A. The defence of democracy in the context of the EU’s enlargement to Central and Eastern Europe

The process of constitutionalisation of the EU in the late 1990s and early 2000s didn’t radically depart from the process of EU ‘integration’ since the early stages of the EU. Constitutionalisation was not undertaken through the creation of a Constituent Assembly, that would have erected ex nihilo the future EU legal order by re-establishing it on radically new bases. On the contrary, the process emphasised continuities and small steps: the constitutional establishment of values in the EU treaties was proposed and seen as ‘just a first step’, a ‘“visualisation” of the (previously often hidden) European values’ which ‘initiates a corresponding process of integration’.Footnote ⁷ To that extent, as Christian Calliess writes, the listing of values was meant to ‘contribute to a gradually increasing self-assurance by provoking a constant examination of the aims and purposes of European politics’, which meant assuming that ‘values have the power to effectuate integration through constitutional law’.Footnote ⁸

This iterative process whereby EU institutions could demonstrate heightened reflexivity was in line with previous episodes in EU constitutional history: first, institutions were created at the EU level, followed by examination of their efficacy and conformity with common values and guiding principles, leading to the constant adaptation to institutions in multiple cycles of reform and expansion of EU law. For instance, in the early age of EU integration, the EU founding fathers planned first for the integration of dual-use industries (steel and coal) and military industries and personnel under the control of a provisional governance structure, as defined by the European Coal and Steel Community (ECSC) and the European Defence Community (EDC) treaties, before a later European constitutional treaty would finally define their permanent organisation in the European Political Community (EPC) Treaty.Footnote ⁹ Even though that first attempt of constitutionalisation of the European order in the 1950s failed, multiple cycles of reform and expansion of EU law later sought to advance toward the constitutionalisation of EU law through both treaty revision and the creation of an explicit doxa of EU principles read through the decisions of the European Court of Justice (ECJ). This series of precedents in EU legal history created the conditions for the EU policy elites to call for an explication of which values formed the constitutional core of its identity in a quasi-constitutional framework in the late 1990s and early 2000s, on the cusp of the 21^st century.

Having observed the debates the Convention on the Future of Europe, which was in charge of writing an EU Constitutional Treaty in 2003 and 2004, Clemens Ladenburger has demonstrated the importance of the dual context of the EU enlargement negotiations with Central and Eastern European post-Communist nations, and the early-2000s rise of the far right in Austria, in the genesis of what was to become, in 2012, Article 2 of the finally adopted TEU, in which such values were eventually written down.Footnote ¹⁰ In the 2000s, the EU Member States had many reasons to worry about the risk of ‘democratic backsliding’, which threatened catastrophic effects at a time when EU Member States had indeed advanced very quickly in the creation of a Union, including a common currency and a common Central Bank with the Maastricht Treaty, but yet without a coherent constitutional framework that could safeguard the EU against the risk of hostage taking by one Member State.Footnote ¹¹ Hence, there was a perceived need to ask Member States to commit to respect certain values if they wanted to be part of the new European Community.

This realisation took time to be translated into a new treaty. Before the Convention on the Future of Europe started its work in 2002 and 2003, a ‘Reflection Group’, including members of 15 foreign ministries of the EU and led by Carlos Westendorp, convened in 1994 and 1995 to prepare the 1996 Intergovernmental Conference (IGC) on the revision of the Treaty on European Union, which ultimately led to the creation of the Convention. In their 1995 report, well before the Austrian crisis of 2000, the Reflection Group already called upon the EU to adopt ‘a unique design based on common values’, which they sought to strengthen by adding to the future EU Treaty ‘a catalogue of rights’ and inserting ‘a provision allowing for the possibility of sanctions or even suspending Union membership in the case of any state seriously violating human rights and democracy’Footnote ¹² : what would become Article 7 of the TEU.Footnote ¹³ The Reflection Group also called on the IGC to consider extending the list of values from classical political liberal values to ‘social values’, which it found to be at ‘the foundation of our coexistence in peace and progress’, and which a majority within the group found to deserve to be part of a ‘Social Agreement’ that would ‘become part of Union law’.Footnote ¹⁴ Of course, the difference between these two sets of values is somewhat ideal-typical, as some social and cultural rights (for instance, to education) may also be essential to the enjoyment of civil rights (for instance, the right to vote, which is conditioned on the ability for men and women to understand political alternatives and thus to access education and information, as well as on the equality between men and women). Nevertheless, the Reflection Group used the civil/political and social distinction as a broad compass to guide its reflections.

The possibility of sanctions in case of democratic backsliding in the future Constitutional Treaty was thus seen as an essential precondition for the accession talks that were to start with former Communist Block European states after Maastricht by both the IGC and then the Convention on the Future of Europe. The Central and Eastern European states’ lack of long-term democratic experience due to the Cold War, during which their demands for democratic government had been repeatedly crushed by Soviet occupying troops, whether in Budapest in 1956 or in Prague in 1968, worried some of the older EU Member States. In this context, the leadership of the Convention, called the Praesidium and composed of the three main drafters – Valéry Giscard d’Estaing (Chairman), Giuliano Amato and Jean-Luc Dehaene (Vice-Chairmen) – began work on both a catalogue of principles that the EU and its Member States should respect, and a mechanism to punish violations of such principles.

