1. Introduction
It is well known that, in the recent period, EU legal discourse has found in ‘values’ a renewed legitimating narrative for European integration.Footnote 1 This ‘axiological turn’Footnote 2 finds its primary textual support in Article 2 TEU, which is increasingly treated as the most important reference in the EU legal system.Footnote 3 The provision declares that all Member States share a series of values and proclaims the Union’s foundational commitment to them. Recently, a flurry of studies have appeared, focusing on the interpretation of the various valuesFootnote 4 or the possible mechanisms for their enforcement.Footnote 5 Much less attention has been paid, however, to the reference in Article 2 TEU to ‘a society’ characterised by tolerance, pluralism, and other principles.Footnote 6 It has perhaps been assumed that this reference does not really contribute anything, so that the provision would have the same juridical content were it not to include a concept of European society. And yet, this very concept has, of late, begun to appear with increasing frequency in the practice of EU law. Examples are found in the CJEU’s case law.Footnote 7 It has also taken a central role in recent scholarly reconstructions of the EU legal system.Footnote 8 What is the significance of this development? What can be the meaning, role and potentiality – if any – of a juridical concept of ‘European society’ in the field of EU law? And what is its relationship to the EU’s foundational values?Footnote 9 These are the broad questions that the present enquiry will seek to address.
In doing so, two possible avenues seem immediately available, which are developed elsewhere in the present symposium. The first is to examine the emergence of a concept of European society through the lenses of the teleology of integration. By this I mean framing this development in terms of how it fits within the forward-looking and step-by-step process of Europe’s realisation as ‘an organised and living entity’Footnote 10 – a common tendency within EU legal studies.Footnote 11 If viewed this way, EU law’s turn to European society could be taken to signal the greater maturity of the integration process, and interpreted, promoted and celebrated as a further stage within it, building upon earlier ‘evolutionary achievements’ (a European internal market, European citizenship, European currency, etc) whilst possibly setting up those that will follow (a European army, a European State, etc).Footnote 12 Or it could be seen as helping rescue the project of integration from paralysis, a way out of a period of multiple crises and loss of legitimacy.Footnote 13 Either way, the significance of European society as an emergent concept is understood and assessed in term of its contribution to the ongoing process of European integration.
The second avenue is to approach the concept of European society as an invitation to measure EU law against the outside social realities it purports to represent, govern, or preserve. This may relate, first of all, to the very existence of a European society as such. Whilst some may claim that this is now sociologically attested,Footnote 14 others will point to the long road ahead that still remains for a European society to truly emerge outside the law.Footnote 15 Alternatively, it may be possible to engage with the relationship between EU law and society more generally, in order to size up the gap that exists between the two,Footnote 16 examine EU law’s sensitivity to lives as actually lived,Footnote 17 or measure the strength of the social legitimacy of the project of European integration.Footnote 18
Both avenues may yield valuable insights but the perspective taken by the present contribution, which in part draws from Paul Kahn’s cultural study of law,Footnote 19 is somewhat different. There are two sides to the approach taken here. On the one hand, against the first avenue mentioned above, I will aim to interpret the concept of European society and its emergence with as much critical distance as possible, resisting the urge to pass any sort of judgment according to the normative assumptions that arguably undergird and orient the practice of EU law, such as the teleology of integration or the advancement of a particular liberal agenda. Critical distance does not however imply that the object of my study should be confronted to any external measure, whether descriptively or normatively. Instead, I seek to understand the concept solely in the contingent terms set by EU law itself as an autonomous field of legal imagination. Thus, in contrast now to the second avenue I identified earlier, I will refrain from adjudicating on whether the emergent EU law concept of European society accurately matches the outside reality of European citizens’ lived experiences when relating to one another, but neither will I challenge it on the basis of any independent moral standards or political agenda (even if my analysis may potentially pave the way for such contestations).
What therefore is the contingent meaning of an emergent concept of European society, in the particular world of contemporary EU law? The main argument that I will advance is the following. In this specific legal-cultural context, European society has the meaning of a place. Appreciating this requires considering the relationship between European society and another key concept, that of EU values. This relationship, it will be submitted, is one of mutual balance but also tension: while the latter are abstract calls for offensive action on the part of EU institutions, the former is identified as a concretely located space that must be preserved and defended. I will show this by advancing two arguments that are separate yet mutually supportive of each other, with the second one constituting the core of the paper.
In the first, developed in Section 2, I will engage in a close textual reading of Article 2 TEU, as the most paradigmatic reference point for the emergent concept of European society. The focus will not be on the content of the specific values that are listed thereinFootnote 20 but the provision’s specific architecture. The aim will be to situate the concept of European society within that architecture. It will be shown that, in that text, the concept is not simply a byword for the sum of values to which the Union is committed. Neither is it conferred the role of a political actor bringing the Union into being. It features instead as a politically inert entity, whose situated existence is nevertheless imagined as a reality – the concretely situated perimeter of social relations that the EU claims as its own – that pre-exists the EU’s institutionality and enables its foundational commitments to the realisation of a series of values.
The second argument is the most important and developed at greatest length. In Section 3, I will situate the particular arrangement between values and European society found in the text of Article 2 TEU within the historical development of the EU legal order. The main hypothesis I pursue here is that the emergence of this arrangement can be understood as a function of the EU’s evolving external ambitions and self-positioning vis à vis the outside world. Contrary to the common tendency, which is particularly widespread in EU legal studies, to see a polity’s external self-projections as resulting from its own internal identity and dynamics, some scholars have recently begun to argueFootnote 21 that constitutional development often takes the opposite direction – it is the internal that follows the external. This will be the reversed perspective taken by this article, which constitutes one of its key contributions and the reason I have labelled my account ‘externally-focused’. On this basis, it will be shown that the architecture of the constitutional imaginary found in Article 2 TEU is consistent with shifting geopolitical realities. Indeed, that relationship between European society (as place) and EU values (as action) reflects the delicate compromise between the rise of the EU’s neo-imperial ambitions at the regional and global levels (for which values serve as a vehicle) and the construction of an increasingly hard boundary between an inside and an outside to the EU order (which the concept of European society serves to draw, justify, and implement).
