Eötvös Loránd University (ELTE), Budapest, 23-24 January 2025

ELTE Faculty of Law was honored to have a masterclass with Professor Armin von Bogdandy, director at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, and Professor for Public Law at the University in Frankfurt/Main, moreover, one of the leading EU law scholars. The masterclass included four sessions focusing on the legal concept of EU society; on New European Constitutionalism; on the relationship between the Union and republicanism; and finally on the recent decisions related to Hungary and Poland that signify the new, principled constitutionalism.

Several colleagues from our department participated at the masterclass, and put together an admittedly incomplete and subjective list of takeaways from the readings and the discussions. Please note that by takeaway we mean food for thoughts that we carry with us to further reflect on. Therefore the aim of this list is not to give a gist of what the presentation covered, but just to highlight some thought provoking aspects.

1. European society is – or will be? – a feasible legal concept

The goal of the first paper was to show that European society is a feasible and legitimate legal concept. Professor Bogdandy based his argumentation on Art 2 TEU, more precisely on its second sentence stating that ‘[basic values of the union] are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” [emphasis added]. 

The paper argues for a society-centered concept, as opposed to state- or market centered approaches to the EU as a political community. It is argued that both with the help of textual and systemic methods of interpretation a legal concept can be construed. In this understanding, Art 2 TEU implies a European society whose borders are the same as the Union. It was also stressed that this concept does not deny societies of the Member States. One keyword is Vergesellschaftlung (Simmel), that is, a process oriented approach towards society. This, as the paper goes, enables us to use the insights of process-oriented concepts of European integration and Europeanization. Moreover, in this society-centered understanding conflict is a normal part of society, therefore societal cleavages – to an extent – does not constitute an argument against, rather for a European society.

2. Academia has an important task when a concept is born

When answering a question Professor Bogdandy underlined that European society is a legal concept, therefore in itself it does not have legal consequences, but might be relevant when used in a legal argumentation by the ECJ. A conclusion is that concepts matter, as they are ingredients of future legal argumentations, even if they do not have a settled background in case-law or distinct contours. 

It was also highlighted that academia has an important task, when such a concept is born. Academia has to help legal actors to come up with the new concept, however, in the lack of a full-blown case-law, classic black-letter law methods have to be supplemented with interdisciplinary argumentation. This inevitably requires the involvement of social theory and social science in general. Professor Bogdandy emphasized that European society as a concept is neither fully normative or empirical, but of legal nature, that is, a mixture of what is and what shall be.

3. There has been a move from functional- to principled European constitutionalism

The second lecture outlined that the Lisbon Treaty marked the conclusion of a reorganization project that spanned for about ten years. This process resulted in the first 19 articles of the Treaty on European Union (TEU) becoming the foundation of the EU treaties and the core of new EU constitutionalism. Among these, Articles 1, 2, and 3(1) stand out as the constitutional core of the Union and, more broadly, of European constitutional law. Professor Bogdandy specifically highlighted Article 2 TEU. In his view, this article provided the EU with a new principled foundation: henceforth, the Union is based not only on the voluntary acts of the contracting parties but also on shared values. This represents a qualitative change and legitimizes the new constitutionality in the practice of the Court of Justice of the European Union (CJEU). 

4. The Treaties are ‘sequences of concretizations’, therefore substantively some treaty-norms precede others

The second part of the lecture focused on the CJEU’s new, principled constitutionalism. This new approach is grounded in the Lisbon Treaty, which allows for the interpretation of treaties based on the basic part and grants legal authority to interpret treaty provisions according to the constitutional core’s values.

In this context, the paper discussed decisions where the CJEU has explicitly stated that specific provisions of the TEU should be interpreted considering the constitutional core. This means that they must align with the objectives and values enshrined in that core. 

While this approach has faced criticism and has been viewed by some as a problematic example of judicial self-empowerment, Professor Bogdandy argued that such principle-based interpretation means only the implementation of a development established by the Lisbon Treaty itself. This encourages the interpretation of subsequent treaty provisions as a realization of the constitutional core, thereby establishing substantive precedence among norms of equal rank, which is not fundamentally against the application of law.

Finally, the professor noted that the operationalization of Article 2 TEU could initiate transformative processes. We need legal tools to ensure that European constitutionalism remains a living instrument, which necessitates the involvement of lawyers, particularly judges. Therefore, the activities of the CJEU are both highly relevant and legally legitimate.

