Abstract
The article provides a functionalist account of the ‘institutional uses’ of (human) dignity in the jurisprudence of the Court of Justice of the European Union. It looks at how the legal concept of dignity is invoked and used in the adjudication processes in the European Union, what is its role, and what are its practical effects. The aim is to arrive at a better understanding of the dignity’s functional roles in the EU, but also of the functional similarities and differences in comparison with other European jurisdictions. This will further show in what aspects dignity is independent of or dependent on institutional contexts in which it operates, especially regarding the judicial practices and mutual relationships between different courts.
Keywords
1. Introduction
The word ‘dignity’ sounds obvious, something universal, almost self-explanatory, but hard to define when one is asked to give their best try. The word (or different words expressing the same idea) is arguably known in every corner of the world, but its meaning is highly contextual. Dignity as propriety has been ascribed to different entities; most notably, to human beings, living or deceased – thus ‘human dignity’ as the word’s most frequent iteration, especially in legal parlance; but also to (some) animals and species, even inanimate objects or phenomena like institutions, professions, activities, lifestyles, works of art and the like.
Every contemporary community is arguably familiar with some sort of dignity concept(s) that capture(s) its social, political and legal identity. In this context, European philosophical and jurisprudential traditions have probably been the most fruitful contributors to the current academic discourse on (human) dignity. In general, however, it remains difficult to understand the concept of dignity, define its substance, or pinpoint its procedural implications, no matter which dimension one decides to focus their inquiry on – historical, philosophical, theological, sociological, political or jurisprudential. 1 Something always seems to be missing. The same goes for legal analyses: still, attempts to make sense of dignity as a legal concept, albeit (philosophically speaking) narrower in scope and ambition and (perhaps) less inspirational, are indispensable for our understanding of the existing constitutional orders and the values they profess.
An emerging constitutional order that this article examines is today’s European Union (EU). Perhaps unsurprisingly and like in many other jurisdictions – national, regional and international alike – the concept of dignity in the EU remains somewhat indeterminate and elusive. Aside from few remarks offered in passing, here I do not primarily engage with a more theoretical question of what the current substantive meaning of human dignity in the EU is. There are two main reasons for that. On the one hand, it seems that the answer to this question has not yet been decidedly offered by the EU political and judicial authorities, despite its growing relevance and the frequent usage. On the other, some ideas as to what the possible answer(s) might be have already been floated in the European legal scholarship. Even though my primary intention is not to engage with the diverse arguments proposed by various authors, in certain instances the discussion in this article will inevitably draw on (and benefit from) their insights.
Leaving the theoretical question mostly in the background, the central aim of this article is to provide a functionalist account, what Christopher McCrudden termed ‘a process-oriented’, ‘institutional use’ of human dignity: 2 How is this concept used and to what ends it is invoked in the adjudication processes in the EU? As a legal concept, what is its role? What are the practical effects of its use in the EU’s composite constitutional order? As such, doctrinal analysis attempted here will inevitably be more descriptive, albeit not completely stripped off of any normative discussion. More specifically, for the purposes of this article the focus will be narrowed down to (a) legal aspects of the concept of human dignity in (b) a particular jurisdiction, while acknowledging possible limitations of such an approach, namely regarding (a), its single-dimensionality, in philosophical terms; and regarding (b), its regional (European) relevance, as opposed to the alleged universality of the concept of dignity that some comparative human rights scholars tried to capture and address.
This account, moreover, needs to be linked with the framework of a multilevel ‘European constitutionalism’. 3 The analysis of the institutional use of human dignity in the jurisprudence of the Court of Justice of the EU (CJEU) will thus have to take into account the concept’s institutional use in separate but interdependent jurisdictions that jointly compose the European constitutional space, that is the jurisprudence of the European Court of Human Rights (ECtHR) and of the highest (constitutional and supreme) courts of the EU Member States. ‘[T]he institutional context matters’. 4 Therefore, approaching the institutional uses of dignity as a legal concept in such a way will contribute not only to a better understanding of its functional role in the EU, but also of the functional similarities and differences between these jurisdictions. This will further show, more generally, in what aspects is the legal concept of dignity independent of or dependent on institutional contexts in which it operates. 5
Another question that merits a word here is the article’s focus on judicial approaches to dignity in the EU: Even though different legal and political conceptions have also been developed and used by other institutional actors in the EU in order to, for instance, underpin legislative acts, augment human rights references, or highlight significance or sensitivity of certain policy areas, the importance of the courts and their interactions in developing doctrines, expounding the meaning of and manufacturing political consensus around human dignity as the foundational value of the EU remains indispensable. A somewhat privileged institutional position of (high) courts regarding the (re)creation of dignity narratives has similarly been recognized by some authors. 6 This, however, should not be read as to reject the relevance of ever-increasing contribution of other EU institutions to dignity dialogues; rather, discussion of this would simply exceed the limits and intentions of the present paper.