2. The architecture of Article 2 TEU
The starting point of the enquiry is Article 2 TEU, the fulcrum of the EU’s ‘axiological turn’.Footnote 22 It reads:
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
The provision was initially drafted as part of the failed Treaty establishing a Constitution for Europe but was later recycled into the Treaty of Lisbon. It is increasingly treated as the most important reference point in the EU legal system.Footnote 23 Indeed, over the last decade it has become more common to justify the project of European integration on the basis of Article 2 TEU’s ‘founding values’Footnote 24 – rather than, as used to be more common, the horizon of an ‘ever closer union among the people of Europe’ that today is found in Article 1 TEU.Footnote 25
Even though Article 2 TEU is now considered so essential in the EU’s constitutional edifice, the actual text is not studied as carefully as might be expected. It is certainly not a very clearly worded provision,Footnote 26 which is perhaps reflective of the debates and reworkings that it was subject to during the drafting process.Footnote 27 Also, most attention is devoted to its first half, where the Union’s ‘founding values’ are proclaimed. The second half, which is the one to reference ‘a society’, is often passed over entirely.Footnote 28 Against this tendency, I suggest that a more careful reading of the text of Article 2 TEU will offer important clues as to the meaning of a concept of European society and the (important) role that it plays in EU law, which will then feed into the external-focused analysis of the following section.
The first aspect of the text to pick up on is the fact that, as just mentioned, it is divided into two halves or clauses: the first lists six ‘values’ on which the ‘Union is founded’, whereas the second notes that these values are ‘common to the Member States’, but also that they are found in ‘a society’ that is then said to be characterised by a further list of six additional principlesFootnote 29 (which are not however described as values, or indeed given any label). What to make of this division? Two interpretations are typically suggested. The first distinguishes between the two halves by demoting the second as containing only political aspirations rather than actual values or juridical obligations.Footnote 30 Thus, only the first clause would be properly normative, at least in the legal sense. The alternative interpretation consists in collapsing the distinction between the two clauses: both proclaim basic ‘legal principles’ that are undoubtedly normative, with the 12 of them composing together a ‘European constitutional core’.Footnote 31
Whilst I agree on the normative character of the entirety of Article 2 TEU, it is important to pick up on the different roles the provision gives to the two sets of principles that it lists. As already stated, it is only the first six that are labelled as ‘values’, posited as ‘common to the Member States’, and given the specific role of serving as ‘foundation’ for the ‘Union’ as whole. The very identity of the EU legal order is thus tied to the concrete realisation of those six founding commitments, for which the EU institutions assume a permanent and existential responsibility. Such responsibility appears explicitly in Article 3(1) TEU (‘The Union’s aim is to promote […] its values’), but it is already inherent in the concept of values, given their specific normative structure.
Indeed, according to Alexy’s famous theorisation, values are practically synonymous with principles.Footnote 32 These he defines in German as Optimisierungsgebote, that is, ‘norms which require that something be realised to the greatest extent possible given the legal and factual possibilities’.Footnote 33 The term has been translated into English as ‘optimization requirements’, but this translation somewhat fails to capture the concretely directive quality of the German word ‘Gebot’, which is more akin to a command, demand or mandate. Such an understanding of values is not inconsistent with Schmitt’s equally famously critique. For him, the logic of values is such that they constantly call for their concrete realisation – where rules are applied and orders are executed, values cannot but be imposed.Footnote 34 Thus, for Article 2 TEU to affirm that, say, the rule of law is an EU value must mean, unless the affirmation is entirely hollow or deceptive, that responsibility is assumed for actively realising it to the greatest possible extent. ‘Inaction’ or ‘silence’ are simply not possible:Footnote 35 if the EU’s foundational commitment to values is a genuine one, its institutions ‘must be able’ to take action to ensure their realisation.Footnote 36
My thesis is that this logic is not present in the second clause of Article 2 TEU. The six principles that it lists are not described as values, and the travaux préparatoires do not suggest that they were meant to be treated as such.Footnote 37 They are also not positioned as foundational to the Union. Article 2 TEU does not actually label them, but merely declares in their regard that they serve to distinguish European society, seemingly as a ‘factual’ matterFootnote 38 – the English version of the Treaty reads that they ‘prevail’ in that society, whereas the French and other language versions of the Treaty describe them more vividly as ‘characterising’ it. The drafting history is again enlightening in this respect: the initial proposal for clause two was phrased in aspirational terms (‘[The Union’s] aim is a society at peace, through the practice of tolerance, justice and solidarity’),Footnote 39 but later was reformulated as a description of an already existing reality.Footnote 40 That reality is, of course, an idealized one: it is as much imagined in Article 2 TEU as the foundational values of clause one. It is nevertheless imagined as something that is already there, in the outside world of fact, as opposed to a future aspiration. Clearly, this does not mean that the six principles of clause two lack a normative dimension – the provision attaches value to them, which could result in manifold juridical applications.Footnote 41 What is important to note, however, is that it is only qua features of the European society that the six principles ought to be maintained and preserved. Their normativity derives, in other words, from that which the provision attaches to European society itself.
It is therefore necessary to focus on that concept, and the position it is given in the overall provision. It has been rightly noted that it is used in the singular (‘a society’),Footnote 42 which indicates that it is meant to encompass a single, European-wide social whole.Footnote 43 That singular social entity is then defined by certain practices – of tolerance, solidarity, etc. It is also the case that it is distinguished from ‘the Union’ – the first clause of Article TEU focusing on the latter and the second on the former. Less attention has been paid, however, to the relationship between the two. Some have gone as far as to suggest that European society is identified here as a political actor capable of constitutional agency,Footnote 44 but I do not find this persuasive. Article 2 TEU does not confer any such subjectivity or agency to the concept, which appears politically inert or at least dormant. It is not suggested or implied, for instance, that the Union has come into being as an act of sovereign will by European society.