Retrospectively, we can see that recent actions adopted by EU institutions against some of its ‘new’ EU Member States in defence of EU values confirm that the goal behind explicitly listing such core values was indeed to give the EU some legitimacy to fight against democratic backsliding in the domestic polity of its EU Member States – a domain that it had never claimed jurisdiction over before the adoption of the Article 2 of the TEU. In the late 2010s, the European Parliament, the European Council, and the European Commission took such actions against Hungary and Poland in response to increasingly alarming signs of democratic backsliding: in 2018 the European Parliament activated the procedure planned by Article 7 of the TEU against Hungary, shortly after the European Commission activated the procedure against Poland.Footnote ¹⁵ When taking such actions, the EU institutions explicitly mentioned the ‘rule of law’ (one of the first six values listed in Article 2), by which they primarily meant the independence of justice. The activation of Article 7 proved a powerful impetus for EU Member States to rally around the defence of values breached by a Member State, even if the process also showed the clear limits of the institutional mechanism planned by the treaties.Footnote ¹⁶ Indeed, after conducting a series of hearings on the matter for both Poland and Hungary, the Council failed to act, as it has yet to take a position on Hungary,Footnote ¹⁷ meanwhile, Poland has been greeted back into the EU community of liberal Member States after its last elections.Footnote ¹⁸

The initial disappointment due to the lack of nerve demonstrated by the Council in Article 7 procedures was soon replaced by renewed hope among EU policymakers and think tankers when the EU Commission and Council undertook a flurry of new initiatives to give strength to the values listed in Article 2. Indeed, after experiencing blockages in the Council, the Commission explored other legal avenues to creatively enforce the respect of the values listed in Article 2 by its Member States,Footnote ¹⁹ focusing on two main instruments that at first appear unrelated to a general ‘rule of law conditionality’: first, a directive that seeks to protect the EU budget from misuse due to threats like corruption or attacks on the independence of the judiciary, and which allows the Council to freeze EU funds, in particular, the record-breaking 750 billion euros of the post-COVID Recovery and Resilience Fund;Footnote ²⁰ and second, the ‘horizontal enabling conditions’ which are prerequisites that must be guaranteed since 2021 by any Member State receiving Cohesion Policy funds so that the European Commission can reimburse payments for investments, and which include, among others, respect of the EU Charter of Fundamental Rights. The Commission used this second tool to freeze 76 billion euros destined to Poland, the largest recipient of Cohesion Funds, which were released after the Tusk government declared those enabling conditions were met.Footnote ²¹ Regarding Poland, the Commission froze a considerable 130 billion euros of EU funds in total over rule of law concerns, until the new Tusk government was formed in 2024.Footnote ²² In the case of Hungary, the European Commission also used both instruments. In September 2022, the Council froze about 7 billion euros under the EU budget conditionality directive, while the Commission decided independently to freeze the reimbursement of up to 21 billion euros worth of investments in the 2021–2027 plan.Footnote ²³ This multiplicity of actions show that the EU institutions (the Commission, the Council and the ECJ) do intend to use all the regulatory means at their disposal to fight in defence of all 12 values listed in Article 2: not only the first six, but the other six more ‘social-democratic’ values as well. Indeed, while some of the actions are taken on behalf of the defence of the ‘rule of law’ (when the independence of the judiciary is threatened), others invoke the defence of the ‘autonomy’ of universities and ‘pluralism’ (which, particularly in Hungary, became threatened when universities passed into the politically suspect control of private conglomerates close to Hungary’s power centre).

While the literature on judicial remedies and sanctions explored by the European Parliament, Council, Commission and Court of Justice against Member States suspected of democratic backsliding and rule of law violations is rich and vastly expanding, less attention is being paid by legal scholars to the origins of that list of ‘values’ found in Article 2 of the TEU, which establish the solid rock against which legal proceedings are started.Footnote ²⁴ In the next subsection, I show how Article 2 was structured to differentiate the ‘liberal’ political values that could trigger sanctions from the European Commission, Council or Parliament, in the mind of treaty drafters, from the ‘social-democratic’ values that were initially more aspirational in kind.

B. The fluidity between liberal and social-democratic values in question

While today, the perception by EU institutions of all 12 values of Article 2 may seem fluid indeed, it is worth going back to the debate of the Reflection Group of 1995 to understand how it differentiated between the ‘liberal’ and ‘social-democratic values’ which the EU claimed as its constitutional core. Article 2 of the 2012 TEU has the exact same language as Article 2 of the 2003 Constitutional Treaty, which emerged from the work of the 1995 Reflection Group and then the Convention on the Future of Europe. The TEU’s drafters cut and pasted the preamble and some of the articles of the Constitutional Treaty after the latter’s rejection following its failed ratification in France and the Netherlands. Article 2 itself states:

The article thus positions the first six values as ‘common to the Member States of the EU’. One could add that they are in fact common to all constitutional democratic liberal states which abide by the 1948 UN Universal Declaration of Human Rights (UNDHR). They characterise the type of state admissible (democracy, rule of law, respect for human rights) and individual fundamental rights expected (dignity, equality, freedom) in the Union. However, Article 2 then adds another six values which have slightly more ‘social’ and ‘cultural’ undertones, as they refer to notions in the realms of culture and democratic life (pluralism), religion (tolerance) and social/political justice (non-discrimination, justice, solidarity and equality between men and women, which both ensures the equality of voting rights but also the equality in pay for similar work conditions for men and women).

