The practical impact of EGE opinions can, amongst others,68 be seen from the EU's research funding programme Horizon 2020, where the relevant regulation states that "[t]he opinions of the [EGE] should be taken into account".69,70 In the field of patentability of biotechnological inventions, the already widely covered directive states that the EGE "evaluates all [sic!] ethical aspects of biotechnology".71 This directive dates from 1998, hence, the year after the EGE's establishment.

68In addition, several other regulations and directives, as well as courts, e.g. the CJEU and the European Court of Human Rights (ECtHR), as well as AG at the CJEU have referred to EGE opinions; for further details, see Pirs (2017, p. 32). This chapter has been drafted at the same time as the following paper; hence, certain parts can overlap: Pirs and Frischhut (2019, forthcoming). 69Regulation establishing Horizon 2020, recital 29.

70Similar in Regulation Horizon 2020 Euratom, recital 18.

71Recital 44 and Art 7.

#### *4.2.1 EGE History, Institutional Structure and Opinions*

Due to rapid scientific developments in biotechnology and genetic engineering in the late 1980s and early 1990s, there was need for an institutionalized framework facilitating debate and addressing public concern as to ethical implications.72 Hence, in April 1991 the EC stated that there is a need for a "consultative structure on ethics and biotechnology".73 The Group of Advisers on the Ethical Implications of Biotechnology (GAEIB) was created on 20 November 1991. After the first mandate of two years, the EC addressed the necessity "to clarify further value laden issues in relation to some applications of biotechnology", hence to "reinforce the role of the [GAEIB]".74 After the mandate had expired on 31 July 199775 and the legislative process leading to 'Directive Biotech' was in full swing,76 the EC on 16 December 1997 decided to replace the GAEIB by the EGE, "extending the Group's mandate to cover all areas of the application of science and technology".77,78 The EGE was then established in December 1997.79 As of 2000,80 the EGE was part of the 'Bureau of European Policy Advisers (BEPA), a Directorate General (DG) of the EC, reporting directly to the EC president.81 Nowadays, the EGE is docked with DG Research and innovation.82 While it clearly makes sense to link the EGE to the field of research and innovation, it could also be seen as a downgrading of the EGE, as there is no

76On 29 August 1997, the EC had adopted an amended proposal: COM(97)446 final 29.08.1997.

81Plomer (2008, p. 841).

72Plomer (2008, p. 840).

73EC 'Promouvoir les conditions de la compétitivité des activités industrielles basées sur la biotechnologie dans la Communauté', SEC(91) 629 final 19.4.1991, p. 18: "*Il est souhaitable que la Communauté dispose d'une structure consultative sur l'éthique et la biotechnologie capable de traiter les questions d'éthique qui se posent dans le cadre des activités communautaires. Cette structure devrait permettre l'ouverture d'un dialogue où seraient débattus ouvertement les problèmes éthiques dont les Etats membres ou d'autres parties intéressées jugeraient la solution nécessaire. Elle permettrait également à des experts délégués par les groupes concernés de contribuer à l'orientation du processus législatif. La Commission estime que cette démarche serait un pas positif en vue d'une meilleure acceptation de la biotechnologie et de la réalisation du marché unique pour les produits Issus de cette technologie.*".

74European Commission (1993, p. 103).

75EP resolution of 13 June 1997 on the mandate of the Group of Advisers on the Ethical Implications of Biotechnology to the EC (B4-0484/97), OJ 1997 C 200/258 [EP resolution GAEIB], recital A.

77EC decision (EU) 2016/835 of 25 May 2016 on the renewal of the mandate of the European Group on Ethics in Science and New Technologies, OJ 2016 L 140/21 [EGE mandate V 2016], recital 3. This current mandate started on 28.5.2016 and lasts until 27.5.2019.

78It seems that the EGE follows a broad understanding of technology.

79EC *communication de M. le PRESIDENT, en accord avec M. BANGEMANN, M. FLYNN, Mme CRESSON, Mme BJERREGAARD, M. MONTI, M. FISCHLER et Mme BONINO: Création d'un groupe Européen d'éthique des sciences et des nouvelles technologies*, SEC(97)2404 final 12.12.1997 [EGE mandate I 1997].

80That is to say, as of the second mandate (see Table 4.2), Mohr et al. (2012, p. 107).

82The EGE's website can be accessed via http://ec.europa.eu/research/ege/index.cfm.

direct and regular access to the EC president (Juncker).83 For an overview of the EGE's development, see Table 4.2.

Moreover due to the increasing role of 'good governance',84 the already mentioned horizontal rules on the creation and operation of EC expert groups also apply to the EGE; as already mentioned, these rules strive for a balanced composition of expert groups and also comprise rules on conflict of interest, in order to "ensure the highest level of integrity of experts".85 Likewise, as for all expert groups giving advice to the EC, the core principles of 'quality, openness, and effectiveness' apply to the EGE.86

Under the current mandate, the EGE is tasked "to advise the Commission on ethical questions relating to sciences and new technologies and the wider societal implications of advances in these fields".87 The members are appointed by the EC president, based on a proposal from the Commissioner for research, etc.88 The EGE, which "shall be independent, pluralist and multidisciplinary", is composed of 15 members serving in personal capacity, and demonstrating "a high level of expertise and pluralism"; furthermore, the mandate strives to establish a geographical balance, as well as a balanced representation of relevant know-how and areas of interest".89 In its 1997 resolution concerning the GAEIB, the EP had criticized that so far, "too much attention has been paid to the interests of research and not enough to the possible effects on society".90 Today, besides a balance of qualities, gender and geographical distribution, the current mandate requires "independent advice of the highest quality", "combining wisdom and foresight", as well as "internationally recognised experts, with a track record of excellence and experience at the European

83Compared to former president Barroso, president Juncker also took a different approach in another field, by "scrapping" the role of the Chief Scientific Adviser (CSA); see Panichi (2015). Nowadays, see the EC's Scientific Advice Mechanism (SAM), also comprising the Group of Chief Scientific Advisors; EC decision on the setting up of the High Level Group of Scientific Advisors, C(2015) 6946 final 16.10.2015, as amended by Decision amending Decision C(2015)6946 on the setting up of the High Level Group of Scientific Advisers, C(2018) 1919 final 5.4.2018.

84EC 'European governance—A white paper', COM(2001) 428 final, OJ 2001 C 287/1; addressing principles of openness, participation, accountability, effectiveness, and coherence.

85EC decision experts, recital 3, Art 2(4), Art 11.

86EC communication on the collection and use of expertise by the Commission: principles and guidelines—"Improving the knowledge base for better policies", COM(2002) 713 final 11.12.2002, p. 1.

87EGE mandate V 2016, Art 2.

88EGE mandate V 2016, Art 4(3). Since 'EGE mandate III 2005' (see Table 4.2), the EC president has officially appointed the members. However, since the creation of the EGE in 1997, "the President of the Commission has been authorised by the Commission to appoint the EGE members", hence 'EGE mandate III 2005' "has therefore [only] formalised this situation". Source: response of former EC president Barroso on a parliamentary request ('Criteria and methods for the selection of the members of the [EGE]', P6\_RE(2006)0430, answer from 17.3.2006); see also EGE mandate I 1997, p. 4. Besides this, the selection process shall be overseen by a new 'Identification Committee'; EGE mandate V 2016, Art 4(3) and (4).

89EGE mandate V 2016, Art 4(1), (2) and (4).

90EP resolution GAEIB, pt. 3.

**Table4.2**OverviewEGE and New Technologies and of the period of appointment of its members, OJ 2009 L 270/18 [EGE extension of mandate III 2009] dEC decision 2010/1/EU of 23 December 2009 on the renewal of the mandate of the European Group on Ethics in Science and New Technologies, OJ 2010 L 1/8[EGEmandateIV2010]

 eEGEmandateV2016

 fThis opinion No 30 was published in December 2018, hence after the manuscript of this book was finished. For further details, see Pirs and Frischhut (2019,forthcoming) and global level".91 Furthermore, one of the criteria mentioned is membership in national ethics councils,92 in order to establish this vertical link between the EGE and national ethics committees.93 This networking is also related to the international level, in particular the World Health Organisation (WHO), the United Nations Educational, Scientific and Cultural Organisation (UNESCO), and the Council of Europe. This networking is important in terms of exchange of best practice (in either direction). Most important in terms of qualification, the mandate requires the following94:

TheMembers shall reflect the broad *cross*-*disciplinary scope* of the group's mandate, embracing *philosophy and ethics*; *natural and social sciences*; and the *law*. However, they shall *not* [!] perceive themselves as *representatives* of a particular discipline, worldview, or line of research; they shall have a *broad vision* which collectively reflects an understanding of important ongoing and emerging *developments*, including inter-, trans-, and multi-disciplinary perspectives, and the need for ethical advice at the European level.

This requirement, more precisely, this rejection of the possibility of sending representatives of a certain political or ideological direction must also be seen in the light of the criticism that in 2005, many members were too closely linked to the Catholic church.95

In terms of the inter-institutional role, before the transition from the GAEIB to the EGE, the EP had called for an increasing role on the composition of the new members.96 These tensions must be seen against the background of fundamental questions about the role of morality in EU law, precisely "the content of any putative European moral norms and the institutional mechanisms through which morally charged EU policy should be decided", as well as the EP's veto against the first draft of 'Directive Biotech'.97 However, as mentioned above, the EGE's task is to advise one institution, namely the EC.98 The EP and the Council of the EU only have an 'indirect access' to the EGE, as "the Commission may draw the Group's attention to issues considered by the Parliament and the Council to be of major ethical

91EGE mandate V 2016, Art 4(6)(a) and (b).

92EGE mandate V 2016, Art 4(6)(e).

93In 2005, EGE also began formally to network with national ethics committees; Mohr et al. (2012, p. 107). See, for instance, the above-mentioned (preface) 'Meeting of the National Ethics Councils (NEC) Forum and the [EGE]' on 17 & 18 September 2018 in Vienna, organised under the Austrian Presidency of the Council of the EU.

94EGE mandate V 2016, Art 4(6)(c); emphases added.

95Plomer (2008, p. 844).

96EP resolution GAEIB, pt. 4.

97Plomer (2008, p. 842).

98Quoting former EC president Jacques Santer, in literature (Mohr et al. 2012, p. 107) the EGE was referred to as "the servant of 'European decision-makers', not solely the Commission"; however, in formal terms it is clearly attached to the EC.

importance".99 Once an opinion has been adopted, besides the general publication, the opinion has to be transmitted to the EP and the Council.100

In terms of the intra-institutional role, the current mandate states "the EGE *shall* establish close links with Commission departments concerned by issues the Group is working on",101 hence, a more prescriptive and less aspirational ('may') language, as this was the case earlier.102 Links with external representatives have to be agreed with the Commission's representative,103 while previously this was a prerogative of the EGE itself.104,105 Finally, as Plomer has emphasized,106 the EGE does not have a 'president', but a 'chairperson' only; while the first mandate had referred to a chairperson, the second mandate 'upgraded' this job to an EGE 'president', with mandates No 3 to 5 again only referring to a chairperson.107 While legally speaking this might not change a lot, one should never underestimate the symbolic meaning of such wording.108

The EGE develops their opinions and standpoints in a collaborative way, seeking consensus amongst its members, while leaving open the possibility of dissenting opinions,109 whereas the discussions are confidential.110 So far, the EGE has deliv-

99EGE mandate V 2016, Art 3. However, the EGE has also accepted requests by other institutions (especially in case of a political standstill), followed by an official request of the EC (e.g. in case of EGE opinion No 27, on energy).

