🍻 Selber Bier Brauen

Geopolitical threats to data protection have received little attention compared to those in areas such as trade, energy, and artificial intelligence. They can arise in particular from armed conflicts and cyberattacks, and may involve disrupting the processing of personal data needed to deliver vital services, destroying public records and databases, and misusing data to facilitate human rights abuses.

This situation is driven by the worsening geopolitical landscape around the world. According to a study by the Peace Research Institute Oslo, 2024 saw the highest number of armed conflicts since 1946, while the World Justice Project Rule of Law Index has noted that in 2025 the rule of law weakened globally for the eighth consecutive year. The risks to data protection are particularly evident in Europe, which has the most complex body of data protection law and also faces serious geopolitical threats, including, for example, ongoing cyberattacks by Russia, the risk of kinetic attacks by that country, and threats against Greenland by the US.

Data protection law protects the processing of data related to identifiable individuals, and the economic, social, and legal importance of data processing means that data protection law must be resilient against geopolitical threats. In the EU, this requires action by the EU institutions and the data protection authorities (DPAs), in particular under the EU General Data Protection Regulation (GDPR), which is the foundational legislation for data protection in the EU and protects fundamental rights set out under the EU treaties. It is also important for politicians and policymakers to recognise that data protection resilience is a crucial aspect of making society and the economy more resilient.

Geopolitical threats to data processing

Emergency situations may result in breakdown of the rule of law upon which data protection law rests. The rule of law is based on factors such as accountability to publicly-promulgated laws, equal enforcement of the law, independent adjudication, and consistency with international human rights standards, as stated by the UN Secretary General. These factors are also required under leading international data protection and privacy instruments such as the GDPR, the African Union Convention on Cyber Security and Personal Data Protection, and the Modernised Council of Europe Convention 108+.

Without the rule of law, courts and DPAs cannot function, belligerents may disregard data protection standards, and individuals cannot exercise their rights. The risks to human rights of the misuse of large population databases throughout history have been amply documented, and can be seen in the judgment of the European Court of Human Rights in Case of Ukraine and The Netherlands v. Russia of July 2025, where the Court found that data collection and so-called “filtration” measures by the Russian armed forces in their invasion of Ukraine resulted in human rights abuses and erosion of the rule of law (see in particular paras. 1178-1182, 1340, and 1618). Such abuses may also arise because of hybrid warfare against critical infrastructure such as hospitals.

Military alliances and humanitarian organisations have increasingly adopted policies and frameworks to protect the personal data that they process. However, data protection risks in armed conflicts are not limited to data concerning the military or state security. Data processed by companies, hospitals, government departments, universities, and other civilian organisations may reveal information such as population density, the ethnicity, age, gender, and sexual orientation of individuals living there, and health conditions of inhabitants. Such databases may also contain crucial data necessary for the functioning of society. One can imagine belligerents misusing them to identify people of a certain ethnicity in order to carry out ethnic cleansing, to persecute those whom they suspect of sympathising with their opponents, or to bring the operation of vital governmental functions to a standstill.

Steps to strengthen resilience

The GDPR contains only a few provisions that could apply specifically in emergency situations, such as Article 45(5) that allows the European Commission to revoke adequacy decisions allowing personal data to flow freely to certain third countries in cases where adequate protection is no longer ensured, including through a breakdown in the rule of law. While the EU has recently taken steps to ensure the continued functioning of the Internal Market in times of crisis through adoption of the Internal Market Emergency and Resilience Act (IMERA), it applies without prejudice to the GDPR (see Article 42(1)). The EU Cyber Resilience Act, which becomes fully applicable in 2027, deals only with the security of hardware and software connected to networks, while the need for data protection resilience is broader than cybersecurity. Like the IMERA, the Cyber Resilience Act also applies without prejudice to the GDPR (Recital 32). Protection of data processing against geopolitical threats must thus be approached via data protection law, in particular the GDPR.

This requires the recognition of a duty to make data protection resilient against geopolitical threats. A duty of data protection resilience can be implied from the protective mandate of the law as expressed in obligations on data controllers under the GDPR (for example the obligation of data security under Article 5(1)(f)) and the duty of DPAs to monitor its application in order to protect fundamental rights and freedoms (Article 51(1)). This should result in controllers taking steps to provide appropriate protection against misuse of personal data by belligerents, and DPAs both supervising compliance with this duty and themselves taking actions such as those described below.

