Introduction

This chapter addresses the following questions: In what sense can we speak of EU values? What is the link between EU values and the common good? What consequences should apply if a member state does not comply with EU values? How can EU institutions enable a systemic realisation of EU values? I argue that EU values are the public values jointly endorsed by the EU institutions and the political institutions of the member states by means of adopting EU treaties. I claim that EU values allow for the mapping of conditions and goals that member states jointly consider desirable, thus translating a shared understanding of the common good. I argue that this conception of the common good is distinctive because it comprises a particular model of liberal democracy, social welfare and environmental protection. However, I stress that the list of EU values is not European by definition; like-minded polities beyond Europe have also endorsed several of these values.

In view of the normative relevance of EU values, I claim that EU institutions should act as their guardians and enablers. First, I claim that the EU should put in place effective safeguards against internal breaches of EU values, including enforcing the provision of the TEU for the suspension of the voting rights of non-compliant member states and the creation of a procedure through which chronically non-compliant member states could be ejected from the Union. Second, I argue that the best way to empower national governments to address challenges against EU values is to further unite efforts at the EU level. In a globalised world, only regional blocks have the capacity to pursue the basic conditions that enable the public values of their members to be realised. Accordingly, I claim that EU member states could jointly launch a set of bodies with the critical mass to address the threats against EU values posed by non-state actors. I discuss three examples of such institutions: (i) a European Transnational Tax Authority; (ii) a European Credit Rating Agency; and (iii) a European Agency for Fair Trade.

I begin by discussing the notion of EU values and claim they are a meaningful concept in the EU political lexicon. Subsequently, I introduce the “thin” and “thick” conceptions of EU values, explaining why the latter is preferable. I then outline a list of EU values and identify the main distinguishing features of the European Model. Next, I elaborate on the role of the EU institutions as guardians and enablers of EU values in the current political and economic landscape. First, I present the problem of systemic noncompliance with EU values by the governments of two member states and discuss possible institutional solutions. Second, I explain how a wide range of non-state actors has gradually undermined the European Model. Focusing on its social dimension, I discuss three examples of new institutions that could re-empower the European public authorities to realise the goals of the European Model.

EU values: a meaningful concept?

What are EU values?

Recall that, in Chapter 1, I defined public values as the values endorsed by the political institutions of a given polity. By endorsing a particular set of public values, I meant the fulfilment of two complementary conditions: (i) granting them recognition in fundamental laws, notably constitutions and international treaties, and (ii) ensuring that public authorities act consistently in accordance with these values. I have argued that, unlike other categories of values, such as cultural values, public values should not be taken as given; they ought to be adopted explicitly by the relevant public authorities, and they bind all citizens equally, irrespective of their personal beliefs and worldviews. I have also claimed that, insofar as public values capture the fundamental conditions and goals that a given society considers desirable, they translate a substantive understanding of the common good. Accordingly, the public values of a given polity can be regarded as the pillars of its standpoint of the common good. As I have argued, these values are actionable through appropriate legislation, public policies and judicial decisions. Thus, the institutional framework within a given polity, as well as its public reasoning procedures and decision-making rules, should be set up in a way that fosters the realisation of its public values.

Now, this conceptual framework can be applied to the EU polity. Thus, EU values can be defined as the public values jointly endorsed by the EU institutions and the political institutions of the member states. In what sense have these institutions endorsed EU values? As far as EU institutions and policies are concerned, the TEU states plainly that they should be guided by EU values. Indeed, article 13 requires that “[t]‌he Union shall have an institutional framework which shall aim to promote its values”.¹ Furthermore, article 21 asserts that “[t]he 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 safeguard its values”.² Hence, EU values govern the functioning of EU institutions. Regarding the political institutions of the member states, the voluntary ratification of the TEU indicates their endorsement of EU values. Indeed, the TEU states that one of the primary purposes of the EU is to advance EU values: “[t]he Union’s aim is to promote peace, its values and the well-being of its peoples”.³ Thus, by ratifying the TEU, member states have agreed to abide by EU values. Furthermore, compliance with EU values is a fundamental precondition for accession to the EU. In fact, only a 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”.⁴

Against what has been argued by a few authors, EU values are not merely “a broad and flexible symbolic repertoire”.⁵ In fact, EU values are widely present in the primary institutional practices of the EU, including Council conclusions, decisions of the CJEU, resolutions of the European Parliament, trade agreements with third-party states, public justifications for adopting EU policies, and so on. The impact of EU values on policymaking is particularly notorious when it comes to policy areas that are, by definition, value-based. Consider, for instance, a wide range of EU policy actions in the fields of gender equality, the rights of minorities and artificial intelligence.⁶ In these areas, EU values have not been mere statements of intentions but an effective instrument to achieve social change. Thus, EU values have played a significant role in structuring certain transnational debates and in justifying collective action at the EU level. It should be acknowledged that “EU treaties and official documents do not refer to values in a fully coherent way”. However, this may have more to do with the ambiguous character of values such as liberty and equality than with the lack of substantive meaning of EU values.⁷ While, as we shall see, not all political actors comply with EU values, the “normative power” of those values in the current political landscape of the Union seems hard to deny.⁸

My understanding of EU values as an explicit agreement regarding public morality between the political institutions of the member states contrasts with the cultural approach to European values, which has been discussed in Chapter 1. Central to this view is the idea of an emerging European identity, which is arguably grounded on a transnational collective memory comprising points of reference such as the Roman Empire, Christianity and the struggle against totalitarianism, as well as shared symbols and meanings, including Mediterranean food and the Eurovision music festival.⁹ As I have suggested in Chapter 1, a key distinctive feature between these two accounts of values is the role assigned to human agency. While in my account, EU values are voluntary – that is, they might not have been endorsed by the political actors in Europe – the cultural account presupposes that European values are deeply attached to the cultural practices of Europeans and are somewhat inescapable. This assumption is problematic for at least two reasons. First, it neglects the role played by the citizens who, as free moral agents, should be in a position to decide which public values they wish to endorse (even if through the mediation of political institutions). Second, it fails to acknowledge the fact that a variety of cultures can be found within Europe and that many EU citizens do not regard themselves as Europeans.¹⁰