The key clue is found instead, I believe, in the locative preposition that precedes the term. The English version reads ‘in a society’ (emphasis added), but it is the same in the other language versions.Footnote 45 What this suggests is that European society is mobilised in Article 2 TEU, not to address the question of who, but that of where. Thus, the Union’s foundational commitment to the values of clause one is placed in the context of a concretely situated perimeter of social relations, one that is distinguished by certain practices and attitudes – specifically, those of ‘pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men’. The implication is that it is this particular social location that enables the commitment to the realisation of the six values of clause one,Footnote 46 which therefore means that these come after the principles of clause two. In other words, the latter are declared to precede the former both chronologically and logically, even if the order is reversed in the text.
The European society of Article 2 TEU is therefore a place – a concretely located and ordered space, rather than a purely abstract oneFootnote 47 – that makes it possible for the action-oriented institutionality of the Union to emerge.Footnote 48 That institutionality arises not from an act of will of a European demos, but from being grounded in a pre-existing singular social order.Footnote 49 It thus comes closer, not to any sort of constituent power, but to a notion of a ‘Union territory’Footnote 50 – if understood not as a purely cartographic concept but, as put by Lindahl, a space of distinct social relations that the Union claims as its own.Footnote 51
In this way, the two clauses of Article 2 TEU achieve a certain balance. This means that, contrary to a certain tendency among commentators, the provision ought not to be read as merely proclaiming the Union’s existential attachment to the promotion and realisation of certain abstract values – whether the six initial ones or the whole 12 listed principles. As argued well by Dubout, values must not be divorced from a concrete social environment,Footnote 52 and that is what clause two proclaims and ensures. Indeed, it identifies a situated perimeter of characteristic social relations that is declared to pre-exist the Union’s foundation and, as such, must be preserved and maintained. Clause one contains a call for action for the realisation of abstract values, the second clause a commitment to the preservation of the specific place rendering the former possible.
3. The external-driven development of the EU legal order
What to make of this somewhat complicated arrangement, that until now I have identified in the mere ‘architecture’ of the text of Article 2 TEU? I will continue the enquiry by considering how it came into being and consolidated through time. The argument here will be that this development is best understood as a product of the EU legal order’s changing self-positioning and engagements vis-à-vis the rest of the world.
In order to justify this somewhat unusual perspective, it is worth starting by noting that most of the TEU’s provisions that relate to the EU’s values as found in Article 2 actually concern its external action. This include Articles 3(5) (‘In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens’), 8(1) (‘The Union shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation’), 21(2) (‘The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to: (a) safeguard its values, fundamental interests, security, independence and integrity […]’), or 49 (‘Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union’).
Despite these textual clues, it might nevertheless seem somewhat surprising and counterintuitive to approach such a foundational constitutional provision as is Article 2 TEU as a product of the EU’s external self-positioning, rather the other way round. Typically, we see a polity’s outwards projections as an emanation of its internal dynamics, which makes the study of the former somewhat peripheral to constitutional analysis. Such neglect for the external dimension is very common in EU legal studies, which often frame the development of the law of external relations as an extension of principles developed internally.Footnote 53 EU law textbooks may have a chapter on external relations and another on enlargement, but consideration of these two instances of the EU’s outward engagement will not typically go any further.Footnote 54 Moreover, the EU’s relations with the outside world will usually be understood as a function of its nature and structure as a particular quasi-federal organisation. This would mean that the emergence of EU values or a concept of European society should first be tied to the evolving nature of the EU’s internal constitutional project, before considering how it affects its outward engagements.Footnote 55
What I propose is a reversal of this perspective, by hypothesising that, at least with regards to this article’s object of study, it is the internal that follows the external. Various scholars of EU law have already pushed broadly in the direction of raising the constitutional importance of that external dimension. De BúrcaFootnote 56 and more recently KjaerFootnote 57 have for instance sought to place the EU’s responsibilities as a global actor at the heart of the overall project of European integration. For this paper, however, the most direct source of inspiration are those authors who understand constitutional development as driven by the polity’s external engagements, or who focus on how ‘the constitution’s exteriors … seep into the polity’.Footnote 58 The two best examples may be Zielonka’s path-breaking Europe as Empire (which highlighted the transformative impact of enlargement for the EU’s constitutional structure)Footnote 59 and Aziz Rana’s reinterpretation of the evolving American constitutional tradition as a function of its changing external ambitions (the settler territorial expansion in the 19th centuryFootnote 60 and the country’s rise as a global superpower in the 20th century).Footnote 61
Taking such an external-focused approach will provide a better understanding of the original architecture that was identified earlier in Article 2 TEU. The analysis below will concentrate on the main areas of the EU’s external engagement: its relations with candidates for accession (what now normally comes under the term ‘EU enlargement’), its relations with non-EU neighbouring countries (under what may be referred to ‘neighbourhood law’),Footnote 62 and its relations to the rest of the outside world (or ‘EU external relations’ in the narrowest sense).Footnote 63 Scholars of these areas have already noted that their development is sensitive to geopolitical realities.Footnote 64 Our argument however goes further: it has really been the EU’s changing self-projections in these areas of external engagement that, coherently with one another, have propitiated the emergence of values and European society as key inter-related concepts in the EU legal imagination – and thereby transformed the internal dynamics and operation of its legal order.