These actions would not impact the EU’s Common Foreign and Security Policy, which is excluded from the scope of the GDPR under Article 2(2)(b), and the Court of Justice of the EU has found anyway that the derogations under Article 2 are to be interpreted restrictively (see VQ v. Land Hessen, Case C-272/19, para. 68). Furthermore, the protection of fundamental rights is one of the legal bases on which the GDPR rests (see Recital 2), and the Court of Justice has stressed the need for a high level of fundamental rights protection under it (for example, in Data Protection Commissioner v. Facebook Ireland and Schrems, Case 311/18, para. 93). Chapter V GDPR mandates that data transferred from the EU be protected against threats when they are transferred to third countries, and it would be strange if the GDPR’s protective mandate did not also cover protection against external threats to data processed in the EU.

The main bodies that should take action include the Commission, the European Data Protection Supervisor (EDPS), an independent authority charged with supervising data protection compliance among the EU institutions, and the European Data Protection Board (EDPB), an independent body under EU law composed of the EDPS and the heads of the DPAs in the European Economic Area countries. The Commission has already begun work in some related areas such as the cybersecurity of hospitals and healthcare providers, which it could expand to cover geopolitical threats more broadly. Article 70 GDPR gives the EDPB broad powers to examine on its own initiative any question concerning application of the GDPR and to issue guidelines, recommendations, and best practices (Article 70(1)(e)), which should include ones dealing with protection against geopolitical threats. The DPAs should also raise public awareness about the need for resilient data processing, which is one of their tasks under the GDPR (see Article 57(1)(b).

The DPAs should explicitly require sensitive databases to be encrypted and render the data immediately unintelligible if unauthorised access by a belligerent is imminent, such as by building in mechanisms to destroy encryption keys securely so that the data can no longer be accessed (so-called crypto shredding). While encryption is not strictly required by the language of the GDPR, Article 32(1)(a) implies that such a duty exists (as noted by Bygrave, p. 71), which must be the case particularly in high-risk situations when data are threatened by kinetic or hybrid attacks.

Just as the military carries out war games to simulate conflict, train personnel in strategy and tactics, and predict future trends, so DPAs could engage in “data protection war games”. These could involve other organisations from the public and private sectors as well, and would simulate situations in which belligerents seek to seize or access data in EEA countries. This would allow the organisations involved to assess the risk of data misuse and develop strategies to deal with them. DPAs and European agencies have already taken part in similar exercises; for example, the EDPS has participated in simulation exercises involving data breaches (such as the PATRICIA III exercise dealing with data breach awareness in cybersecurity incident handling), and the European Union Agency for Cybersecurity (ENISA) organized the first such exercise that included DPA participation in 2024. These exercises could be expanded to cover cyber and kinetic attacks by belligerents as well. While measures such as these would only be a start in meeting these risks, they would begin to deal with an important area that has thus far been neglected, and would raise public awareness of the need for resilience in data processing.

Data protection resilience is a topic of international importance, as countries around the world are faced with threats similar to those faced by the EU. International organisations active in data protection such as the OECD and the Council of Europe should add protecting data against geopolitical threats, including in case of armed conflicts and hybrid attacks, to their agendas. This would fit with the current work being done by the OECD on Data Free Flow with Trust, and with the emphasis in the Modernised Council of Europe Convention 108+ on data security as set out in Article 7. The Global Privacy Assembly (GPA), a group of over 130 data protection and privacy authorities from around the world, should also take up the topic.

Lessons for EU law and data protection law

EU law is currently unprepared to protect data processing in case of a major crisis such as kinetic or cyber warfare, which poses grave risks for the EU’s social and economic structures, the rights of individuals, and the legal system. The EU institutions and DPAs seem not to have noticed the risks posed by potential access and misuse by an aggressor of data not related to defence and national security. The burden for dealing with data resilience rests on data protection law, particularly on the GDPR, but little action has been taken under it to achieve such protection. All this means that there is little public awareness of the issue.

Improving data protection resilience is also hindered by the EU’s current tendency to use the weakening of data protection law as a political bargaining chip. This can be seen in remarks criticising the GDPR made by former Italian President and European Central Bank President Mario Draghi, and in the Digital Omnibus proposal by the Commission containing changes to the GDPR that have been criticised as potentially reducing the level of protection it provides (see here, here, and here). Efforts to weaken the GDPR are shortsighted, as strengthening of data protection in light of geopolitical threats is necessary to ensure the continued functioning of society and the economy, thus making it something that should appeal even to those critical of data protection law. One can only hope that measures will be taken sooner rather than later to strengthen the law against growing geopolitical threats.