100EGE mandate V 2016, Art 5(8).

101EGE mandate V 2016, Art 5(7); emphasis added. Having access also to other DGs can be important in terms of the impact of the EGE's activities.

102Plomer (2008, p. 846).

103EGE mandate V 2016, Art 5(7).

104See Footnote 102.

105However, it seems that the EGE faces no problem in establishing these links, if so desired. 106See Footnote 102.

107EGE mandate I 1997, pt. 7; EGE mandate II 2001, pt. 7; EGE mandate III 2005, Art 4(1); EGE mandate IV 2010, Art 4(1); EGE mandate V 2016, Art 5(2).

108It seems that the EGE has always enjoyed sufficient independence in its work. Göran Hermerén, past president and chairperson of the EGE "[does] not recollect any attempt from BEPA or the Commission to interfere with our work, nor to suggest or put pressure on us to change something in a draft EGE report" (personal communication).

109EGE mandate V 2016, Art 5(6) and (8), "as a 'minority opinion'". See for instance the dissenting opinion of Günter Virt on the controversial issue of patenting of human embryonic stem cells, in EGE opinion No 16 (European Group on Ethics in Science and New Technologies (2002, p. 19)).

110EGE mandate V 2016, Art 5(10). These internal EGE documents cannot be accessed, "even from within the Commission"; Mohr et al. (2012, p. 109).

ered 30 opinions, as well as statements111 and reports.112 EGE opinions113 have been mentioned in several EU legal documents.114 They shall include a set of recommendations and shall be based on an overview of the state of the art of sciences and technologies concerned, as well as a thorough analysis of the ethical issues at stake.115

The opinions are usually structured in the following three parts116: the first part consists of recitals of the reference texts, which form the starting point (e.g. request by EC president, relevant EU law, relevant international law, primary scientific texts, relevant previous EGE opinions, expert reports and roundtable hearings). The second part consists of three sections, which provide the scientific, legal and ethical backgrounds to the opinion, and the third part presents the opinion with recommendations.117 Since the beginning, EGE opinions have increased in both scope (from bioethics to sciences and new technologies) and size (from six pages to typically around 100 pages).118 While some argue that theoretically the EGE is not formally bound to the CFR,119 there are various references in EGE opinions to this key human rights document, as we will also see in the following.

#### *4.2.2 Key Findings*

As it is the EGE's specific task "to advise […] on ethical questions", it remains to be seen how many of the gaps concerning the EU's ethical spirit within the lattice identified so far can be filled based on the findings from the EGE's opinions. Thus, in a similar way as Sect. 4.1, this chapter is dedicated to objective 4, which is to say to answer the question whether the EGE substantiates its ethical reasoning on one of the three normative theories.

111Statements or other forms of analyses can be produced, if operational circumstances require that advice on a particular subject should be given more quickly than in case of the adoption of an opinion (this should be followed, if necessary, by a fuller analysis in the form of an opinion); EGE mandate V 2016, Art 5(9).

112According to Busby et al. (2008, p. 840), the EGE was asked to give an opinion on the CFR, however declined to do so and, instead, gave the following report: European Group on Ethics in Science and New Technologies (2000).

113For a detailed analysis of their impact on the legislative procedure, see Busby et al. (2008) (concerning opinions 2, 3, 8, 11, 12, 15, 19 and 22) and Mohr et al. (2012) (concerning opinion 19). 114E.g. Directive Biotech, recital 19 (GAEIB); EC recommendation nanosciences, recital 6; Regulation advanced therapy, recital 28; Directive tissues and cells, recital 33.

115EGE mandate V 2016, Art 5(5).

116European Group on Ethics in Science and New Technologies (2005, p. 10).

117There are strong indications that, not very surprisingly, lawyers draft the legal parts, philosophers the ethical ones, and scientists the scientific ones.

118Cf. Pirs (2017, 27, A7).

119Wilms (2013, p. 293).

This chapter is based on a research project, where the research design has been developed by the author, the research itself conducted as well as the research design further specified by Matthias Pirs,120 and his Master thesis having been supervised within the 'Integrity Research Group' by Lorenzo Pasculli (now: Coventry University) and the author.

With regard to the methodology,121 this project also took an inductive approach, coding122 the 1205 pages of the 29 EGE opinions with the aim of deriving 'rules of prediction' in an explorative way.123 The categories were formed based on a latent analysis, the 'interpretative reading' of the text, so to speak. The opinions where then screened, using the MAXQDA software, which moreover allows to eliminate code redundancies.124

As mentioned above, for the first time, the third mandate of the EGE (2005–2010) was based on a formal decision, hence increasing EGE's legitimacy. The research has revealed that starting from the second half of this mandate, the EGE refers to our three normative theories, that is to say mainly since opinion No 23 (issued on 16.01.2008), until opinion No 29 (issued on 13.10.2015).125 Besides the new (and formally strengthened) mandate, the EGE left its initial turf of biotechnology and bioethics, and moved on to new fields of technological developments in agriculture, energy, information and communication technologies (ICT), security and surveillance, and citizen participation in new health technologies.126

In quantitative terms,127 the total references to deontology prevail (37), followed by virtue ethics (12) and consequentialism (10), with EGE opinions No 25 on 'synthetic biology' and No 28 on 'security and surveillance technologies' exhibiting the largest accumulation of hints to one or more of these three normative theories, 18

120Pirs (2017).

121For further details on the methodology and the limitations, see Pirs (2017, pp. 40–45). Concerning these opinions (in EN), this project applied a qualitative content analysis (QCA) and took a mixed qualitative (assigning code categories in the relevant materials) and quantitative (analysing and interpreting category frequencies) approach. Concerning the footnote references to potential schools of thought, the QCA mainly considered those, "which were primarily referred to in the main line of reasoning (in-text citation or direct references) in the opinions". In other words, the QCA excluded standalone footnote references, if they could not be related to one of the normative theories; Pirs (2017, p. 44).

122The coding process contained the following steps: reading opinions, inductive coding, lexical search, refining categories, classification, and finally narrowing down to the results, presented in the following; for further details, see Pirs (2017, pp. 43–44).

123The author would like to thank Nils-Eric Sahlin for pointing to the fact that an inductive method cannot lead to a theory.

124Pirs (2017, p. 42). As mentioned above (Table 4.2), for opinion No 30 see Pirs and Frischhut (2019, forthcoming).

125Opinion No 30 is on the 'future of work'.

126Pirs (2017, p. 49).

127It has to be emphasized that sometimes it could be the case that, for instance, three hits occur on the same page of the same opinion, while in other cases three hits occur in different parts of the same opinion, or in total three hits in three different opinions. That is why these numbers shall not be overestimated.

and 16 respectively (see Table 4.3). In terms of philosophers, John Rawls accounts for most hits (10128), followed by Hugo Grotius (7), Thomas Hobbes and Hans Jonas with 5 each, Hannah Arendt (4), Jeremy Waldron, Jeremy Bentham, John Stuart Mill, Peter Singer, Michel Foucault and Aristotle with 3 each, John Locke with 2, as well as Immanuel Kant and Jean-Jacques Rousseau with one each, to name but a few.129

Overall,130 the qualitative content analysis (QCA) revealed that thinkers in a deontological tradition of thought dominate the reasoning in the EGE (see Table 4.3).131

In its opinion (No 24) on 'ethics of modern developments in agriculture technologies', the EGE referred to justice, as the "institutional dimension of ethics".132 When broaching issues of global as well as intergenerational justice, the EGE referred to Harvard philosopher John Rawls (1921–2002)133 and his 'original position', where everyone decides questions of justice from behind a 'veil of ignorance; hence, one would adopt "a 'maximin' strategy which would maximise the position of the least well-off".134 For the global justice discourse, the EGE refers to this question of distributive justice, which deals with the question of which goods a society or a collective group shall distribute among its individual members. This geographical dimension addresses similar questions as along the timeline (i.e. 'justice between generations'), where "*future* or *past* generations can be viewed as holding legitimate claims or *rights* against present generations, who in turn bear correlative *duties* to future or past generations".135 It is worth mentioning that this involves not only the perspective of rights, but also of duties, similar to the discussion on human rights and human rights obligations.136

As we have seen earlier, conflict of interest is a key issue in ethics. Likewise, in this context, by again referring to Rawls, the EGE emphasizes that "if there is an intergenerational *conflict of interests*, considerations of *justice* could place an *obligation* on *present* generations not to pursue policies that create benefits for themselves but at the expense of those who will live in the future".137 One year later (in 2009), the EGE picked up the same ideas of Rawls on justice in its opinion on 'synthetic biology'.138

128Five in EGE opinion No 24 ('agricultural technologies') and five in EGE opinion No 25 ('synthetic biology').

129For a detailed overview, see Pirs (2017, p. 50).

130In the following, some key findings will be presented; for further details see Pirs (2017, pp. 52–64), respectively the above-mentioned opinions, and Pirs and Frischhut (2019, forthcoming). 131As far as possible, the different philosophers have been categorized according to the three normative theories.

132EGE opinion No 24, p. 48.

133Rawls (1971).

134EGE opinion No 24, pp. 51–52.

135EGE opinion No 24, p. 52; emphases added.

136See Weß (2010, pp. 258–259); Assmann (2018).

137EGE opinion No 24, p. 52; emphases added.

138EGE opinion No 25, p. 45.

Hans Jonas (1903–1993), a philosopher focussing on relationship of man to nature and his handling of technology, has also highlighted this responsibility towards future generations. Based on Kant's 'categorical imperative',139 in his 1979 book "*Das Prinzip Verantwortung*", he developed an 'ecological imperative', which states as follows: "Act so that the effects of your action are compatible with the permanence of real human life on earth".140 The development of this deontological concept has to be seen against the historical background, where he saw the need to develop a new concept of ethics, since in the past technology did not have such ranges of action in space and time. In opinion No 27 on energy, the EGE has referred to Jonas, stating that his approach "is echoed in part in the implementation of the 'precautionary principle' in the legal EU framework, which reverses the burden of proof—the argument for the greater overall benefit of an action—in cases of expected harms or risk of envisioned technologies".141 Likewise, the EGE links Jonas' ideas of obligations towards future generations to the 'principle of sustainability' with respect to the impact of present actions on future generations.142 In this regard, the EGE refers to the values of human dignity (and human rights), justice (including distributive, social, political, and intergenerational justice), as well as solidarity (the shared responsibility and concern for EU and global welfare). These overarching rights and values shall "guide the development of an ethics framework oriented at a responsible design of the EU energy policy".143

The aforementioned value of human dignity is another deontological concept, which the EGE in its opinion on 'synthetic biology' sees as "the *core* of the ethics framework for synthetic biology".144 Although the EGE only refers to it as "[o]ne such attempt" to define human dignity, it quotes the following definition of medical expert William P. Cheshire145:

The exalted *moral status* which *every* being of human origin uniquely possesses. Human dignity is a given reality, *intrinsic* to human substance, and *not contingent upon* any functional capacities which vary in degree. […] The possession of human dignity carries certain *immutable moral obligations*. These include, concerning the treatment of all other human beings, the duty to preserve life, liberty, and the security of persons, and concerning animals and nature, responsibilities of stewardship.