The analysis below will proceed chronologically. I will focus first on the earlier period development of the European Community, during which the project of integration initially began to be re-imagined on an axiological basis, albeit with the somewhat different and more modest purpose of justifying the Community’s autonomy in relation both to foreign policy and accession (A). The current understanding of values and European society and the relationship between the two is a more recent post-Maastricht development. An idea of values as foundational calls for expansive action must be understood in the context of the rise of the EU’s increasingly ambitious, neo-imperial agenda, which took off around the creation of the Union and dominated its external self-positioning during the 1990s and 2000s (B). With the onset of a period of multiple crises since the 2010s, however, the EU has repositioned itself as tasked with defending itself facing outside threats, and thus turned its attention to questions of boundary-drawing rather than expansion. It is in this more recent context that a defensive concept of European society has become more central, serving to counterbalance the expansive quality of values and draw the moving yet increasingly hard boundaries of the European legal order (C).
A. The European Community’s autonomy and the emergence of an axiological identity
At the time of the foundational treaties that brought the European Community into being, when a majority of the original Member States still governed over important colonies overseas, the project of European integration was closely tied to the preservation of those imperial possessions.Footnote 65 The latter’s relationship to the European Community was somewhat ambiguous, as they were neither completely integrated within the new supranational regime it inaugurated, nor entirely excluded from it.Footnote 66 In any case, colonial relations were an essential aspect of the integration project in that foundational stage, as this project was seen as the way for the enfeebled Western European States to maintain their imperial status. As decolonisation rapidly precipitated, however, the colonialist case for integration vanished, so much so that it practically disappeared from collective memory.Footnote 67
In its place a more inward-looking rationale emerged, with a very modest ambition for a common foreign policy. The European Community’s post-imperial engagements with the wider world were not tied in the early decades to an axiological agenda, but focused more pragmatically on strategic interests around which the Member States could rally – in particular, the promotion of trade liberalisation (outside of agricultural products) and the preservation of a special relationship with the former colonies.Footnote 68 As put by Garavini, the European Community ‘lacked any ambition to promote the cause of world civilization. [ … ] Retrenchment within national borders prevailed over grander strategic visions’.Footnote 69 Concretely, there was little place in both domains for the sort of value-based conditionality that is today so commonplace.
A further reflection of this pragmatic and inward-oriented post-imperial rationale is found in the early development of the law of external relations. Indeed, the landmark ERTA decision found, through a classic functionalist reasoning, that the scope of the European Community’s external action was closely tied to, and flowed directly from, the Community’s internal powers and commitments.Footnote 70 An expansion in the latter therefore implied also an expansion in the former.Footnote 71 The external was thus rationalised as subordinate to the internal, and as driven by concerns about the latter’s functionality and constitutional structure.Footnote 72
The overall picture is similar with regards to membership in the European Community. Whilst in the Preamble to the Treaty of Rome the founding six States ‘call[ed] upon the other peoples of Europe who share their ideal to join in their efforts’, this ideal was mainly limited the preservation of peace through economic integration, and was generally assumed to be open to any market economies West of the Iron Curtain. The Treaty itself did not set any substantive conditions for accession, with its Article 237 merely stating that ‘[a]ny European State may apply to become a member’. The provision also set out the procedure for doing so, which was subject to the individual ratification of countries already members of the Community, thus making the entire process highly ‘Member State-driven’.Footnote 73 Famously, France took advantage of this feature to veto twice the UK’s accession, first in 1961 and again in 1967. The veto was clearly driven by strategic interests and differences in economic policy, rather than any sort of vision for a common set of values that the British would fall foul of.
It is nevertheless the question of accession that prompted such a vision to appear for the first time. The occasion was Spain’s failed application in the early 60s to join the European Community or establish some sort of a close relationship to the integration project. This might seem incredible today but at the time it was not a given that a fascist dictatorship should not be allowed to accede to the still nascent communities.Footnote 74 The application prompted internal tensions within the founding States and the Community institutions, which were ultimately resolved against Spanish accession. The key moment was the affirmation, in the Birkelbach report adopted by the European Parliament (then called Parliamentary Assembly), that accession was subject not only to economic and geographic criteria, but also to political ones, key among them being the existence of a democratic State.Footnote 75 In the absence of such political structure, the new State would be a ‘foreign body’ within the European Community.Footnote 76 At the time, the effect of this position, which found no obvious basis in the treaties, was meant to be entirely outward facing – it was not thought to challenge or undermine the position of Member States such as France, who at time was still engaged in the brutal war of Algerian independence and had seen only two months before the infamous massacre in Paris of hundreds of Algerians.Footnote 77 Nevertheless, the Birkelbach report marks the beginning of a discourse linking European unity to common values, and which over time has come to be formally enshrined within EU lawFootnote 78 (and to thus discipline the Member States themselves).Footnote 79
The field of external relations soon saw a similar development, reflecting the European Community’s changing relation vis-à-vis the rest of the world in the aftermath of European empires. Key here is the famous Declaration on The European Identity, that the Foreign Ministers of the (at the time) nine Member States agreed in Copenhagen in 1973. The document proclaims that the nine share ‘the same attitudes to life, based on a determination to build a society which measures up to the needs of the individual’, and as such ‘are determined to defend the principles of representative democracy, of the rule of law, of social justice – which is the ultimate goal of economic progress – and of respect for human rights’, all of these being ‘fundamental elements of the European Identity’.Footnote 80 This proclamation constituted therefore a new way of rationalising the integration project, away from the purely economic or the goal of securing peace.Footnote 81 Nevertheless, it is explicitly linked to concerns about the Community’s external engagements, in order for the Member States ‘to achieve a better definition of their relations with other countries and of their responsibilities and the place which they occupy in world affairs’. Historians thus situate the Document on European Identity as representative of the drive to achieve Western European autonomy from the US, and emerge as a global actor in its own right.Footnote 82 It is the external that triggers internally a definitional or transformative process, allowing the European Community to turn the page from being a ‘common market without a common identity’.Footnote 83 Indeed, the Document emphasises explicitly at the end that, ‘[i]n their external relations, the Nine propose progressively to undertake the definition of their identity in relation to other countries or groups of countries’.Footnote 84 As put by Van Middelaar, ‘from that point on, the Member States could collectively speak to the rest of the world on behalf of Europe’.Footnote 85