Academic interest in human dignity in the EU grew continuously during last couple of decades. The concept itself is rather novel in this legal system, despite some earlier occasional references in the case law and secondary legislation: the entry into force of the 2009 Lisbon Treaty is usually taken as a watershed moment in which human dignity occupied the very centre of the EU legal and political attention. 7 However, neither EU primary (constitutional) documents, such as the founding Treaties or the Charter of Fundamental Rights of the EU (the Charter), nor the CJEU’s case law, still offer conclusive answers to numerous intricacies raised by the concept of dignity: regarding its substance, its status, or its relation to other constitutional rights, values and principles. Moreover, notwithstanding a recent increase in the interest of European scholars in this topic, there is still a lack of work that engages with human dignity in EU law. Especially noticeable is a gap in the literature that approaches the concept of human dignity from the functionalist perspective, as proposed herein. There are few articles that discuss human dignity and its position within the EU Charter’s catalogue of human rights, and to a lesser extent its appearance in the jurisprudence of the CJEU. 8 However, none of these works addresses satisfactorily the aforementioned questions related to the institutional use of human dignity in the EU. Therefore, this article’s functionalist approach, methodologically more modest in that it does not wrestle with abstract, theoretical or philosophical discussions of dignity’s substance, is perhaps a more appropriate way of describing the role of human dignity in the EU’s constitutional adjudication. 9
The structure of the article is as follows. Following the introduction, some remarks about the EU institutional context in which we find the legal concept of dignity are noted. Then, the central part of the article is dedicated to an extensive analysis of cases before the CJEU in which dignity as a legal concept was invoked. 10 This part is divided in subsections that in turn discuss the most important functional roles of dignity in the CJEU’s jurisprudence. The final section concludes. The article will demonstrate that the EU dignity jurisprudence shares certain similar traits with other comparable jurisdictions that might be regarded as ‘dignity champions’. These functional similarities are due, first and foremost, to the ever-increasing constitutional importance of dignity in human rights adjudication, not only in Europe. However, what will also become apparent is that the legal concept of dignity in the EU assumes functional roles quite different than in other jurisdictions. The peculiarity of these roles, as will be argued further, seems to be contingent on the asserted autonomy of the EU institutional system and the complexity of the relationship between the CJEU and the Member States’ high courts.
2. A look into the jurisprudence of the Court of Justice
A. Institutional background
Human dignity nowadays stands as ‘a fully European concept’, positioned at the centre of European constitutionalism, 11 arguably unmatched by any other constitutional principle or human right. This is reinforced by some institutional features that are shared among the European constitutional interlocutors that engage in ‘dignity talk’. First, the emergence of supranational courts, such as the CJEU and the ECtHR, was dovetailed by the establishment of specialized constitutional courts across Europe in the aftermath of the Second World War. Paralleling this trend was the increase in the use of human dignity in constitutional adjudication. 12
Second, this increase was followed by the increase in the use of comparative method in interpretation of human dignity and other constitutional rights and values. 13 Courts thus increasingly turned to other European (national and supranational) jurisdictions when constructing their own conceptions of dignity and vice versa. 14 The functional ‘spillover’ of judicial doctrines and comparative method among the high courts in the EU Member States is noticeable in other areas of EU law too. 15 The concept of dignity, in this context, seems particularly suitable for a dialogical judicial reasoning and constructive exchanges between the constitutional interlocutors in the EU. 16
Besides comparativism, another methodological correlative of using human dignity is the proportionality analysis, which was adopted by many European courts, including the CJEU, as a tool for balancing and resolving conflicts of rights. 17 When used in the framework of proportionality analysis, human dignity can serve as a decisive weight that tips the scale in favour of one right or the other.
Finally, the increase in the use of human dignity in constitutional adjudication meant more discretion for the courts. Dignity as a legal concept is a contested and highly complex one; hard to operationalize and strike a balance between its different conceptions; inconsistent in application; unsuitable for principled judicial decision-making, yet suitable as an entry point for moral considerations of judges. 18 Hence regarded by some as ‘contentless’, ‘a façade’ that hides ‘the vacuum behind it’, the concern is that dignity may be exploited by the courts as a cloak for overriding democratically-legitimated legislatures. 19 Similar concerns were acknowledged by some high courts, 20 as well as the proponents of dignity in adjudication themselves. 21
In Europe, therefore, both national and supranational courts introducing dignity vocabulary assumed more prominent position in law- and policy-making, thus strengthening their status and increasing institutional authority vis-à-vis executive branches and elected legislatures. This at the same time meant a greater scrutiny of their case law and established doctrines and criticism of their legitimacy, especially when vague and abstract concepts such as dignity were being used. 22
These brief remarks about the institutional background might still not be enough to convince a critical mind of the relevance of the CJEU’s dignity jurisprudence. Hence, a careful and informed reader might immediately frown upon the idea of analysing this strand of the CJEU’s jurisprudence in search of dignity’s institutional uses and functional roles. Most importantly, one would complain that the Court’s case law on human dignity based on Article 1 of the EU Charter is still nascent (while at the same time the ECtHR and national constitutional courts’ dignity jurisprudence abounds). 23 However, this view overlooks a well-established CJEU’s case law on dignity outside the scope of Article 1 of the Charter, as will be elaborated below.
Important to note at the outset is that the majority of references to dignity as a legal concept came in the opinions of the Advocates General. The very first reference probably also came in an Advocate General’s Opinion. 24 There is, in my view, an obvious institutional reason for this: judgments of the Court of Justice are issued as collegiate decisions, meaning there are no dissenting opinions. 25 The unanimity the audience is presented with sometimes hides a hard compromise struck between the three, five or fifteen judges sitting in different chamber compositions. Therefore, judgments often appear as ‘cryptic’ and ‘terse’, deliberately filtered from any unnecessary or controversial content. 26
On the other hand, legal opinions written by a single Advocate General are much more comprehensive and discursive. 27 Even though they are formally non-binding, the Court in most situations decides to follow the outcome proposed by the Advocate General (even though, as noted above, it may depict the process leading to that same outcome in a brief and convoluted manner). Therefore, since the Advocates General elaborate clearly on (legal or policy) arguments informing a particular decision, it is fair to assume that references to human dignity found in the Advocate General Opinions substantively influence reasoning of the Court (at least where the Court reaches the same or similar legal outcome), even if that is not explicitly recognized in the judgment.
