Firstly because the Community Insitutions often try to present its work as value free, and merely technical or pragmatic. joseph weiler notes that, for instance, the idea of the single market was presented in the 1992 White Paper as an ideologically neutral program. Besides, one has only to think of the technocratic and techinical image secured by the Commission.

Secondly because trying to explore values of EU law is a way not to content us with the realist, instrumentalist, or so to say microeconomics approach which tends to dominate the social sciences nowdays. Appart from the self interest of the actors, there must be another thing which ispire EU law.

First of all, I'd like to show that law is not a value free instrument, and thus deserve an ideological survey apart from a ' realist ' one which only seeks interests (part 1). Then I will try to find out which values and principle are at work within the EU law (party 2). Finally, I'll try to interpret these values in tems of ideology and to unveil tensions within the EU law ethics.

So, basically, this presentation argues that there is a strong ideological dimension within the EU law, even though its doctrine is not fully coherent.

I Law is not a value free instrument

A - What is a value ?

1 - a principle of justification

That is to say a fundamental guideline which is used as a basis of reasoning or actions. A value is something which can be referred to when a justification is needed. In that line, value and law seem already close to each other since they are both expected to justify actions.

2 - a non utilitarian principle

Value is opposed to interest. Values involve not simply putting forward something desired, but also involve an altruistic dimension. Of course a value can have an utilitarian dimension. For instance there is an interest in peace : the possibility of free trade. But peace is also related to a conception of humanity which involves much more than the possibility of trade or any other interest. It ctually involve values like dignity, fraternity among mankind, a conception of love and so on. All these dimensions are non utilitarian in the sense that they are not related to any self-interest, but imply something perceived as being 'higher' and finally altruistic.

3 - a conception of the Good

From what we have said, it follows that a value is something worthwhile in itself. But to be worthwhile in itself ' is exactly the specific nature of the Good. Thus a value is nothing but a specific conception of the Good, a specific content given to the idea of the Good. Conceptions of the good change over time and space, andtherefore legislation as well.

4 - an unprovable principle

There can not be any demonstration of values, because trying to justify a value implies to try to link this specific value to a superior principle upon which it would be based. But this superior principle is precisely another value. All you can do with a set of values is to try to reduce their number by finding out which ones are sources of the others.

5 - Conclusion : a value is not a technical but a moral and a political matter.

Its legitimacy lies in the individual and democracy.

A value cannot be a technical matter set up by some " specialists ". It implies a choice, an unjustifiable judgement, the setting up of a hierarchy of principles. What makes a value a value, is finally the judgement or the will of the people who believe in it. This conception, which holds that nothing can objectively justify a value, implies that value is not a technical matter. Therefore the two olny modern sources of value legitimacy are the individual and democracy :

- the individual because nobody has more legitimacy to tell a given individual what the true values are, than the individual himself.

- democracy because nothing has more legitimacy to decide which values should be legally promoted in a given society, than a kind of general agreement or compromise between individuals - and that is democracy.

B - Law is essentially about values

This is our thesis. To underpin it we have to show that law, likewise values, is neither a mere technical nor a pure interest matter.

1 - law is technical only because it is a bridge between values and reality

Law is very often technical : lots of distinctions, lots of details, lots of difficult cases. But the technical aspect of law is not essential to its nature. Law is always an application of a certain set of values. Law is technical and complex only because it has to deal with reality, which is highly complex, and not because it would be a non ideological matter. It is generally difficult or even impossible to report a real case to a single principle or value. Reality is contradictory.

Thus, Law is a kind of bridge between values and reality and is technical because it has to link an abstract unity to an complex reality.

Values -- Law -- Reality

2- law change over time an space with values

Saying that peoples have different values over time and space is exactly the same as saying that their conception of what is good changes. Furthermore this often ends in changes in legislation. For instance the decreasing number of legal systems that use the death sentence mirrors the fact that values changed over time. The individual has become a value in itself against which the society has less and less power. This change in legislation just reflects the emergence of a liberal conception of the good, that is to say a new value.

3 - law is about politics and values

Furthermore " For governments law is the instrument par excellence, the way to transform a political discourse into a political action " quote from Wallace (p.243). Whenever a government wants to modify some features of the society, he tries to change law. This is another way to say that law is a bridge between values and reality, in so far as politics is at least partly about values.

4 - That is why law needs a democratic legitimacy

We have seen that a value has no legitimacy in a modern political order other than a democratic agreement. From this it follows that the law-making process must be democratic.

It is only because of its embodying values, that law needs a democratic legitimacy. If law was merely a technical issue, a committee of specialists would enjoy a full legitimacy to generate it. The common sense that law must be generated by political and democratic bodies, merely show, in my view, that everybody intuitively feels that law deals with values. Otherwise why should we be offended by an undemocratic law making process which gives power to specialists ?