B. Values and the EU’s neo-imperial turn
The materials just discussed show that the emergence of an axiological basis for the project of European integration was not an internal development that later came to infuse the European Community’s external action – as commonly assumed – but the opposite. This does not mean, however, that these early external-driven developments already confer on values the offensive action-mandating role that they take on in the EU legal order under Article 2 TEU, per the discussion in Section 2. Indeed, there is a fundamental difference between the appeals to values found in the 1961 Birklebach report or the 1973 Document on The European Identity and those that today we have become so used to. The axiological turn that I have identified in those two documents served, above all, to justify the European Community’s autonomy, in relation to both candidates for accession and other foreign powers. There was little sense however that such a turn involved a positive responsibility for the constant promotion and realisation of the Community’s particular values against any conflicting visions. For instance, the Declaration on The European Identity’s invocation of shared values and attitudes to life served as the basis for an autonomous foreign policy common to all Member States, allowing them to ‘play an active role in world affairs’, but there was no ambition to ground relations with other States in a specifically European value system. The goal was for these post-imperial relations to ‘have a more just basis’, for the ‘independence and equality of States [to be] better preserved’, or similarly broad commitments that could find their basis in traditional principles of international law and a pluralist outlook on global relations.Footnote 86 Similarly, even though the failed application by fascist Spain led to the affirmation of certain axiological pre-requisites for membership, the early processes of accession focused solely on ensuring legalistic compliance with the acquis, for which responsibility rested almost entirely with the candidate State.Footnote 87
It is only from the early 1990s that values really took up the normative role described in Section 2. This change again followed a reconfiguration of the EU’s self-positioning vis-à-vis the rest of the world, from post-imperial to neo-imperial. The collapse of the Soviet Union ushered in a new era of increasing foreign ambition: ‘Europe now wanted to act in the world, to stride the world stage’.Footnote 88 By the early 2000s, it became relatively common (although not among lawyers) to speak of and even vindicate the EU’s external projections as following an ‘imperial’ logic, in relation both to its neighbouring region and the world as a whole.Footnote 89 This was not the imperialism of military conquest and subjugation that was associated with traditional European empires, but rather a more benign ‘liberal’ or ‘post-modern’ version,Footnote 90 which Commission President Manuel Barroso even celebrated as an ‘anti-imperial empire’.Footnote 91 It is not for this article to address the question of whether the EU does specifically fall to be described as an ‘empire’,Footnote 92 for which it would be necessary to reckon more fully with the nature of the relations between the EU and Member States as well as the role of the US. For present purposes, however, it is enough to note that the EU’s external action in that period came to take on features typical of imperialism.Footnote 93 These mainly include the development of a ‘civilizing mission’ that justified territorial expansion, a governance role for the EU beyond its own borders, and the establishment of unequal relations with peripheral actors.Footnote 94 The key here is that the emergence of values is inseparable from these developments, as values are both reflective and empowering for such an imperial agenda.Footnote 95
With regards first of all to EU membership, the key moment is the turn to the 90s, when Eastern European countries knocked at the door of what until then seemed a purely Western European club, thereby triggering a process that would conclude with the so called ‘big bang’ enlargement. It has been noted that within those Eastern European countries the process was widely understood and promoted as a ‘return to Europe’.Footnote 96 Less noted is how this process also translated into a new vision for European integration as a whole.Footnote 97 Following Zielonka,Footnote 98 the thesis defended here is that the big bang enlargement should be seen as internally transformative for the EU legal order, in various key ways.
Of central importance here is the adoption in 1993 of the Copenhagen criteria, which made accession formally dependant on compliance with certain values such as rule of law, human rights, democracy and respect for and protection of minorities – in addition to the more traditional requirement of implementing the acquis communautaire. The new accession criteria were key in the retreat of the vision of a ‘community of law’, which had been particularly dominant in the previous decades, with the acquis serving as its most powerful symbol.Footnote 99 The new value-based criteria meant that membership in that community could no longer be defined in the rigid and legalistic terms of compliance with the acquis, since it also involved adherence to various axiological commitments that, until then, found no clear formal recognition within EU law. This created somewhat of an incongruence, as the EU could be accused of hypocritically expecting more from candidate States than from its current Members.Footnote 100 Ultimately, the Copenhagen criteria proved the precursor to the constitutional proclamation of Article 2 TEU, which as already discussed characterises the EU as a political organisation defined by its commitment to a variety of values, and more recently has come to discipline Member States themselves.Footnote 101
The innovation of the Copenhagen criteria should not however be reduced to adding a number of norms that were not already present in the acquis. Values present a particular normative structure that also transformed the spatiality of the EU legal order. As described by Hillion,Footnote 102 earlier processes of accession were almost entirely driven by the candidate State, who had the burden of ensuring the acceptance and implementation of the acquis within their territory. The dynamics change from 1993 onwards, as the Union itself becomes the protagonist and acquires responsibility for managing this process. The newly-proclaimed values entail, first of all, that the emphasis is no longer on accession but on enlargement – the term that has since become dominant. Indeed, the EC/EU, as the institutional embodiment of European integration, changes from an organisation open to new Members, to one with a clear vocation for territorial expansion. The turn to values carries with it such an expanded ambition. Indeed, enlargement itself becomes a ‘policy’ to be pursued by EU institutions as a tool for spreading its particular set of values and influence across the neighbouring regions.Footnote 103 Thus, ex-Commissioner for Enlargement Olli Rehn has described it as ‘a matter of extending the zone of European values’, and as such judged it to be ‘one of the EU’s most successful policies’.Footnote 104