This deontological concept of the 'intrinsic value' comprises, according to the "Kantian understanding of human dignity [which] emphasises moral responsibility", a prohibition of "treating human beings as mere 'objects' of the interests of others".146 According to the EGE, this is especially important in case of vulnera-

139See *supra*, Sect. 2.1.

140Jonas (1979, p. 36); translated with DeepL. This book is also quoted in EGE opinion No 25, p. 16.

141EGE opinion No 27, p. 49.

142See Footnote 141.

143EGE opinion No 27, p. 50.

144EGE opinion No 25, p. 39; emphasis added.

145Cheshire (2002, p. 10); emphases added.

146EGE opinion No 25, p. 39.

ble human beings,147 referring to an idea addressed by Beyleveld & Brownsword in their seminal work 'Human Dignity in Bioethics and Biolaw'. Based on "the notion of dignity as a virtue", the idea of responsible behaviour, according to them, should be taken seriously; in that regard, the responsibility that underlies the notion of dignity, is a "responsibility that goes to questions of character as much as to the appearance".148 Then they continue with the part that was (partially) quoted by the EGE149: "Specifically, it is the idea of dignity as a particular practical attitude to be cultivated in the face of human finitude and vulnerability (and, concomitantly, the natural and social adversity that characterizes the human condition)".150 Hence, for the EGE, dignity "is the *basis*for more specific principles,*rights and obligations*, and is closely connected to the principle of *justice* and *solidarity*".151 This corresponds to human dignity enshrined in Art 1 CFR and Art 2 TEU (EU's common values), as well as the above-mentioned emphasis not only on rights, but also on obligations.

With regard to patentability of biotechnological inventions, the EGE addresses the danger of commercial exploitation ('commodification'), which can offend human dignity, thus proposing three types of categories of inventions. First, that "which is common to all *humankind*, and should not be patentable or directly exploited for commercial gain", second, that "which, for a variety of reasons, should be placed in the *public domain* for all to use and exploit (the 'commons')", and finally, inventions that can be protected "at the inventor's discretion".152 In summary, it can be said that based on the EGE's emphasis on human dignity, deontology plays an important role in bioethics.153

Also in the field of 'security and surveillance technologies', the EGE emphasized that human dignity "is at the heart of ethics and is also of crucial importance regarding the debate" in this field.154 Against the background of debates of increasing security by limiting freedom, the EGE makes a clear statement: "Human dignity is the *core* principle of the European moral framework, and as such it cannot be 'traded off'".155 However, according to the EGE, "dignity is intimately associated with freedom and responsibility", and here a balance needs to be struck between those two.156 In this context, the EGE draws on Jeremy Waldron (1953–), a New Zealand professor of law and philosophy, who uses the respect for the dignity of citizens as an argument

147See Footnote 146.

148Beyleveld and Brownsword (2001, p. 2).

149See Footnote 146.

150See Footnote 148.

151EGE opinion No 25, p. 39; emphases added.

152EGE opinion No 25, pp. 45–46; emphases added. For further details on the notion of 'common heritage' and Grotius, see Pirs (2017, pp. 57–59).

153Cf. also Pirs (2017, p. 56) with further details.

154EGE opinion No 28, p. 71.

155EGE opinion No 28, p. 77; emphasis added.

156EGE opinion No 28, p. 77.

for a moral entitlement to "transparency or the reasons why [the citizens] should apply certain laws".157

This relationship of citizens and the state (rulers and the ruled) is also broadly addressed in terms of 'social contract theories'.158,159 Starting from famous philosophers such as Thomas Hobbes (1588–1679) and the like,160 the EGE reflects on security and "the moral justification of the absolute power of the state and of the citizens' limitation of freedom",161 based on Hobbes' 1651 book 'Leviathan'.162 While theoretically the elected representatives are bound by the 'people's will' (and can be held accountable), "this has turned out to be a challenge under the new security policies".163 Pirs argues that in this field of security and surveillance technologies, the EGE applies "a more subtle approach towards a deontological understanding of human dignity", where rights are balanced based on the principles of proportionality and effectiveness.164

According to the above-mentioned qualitative content analysis, there were clearly fewer references in EGE opinions to consequentialism (see Table 4.3).165

This normative theory plays a role when assessing the consequences that arise from developments in the field of science and new technologies, i.e. the EGE's turf. In the context of risk assessment, these consequences relate to possible benefits versus possible risks. Anthropocentric approaches, placing humans in the centre of the universe, focus "on *consequential* considerations and issues related to potential consequences from the use of*synthetic biology* for human beings (risk assessment and management and hazard considerations […])".166 The analysis of risk comprises the three elements of risk assessment, risk management and risk communication, where the already mentioned precautionary principle167 is particularly relevant for risk management.168 Such risk assessment is emphasized by the EGE "in order to protect

157EGE opinion No 28, p. 78.

158The EGE provides the following definition: "social (or political) contract arguments classically posit that individuals have consented, either explicitly or tacitly, to surrender some of their freedoms and submit to the authority of the sovereign (or to the decision of a majority) in exchange for protection of their remaining rights". These theories can be distinguished between some that are concerned with the origin of the state, while others focus on "the contract—the modus vivendi—between the ruler(s) and the ruled"; EGE opinion No 28, p. 62.

159EGE opinion No 28, pp. 61–68.

160John Locke (1632–1704), mentioned twice, and Jean-Jacques Rousseau (1712–1778) mentioned once (in EGE opinion No 28, pp. 61, 64).

161EGE opinion No 28, p. 61.

162Cf. Hobbes (2008).

163EGE opinion No 28, p. 66.

164Pirs (2017, p. 60).

165The author would like to thank Göran Hermerén for addressing the fact that, where a consequentialist approach was (also) called for, the EGE often discussed proportionality; on the latter, see Hermerén (2012).

166EGE opinion No 25, p. 42; emphases added.

167See *supra* at note 141.

168EC 'On the precautionary principle', COM(2000) 1 final 2.2.2000, p. 2.

human dignity and the autonomy of persons", in a similar way as the importance of the precautionary principle.169 Hence, linking this consequentialist approach to human dignity, as mentioned above in the context of deontology.

Moreover, a consequentialist approach is applied by the EGE in the context of 'animal cloning for food supply'. Here, the EGE takes a more bio-centric attitude,170 comprising ethical concerns for the cloned animals, for humans, for the environment, as well as for society.171 Jeremy Bentham (1748–1832) is considered as the founder of modern utilitarianism, the most prominent form of consequentialism. As already mentioned, utilitarianism is egalitarian (as the well-being of each person is of equal value), and even the feelings of animals can be taken into account.172 That is why Bentham is often regarded as one of the earliest proponents of animal rights. The EGE refers to Bentham, John Stuart Mill (1806–1876) and Peter Singer (1946–), etc., in order to argue 'the moral status of animals', as "actions causing *pain* in *sentient* animals are morally unacceptable, since animals are considered *moral subjects*".173 At the same time, the EGE also refers to a deontological line of argumentation, based on the 'intrinsic value argument', referring especially to literature focusing on animals' intrinsic value174 and integrity.175 In summary, the EGE concludes that it "has doubts as to whether cloning for food is justified", and "does not see convincing arguments to justify the production of food from clones and their offspring".176

Accounting for slightly more hints than consequentialism (i.e. 10), the research of Pirs identified 12 references in EGE opinions to [3.] virtue ethics (see Table 4.3), which has been defined as "[a]n approach to both understanding and living the *good life* that is *based on virtue*".177 What does this concept of 'human flourishing' imply for today's potential dangers arising from the corroding of privacy due to the introduction of new ICT tools? This 'good life' is addressed in the opinion on ethics of ICT in the sense that "giving up privacy would determine the flourishing of a personal and social virtue […] based on people's freedom to introduce and share whatever data on their own lives they desire".178 In the end, the EGE calls for building "a stronger and more coherent data protection framework".179 In this context, the EGE also refers to Hannah Arendt (1906–1975), one of the most important philosophers

169EGE opinion No 25, p. 42.

170It is worth mentioning that from the perspective of Art 37 CFR ('environmental protection'), we shall apply a broad understanding, as according to Rudolf (2014, 558–559, 562), the notion of 'environment' comprises air, soil, water, flora and fauna, humans and the environment created and shaped by humans and animals (but no pets).

171EGE opinion No 23, p. 32.

172*Supra* Sect. 2.2.

173EGE opinion No 23, p. 33; emphases added.

174Dol et al. (1999).

175Dol et al. (1997).

176EGE opinion No 23, p. 45.

177Chara (2002, p. 915); emphases added.

178EGE opinion No 26, p. 45; similar in EGE opinion No 28, p. 73.

179Ibid. This opinion was delivered four years before the adoption of Regulation GDP.

of the 20th century, as "one of the first scholars to observe the political importance of privacy". The EGE states that "Arendt's defence of the importance of the private sphere warns about dangers arising from the erosion of the private, a situation which some consider as deriving from the use of ICT as communication tools".180 Also in the context of new health technologies and citizen participation, the EGE refers to Arendt181 when addressing the danger of "downgrading of individual rights in pursuit of the collective good".182

A famous representative of virtue ethics, Aristotle (384–322 B.C.), is mentioned in the context of ethics in ICT, where the EGE reflects on his "friendship as mutual care between equals" against the background of the "ethically important change" in the way in which social networks shape the concept of friendship and community.183 Hence, we can see various examples of old concepts being applied to current as well as future challenges. However, despite these examples, it is important to emphasize that the EGE "does not clearly stipulate any normative ethical guidance on the basis of virtue ethics in this regar[d]".184 One exception can be found in 'security and surveillance technologies'. There, the EGE refers to 'virtuous behaviour' in the context of the tension between privacy and new technologies, which has been addressed with regard to four instruments: technology, education, self-regulation and the law; in terms of the third one, according to the EGE, "[s]elf-regulatory governance works to promote (virtuous) behaviour by involving stakeholders and establishing bottom-up soft regulations".185

As mentioned above, based on the first formal mandate (in 2005), since 2008 (i.e. Opinion No 23) the EGE has started to refer to normative theories, especially via their proponents. In this regard, it is fascinating to see a similar development in the legal sphere. As of Opinion No 16 (patenting of human stem cells inventions, May 2002), which falls in the 2nd mandate,186 the EGE has also increasingly (9 hits) started to refer to EU and international documents, mainly in the field of human rights (see Fig. 4.1).

The number became double-digit (14 hits) with Opinion No 17 (clinical research in developing countries, February 2003), 54 hits in Opinion No 25 (synthetic biology, November 2009), with a maximum of 80 hits in Opinion No 28 (security and surveillance technologies, May 2014). From these documents, the CFR ranks first with 142 hits, followed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) with 79 hits, the Oviedo convention (61

180The EGE refers to the first edition in 1958; see nowadays: Arendt et al. (2018).

181Arendt (1951).

182EGE opinion No 29, p. 41. In this context, the EGE also refers to Michel Foucault (1926–1984); p. 40.

183EGE opinion No 26, p. 42; Aristotle was also mentioned in EGE opinion No 25, p. 11, and EGE opinion No 28, p. 64.

184Pirs (2017, p. 63).

185EGE opinion No 28, p. 59.

1862000–2005; here, the EGE became part of BEPA.

