Value Constitutionalism in the European Union

Abstract European constitutional thinking is still alive and is being shaped by the European Court of Justice into a value constitutionalism. Not only the Treaties, but also constitutional principles derived from EU law, are the common standard of review. Autonomy and constitutionality merge. In the light of this situation the Federal Constitutional Court’s PPSP-judgment with its insistence on limitations of competences and on democratic self-determination appears outdated. However, for the time being, Member States agreed to cooperate in a treaty based political union and do not have a consensus on a “good order” in organized Europe. The Court should abstain from the temptation to operate with values because presumably it would not be able to achieve the substantiation and the creation of a value hierarchy with the necessary acceptance.

Initially, only few organs, committees, and fora-i.e. the European Parliament, the European Court of Justice and partly European legal scholarship cared about this fact because they had been striving towards the constitutionalism of Europe for decades. The formal upscaling of primary law as depicting legislation autonomous from the Member States' intentions, yet politically highly legitimated, hadn't worked on a European political level. Still, the Member States in the European Council, which decided to realize the later Treaty of Lisbon without the constitutional concept, could only manage to keep it out of the treaty amendment process. Immediately after the constitutional treaty's vanishing as political project, European constitutionalism was discredited due to the failure of the ambitious project not being attributed a substantial degree; 4 today the idea has not endured. Recently, and due to the jurisprudence of the Court, it has reached a new stage of development which I refer to as a "constitutionalism of values." In the following, I will describe this constitutionalism of values from an integrationist historical perspective to clarify that the classic federal constitutional standpoint has been expanded to include a new ethos-related element. By doing so, I will attempt to justify the theory that the value-related constitutionalisation of the European Union not only suffers from a lack of legitimacy, but in addition and in its consequences will effect a barely appreciable transformation of the form of organized Europe.

B. Conflicts of Interpretation between Delegationists and Constitutionalists
The European Communities were conceptualized early-already in the Schuman Plan's negotiations-in a constitutional manner. Particularly in the German delegation, the viewpoint was adopted to think of the European Coal and Steel Community in constitutionally orientated concepts and terms. 5 Advocates of the opposing viewpoint thought of the new collaboration in public international law terms, which meant that European Coal and Steel Community law was interpreted restrictively in favor of the Member States, limiting the competences of the High Authority. The "constitutionalists," however, wished to broadly interpret the treaty articles orientated around the objectives of the European Coal and Steel Community and through which the High Authority would have been granted more leeway. 6 Detailed studies between lawyers pertaining to this intellectual conflict show that it is a generational conflict in which the "supranationalists" 7 mostly belong to the younger (generation) and the "intergovernmentalists" to the older generation. 8 The conflict in interpretation, differentiated and 4 Matej Avbelj, Questioning EU Constitutionalisms, 9 GERMAN L.J. 1, 1 (2008). 