The EU needs to position itself amid rough geopolitical currents and withstand inner contestations. A concept such as European society, which aims to foster a better sense of belonging, deserves support. But pushing things forward via legal engineering may cause questionable shifts. This contribution contrasts previous historical episodes of collective singularism with the latest efforts to judge and write the EU into a new era of constitutionalism. In particular, I show that they reach a natural limit: primary law’s other basic norms.

Early Endeavors Par La Société Européenne

In his inaugural lecture in May 1789, Friedrich Schiller held that the “European society of states seems to have been transformed into a great family.” Peace, he wrote, “is now guarded by a permanently ostracized war, and one state’s self-love makes it the guardian over the prosperity of the other.” (p. 17, translation by author). Despite fundamental transformations shortly after, the idea of a société Européenne was maintained in the 19th century. In 1821, Georg Friedrich von Martens distinguished it from the rest of the world as a “particular assembly of states which, without ever having expressly contracted a general and positive society, has its laws, customs, and practices, and whose situation resembles, in some respects, that of a people who have not yet given themselves a constitution.” (p. 48–9, translation by author). Johann Ludwig Klüber held in 1819 that Europe may not be a people’s republic but very much a community of rights (“une communauté des droits”, p. 12).

When the Institute de Droit International was founded as la conscience juridique du monde civilisé (1873 Statute, Art. 1, see p. 41), one of its first projects was to carve out admission criteria into the communauté de droit de l’Europe for “less civilized” states. The project was abandoned (p. 127) but did not preclude noting elements of supranationalism in denser fields: Ferdinand von Martitz elaborated on a “supranationale Gewalt” (p. 414) in extradition law, the Commission of the Danube River exercised autonomous powers with direct applicability for decades (pp. 25), and William Hull classified the Hague Conventions as sources of an emerging “supranational law” (p. 282). Georg Jellinek held that the “ever growing solidarity between states” will give birth to “an organization that no longer relies on the will and power of individual states, but on that of the legal community, with binding force [zwingender Kraft]” (p. 110).

These European aspirations, built in isolation from power politics, lost sight of the doctrinal basis: Staatswillenspositivismus (p. 95–6 with n. 26) could accept any institution and pull its plug as it saw fit. After World War I, more utopian sketches for European unification and proposals like the Briand-Plan for a “European Union” in the League of Nations circulated – though the latter did not become the organization it was hoped to be (p. 64). Supranationalism and collective singulars left the stage while fascism and communism overtook political systems. In 1957, first-generation CJEU judge Louis Delvaux concluded that “these few rare swallows did not make spring” (p. 187, translation by author). At the time he wrote this, swallows of European integration were already deliberately promoted. And their numbers grew quickly.

Love Wedding

Two aspects underline the structural change that made “our” integration process possible. Key actors could revive ideas and bring in experience from the interwar period. Hermann Mosler built on elements for an international legal community through multilateralism and international organizations conceived in the interwar period (here). Jean Monnet added personal experience: as co-director of the League (p. 737) and his knowledge of the US Tennessee Valley Authority, one of the New Deal’s modernization instruments. It inspired his and Paul Reuter’s plans for what became the ECSC’s Hauté Authorité (pp. 86, 95–6).

More importantly, the new entanglement between politics, scholarship, and institutions became an enabling mechanism for unprecedented steps. Unimpressed by the failure of the European Defence and Political Community (Chapter 3), constitutional projections exploded. Lawyers, personnel of the Commission’s legal service, and CJEU judges writing “extra judicially” contributed greatly to it (p. 72). The Commission funded journals like CMLRev and helped to erect organizations like “Fédération Internationale pour le Droit Européen” (FIDE). A community of “academic allies” emerged – long before the CJEU took up constitutional semantics. The former paved the way for supranational emancipation vis-à-vis international law and member state law. Its central outcome is a methodology that shields flexibility without delegitimizing the constitutional claim but relies on it (in detail p. 14). These roots of the first successful stabilization of a common legal order are nothing that should be reversed but reflected on when moving forward.

All this happened without a collective singular, but specific individual rights. To recall Jean Monnet 1952: “Nous ne coalisons pas des États, nous unissons des hommes” (“We are not forming coalitions of states, we are uniting people”, translation by author). However, society reappeared as an analytical frame. In 1968, US political scientist Andrew Axline described

“the system in Europe as a society, composed of the various associations within its geographical area, including the national societies of the Member States. Within the society […] interactions take place among individuals, associations on a national scale and across national boundaries, between community institutions on the one hand and individuals, associations and Member States on the other, and among Member States in their capacity as sovereign states.” (p. 76)

Armin von Bogdandy’s approach – “Article 2 TEU’s society […] denotes the social whole, which encompasses all the institutions of the Union and its Member States as well as all their citizens and other residents” (p. 4) – thus appears familiar but differs markedly in its impetus. Although he points out being “agnostic about the ‘true’ depth, breadth, meaning, and importance of values in European society” (p. 13), he presents understandings that vary substantially in their consequences.

Re-reading Contemporary European Public Law as the Law of a Society

Reading European society into Article 2 TEU is far from uncontested, as commentaries from different countries show (p. 82 n. 150). Classifying it as the “ultimate social reference of Union constitutional law” (p. 62, translation by the author) goes one step further – and can, for the first time in the history of European public law, ground its claim on a Treaty norm.