**Fig. 4.1** EGE references to key documents. *Source* Pirs (2017, A37); N.B: this overview of Pirs continues with seven other documents on page A38; for opinionNo 30, see Pirs and Frischhut (2019, forthcoming) hits), the Universal Declaration on the Human Genome and Human Rights187 with 41 hits, the International Covenant on Economic Social and Cultural Rights (ICESC) with 28 hits, and the Helsinki declaration with 21 hits.188 This tendency goes hand in hand with the increase in number of pages, around 20 pages until Opinion No 19 (March 2004), to around 100 starting with Opinion No 21 (January 2007).189

Overall, we can observe an extension not only in pages, in references to normative theories as well as to these EU and international documents, but also in scope, as the group has moved from purely bioethics also to broader principles of human rights, as well as an increase in group members. There has also been an increase of the duration of the mandates, except for the last one.190 As we know from the job of the president of the European Council, newly created by the Lisbon Treaty,191 an appointment for two times 2.5 years allows for more control, compared to an appointment for five years. Apart from the normative theories covered in this chapter and based on the terminological delimitation,192 the EGE has referred to values (human dignity, justice, freedom, solidarity, etc.), to human rights, as well as to principles (privacy, informed consent, non-discrimination, equity, precaution, sustainability, etc.).

#### **4.3 Conclusion**

It is evident, that both in EU legal documents (Sect. 4.1) as well as in case of the EGE (Sect. 4.2), ethics enters the scene in sensitive areas. This was the case with CETA (investment protection and the fear that big companies can 'buy justice'), as well as the Korea agreement (inappropriate influence of the pharma industry). In addition we can name the saving of Islandic banks in the context of EFTA (taxpayers' money and moral hazard), scepticism with regard to (regulation of) the financial world in general (cf. ethics committees in the field of ECB and EIB), and lobbying (the fear that big companies can 'buy law'), to name but a few. In case of the EGE, one reason for its establishment was also to address public concern on the new challenges raised by new (bio-)technologies.193

In the following, the questions mentioned at the beginning194 will be answered in more detail, as the results of Sect. 4.2 on the EGE will supplement those of Sect. 4.1.

With regard to the possible identification of normative theories (i.e. question No 1), we have seen implicit references in EU legal documents, implicit as well as explicit ones in EGE opinions. The latter have mainly referred to several proponents of

187Dating from 11.11.1997.

188Source: Pirs (2017, A37); mentioning twelve other documents in descending order.

189Pirs (2017, A7).

190See *supra* Table 4.2.

191Art 15(5) TEU.

192See *supra* Sect. 1.5.

193Cf. Plomer (2008, p. 840).

194See *supra* Sect. 1.2 (objectives).

these normative theories, but have also explicitly addressed these normative theories. Implicit references in EGE opinions especially addressed deontological ideas via the EU value of human dignity.

Question No 2 can clearly be answered in terms of addressing several normative theories, although these three theories are not equally represented. In EGE opinions, deontology clearly prevails, and we find less examples of virtue ethics.195 However, it is important to emphasize that often the EGE refers to one normative theory, by emphasizing the consequences if the decision-makers opt for this theory, besides pointing to another normative theory, also emphasizing the consequences for this other theory. Hence, while there are most references to deontology, this disclaimer has to be kept in mind.

It was also remarkable to see justice as the "institutional dimension of ethics".196 Justice occurred both in terms of distributive justice (Rawls), as well as with regard to future generations (Jonas). Human dignity, in Waldron's interpretation, also has an institutional component, in terms of citizens' entitlement to transparency in the decision-making process.

In both EU legal documents, as well as in EGE opinions, human dignity plays a paramount role. It was addressed to be at the 'core' of synthetic biology, at the 'heart' of ethics in the field of security and surveillance technologies, and was even addressed as the "core principle of the European moral framework".197 This EU value clearly has a deontological connotation, when referring to the *intrinsic* value of humans, with similar ideas expressed with regard to animals. Throughout EU law, human dignity has been an argument against 'commodification' of the human body, based on the Kantian idea of not treating humans as mere objects. For the same reason, it has been emphasized that there can be no trade-offs.198 Human dignity has been emphasized especially in case of vulnerable groups, which also links it to solidarity. This 'core principle', in more correct terms one would have to speak of 'core value', is the basis for further rights, principles and obligations, as we can also observe it in the CFR.199

Consequentialism has been addressed by the EGE in the context of risk assessment. Apart from ethics, in EU law in general we have seen that impact assessment plays an important role in EU decision-making, as well as the '*effet utile*' principle in CJEU case-law, both of which also have a consequentialist connotation. Utilitarian philosophers have been addressed when taking a more bio-centric approach, in particular with regard to animals. It is worth mentioning that the EGE both in case of risk assessment and with regard to animals has also taken a deontological approach,

195Given the information available, it remains unfortunately a challenge to address the question "why and when" a certain approach has been applied.

196EGE opinion No 24, p. 48.

197EGE opinion No 28, p. 77.

198However, this was possible in case of freedom and responsibility.

199The 'Explanations relating to the Charter of Fundamental Rights', OJ 2007 C 303/17, state as follows: "The dignity of the human person is not only a fundamental right in itself but constitutes the real basis of fundamental rights.".

as it has emphasized the importance to protect human dignity and the autonomy of persons (in case of risk assessment), and has also referred to the intrinsic value of animals, as mentioned above.

Social contract theories have been addressed in terms of security and surveillance technologies. Although drafted during the age of enlightenment to legitimate the authority of the state, this concept is still of relevance and was applied to these new challenges.

Both for EU legal documents, as well as for the EGE opinions, all the examples we have seen cannot be understood as unconditional references to one or more normative theory(ies), but only as pointing towards them (question No 3). The EGE often refers to several views, for instance to deontology and to consequentialism,200 without explicitly favouring the one, or rejecting the other view. In other words, in case of explicit references to normative theories, the EGE contrasts different philosophical views; hence, it is not possible to assign the EGE exclusively to one of these three normative theories.

Another question was, whether we can identify a certain common horizontal (or rather a specific) pattern, when referring to these terms of ethics and morality in EU legal documents (Sect. 4.1), respectively when addressing these normative theories (Sect. 4.2). As we have seen above with regard to EU legal documents, there is clearly no horizontal, but a specific approach in addressing different normative theories in different fields. Deontology plays a role in order to refer to general principles of morality, consequentialism to address effects of the ethical challenge at hand, and virtue ethics is addressed in the context of 'pursuing a good life'.201 Against the background of the diverse topics of the 30 opinions so far, the EU's values with their corner stone of human dignity, a deontological concept, can be seen as the most horizontal approach in this regard.

Having now analysed the different 'layers' (in the sense of the hierarchy) and the different 'areas' (in the sense of the 'separation of powers') of EU law, the final question (i.e. objective 4), as to whether we can identify an ethical spirit of EU law, can be answered as follows. As stated above, in this book, the notion of spirit is understood as "the intention of the authors of a legal system, which is reflected in a lattice of various different provisions". In Sect. 4.1 with regard to EU legal documents, we have already identified both an ethical spirit, as well as a gap that still needs to be filled. The findings of Sect. 4.2 point in a similar direction, further emphasizing the predominant role of the EU's common values and the corner stone of human dignity. Apart from explicitly referring to these concepts from a legal angle as the values enshrined in Art 2 TEU, the deontological normative arguments addressed in the EGE's opinions also point in the same direction, hence further closing the gap addressed earlier. Having identified this 'lattice' of ethics in the different layers and areas, both binding legal provisions and soft-law, including the EGE's opinion, this does not mean that we have reached a final position. This analysis is valid as of 2018, might however be different in the future, and was clearly less elaborated in the past.

200EGE opinion No 12, p. 8.

201Lucivero (2016, p. 15).

One example in this regard is Opinion No 12, on ethical aspects of research involving the use of human embryo in the context of the fifth framework programme, from November 1998. The EGE appropriately states that the EU has no proper competence in medicine, hence such protection falls within national competence. Nonetheless (i.e. first limitation), EU authorities "should be concerned with ethical questions resulting from medical practice or research dealing with early human development".202 However, (limitation to the first limitation), in doing so, EU authorities have to take into account "the *moral and philosophical* differences, reflected by the extreme *diversity* of legal rules applicable to human embryo research", as "because of lack of consensus, it would be inappropriate to impose one exclusive *moral* code".203 The question remains, if this diversity stipulated in 1998 with regard to embryo-related questions is still valid today, having in mind the growing importance of EU values, especially since 2009. To sum up, this ethical spirit is *in statu nascendi*, as we can also see from the 'united in diversity' approach we have seen in case of EU primary law.

Addressing these elements of constant development on a time line, it is worth mentioning that also the status quo, as viewed from today, has addressed retrospective elements (the historical responsibility for climate change and the moral obligation to assist ACP countries),204 as well as the obligations with regard to future generations (nanosciences, Hans Jonas, etc.).

The ethical spirit of EU law identified in this book is subject to the following limitation. It only applies to EU law. Hence, this does not cover all the examples where reference is made to the national or local level (e.g. "compliance with local codes of ethics"205). In those situations, the ethical spirit of EU law can only have an indirect influence, especially via the EU's common values. This is similar to 'morality' being determined by the different MS, but constrained by the EU's proportionality principle (especially the requirement of 'coherence'), as well as the prohibition of double morality, etc., as stated in the CJEU's case-law.

One final word about the just addressed difference in terminology, i.e. ethics versus morality. The reason why this book has not coined the term of the 'moral spirit of EU law' is primarily due to the reason that the notion of 'public morality' has essentially been used as a protection shield, in EU primary law (called 'reason of justification'), in international agreements (called 'exception clause'), as well as in EU secondary law.206 Besides this, 'public morality' is a legal term while ethics is a term of practical philosophy. In terms of morality, 'public morality' is a collective term, while we have also seen a lot of variations of morality: 'moral

202EGE opinion No 12, p. 10.

203Ibid.; emphases added.

204*Supra* Sect. 3.2.1 (at note 74).

205*Supra* Sect. 3.2.1 (at note 56).

206One exception to this statement is the "competence of Member States as regards ethical issues", we have seen in the context of GMOs; *supra* Sect. <IP_ADDRESS>.

support',207 'moral condemnation',208 'moral development',209 a 'high moral standing',210 'moral safety',211 'moral responsibility',212 as well as the economic term of 'moral hazard'.213 The notion of 'ethics',214 on the other hand, has not been used in such a collective way.215 It has the advantages of not being a legal term (although used in legal texts) and it has not been used as a 'protection shield'.216 Now that we have examined the 'ethical spirit of EU law' from a philosophical point of view, we turn to the legal perspective.

#### **References**

207*Supra* Sect. 3.2.1, at note 78 (to the Burundian people), and at note 93 (EFTA States' obligation to provide moral support in the context of EU enlargement).

208*Supra* Sect. 3.2.1, at note 79.

209*Supra* Sect. 3.2.1, at note 80.

210*Supra* Sect. 3.2.1, at note 81.

211*Supra* Sect. 3.2.1, at note 82.

212*Supra* Sect. <IP_ADDRESS>, at note 264.

213*Supra* Sect. 3.2.1, at note 89.

214As mentioned above, ethics has not been mentioned in EU primary law. Apart from this, ethics also remains untouched by the CJEU (judicial self-restraint).

215On communitarianism, see *infra* Chap. 6.

216Apart from the Polish GMO case, where, by the way, the Polish line of argumentation was not successful.

Parfit, D. (2011). *On what matters. The Berkeley Tanner Lectures*. Oxford: Oxford University Press.