A lively debate exists in German legal scholarship over whether the six additional values attached to the recognition of a ‘society’ within the EU are of equal status to the first six liberal values characterising the structure of Member States; and relatedly, whether a breach of all 12 values, or only a violation of the first six values, can trigger an action from the EU institutions under Article 7.Footnote ²⁶ This debate may have important consequences, as EU institutions may look to the opinions of legal experts in deciding whether or not the six social-democratic values are held to be independently justiciable or sanctionable under Article 7 TEU. In the perspective of the main drafters of Constitutional Treaty Article 2, they considered that inobservance of the values in the first sentence could be used to strip a Member State of its voting rights in the Council (under Article 7 of the TEU), whereas such a possibility must be more distant if the value was cited in the second half. As they declared, ‘Article 2 must be read keeping in mind its close association with Article 45 of the Constitution, which establishes the procedure for suspending rights to Union membership in the event of a breach of the principles and values of the Union by a Member State’Footnote ²⁷ (what later became Article 7 of the TEU). For instance, the inclusion of ‘equality’ in the first sentence and ‘solidarity’ in the second sentence was a compromise achieved despite President Giscard d’Estaing’s argument that ‘to include in Article 2 values such as “equality” or “solidarity”, which would not have watertight legal definitions might lead to proceedings being initiated against Member States without justification’.Footnote ²⁸ However, ‘solidarity’ did make it into the second sentence of Article 2, as well as ‘equality between men and women’ and ‘pluralism’.Footnote ²⁹ Thus, according to this original reading of Article 2, EU Member States would only be sanctionable in the form of suspension of rights for a breach in the six first values that directly guide the action of Member States (rule of law, human rights protection, etc), but not for any lapse of tolerance within their society, or the continued proven existence of discriminations against women in access to jobs, levels of pay, etc.Footnote ³⁰

Furthermore, the drafters of the post-2000s treaties designed to continue the creation of ‘an ever closer union among the peoples of Europe’Footnote ³¹ conditioned accession to the EU for Eastern and Central European candidates upon the adherence to liberal values, but paid less attention to the other six values in the negotiation process. Article 49 of the TEU states that ‘Any European 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’,Footnote ³² which suggests that respect for all 12 values has to be equally demonstrated during accession negotiations. But the strict rule of law review process for accession of candidate countries mostly focused on the Member States’ respect of the first six liberal values, looking at the independence of the judiciary, anticorruption measures, and rule of law issues – sometimes even after accession.Footnote ³³

In addition to the difference in legal status between the two sets of values, the drafters of what became Article 2 also pointed to different intellectual and legal origins for each set of values. The ‘social-democratic values’ are described in more detail in previous European texts cited in the preamble of the Constitutional Treaty (and subsequently the TEU): ‘the European Social Charter signed at Turin on 18 October 1961 and … the 1989 Community Charter of the Fundamental Social Rights of Workers’;Footnote ³⁴ these texts are also returned to in Article 3 of the TEU, which develops their meaning in more detail than does Article 2. Indeed, Article 3 states that the Union shall promote such values abroad, and that it:

Thus, in Articles 2 and 3, the TEU defines this second set of values that may not be at the core of the functioning of its Member States, but which are values it would seek to find both in its Member States’ societies (in the plural) and more broadly, in all societies around the world, through the EU’s own efforts at value promotion and in its humanitarian interventions. Accordingly, Article 21 of the TEU indicates that the ‘Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law’.Footnote ³⁶

In some sense, one may wonder if the fact of promoting such social-democratic values is specific to the EU, or whether such values are universal, in the sense that all societies of the world espouse them. The idea that Europe differs from other regions of the world because of the ‘values’ it embraces and promotes may constitute a provocative idea, although it is consensual in EU policy circles. There, official and informal talk often mentions the way in which the EU makes different foreign policy choices because it considers itself first and foremost a ‘community of values’, whereas other large states, such as the United States or China, have a more ‘realist’ understanding of international relations, in which economic interest trumps respect for democracy, the rule of law, equality between men and women, etc.Footnote ³⁷ This idea is provocative on at least two counts. First, because the Article 2 values are also enshrined in UN Declarations – like the 1948 UNDHR, the International Covenant on Civil and Political Rights (174 parties), or the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which has been ratified now by most states (today, 189) – which thus show a universal aspiration by all societies to live up to such standards.Footnote ³⁸ Second, the EU Member States have recently shown an inability to reach a consensus on whether conflict conditions in Associated States, in particular when they call into question respect for human rights and broad humanitarian law principles – such as in the case of the war between Israel and Hamas –, should lead to EU institutions ending the Association in defense of EU valuesFootnote ³⁹ leading to widespread criticisms of the EU as upholding a double standard in Global South and European public opinion.

C. The European aspiration for a ‘society of individuals’

What may be specific to Europe in Article 2 is in fact the reference to the notion of ‘society’, mentioned in the second sentence, as the level at which these other six social, religious, cultural and democratic values can be found. This phrasing wasn’t a necessity; the article could have simply mentioned the existence of social-democratic values widely shared among societies in Europe and which complement the liberal political values of each Member State. But in contrast, Article 2 says that ‘these [first six] values are common… in a society’ in which a certain set of other values (justice, tolerance, etc) are respected. This additional sentence seems to suggest that this Union is embedded in ‘a society’ that is more than an alliance of liberal democratic states, but rather, a single unit which integrates the individuals (citizens and residents of all the EU Member States) who respect and defend the second set of six social-democratic values mentioned: the latter translate individuals’ aspirations to be ‘freed’ from the cultural, social, racial or religious divisions and related forms of ignorance and hatred across group boundaries that have long plagued the continent (and the world). This society of individuals is thus not just any kind of society: it is not a society where power and legitimacy rests on distinct groups defined by religion or race, in contrast to colonial societies of the mid-20^th century, which drew lines between white citizens and indigenous peoples who abided by religious law (allowing some type of legal pluralism between group-based customary and civil law traditionsFootnote ⁴⁰ ). Rather, this society resembles what sociologists called in the interwar era a ‘society of individuals’,Footnote ⁴¹ by which they mean a society in which ‘the individual’ is the core pillar of its operations and where the law applies to all those individuals equally, without difference based on race, religion or gender.