5. A normative concept of European republicanism is rooted in EU law

The third lecture focused on the European renaissance of republicanism, illustrating how the concept could guide the future reform of the European Union and the development of EU law. To this end, the speaker sought a conception of republicanism whose primary aim – following Max Weber’s understanding – is utility rather than the unconditional transmission of truth. He outlined three conditions for this concept: (1) it must be compatible with Article 2 TEU; (2) it must be linked to the tradition of republicanism; (3) it must be capable of establishing useful distinctions.

Regarding the conceptual relationship between democracy and republicanism, Professor Bogdandy drew on Costantino Mortati’s view. According to this, republicanism is the combination of democracy and fundamental rights (within a constitution based on the separation of powers), emphasizing the need for jurisprudence to develop a concept of republicanism that fits within democratic constitutionalism. Consequently, he identified three key characteristics of a meaningful European concept of republicanism: (1) a focus on European citizenship (civic focus) that replaces the currently dominant member state-centric perspective; (2) the importance of the principle of separation of powers and the system of checks and balances, which protect against illiberal tendencies; (3) the common good substantiated as solidarity, expressing that European integration is not merely an appendage to the common market, and the public interest takes precedence over private interests.

Professor Bogdandy argued that the concept of European republicanism cannot rely on the requirement of self-determination, partly because it presupposes a shared identity. However, as history demonstrates, identity formation is a violent process— therefore avoiding the creation of such „we-ness” (that is, a deeper, nation-like identity)  is, in itself, a civilizatory achievement. In response to a question, he explained that doing away with the element of self-determination does not undermine the EU’s democratic legitimacy, as the founding treaties imply that the institutional system can be democratic even without a self-determination component. This supports an institutional approach to republicanism, encouraging us to think of it as a system characterized by the separation of powers and checks and balances

6. Interpreting the republican principles of Article 2 TEU is more urgent than debates over primacy

The professor received several questions on the current challenges facing the EU and the solutions being applied. Notably, although he acknowledged that debates over the absolute primacy of EU law are not irrelevant, he considers the further development of law in the spirit of the values enshrined in Article 2 TEU to be more urgent than any other issue.

With regards to the future reform of the current EU constitutional system, he sees it as necessary to overcome unanimity voting ratios, which are often used as a tool of blackmailing. He views the Spitzenkandidat system as an attempt to strengthen semi-parliamentarism at the EU level.

Regarding the inequalities in European Parliament elections, von Bogdandy argued that, despite the imperfect regulation of EU electoral law, the differences among national elections, and the principle of degressive proportionality, these do not amount to a betrayal of democratic constitutionalism. On the contrary, the minority protection objective underlying the regulations that cause these inequalities has intrinsic democratic value.

7. Reasoning in decisions C-156/21 and C-157/21 on Hungary and Poland contain the ‘Holy Gospel of New Constitutionalism’

Professor Bogdandy stressed how the Court itself signalled the importance of the decisions on Hungary and Poland. The cases were decided by the full court, which is rare, in a rather speedy manner. Moreover, in that week only these verdicts were published, and the reasonings are quite lengthy. It was made clear that no ordinary decisions were made, and not just by the court, as the number of supporter Member States suggests.

The professor argued that with in those verdicts the Court not only decided individual cases but entered the arena of developing a framework for European society. The ECJ put great emphasis on strengthening the legitimacy of the decisions by citing the Council, even though the Council rested in argumentations on the Court’s previous case law. This is by no chance as these decisions can be regarded as a signature of moving from functional- to principled constitutionalism. In this spirit, the ECJ, in the Hungarian case, in paragraph 125 argued as the following, which deserves to be quoted fully:

“[…] once a candidate State becomes a Member State, it joins a legal structure that is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, the common values contained in Article 2 TEU, on which the European Union is founded. That premiss is based on the specific and essential characteristics of EU law, which stem from the very nature of EU law and the autonomy it enjoys in relation to the laws of the Member States and to international law. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the EU law that implements them will be respected [case-law is referred to]. That recital also states that the laws and practices of Member States should continue to comply with the common values on which the European Union is founded.” 

Professor Bogdandy referred to the above quote as the ‘Holy Gospel of New Constitutionalism’, whose importance cannot be overestimated. In the Q and A it was also brought up that the decision uses a rather sweeping language elsewhere. In paragraph 128 it states that 

“[…] the rule of law – a value common to the European Union and the Member States which forms part of the very foundations of the European Union and its legal order – is capable of constituting the basis of a conditionality mechanism covered by the concept of ‘financial rules’ within the meaning of Article 322(1)(a) TFEU.” [emphasis added]

This wording might imply that rule of law in itself might be the basis of the mechanism, something that seems a great leap doctrinally. Participants of the discussion signalled confusion as to whether this wording was intentional by the Court.