Unlike what one is often led to believe, the link between EU values and the European continent is not logically necessary but merely contingent. Admittedly, culture and history are part of the extensive list of explanatory variables that can tell us why a particular constellation of public values has been endorsed by a given polity.¹¹ For example, given that many member states have experienced the horrors of Nazism and communism, they may be intensely concerned about promoting pluralism and preventing discrimination. However, it is not necessarily the case that all European states that share, to a certain degree, a common history and cultural practices will adopt EU values. In fact, certain non-EU states have a “European” background, and yet their public values seem to be at odds with those of the EU. Consider, for instance, the case of Serbia.¹² At the same time, a few EU values have been adopted by non-European states or are arguably universal values, as the TEU itself claims.¹³ Therefore, EU values are normatively relevant because they have been endorsed by the political institutions of the EU member states and not because they were invented by ancient Greek philosophers or French revolutionaries.¹⁴ This view is consistent with Dario Castiglione’s compelling claim that the European identity is primarily a political identity (rather than a cultural one), which is grounded on the fact that EU citizens share common public values and take part in shared political institutions.¹⁵

Towards a list of EU values

So far, I have been referring to EU values as an abstract concept. Yet what specific ideals do EU values bring about? There are at least two possible approaches to this question. To begin with, what I dub the “thin” conception of EU values regards the latter as a loose and underspecified constellation of democratic values that are nonetheless useful as a public discourse that may serve a variety of purposes. In other words, EU values are mainly a rhetorical device lacking substantive meaning and may be called to justify contradictory political goals.¹⁶ On this account, the values listed in the TEU are too generic to provide a clear moral blueprint for the EU. Note that, according to the TEU, these values include “respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities”.¹⁷ According to this view, the fact that the TEU establishes a direct correspondence between EU values and the member states’ values warrants the former limited added value. Indeed, the TEU states that EU 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”.¹⁸ For these reasons, the “thin” account claims that EU values should be regarded as an open and flexible repertoire of the values of the member states.

Conversely, the “thick” account of EU values claims that EU values have robust substantive content and bring about a distinctive model of society. According to this view, the charge that the values listed in the TEU are too generic also applies to the constitutions of most world states, in which the exact meaning of values such as tolerance, justice and liberty is typically not expanded. Thus, the concrete implications of EU values should be derived from political statements and legal sources in which EU values have been interpreted by the EU institutions and member states, including Council conclusions and key decisions of the CJEU. Furthermore, the fact that EU values are derived to a certain extent from the values of the member states does not mean that they are irrelevant. On the contrary, the “thick” account argues that since many member states have projected their normative frameworks onto the EU, they expect the latter to take bold measures to realise these values. For example, in response to the conservative views of the so-called Visegrad Group regarding the admittance of refugees in Europe, President Macron stated that EU membership “is no menu à la carte”.¹⁹ Therefore, the main challenge faced by the “thick” account is to elaborate the values presented in the TEU by complementing them with a wider range of normative sources at the EU level.

A remarkable proponent of this view is Ian Manners, who builds on a broad range of official sources to substantiate the distinctive nature of the so-called “European Model”.²⁰ He outlines the shape of this model by analysing what he dubs “European perspectives” on five key dimensions of the social order: (i) economics; (ii) society; (iii) conflict; (iv) the environment; and (v) politics. The result is a list of nine TEU values that are coupled with qualifiers, namely sustainable peace, social liberty, consensual democracy, associative human rights, supranational rule of law, inclusive equality, social solidarity, sustainable development and good governance.²¹ What is compelling in Manners’s approach is not only his carefully argued list of EU values but also his ability to translate the latter into a concrete model of political, social and economic organisation.²² Indeed, he forcefully describes the model implicit in EU values as a liberal democracy backed by a robust welfare system and a commitment to a sustainable environment. According to Manners, this model is the outcome of a combination of liberal democratic values (such as peace, liberty and democracy) and social democratic ones (such as equality, solidarity and sustainable development). While he warns that these values “are not uniquely European”, he stresses that they play “a constitutive role in shaping the EU”.²³

Manners’s conception of the European Model is consistent with the insight that EU values differ not only from the public values of non-democratic states but also from those of other democracies, such as the United States. For instance, the fact that many materially deprived US citizens do not have access to basic healthcare coverage despite the country’s manifest affluence would be hard to justify within the European Model. Similarly, the fact that gun possession is permitted in the United States and publicly justified on the grounds of individual liberty is puzzling from the standpoint of the European Model. This reflection suggests that EU values are not just a set of dry institutional commitments without any practical expression. To be sure, empirical research has demonstrated that EU values are widely shared by EU citizens. Drawing on European Values Study data from 1990 to 2020, a recent study has concluded that EU citizens support EU values “strongly and increasingly over time”.²⁴ Yet, one might ask: if EU values are widely shared, why are they so contentious in the political arena? As we shall see in Chapter 3, the basic moral consensus within the EU is, at times, obscured by conflicting interests regarding the distribution of the burdens of realising EU values. However, the European Model’s distinctive nature is particularly apparent when contrasted with alternative models.

If Manners’s view is to be accepted, two important conclusions should be drawn. First, to the extent they consist of a substantive set of public values shared by all member states, EU values provide grounds for a transnational conception of the common good. Even if the member states’ national identities and political cultures are diverse, their political institutions have agreed upon a common value-based framework they wish to advance together. This framework provides them with a common moral standpoint from which they can assess policy choices in areas as diverse as international security, gender inequality and climate change. Second, adopting Manners’s view suggests that the “thin” account of EU values is unsatisfactory. While it is true that a few political actors have used EU values to serve diverse ends and that certain governments have avoided the burdens of realising the European Model, this does not per se eliminate the substantive content of EU values nor the responsibilities to realise the European Model. If anything, the fact that EU values are not always respected and that the European Model is being challenged by the current political and economic environment calls for a discussion about what means should be mobilised to implement them.