Another explanation of scarce, careful and inconsistent references to human dignity in the CJEU’s judgments might also be due to the Court’s (ideological and methodological) struggle with assuming the role of a genuine human rights court. 28 A further reflection on this will be made later in the article.
B. Note on substance
Although, as indicated in the introduction, the article’s primary aim is not to discuss the substantive meaning(s) of the concept of dignity in the EU, the following should be noted as a sort of another preliminary remark: two Advocates General came closest to elaborating a coherent and extensive definition of human dignity in the EU, and their opinions are briefly discussed here.
In her Opinion in Omega, Advocate General Stix-Hackl pictured what she considered an outline of the concept, acknowledging problems when trying to define dignity or express it as a legal category. 29 She tried to come up with an all-encompassing account of human dignity: as attributed to every human being solely based on their human nature; 30 as inherent and inalienable to humans who are endowed with reason; as representing the ‘substance’ of the mankind, what distinguishes every person from other living beings; 31 as containing elements of self-determination, freedom and autonomy, individual’s personality and identity; as a counterbalance to the state authority that opposes ‘idea that the individual is identified according to the community and considered to be a function thereof’, and makes a person ‘subject rather than object in the world’; 32 as subsuming the concept of equality of people; 33 as being the foundation for all other human rights and yardstick for their interpretation. 34
Advocate General Stix-Hackl further recognized various reasoning (religious, philosophical and ideological) that inform this understanding of human dignity, all having roots in European culture. 35 In her view, since it is essentially a generic concept, it does not have ‘any traditional legal definition or interpretation (…) its substance has to be set out in more concrete form in each individual case, especially by way of judicial findings’. 36 Here, the Advocate General clearly prioritizes the judicial interpretations of the legal concept of dignity as opposed to interpretation by other institutional actors in the EU and in Member States.
All this led the Advocate General to conclude that human dignity, due to its highest importance in EU law, cannot be subject to any restriction nor weighed against other values or interests. That aside, the reader is nevertheless left with a conceptual mishmash, wondering what is it that in concrete cases the courts in the EU will fill the dignity’s substance with, as suggested by Advocate General Stix-Hackl.
Following in these footsteps, Advocate General Maduro in his Opinion in Coleman took upon the task of interpreting provisions of the Directive on combating discrimination and ensuring equal treatment in employment. 37 Advocate General Maduro, in essence, equated dignity with the principle of equality. He argued that the minimum notion of human dignity ‘entails the recognition of the equal worth of every individual’. 38 In other words, human dignity is intrinsic to everyone; that is possessed merely by being human. Consequently, no human being is more valuable than another. In Advocate General Maduro’s view, human dignity is different than autonomy. The latter precedes dignity in that through autonomy ‘a sense of dignity’ is concretized. Further, the Advocate General argued that the most obvious way of diminishing someone’s dignity is not only by directly 39 but also indirectly discriminating him or her on the basis of suspect classifications or association with targeted group. 40 Therefore, he proposed that the directive in question should be interpreted as prohibiting equally direct and indirect (associative) discrimination of employees based on any ground or characteristic. 41
In Coleman we find Advocate General Maduro’s (slightly) over-specified account of the substance of human dignity, equality-driven hence tailored for discrimination cases, albeit less ambitious than the all-encompassing, far-reaching conception as set out by Advocate General Stix-Hackl in Omega.
What these elaborate opinions possibly indicate is the direction toward which the EU concept of dignity might lean in terms of substance. In general, dignity embodies two ideas that are oftentimes in tension: liberty and equality. From the accounts of these two Advocates General, it seems that the EU concept of dignity leans more toward liberty. This is seen especially from Advocate General Stix-Hackl’s Opinion that predominantly revolves around self-determination, freedom and autonomy; individualistic rather than communitarian understanding of human nature. But, also from Advocate General Maduro’s Opinion, who despite associating dignity with equality (for the purposes of the case at his hand), still puts autonomy as the underlying value from which ‘dignity-as-equality’ stems. So, one may argue that in the EU’s ‘Pantheon of Liberalism’, liberty ranks higher than equality. This perhaps should not come as a surprise, considering the ideological background of the EU’s neoliberal market-integration project. However, a criticism of such concept of dignity (or the EU’s philosophical foundations more generally) would propose that it is a meaningful, substantive equality from which stems a real liberty, whereas it is not obvious that from liberty immediately follows equality.
In any event, the question of the substance of ‘dignity-as-legal-concept’ in the EU remains open, to be filled on a case-by-case basis through a judicial determinatio. Important to note is that the CJEU as the Union’s highest judicial instance seems not particularly enthusiastic about engaging with and expounding the dignity’s substance, although it did put the concept to use in several ways. To this I turn in the following part.
C. In search of function(s)
In many respects, dignity’s functional roles in the case law of the Court of Justice resemble the roles the concept assumes in the jurisprudence of national courts or the ECtHR. As will be discussed below, human dignity was, most notably, (i) positioned as a fundamental (constitutional) value of the EU legal order; (ii) used as a powerful symbolic (expressive) tool; (iii) used as a mean of resolving conflicts of other rights and interests (or at least to frame those conflicts in dignity terms); (iv) employed as an interpretive principle, and (v) supported the expansion of the scope of application of EU human rights. However, many of these functional roles have had different implications that are due to specificities of the EU institutional and legal architecture, featuring prominently, for instance, in (vi) regulating the relationship between the national and supranational (EU) legal orders. In addition to this, there have been interesting examples of (vii) institutional uses characteristic solely of the EU legal system. These functional roles of dignity are examined in turn.