5 Hermann Mosler, Der Vertrag über die Europäische Gemeinschaft für Kohle und Stahl, 14 ZEITSCHRIFT FÜR AUSLÄNDISCHES ÖFFENTLICHES RECHT UND VÖLKERRECHT (ZAÖRV) 1, 36 (1951/52). Mosler was a member of the German negotiating delegation to the Schuman plan, for further information see FELIX LANGE, PRAXISORIENTIERUNG UND GEMEINSCHAFTSKONZEPTION 168-169, 176 (2017); Carl Friedrich Ophüls, Juristische Grundgedanken des Schumanplans, 4 NEUE JURISTISCHE WOCHENSCHRIFT (NJW) 289, 289-291 (1951). Ophüls was also a member of the negotiating delegation, see Hans-Jürgen Schlochauer, Der übernationale Charakter der Europäischen Gemeinschaft für Kohle und Stahl, 6 JURISTENZEITUNG (JZ) 289, 289-290 (1951). For further evidence, see also Anne Boerger & Morten Rasmussen, Transforming European Law: The Establishment of Constitutional Discourse from 1950 to 1993, 10 EUR. CONST. L. REV. 199, 201-210 (2014). 6 For the perspective of eye witnesses, see Heinrich Matthies, Die Bedeutung des Montanvertrages für das Gemeinschaftsrecht, in COMMEMORATIVE PUBLICATION FOR BODO BÖRNER 233, 235 (Jürgen F. Baur et al. eds., 1992). varied, has dominated thought on the form of organized Europe ever since. It is the crucial reason behind the indecision of European citizens and politicians in regard of the European Union, which in turn has an impact upon the image of the Union itself, its form and its role both within Europe and internationally. 9 The conflict revolves around the question as to which source European sovereignty nourishes itself from, in order to justify the autonomous design initially of the three European communities and today of the European Union. The intergovernmental or delegationist legal viewpoint regards the integrative Union as an organization based upon an international treaty and thus as a "club of cooperating states" and not as a federalist structure with a center and a periphery. The Union acts through its organs in the common interest of its Member States, which continue to bear-though jointly-sovereignty. 10 The supranational or federal constitutional viewpoint is based upon the idea that the legitimate exercise of power of the integrative Union is derived not from the Member States but from their fused sovereignty rights and thus from a Community-and today a Union-interest. Both interpretations differ from one another inter alia in their justification of the democratic legitimacy of European authority. For the delegationists, the primary source lies in the Member States, while the constitutionalists consider the integrative Union and its connection to the Union's citizens or even to supranational justice to be the primary source.
In the negotiations of the Paris and Rome Treaties, the delegationist legal viewpoint in principle prevailed and substantiated itself accordingly in the infrastructural architecture. The principle of conferral (Art. 5 (2) TEU), according to which the Union must be conferred a competence by the Member States, is its most important manifestation. Although the delegationist legal interpretation still is the prevailing view amongst governments and constitutional courts, it has not completely repressed the rival federal constitutionalist viewpoint. The delegationists had to compromise from the beginning on. One compromise consisted of a European Parliament being created-initially onlyas a European parliamentary assembly 11 -complemented by the monopoly right of initiative of the Commission. The constitutionalists in principle deferred the issue to the future and hoped for the European Communities to develop in a dynamic way. Still, the German Federal Government presented their act of ratification to the EEC and EAEC treaty inter alia using the expression: "The treaty calls into existence a European entity of a constitutional kind." 12 C. The 1970s as a Key Decade Though initially scarcely noted, the key decisions of the European Court of Justice in the cases of Costa/ENEL and Van Gend en Loos (1963Loos ( /1964 EUROPEAN UNION 1, 9-10 (Eszter Bodnar et al. eds., 2003). 10 Cf. Martin Nettesheim, "Gegründet auf Werten : : : ": Das Narrativ der Wertegemeinschaft und der Sanktionsmechanismus des Art. 7 EUV, in DIE NEUERFINDUNG EUROPAS 91, 102 (Claudio Franzius, Franz C. Mayer & Jürgen Neyer eds., 2019). In this regard, the "club" term has been adopted by Armin v. Bogdandy & Laura Hering, In the name of the European club of liberal democracies, MPIL RESEARCH PAPER SERIES No. 2020/1, and the evidence provided in Explanatory Note 30 et seq.