Moreover, the turn to values found in the Copenhagen criteria is also transformative of the EU’s institutional structure. Those criteria served as the basis for the allocation and expansion of huge discretionary power in the Commission, who took on the responsibility of defining what the values imply,Footnote 105 and thus give concrete expression to the novel value-based narrative for European integration.Footnote 106 For instance, third States such as Albania or North Macedonia find themselves under a quasi-permanent regime of EU governance qua candidates for accession, as their advancement towards membership has come to be regularly assessed against EU values and shaped accordingly.Footnote 107 This administrative and normative capability was initially meant for managing compliance by the candidate States, principally through the mechanism of conditionality, but again with time has come to extend over already existing Member States in their implementation of Article 2 TEU values (most notably the rule of law). Even if this move may have been presented as necessary to preserve the coherence of the EU legal order,Footnote 108 Cremona and Nic Shuibhne are right to observe that, in reality, the ‘inward migration’ of conditionality (as it has come to manage the EU’s internal relations with Member States after being first developed in the governance of EU’s outer space) involves an external-driven transformation of the legal nature of EU membership.Footnote 109 Moreover, the discretionary quality inherent in the implementation of values has also produced differentiated and stratified regimes – a transformation that again the ‘community of law’ paradigm would not have allowed so easily –, which have similarly moved from the EU’s external space to its internal sphere. Emblematic of this is the so-called Cooperation and Verification Mechanism that applied to Bulgaria and Romania, from joining the EU on 1 January 2007 until its formal closure on 15 September 2023, during which period the two countries were subject to a stricter supervision than other Member States.Footnote 110 Values are thus both reflective and productive of an evolving structure of EU governance in the form of a series of ‘concentric circles’ by order of diminishing proximity to a European core.Footnote 111
The EU’s external relations have been similarly transformed since the 1990s, when the EU took on an expanded and arguably imperial ambition, for a global order subject to European influence and shaped in its image.Footnote 112 The turn to values, which can be observed discursively in EU foreign policy at that time,Footnote 113 is again inseparable from this development, which it serves to rationalise and implement. Indeed, even though those values are vindicated as specific to the constitutional traditions of EU member States, they are also proclaimed as universal.Footnote 114 Anu Bradford has documented how the EU, and in particular the Commission, ‘legitimizes its strategies by claiming that its values and policies are normatively desirable and universally applicable’, so that ‘the EU’s externalization of its regulatory preferences reflects altruistic purposes of a benign hegemon’.Footnote 115 Thus, it has become common to rationalise the EU’s external engagements, or even the overall project of European integration,Footnote 116 as serving to benevolently promote across the globe what is beneficial to all.
All in all, values translate into a kind of ‘civilizing mission’Footnote 117 vis-à-vis the rest of the world or the neighbouring region (under the European Neighbourhood policy).Footnote 118 Hence the term, popularised in the 2000s by political theorists, of ‘normative power Europe’,Footnote 119 which captures the wide array of means through which the EU seeks to influence and intervene in the policy of other countries – as for instance the widespread use of conditionality in external action, subjecting trade agreements to human rights conditions,Footnote 120 or development aidFootnote 121 and neighbourhood policyFootnote 122 to rule of law reform, or other tools of ‘transformative engagement’.Footnote 123 Such developments are frequently presented as again flowing from the EU’s own internal structure, nature, and commitments – it is because of who the EU has come to be internally, including the principles or values on which it said to be founded, that it is naturally called upon to promote its particular values across the world.Footnote 124 It is submitted however that the perspective should be reversed, ie, it is the rise in regional and global ambitions that has prompted the emergence of values as the normative core of the EU legal order.
For values to take such a role implies, first of all, a reconfiguration of how the EU legal order envisages its own relations with neighbouring and other third States, as those relations come to be based on the EU’s own foundational values rather than any outside normativity. As stated earlier, this was not apparent in the 1973 Declaration on European Identity, which called for relations to the outside world based on fairness, pluralism, independence, and equality. More recently, by contrast, those relations are claimed to be grounded on the EU’s own values and organised accordingly. One example is the EU’s relationship to international legality, as compliance with international legal obligations is reconceptualised by the Court of Justice as flowing from the EU legal order’s axiological foundation rather than a recognition of the self-standing bindingness of international law.Footnote 125 This reconfiguration also leads to asymmetrical relations with the outside world. The clearest example is the European neighbourhood policy.Footnote 126 Article 8 TEU explicitly calls for the EU to establish a ‘special relationship with neighbouring countries’, which should be ‘founded on the values of the Union’ (rather than neutral or shared principles).Footnote 127 Values thus reflect and justify unequal relations between the EU and its immediate neighbours,Footnote 128 which could be understood with Alain Supiot as the return of suzerain-vassal relations,Footnote 129 or the legal translation of what other scholars have criticised as the EU’s imperial ambition over its territorial periphery,Footnote 130
Moreover, the turn to values also carries an expanded reach for the EU legal order, as the EU purports to ‘rule the world’.Footnote 131 It is key to note here that values, due to the particular normative structure already discussed, are characterised by their lack of spatial boundaries.Footnote 132 Responsibility for the implementation of values can thus overrun any spatial reservations formally set against EU intervention or the need for any territorial configuration. Against the Member States, a good example is the traditional legal exception of ‘purely internal situations’, which is largely ineffective against Article 2 TEU values.Footnote 133 In the external sphere, the proclamation of purportedly universal values as foundational to the EU means that it is charged with the responsibility of promoting them beyond its own territory. It has thus become common among scholars to note and celebrate the underlying universalist aspiration behind EU law’s ‘global reach’,Footnote 134 which would reflect an ambition ‘to shape the focus and content of third country and international law’.Footnote 135 It is for instance said that the broadly extraterritorial scope of application of EU law fits within ‘the classic decentralized enforcement paradigm of international law’, as the extraterritorial reach of EU law is no more than the means by which the EU, in the absence of centralised global governance structures, aims at ‘realizing global values and interests’.Footnote 136
C. European society and the boundaries of European integration
In the previous section, I have tracked how the emergence of values, and the place they have taken at the constitutional core of the EU legal system, is a function of the EU’s global or neo-imperial ambitions, which they serve to power and legitimise since they began to form in the early 90s. Over the last two decades, however, such external ambitions appear to have shrunk considerably. The multiple crises experienced by the EU in the 2010s are said to have severely undermined its credibility as a ‘normative power’. So-called ‘enlargement fatigue’ set in after the huge wave of Eastern European accessions, as the EU’s capacity to absorb new members came to be doubted. Talk of ‘strategic autonomy’ only belies a preoccupation with the EU’s inability to act independently and effectively on the international scene.Footnote 137 These developments all speak to a loss of belief in the extent of the EU’s capacity for action, even if they do not fundamentally question the foundational commitments to an axiological mission vis-à-vis the outside world that we described earlier.