The existence of this ‘society of individuals’ is in fact already suggested in the 2000 EU Charter of Fundamental Rights (placed in its entirety in the Constitutional Treaty, but later kept separate in the Lisbon Treaty).Footnote ⁴² The preamble of the Charter states:

Here, the text does not refer to the creation of a ‘European society’ as bestowing a new identity (‘Europeanness’) on all individuals who are EU citizens and residents, on top of their own national (eg, French or German) identityFootnote ⁴⁴ and/or other local/national identity (eg, in the case of migrants, Algerian, Syrian or Malian, etc) by the sheer fact of living in the EU and participating in this EU society. It is to be noted that neither in Article 2 of the TEU, nor in other articles, is the concept of ‘European society’ mentioned: the adjective ‘European’ is not found in the text of Article 2. No mention is made of the existence of a ‘European society’ that would foster a new supranational ‘identity’ spearheaded by the Erasmus programs, or the Schengen space of freedom of circulation. In fact, the notion of ‘society’ that the Conventionists seem to have had in mind when drafting Article 2 is perfectly abstract: it is rather the ‘society of individuals’, which ultimately gives its scaffolding to EU law, conceived not just as the law of its Member States (when they minimally respect the first six rules regarding law and democratic values), but the law that best operates in a ‘society of individuals’ who believe in justice, solidarity, antidiscrimination, cultural pluralism and religious tolerance. This abstract ‘society of individuals’ operates without any new distinguishing cultural identity: in fact, it operates precisely in contra-distinction with societies that base their operations on group identities.Footnote ⁴⁵ At least, this is the interpretation we can develop from Article 2 read in isolation from the preamble – as the latter rather blurs this interpretation, as will be developed later.

My interpretation of Article 2 thus affirms, first, that Article 2 postulates the existence in Europe of a ‘society of individuals’ as an abstract concept and guiding principle and not a specific reality in a Member State or in the sum of Member States; and its ideal citizens/residents are all seeking freedom and happiness thanks to their emancipation from ‘traditional communities’ defined by religious, racial or cultural identities (constituted by strict boundaries between groups). Second, I argue that Article 2 starts from the presupposition that this society of individuals constitutes the abstract philosophical terrain in which progressive international law (or EU law) can best grow. The history of the successive drafts of Article 2 shows how drafters gradually asserted the normative existence of such a ‘society of individuals’ within the body of EU law from which they claimed to unearth its implicit existence. In the first draft of the Constitutional Treaty presented to the Convention,Footnote ⁴⁶ the creation of a just society of individuals was only aspirational and normative (rather than descriptive): that society of individuals was to be erected in the future, thanks to a greater integrated Union. Indeed, the version of Article 2 presented by the main drafters for discussion at the Convention in Brussels on 26 February 2003 read:

Article 1, which came directly before it, stated that ‘The Union shall be open to all European States whose peoples share the same values, respect them and are committed to promoting them together’.

The shift from this version of Article 2 to the version presented in June 2003 by the Constitutional Treaty drafters and which eventually made it into the TEU occurred through amendments placed by members of the Convention. As Giscard d’Estaing summarised in one of the sessions of the Convention, among the many reactions received by Conventionists to the first draft of Article 2 cited above, there were two main types of questions: ‘the first related to the definition and content of the values mentioned’, and the second ‘related to the possible introduction of a reference to religion’.Footnote ⁴⁸ As far as the second point was concerned, it received the support of old Western EU Member States, whose populations still voted for the Christian Democratic parties which had created the EU in the 1950s, and East European future Member States (like Poland), who saw their adherence to the European project as continuing their fight to gain freedom of religion (which they could not practice during the Soviet era). But it was otherwise quite controversial. In any case, the new version of Article 2 that crystallised in the final text of the Constitutional Treaty (and then TEU) abandoned the wording that the erection of such society was an ‘aim’, and thus purely aspirational. Additionally, the reference to a ‘society at peace’ was dropped in favour of the reference to ‘a society’ tout court Footnote ⁴⁹ in which the six social-democratic values affirming the primacy of individuals and their equality before the law, over the differentiation of persons according to their social/group identity, was found. This change suggested that erecting and defending such a society of individuals was already a guiding principle of all EU policies in Europe, and not a future goal.

In Article 2 of the TEU, this ‘society of individuals’, in which individuals are valued on the basis of their own merit and in which racial, cultural or religious differentiation before the law is rejected, is an abstract concept that serves as a guiding principle to orient the policies of EU Member States and the actions of EU institutions; hence the use of the singular – as one guiding principle—, and not the plural, which would refer to specific, concrete, European societies in each Member State. The use of the singular, I venture, is to be interpreted as a sign of abstractness, not concreteness, at the continental level: it does not refer to a concrete European identity differentiating the European society from others in the early 21^st century, but to the abstract ‘society of individuals’, as defined by a century of social and legal theory, as will be discussed in the next section. This mention of such an abstract ‘society’ also hints at the idea that the source of international law in general, and EU treaty law in particular, is not exclusively grounded on the will of States.Footnote ⁵⁰ Historically, and particularly during the interwar period (as will be discussed later), European legal scholars have sought to reconcile the notion of state sovereignty with the participation of other actors under the protection of the international legal order, including individuals.Footnote ⁵¹ The reference to such a ‘society’ of individuals may also hint at the importance of considering other standards than those which only pertain to the functioning and structuring of Member States when considering the principles that EU law should respect and help promote. Thus, with Article 2, state sovereignty is here reconciled with the participation of other actors under international law in the making of EU law: broad principles of democratic governance formulated by domestic law, international organisations, and civil society organisations that sustain the existence of a ‘society of individuals’ have a place in the normative basis of EU law.