5 - How can a value influence the legislative process ?

We now have to justify the accuracy of our ideological enquiry, in front of the powerful realist approach which use self interest as the main explanatory principle.

Of course, values have no power in themselves to inspire legislation if they are not supported by men. They must mobilise peolpe, either interest groups or political and judicial elites which more likely to promote values for themselves.

- Values and interests groups.

We should not hold a naive point of view about what law is made of. Of course law is partly the result of conflicts between economic interests. One has only to look at the importance of economic lobbies within the legislative process of the European Union.

But it is generally quite difficult to conceptually separate values from interests. Even if the actors themselves do not promote a value for itself, it might be the case that what they try to legally secure implies an indirect promotion of certain value.

The best example is of course the promotion of the single market by economic intresest group automatically promote a crtain ideology and political culture.

In this line, one can say that values appear from the struggle of interset. Convesly, trough the political and judicial elites, values mobilise for themselves ans lead the way.

- Values and political and judicial élites

Since the European integration has been largely élite-driven, it is not unthinkable that ideas and values have had a great influence upon the whole integration process precisely through these élites. Value discourse is part of the explanation of their mobilisation..

In this line, I should stress the importance of the Commission and the European Court of Justice which enjoy enough institutional autonomy to be able to promote values sometimes through an interest free but procedure.

C - The European Union law is even more so

1 -EU law is historically linked to the integration process which is non value free

The EU law is product of the integration process which is highly political and non-value free. One has just to look back at all the debates on the integration process since 1945, to realise that they involved not only economic considerations but also different conceptions of nation, citizenship, culture, social life, and so on. All these elements are values.

2 - EU legal texts are largely teleological

Much more than national law, the Treaties are wholly steeped in a teleological approach. That basically means that they lay down objectives and goals. There is only a limited number of really operative provisions. Even the administrative acts largely adopt the same teleological approach. Directives best exemplify this, since they lay down an objective and they leave it to the individual Members States to decide how best to achieve it.

3 -certain European institutions have a self-interest in promoting certain values

Certain European institution have an institutional interest in promoting certain values in the sense that their promotion would increase the scope of their institutional power. For instance :

- the European parliament has an interest in promoting democracy since it would increase the scope of its competence.

- the European Commission has an interest in promoting integration (which is a value as we shall see afterwards) for the same reason.

- the European court of justice has a similar interest in promoting integration or even human rights because it was a way to secure a safer position vis a vis national courts which care a great deal about human rights.

II Searching the ethics of the European law

After showing that law cannot be a value free instrument, the next step is to find out which values are at work within the EU law.

A - Where can one find these values in the EU Law ?

1 - in the treaties

The opening articles of the Treaties - articles 2-6 ECSC, 1-9 EEC, 1-4 EURATOM, and the preambles enunciate the objectives and describe the spirit in which they should be interpreted. The court refers to these elements in order to interpret a specific provision in their light.

2 - in the practice and in the interpretative method of the ECJ

We have just seen that the Treaties are strongly theological. A very small number of provision are directly applicable. Therefore, the treaties implicitly gives a great deal of interpretative power to the ECJ. One can understand now to what extent the interpretative method of the ECJ is crucial. This institution has proven over time to have adopted the so called functional method.

It basically consists of taking into consideration the spirit of the Treaties, more than their literal content (literal method). This method has three main features : it promotes the objective of the law more than the law itself ; it prevents unacceptable results ; it fills the gaps of the legislation and enable the court to deal with new cases. As a result :

" Community rules are much more determined by what the Treaties intend to achieve rather than by what is actually written in them ".

Hence, the court in interpreting is left with its conscience. That is why in order to discover the values at work, one has to carefully look at the practice of the court.

3 - in the legal traditions of Members States

The ECJ has derived general principles of EU law partly from the legal systems of the Members States. For instance the principles of proportionality and legitimate expectation are both derived from the German law. Besides the ECJ recognise that the protection of the human rights was inspired by the constitutional traditions common to all Member States.

B - The four basic values at work within the EU law and the ECJ

As judge Pescator noticed, the guidelines values provided by the Treaties can be spit into four basic themes, which are to be encountered constantly in the practice of the court.

1 - Equality

In Community law great care is taken to guaranty equality or to prevent discrimination. Discrimination is unequal treatment in situations which are identical or comparable. The treaties prohibit discrimination on several occasions :

- EEC article 119 offers a basis for the prohibition of discrimination between sexes.

- EEC article 7 prohibits discrimination on ground of nationality, likewise many regulations.

