What are Steve Peers’ criticisms on the Citizenship by Investment case?

• Steve Peters disagrees with the case conclusion, arguing that transactional citizenship should be allowed.

• There is a strong emphasis of commercial sovereignty and allowing the member states to uphold their own sovereignty in certain matters.

What is Judge Koen Lenaerts’ commentary on the Citizenship by Investment case? Do he disagree or agree with the verdict, and his reasoning behind this?

Lenaerts agrees with the verdict, because

• The values of respect for the rule of law, democracy, fundamental rights, and solidarity are priceless, EU citizenship—rooted in those values—should never be for sale.

• Notably, the ‘commercialisation’ of EU citizenship would amount to buying one’s way into the EU democratic process, which is fundamentally at odds with what democracy is all about.

• In order for the host Member State to accept those obligations, the Member State of naturalisation cannot treat the grant of nationality as a business, since the latter would be free riding on the opportunities offered by the former. It would tilt the balance between those two Member States.

• The grant of nationality to be based on a special relationship of solidarity and good faith between the Member State concerned and its nationals.

Commission v Czech Republic (Ability to stand for election and membership of a political party) on Article 2 TEU values, what is the context, issue and outcome?

Context → Lawful residents were denied the ability to stand in municipal and European Parliament elections within Czechia and Poland. (To clarify, this has nothing to do with domestic elections, but municipal and European Parliament elections - hence it has nothing to do with influencing nation-wide politics within the region, despite concerns of national politics will be distorted, with arguments of it being a threat to domestic democracy.)

Issue → There is a question in the cases whether as a lawful resident, but not legal citizen have the right to participate in politics within Poland and Czechia?

Outcome → The CJEU had rejected Polish and Czech arguments, whilst acknowledging them,national identity is stipulated as a component of participation of political life. However, the CJEU ultimately argued that participation of non-citizens is merely within municipal realms and within the european parliament.

What is Judge Koen Lenaerts’ commentary on the Commission v Czech Republic (Ability to stand for election and membership of a political party)? Do he disagree or agree with the verdict, and his reasoning behind this?

Lenaerts agreed with the verdict, because -

• This makes the value of democracy composite in nature, making EU and national democracies interdependent. The healthier national democracies are, the more democratic the EU institutions become.

• Just like two communicating vessels, there is a common interest in protecting the value of democracy as a whole, since that interdependence favours a mutually reinforcing relationship between EU and national democracies.

European Commission v Hungary on LGBTI content on Article 2 TEU values, what is the context, issue and outcome?

Context → The Hungarian Parliament submitted a bill entitled ‘adopting stricter measures against persons convicted of paedophilia and amending certain laws for the protection of children’. Subsequently, the Parliament’s legislative committee proposed amendments to that bill, which concerned ‘gender identities that do not correspond to the sex assigned at birth, sex reassignment or homosexuality’ (‘LGBTI content’). The resulting Hungarian law bans content about LGBTQ+ people from schools and primetime TV.

Issue → Is Article 2 TEU a type of provision on which one could rely in infringement proceedings? More generally, the question is whether a claim alleging a breach of values is justiciable; can such a claim be decided by courts at all, or is that a matter to be decided by the political process?

Outcome → Hungary was found to be in violation of Article 2 and fundamental rights.The value judgement on which the Hungarian legislation at issue is based is in stark discrepancy with the values of human dignity, equality, and respect for human rights as understood in the European Union and in the wider European order of human rights, as framed by the European Convention of Human Rights (ECHR).

What is AG Capeta commentary on the European Commission v Hungary on LGBTI content? Do he disagree or agree with the verdict, and his reasoning behind this?

AG Capeta agreed with the ruling, because -

• To my mind, an infringement of Article 2 TEU does not occur merely because the other breaches are serious. It is rather the reverse: because the root cause of those breaches is a negation of the values enshrined in Article 2 TEU, they themselves become both serious and systemic.