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## **Chapter 5 Legal Lens**

The question whether references to ethics should be understood as an unconditional reference (to one or more philosophical theories), or only as pointing towards a certain idea (question No. 3), has already been answered in the previous chapter (in terms of the second option). This question (concerning the philosophical lens) is separate from another question (now, concerning the legal lens), whether these notions shall be imported in an unaltered way (i.e. absolute approach), or whether they shall be imported by placing them in the legal context (i.e. relative approach? As mentioned above,1 for the relation of law and science, a relative approach has been preferred.2 I have argued elsewhere3 that references in legal texts to ethics and morality have to be seen within the limitation that those philosophical concepts necessarily have to be reflected within the legal order itself.4 In other words, concepts that cannot, in one way or another be traced in the legal order itself (and which therefore are alien to this legal order), consequently cannot come into consideration. The same argumentation is also upheld in this book; hence, these normative theories and other philosophical concepts have to be imported in a relative way and need to be reflected in the EU legal order. While this legal order can be seen as autonomous, it shall nevertheless respect principles of justice (relative autonomy). Thus, in the following, this legal lens will add some pieces to further enrich the lattice developed so far, and, as we will see, will confirm some of the findings of the previous chapter.

1*Supra* Sect. 1.4.

2Wahlberg (2010, 208, 213, 2017, p. 63), Wahlberg and Persson (2017).

3Frischhut (2015).

4This approach has previously also been adopted by the Austrian Supreme Court judgment of 18 April 2012, *Prostitution not against public morals*, 3 Ob 45/12g, para 4.6.1: "When it comes to the understanding of 'public morals', generally accepted moral concepts can be taken into account. This applies, however, with the limitation that moral concepts are only relevant to the extent that they have been reflected in the legal system itself" (own translation).

#### **5.1 From the** *Schuman* **Plan to Today's Vertical Distribution of Competences**

On 9 March 1950, the then French foreign minister and founding father of the EU, Robert Schuman highlighted, amongst others, the following idea in his groundbreaking declaration5: "Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity".6 The same applies to the 'ethical spirit of EU law', which has developed since then, and which will continue to do so in the future. The background of this declaration was World War II and its atrocities. Hence, the atmosphere of this time might have been inspired by deontology, while neo-functionalism can rather be seen as consequentialist.

This integration process, started with the "pooling of coal and steel production" and has further developed according to the spill-over phenomenon, resulting in the vertical distribution of competences,7 as we know it today. This distribution of competences to pass legal documents can also have an impact on the ethical spirit. For instance, 'public health' falls within the MS competence. As we have seen above,8 in order to alleviate the fear of MS that, based on economic single market rights, patients could seek unethical treatment abroad, the relevant EU directive states as follows: "[n]o provision of this Directive should be interpreted in such a way as to undermine the fundamental ethical choices of Member States".9 This is quite remarkable as the directive, besides a clear statement in EU primary law,10 emphasizes several times the competences of MS in this regard, that is to say from a legal perspective. From a strictly legal angle, this reference to ethics would not have been necessary; nevertheless, it clearly demonstrates the increasing role of ethics in EU law. Although this example, like others classified in this 'protection shield' category, is not very ambitious, it can be taken as a role model where the vertical distribution of legal competences can also play a role for the question at which vertical level ethical questions would be decided. These considerations can be summarised as follows: based on this vertical distribution of competences, one can, in case of doubt assume that the

5This plan was initiated by Jean Monnet and Paul Reuter; Simon (1998, p. 16). On Monnet, see Schwabe (2016).

6Source: https://europa.eu/european-union/about-eu/symbols/europe-day/schuman-declaration\_ en.

7Art 2-6 TEU.

8*Supra* Sect. <IP_ADDRESS>, at note 351.

9Directive patient mobility, recital 7.

10Art 168(7) TFEU: "Union action shall respect the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health services and medical care. The responsibilities of the Member States shall include the management of health services and medical care and the allocation of the resources assigned to them […]".

legal competence also includes the competence for ethical questions.11 On the other hand, if EU secondary law explicitly refers to the MS for deciding issues of ethical nature, this goes in the same direction as this presumption. Likewise, as in similar cases, the EU's common values can be a limitation to this 'national competence'.

#### **5.2 Preambles TEU and CFR**

Based on what we have already seen in Sect. 3.1.1, the preambles of the TEU and the CFR provide important guidance with regard to the ethical spirit of EU law.

Searching for the groundwork of ethics in EU law, one comes across the preamble of the CFR, which refers to the "spiritual and moral heritage" of the Union.12 It is worth mentioning that the preamble only uses the wording "conscious of", as opposed to the wording used for the common values13: "based on",14 respectively "is *founded on* the indivisible, universal values of human dignity, freedom, equality and solidarity".15 In terms of the already covered terminology, presumably the term of 'morality' has been chosen, in order to refer to a factual (historically developed) situation, and not to the one of 'ethics', which would be the philosophical approach to define morality. As one might already suspect, these terms ('spiritual' and 'moral' heritage) are not defined regarding their content. In terms of geography, they can be seen as to refer to Europe, presumably as composed at the time of the drafting of the Charter.16 We are faced with the same challenge that we have already seen many times in this book, that is to say the reference of law to another discipline, which in this case requires primarily a historical approach.17 Hence, this moral heritage does not define the 'ethical spirit', it just adds up to the lattice identified so far.

This goes hand in hand with the reference to the "cultural, religious and humanist inheritance of Europe", from which the TEU draws 'inspiration'.18 While the previous reference of the CFR (i.e. the 'spiritual and moral heritage') opened the legal field for this 'ethical spirt',19 this second reference can fill it regarding its content. Let us start with the reference to humanism.20 Although covering a broad range, humanism

11I already argued this way in Frischhut (2015, p. 570).

12CFR, recital 2.

13*Infra* Sect. 5.4.

14CFR, recital 1.

15CFR, recital 2, which continues, "*based o*n the principles of democracy and the rule of law"; emphases added.

16However, this cannot be taken as a reason against including future MS, given the dynamic interpretation of EU law by the CJEU.

17For a brief overview, albeit primarily from a Christian perspective, see Rauscher (2005).

18TEU, recital 2. Similar to what was mentioned before (notes 14 and 15), this is also a 'softer wording'.

19N.B. Besides all the other examples identified so far in this book.

20'Culture' can also have in impact on the ethical spirit. However, since this influence is of a rather indirect nature, it will not be pursued further.

can be understood as "any philosophical perspective that assigns preeminent value to human beings, their experiences, their interests, and their rights",21 "based on the freedom, responsibility, and rationality of human beings".22 This goes hand in hand with the recitals of the preambles of the CFR, which "places the individual at the heart of [the Union's] activities",23 as well as of the TEU, according to which "decisions are taken as closely as possible to the citizen".24 Recently in the context of ethical challenges of robotics, the EP referred to the "intrinsically European and universal humanistic values that characterise Europe's contribution to society".25

The two references in the CFR ("spiritual and moral heritage") and in the TEU ("cultural, *religious* and humanist *inheritance*")26 require a few words on the relationship between EU law and religion. When the European Convention drafted the CFR, there were 'highly emotional disputes'27 concerning a possible reference to God (*invocatio dei*), respectively a reference to (one or more) religion(s).28 These have finally been solved by deviating language versions referring to the already mentioned 'spiritual and moral heritage', whereas only the German version refers to religion and none of them to 'God'.29 Therefore, on the one hand, the reference to the 'spiritual and moral heritage' can neither be seen as a commitment to a single religion (for example, Christianity), nor to several religions (such as, Christianity, Judaism, while excluding Islam); on the other hand, also atheists and agnostics should be seen as bearers of this heritage.30

'Time is a great healer', and this heated dispute was finally 'resolved' years later with the amendments brought by the Lisbon Treaty, as the second recital of the TEU refers to the inspiration, drawn "from the cultural, religious and humanist inheritance of Europe". A similar analysis applies with regard to humanism. As mentioned above,31 a reference to humanism in an earlier draft32 in the end has not made it into the preamble of the CFR, and now figures in this (second) recital of the TEU.

We have already seen another similarity between religion and humanism in the Polish GMO case mentioned above, where Poland had argued with "Christian and Humanist ethical principles", opening the door for intriguing questions of the rela-

21Steelwater (2012, p. 674); see also *supra* Sect. 1.5, at note 108.

22Radest (2002, p. 411).

23CFR, recital 2.

24TEU, recital 13.

25EP resolution robotics, recital U.

26Emphases added.

27Meyer (2014, p. 70).

28Schmitz (2005, 86), refers to the influence of French laicism and to the distance of many European citizens from church and religion.

29For further details, see Meyer (2014, pp. 70–73).

30Meyer (2014, p. 71).

31*Supra* Sect. 1.5, at note 109.

32CONV 722/03 of 28 May 2003, p. 2.

tionship of EU law and religion, as well as humanism.33 However, since Poland did not fulfil its burden of proof, there was no room for the CFEU to make any statement in this regard; however, against the background of the principle of judicial restraint, one had not much to hope for in terms of content anyway.

The reserved relationship of EU law and religion is somehow also confirmed by some Eurobarometer surveys. During the last years, peace, respect for human life and human rights have constantly been ranked top in terms of personal values of Europeans, and peace, human rights and democracy in terms of values representing the EU (see Fig. 5.1), while religion has been constantly ranked very low in both categories.34

Nonetheless, it would be wrong to state that there is no influence of religion for our quest for the 'ethical spirit of EU law'. Moyn has convincingly argued that "religious constitutionalism" had some influence and inspired the concept of dignity.35 To make a long story short, religion has had an influence on the understanding of 'human dignity', which plays a key role for the 'ethical spirit of EU law'.36 In summary, one can speak of an indirect influence of religion on the ethics of the EU.

**Fig. 5.1** Eurobarometer surveys on EU values [*Source* Eurobarometer 77 (2012), pp. 9 and 12; Eurobarometer 74 (2010), pp. 32 and 33; Eurobarometer 72 (2009), Vol. 2, pp. 148 and 152; Eurobarometer 69 (2008), 1. Values of Europeans, pp. 15 and 22; Eurobarometer 66 (2007), p. 28]

33*Supra* Sect. <IP_ADDRESS>, at note 149.

34On the ranking of values, see Hermerén (2006).

35Moyn (2012, 2014).

36As stated already several times, and as further outlined in Sect. 5.3.

Referring to the EU integration process in its entirety, the four references to the "ever closer union"37 can also be applied to the 'ethical spirit of EU law' in the sense of a steadily developing concept, a 'spirit *in statu nascendi*', so to speak.38 According to Meyer, the ideal picture of a draft for the future is also associated with an 'ethical claim'.39 This evolutionary aspect goes hand in hand with the above comments on the *Schuman* declaration.

Several times throughout this book, we have seen examples of ethics comprising not only rights, but also duties.40 According to Meyer, although there were concerns about 'basic obligations' in totalitarian regimes, the Convention did not want to completely ignore the idea of an 'asymmetric guarantee of connection' to fundamental rights, not least because of classical philosophical guidelines.41 This finally resulted in the following recital of the CFR preamble: "Enjoyment of these rights entails *responsibilities* and duties with regard to other *persons*, to the *human community* and to *future generations*."42 The distinction between ethical and legal obligations is likely to echo in the pair of concepts of responsibilities and duties, where ethical obligations may arise both in relation to fellow human beings and to human society, and in relation to future generations.43

Values and human dignity have already been addressed several times. To finish with the guidance provided by the preambles of the TEU and the CFR with regard to the ethical spirit of EU law, the CFR addresses the "peaceful future *based on* common values" as well as "the indivisible, universal values of human dignity, freedom, equality and solidarity", on which "the Union is *founded*".44 The TEU preamble refers to the inspiration, drawn "from 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".45 This leads us to human dignity in the next chapter, as well as to the other values in the subsequent one.