The rule of equality has been said by the court to be " one of the fundamental principle of the Community law " (Frilli case June 1972). It has many implications. Non-discrimination between :

- sexes

- producers

- consumers

- Members States

- goods of different members states

- or their nationals

However one should note that not all different treatment constitutes discrimination. " Difference in treatment cannot be regarded as constituting discrimination which is prohibited unless it appears arbitrary ". There is no discrimination when a difference in treatment is objectively justified.

2 - Economic freedom

The treaty refers to the free circulation of goods, persons, capital, services. Underlying is the respect of the private initiative. Economic freedom therefore is mainly related to the establishment of a common market. This set of freedoms constitute the " foundations of the Community ".

3 - Solidarity between Members States<

On the relationship between member States the court has accepted a principle of solidarity, meaning that it is incumbent on the States to take account of the repercussions which their acts may have on other Members States. The principle of solidarity has been said by the court to be " at the basis of the whole of the community system ". Therefore, this is a highly integrationist principle.

4 - Unity (integration)

Refers to the unity of the market, law and politics. Judge Pescatore remarks that all those three objectives are encompassed by the idea of unity, because they all aspire towards the idea of unity of Western European Nation. This fourth value has therefore a specific status, and deserve a specific study.

C - Specificity of the fourth value : integration

1 - integration originally covers a set of values (Joseph Weiler)

Integration is a political choice based upon the promotion of a certain set of values. One cannot demonstrate that the 'ever closer union' is worthier than a nationalistic organisation of Europe, without referring to any other value (like peace for example). Integration is a value in the sense that it can only be justified by others values.

Joseph Weiler in his article Fin-de-Sciecle Europe, try to finds out the original values embodied by the integration process. He concludes that the Community was to be the instrument of three originals values or ideals :

- peace

Perhaps the most explicit ideal straight after the Second World War. Weiler notes that this ideal was also a call for forgiveness, one of the main value of Christian love. The influence of Christianism is obvious in so far as the Founding Fathers were all deeply Christian (Adenauer, De Gasperi, Schuman and Monnet)

- prosperity

Prosperity is the second value for which the Community was to be instrumental. An important objection could be raised here : in what sense can one argue that prosperity is a value, since it seems to be a pure utilitarian principle. Joseph Weiler argue that in the context or the aftermath of war, prosperity was linked to the value of dignity - both personal and collective. The move from poverty to prosperity was a value, because it meant recovering dignity.

- supranationalism

The third ideal is that of supranationalism, as a counter to nationalism. The Community ideal of supranationality is related to the privileging of the individual over the nationality principal.

2 - integration is now used as a value in itself, thanks to the institutional

interest of the Commission and the European court of Justice

Even if integration actually covers a set of different values, it is more an more used as a value in itself. It has become a sufficient principle of justification, especially within the European institutions like the Commission and the ECJ, partly because these institutions have an institutional interest in the promotion of such a value. This interest is merely an increase in the scope of their competencies. (cf. G.Garret in The politics of legal integration in the EU)

This realist analysis is not incompatible with our own approach, since, as we said, values often need to be objectively supported by interests groups. We should only focus on the result : the self institutional interest of the ECJ and the commission promote de facto a political value, namely integration.

3 - EU law promotes integration

There are two ways of approaching the integrationist character of the EU law. The first is to note that law is in itself an integrationist factor, whatever its content is. The other one is to focus on the specific features of the EU law and to underline that integrationist values are at work in its very content. One can refer to :

- legal integration : - supremacy of community law

- principle of direct effect (if a legal provision is said to be directly effective, it means that it grants individuals rights which must be upheld by the national courts of all members states)

- economic integration : - free movement of goods, workers

- freedom of establishment and freedom to provide services

- competition policy

D - Human Rights and Fundamental Freedoms

Until the Maastrchit Treaty, the EU treaties contained no general provisions for the protection of Human Rights. Germany was especially worried about that, since its constitution has strict rules on human rights and could have been challenged by the supremacy of EU law.

With the Stauder v Ulm Case (1969) the court recognised basic human rights as part of Community Law. The Court said that " the fundamental human rights are enshrined in the general principles of Community law and protected by the court ". In this line, one can say the EU legally protects all the values included in the idea of Human Rights, which are mainly related to the freedom of the individual over the society itself.

III Interpreting the ethics of the EU law

So far, we have shown what values are at work within the EU law. We should now try to define the core doctrine which they are related to.

A - This ethics is the lowest ideological common denominator between the major political forces in Europe.

1 - an image of neutrality ...

Joseph Weiler in his article The transformation of Europe argues that the political culture of the Community has always tried to present its work as value free, and merely technical or pragmatic. As I mentioned by way of introduction, the idea of the single market was presented in the White Paper as an ideologically neutral program.