Interesting question relates to the exclusivity of the functions of dignity observed here. 42 In principle, there may exist situations in which different functional roles of dignity substantively overlap, reinforce each other or even conflict. For instance, dignity in its expressive role may overlap with dignity as an interpretive principle; qualifying dignity as the EU’s fundamental constitutional value could in the same judgment reinforce the asserted position of EU legal order vis-à-vis national legal orders; or dignity as the driver of the expansion of the scope of one human right may indeed hinder dignity’s role as a mean of harmonious resolution of the conflict between that right and other rights. A more detailed theorization of these situations would no doubt be a worthwhile jurisprudential exercise; however, given that in the CJEU’s case law there are hardly any situations in which these concerns appear to have a vital importance for the outcomes of individual cases or standing of different functions of dignity, few general remarks offered here should hopefully suffice.
1. Dignity’s constitutional rank
In a landmark dignity judgment in Omega, the CJEU ruled that ‘the [Union] legal order undeniably strives to ensure respect for human dignity as a general principle of law’.
43
This position built upon the Court’s earlier assertion of its power to review acts of the EU institutions for their compliance with human dignity: It is for the Court of Justice, in its review of the compatibility of acts of the institutions with the general principles of [Union] law, to ensure that the fundamental right to human dignity and integrity is observed.
44
With this, human dignity – constructed either as a fundamental constitutional value (Article 2 of the Treaty of the EU), a general principle of EU law, or nowadays a fundamental right in the EU Charter (in each instance having a legal status of EU primary law) – gave the Court another legal ground on which to perform the judicial review and thus control law-making activities of the EU political authorities. Albeit the CJEU still did not strike down any EU secondary legal act for non-compliance with human dignity, it occasionally exercised this authority; for instance, when reviewing the constitutionality of the Directive on legal protection of biotechnological inventions, 45 or the Regulation on standards for security features and biometrics in passports and travel documents. 46 In this respect, therefore, dignity functions as a powerful extension of the CJEU’s institutional authority and judicial powers (‘dignity-as-institutional-empowerment’).
This (originally judicially-imposed) obligation of the EU institutions to comply with human dignity and the correlative CJEU’s right of constitutional review has been confirmed in one area in which the Court usually has a restricted jurisdiction – EU common foreign and security policy (CFSP). Here the Court held that compliance with the principles of rule of law and human rights and respect for human dignity is ‘required of all actions of the EU, including those in the area of the CFSP’. 47 On this basis, the Court in the case in question proceeded with scrutinizing provisions of the EU-Tanzania Agreement on judicial and police cooperation in criminal matters (regarding fight against piracy).
The obligation of dignity-conformed conduct of foreign policy implies, more specifically, that in external trade relations with third countries the EU institutions are obliged to examine, carefully and impartially, all the relevant facts in order to ensure that the production of goods for export is not conducted to the detriment of the population of the territory concerned, or entails infringements of fundamental rights, including, in particular, the rights to human dignity, to life and to the integrity of the person, the prohibition of slavery and forced labour (…).
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All the rights enumerated in the previously quoted paragraph compose ‘the core’ of human dignity, as codified in Articles 2 to 5 of Title I (‘Dignity’) of the EU Charter.
Furthermore, it seems that this obligation is not only a negative one. In another recent case, the General Court held that the EU institutions are required ‘to promote, in particular in international relations, the values and principles on which the European Union is founded, namely, in particular, respect for human dignity, the rule of law and fundamental rights’. 49
In short, what these couple of cases demonstrate is how the EU legal concept of dignity contributed to a strengthened CJEU’s institutional authority and jurisdiction in otherwise highly contested policy area.
2. Dignity’s expressive strength
Along with elevating dignity to the rank of primary law even before it was codified in the Charter, the EU judiciary in some cases relied on its expressive strength. An example is using human dignity as symbolic, rhetorical tool (‘dignity-as-symbol’) in emphasizing the Union’s value orientation: 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 (…) Those values are indivisible and make up the spiritual and moral heritage of the European Union (emphasis added).
50
Dignity’s expressive strength was similarly used by national constitutional courts to mark the value orientation of their democratic systems, most prominently in dealing with national histories during the transition period. 51
Another example is legitimating the EU economic regulation with human dignity (‘dignity-as-legitimation’), as succinctly put in the following sentence: ‘[T]he Union is not only a market to be regulated, but also has values to be expressed’ (emphasis added). 52 This appears in various Opinions of Advocates General in which they interpret current EU political and economic system (or reinterpret earlier Court’s judgments) to reflect the EU’s commitment to protect human dignity in relation to, for instance: how national authorities should treat workers moving in from other Member States; 53 what are the EU law requirements for the protection of rights of posted workers 54 and equal treatment of men and women in the workplace; 55 why the Union protects the right to commercial expression in the framework of freedom to provide services; 56 what is the connection between the right to a clean environment (and public obligation to preserve it) and the quality of life; 57 or how, in general, the EU competences ought to be determined and exercised. 58
3. Dignity in resolving conflicts
Like its function in the ECtHR and national courts’ case law, human dignity appears in the context of justifying resolution of conflicts between (often incommensurable) rights, values and interests through judicial ‘weighing’ or ‘balancing’, an exercise frequently performed by the CJEU. 59 Dignity as a legal concept may thus provide a common framework for a harmonious resolution of the conflict (‘dignity-as-measure’), 60 something that resembles the German Constitutional Court’s doctrine of ‘practical concordance’; 61 tip the balance in favour of one right (‘dignity-as-weight’), for example the right to life against the freedom of expression; 62 or justify outright restriction of other right for its potential infringement on dignity of others (‘dignity-as-constraint’). 63
In this context, notably, dignity was invoked to limit other political and economic values and interests fundamental to the Union’s legal order (‘dignity-as-limitation’). For instance, regarding the principle of mutual recognition in criminal matters, a flagship EU project of cooperation in the justice and home affairs, it was held that It is in the light of the higher principle represented by the protection of human dignity, the cornerstone of the protection of fundamental rights within the European Union legal order, that the free movement of judgments in criminal matters must not only be guaranteed but also, where appropriate, limited (emphasis added).