How should EU values be realised?

If there is, indeed, a distinctive list of EU values, how should EU institutions realise them? An episode that followed the appointment of Ursula von der Leyen as President of the European Commission in 2019 illustrates some of the tensions in play. Shortly after being appointed, President Von der Leyen announced the creation of a portfolio dubbed “protecting our European way of life”. While her stated intention was to address challenges to democracy, it was striking that the portfolio covered immigration policies. Her choice was strongly criticised by a wide range of actors who claimed that the EU should not seek to defend its values by searching for scapegoats.²⁵ Furthermore, the ambiguous notion of the “European way of life” lacks widespread agreement and anyway seems unsuitable for the EU polity.²⁶ Facing intense criticism, President Von der Leyen decided to rebrand this portfolio, which came to be known as “promoting our European way of life”. Yet this alternative branding raised additional doubts, particularly regarding the extent to which the EU should actively promote its model of social and political organisation. Regardless of a recent cross-party statement that “European values are not for sale”, it is not clear what this axiom would mean in terms of policymaking.²⁷ Hence, the following questions are in order: Should EU values be protected? If so, from whom? Should they be promoted? If so, among whom?

The answers to these questions are not as straightforward as one might think. On the one hand, there is an understandable distrust in portraying EU institutions as advocates of a set of values on the world stage. European states have a history of imposing violently their values on other countries, often under the guise of promoting desirable ends. Consider, for instance, the medieval Crusades, which claimed to defend Christian values, and the “civilisational mission” of the colonial period, which aimed at advancing the values of the European Enlightenment in the New World.²⁸ This record of using public values as a justification for oppressive practices has led a few authors to speak of the dark side of European values.²⁹ On the other hand, it is reasonable to think that political institutions should actively engage with the values they have endorsed, ensuring high levels of compliance and enacting policies that foster their fulfilment. For example, it may be plausibly argued that EU member states should teach the value of social equality in their schools and should create appropriate legal sanctions for those who engage in discriminatory behaviour. Similarly, they may soundly adopt public policies that put the value of social solidarity into practice, such as creating a universal healthcare system. This suggests that it may be not only desirable but morally required for EU institutions to advance EU values.

With a view to reconciling these perspectives, I shall claim that EU institutions should act as guardians of EU values and as enablers of the European Model, provided that the two principles for interstate relations discussed in Chapter 1 are met. By being a guardian of EU values, I mean preventing or responding to policies that are starkly at odds with EU values. For example, as I will claim, EU institutions should take action to address the systemic breach of freedom of speech by the government of Hungary. As we shall see, this could be achieved by creating effective mechanisms to enforce EU values. In turn, by enabling the European Model, I mean promoting certain basic conditions without which this model cannot subsist. More specifically, EU institutions should seek to build, in cooperation with other polities, an international order where the goals of realising liberal democracy, social welfare and environmental protection remain feasible. For instance, I shall claim that they should adopt bold measures to prevent international tax evasion, which jeopardises the functioning of the welfare systems of a few member states.³⁰ However, in line with what I have argued in Chapter 1, moral limits for the actions undertaken by EU institutions while performing their roles of enablers and guardians of EU values should be drawn by applying the principles of pluralism and respect for fundamental rights.³¹

Note that respecting the diversity of the conceptions of the common good does not imply that any EU action to advance its values should only produce effects within the political boundaries of the Union. This requirement would seem unfeasible in an interdependent world where many of the challenges faced by EU values do, in fact, originate beyond its borders. Consider, for instance, the recurrent cyberattacks and disinformation campaigns led reportedly by non-EU actors.³² As I have suggested in Chapter 1, the feasibility of the European Model – and likely of any other model – seems to require certain basic conditions to be fulfilled by the international order. For example, realising the value of sustainable peace within the EU is only possible if its neighbouring states maintain non-aggressive behaviour. Similarly, the EU depends critically on other polities to realise the goal of environmental protection. Given this high degree of interdependence, the EU has reasonable grounds to seek, within the limits of non-interference drawn by the principle of pluralism, an international order that enables the fulfilment of its public values.³³ Incidentally, as Chapter 1 has claimed, several like-minded polities beyond Europe have also endorsed a few EU values. As a result, polities in the EU and beyond can work together to create a socioeconomic environment that allows for the fulfilment of their overlapping values. Later in this chapter, I will offer a few examples of institutional reforms that might allow this goal to be achieved.

In the following sections, I will discuss in detail the role of EU institutions as guardians of EU values and enablers of the European Model in the face of the current political and socioeconomic landscape. I will focus my attention on two particularly complex and pressing challenges against EU values: (i) the systemic noncompliance with EU values by two member states and (ii) the disempowerment of several member states to pursue the European Model as a result of the constraints imposed by a variety of non-state actors. Why do these aspects deserve special attention? First, despite being particularly critical for the future of the EU, the ways forward in the existing literature are relatively scarce. Second, as will become apparent, each of these challenges triggers collective action problems, which can only be dealt with effectively at the supranational level. Therefore, I will present concrete EU policies and institutional reforms through which they could be overcome. While the following sections will focus on the substantive dimension of the common good, which, as Chapter 1 has argued, refers to the normative content of EU values, Chapters 3 and 4 will focus on its procedural dimension, discussing how decision-making in EU institutions could be more oriented towards the common good, regardless of the specific policy field at stake.