• More than ever, in the light of current developments in the world, it is important to not lose sight of why the European Union has declared the values enshrined in Article 2 TEU and why it is vital to reaffirm and protect those values (relates to other rights such as freedom of expression and information + right to private and family life + human dignity)

• I am of the view that LGBTI persons deserving equal respect in Member States is not open to contestation through dialogue. Disrespect and marginalisation of a group in a society are the ‘red lines’ imposed by the values of equality, human dignity and respect for human rights.

• This ‘something more’ [according to the Commission] is, in my view, triggered by the underlying divergence in values between the position of the Hungarian Government and that of the Commission as they relate to the reasons offered by Hungary as motivating and justifying the contentious amendments.

  • It is necessary to explain that the Hungarian legislation does not prohibit or restrict the portrayal of erotic or pornographic LGBTI content; rather, it prohibits the depiction of the ordinary lives of LGBTI persons. That is to say that the Rules at issue prohibit or restrict ‘LGBTI content’ in addition to pornographic content, or content that depicts sexuality in a gratuitous manner, or violence. (23) To protect children from openly sexual content, it was not necessary to amend the legislation by adding the prohibition of ‘LGBTI content’.

What is AG Capeta commentary on the European Commission v Hungary on LGBTI content? What is the alternative method posed in relation to handling disputes arising from non-compliance with Article 2 TEU, and does AG Capeta agree with the following?

The alternative → There might be different visions about how common values should be concretised (They are part of the constitutional dialogue in the EU legal system)

1. constitutional dialogue

2. (253) disagreements about the content of fundamental rights or divergences in balancing two or more fundamental rights should not result in the finding of an infringement of Article 2 TEU.

AG Capeta’s view → I am of the view that LGBTI persons deserving equal respect in Member States is not open to contestation through dialogue. Disrespect and marginalisation of a group in a society are the ‘red lines’ imposed by the values of equality, human dignity and respect for human rights.

Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge on Article 2 TEU values, what is the context, issue, arguments posed by the Commission against Denmark and outcome?

Context → Danish law on social housing mandates the development of plans to reduce social housing in areas deemed to have difficulties with integration. To this end, housing areas can be classified as 'ghettos' or 'hard ghettos'. The legislation has recently changed the terms to 'parallel societies' and 'transformation areas', but the cases in the main proceedings date back to when the old terminology was still in place. For an area to be classified as such, first, the area should fall under two of four criteria related to the residents’ attachment to the labour market, criminal records, educational attainment and average income. Secondly, at least 50% of the residents are classified as ‘non-Western immigrants’ or their descendants (where none of the parents is both Danish and born in Denmark). Residential areas remain 'transformation area/hard ghetto' if classified as 'ghetto' for five consecutive years.

Issues →

1. Must the term ‘ethnic origin’ in Article 2(2)(a) and (b) of Directive 2000/43 be interpreted as meaning that that term, in circumstances such as those in the present case – where, under the Danish Law on social housing, there must be a reduction in the proportion of social family housing in ‘transformation areas’, and where it is a condition for categorisation as a transformation area that more than 50% of residents in a housing area are ‘immigrants and their descendants from non-Western countries’ – covers a group of persons defined as ‘immigrants and their descendants from non-Western countries’?

2. If the answer to the first question is wholly or partly in the affirmative, must Article 2(2)(a) and (b) be interpreted as meaning that the scheme described in this case constitutes direct or indirect discrimination?

Arguments presented by the Commission against Denmark →

• The notion of ‘ethnic origin’ may be understood as referring to a perception ofa person or of a group of persons as strangers or foreigners. As such, a division on the ground of ‘ethnic origin’ can be understood as a division between ‘us’ and ‘them’; the dividing line being dependent on certain physical and socio-cultural characteristics or, at least, on the perception that differences in those characteristics exist.

• As indicated by the Commission, rests on the idea that immigrants and their descendants from Western countries, and Danish citizens, share a similar culture, similar traditions and similar religious convictions. For that reason, they form a homogeneous ethnic group, different from that of immigrants and their descendants from non-Western countries, which is why members of the ‘Western’ group do not usually have difficulty with integration, unlike the members of the ‘non-Western’ group.

Outcome → The case is still ongoing, therefore there is no ruling yet.