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Similarly, it is well established that fundamental market freedoms, arguably the EU’s raison d’être, might be restricted due to human dignity concerns: [EU] law does not preclude an economic activity consisting of the commercial exploitation of games simulating acts of homicide from being made subject to a national prohibition measure adopted on grounds of protecting public policy by reason of the fact that that activity is an affront to human dignity (emphasis added).
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4. Dignity in interpretation
Another important role of dignity in the CJEU’s case law – what is perhaps the most frequent institutional use of the concept – is the one of interpretive principle. In situations like this, the Court adopts dignity-conformed interpretation of the provisions of primary and secondary EU law. This function appeared in a wide variety of issue areas. 66
In the field of biotechnology and bioethics, the Court interpreted EU patent law (for example, using human embryos for industrial and commercial purposes) in conformity with dignity requirements. In Netherlands v. Parliament and Council, it framed ‘the law on patents (…) in a manner sufficiently rigorous to ensure that the human body effectively remains unavailable and inalienable and that human dignity is thus safeguarded’.
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On this basis, it reached the conclusion that ‘protection of dignity requires a general exclusion of the human body from patentability, at any stage of its formation’.
68
Subsequently, in Brüstle the Court clarified that The context and aim of the Directive [on biotechnological inventions] show that the European Union legislature intended to exclude any possibility of patentability where respect for human dignity could thereby be affected.
69
Against this background, the Court adopted a wide interpretation of the concept of ‘human embryo’ as contained in the given Directive. 70
In the field of protection of refugees and asylum seekers ‘throughout the entire asylum procedure’ (that is during the application for asylum, during temporary detention, during the process of return, or upon return), 71 the Court adopted dignity-conformed interpretation of EU asylum rules in order to strengthen certain requirements imposed on the Member States authorities. For example, regarding the prohibition of returning asylum seekers to their country of origin when they face risks of inhuman or degrading treatment upon eventual return, dignity-conformed interpretation of secondary EU law precludes national legislation that does not recognize suspensive effect of an appeal against return order or does not provide for effective health treatment during the appeal procedure. 72 Similarly, regarding the prohibition of a return to EU Member States with systemic deficiencies in the asylum seekers’ reception conditions, dignity contributed to the CJEU’s move away from ‘systemic deficiencies’ requirement to ‘risk of harm in individual cases’ as the sufficient ground for non-return. 73
Furthermore, dignity arguments were important in the Court’s forceful rejection of certain examination methods that intrude into asylum seekers’ personal sphere. For instance, the Court held that sexual orientation ‘tests’ or ‘expert reports’ conducted by national authorities ‘by its nature infringe human dignity’. 74 At the same time, the Court’s dignity-conformed interpretation extended Member States’ obligations to secure appropriate reception conditions for asylum seekers. For instance, the provision of material reception conditions to asylums seekers in the form of financial aid grants ‘must be sufficient to ensure a dignified standard of living and adequate for the health of applicants and capable of ensuring their subsistence’ (emphasis added). 75
Within the framework of intra-EU cross-border execution of criminal judgments, human dignity was invoked in support of the requirement of special treatment of vulnerable victims in criminal proceedings. In a landmark decision in Pupino, the Court held that Framework Decision [on the European Arrest Warrant] require[s] each Member State to make every effort to ensure that victims are treated with due respect for their personal dignity during proceedings, [and] to ensure that particularly vulnerable victims benefit from specific treatment best suited to their circumstances (…) (emphasis added).
76
Dignity was also relied on in interpreting the specific requirements for execution of criminal sanctions. 77 It furthermore contributed to the clarification of detention conditions/judicial safeguards in the EU country to which a suspect ought to be surrendered. 78 In this context, similarly to asylum cases, the Court further relaxed its requirement of ‘systemic deficiencies’ as the only ground for refusing to execute an arrest warrant, and instead replaced it with any kind of ‘deficiencies, which may be systemic or generalized, or which may affect certain groups of people, or which may affect certain places of detention’. 79
Finally, dignity argument appeared in the CJEU’s interpretation of the rights of migrant workers in the EU. Human dignity thus supports triggering certain rights of family members of workers from other Member States; the Court argued that the right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of dignity, be also granted to their family members, irrespective of nationality (emphasis added).
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Similarly, dignity was invoked to support the provision of equal social benefits to migrant workers. Advocate General Kokott proposed that guaranteeing the minimum level of subsistence is no longer considered to be a charitable measure on the part of the State. On the contrary, in many modern welfare States, individuals have such a right as an expression of their human dignity (emphasis added).