11
The parliamentary assembly was only formally renamed to "European Parliament" upon the EEA coming into force on 1. July 1987; the assembly gave itself this name in 1962 and acted thereunder. Through the decisions, the Court expressed European law's claim to autonomy and relaxed the dependence of its legitimacy on national parliamentarianism. Autonomy is defined as self-sufficiency, i.e. the bearer of autonomy provides itself with its own rules and shields itself against those outside of the sphere of autonomy. In relation to European Union law, this represents an interpretation detached from international legal and Member State bias, which to a great extent decouples European Union law from external influences, in particular from purposes specific to Member States. The history of European law has by now mapped out that, in particular, the case of van Gend en Loos was linked by the Commission to constitutional thought, although such semantics cannot be found in either decision. 14 Art. 138 (3) EEC Treaty, providing a legal basis for a unified European electoral process, was a second reference point for the constitutionalists. The norm implies the full parliamentarisation of the Community 15 and therewith conveys the direct democratic legitimization of a European citizenship. Though this unified right to vote has not materialized to the present day, the direct election to the European Parliament, mentioned in the aforementioned article, was achieved through modification of the Direct Elections Act in 1976. 16 By now, the European Parliament has evolved as the political power of the Union, which is institutionally close to equal to the Council and according to its own conception as a place of genuine Union interest, it is even superior thereto. 17 At the end of the 1960s, the question of the constitutional legitimacy of European public power emerged alongside democratic legitimacy. The issue of fundamental rights protection like one of the broader "treaty conditions" was outsourced to the Council of Europe and the European Human Rights Convention it administered until then. 18 In the course of the second discovery of human rights at the beginning of the 1970s 19 as well as by way of the Solange impulse from the German Federal Constitutional Court, the European Court of Justice discovered the current protection of fundamental rights in the form of the general principles of community law. 20 The 1970s are likely the key decade for value constitutionalism. The main focus no longer lay in anti-communism and the peace mission, although it was rhetorically dominant in integration but-put into the wider institutional context-had only a relative significance. The motive of proclaiming common values as the raison d'être of European integration emerged alongside. 21 This newer motive manifested itself in a particularly clear way in the document on European identity from 1973. 22 The desire of the nine states is explicitly formulated as "the principles of representative democracy, of the rule of law, of social justice-which is the ultimate goal of economic progress-and of respect for human rights.  73-74 (2005). 18 The Community was nevertheless concerning itself with questions of fundamental rights in the applications for membership of Spain and Greece, in which the Council and the Member States adopted a pragmatic stance, whilst the European Parliament supported a value orientated stance, cf. KIRAN KLAUS PATEL, PROJECT EUROPE 146-175 (2020 these are fundamental elements of the European Identity." Three years earlier in the Davignon report, the six Member States of which the European Communities existed back then had already professed that "a united Europe should be based on a common heritage of respect for the liberty and rights of man and bring together democratic States with freely elected parliaments." A joint declaration of the organs, though not legally binding, to be bound by the fundamental rights of the community followed. 23 European thought on fundamental rights led to the negotiation of the Charter of Fundamental Rights at the end of the 1990s after accession to the European Convention on Human Rights, as preferred by the EU's organs, had been declared contrary to EU law for the first time owing to the lack of primary law authorization for such an accession. 24 This Charter of Fundamental Rights was (and is) aligned in its teleology towards the value system. The first three recitals of the preamble address the shared values of the Union and of the peoples of Europe, of which human dignity, freedom, equality and solidarity are explicitly named. 25 Constitutional European thought gained greater publicity in the 1980s. The European Parliament, which regards itself as a "constitution developing" assembly since the entry into force of the Direct Election Act, brought forward a draft version of a treaty pertaining to the establishment of the European Union in 1984. The draft became known as the Spinelli draft 26 and is regarded as a draft constitution. It initially led only to the Single European Act, 27 which was viewed as technical and labelled as such, the first substantial amending treaty since the Treaty of Rome. Certainly not coincidentally but rather in the context of the Spinelli draft, in 1986 the European Court of Justice described the EEC Treaty using the wording "constitutional charter of the community", with which it established a much-cited and identity-building point of reference for constitutionalists. 28 Constitutional thought on European integration moved closer to the current perspective by way of the aforementioned constitutional treaty, which incorporated the Fundamental Rights Charter and explicitly bound the Union and the Member States to uphold values.
