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Tom 91 (2012)

Wartości Unii Europejskiej jako wartości konstytucyjne

  • Aleksander Cieśliński
31 grudnia 2012



One of the greatest challenges of legal orders of modern times is the legal status of values, since there is no doubt that every legal system needs so called moral ground, and axiology is a widely accepted part of legal reasoning. Generally, it is not easy to define what this term means as for lawyers philosophical understanding might be too ambiguous. To cover the most fundamental of values constitutionalism developed a special category named constitutional values, which is currently seen as a well established one. These are not typical norms of behaviors, as they do not evoke rights and obligations and for some they do not even resemble principles as understood by Dworkin and Alexy.
There is a common agreement for their high hierarchical position and significance in the system along with the acceptance of the position of a constitutive element of a legal structure, despite the level of generality. The external origin of values might, however, turn out to be problematic, as they are left outside the sphere of discretion of the lawmaker and their content is ready.
Still, it is not easy to answer the question of what the category of “constitutional values” means and consists of. Traditionally, there was no doubt that in order to be legally valid values had to be established by the lawmaker, but as the naturalist perspective becomes more and more popular, judicial activism tends to “discover” new values that were not introduced explicitly by legislative actions. What is more, in the liberal democracy one has to face charges of amorality or moral neutrality of law as the result of such values’ choice that might be accepted in modern pluralistic society. There is certainly a common agreement as far as for example freedom, dignity, democracy, equality or rule of law are concerned. But some quest for “real”, traditional morality that is not to be found in the catalogue.
Nowadays, all the above challenges and questions are to be considered in the European Union law since values are no longer only a theoretical concept and common constitutional values of Member States are the base for this very legal system. There is no doubt that reforms introduced by the Lisbon Treaty caused major axiological change based on the same philosophy. Before one could find particular values in the text of Treaties especially Art. 6 TEU, at least since Maastricht, and in declarations — e.g. Declaration of European Identity — since the 1970s. However, there has not been a single legal provision of the Treaties to dare to use the fundamental term „values.” This proves the significance of the new Art. 2 TEU, which not only covers a much wider list of values, but first of all names them in this exact way. On the other hand, to understand the legal nature and function values have had in EU legal order for decades, one has to consider very well developed case-law of the former ECJ. Quite instructive seems especially the way the Court guaranteed for human respect of fundamental rights at the time when there was no Treaties’ provisions regulating this issue and legal protection was based actually on unwritten law, shaped as the general principles of law. EU continental lawyers may think that this a bit “common law way” of judging and is typical for this particular legal system, but not for national orders, even if the jurisprudence of constitutional courts is concerned. In exchange constitutionalists tend to see the brand of constitutional values as strictly related to their national constitutions. This comes as part of much overheated political discussion whether the EU itself turns into a state and EU Treaties might be qualified as a Real Constitution. There is no need for that, although Treaties function in EU legal order as if they were acts of constitutional nature and what is more, the expression of constitutionalisation of the EU is no longer only a theoretical concept. Therefore, since the European Union is such a common system of member states based on commonly agreed constitutional values, what seems to be really important is to officially accept the term “Constitutional Values of the European Union” — quite unachievable for those who prefer to stay on their side of the barricade and those who see as a final consequence of its usage the United States of Europe. However, if we compare decisions of judges of both mentioned kinds of courts, as well as quite similar lists of values, their status and nature on the European and national levels, there may be no doubt that at the end of the day it turns out to be more and more easy to find common features on both sides. In this way the above term seems to be fully justifi ed and should be introduced as a new basic category of EU law.