The EU as guardian of EU values

Why the EU should act on breaches of EU values

In recent years, EU values have been systemically breached within the EU, notably by the governments of Hungary and Poland under the Fidesz and the Law and Justice party (PIS) rule, respectively.³⁴ In Hungary, the public authorities have reportedly discriminated against certain minorities, have limited the freedom of the press, and have interfered in the functioning of schools and universities. For instance, in 2018, Hungary adopted legislation clearly aimed at preventing the Central European University – a renowned private institution funded by the American investor and philanthropist George Soros – from operating further in the country. Similarly, in 2021, the Hungarian Parliament passed a law that banned the dissemination in schools of contents regarding homosexuality and gender change. Similarly, the government of Poland has allegedly politicised the functioning of the judiciary, thereby challenging the rule of law. For example, in recent years, Polish authorities have arbitrarily changed the procedures for appointing judges to the Supreme Court and created a new disciplinary system that made judges of ordinary courts liable for the content of their judicial decisions, thus jeopardising their independence. As has often been stressed by the European Commission, the European Parliament and the CJEU, these actions are sharply at odds with the EU values presented above.³⁵

A question that has been raised in the specialised literature is whether and the extent to which the EU should take measures against these breaches.³⁶ The first reason to support such measures is that, as we have seen, the pursuit of EU values constitutes one of the fundamental goals of the EU.³⁷ Being a member of the EU presupposes upholding its values, and indeed, all member states have voluntarily agreed to comply with these values through the accession process. More specifically, they were required to fulfil the so-called Copenhagen criteria, which, among other things, assess the candidate’s performance in terms of democracy, the rule of law, and human rights.³⁸ Hence, “[t]‌he EU’s moral appeal as well as the backbone of its legal system collapse when its member states no longer honour EU values”.³⁹ Furthermore, it would be unfair to leave the non-compliant governments in a position where they can use their unwillingness to comply as grounds for paralysing the functioning of the Union. In fact, the governments of Hungary and Poland have recurrently blocked or delayed crucial EU legislation to obtain concessions concerning EU values. Consider, for instance, their veto of a critical EU plan to address the socioeconomic effects of COVID-19 on the grounds of a rule-of-law clause.⁴⁰ All this calls for the creation of mechanisms that can deal effectively with systemic breaches of EU values.

Against this view, it may be argued that insofar as they translate the collective will of democratic peoples, the policies of the non-compliant states should be respected.⁴¹ While many national citizens and activists have openly criticised the choices made by the governments of Hungary and Poland, they seem to have recruited significant support from their electorates. For example, Hungary’s Viktor Orbán has consistently obtained significant parliamentary majorities in general elections. Accordingly, so the argument will go, any attempt by the EU to enforce EU values will paradoxically lead to a “tyranny of values”.⁴² However, this argument misses the point that “[i]‌f it ceases to be a union of rule-of-law-abiding democracies, the EU is unthinkable”.⁴³ As I have mentioned, EU values are a crucial precondition for EU membership. One cannot plausibly be said to be a member of an association and then fail to comply with the most basic rules of that association. It should be added that the conception of democracy attached to EU values – namely, liberal democracy – does not hold that democracy should be directly equated with the collective will. This claim holds particularly when respect for human rights is at stake.⁴⁴ Even if, as we will see in Chapter 4, there are compelling reasons to think that the citizens’ views should play a more prominent role in EU politics, they do not obliterate the responsibility of the national governments to comply with EU values.⁴⁵

Beyond the normative reasons presented above, there are strong pragmatic arguments as to why systemic noncompliance with EU values should be tackled through the creation of effective mechanisms. A particularly significant one is linked to the capacity to respond to a scenario in which defiance of EU values spreads out. Consider the following questions: what if not just two but four or five member states were to be ruled by political parties and leaders that systemically breached EU values? Furthermore, what if a large and powerful member state, such as France, which can influence EU policy on its own, were to follow a similar path? Under the current institutional configuration, any of these scenarios would likely jeopardise the EU institutions’ ability to uphold EU values and promote the common good of the EU polity. Indeed, one could anticipate that in a strongly divided European Council, national governments would increasingly fail to stand behind common values and seek balanced compromises regarding the distribution of the burdens of the common good. Similarly, a European Parliament increasingly dominated by nationalist and extremist political parties would likely fail to denounce breaches of EU values perpetrated by the national authorities. This conjecture suggests that the EU polity needs to be well-equipped to deal with such a scenario, should it ever come to light.

It would be a mistake to quickly dismiss these scenarios as unlikely. Since the landmark electoral result of the Freedom Party in Austria in the early 2000s, the position of the nationalist parties in the EU political system has steadily strengthened. Indeed, by the end of 2019, these parties had won more than 20% of the votes in elections in five EU member states and more than 10% in 14 of them.⁴⁶ In a few member states, these parties have become key political actors. For example, the extreme right party Sweden Democrats became the second largest political force in Sweden in 2022, providing parliamentary support to the governing coalition. This trend has not only been observed in small member states but also in some of the most influential ones. Indeed, the nationalist party Brothers of Italy was the most voted party in the 2022 Italian general election, which allowed its leader, Giorgia Meloni, to become Italy’s Prime Minister. In turn, the far-right Marine Le Pen has twice reached the final round of the French Presidential election, attracting 41% of the votes in 2022.⁴⁷ In Germany, the nationalist platform Alliance for Germany has performed well in several national and regional elections since its foundation in 2013 and became the third largest political force in the country in the 2017 general election. We therefore have good reason to think that, under favourable political and socioeconomic circumstances, nationalist platforms could take an even more prominent role in Europe, putting EU values seriously at risk.

A development that may make this landscape even more challenging is the future EU accession of countries with a poor track record of compliance with democratic values. For example, Albania, North Macedonia, and Serbia – which all possess full candidate status – are still “transitional or hybrid regimes”, according to the Freedom House index of democracy.⁴⁸ In turn, Bosnia-Herzegovina, Kosovo, and Ukraine, which are also on their way to accession, are ranked similarly or even more poorly.⁴⁹ This prospect reinforces the need for the EU to create effective response mechanisms.