D. The New Line of Jurisprudence of the ECJ One can understand the five decades before the constitutional treaty collectively as a process in which three strands of development evolved one after the other: first, constitutional thinking, then thought on fundamental rights and finally value-orientated thought. The latter overlaps with fundamental rights to the extent that fundamental rights substantiate European values. These three strands of development have integrated into one in the present, for which I propose the term "value constitutionalism". How did it come to this and what does it mean? The calibration point of recent events was the Court's legal opinion of 2014 on accession to the ECHR. The leading argument for the Court in determining the incompatibility of the accession agreement with EU law, negotiated with the European Council, was the "new legal order" created by the Treaty of Rome and which distinguishes itself through "its own constitutional framework. 29 The significance of the opinion lay in its timing and the explicit reference to constitutional   1963/1964. 30 It was an unexpected thunderbolt that after years of negotiations, the EU again would be unable to accede to the European Convention on Human Rights, 31 the common European catalogue of human rights, despite a primary law mandate and conformant political will. 32 Particularly in the context of a cross-section in European legal history, the breakaway movement with which the ECJ positioned the EU as a community of values, stands out, also in distinguishing it from the Council of Europe, which for decades fulfilled the function of a European forum of values. The Court also desires to be a court of fundamental rights, alongside national constitutional courts and the European Court of Human Rights, which effectively protects EU citizens. 33 It seems as though the Court wishes to safeguard the EU from becoming unitary through the human rights jurisprudence of the ECHRif it would not be blatantly impossible, one could gain the impression that the Court is conducting itself like a national constitutional court, concerned as to its constitutional identity. 34 The Court has used this constitutional terminology in this context ever since. In 2018 in the course of its judgment in the case of Portuguese judges, 35 the Court took a momentous step theoretically and indeed dogmatically, as depicted by the follow-up jurisprudence in the likewise highly political cases of Achmea, Wightman, CETA und Commission/Poland. The line of jurisprudence already outlined infers the conclusion that the European Union has entered a new constitutional phase of self-preservation. This conclusion can be inferred because the Court derives the authority to review the judicial structures in the Member States from its allocation of functions under primary law (Art. 19 TEU). The Member States are obliged to establish "remedies sufficient to ensure effective legal protection in the fields covered by Union law." The Court regards this obligation as a substantiation of the common value of the rule of law (Art. 2 (1) TEU). In the treaty article, the general principle of effective judicial protection of rights under Union law is also reflected as it ensues from the common constitutional traditions of the Member States and from the human rights convention and as codified in Art. 47 Charter of Fundamental Rights. The dogmatic clamp between the EU legal system and the legal system of the Member States results from the principle of loyal cooperation, which obliges the Member States to ensure the application and preservation, of TFEU at art. 6 (2). This legal basis was established following Opinion 2/94 specifically pertaining to the "implementation" of the obstacles to accession, the ECJ had queried, cf. Opinion 2/94 at para. 26. 33 In this respect, there is a parallel to the guiding principle l'Europe qui protège, which was introduced into the European debate by the French President, see L'Europe qui protège : "Cela ne se fera jamais." Vraiment?, ELYSEES, https://www.elysee.fr/ emmanuel-macron/2019/03/05/inauguration-du-college-du-renseignement-en-europe. In this regard, cf. Marc Leonard, l'Europe qui protège: Penser l'Union Européenne à venir, European Council on Foreign Relations, August 2017, http:// www.ecsf.eu. EU law in their territory. 36 In other words, the Court, through its judgment, transformed the value of "the rule of law" into a legally subsumable and enforceable norm, which has become a benchmark for the structures and activity of the Member States' judiciaries. 37 In the application and refinement of these legal issues, in the case of Commission/Poland, in dealing with the reduction of the retirement age of judges in office in the highest court and in the Presidential competency, the Grand Chamber regarded extending the active service of these judges beyond the newly established retirement age at one's own discretion as a breach of Art. 19 (1) TEU in connection with Art. 47 Charter of Fundamental Rights. 38 In doing so, the Court drew upon the very substance (Art. 52 (1) Charter of Fundamental Rights) of Art. 47 (2) Charter of Fundamental Rights. 