The post Strengthening Data Protection Resilience Against Geopolitical Threats appeared first on Verfassungsblog.

Can “vital interests” of the state serve as a legal criterion for a Migration Authority to strip the nationality of citizens with dual citizenship on security and organized crime grounds? For several years, Sweden has faced significant problems with gang-related organized crime, including multiple shootings involving minors. This problem, combined with security tensions across Europe and a much stricter migration policy in Sweden, has led to the latest legislative proposal to revoke citizenship, which threatens Sweden’s vital interests. But the legal standard of seriously damaging “Sweden’s vital interests” remains very broad and thus highly susceptible to misuse. Moreover, arguably, only criminal law – with all the constitutional safeguards it affords – should carry out such a sanction. Regardless of the general trend in Europe toward similar considerations and relatively lenient international case law, there are broader questions about the practical implications of revoking citizenship that warrant discussion. For example, it may be difficult or even impossible for an individual to rescind the “other” citizenship, depending on the dual (or multiple) nationality in question.

The Proposal

The new legislative proposal in Sweden (see SOU 2026:21 and the Government bill) would allow the revocation of citizenship from individuals with dual or multiple nationalities in certain circumstances. The law proposal focuses on individuals who obtained their nationality through fraud, threat, or deception, or those with dual nationality involved in very severe criminality. I focus here on the latter: the withdrawal of Swedish citizenship from dual- or multiple-nationality perpetrators. These crimes include terrorism, murder, high treason, espionage, as well as genocide and war crimes. The legislative proposal also suggests that serious crimes committed by, and in the context of, organized crime and gang criminality that seriously threaten Sweden’s vital interests could constitute grounds for revocation, with particular focus on gang leaders. This could be seen as part of Sweden’s broader move to combat the recent surge of organized crime and gang shootings and their spread to new forms of victimization.

According to Justice Minister Strömmer, a supporter of these proposals, “violent extremism, state actors acting in a hostile manner towards Sweden, as well as systemic and organized crime” are core problems for Sweden. The focus on citizenship follows a trend in many other European countries. Denmark, Norway, the Netherlands, Belgium, France, Austria, Germany, Finland, and the UK have already revoked citizenship in cases of dual nationality involving fraud in obtaining citizenship or serious criminality and security threats, such as terrorism. This European trend is often referred to as the securitization of citizenship and raises several fundamental questions about the revocation of citizenship and its implications. If revocation of citizenship in cases of dual or multiple nationality could be accepted in extreme cases, it arguably should be carried out within the framework of criminal law and the constitutional safeguards it affords, rather than through administrative procedure.

The proposed legislative revisions require an amendment to the Constitution. They would need to pass a vote in parliament with a simple majority, followed by a general election, and then a second Riksdag vote (the next general election is scheduled for September 13, 2026). Regardless of the election outcome, the proposed changes may become law, as the largest opposition party currently also supports the legislation. The law proposal is suggested to enter into force on 1 January 2027.

The legislative changes should not be seen in isolation but as part of a broader trend toward a “tough on crime” policy, a much stricter migration policy, and stricter rules for attaining Swedish citizenship. The legislative proposal also suggests revising the Swedish Citizenship Act (2001:82). These proposed changes are part of the broader narrative of strengthening the image of the state. For example, there is also a recent controversial law (not discussed in this blog post) that just passed (15 June 2026) to refuse or withdraw a residence permit in cases of serious misconduct, such as failing to follow laws, regulations, and decisions made by authorities, having large debts, or making a living in a dishonest way.

Vital Interests

Certain crimes, in certain contexts – in the legislative proposal, mostly gang violence and organized crime – are deemed so serious that they not only victimize individuals, businesses, etc., but damage or are directed against the country’s vital interests, as well. This includes security threats, as well as large-scale extortion and benefit fraud by organized crime. The current proposal does not define “vital interests,” leaving that to subsequent legislation. It supplies a guideline, referring to “systemhotande” – acts that constitute a serious threat to the national “system” or public order. From a legality perspective and strict construction of criminal law provisions, there may be several problems with the criterion of “vital interests” unless the law clarifies its meaning. According to the legislative proposal, it is necessary to not only include security here, but also crimes conducted by gang criminals who recruit minors to conduct shootings. In addition, the proposal suggests that, depending on the circumstances, extensive criminal attacks against authorities and even large-scale, systematic welfare crime can be covered by the term. There is currently no precise definition of organized crime in Swedish law. Therefore, there is an additional legislative proposal to include a definition of a criminal gang/organized crime in the Penal Code (Brottsbalken). While it is true that a state’s vital interests can shift over time, the very idea of “vital interests” is, as noted, vulnerable to overly broad interpretations and must be strictly construed and subjected to a proportionality assessment.