D. The imagined historical religious origins of the EU values

During the Conventionists’ discussion of Article 2 in 2003 another important series of suggestions were concerned with the historicity of such a ‘society’, and whether the drafters considered such historical origins as characterising a common ‘European identity’: a key question was whether that pluralistic, tolerant and solidaristic society mentioned in Article 2 should be conceived as a legacy of a shared European Christian past. In the Maastricht Treaty of 1992, later consolidated in the Amsterdam Treaty, the Preamble mentioned the EU’s desire to ‘deepen the solidarity between their peoples while respecting their history, their culture and their traditions’,Footnote ⁵² thus insisting on the plurality of identities coexisting within and under EU law. The Amsterdam Treaty didn’t make reference to a European society, nor to a shared cultural heritage or identity, but rather emphasised their different histories, with each one deserving respect from each Member State. In contrast, the preamble of the Constitutional Treaty draft that was presented in June 2003 with the final version of Article 2 asserted that the Treaty drew ‘inspiration from the cultural, religious and humanist inheritance of Europe, which, always present in its heritage, has embedded within the life of society its perception of the central role of the human person and his inviolable and inalienable rights, and of respect for law’.Footnote ⁵³ The subsequent sentence even claimed that a ‘reunited Europe intends to continue along this path of civilisation, progress and prosperity, for the good of all its inhabitants, including the weakest and most deprived’ and that ‘it wishes to deepen the democratic and transparent nature of its public life, and to strive for peace, justice and solidarity throughout the world’. When interpreted in association with the preamble of the Constitutional Treaty, which later became the preamble of the TEU, the wording of Article 2 thus underlines the ambivalence of the drafters of the Constitutional Treaty with respect to abandoning the idea of a ‘European identity’: as the preamble suggests that they still leaned on the idea that this abstract ‘society of individuals’ must be grounded on a common cultural tradition – in the singular –, which found its roots in a religious Christian past.

During the Convention of 2003, the drafters repeatedly expressed their conviction that the core values of the EU found their broader inspiration in ‘the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law’.Footnote ⁵⁴ Thus, according to the drafters, the EU states are not singled out here among all states on the planet because they have confirmed ‘their attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law’ (from the preamble of the TEU), but more importantly, because they invented the ‘cultural, religious and humanist’ traditions in the first place, and because these cultural traditions are assumed to be the source of the universal values later expressed in the UNDHR and many other texts affirming the values found in Article 2 TEU.

Here, the history of negotiations of the Constitutional Treaty shows that the notion of religion was relegated to the preamble as a compromise between the main drafters of the Constitutional Treaty and other Constitutional Convention representatives, particularly but not exclusively from Poland, who had argued that Article 2 should contain a reference to the ‘Judeo-Christian heritage’ of Europe.Footnote ⁵⁵ Even though some Convention members expressed scepticism about this idea, the Chairman of the Convention, President Giscard d’Estaing, agreed:Footnote ⁵⁶ he said that the Praesidium had also discussed the subject and had come to the conclusion that, if a reference were to be introduced recognising the contribution of religions to European civilisation, it would be ‘more appropriate to insert it in the preamble than in the main body of the Constitution’.Footnote ⁵⁷ There was a prevalent feeling that the ‘society of individuals’ defended in the Treaty was the outcome of a ‘civilisation’ based on Christian and humanist ‘heritage’ fostered in Europe.

Whether the assertion that EU states invented the cultural, religious, and humanist traditions from which values like liberty, democracy, and the rule of law emerged has framed EU law and policy in many fields, from trade to foreign policy, is beyond the scope of this article. Here, I would like to point out that this narrative, according to which the values of Article 2 are a direct legacy of Europe’s religious past, shouldn’t be taken simply at face value. The reference to the Christian heritage of Europe is an important note that signals the key role played in the EU integration process by Christian Democratic parties after World War II, and whose importance was still felt within EU elite circles at the time of the drafting of the Constitutional Treaty – but which has declined since then, with the passing of that generation. Within the ranks of the postwar generation of EU leaders, many were indeed inspired by the ‘personalist’ philosophy of Jacques Maritain,Footnote ⁵⁸ including, possibly, President Giscard, but new generations have now closed the parenthesis. The thirty-year period during which Christian Democratic parties ruled Western European states after World War II, and during which some currents in the Catholic Church – among other Christian Churches – called for the Church to ‘modernise’ its traditional social philosophy, may seem to historians to be the exception rather than the norm. Inscribing that link between the Church’s modernisation project and the EU project in favour of peace, democracy and the rule of law represented an important (but somehow vain) attempt to guide future generations tempted to leave the founding fathers’ narrow path. Indeed, in the more recent past, the Catholic Church’s conservative social doctrine, which denied the legitimacy of ‘individualism’ during the whole 19^th century, has made a comebackFootnote ⁵⁹ with the rise of a far-right agenda in the United States and Europe that is strongly supported by Christian churches (including but not exclusively by the Catholic Church). Religious traditions are now being re-invented by far-right political parties to justify a masculinist agenda, as in the form of anti-abortion campaigns, in which abortion is removed from the realm of a right of women over their bodies, or in the form of crusades against ‘gender theory’, which Christian religious leaders see as the source of all evils, to take just a few examples.Footnote ⁶⁰ The time when a President like Valéry Giscard d’Estaing could empower a Minister like Simone Veil to push for the French law that legalised abortion (1974) seems long gone.

Considering the long-term past in the context of the present, it may seem quite paradoxical that ‘religious traditions’ are referenced in this document as having played a key role in the genesis of values such as human rights or equality between men and women, when the historical record may show otherwise. But the Constitutional Treaty drafters knew that the convergence they called for between the EU project and the modern philosophy of the Christian Church was fragile. We may hypothesise that this is precisely why they wanted to underline that link in the preamble of the Treaty.