39 Through Art. 19 and Art. 2 TEU, the Court construed an alternative approach to apply the fundamental rights of the Union without recourse to Art. 51 (1) Charter of Fundamental Rights. This step is new but certainly has an older point of reference, namely the genuine enjoyment of the substance of the rights conferred by virtue of a status, namely of EU citizenship (core concept). 40 In earlier jurisprudence, the Court extended the scope of EU law, from which the scope of application of the Charter of Fundamental Rights ensued as a quasi-spin-off. Art. 51 (1) Charter of Fundamental Rights, in its preservation of Member State competence in paragraph 2 and Art. 6 (1) 2 TEU, is meaningless in this respect. 41 The President of the Court, Koen Lenaerts, and his ECJ colleague, José Gutiérrez-Fons, clearly articulated this ancillary connection in an article on EU citizenship: "As we have explained elsewhere, the Charter is the 'shadow' of EU law. Just as an object defines the contours of its shadow, the scope of EU law determines that of the Charter." 42 The core concept has not been transferred to the Union's values by the more recent jurisprudence. The idea of an inventory of supra positive Union rights epitomizing European justice however continues to exist. Building on value constitutionalism, it would be conceivable to derive the core essence of EU citizens' rights in future from Art. 19 in connection with the principle of freedom (Art. 2 TEU) and Art. 20 TFEU, as well as the core essence of Art. 45 (1) Charter of Fundamental Rights. 43 As the Court established in a further judgment, EU citizenship belongs, alongside the ever closer Union and the values, to the fundamental principles of the EU. 44 For this highly positive inventory of EU rights, which substantiate values, the Court invokes the unwritten EU constitutional law, in which the principle of judicial protection arising from EU law is declared a general principle of EU law (Art. 6 (3) TEU) for the individual. In a -for the European Union -challenging escalation of rule of law based institutions in Member States, the 36 Id. at para. 30 (referencing Case Opinion 2/13 at para. 168, and explicitly the reference to TEU art. 4 (3)). Case Opinion 1/ 09 at para. 68. Court reached for the constitutional argument in order to assert itself and the EU legal system. 45 Ultimately, the Court merged constitutional thinking with the autonomy of EU law in a further key decision. Opinion 1/17 on the Trade and Investment Treaty between the EU and Canada (CETA) reads word for word: "That autonomy accordingly resides in the fact that the Union possesses a constitutional framework that is unique to it. That framework encompasses the founding values set out in Article 2 TEU, which states that the Union 'is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights', the general principles of EU law, the provisions of the Charter, and the provisions of the EU and FEU Treaties, which include, inter alia, rules on the conferral and division of powers, rules governing how the EU institutions and its judicial system are to operate, and fundamental rules in specific areas, structured in such a way as to contribute to the implementation of the process of integration described in the second paragraph of Article 1 TEU (see, to that effect, Opinion 2/13 (Accession of the Union to the ECHR) of 18 December 2014, EU: C:2014:2454, paragraph 158)." 46 The outlined reference to the "implementation of the process of integration described in the second paragraph of Article 1 TEU" means the ever closer Union, i.e. constitutionalism is serving the object of integration, which to date has been described as a process. The consequences of the Union's constitutional thinking are particularly apparent in Opinion 1/17. I refer to the part of the reasoning, in which the Court declares the CETA agreement to be incompatible with EU law because the agreement makes it impossible for EU organs to function in accordance with the constitutional framework of the EU. It is not only the treaties but also the constitutional principles derived from them which constitute the standard of review. Autonomy and constitutionality become one.

E. Critique
The Court falls back on the values clause in Art. 2 TEU and argues offensively using the constitutional principles of EU Law for a significant objective: the protection of the rule of law in the European Union and in the Member States. If Member States deviate from EU law and fail to uphold their obligations, it is likely that the Court relies not only on political solutions but sees the possibility of parallel legal approaches. This method allows it to bring disturbing issues in individual Member States before the Court. However, European law has now experienced that the Court proceeds tactically proficiently and undertakes dogmatic innovations, which as a consequence do not give Member States cause for complaint and which therefore render political reception easier. With a some distance from the individual decisions, it stands out that the Court as a consequence deserves approval that it is making use of a constitutional language in an increasing manner, interpreting European Union law not only from its autonomy but regarding its autonomy as supported by a change resistant-value orientated-substance. Art. 2 TEU could thus become an eternity clause in community law. 47 Autonomy is becoming self-governance The failure to take account of CFREU