Citizenship Revocation Under ECHR and EU Law

According to international law, individuals who would become stateless cannot be stripped of their nationality, as stipulated in the 1954 Convention relating to the Status of Stateless Persons, the 1961 Convention on the Reduction of Statelessness, and the 1997 European Convention on Nationality. The Swedish law proposal does not aim to render anyone stateless. It applies only to persons who are also citizens of other countries. Nevertheless, revoking citizenship is obviously an extreme measure, even as a result of crimes that seriously harm a country’s “vital interests,” as the law decrees.

EU and ECHR case law offer little guidance on when someone poses a sufficient threat to security to justify the revocation of citizenship. In Wiener Landesregierung (Case C-118/20), the CJEU held that traffic offenses are not sufficiently serious to warrant revocation of citizenship and that such a measure would not be proportionate to the gravity of the offenses committed. More specifically, the CJEU stressed that the concepts of public policy and public security must be interpreted strictly, and that their scope cannot be determined unilaterally by Member States without being subject to review by EU institutions. In the Rottman case (Case C-135/08), the CJEU held that a Member State may “withdraw from a citizen of the Union the nationality of that State acquired by naturalization when that nationality was obtained by deception, on condition that the decision to withdraw observes the principle of proportionality.”

Moreover, in the context of the ECHR, in the El Aroud and Soughir case, the ECtHR held that the deprivation of citizenship from a perpetrator with dual citizenship convicted on terrorism-related charges fell within the authorities’ wide discretion and that the measures in question had been implemented in line with what is “necessary in a democratic society”. Likewise, in the Johansen case on the compatibility of citizenship revocation with Article 8 ECHR on private life, the ECtHR first examined whether the decision was taken in accordance with the law and not arbitrary, and secondly, whether it constituted an interference with private life under Article 8 ECHR. Johansen, who had dual citizenship and was born in Denmark, had left Denmark and joined ISIS. He had also lived in Tunisia for shorter periods prior to joining the terrorist organization. The ECHR examined whether the interference was proportionate and “democratic society”, necessary in a and concluded that it was. The ECHR does not, however, require states to use criminal law as the mechanism for revoking citizenship (K2 v. United Kingdom). Yet, a parallel track of having first a conviction and then an administrative decision can result in double punishment and a lack of proportionality.

Both the ECHR and EU law leave a wide margin of discretion to Member States.

Revocation As Punishment

As Gibney explains, modern denationalization relies mainly on administrative law, which has fewer legal safeguards than criminal law. In the securitization literature, the revocation of citizenship is understood as a form of securitization, in which individuals are treated as security threats, often in the context of the fight against terrorism. Maclin stresses that, in crimmigration scholarship, “denationalization extends the functionality of immigration law in advancing current penal and national security objectives through expulsion,” and that it operates without the same constitutional safeguards as in criminal law. Citizenship revocation is closely tied to migration law. As Gibney expresses it, the power to rule on citizenship is at “the apex of state power”. Shai Lavi has argued that, because citizenship revocation can be justified only in cases of dual or multiple citizenship, it can be justified only as punishment, not as an exclusion from a community. He emphasizes that revoking citizenship should only be justified by an egalitarian view of citizenship and not in cases where it targets minorities or is used in a racist way. Lavi argues that under certain circumstances, “revocation of citizenship can be justified in an egalitarian, self-governing, and deliberative democracy,” but only if subject to the stricter safeguards inherent in criminal law. To remind, ECHR went a different way: rather than a criminal sanction, revocation of citizenship can be deemed a separation between polity and offending subject, contingent on the subject not becoming stateless.