Still, another interpretation is possible: that the link between the Christian religion and the rise of a society of individuals wished for by EU founders was also a legacy of the internationalist discourse of the prewar and interwar eras marked by the transformation of the European colonial project. This interpretation thus gives less attention to the postwar founding fathers and their Christian democratic beliefs, than to the intellectual and political context in which colonialism was reinvented by international legal experts in the interwar era. In the next section, I will explore this legacy between ‘modern’ interwar international law and EU constitutional thinking in the early 21^st century.

A. The question of religion and civilisation in the interwar international legal discourse

This section goes deeper into the analysis of the concept of ‘society’ used in Article 2 of the TEU by exploring the multiple semantic associations found in the TEU in reference to the society of individuals, the role of Christianity in its genesis, and its association with social-democratic values in the interwar period. In the interwar era the same terms and concepts that we find in the preamble and Article 2 of the TEU already worked together in discourses of international law scholars and diplomats who erected the first pan-European legal order with the Société des Nations (SDN).

Historically, in the late 19^th century, reference to the Christian religion served as a marker of ‘civilisation’ for most European law scholars and diplomats – a moment that the influential interwar Catholic and Nazi legal scholar Carl Schmitt believed to have constituted the apex of ‘European civilisation’.Footnote ⁶¹ Being ‘civilised’ by virtue of sharing a Christian heritage was indeed the ticket to enter the international community of states admitted to play a role in the international society at times of colonial expansion.Footnote ⁶² Prewar jurists of the generation of Lassa Oppenheim repeated ‘the conventional wisdom of the 19^th century that had the standard of civilisation as the doctrine determining membership in the family of nations’, and for whom the standard of civilisation was equivalent to having been transformed by the ‘Christian civilisation’.Footnote ⁶³ Before and during the SDN, discourses on the importance of European civilisation and Christianity for the progress of mankind were quasi-hegemonic in diplomatic and academic circles.Footnote ⁶⁴

The idea that the civilised nations must share Christian traits to be admitted into the international society still irrigated the interwar socio-legal imagination, although it took a different form than in the prewar era. Liberal values such as democracy, freedom, respect for human rights or rule of law issues, which today are the main causes for concern in the EU, were less important than the social-democratic values listed in the second sentence of Article 2, like tolerance, non-discrimination, and cultural pluralism, which ‘civilised’ nations in the interwar era had to demonstrate to be admitted to the SDN. These latter values were more easily traced back to the Christian doctrine of social justice than the former more liberal notions of democracy. Indeed, the creation of this Société des Nations was meant to transform not only the relationship between European great powers, but to turn the late-19^th-century colonial project of the great powers from a land- and minerals-grabbing project into a ‘progressive’ project of establishing a broader international solidarity between individuals of all nations. In this context, it was the second set of values, whose tone was much closer to the Christian philosophy of the Church (solidarity between individuals across generations and across nations, fairness and benevolence in employment relations, etc) that formed the normative basis of the international society of ‘civilised’ nations.

This conceptual equation between the ‘society of nations’ protecting post-Christian social-democratic values and an international society of ‘civilised’ nations lay at the foundation of the interwar imagination of modern internationalists looking for a new principle to distribute membership to sovereign states in the SDN, after the simple criterion of ‘Christianity’ was abandoned – for instance, with Japan’s entry to the SDN.Footnote ⁶⁵ For Nicolas Politis, a Greek international law scholar and President of the Assembly of the SDN, it wasn’t enough for a state to declare itself a state to become a member of the SDN: he believed that by ‘mistakenly assuming states to be the real subjects of the law, treating them as persons, international law had been left in a weak position …’ because in doing so, ‘international law ignored individuals as legal subjects’.Footnote ⁶⁶ Quoting Duguit, Politis ‘declares membership in the French sociological school affirming that, like all law, international law consists of imperatives addressed to individuals, based on the solidarity existing between them’,Footnote ⁶⁷ first at the level of their nation, and then at the inter-national level. Solidarity, a post-Christian concept closely associated with the concept of ‘brotherhood’ (or ‘fraternité’ in French), was re-worked to become a secularised sociological concept, which explains why many interwar jurists like George Scelle, Nicolas Politis or Max Huber ‘examined the sociological underpinnings of the law to justify international obligations beyond or against state consent’.Footnote ⁶⁸

For this generation of ‘modern internationalists’ of the interwar period, ‘there is no doubt that the international society exists’, that ‘international law is the law of the international society’, and that ‘it is the individual who establishes the social relations at the base of the international society’.Footnote ⁶⁹ The reference to an abstract concept of a ‘society of individuals’ that international law was supposed to protect was a strong indicator differentiating the writings of realist internationalists for whom there was no other grounding to international law than the will of states – and for whom state sovereignty was absolute –, and the writings of ‘modern’ internationalists, for whom international law found its legitimacy in the protection of individuals’ rights.Footnote ⁷⁰ Not surprisingly, many of these modern internationalists, including Scelle, Politis, and William Rappard, taught at the Institut de Hautes Études Internationales (the ancestor of the Geneva Graduate Institute), which was situated in Geneva, close to the SDN and the International Labour Organization (ILO) headquarters.Footnote ⁷¹ In the latter’s writings, attention to the internal structure of the state, and the articulation between states and individuals’ rights, was less prevalent than the reference to the advent of such a ‘society of individuals’ permitted by the development of international legal norms. To that extent, Scelle, Politis, or Hubert formed part of the ‘sociological tradition’Footnote ⁷² in international law.