The problems begin with surrounding narratives. The CJEU, the Commission, and supporting executives are said to have elevated EU law to a “new constitutionalism” (p. 3), or, more cautiously, the newer jurisprudence is “eventually an expression of the EU’s development towards a more mature constitutional order” (p. 17).

A closer look at the wider context tells a different story. Contrary to what is suggested, EU values are not a self-standing Geltungsgrund of the Treaties. They originate from interstate agreements like all other primary law provisions. This has consequences: Clear constitutional imperatives aim to limit expansive Union action (Art. 3(6), 4(1), and 5(2) TEU, and more), including the judiciary. The approach also displaces the ECtHR as the responsible institution for common standards when every first-instance court solves issues via references to Luxembourg. This has been noted (pp. 250–1) but isn’t reflected.

Second, the broader case law also tells a different story. There may simply have been an overconcentration on how often and for what purpose the CJEU cites Article 2 TEU. In other judgments, the main anchor – effectiveness – is as intact as ever (exemplarily paras 103, 117, 133, 170, 182) and got linked with value semantics. Thus, one could make the opposite point: values and the society framing are the newest form to preserve effectiveness (in detail pp. 241–78).

How far can (re)constructivism and the CJEU then go by pointing to the authors of the Treaties and assurances like Trust the Treaties when “it turns out that the structure of social reality does not adequately respond to the form of law”? (p. 654). Armin von Bogdandy recently underlined that in

“European society, there is a deep mismatch between what most Europeans expect from the Union and the capacities their national systems have granted it. […] To avoid erosion, the Union itself must narrow the distance between what Europeans expect and what it can deliver. That will take some creative lawyering; European society can rely on its lawyers for that.” (p. 314).

This conviction reminds me of Robert Lecourt’s “le sens de sa mission [celle de la Cour]” (pp. 235–6), only “celle de la doctrine” (on its function pp. 430–1).

The impression of an emergency operation with the unhealthy tendency to become permanent imposes itself, unconsciously continuing old mechanisms of ”federal self-constitution”: combining an axiomatic constitutional premise with a lot of doctrinal vagueness and flexibility to overcome political dysfunction. Roger-Michel Chevallier, who worked for CJEU President Lecourt, hinted in 1964 that key to understanding the Court’s general approach is the insight that it

“is beginning to decide cases in the spirit of a national court and no longer of an international court. In other words, the Court, instead of confining itself to noting in a mechanical way the wishes of the authors of the Treaties, seems now to consider the Common Market as a fact, of the existence of which it takes judicial notice and from which observation it draws the necessary consequences” (p. 34).

This early confession of doctrinal constructivism tells us we are not experiencing something new, only on a different constitutional and political plane.

The Last Sprung in the Ladder (Already)?

In Commission v Hungary, the CJEU deepened the elements of vagueness and flexibility. Only “manifest and particularly serious breaches of one or more values” may give rise to the finding that a Member State violated Article 2 TEU, without developing criteria. Repeat slowly: Values have to be violated in a certain way to violate Article 2 – ironically, so as not to deprive other primary law “of all effectiveness” (paras 550–1). The hierarchy and relation between values and effet utile seem more open than ever. The Court’s “manifest and particularly serious” formula rearticulates Article 7(2) TEU’s “serious and persistent” benchmark, certifying a takeover of constitutional responsibility that the Treaty authors delegated differently (see also here). Finding that Article 4(2) TEU is subordinated to Article 2 TEU (para 562) is, against that, crystal clear and hardly surprising (p. 769).

So, according to the plenary, we live in a European society where EU constitutional law accepts several value-violations without the “very identity of the Union” (para 525) being triggered? Okay. How to dissect EU-unconstitutional majority decisions from those disliked by concepts and attracted courts, then? Both get dragged into “the realities of power play” (p. 499), so there may be no criteria. The takeover does not seem to have been thought through. Arguing that only red lines are drawn is unconvincing, both in view of the effort and potential involved and as an argument in itself. As Sacha Garben put it, “to say that by only determining what not to do, EU law is not determining what to do” is an unconvincing and artificial approach to competence/conferral (p. 348), especially if Article 2 TEU jurisprudence piles up. Pointing to the fact that values precede objectives and competences to justify unlimited scope (pp. 99 and 268) overlooks Article 3(6) TEU, which limits the Union’s promotion of values for all organs to the order of competences.

Primary law thus rightfully refuses to let one organ and a partial epistemic community regulate the contours of a primacy-backed pluralism, which is itself, even if claimed otherwise, a call for homogeneity itself. Treating supportive executives and expert bodies as compensatory majorities (on this, p. 617) does not lead to self-reflection on the development of the order of competences as a core element of EU constitutional law and on the red lines that the value of democracy might draw against Luxembourg stepping in via Article 19(1) TEU.

The EU won’t become a maturing legal order by embracing old logics in new forms. It may bring relief that a refurbished path dependency, in the end, aims to preserve effectiveness. Let’s hope it works at least and the Union doesn’t age like Benjamin Button.