Despite having recurrently expressed grave misgivings about the noncompliance trend, the instruments that the EU has set in place to address this problem have so far been ineffective.⁵⁰ As we shall see, the Commission has made several (albeit unsuccessful) attempts to launch an instrument to enforce the provisions of the TEU related to EU values.⁵¹ Similarly, a wide range of statements and resolutions by the European Parliament, notably the so-called “Tavares report”, have fallen short of an appropriate follow-up.⁵² Other “soft” EU instruments, including the European Semester and the annual rule-of-law dialogue, have been equally ineffective.⁵³ Similarly, strategies within the domain of interstate relations, such as isolating non-compliant governments – along the lines of the cordon sanitaire created by several member states when the leader of the Austrian Freedom Party was about to become chancellor in 1999 – have become politically unfeasible in a context in which the constituencies of most EU states feature well-represented nationalist parties. While some progress has been made concerning setting financial penalties for the backsliding states, “pretty much all the discussion of the enforcement of EU law has until very recently been ignoring a crucially important element of the puzzle of the effectiveness of EU law: values”.⁵⁴ For these reasons, “the enforcement of values should occupy a key place in the story of the enforcement of EU law”.⁵⁵ Yet how can this be achieved?

Making article 7 of the TEU work

In 2010, the Treaty of Lisbon introduced a new provision aimed at enforcing EU values, which relies on the powerful threat of suspending the voting rights of non-compliant member states in the Council of the European Union. More specifically, article 7 of the TEU states that the Council, “acting by a majority of four fifths or its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2” – that is, EU values.⁵⁶ Then, acting by unanimity, the European Council “may determine the existence of a serious and persistent breach” by that member state.⁵⁷ If this is the case, then the Council, “acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the member state in question, including the voting rights of the representative of that member state in the Council”.⁵⁸ This sanction could be revoked “in response to changes in the situation which led to their being imposed”.⁵⁹ Despite its apparently serious consequences for the backsliding states, article 7 has hardly contributed to higher compliance with EU values. In fact, this provision has only been activated once by the Commission, without any follow-up at the Council level.⁶⁰ Why, then, does article 7 not work?

One of the reasons is linked to the practical difficulties in setting up a functioning and credible mechanism to identify serious breaches of EU values. What should the criteria for a serious breach of EU values be? What agents should decide on whether this threshold has been crossed? In this regard, article 7 is admittedly vague.⁶¹ To address these shortcomings, in 2014, the Commission launched a three-step procedure to trigger article 7, in which the former would play a major role.⁶² However, this methodology has received sharp criticism from the Council Legal Service, which considers that the framework set out by the Commission “is not compatible with the principle of conferral which governs the competences of the institutions of the Union”.⁶³ In turn, national governments do not seem to be in a position to assess one another’s compliance, both because they could use this opportunity to serve their own political purposes and because their fear of future retaliation could prevent them from ever censoring their peers. Finally, the party politics underpinning the functioning of the European Parliament seem to make it unfit to objectively assess any infringement of EU values, as the European People’s Party’s reluctance to expel Viktor Orbán has shown.⁶⁴ These observed difficulties suggest a lack of criteria and agency to apply article 7 of the TEU.

Another reason is that the sanctions foreseen by article 7 may be too extreme to deal with certain types of infringement. For this reason, former European Commission President José Manuel Barroso has described invoking article 7 as “the nuclear option”.⁶⁵ This description not only reflects the dramatic nature of the sanctions at stake – namely, curtailing member states’ voting rights in the Council – but also the fact that all the players would be forced to take sides in a procedure against a particular member state. Such a requirement might deepen the already pronounced divisions within the Union, strengthening the role of alliances such as the Visegrad Group. In the absence of a widely trusted mechanism that could issue early warnings regarding noncompliance, which would then be followed by proportional sanctions, EU institutions are faced with a difficult choice: they can either seek to use the “nuclear option”, thereby risking antagonising some member states and jeopardising the credibility of the mechanism, or they can abstain from acting, thus tolerating the systemic infringements of EU values mentioned above. A less polarised setting in which intermediate steps were taken could produce a faster and more effective response to breaches of EU values, particularly given that the activation of article 7 seems to imply a rather lengthy process.

Jan-Werner Müller has put forward a promising proposal to address these concerns.⁶⁶ Müller argues that the EU should launch an independent watchdog to monitor compliance with EU values – which he tentatively dubs the “Copenhagen Commission” in reference to the Copenhagen criteria for EU accession. This independent body would develop sound criteria to assess compliance with values such as the rule of law and freedom of speech, as institutions such as the Council of Europe and Transparency International have successfully done. According to Müller, this new entity would require an autonomous apparatus, which would be empowered to investigate relevant developments in the member states. More specifically, the Copenhagen Commission “should be composed of legal experts (such as judges seconded from national systems, or retired judges, or also academics) as well as statesmen and stateswomen with a proven track record of political judgment”.⁶⁷ Regarding the opening of investigations, this body “should be able to take the initiative in cases of possible threats”.⁶⁸ This independent structure would allow this commission to operate impartially. As Müller rightly concludes, this body could then aspire to be “an agent of credible legal-political judgment as to whether a country is systematically departing from what one could call the European Union’s normative acquis”.⁶⁹

Yet, unlike what Müller seems to suggest, the proposed Copenhagen Commission should be a complement rather than a substitute for article 7. Müller argues that this new entity should not only have a monitoring role but also the power to enact sanctions against the member states. Yet this would bring the EU from one extreme scenario in which EU values can be politicised to another in which the actions of the guardians of EU values are not subject to any form of democratic scrutiny. Alternatively, it is plausible to conceive a scenario in which the Copenhagen Commission would regularly produce country reports that could function as an early warning system and give credible grounds for activating article 7. For example, it would be possible that a certain number of consecutive reports of a particular country scoring very poorly would automatically trigger a debate under article 7. However, in order for a suspension of the voting (or other) rights of a given member state to take place, there would still be the need for a vote by the European Council under the qualified majority rule. This combination of independent and democratic procedures would arguably strike a desirable balance between impartiality and legitimacy, ensuring that legal and political evidence could be reliably collected while avoiding the complete outsourcing of the process to an unelected agency. This option also has the advantage of likely being more feasible than a fully-fledged independent body.⁷⁰