That the Constitutional Treaty and then TEU drafters were able to repeat in the early 2000s a European-centred narrative that links social-democratic values with a Christian past shows that the old civilisational perspective remains deeply ingrained in Europe’s legal imagination, despite criticisms by post-colonial philosophers, historians, sociologists, and law scholars who have deconstructed the claim of European authorship, or invention of, international law by Christianity and Christian nations. As post-colonial scholars have demonstrated, such intellectual traditions as humanism or the Enlightenment were nourished by cross-cultural transplants and dialogues between East and West, between Roman language and Arab or Asian traditions.Footnote ⁷³ Finding such a reference to the alleged Christian European religious origins of socio-democratic values in the preamble of the TEU, and before in the 2003 Constitutional Treaty, shows that the drafters still thought of Europe as the cradle of civilisation, whose gift to the world was a civilisation in which fundamental human rights are at the centre – despite evidence to the contrary, as well as strong evidence of a deep hiatus between norm and practice in Europe’s 20^th century history.

B. The values promoted by interwar international organisations

The social-democratic values cited in Article 2 TEU were not only part of an intellectual tradition dating from the interwar era; in fact, they were operating concepts found in the documents establishing international organisations during and after World War I. Due to the importance of social-democratic parties and movements in the interwar era, the international organisations erected after World War I emphasised the same social-democratic values cited by Article 2 TEU.Footnote ⁷⁴ It is important to note that the term ‘Société des Nations’ (SDN) in French introduces an important nuance when compared to the notion of a ‘League of Nations’: a League often characterises a belligerent union, while a Société is focused on peace, and its membership is not restricted to the group of victors. In this case, at the Paris conference to discuss the statutes of the SDN, Swiss diplomats Max Huber and William Rappard ensured that its membership would be open to neutral countries, and then after some time, to the vanquished nations (like Germany) as well, as long as they complied with social-democratic values.Footnote ⁷⁵ Except for the general restriction on armaments, which is not found in the TEU (but is found in other treaties to which EU Member States are parties), the list of international obligations that Member States of the SDN had to observe to join and maintain their membership strongly resembled the social-democratic values listed in the second sentence of Articles 2 and 3 of the TEU. According to Article 23 of the Covenant, parties to the Société should:

The Covenant established this list of objectives, grounded on certain values, as a condition for admission and continued membership in the organisation: violation of such values could lead the governing bodies of the international organisation to issue sanctions against the Member State found in breach. Indeed, although the Covenant was found in the Versailles Treaty, a peace treaty between the Allies and Germany, which was negotiated among the four winners of the war in Paris, the Société it created to secure the peace was open, as ‘any fully self-governing State, Dominion or Colony not named in the Annex may become a Member of the League if its admission is agreed to by two-thirds of the Assembly, provided that it shall give effective guarantees of its sincere intention to observe its international obligations’ (Article 1). Going beyond Article 7 of the TEU on the suspension of voting rights of EU Member States for violating Article 2, Article 16 of the Covenant planned for the expulsion of ‘Any Member of the League which has violated any covenant of the League [which] may be declared to be no longer a Member of the League by a vote of the Council concurred in by the Representatives of all the other Members of the League represented thereon’.

In addition to the social-democratic values listed above, part XIII of the Versailles Treaty, which established the International Labour Organization (ILO), also mentions in its preamble some conditions for a sustainable peace to emerge in this international society, asserting that:

By establishing these two Geneva-based organisations (the SDN and the ILO), the Versailles Treaty thus called for the creation of a ‘society’ in which individuals would find their place based on their own individual merit, without suffering injustices based on race, religion or gender, and where the most vulnerable would be protected.Footnote ⁷⁸

Overall, the Versailles Treaty set up an international legal framework guided by such social values as those found in the second sentence of Article 2 of the TEU. In addition, Article 22 of the Covenant of the SDN made it explicit which values should guide the type of statehood necessary for a political community to be a full member of the ‘Société’, by stating that national states in Central Africa would have to bear the tutelage of mandate powers until they could, alone, ‘guarantee freedom of conscience and religion, subject only to the maintenance of public order and morals, the prohibition of abuses such as the slave trade, the arms traffic and the liquor traffic’, and that until then, it remained the task of mandate powers to fulfil these tasks.Footnote ⁷⁹ Here, no mention was made of democracy, but some hint of human rights protection (freedom from being captured in the slave trade, or freedom of religion) can be found, as well as mention of rule of law principles, such as having a fully functioning predictable judicial order in mandate territories, whose independence would become the subject of yearly review by the Mandate Commission (Article 22).Footnote ⁸⁰ Although the mandate system ‘was not set up primarily for the protection of human rights, but for the settlement of rival political claims’ in general, and the transfer to Allied victors of German colonies in particular, Rappard, a long-time member of the Mandates Commission during the whole interwar period, wrote that indeed, ‘provisions examined by the Mandate commission included a concern for the welfare of the indigenous populations’, which were expressed in the language of Article 22 of the Covenant cited above, and which pre-dated and pre-figured the social–democratic values cited in Article 2 TEU – some of which were also found in the UN Charter after World War II.Footnote ⁸¹

The association between an aspirational ‘society of individuals’ to be created thanks to international cooperation between Member States of a common Society of Nations was therefore already developed in the interwar period.Footnote ⁸² Here, it is worth remembering the meaning given to the concept of ‘nation’ (the second term in the name ‘Société des Nations’), which had become not only a central concept of political theory, but also of sociological theory, especially in the French Durkheimian school of sociology, whose influence on international law scholars and civil servants in Geneva-based international organisations (like Paul Mantoux, Nicholas Politis or Albert Thomas) ran deep, as we now know thanks to the pioneering work of Martti Koskenniemi.Footnote ⁸³ Indeed, in French sociological and legal thinking before and after World War I, the concept of ‘nation’ was precisely equated with a ‘society of individuals’, freed from the constraints of customs and traditions, who could decide freely for themselves both how they would conduct their lives and in which political society they wanted to live – according to the Wilsonian principle of ‘self-determination’ which gave so much hope to colonial subjects at the end of World War I. Of course, this society was made up of social groups, institutions, parties, and other collective entities, but what differentiated this modern ‘society of individuals’ from past political societies was that, in such a society, the rights of such collective entities never trumped the rights of the individuals who composed them. This conception of a nation as a society of ‘individuals’ (sometimes better thought of as ‘persons’Footnote ⁸⁴ ), where no group had rights superior to the rights of individuals, came from the thinking of French solidarists working in the sociological school of Léon Duguit, Emile Durkheim and Marcel Mauss, in particular. This same network of sociologists and intellectuals who lobbied for the creation of the ILO (some of whom served in key posts, like Albert Thomas, its first Director General) had played a key role in the defence of the right of ‘the individual’, Captain Alfred Dreyfus, falsely accused of treason by the army, after the French army’s higher echelons decided to sacrifice a Jewish scapegoat to defend its collective self-image.Footnote ⁸⁵