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Important to note is that in a great majority of these judgments, the use of dignity as an interpretive principle contributed to the Court affording greater protection to the category of EU citizens and non-citizens who find themselves in particularly vulnerable situations. 82 Also, dignity as a legal concept embodies both negative and positive obligations of the EU and Member States authorities. 83 Both, it seems, rather broad in their scope: negative, for instance the obligation to refrain in every aspect from bringing asylum seekers/criminal suspects in threat of inhuman or degrading treatment; as well as positive, for instance the obligation to ensure appropriate reception/detention conditions or provide assistance to EU workers and extend rights to the members of their family.
5. Dignity in extending the scope of existing rights
The interpretive function of human dignity in certain instances supported the extension of the scope of constitutional rights that the CJEU was constructing and elaborating. This exercise is well known to the highest national (constitutional) courts in EU Member States and the ECtHR too. 84
For example, in extending the protection of the EU right not to be discriminated against to transgender persons in P. v. S., the Court held that To tolerate [discrimination arising (…) from the gender reassignment of the person concerned] would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard.
85
Therefore, the Court concluded, ‘in view of the objective pursued by the [Directive on the equal treatment of men and women in employment], dismissal of a transsexual for a reason related to a gender reassignment’ is precluded by EU law. 86
Moreover, the concept of workers’ dignity was mentioned in the Court’s designation of the entitlement to paid annual leave from Article 31(2) of the EU Charter as a ‘fundamental right’ and not merely a ‘principle’ that would not directly create a subjective right. 87
Dignity-related ideas were also introduced in support of the recognition of effects of same-sex partnerships in the context of EU free movement rights. More specifically, Advocate General Jääskinen in Römer claimed that [A] situation in which a Member State does not allow any form of legally recognized union available to persons of the same sex may be regarded as practicing discrimination on the basis of sexual orientation, because it is possible to derive from the principle of equality, together with the duty to respect the human dignity of homosexuals, an obligation to recognize their right to conduct a stable relationship within a legally recognized commitment (emphasis added).
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Even though Advocate General Jääskinen did not go further than this since, in his view, the issue fell outside the sphere of activities of the Union law, the same argument was picked up by Advocate General Wathelet in a recent Opinion in Coman. Advocate General Wathelet immediately noticed that the issue in question is a delicate matter for, although it relates to marriage as a legal institution, in the specific limited context of freedom of movement of citizens of the European Union, the definition of the concept of ‘spouse’ to be given will necessarily affect not only the very identity of the men and women concerned, and therefore their dignity, but also the personal and social concept that citizens of the Union have of marriage, which may vary from one person to another and from one Member State to another (emphasis added).
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The Advocate General eventually proposed the Court to adopt a wide interpretation of the term ‘spouse’ that would facilitate the free movement of EU citizens, 90 which the Court in essence followed. 91 Albeit here the CJEU stopped short of recognizing an EU-wide right to same-sex marriage, the acknowledgment of the dignity background, noticeable especially in the Advocate General’s Opinion, confirms the centrality of human dignity for this question. Similar rationale was adopted by the US Supreme Court in recognizing that the constitutional right to marriage is guaranteed to same-sex couples. 92
Now, the point that is hard to demonstrate with an absolute certainty concerns the centrality of dignity arguments for the substantive outcomes reached by the Court in cases where the scope of EU human rights was extended, like in P. v. S. or in cases involving asylum seekers’ rights: What precisely was the role of dignity references in judicial reasoning? Were they a necessary premise or merely a cosmetic addition?
One response would be that dignity argument was only secondary to the classic human rights arguments that ultimately carried the day. 93 If so, the question is then why introduce human dignity reference at all if it had no influence on the outcome? A contrary response would be that dignity swayed the point in favour of a particular human rights finding or placed ‘a thumb on the scale’ in favour of that outcome. If so, then this would be very hard to prove from a methodological standpoint: one would need to devise a counterfactual and speculate whether the available human rights arguments on their own, absent dignity, would do the same job.
The impression is that adding dignity arguments is indicative of something. Like other vague and indeterminate general principles of law: since there is hardly an argument that trumps it altogether, drop dignity and otherwise ‘reinforced’ reasoning loses some of its strength. 94 I doubt that high courts, including the CJEU, in contentious cases introduce such a powerful concept in a l’art pour l’art fashion, for its own sake. So, I believe that it is more likely than not (albeit far from indisputably clear) that in most situations human dignity features as an indispensable building block in the judicial reasoning, especially when the boundaries of the established human rights doctrines are being pushed forward. Of course, relying only on dignity would be insufficient. It needs to work in synergy with other established human rights arguments. 95 Perhaps it is a sign of novel issues appearing in constitutional adjudication: of ever-sophisticated human rights violations that do not fit in classic human rights doctrines. Or in a popular movie character’s words: ‘Desperate times, desperate measures’? For the purposes of this article – to note and describe dignity’s institutional uses by the CJEU – I believe it is unnecessary to grapple with all these conceptual, methodological or normative issues, since otherwise it would exceed my present intentions. But, likewise, these remarks are due as an indicator of a possible direction of further, more nuanced discussions of the CJEU’s dignity jurisprudence, where it will be attempted to derive ought-conclusions from these is-observations.