37TEU, recital 13; Art 1(2) TEU; TFEU, recital 1; CFR, recital 1. The counterpart to this is the respect of the national identities of MS; Art 4(2) TEU.

38Similar to the debates in the CFR Convention on religion, this concept of 'ever closer union' is also a partly controversial issue, as the EU offer (of 18 and 19 February 2016) to the UK before the Brexit referendum (of 23 June 2016) shows; 'A New Settlement for the United Kingdom within the European Union', OJ 2016 CI 69/1. On the concept of respect for national identities, see *infra* note 100.

39Meyer (2014, p. 49).

40*Supra* Sect. 3.2.1, note 74, (moral obligation to assist ACP countries), Sect. 4.2.2, notes 136 (with regard to EGE opinion No 24, p. 52) and 145 (for the definition of human dignity by William P. Cheshire).

41Meyer (2014, p. 88).

42CFR, recital 6; emphases added.

43Meyer (2014, p. 89).

44CFR, recitals 1 and 2; emphases added.

45TEU, recital 2.

#### **5.3 Human Dignity**

Regardless of whether one sees the origin of human dignity in the Christian emphasis on the image of man as God or in a mixture of ancient and humanistic traditions and the Enlightenment, it is a central theme in the European philosophy and history of law.46

All in all, human dignity has its roots deep in the origins of a conception of mankind in European culture that regards man as an entity capable of spontaneity and self-determination. Because of his ability to forge his own free will, he is a person (subject) and must not be downgraded to a thing or object.47

Despite its paramount role today, it is remarkable that human dignity48 was not initially part of the ECHR, signed on 4 November 1950.49 Human dignity entered the Council of Europe sphere with the Oviedo convention, and it was only in 2002 that the ECtHR held that "[t]he very essence of the Convention is respect for human dignity and human freedom".50,51 Also in France, the *Conseil Constitutionnel* first dealt with human dignity in the field of bioethics.52 Likewise elsewhere in Europe, human dignity has also only slowly emerged as the supreme constitutional principle in the constitutions of the MS.53 Besides the above-mentioned influence of religion,54 also the German constitution as well as Roman Herzog, who chaired the European Convention elaborating the CFR (1999–2000), had some influence on our understanding of human dignity.55

Human dignity is not only the first value mentioned in Art 2 TEU, it is both the first title, as well as the first article of the CFR. According to Meyer, the CFR Convention refused to address human dignity as a value only in the preamble, thereby depriving it of the character of a fundamental right.56 Consequently, human dignity can be seen as a value, as a human right,57 as well as according to both the CFR explanations and the EGE,58 as the basis for principles that are more specific, rights59 and obligations.

46Meyer (2014, p. 73); translated with DeepL.

47AG Stix-Hackl *Omega*, C-36/02, para 78.

48See the various contributions in McCrudden (2014), as well as in Feuillet-Liger and Orfali (2018).

49For the UN-perspective, see e.g. AG Stix-Hackl *Omega*, C-36/02, para 82.

50ECtHR judgment of 29 April 2002, *Pretty vs. the United Kingdom*, 2346/02, para 65.

51Rensmann (2005, 58, 60).

52Rensmann (2005, 60).

53Rensmann (2005, 58).

54*Supra* note 35.

55Rensmann (2005, 58); for further details on the other MS see pp. 59–60.

56Meyer (2014, p. 53).

57As a human right, human dignity is both a 'defensive right' ("must be respected") and also entails a 'duty to protect' ("must be […] protected"); Streinz (2018, no. 4).

58*Supra* Sect. 4.3.

59"Human dignity, as a fundamental expression of an element of mankind founded simply on humanity, forms the underlying basis and starting point for all human rights distinguishable from it […]"; AG Stix-Hackl *Omega*, C-36/02, para 76.

This is why human dignity has been referred to as the corner stone60 of both the CFR and the values.

However, as accentuated by Di Fabio, in law, human dignity must also be respected in its non-legal meaning.61 This is in line with the statement of the EGE, according to which "[t]he respect of the dignity of the human person is at the *root* of the *ethics* of science and new technologies *as well as of human rights*".62 In a resolution 1.5 years before the mandate of the GAEIB expired, the EP emphasized, "that it is essential to establish ethical standards, based on respect for human dignity".63 Human dignity as the bridge between the two disciplines of law and practical philosophy, so to speak.64

As we have already seen especially with regard to EGE opinions, human dignity predominantly has this notion of treating human beings as subjects, not merely as objects.65 Also in literature, human dignity is usually explained with reference to Immanuel Kant.66 As Dickson and Eleftheriadis highlighted, "in a way, Kant's theory is a predecessor to that of Rawls and a predecessor to some relevant contemporary views of the European Union".67 This Kantian notion of human dignity can be exemplified by the following current68 example. In a recent resolution on integrity in sports, the EP pointed out that "athletes, in particular minors, face increasing economic pressures, and are treated as *commodities*, and have therefore to be protected against any form of abuse, violence or discrimination that may occur in the course of their participation in sport".69 Although the Union, with its commitment to human dignity, which places the human person at the centre of its action, clearly sees itself as an anthropocentric order of values,70 animals can also enjoy protection and respect due to their intrinsic value.

In summary, the legal lens confirms the importance of the corner stone of human dignity for the 'ethical spirit of EU law', just as we have already seen it from the philosophical lens.

60Frischhut (2015, p. 532).

61Di Fabio (2004, p. 5).

62European Group on Ethics in Science and New Technologies (2000, p. 11).

63EP resolution GAEIB, pt. 1.

64See also Frischhut (2015, p. 565).

65See also AG Stix-Hackl *Omega*, C-36/02, paras 77–78 and 94 on 'dwarf-tossing'.

66Cf. for instance: Borowsky (2014, p. 96), Müller-Graff (2017, 47).

67Dickson and Eleftheriadis (2012, pp. 12–13).

68For an older example see: EP resolution on compulsory gynaecological examinations at the Dutch-German border, OJ 1991 C 106/113; N.B: on suspicion of having had an abortion in the Netherlands. On Kant, see *supra* Sect. 2.1.

69EP resolution sport and integrity; emphasis added.

70Rensmann (2005, 61).

#### **5.4 EU Values (Continued) and Human Rights**

Does this also hold true for the other common values of the EU and for human rights,71 do they also contribute to the lattice forming the 'ethical spirit'? The increasing role of human rights, culminating in the now legally binding CFR, corresponds to the before mentioned anthropocentric view and humanism.

As also reflected in the CJEU's case-law, values can entail not only rights, but also obligations: They can also result in negative consequences, as in the following example. This was about a Dutch decision declaring a foreigner to be an "undesirable immigrant", where "a disposition hostile to the fundamental values enshrined in Articles 2 and 3 TEU, such as human dignity and human rights", can be qualified as being against 'public policy'.72,73

If we turn to this concept of 'values', it is necessary to differentiate, as values can have an ethical, political, legal, artistic and economic connotation, though the latter two are not discussed any further.

From a social science point of view, according to Di Fabio "values are the basic attitudes of people who stand out due to their special firmness, conviction of correctness and emotional foundation". He continues as follows: "values appear like relics from a past epoch, they have not yet taken part in the disenchantment and rationalization of the modern world, they stand between 'is' and 'ought', they act normatively, but are subject to change through social factuality".74 The latter statement corresponds with the evolutionary aspect of the 'ethical spirit'.

Values in the sense of political science ('*Staatswissenschaften*') are "guiding ideas for the activities of political institutions based on political-philosophical value judgements. Every political community needs a bundle of guiding ideas, to which its basic order is oriented. Two types of guiding ideas can be distinguished, namely values (value-based guiding ideas) and other (in themselves value-neutral) guiding ideas."75

Finally, from the legal point of view, "values describe goods that a legal system recognises as given or abandoned".76 In this context, values may serve as interpretive guidelines as well as standards of norm control, and unfold a legitimatory meaning.77 The challenge is the determination of the content, as values are indeterminate, multi-layered, subjective, contextual, and culturally shaped.78 As mentioned earlier,79 values are more abstract than principles, as the former lack specific lim-

71Although officially coined 'fundamental rights', most of the CFR rights apply to all 'humans', 'persons', 'everyone', etc.

72For this notion, see *supra* Sect. <IP_ADDRESS>, at note 146.

73CJEU judgment of 2 May 2018, *K*, joined cases C-331/16 and C-366/16, EU:C:2018:296, para 60. 74Di Fabio (2004, p. 3); translated with DeepL.

75Schmitz (2005, 80); translated with DeepL; emphases in the original.

76Reimer (2003, p. 209); translated with DeepL.

77Calliess (2004, p. 1034).

78See Footnote 77.

79*Supra* Sect. 1.5, at note 99.

itations, in particular with regard to specific legal consequences and addressees.80 The lack of these limitations contrasts values from state objectives (principles) or fundamental rights (subjective rights).81 With regard to the German Basic Law, the Federal Constitutional Court has stated that the Basic Law is not a value-neutral order and that its value order expresses a fundamental strengthening of the validity of fundamental rights.82

According to Walter Hallstein, certain values have been part of the integration process, even before the Lisbon Treaty has officially enshrined them in Art 2 TEU.83 The EU has transformed itself from, an 'association of functional integration' ('*Zweckverband funktioneller Integration*' 84), as Hans Peter Ipsen coined it, into a political union (Maastricht Treaty), that also respects human rights (CFR, etc.), and finally into a 'community of values'.85,86 The key word for this metamorphosis is 'homogeneity'. Homogeneity demands, "a supranational Union and its Member States must have the same basic political and philosophical orientation", where this "requirement of homogeneity of value systems is already known from another federal organizational form, namely the federal state".87 However, homogeneity of value orders does not mean uniformity of value orders, "homogeneity means affinity of essence, not equality of essence, congruence in essential points, not total congruence".88 Applying this concept of homogeneity to EU integration means that the Union must also implement the common fundamental values; however, it can do so "in its own specific way".89 "This is part of the development of the Union's own identity, which must be more than a mere mirror of the identity of the Member States", where an important step was the development of a separate catalogue of fundamental rights.90

80Reimer (2003, p. 209).

81See Footnote 77.

82BVerfG judgment of 15 January 1958, *Lüth*, 1 BvR 400/51, BVerfGE 7, 198, para 25; see also Di Fabio (2004, pp. 1–2).

83Hallstein (1979, pp. 66–71): peace, uniformity, equality, freedom, solidarity, prosperity, progress and security (own translation).

84Ipsen (1972, pp. 196–200).

85On this notion, see *infra*.

86On the 'constitutional debate' see, for instance, Weiler (1999).

87Schmitz (2005, 81); translated with DeepL.

88Schmitz (2005, 82); and he continues: "Only the basic values that characterise the system must agree, but not the many simple values—be it in the laws or in the constitution—that go beyond them; these must only be compatible with the common basic values", translated with DeepL.

89Schmitz (2005, 82); translated with DeepL.