art. 51 (1) would in itself have provoked opposition in Karlsruhe, see Peter Michael Huber & Andreas Paulus, Cooperation of Constitutional Courts in Europe, in COURTS AND COMPARATIVE LAW 281, 296 (Mads Andenas & Duncan Fairgrieve eds., 2015) ("This is also true of the Court of Justice of the European Union as the guardian of the EU treaties (second sentence of TEU art. 19, sec. 1). However, this court adjudicates only within the area of application of EU law, and in the area of fundamental rights when implementing the law of the EU (Art. 51 sec. 1 CFREU)."); furthermore in the new jurisprudence of the First Senate on the "right to be forgotten" CFREU art. 51 is ascribed a competence preserving meaning in the fundamental federal relationship between the EU and the Member States. Cf. Bundesverfassungsgericht and could become the core of European sovereignty. 48 The values clause in Art. 2 TEU makes the EU-as a legal subject-special insofar as even structural changes in the Member States adopted in the context of Parliamentary democracy can be addressed as issues of EU law. 49 Against the backdrop of the relationship between Member States and the EU, the insistence on limitations of competences in the allocation of power is no longer compatible and appears outdated. Certainly, this is a question of perspective and therefore it does not come as a surprise that Germany's Federal Constitutional Court in its PPSP-judgment 50 interpreted Art. 5 (1) TEU as guarantee of Member States' democratic self-determination. The EU clearly distinguishes itself from the Council of Europe, which most recently has had to act diplomatically towards Member States, which have raised doubts as to whether they still accept the "principle of the primacy of law" and the commitment to uphold human rights (Art. 3 Statute of the Council of Europe). 51 With a view to these concessions and as ECtHR also asserts the claim to defend a "consistent social model" 52 for the European continent the EU conceive the idea to keep some equidistance.
The significance of the values clause becomes clearer from a different perspective, namely in the Opinion pertaining to the case of Egenberger. This preliminary ruling procedure originating in Germany dealt with the compatibility of a denominational tender for a position at a deaconry with anti-discrimination Directive 2000/78/EC. 53 In the Opinion, Advocate General Tanchey in principle deals with a classification of Art. 17 TFEU, partially understood as a negative competence "church article" of primary law, which builds a bridge to integration models. 54 According to the Advocate General, the treaty article is "not a meta-principle of constitutional law." As a typical example of such meta-principles, he names the sanction proceedings (Art. 7 TEU), the antidiscrimination cross-section clause (Art. 10 TFEU) and, from the fundamental rights, the specific prohibitions of discrimination (Art. 21 CFREU) and the guarantee of access to justice (Art. 47 CFREU). 55 In the course of the reference to meta-principles, it becomes clear that the Advocate General obviously considers an internal division of primary EU Law, understood as "constitutional law." There is ordinary law and there are qualified meta-principles, the statements which denote that what is unavailable cannot be derogated from and is to be implemented as a matter of priority. 56 The meta-principles are treated as a kind of peremptory EU law, its roots can [BVerfG] [Federal Constitutional Court] Case No. 1 BvR 16/13, paras. 43, 53 (Nov. 6, 2019) For more on the meta-norm in this context, see Volker Roeben, Judical Protection as the Meta-Norm in the EU Judical Architecture, 12 HAGUE J. ON RULE L. 29-62 (2020). already be found in the Kadi jurisprudence. 57 At this point the EU seeks and finds the connection to Global Constitutionalism, striving to justify the legitimation of public authority across states with regard to human rights, democracy and the rule of law. 58 Particularly at a time of questioning the purpose of European integration and of disintegration, this value constitutionalism could manifest the aspiration on the one hand to symbolize the reality of integration, the ever closer Union (Art. 1 (2) TEU), and on the other hand to legally operationalize it. The "dispute deprived consensus", which should be manifested by this civil religious concept, must, however, always expect this postulated normative consensus to act as a deterrent because it is not backed up by a material consensus in the Member States. 59 The claim by the Court that the values clause (Art. 2 TEU) constitutes ratified primary law and that consensus therefore exists is not a supporting counterargument as the conflict arises from substantiating the use of highly abstract values. 60 The normative threads converge along general clauses, capable of being fleshed out, in the European judiciary to intercept these disintegration tendencies. It is therefore possibly not a coincidence that the new President of the Commission furnished the portfolio of a designated Vice-President with the heading Promoting our European way of life. 61 The observation confirmed that no society leaves value orientation to chance or to individual discretion. 