Beyond article 7 of the TEU

Yet the question remains: what if, despite the warnings of the Copenhagen Commission, the activation of article 7 of the TEU, and even the suspension of its voting rights in the Council, a given member state insists on not complying with EU values? In such a case, the suspension or withdrawal of its membership should be considered. As we have seen, the TEU states that one of the main goals of the EU is to realise a particular set of public values.⁷¹ If a state consistently refuses to be aligned with the aim of the Union and to comply with its basic functioning rules, then its membership may be inappropriate. In fact, the Copenhagen accession criteria should not be regarded as a one-off list of conditions for membership but as a stable set of requirements that apply as long as a state remains a member. Accordingly, “the same conditions which need to be met when it accedes to the EU can logically become a reason to eject such a Member State from the EU”.⁷² While the TEU comprises a legal procedure for the voluntary withdrawal of a member state, it does not include any provision regarding the suspension nor termination of EU membership at the request of the other member states.⁷³ Note that this sort of mechanism already exists in other international organisations. For example, articles 7 and 8 of the Statute of the Council of Europe provide the legal basis for the suspension and expulsion of its members.⁷⁴

As Carlos Closa has argued, the current state of affairs could be improved by creating a procedure in the TEU through which chronically non-compliant member states could be ejected from the Union.⁷⁵ The advantages of creating this type of provision would clearly outweigh the shortcomings. To begin with, the new mechanism could have a deterrence effect, creating higher incentives for compliance. Yet why should we think that the threat of expulsion would be sufficiently compelling to persuade backsliding member states to change their behaviour? At the very least, the high political and economic costs of a withdrawal, illustrated so vividly by Brexit, would give national governments much food for thought. Second, the ejection procedure could “potentially reinforce the effectiveness of other sanctions”.⁷⁶ This potential reflects “[t]‌he huge effects of such a procedure’s eventual deployment probably make the threat itself unusable, while making less harmful penalties more credible at the same time”.⁷⁷ While the objection that by expelling a backsliding member state, the EU would abandon its citizens to their own luck is compelling, it could be partially avoided if the suspension of membership was also possible. In turn, using this instrument for political purposes could be avoided by setting up a rigorous inter-institutional procedure. Finally, the objection that it would be unfeasible to make this change in the treaty does not necessarily hold since, after all, the Lisbon Treaty broke the withdrawal taboo.

A new package including a Copenhagen Commission, a fully functioning article 7 and an ejection mechanism would offer a coherent institutional framework to ensure compliance.⁷⁸ It may be argued that by adopting sharper mechanisms to enforce EU values, EU institutions would fuel nationalist narratives by boosting the perceptions of supranational interference in domestic politics. This move, so the argument would go, could ultimately prompt a few member states to leave the EU. However, it should be emphasised that the EU should not seek to avoid fragmentation by forfeiting its public values. From the standpoint of the common good, the scenario of a shrinking EU, while certainly undesirable, is possibly not the worst outcome. In fact, an arguably more damaging scenario would be one in which the goals and competences of the EU would be gradually downgraded due to pervasive internal conflicts, leading to a thinner form of intergovernmental organisation. Such a circumstance would undoubtedly limit the EU’s ability to seek the common good. Yet, this does not mean that the concerns regarding the top-down governing of the Union should simply be ignored. As I will claim in Chapter 5, EU institutions’ enhanced role as guardians of EU values should go hand in hand with wider opportunities for citizens to participate in the political processes that translate these values into policies.

The EU as enabler of the European Model

A few challenges facing the European Model

As I have argued earlier, the EU institutions’ tasks regarding EU values should go beyond addressing the issue of noncompliance. Indeed, they should also promote certain enabling conditions that empower the member states to successfully put this normative framework into practice. The role of EU institutions as enablers of the European Model has become particularly important in the face of the emergence of a wide range of non-state actors, which no state can effectively control. This trend linked to globalisation has put public institutions “under siege”.⁷⁹ This is both because it subjected many national political systems to powerful minority interests and because it undermined certain tools and resources that were traditionally at the disposal of national authorities to advance the public interest.⁸⁰ As I shall explain below, the steady disempowerment of the national actors that were traditionally able to implement policies for the common good has translated into a lack of means to realise fully the three dimensions of the European Model – namely, liberal democracy, social welfare, and environmental protection. These problematic developments have only been worsened by the neoliberal agenda implemented across the EU, which is clearly incompatible with certain aspects of the European Model.⁸¹ As a result, the EU and its member states find themselves in a position where they lack the political agency and the economic resources to realise their shared conception of the common good.

These constraints imposed by non-state actors have affected each dimension of the European Model in its own way. Regarding liberal democracy, a few examples are worth mentioning. For instance, a wide range of disinformation campaigns hosted by social media platforms has discredited science in the public debate, leading to a “post-truth politics in Europe”.⁸² Consider, for instance, the widespread scepticism regarding the effects on human health of the COVID-19 vaccines.⁸³ While misinformation is also recurrent in political campaigns that shape the future of the Union, such as that of the Brexit referendum, private platforms such as YouTube retain the power to decide what content to allow and what to ban.⁸⁴ At the same time, hacking critical information systems can potentially undermine democratic institutions, as illustrated by the 2021 cyberattack on an Italian COVID-19 vaccination booking system. Despite the progress achieved through the adoption of the General Data Protection Regulation (GDPR) by the EU, the personal data of EU citizens is exposed to constant harassment for commercial and surveillance purposes.⁸⁵ While the opportunities for citizens’ participation in EU policymaking are regarded as scarce, the lobbying by well-organised interest groups in Brussels is reportedly flourishing due to a “lack of comprehensive regulation”.⁸⁶ These examples indicate that democratic values are facing multiple challenges in the EU.