That said, a different line of developments in this recent period do point in a different direction. The crises of this period do not only reflect disappointment with EU incapacity – they are also have come to be understood as connected to a variety of outside forces, actors or phenomena that threaten the very existence and viability of the EU project. It is this different narrative that led to the emergence of a vision of ‘defensive Europe’, focused on protecting itself against those external threats.Footnote 138 Thus, questions of boundary-drawing and boundary-policing rather than expansion have come to be foregrounded, where before they had tended to be ignored. It is this change in focus that Van Middelaar has described as a ‘topological turn’, as the EU has come to see itself as a ‘place’ that must be protected.Footnote 139
It should always have been clear however that values, understood as imperatives for action, can only provide a very partial account of the EU’s external engagements. If these followed solely the expansive logic described earlier, there would no limit to which countries could apply for accession, as long as they submitted to the institutional requirements and supervision flowing from the Copenhagen criteria. The EU’s outward interventions would also know no spatial limits,Footnote 140 and so would ripple away boundlessly to ever further locations. And yet, that is not the reality of the EU legal order’s external engagements, which have always happened to be, regardless of whether the context was one of expansion or retrenchment, spatially bounded and highly selective.Footnote 141 After all, accession is only on offer to certain countries, as Morocco’s failed membership bid in the 1980s revealed, for reasons that appear to relate to the very self-identity of the EU rather than to any limits in its institutional capacity.Footnote 142
The point here is that values clearly serve as a vehicle for action, but, in that capacity, they are unable to address the essential question of where lies the spatial perimeter that the EU claims for itself. It is only by distinguishing Europe’s ‘outside’ from its ‘inside’,Footnote 143 that the latter may be defended as such and used as the basis for the selectivity of its interventions. My thesis is that it is the concept of European society that has come to perform this countervailing role, which the ‘topological turn’ that Van Middelaar speaks of as characterising the present moment has rendered more salient. It does so by connecting the project of European integration to a place – the concretely situated social space that the EU claims and defends ‘as its own’Footnote 144 – which then makes it possible to discriminate between what is internal to the EU legal order from what is external to it.
An early example of how a concept of European society may serve as an external boundary-drawing device – and thus emerges as a counterpoint to the EU’s apparently boundless axiological mission – is found in decisions involving relations that are at least partially connected to outside jurisdictions, where the Court of Justice must determine they fall within the EU law’s territorial reach. Thus, for instance, employment contracts involving work performed in third States,Footnote 145 claims against American digital corporations over their handling of an EU citizen’s data,Footnote 146 or collusive behaviour among enterprises abroad affecting European consumers.Footnote 147 In these situations, the approach of the court has been to assess whether the ‘legal relationship … could be located within the territory of the Community’Footnote 148 (now EU). How however to do this, given that relations as such cannot be located anywhere, and the kind here at stake are precisely characterised by their connections to multiple jurisdictions? The answer has been to understand EU territory, not in the reductive sense of the purely geographical area subject to Member State sovereignty, but as a concretely situated space of social relations that the EU claims as its own. Thus, for a relation to be covered by EU law, it must be deemed integrated within that social whole,Footnote 149 which will be determined through a combination of geography and recognised ‘modes of existence’.Footnote 150 This will often involve participation in certain broader collective structures.Footnote 151 For instance, an employment contract where work is accomplished outside the EU will nevertheless come under the relevant EU law depending on, inter alia, the place where taxes are paid, children live, social security affiliation is maintained, a bank account is kept, continued residence is established, a holiday home is owned, etc.Footnote 152
It is also possible to see the boundary-drawing role of European society in the area of enlargement, which is more specifically tied to the present geopolitical context. In this context, however, the complex relationship of that concept with EU values also appears more clearly. As argued earlier, it is possible to see the process of enlargement as one of instrumentally advancing the EU’s values and extending its influence within the neighbouring region. From that perspective, therefore, enlargement is not qualitatively different from the neighbourhood policy, which also serves to ‘extend’ the EU’s ‘legal space’ (even if neighbourhood countries do not participate in EU institutions).Footnote 153 How however to understand the difference between that extended legal space and the perimeter of the EU legal order? What distinguishes Member States, who do participate in EU institutionality, from those outside the EU, who do not? Accession should not be perceived as ‘only an institutional issue’, as put by the Commission itself. Candidates must not be judged solely by their implementation of certain rules and institutions – they must engage, it is said, in nothing short of ‘societal transformation’.Footnote 154 As articulated at the time of the big bang enlargement by the then Commissioner Olli Rehn: ‘joining the EU is about changing the whole political system and legal order, which affects the whole society. This process of transformation has to work from the bottom up as well as the top down’.Footnote 155 Mere compliance with the acquis of EU law is not enough – in fact, the acquis may be very strictly observed outside the EU, without however challenging the boundaries of the concretely situated community that the EU purports to be. The boundaries of the political organisation that is the EU are predetermined by those of a European society. As the boundaries of the latter move, so may those of the EU legal order. As we saw earlier in Section 2 through the textual analysis of Article TEU, the Union’s legal institutionality is understood to be emerge only on the basis of a certain pre-existing social order.