6. Dignity in a jurisdictional ‘tug-of-war’
Dignity as a legal concept has an important functional (structural) role in the context of the EU multilevel federalism. 96 Being an important constitutional principle in most of the EU Member States, 97 human dignity has the potential to serve as a strong check on the expansion of EU law into national legal systems and on the supremacy of the former over the latter, and consequently on the extension of the CJEU’s authority (through, for instance, bold interpretations of the concept of dignity that extend the reach of EU rights, as elaborated in the previous section) at the expense of national courts’ authority.
Recently constitutional courts in Member States indeed started invoking human dignity in this manner. In 2015, the German Federal Constitutional Court (GFCC), building upon its previous decisions in which it asserted the authority to control compliance of EU acts with the German Basic Law in the so-called ultra vires and constitutional identity reviews, 98 confirmed that human dignity ‘forms part of the inalienable [German] constitutional identity’. 99 This essentially meant that the GFCC will strike down any EU act violating dignity (that is ‘disapply’ it) in Germany. 100
Expressly following the German court’s lead, in 2016 the Hungarian Constitutional Court invoked human dignity as one of the grounds for justifying the Hungarian government’s refusal to comply with the EU’s refugee relocation scheme. 101 The Hungarian court sees dignity as underpinning, explicitly or implicitly, all three types of constitutional review of EU law (fundamental rights-sovereignty-identity) it performs. 102 Since most other high courts in the Member States traditionally follow the GFCC’s doctrines regulating the relationship between the EU and national laws, 103 more similar judgments can be expected in the future.
These two judgments (German and Hungarian) indicate a trend of high national courts using ‘dignity-as-defence’ against the European law, where human dignity serves as a negative value that keeps the process of EU integration in check. 104 A potential risk implicit in this function of dignity is that it can be employed not only for benevolent liberal-democratic ends but can likewise be placed in the service of authoritarian and illiberal politics. 105 At the same time, in these situations dignity functions as a justification for judicial defiance to the EU law’s influence in their respective national jurisdictions, that is as a legitimating device (‘dignity-as-legitimation’) for the high courts’ defensive position adopted therein.
On the other hand, to respond to these dignity-informed jurisdictional attacks launched by the Member States’ high courts, the CJEU’s dignity jurisprudence becomes essential in justifying that EU law satisfactorily conforms to human dignity requirements. There are already suggestions that the Court will be well equipped to deflect these challenges: the leading example is still the CJEU’s landmark judgment in Omega where the Court essentially deferred to national value judgments in a politically sensitive area of the constitutional protection of human dignity.
106
As the Advocate General in her Opinion in Omega explained In so far as respect for human dignity is mentioned by the Member State in order to demonstrate the particular threat, this undoubtedly forms one of the fundamental interests of any society committed to protecting and respecting fundamental rights. (…) Methodologically speaking, it should be noted that the finding that a fundamental interest of society has been affected is determined in the light of national value judgments. There is no question here of any general opinion in the Member States (emphasis added).
107
So, coupled with a prudent approach of the CJEU, human dignity more generally serves as a powerful judicial tool that additionally supports the supremacy of EU law and its effective and uniform application in the Member States. This function of dignity (‘dignity-as-legitimation’) seems to be the inevitable continuation of the efforts to legitimize (initially based on fundamental rights) EU law in Member States, in situations where it conflicts with national constitutional standards of human rights protection. 108 The original pushback against the Court’s doctrine came from the high national courts, which attempted to safeguard human rights under their respective constitutions and draw limits to the supremacy of EU law. In this sense, soon after adopting rights-vocabulary, integration development made it necessary for the Court to adopt dignity-vocabulary in an attempt to further legitimize EU law. 109 This was especially prominent in the cases of particularly vulnerable individuals whose dignity is, as mentioned above, almost as a rule endangered, 110 where the CJEU has unquestionably embraced dignity-conformed interpretation of law.
This ‘dignity-as-legitimation’ role can be viewed as a ‘meta-role’ invoked to safeguard institutional and political legitimacy of the courts more generally. Similarly, Carozza views the reliance on the concept of dignity in adjudication as an essential ‘institutional legitimation technique’. 111 Therefore, in judgments in which the CJEU goes against the democratically-legitimated national governments (or the EU political institutions in which those governments sit or which in general have greater democratic input from the national electorates), judicial reliance on human dignity can arguably safeguard the Court’s authority and institutional capital and shield it from the accusations of counter-majoritarian activism.
7. Dignity of institutions
The last characteristic use of dignity-vocabulary by the CJEU that merits brief mention appears in the disputes between the EU civil servants and the EU institutions. In a large number of cases,
112
some of which precede the first mention of dignity in human rights context,
113
the Court (that is, the General Court and the Civil Service Tribunal) recognized ‘dignity of EU institutions’. For instance, it was held that Observance of [the] duty of loyalty is required not only in the performance of specific tasks entrusted to an official but extends to the whole relationship between the official and the institution and, by virtue of that duty, the official must, in general, refrain from conduct detrimental to the dignity and respect due to the institution and its authorities (emphasis added).
114
In this line of case law, dignity is also used in the context of the protection of dignity of civil servants against psychological harassment at their workplace in EU institutions. 115
The conception of institutional dignity somewhat resembles Jeremy Waldron’s distinction between philosophical meaning of dignity and its social and legal meanings.
116
For Waldron, dignity denotes basic reputation, status or social standing of individuals or groups (here I would add – institutions, too). Similarly, in these cases the role of dignity is in protecting the EU’s institutional status and interests.
117
Having that for its aim, this conception of dignity can be used to restrict human rights (‘dignity-as-constraint’), such as the freedom of expression of EU servants and officials.