62 Value constitutionalism in this respect stands for the will of European society which primary law conceived, by linking the validity of values with the evolution of a European society (Art. 2 (2) TEU). 63 Value constitutionalism must face another point of criticism. The construction of Art. 19 (1) in connection with Art. 2 TEU is not limited to the value of the rule of lawthe Court construes the standard in a more abstract way by making reference to Art. 19 TEU as a whole. The article is substantiated by the values clause, embedded in the constitutional framework of EU law. 64 In new situations, it would be possible though to fall back on other values, such as human dignity, 57 equality, freedom or democracy, which could be linked to other organizational norms without primary law having criteria as to what concrete form values have got and the priority in which they stand in relation to one another. The set of values in Art. 2 TEU covers nearly all of the activities of the Member States and the Union and permits relevant substantiation by way of the Charter of Fundamental Rights. Transforming the values into fundamental rights in turn represents a subjectification, which mobilizes the EU citizens to defend these values before courts, the consequences of which cannot yet be foreseen for the federal distribution of power between Member States and the EU. 65 The value constitutional approach of the Court evokes clarity, although clarity (still) is not present in many constellations. The Court itself had decided in the, then renowned, case of Omega, which dealt with the prohibition of killing games, that human dignity in Germany and in the United Kingdom can be interpreted differently. Thus, whilst the game concept was in compliance with EU law, the German authority could forbid the practical implementation thereof by reason of a breach of public order and therewith limit the fundamental freedoms. 66 The judgment represents the plurality of European values, although it cannot be taken for granted whether the Court would render the same decision today following the entry into force of the human dignity guarantee (Art. 1 CFREU). 67 The abstractness of values in itself is the price which the heterogeneous "Mega Union" 68 has to pay to integrate this concept and operate with values. This is reflected in the expansion of the Union, in which the Union permitted states to join which did not fulfil the values-still an accession criterion (Art. 49 TEU)-as a means of stabilization but which did not go unnoticed and for which the Commission was duly criticized. 69 The aforementioned Art. 17 (1) TFEU provides a third example, whereby the wording expressly notes value pluralism beyond the abstractly held freedom of religion, with an explicit reference to Member State particularity. Thus, it is no coincidence that the Commission and the Court are developing value constitutionalism upon the rule of law. It is the value with the highest level of substantiation, supported by extensive preparatory works in the context of the Council of Europe and the European Union itself. 70 The right to an effective remedy and to a fair trial (Art. 47 CFREU) is a sufficiently concrete fundamental right and nevertheless, this guarantee itself is lacking in clarity. 71 The decisive question is whether EU law values entail not only a rhetorical commitment but in fact a consensual value of national identities manifested in fundamental constitutional structures. 72 The ECJ should resist the temptation to substantiate EU values in its jurisprudence widely and comprehensively imperative in order to render them subsumable. It is an open question whether the Court already has sufficient legitimate recourses and the sensitivity has to have the last word on the concrete form of common European values-or not. More important still is the recognition that the substantiation and procurement of values is a social responsibility among and within the Member States. It requires an appropriate form, which facilitates societal understanding. As a result, the dialogue of the highest courts 73 can at most have a supporting role, the European Court of Justice presumably would not be able to achieve the substantiation and the creation of a hierarchy pertaining to multipolar clashes of values with the necessary acceptance. With the conflicting interpretations in mind, the weight is again shifting towards the federal constitutional point of view on integration. The cooperation in the club of Member States is receding into the background. The political union is federalizing itself into a value constitutional union. 74 The Constitutional Treaty failed in its time also because of the openly represented transformation of the Union, away from a delegation model towards a European federation. The result of the early years of European integration remains: the Member States agree to cooperate in a treaty established political union. For the time being, they do not have a consensus on a "good order" for Europe. 71 Cf. Christoph Möllers, Reflexionen über den Rechtsstaat, 53 ZEITSCHRIFT FÜR RECHTSPOLTIK 27 (2020). 72 On this point, see ANDREAS VOßKUHLE, THE IDEA OF THE EUROPEAN COMMUNITY OF VALUES 38 (2018) (concluding that referring to the protection of national identity is ruled out when the measures of individual states contradict the narrowly interpreted basic values of the EU).