Is It Enough to Say ‘Common Values’ When We Mean the Essence of European Integration? Reassessing the Understanding of Art. 2 TEU as the Identity of the EU Legal Order

The contribution critically examines the idea that the common values from Art. 2 of the Treaty on European Union (TEU) constitute the identity of the European Union (EU) legal order. This idea, formulated by the Court of Justice in the rule of law conditionality decisions, has been endorsed by many lawyers and scholars, including Julio Baquero Cruz and Jean-Paul Keppenne in their chapter in the book on 70 Years of EU Law. The contribution engages with the fundamental normative claims behind the conception of EU common values as identity. First, it argues that, based on the EU constitutional discourse, any conception of the EU legal order’s identity or essence cannot easily exclude the Treaty aims of pursuing peace and the socioeconomic well-being of European peoples. Second, the paper submits that, despite the scholarly praise of ‘identity based on commonality’, the concept of identity suggested by the Court does not essentially differ from other constitutional concepts insofar as it conceals inevitable political disagreements, tensions, and choices. It is essentially particularistic due to its interpretative contestability, as well as its selective legislative enhancement and institutional implementation.