90See Footnote 89.

Nowadays, the EU's values have mainly been shaped and further enriched in its practical application by the CJEU.91 For the EU's common92 values, we have also seen a sector-specific approach also comprising distinct values, when looking at health, non-financial reporting, sports and digitalization.93 There is a resemblance to ethics, where the CJEU clearly took a sector-specific approach, if we only compare the *Brüstle* and the *Mayr* case (fertilization vs. transfer into uterus).94

As part of the Court's 'judicial self-restraint', when dealing with the notion of 'public morality', the Court referred to national values.95 However, the Court's statement in *Omega*96 that there is no need for a consensus amongst all MS could be answered differently today, now having legally binding *common* values.97 In other words, a more uniform rather than diverse approach from a vertical (EU vs. MS) perspective.

However, the Court will always be willing to recognise certain circumstances, which have a specific importance for a country, for example because of the historical context. This was the case in the following examples. For instance, the national value of human dignity in Germany,98 due to the atrocities of the Nazi regime, falling under 'public policy'. The fight against the mafia as a specifically important principle of morality in Italy, which corresponds with the EU's values (see *infra*).99 Finally, the 'Law on the abolition of the nobility', an element of national identity in the context of Austrian constitutional history, falling under 'public policy' as well as under Art 4(2) TEU (respect for the national identities of MS).100 In the Italian case on EU trademark law, the GC has referred to EU values in the following way:

The Court takes the view that such criminal activities breach the *very values* on which the European Union is*founded*, in particular the values of respect for *human dignity and freedom* as laid down in Article 2 TEU and Articles 2, 3 and 6 of the Charter of Fundamental Rights

91As the Court stated, "EU law is based on the fundamental premiss that each [MS] *shares* with all the other [MS], and *recognises* that they share with it, a set of common values on which the [EU] is *founded*, as stated in Article 2 TEU. That premiss implies and justifies the existence of *mutual trust* between the [MS] that those values will be recognised, and therefore that the EU law that implements them will be respected"; CJEU *LM*, C-216/18 PPU, para 35; emphases added.

92Recently it has been argued that "differentiation [in integration] should not be permissible when it comes to the respect of existing fundamental rights and values"; EP draft report of 2 August 2018 on differentiated integration (2018/2093(INI)), PE626.719v01-00, pt. 9. 93*Supra* Sect. 3.1.3.

94*Supra* Sect. <IP_ADDRESS>, at note 128. Also Herrmann and Rowlandson have observed that "[a]t first glance it seems as if the role of ethics and morality in EU law does not hold any uniform legal significance"; Herrmann and Rowlandson (2008, p. 241).

95*Supra* Sect. <IP_ADDRESS>, at note 101.

96*Supra* Sect. <IP_ADDRESS>, at note 143.

97N.B. However, this would not change much for the *Omega* case as such, as we have seen that the German notion of human dignity very much corresponds with the EU counterpart.

98In Germany, human dignity is referred to as the 'fundamental constitutional principle' of human rights; AG Stix-Hackl *Omega*, C-36/02, para 76.

99GC *La Mafia Franchises*, T-1/17, para 36; see *supra* Sect. <IP_ADDRESS>, at note 155.

100CJEU judgment of 22 December 2010, *Sayn*-*Wittgenstein*, C-208/09, EU:C:2010:806, paras 83, 84, 92.

of the European Union. Those values are *indivisible* and make up the *spiritual and moral heritage* of the European Union.101

We have already seen various links between the EU's values (including human dignity), the legal lens so to speak, and the philosophical102 one. According to Larenz, to 'judge' ('*werten*') is an inner invitation to comment with regard to a moral value, whereby not according to one's own highly personal values, but according to the general consciousness of values of a legal community.103 These values have to be *objective*, correspond with a *general* mode of action and judgement and must be an *adequate* expression of this value requirement; in other terms, bad habits cannot be such a yardstick.104 While in previous times, values have also been considered as non-legal concepts, which need to be imported into the legal sphere,105 nowadays we have to accept that values do not only have a legal meaning, but also a philosophical one.106 In other words, values stand between law and morality,107 and in this way, they fulfil a bridge function.

As mentioned above, starting with a market for coal and steel, the EU finally also turned into a 'community of values'. According to Mandry, this notion, "on the one hand, describes the supranational European collectivity founded on common value convictions and a sense of belonging together, and on the other hand, the political-ethical quality of the political organization, namely the institutions and attitudes of the European Union."108 As mentioned earlier, the notion of 'ethos' refers to the attitude, convictions, customs and behaviours of a person,109 or even of an institution.110 From an ethical perspective, the self-image as a 'community of values' can help to describe the 'ethos' of the EU.111 From a social perspective, the 'community of values' is obviously an idea that is intended to express the 'identity' of the EU.112 As Calliess rightly points out, the totality of values forms the value system of a society, which, according to social science, constructs identity over it.113 Besides the more institutional angle of the 'community of values', what is most important are the expectations of citizens with regard to legitimate and 'good' political action.114

101GC *La Mafia Franchises*, T-1/17, para 36.

102On the notion of 'philosophy of values', see Berthold and Hügli (2004, pp. 611–614).

103Larenz (1960, p. 216).

104Larenz (1960, p. 219).

105Di Fabio (2004, p. 4), referring to older German case-law.

106Cf. e.g. Scheler (1916).

107Calliess (2004, p. 1034), with reference also to Di Fabio (2004, p. 3).

108Mandry (2009, p. 17); translated with DeepL.

109*Supra* Sect. 1.5, at note 89.

110*Supra* Sect. 1.5, at note 90.

111Mandry (2009, p. 99).

112See Footnote 111.

113Calliess (2004, p. 1034).

114See Footnote 111.

As we know, the 'community of values' has a threefold impact: on the EU, on the Member States and on citizens.115 Focussing on the citizens, as the EP has recently emphasized, "European democracy needs a European identity, a genuinely European demos".116 The question of whether and how a 'European identity' is further developed and strengthened, has to be differentiated from the question of how the 'community of values' affects the citizens, keeping in mind that they are closely connected. As mentioned earlier,117 the first sentence of Art 2 TEU mentions the values the EU is founded on. This sentence affects all three 'stakeholders', the EU, the MS and the citizens. The second sentence mentions values that "are common to the Member States in a society", which is then further described by means of these values. These values are societal values, which also concern the relationship of private persons.118 Already thirteen years ago, Rensmann argued that the metamorphosis of the EU into a 'community of values', which has been legally implemented for a long time, must still be understood by the citizens in order to become the basis for the development of a European consciousness, respectively EU identity.119 To close the circle with the homogeneity mentioned above, "despite their feedback to national values, European values have their own independent content, which must be worked out."120 Citizen participation will be of utmost importance for both the 'community of values', as well as for the 'ethical spirit'.

#### **References**

Borowsky, M. (2014). Titel I Würde des Menschen. In J. Meyer (Ed.), *Charta der Grundrechte der Europäischen Union* (4th ed., pp. 94–106). Baden-Baden: Nomos.

Calliess, C. (2004). Europa als Wertegemeinschaft: Integration und Identität durch europäisches Verfassungsrecht? *Juristenzeitung (JZ), 59,* 1033–1084.

Di Fabio, U. (2004). *Grundrechte als Werteordnung. Juristenzeitung (JZ), 59,* 1–8.

Dickson, J., & Eleftheriadis, P. (2012). Introduction: The puzzles of European Union law. In J. Dickson & P. Eleftheriadis (Eds.), *Philosophical foundations of law. Philosophical foundations of EU law* (pp. 1–22). Oxford: Oxford University Press.

European Commission. (2007). Public Opinion in the European Union. Eurobarometer 66.

Berthold, J., & Hügli, A. (2004). Wertphilosophie. In J. Ritter, K. Gründer, & G. Gabriel (Eds.), *Historisches Wörterbuch der Philosophie: Band 12: W-Z* (pp. 611–614). Basel: Schwabe AG.

European Commission. (2008). Values of Europeans. Eurobarometer 69.

European Commission. (2009). Public Opinion in the European Union. Vol. 2. Eurobarometer 72.

European Commission. (2010). Public Opinion in the European Union. Eurobarometer 74.

European Commission. (2012). The Values of Europeans. Eurobarometer 77.

115Calliess (2004, p. 1038).

116EP draft report of 19 July 2018 on State of the debate on the Future of Europe (2018/2094(INI)), PE625.528v01-00, pt. 21.

117*Supra* Sect. 3.1.3.

118Streinz et al. (2010, pp. 79–80).

119Rensmann (2005, 54).

120Calliess (2004, p. 1042).

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## **Chapter 6 Conclusion and Suggestions for Improvement**

*For decades, the Union's techno- and bureaucrats have successfully worked on a process of economic integration between countries, but in their paper mills they have overlooked the fact that unions between countries must also have a soul, an idea or an ideal that is above individual interests and in which everyone feels united.*

Leon de Winter, *Wo steckt Europas Seele*? (de Winter 2004, p. 158; translated with DeepL.).

While so far, this book was clearly about the legal situation as it stands, I now want to conclude with some own suggestions for improvement. Much has already been written about the multiple crisis of the EU. However, even if these crises did not exist, it would be high time to further develop a new Union, which is 'inspired by an ethical spirit'. Without going into details, such a development has the advantage that it does not necessarily require an amendment of primary law,1 which was the 'mission impossible' in all the crises the EU had to deal with recently.2 There are good philosophical and legal arguments supporting this idea, but the pragmatic reasons might even prevail. Why should the European Union (EU) act and be perceived as an 'Ethical Union'?3

We can observe various gaps between the EU and the citizens, a geographic one (Brussels is further away than your municipality or your capital city), an emotional one (to some extent also due to the first point), and a content-related one (EU law often is very sophisticated, especially for citizens). That is why trust is of utmost importance

1Art 48 TEU.

2One idea which would not be a 'mission impossible' from a formal perspective (as there would be no necessity to change EU primary law), but in terms of the likelihood of its implementation, would be an 'ethical impact assessment'. Without going into details, combining the current role of the EGE and the impact assessment, as we know it today, this could be an EGE 2.0.

3This was the title of my paper (Frischhut 2015), which can be seen as the starting point of this bigger research project, which is part of this Jean Monnet Chair, entitled 'European integration & ethics'.

even more important than at a nation state level. As the Court has recently held in a case on access to EU documents, "by increasing the legitimacy of the Commission's decision-making process, transparency ensures the credibility of that institution's action in the minds of citizens",4 a statement, which holds true for to the EU as a whole. This quotation also corresponds with the moral entitlement of citizens as argued by Waldron.5 However, this procedural component has to be accompanied by a substantive one, where the 'ethical spirit' of EU law plays a role for either perspective. While the author strongly rejects populism, the EU has to focus more on citizens and their concerns.6 Otherwise, it risks failing, if it is perceived as the supporter of big companies, which can 'buy justice' or 'buy legislation'. Without going into details and, in a very simplified way, if we add the two perspectives of content and the way how it was perceived by the general public, the EU has clearly done a better job on 'roaming' and 'passenger's rights', than providing transparency in case of CETA,7 or handling the issue of glyphosate. In the already mentioned report on the CFR,8 the EGE has referred to the 'precautionary principle' as "the expression of prudence as a genuine ethical virtue".9 To make a long story short, a true application of this principle10 could also lead to a different outcome. Acting in the citizens' interest and not being open to unethical lobbying is one element of this 'ethical spirit', where the EU can demonstrate the added value of acting at EU level, for a single state realistically has no chance of overcoming these challenges. However, these statements should be seen as encouragement, knowing that much improvement has already happened and also having in mind the important work of the European Ombuds(wo)man.