In identifying its exact perimeter and location, the most common tendency is to resort again to values. However, values intervene here not as abstract commitments of the EU legal order. In the manner again of Article 2 TEU’s second clause, they appear instead as everyday practices that are observed as a matter of fact to prevail over a concretely situated area,Footnote 156 and reflect a certain way of life. To be part of European society, understood in this way, is to share and be integrated within this patterned social space. As again put by Commissioner Olli Rehn, it is values that determine borders, as accession is ‘about taking European values into the fabric of daily life … To implement them, candidate countries have to ensure these values are respected throughout society – so that police officers respect human rights at every arrest, for example, that judges are impartial, that teachers don’t discriminate against children of different ethnic origin, and that soldiers obey the rule of law’.Footnote 157
In this understanding, therefore, values take on a complicated double role. On the one hand, as discussed earlier, they constitute calls for action to which the EU is existentially committed, offensively and in a spatially unrestrained manner. On the other hand, they appear as concretely situated practices, the consistency of which is such as to give rise to a European society. As discussed earlier in Section 2, the commitment of EU law to the latter is not the same as to the former: they must be protected and defended qua features of the European society, whose concrete preservation is presupposed by the EU legal order. The Russia Today caseFootnote 158 is emblematic. It concerned a decision prohibiting a Russian broadcaster from operating within the EU, in the context of the invasion of Ukraine. The EU legal system is presented as intervening defensively, to protect against ‘disinformation and destabilization campaigns’ launched by the Russian State, which if left unchecked would undermine the operation of democratic institutions, as an essential component of ‘European society’. A complementary and mutually balanced relation is thus established between values and European society – European society serves as a countervailing force to the boundless projection of values, but values also serve to distinguish and give consistency to the social whole that the EU claims as its own. This is precisely the relation that was identified earlier in the architecture of Article 2 TEU, which distinguishes between the commitment to the realisation of the abstract values (clause one), and that to the preservation of a concretely situated European society (clause two).
Moreover, the concept of European society does not only serve to set the external boundaries of the EU legal order. The concept’s border effects go further than that – there is also an internally transformative dimension. The preservation of that internal space of patterned and value-laden social practices against outside forces also entails the production of internal boundaries. In other words, European society does not only set the limits of EU intervention, but also produces differentiated or stratified regimes within the broader field of EU law. Migrants for example may be protected in their ‘bare life’ but not as members of European society, to whom they are a represented as a potential outside threat.Footnote 159 As argued by Azoulai, it is the appeal to European society that serves to conceptualise migrants in this manner and on this basis subject them a differentiated regime: against them, ‘European society must be defended’.Footnote 160 Comparably, the EU is able to take action that is as energetic as it is spatially exempt from the values that are imagined to be so defining of European society, such as the rule of law. The concept serves instead as a limit on those values. In relation to enlargement, for instance, the use of conditionalityFootnote 161 or the very choice of who may qualify as candidateFootnote 162 are largely immune from judicial review. Similarly, the governance of migration flows at the EU’s external ‘borderlands’Footnote 163 appear to be exempt from any meaningful value-based scrutiny.Footnote 164 It seems as though in these cases it is borders that define values, and not the other way around as famously put by Olli Rehn.
It may be useful to make sense of such internal borders by returning to the notion of imperialism, which I used earlier to characterise the EU’s external ambitions from the early 1990s. That discussion focused mainly on the existence of a ‘civilising mission’ as an essential feature of imperial projects, which render outside borders more precarious. Such projects are however also characterised, from a formal angle, by structural inequality between the imperial core or metropole, on the one hand, and the imperial periphery, on the other.Footnote 165 The internal boundary between the two may be fluid,Footnote 166 but it is a highly determinative one. On that theoretical basis, it may be argued that European society serves to draw, not only the outer perimeter of the EU’s imperial projection, but the internal one of its imperial core. Thus, the existence of ‘double standards’, as put by Delcourt,Footnote 167 is not an anomaly but an essential feature of an imperial EU order. Or, to paraphrase Rana, there would be ‘two faces’Footnote 168 to EU values, as the recognition and protection of a European society would generate a dual and stratified regime: a core where EU values are fully guaranteed, and a periphery where they disappear or govern only in an attenuated form.
4. Conclusion
I have argued that answering the question of the role and meaning within EU law of an emergent concept of European society requires thinking carefully about its relationship to values. This relationship is not straightforward, and one should avoid reducing European society to simply the collection of EU values or the space generated by their effective realisation. As already seen in the architecture of Article 2 TEU, there is in fact a certain tension within EU law’s constitutional imagination between the commitment to the offensive realisation of abstract values on which the EU is declared to be founded, and the equally existential commitment to the defensive preservation of a concretely situated European society that is proclaimed as already in existence. That relationship is also one of complementarity, however, as it is through the prevalence of values that European society is distinguished, while the latter serves as the place that renders the EU’s axiological commitments possible.
Nevertheless, the heart of our argument has been that this relationship between values and European society, and the respective roles they occupy in the imagination of EU law, should be appreciated and understood as largely resulting from the EU’s external self-positioning, which then feed into its internal constitutional structure and identity – thus recognising, with Rana, the ‘deep linkages between external power and internal normative commitments’.Footnote 169 While the emergence of values as calls for expansive action largely track and reflect the rise of the EU’s neo-imperial aspirations from the 90s onwards, the countervailing commitment to the preservation of a European society is inextricably tied up with a preoccupation with defensiveness and boundary-drawing that has taken centre ground since the 2010s – leading to the accelerated production, both within and without the EU legal order, of spaces of inclusion and exclusion. Ultimately, therefore, it is submitted that, while close attention should be paid to the structure and autonomy of the EU’s constitutional imagination, its development may owe more to the legal ‘translation’ of shifting geopolitical imaginaries of the EU’s international position,Footnote 170 than to the internal logic of law and integration.
Competing interests
The authors declare none.
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