Protecting fundamental values in the European Union through the rule of law : articles 2 and 7 TEU from a legal, historical and comparative angle

Abstract

The present study combines practical experience with the implementation of Union law ‘on the ground’ with an academic approach. It intends to facilitate the interpretation of the fundamental values mentioned in Article 2 TEU and their main enforcement mechanism, Article 7 TEU, by putting them in a historical and comparative context. Both prove the importance of ‘homogeneity-provisions’ and their enforcement but also illustrate how rarely similar clauses have been used in other multilayer systems. From a practical perspective, the study shows the dilemma the Commission faces when confronted with the question whether to commence a formal procedure under Article 7 TEU. It has two options: either it opens the formal procedure or not. In the first scenario the initiative either finds the necessary majority in the Council/European (Commission ‘gets it right’) or it does not (Commission would be overdoing it, “false positive”). In the second scenario, it could happen that the necessary majorities for Article 7 TEU could have been obtained (“false negative”). The present study gives examples for all three outcomes (Weimar, Wallace and Vienna) and illustrates their consequences. It also shows alternative ways for the enforcement of the Fundamental Values protected by Article 2 TEU such as the infringement procedure under Article 258 TEU.