2 - ... which hides an ideological consensus

In fact, this image of neutrality is wrong. What seems to be ideological neutrality is merely an ideological agreement, an ideological consensus between the major European political forces. This consensus is secured thanks to :

- The functioning of the Council, which gathers representatives of national governments from both right and left, and bound them to find a consensus. Therefore, Weiler argues, the ideology of the EU law is a kind of lowest common ideological denominator among all the major political forces of Europe.

- The Commission which plays a key role in this 'ideological neutralisation', since it is perceived as being a technical body, impartial, and therefore transcendent over the normal debates on the left-right spectrum. It has fostered the belief that an agenda could be set for the COmmunity without to face the normal and traditional political cleavages.

B - The main ideological root of the EU law : liberalism

I will now try to show that most principles of the EU law we have just pointed out, can be related to one of the four core value of liberalism. According to John Gray, liberalism can roughly be defined by four core features :

1 - Individualism

This doctrine holds that the power of a given society over its individual members should have a clear limit. This limit is precisely defined by the Human Rights. More generally, this doctrine tends to protect the individual against all kind of social pressure. In this line the individual becomes a value in itself.

Individualism explains two EU law principles :

- protection of the human rights

- economic freedom which protects private initiative

2 - Egalitarianism

All human being posses the same moral standing. There is no natural superiority or inferiority.

Egalitarianism explains one EU law principls : equality and non discrimination

3 - Meliorism

Meliorism is a historical philosophy of progress. Nearly all liberal take the view that progress is open-ended. In my opinion, that is exactly the idea one can find in the EU treaty, behind two principles :

- integration : we have seen that behind integration ly the values of peace, prosperity and supranationalism. In my opinion, all these values can be referred to the liberal principle of meliorism which holds that an ever better world is possible.

- the promotion of the 'open market economy' can be referred to the same principle of meliorism, in so far as from a liberal point of view a market economy is the best way to promote social welfare and the best economic outcome.

4 - Universalism

This fourth feature of liberalism is simply the belief that the three previous values are universally true. Merely liberalism des not see itself as an ideology. There is no EU law directy elated to this principle. However, the effect universalism, is the consensus we talked about which hides the very fact that even liberalism is an ideology. The ideological neutrality that the Community tries to display is a very feature of liberalism.

C - Lack of ideological coherence

What are the remaining values of the EU law, which have not been justified by any liberal principle : solidarity an subsidiarity. Let us show that they hide an ideological conflict within the EU law.

1 - unity v diversity

The European law actively promotes integration. However it has several principles which prevent full integration.

The principle of subsidiarity provides a good example of the tensions within the EU law, tensions between unity and preservation of difference. It is not that easy to interpret this principle. In a strong line, subsidiarity equates to nationalism, a way to refuse to abandon national sovereignty. In a weaker line, it is related to decentralisation, regionalism. Anyway, this is a counter principle opposed to integration.

Another striking example of the integrationist and desintegrationist tensions within the EU law is the legislation related to culture. The article 128 of the TEU tries to find a compromise, as show the first sentence :

" The Community shall contribute to the flowering of the cultures of the members states, while respecting their national and regional diversity and a t the same time bringing the common cultural heritage to the fore ".

Emphasis is put on both cultural diversity and homogeneity.

2 - individualism v solidarity

In my view there is also a tension between on the one hand the individualism embodied by the economic liberalism, and on the other hand the will to promote economic and social cohesion within the EU which implies the value of solidarity. The EU law has clearly opted for a market society which cannot justify any solidarity principle.

But at the same time, the Title XIV of the EC treaty refers to the principle of economic and social cohesion which is supposed to " reduce disparities between the levels of development of the various regions, including rural areas " (art 130.a). Besides, We should note the interesting wording of Article 130.b : " The implementation of the internal market shall take into account the objectives set out in Article 130.a ". This is a way to acknowledge that the market society promoted by the EU law is actually incapable to fulfil by its own means the ideal of cohesion and solidarity embodied in the EU law. In this line, The European Regional Development Fund is intended to redress the main regional imbalances of the Community.

Finally there is a tension between two ideals :

- a market society dominated by individualism, competition, the ideology of efficiency.

- a communautarian society at a European level in which the winners help those who lag behind.

Conclusion

By way of conclusion I'd say again that law as a general concept is definitely not a value free instrument, and the EU law has more reasons not to be so. Despite the fact that the European institutions try to present the integration process as ideologically neutral, we cannot ignore that EU law has deep ideological roots, notably liberal .

However EU law has not secured a doctrinal coherence, since it displays conflicts of values, among which is to be found a deep contradiction between individualism and solidarity.

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