118
Illustratively, since certain statements are likely seriously to undermine the image and the dignity of the European institutions, the publication of the text at issue would be liable seriously to prejudice the legitimate interests of the Union; therefore, an official’s right to freedom of expression can be restricted if it undermine[s] the dignity of all those persons who hold positions in the hierarchy of the European institutions and hence undermine[s] the institutions themselves.
119
This peculiar use of the concept of dignity seems important since the EU is a novel legal order and polity with developed bureaucratic apparatus that has interests independent from its constituent states (and their citizens), what might speak of the Union’s aspiration to eventually transform itself into a state-like entity.
3. Conclusions
The review of the CJEU’s dignity jurisprudence outlined in this article makes it possible, I believe, to argue that the Court of Justice takes human dignity seriously. Perhaps it would be too ambitious to claim that this resulted from a deliberate, purposeful behaviour of the judges at the Court who were aware of the ever-increasing importance of the concept of dignity in constitutional adjudication. Nevertheless, from the state of jurisprudence it indeed appears that there are (at least some) champions of dignity sitting in the Luxembourg’s benches who are mindful of the concept’s implications and knowledgeable in using it. A plethora of examples from the Court’s rapidly developing dignity case law across many different substantive areas of law further proves this point.
True, there still may be some concerns that the Court is failing to fully embrace its role of a human rights court. 120 But equally, the unequivocal endorsement of human dignity in its threefold incarnations – as a right, value, and principle – by the Court’s Advocates General may serve as a harbinger of the future development of EU dignity jurisprudence. This will be particularly important in the event of more jurisdictional challenges coming from the high (constitutional and supreme) national courts that traditionally provoke the Court to continue improving its human rights record.
The article likewise sheds light on the similarities and differences between the institutional uses of dignity as a legal concept by the CJEU on the one hand, and the ECtHR and national courts on the other, of whose dignity jurisprudence we currently know much more. There is a number of dignity’s functional roles in the CJEU’s case law that resemble the concept’s classic roles found in human rights doctrines of other constitutional adjudicators, what I termed throughout the paper ‘dignity-as-something’: ‘constraint’ on other human rights, ‘measure’ for assessing incommensurable rights or values, ‘weight’ added to one side in the conflict of rights, ‘symbol’ of fundamental values and political aspirations, ‘legitimation’ of judicial authority or entire legal system, and so on. All these functions of dignity are a testimony to the concept’s paramount constitutional importance in the EU, a status it shares in almost all European states and the Council of Europe alike. In addition, this would seemingly confirm that the function of dignity as a legal concept in Europe is to a large extent independent of any differences in the institutional contexts of respective legal orders.
However, there are still some notable doctrinal differences in dignity’s institutional uses, especially in the EU human rights jurisprudence. The major differences, in my view, stem from the pedigree of the central judicial institutions. In many EU Member States, constitutional and other high courts place their own citizens in the focus of human rights protection. 121 Similarly, the ECtHR places at the centre of its operation European citizens as the bearers of rights and freedoms codified in the ECHR. 122 What about the CJEU? Things are much more complex here. At the moment, the Court’s dignity jurisprudence is arguably somewhat less developed than the ECtHR’s or national constitutional courts’ jurisprudence. However, the Court of Justice increasingly develops its human rights record, in line with the Union’s commitment to ‘place the European citizen at the heart of its activities’. At the same time, the Court has a significantly more difficult task than its counterpart European constitutional adjudicators in balancing human rights with the EU economic interests, Member States’ security interests, demands of the EU political integration, autonomy of the EU legal system, its own authority and institutional interests, and so on. And this, to an extent, is reflected in the CJEU’s dignity case law. Likewise, these structural constraints and the Union’s ideological background might influence the substantive meaning of the EU’s concept of dignity that reflects more individualist, liberty-driven than communitarian, equality-driven values.
So, it becomes obvious that dignity in the EU legal system shows some unique functional roles. These roles seem to depend on the EU’s specific institutional context and complex relationship between the CJEU and high national courts. They are quite unlike any comparable institutional uses of the same concept in other comparable jurisdictions: for instance, ‘dignity-as-defence’ of the Member States’ laws against the supremacy of EU law, ‘dignity-as-legitimation’ of the EU law’s supremacy, or ‘dignity-as-institutional-interest’ of the Court of Justice vis-à-vis EU political authorities or of the EU as a novel political entity itself. More generally, these peculiarities may be read as a further indication that the EU as an entity and its legal order with the Court of Justice at its centre are ‘entirely different animals’. Different but, importantly, still equally committed to the idea of (human) dignity.
Footnotes
Author note
Assistant Lecturer and PhD candidate at the University of Zagreb, Faculty of Law. Currently serves as the Executive Editor of the Croatian Yearbook of European Law and Policy. Email:
Graduated law from the Faculty of Law, University of Mostar (Bosnia and Herzegovina) in 2013, and European studies from the Faculty of Political Science, University of Zagreb (Croatia) in 2015. In 2014, carried out a research stay at the University of Zurich, Department of Political Science (Switzerland). Spent the academic year 2018/2019 as a Hugo Grotius Fellow at the University of Michigan Law School (USA) and received his LLM degree.
Main research interests include European law, constitutional law, jurisprudence and judicial politics.
Acknowledgments
The author is grateful to Professor Christopher McCrudden for discussions that informed the ideas expressed in this article. The author also thanks Dejan Durić for his valuable help with language editing that contributed to the structure of the text.