In turn, the social dimension of the European Model is also under pressure. Under the current regulatory framework, multinational companies can easily relocate their production to states without robust welfare systems. They can also easily change their fiscal headquarters to ensure tax optimisation. As I have argued elsewhere, this state of affairs jeopardises the fiscal capacity of several member states that do not have the resources to play the game of tax competition.⁸⁷ In addition, multinational companies have led most member states to lower the protection level of their workers to prevent further delocalisation of private investment, thus leading to so-called social dumping.⁸⁸ At the same time, global business giants – particularly in the digital sector – recurrently avoid paying taxes on profits earned in most countries where they operate.⁸⁹ In turn, the private rating agencies have acquired the power to decide the fate of the member states’ social welfare models by rating their public debt. Indeed, if they classify the treasury bonds of a given country below a critical threshold, its borrowing rates will skyrocket, forcing it to undertake swingeing cuts in its public expenditure to secure much-needed access to the financial markets.⁹⁰ Note that this rating process is hardly scrutinised. In the face of these and other constraints, the public authorities within the EU seem hard-pressed to counteract the rise of socioeconomic inequalities.

Finally, the environmental dimension of the European Model has also suffered from the constraints that the EU and national institutions face to pursue their values. A case in order is climate change. A recent United Nations report has concluded that, even if all countries were to comply with their current climate targets, the global temperature would rise by 2.7 degrees Celsius by the end of the century, with catastrophic consequences.⁹¹ Despite the efforts made by EU institutions, notably through the European Green Deal policy package and the European Climate Law enshrining it into law, well-organised interest groups have recurrently lowered the ambition of EU regulation. As an illustration, consider the pressure successfully made by the automobile industry to downgrade the EU’s CO₂ fleet targets.⁹² Similarly, the EU has been compelled to postpone more ambitious climate targets in the face of threats that multinational firms will relocate offshore, presumably in search of alternative locations where environmental protection costs are lower. While this risk can be contained through a “carbon tariff” restricting EU imports from states that do not comply with high environmental standards, such a measure was only recently introduced on a very limited set of goods.⁹³ This state of affairs has led several environmental groups to assess EU climate policy as “not enough”.⁹⁴

These are just a few examples of the ways in which non-state actors undermine the feasibility of the European Model, to which many others could be added. Altogether, these developments have put the EU at a crossroads. On the one hand, bold measures to re-empower political institutions in relation to non-state actors are not easy to set in place since they presuppose a willingness to counteract well-organised interests and the ability to recruit broad domestic support to further regional integration and new supranational bodies. Pressed by the rise of nationalist parties and urged to deliver results in the short term, national governments have often been unable to seek more structural solutions at the EU and global levels. On the other hand, a failure to deliver on the EU’s promise of boosting democracy and social welfare within Europe will likely only increase Euroscepticism and fuel nationalist discourses. As Michael Sandel has argued, if citizens’ urge to regain control of their collective future is not addressed by the mainstream political parties, it may well be picked up by nationalist platforms, as has happened in the United States and the United Kingdom.⁹⁵ This possibility indicates that there are not only normative but also pragmatic grounds to reform the political and economic configuration of the EU.⁹⁶ For these reasons, the EU should act promptly to rescue the European Model.

How to rescue the European Model?

While a variety of social and political actors have called on the EU to address these challenges, a consensual political vision to achieve this goal seems to be missing. In the scholarly literature, arguments in favour of the prioritisation of the public interest vis-à-vis private agendas have notably been advanced by republican political theorists.⁹⁷ Republican theories address multiple forms of domination undermining freedom in contemporary societies, thereby re-empowering citizens to shape their collective future. Yet, many republican theorists regard the EU institutional apparatus as an additional source of disempowerment rather than a channel through which that predicament can be overcome.⁹⁸ Indeed, they tend to regard sovereignty as instrumental to realising the common good. By delegating many core competences to Brussels, so their argument goes, national governments have alienated the means to pursue this goal. Accordingly, the solution consists in recovering the state powers that were once outsourced, thus re-establishing the sovereign status of the nation-state. While a limited number of republican accounts acknowledge the irreversible character of globalisation, they remain sceptical of large-scale international organisations, seeking ways to recalibrate the state in the face of expanding competences.⁹⁹

However, this strategy of returning to the Westphalian world would hardly be effective. Indeed, as I have suggested, individual member states are currently too weak to impose high social and environmental protection standards on a wide range of non-state actors. In view of this, the republican scholar Philip Pettit has recognised that “free peoples” need to be “entrenched against domination by other states and from the various non-state actors”.¹⁰⁰ Yet, a united front of like-minded states presupposes hard choices, which, unlike what Pettit seems to suggest, are unlikely to be made only through ad hoc consensual agreements. As Chapter 3 will show, this becomes apparent by comparing the outcomes of two main decision-making methods in the EU. For example, in the field of tax policy, the unanimity rule typically brings about suboptimal policy outcomes, which consist of the minimum common denominator between the positions of the member states.¹⁰¹ For this reason, unfair practices such as tax competition and tax avoidance are widely disseminated and have never been properly addressed. By contrast, in the domain of consumer protection, where the qualified majority rule applies, an extensive body of regulation promoting the safety and health of EU consumers has been enacted. This state of affairs suggests that a stronger emphasis on supranationalism is needed to enable the European Model.

In fact, the most effective way for the member states to address the challenges presented in the previous section is not to reclaim sovereign control but to join forces to transform the international environment in which they are embedded. Indeed, the scope of its political institutions and the size of its common market empower the EU to pursue the common good beyond borders in at least three ways. First, democratic institutions such as the European Parliament and the Council of the European Union can host a pan-European debate about certain interdependencies linked to the fulfilment of the European Model and which cannot be satisfactorily addressed by the national democracies. Consider, for instance, the cases of international tax avoidance and climate change. Second, the EU institutional framework comprises effective supranational enforcement mechanisms that can be used to implement ambitious agendas for the common good. Consider, for example, the binding decisions of the CJEU. Finally, economic integration gives EU member states significantly higher leverage to defeat private actors that jeopardise the public interest, notably through the threat of exclusion from operating in the world’s largest internal market. Hence, the member states could seek to achieve together the political and economic conditions that the European Model presupposes.