Following this logic, the international ‘society of nations’ was distinct from a ‘society of empires’, which looked like the Berlin Congress of the late 19^th century, revered by Carl Schmitt. For sociologists and legal scholars in the interwar era, a society of individuals was an abstract concept, which grounded a description of the contemporary stage reached by SDN Member States or mandates in the international society of the interwar period. In fact, in his unpublished masterpiece titled ‘The Nation’, which amply discusses the creation of the SDN and modern international public law, Marcel Mauss differentiated political communities along a linear scale to determine how far societies had moved up toward the realisation of such a ‘society of individuals’. Mauss conceived of the nation in contradistinction with other political entities, like ‘tribes’ (as described by the colonial anthropology of the time) or ‘empires’ (the preferred political association of Europe in the 19^th century up until the end of World War I).Footnote ⁸⁶ The ‘nation’ referred to a society in which intermediary bodies no longer buffered relations between individuals and the state, where a strong sense of territorial boundaries limited the desire for imperial expansion, and where the state could be used by democratically elected government as an instrument to achieve social justice and protect the most vulnerable. Such a conception of the nation conceived as a ‘daily plebiscite’, in the words of Ernest Renan (an influential 19^th-century French writer), was very much in line with the French Republican definition. Not surprisingly, Mauss found that in the interwar era, only two Western countries could claim the title of nations: France and the United States.Footnote ⁸⁷ In these two nations, Mauss wrote, ‘the two poles in the continuum of social beings, individuals and the society, symbolised by the state, face one another’,Footnote ⁸⁸ and individuals only recognise the authority of the law of their own nation-state, not the law of religious communities (especially constituted as minorities) that exist within the boundaries of nation-states. These two nations were thus different from all other societies, which Mauss still associated with ‘empires’, characterised by the presence of a central political authority, but a low development of a common national consciousness, as individuals in empires still identified with religious identities and ethnic groups before their state, and attributed rights to such groups that were sometimes superior to the rights of the individuals.Footnote ⁸⁹

This sociological theory became quite influential and guided the thinking of the administrators of SDN mandates in Africa and Asia (like Rappard) in deciding whether the social conditions in Mandate territories were ripe for independence to be granted, as it was assumed at the time that the creation of a ‘society of individuals’ was a condition for a sustainable peace, and that societies characterised by ‘factionalism’ (or ‘tribalism’) would fall into civil war immediately after independence, as happened when the Mandate Commission authorised the independence of Iraq in the late 1930s.Footnote ⁹⁰ Based on a similar sociological observation that most Member States of the SDN had yet to integrate individuals within a proper nation-state, Mauss warned his contemporaries that even if formally equal states were members of the SDN, most political societies in this institution could not yet be called ‘nations’ in the proper sense, and that the defence of social-democratic values remained a long-term objective.Footnote ⁹¹ This limitation served as a normative basis used to justify why some new sovereign states must accept limitations to their sovereignty placed by the SDN: French, British, and other great powers must accept to report to the Mandate Commissions about their administration of colonial populations under the rule of their ‘empires’; and the newly independent states emerging from the defeated empires of Central and Eastern Europe, which were not yet considered to constitute ‘nations’ of free individuals in the Durkheimian sense, must accept to respond to individual petitions sent to the League’s Minority Section (chaired by Erik Colban), established as part of the Secretariat by the League’s first co-Directors (Eric Drummond and Jean Monnet) for the purpose of monitoring the rights of minorities in their territories.Footnote ⁹²

Along these lines of thought, the role of the SDN, and of its international system of petition and monitoring for minorities, served to move the societies that were still in the age of ‘empires’ (in Central and Eastern Europe especially) toward the next stage: that of nations constituted of free individuals emancipated from the oppressive rule of collective groups and institutions, and the customs of inherited religions and ethnic traditions. As Jane Cowan writes, about the system that was put in place to monitor Eastern and Central European states’ compliance with the values of the SDN in the interwar era, ‘the minority petition constituted an unprecedented political encounter that radically challenged the state-centric premises of international relations and that cleared the ground for individual citizens’ engagement in a human rights regime after 1948’.Footnote ⁹³ But more importantly for the argument of this article, one can thus see in the type of instruments of human rights and democracy governance applied in Eastern and Central Europe by Western Europe’s core states and experts an uncanny continuity between the interwar era and the decade of EU enlargement that followed after the post-Cold War disintegration of the Soviet Union: the monitoring of the state administration of minorities in the newly independent states of Eastern Europe established in the Treaty of Saint Germain, which broke up the Habsburg Empire, already targeted Eastern and Central European states. But there was an important difference: the interwar monitoring institutional arrangement focused on minorities exclusively, whereas the instruments used by the EU institutions to monitor progress toward enlargement (and even after, in the case of Romania and Bulgaria) after the Cold War focus on rule of law, democracy and human rights promotion. This shift signals a change in the priorities of international organisations as far as respect for values in Eastern European states are concerned.