Hence, the question is, what should this 'ethical spirit' look like? Well, for a big part, it already exists; in terms of all the opening clauses we have seen in EU law, through the EU's values, including human dignity, the EU's human rights, as well as the 'spiritual and moral heritage'. Tallacchini has argued that from the beginning, "ethics never embodied or related to any existing specific morality or moral philosophy".11 This statement has been confirmed in the various analyses throughout this book. Although we have seen that from the three normative theories deontology

4CJEU judgment of 4 September 2018, *ClientEarth vs. Commission*, C-57/16 P, EU:C:2018:660, para 104.

5*Supra* Sect. 4.2.2, at note 157.

6In an open letter in the '*Frankfurter Allgemeine Zeitung*', Supiot et al. (2018) argue that "the EU can still be resuscitated by giving clear priority and safeguarding the ideals it proclaims over the economic and financial postulates that lead to its loss"; translated with DeepL. They refer to the three options (exit, voice or loyalty) available in times of a crises, as developed by Hirschman (1970).

7It seems that the Commission has clearly learned its lessons, if we nowadays look at the Brexit negotiations.

8*Supra* Sect. 4.2.1, note 112.

9European Group on Ethics in Science and New Technologies (2000, p. 10).

10Apart from the above-mentioned disclaimer (Sect. 1.5 note 92), one has to acknowledge the difficulties in establishing a common understanding in this regard; see e.g. Dratwa (2002).

11Tallacchini (2015, p. 157).

prevails, it would be wrong to attribute the EU's 'ethical spirit' exclusively to this one. Rather should we see this 'ethical spirit' as a lattice, not only linking various provisions of EU law that address ethics and morality in different ways, but also as a lattice of different input.12

In *Van Gend en Loos*, the Court has not only referred to the 'spirit' of (EU) law, it has also coined the term of the 'new legal order'.13 In line with this ground-breaking statement, the 'ethical spirit' of EU law cannot be attributed to a certain pre-existing and worldwide uniform philosophical approach. Some might argue that it would be desirable if one could define the 'stone of the philosophers' (*lapis philosophorum*) in the sense of such a uniform normative theory.14 However, one has to be so realistic that a theory of ethics is always relative to the current challenges of the time and the community we are living in.15 This corresponds to the step-by-step approach inherent to the *Schuman* declaration.16

As mentioned above,17 according to a particularistic moral understanding, the claim of morality can also be limited to the members of a certain group. This 'communitarianism' has been developed against the background of multiple crises,18 emphasizing rights and responsibilities,19 stressing the importance of shared common values and the 'common good', which requires that "we have to reason together about the meaning of the good life".20 This idea goes hand in hand with the analysis of human dignity in the CFR, which according to Rensmann "does not only embrace man as a being isolated in his freedom, but also in his social integration".21 Therefore, I argue that the 'ethical spirit of EU law' should also be seen from such a communitarian perspective. The limitation to the EU should not be understood in a way excluding others. Rather should it be seen as a rejection of a 'colonialist approach' and a rejection of the wish to develop a universally applicable system,

12On Montesquieu see *supra* Sect. 4.1 at note 5, and on CJEU *Achmea*, C-284/16, paras 33–34 (same chapter) at note 13.

13CJEU *Van Gend en Loos*, 26/62, p. 12; see also *supra* Sect. 1.2, notes 37–39 and 45.

14On Parfit (2011) see *supra* Chap. 2, note 1.

15As Sangiovanni (2008, p. 164) points out, "principles of justice therefore vary, at a fundamental level, with respect to the institutional context they are meant to regulate".

16Without the atrocities of World War II, human dignity would most likely not play the same role as it does today.

17Section 2.4.3.

18Hence, it seems perfectly suitable for the EU.

19Briefly to mention, that also CJEU *Van Gend en Loos*, 26/62, p. 12, addressed rights and obligations, the citizens as key stakeholders, as well as the 'legal heritage'.

20Sandel (2010, p. 261).

21Rensmann (2005, 61); translated with DeepL.

which would fit every community and culture,22 worldwide and at any time.23 This communitarian perspective entails the idea that we reason together about the 'good life', hence involving citizens. This comprises not only rights, but also obligations,24 not only freedom, but also engaging in and for society.

Also the analysis of the preambles of the EU treaties point to a specific EU approach, as they do not refer to one of these three normative theories, but to the EU's 'spiritual and moral heritage'. Within this Jean Monnet chair, not only was the research on this book conducted, but it also included a course,25 in which an exchange student from Asia provided the following valuable external perspective. This statement may sound banal, but it shows exactly what it is all about. Asked to write down what *should be* a value of the EU, he wrote, 'community'. While since the entry into force of the Lisbon Treaty, for reasons of linguistic accuracy EU lawyers tend only to refer to the Union, not to the Community any more,26 this notion of 'community' better reflects how the EU, its members and its citizens should see themselves in it.

The 'ethical spirit' of EU law should not only be seen from and benefit from the idea of 'communitarianism'. In addition, 'principlism' ought to be embraced as well. Making this 'ethical spirit' more easily applicable to different challenges in different sectors,27 we might need an approach as we have seen it in the context of lobbying. These principles (sometimes also virtues28) can translate abstract values into principles that are able to guide the individual to the 'right solution'. In a similar way as we have seen the general common values of the EU (Art 2 TEU) also specified to different fields,29 we could think about both specific values for other fields, as well as developing further principles, linked to these general or specific values. Hence, values could be general (Art 2 TEU) or specific (e.g. sports), while these principles would mainly be specific. This does of course not mean that a principle like 'integrity'

22This does not mean that the author is not of the opinion that also other cultures could benefit from (parts of) this 'ethical spirit' and adopt it, as for instance other elements of the EU integration process have been adopted in other parts of the world. On the example of the CJEU and the Andean Community, see Frischhut (2003, pp. 209–301).

23Although it might be still relevant today, also the social contract theory was developed against the background of the emerging role of the state, and although it was highly developed, ancient Greek philosophy had no problem with slavery.

24In CJEU judgment of 7 February 1973, *Commission vs. Italy*, EU:C:1973:13, paras 24–25, the Court has emphasized "the equilibrium between advantages and obligations", which is an essential part of solidarity (now: one of the common values), where a failure in the duty of solidarity "strikes at the fundamental basis of the [EU] legal order".

25Available at: https://jeanmonnet.mci.edu/jean\_monnet\_mooc.

26See also the disclaimer in this book, *supra* Sect. 1.1, note 15.

27Besides this differentiation in different (horizontal) sectors, principles can also be differentiated from a vertical perspective in those mainly governing the relationship between the EU and the MS, and those mainly concerning the individuals (in relation to the EU, respectively the MS when applying, etc. EU law); for a similar approach, see Dickson and Eleftheriadis (2012, p. 14).

28As mentioned above (Sect. 1.5 note 107), principles and virtues can sometimes be difficult to define and overlap.

29*Supra* Sect. 3.1.3.

would not make sense in various sectors. This approach goes into a similar direction as a position called 'moral disunitarianism', "according to which moral generalities, to the extent that they exist, are at best domain-specific".30

While sometimes terminology might differ, this approach can go into a similar direction as primary and secondary principles, or in other terms: more abstract primary principles, and below that, more detailed secondary principles.31 We have also seen that virtues might require principles,32 and that the 2006 Council conclusions might serve as a role model, where "[b]eneath these overarching values, there is also a set of operating principles".33

Finally, the 'ethical spirit of EU law', which, as we have seen, is constantly developing, can also embrace some ideas of 'minimal ethics'. We have seen this approach in Art 6 Directive Biotech. Although it can be desirable to have a uniform approach, the step-by-step shift from diversity to more uniformity can simply require a pragmatic minimal approach (i.e. only to define the core, but not the periphery), which, in the future, might become more 'united'.

These ideas for an 'ethical spirit of EU law' can contribute to the statement that "unions between countries must also have a soul", as mentioned in the quote at the beginning of this chapter. It is important to emphasize that other approaches, for instance Williams arguing for a "new philosophy of EU law based on a theory of justice that is constitutionally enshrined" and "an institutional ethos that prioritizes fundamental values" can be complementary to this book.34 Not only is justice a value of the EU, also citizens would highly value a more just EU.

As this book has summarized the research conducted with this Jean Monnet Chair 'European integration & ethics', kindly supported by the European Commission under Erasmus+, one funding requirement was to publish this book 'open access'. The author is thankful for this stimulus, as this 'ethical spirit' cannot be covered by one single book. In addition, every day, new documents can add up to this 'lattice'. That is why this open access book and hopefully other research will contribute to this "research agenda where I hope that others will contribute to this process".35

Finally, and for the sake of this debate, the book is summarized in the following 2836 theses. This will include both the summary of the status quo identified so far, as well as the author's suggestions for improvement (high lightened by "I argue").

30Brännmark (2016, p. 481); see also Brännmark and Sahlin (2010), and the following quotation on medical ethics, which can be applied analogously to our topic: "what disunitarianism points to is a conception of medical ethics where morality, politics, and law are more strongly integrated"; Brännmark (2018, p. 10).

31*Supra* Sect. 2.2, at note 34.

32*Supra* Sect. 2.3, at note 57.

33*Supra* Sect. 3.1.3, at note 28.

34Williams (2009, p. 577).

35Taken from my paper "'EU': Short for 'Ethical Union'", Frischhut (2015, p. 577).

3628, because the author believes in #StrongerTogether.

37The author agrees to the feedback of Karl Harald Søvig (University of Bergen | Faculty of Law) that law should be more concrete (the argument of legal certainty), when referring to ethics.

38While harmonisation in some areas might be desirable, it can be difficult to achieve, especially because of different historical, political, religious traditions, different economical and/or technical development. The author would like to thank Göran Hermerén for valuable feedback in this regard.

where deontology clearly prevailed. However, this does not mean that the other two do (and shall) not play an important role.

39It is a different question, but such an ethical spirit will hopefully also lead to ethical laws.

40The author would like to thank Dean Harris for valuable feedback in this regard.

41See Frischhut (2015, p. 574).

#### **References**

42The author would like to thankWinfried Löffler (University of Innsbruck | Department of Christian Philosophy) for pointing out the following. While the three normative theories mentioned so far are intended to answer the general question of the nature of good actions, principlism and minimal ethics are attempts to offer an ethical tool that can also be applied to 'mere practitioners' beyond difficult fundamental debates. In addition, for various reasons, it can be challenging to apply the concept of principlism beyond medical ethics. There will clearly be a need for further debate here.

**Open Access** This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

## Appendix

#### Case-Law (Clustered According to Relevant Court etc., then in Chronological Order)

© The Editor(s) (if applicable) and The Author(s) 2019 M. Frischhut, The Ethical Spirit of EU Law,

https://doi.org/10.1007/978-3-030-10582-2

CJEU judgment of 6 March 2018, Achmea, C-284/16, EU:C:2018:158

BVerfG judgment from 15 February 2006, Shooting down terror plane, 1 BvR 357/05

#### EU Primary Law, etc. (in Chronological Order)

#### Directives and Regulation (in Alphabetical Order)

#### Other Legal Documents (in Alphabetical Order)