What would this mean in practice? In the next section, I will illustrate how certain institutional reforms could create the enabling conditions to realise the European Model. Given the limitations of space, I will focus on the social dimension of the European Model, presenting proposals for new EU bodies that could address some of the challenges mentioned above. More specifically, I will claim that the three following supranational bodies should be launched: (i) a European Transnational Tax Authority (ii) a European Credit Rating Agency and (iii) a European Agency for Fair Trade. By at least partially shielding the national welfare systems from the pressure exerted by tax avoidance, financial speculation and fierce trade competition, these proposals could create an economic environment more consistent with the social dimension of the European Model. While this package does not aim to be exhaustive, it would be sufficiently ambitious to produce a significant transformation of the international order and to allow the governments of the member states to ensure a decent level of social welfare for their citizens.¹⁰² The following chapters will expand this argument by outlining a broader institutional apparatus that would be equipped to interpret and realise EU values in the face of multiple and evolving challenges.

Three proposals for EU institutional reform

Let us begin with the proposal to create a European Transnational Tax Authority. This new EU body would have a clear purpose: preventing and tackling tax evasion. More specifically, it would have a mandate to ensure compliance with tax regulation by transnational economic players. To begin with, it could scale up the member states’ efforts to enforce the national tax laws by cross-checking critical sources of information, including tax declarations and financial statements in the multiple locations where a given agent operates.¹⁰³ Furthermore, this new authority could effectively enforce supranational tax regulation, notably the two-pillar strategy to address the fiscal challenges underpinning digitalisation, which aims at ensuring “that multinational enterprises will be subject to a minimum tax rate of 15%, and will re-allocate profit of the largest and most profitable multinational enterprises to countries worldwide”.¹⁰⁴ Thus, this EU body would then ensure that the minimum rate is duly applied and the reallocation of profits takes place. If cross-border inconsistencies were detected, the agency could refer the case to the national authorities, which could then press legal charges.¹⁰⁵ In addition, the tax authority could make recommendations for EU legislation on transnational taxation and disseminate best practices. By containing tax evasion, this agency could reduce the budgetary pressure, which has led to the shrinking of several national welfare systems.

Another institution that could add to these efforts would be a European Credit Rating Agency. Set up as an independent public agency, this body would bring about more transparency and fairness to the credit rating process. The purpose would be to provide a sound and credible analysis of the member states’ public debt, which investors and policymakers could then use as a reference. In fact, the existing private agencies “may have incentives to be lax in its ratings when a bubble is about to burst and severe after a shock that has hit its reputation and the economy”.¹⁰⁶ While these agencies are subject to the supervision of the European Securities and Markets Authority, it is usually impossible to fix any damage caused by inadequate credit rating. Consider, for example, the US subprime crisis and the EU sovereign debt crisis, which were at least partially the outcome of a failure to assess the credit risk accurately.¹⁰⁷ An independent public body could solve the problematic conflict of interests stemming from the fact that the “big three” rating agencies belong to firms with their own investment agendas.¹⁰⁸ The objection that an EU agency would be exposed to political interference by the national governments could be avoided by replicating the governance structure of the European Central Bank (ECB), whose independence is trusted by the markets.¹⁰⁹ By creating a more reliable rating system, this agency could reduce the speculation on the possible default of treasury bonds, partially shielding the European standards of social welfare from the aggressive dynamics of the financial markets.

Finally, the European Agency for Fair Trade would seek decent standards of social rights for all EU and non-EU workers involved in the production and distribution of goods and services exchanged in the common market. While many trade and investment agreements between the EU and other regional blocks and states contain dispositions regarding working conditions, they are insufficient and poorly enforced.¹¹⁰ As a result, the EU imports goods from companies whose labour standards would not meet basic standards inside the European Union. This circumstance has an obvious impact on the welfare and well-being of the local workers who suffer from poor working conditions, but also on the EU workers who are exposed to fierce competition by exploitative companies. To improve the position of workers in the EU and beyond, the Agency for Fair Trade could create a scorecard to monitor the working conditions in countries with which the EU has sizeable economic relations.¹¹¹ For those trade partners below a given threshold of decency, a social tariff would be applied to their exports to the EU.¹¹² While it may be argued that this system would affect the economies of some poor countries, mitigating measures could be foreseen, such as upscaling the resources available for capacity-building and granting temporary exceptions to countries below a given level of development.¹¹³ This policy would protect EU workers from the competitive pressure of global trade and incentivise other regions of the world to offer better conditions to their workers.

These examples illustrate the point that the renewal of the EU institutional setting could enhance the feasibility of the European Model. This strategy could be replicated in other dimensions, namely by creating supranational institutions that could support liberal democracy and environmental protection. It should be emphasised that this enhanced EU institutional framework should be democratically responsive. Depending on the level of ambition of the mandates of the new EU bodies, a revision of the EU treaties might be required to launch them. In any case, the operation of these agencies – and, for what matters, of several other EU agencies – should be subject to regular democratic scrutiny. In Chapter 4, I will explain ways in which the EU institutional setting could become more democratic, and the opportunities for citizens’ participation could be expanded. More specifically, I will claim that the interdependencies underpinning the EU membership should be subject to the scrutiny of an EU Citizens’ Assembly, which would have meaningful agenda-setting powers. Combined with the internal reforms of the EU decision-making processes presented in the following chapters, this renewed institutional framework would give the EU the firepower to uphold its public values in a complex global scene.

Conclusion

I have argued that EU values are a substantive conception of the common good, which all the member states have endorsed. More than just a statement of intentions, they have shaped concrete EU policies in multiple areas and been translated into a distinctive model of social organisation – the European Model. I have observed that EU values face difficult challenges from within the EU and beyond and argued that the EU should put in place an effective mechanism to enforce article 7 of the TEU, namely by relying on a new “Copenhagen Commission” that would monitor member states’ compliance with EU values. Furthermore, a provision to expel chronically non-compliant states should be added to the treaties. In the face of the multiple threats posed by non-state actors, I argued that the member states should join efforts to create an international environment in which the European Model can flourish. In practice, this would imply upgrading the EU supranational framework to develop the means to shield the three dimensions of the European Model. With a view to ensuring the feasibility of a decent level of social welfare provision in particular, the EU should create a European Transnational Tax Authority, a European Credit Rating Agency and a European Agency for Fair Trade.