No one can be made stateless, and no actual proposal exists to make persons stateless by revoking citizenship. Still, most of the literature on the securitization of citizenship and the debate on counterterrorism law concerns the question of statelessness. Once that problem is eliminated from discourse (by restricting the doctrine of revocation only to multinationals), the question becomes: Is there an inalienable right to a specific citizenship, as opposed to the right to hold citizenship? In what extreme cases could this right be revoked for persons with multiple citizenships, thus not rendering anyone stateless but excluding them from a political community they have seriously offended? In Scandinavian history, outlawry was the severest penalty next to the death penalty that could be handed out. In contemporary Sweden, all citizens aged 18 and over are allowed to vote, including those who have committed a serious crime and been sentenced to prison. But not all other nationalities are democratic states, so revoking someone’s Swedish nationality may de facto exclude that person from a political community, even in cases of dual nationality. There are many broader questions that need to be answered here. For example, can the “other” citizenship always be rescinded by the individual, and if not, does it not create inequality in how the law is applied in practice? It is clear that the principle of proportionality is key here, so that the law respects family life (Article 8 ECHR) and that there are sufficient ties to the other country for any revocation.

It is, however, a type of law in force in the neighbouring Nordic countries (and not applicable if anyone would become stateless). In short, in Finland, revocation could be used in cases of citizenship fraud or serious crime such as high treason, spying, and terrorism. In Norway, revocation could be triggered in cases of citizenship fraud and in cases of severe harm to vital national interests. Finally, in Denmark, revocation could be actualized in cases of citizenship fraud and crimes against vital state interests, such as terrorism, high treason, and gang-related criminality.

Concluding Remarks

There are some valid points in the proposed law that address extremely severe criminality and security threats that could seriously harm the state’s vital interests. But there are also dangers, as outlined above, and these “details” could make the law unduly difficult in practice. While Sweden has a serious problem with mafia-like violent gang criminality that challenges the law’s monopoly on force and basic state structures, the criterion of serious harm to vital interests is very broad and vulnerable to misuse and will require serious attention in legislative drafting. While revocation of citizenship in extreme cases, where criminals abuse the trust and basic structures of the social contract, could be justified for people with dual or multiple nationality under certain circumstances, it should be the criminal court that decides on revocation as a punishment, in accordance with constitutional safeguards. The Migration Authority should then be responsible for investigating whether a person can actually be extradited in accordance with the principle of non-refoulement.

The post Sweden’s Vital Interests appeared first on Verfassungsblog.

C-769/22 Commission v Hungary marks the remarkable ascent of the European society discourse. What until very recently was a mere political slogan and academic postulate has now been presented as hard law (see paras 495 and 554 of the judgment). Over the past years, the notion of European society has spread quickly from the pages of academic journals to the offices of the European Commission’s Legal Service at Rue de la Loi in Brussels and now, too, to the Kirchberg plateau. The transfer of ideas from an academic to an institutional context is a common process but also a deeply political one. It matters what ideas are adopted, whose ideas are heard, and to what ends they are deployed.

The academic project of European society contains a variety of approaches, many of which adopt a realist perspective to the study of EU law. The institutional adaptation of the European society discourse, however, draws on the work of several idealist scholars who reconceptualise integration through law as a process of society-construction. In this vision, the text of Article 2 TEU postulates the existence of a European society as a collective singular to which the foundational values in Article 2 TEU are attributed and from which their authority derives. It presents the Court of Justice as speaking in the name of a European society, thereby transforming the social fabric in Europe, and even reconstituting it in a more emancipatory vein.

A closer look, however, reveals that there is little transformative or emancipatory potential in the Court’s Article 2 TEU case law or its invocation of European society. Beneath the rhetoric of transformation, the institutional adaptation of the society discourse is above all conservative in nature, seeking to protect the authority of the EU and its legal order against detracting Member States. The hope that the Court will deploy Article 2 TEU to pursue a transformative agenda is unfounded (as is the fear that the Article 2 TEU case law is too radical). Rather, the notion of European society is instrumental in legitimising the EU’s legal-political status quo.

European Society Between the Real and the Ideal

The rise of the European society discourse is the latest fashion in EU legal academia. The concept is now regularly found in journal articles, books and workshops (it has even become the subject of a Verfassungblog symposium, I hasten to add). But that does not mean European society denotes a uniform or shared meaning. In fact, under the umbrella of European society, one finds completely different practices to the study of EU law. Using a broad brush, one can distinguish between a more realist approach (found in the work of Loïc Azoulai and others) and an idealist one (initiated by Armin von Bogdandy). Both talk about European society, but each means a very different thing.

The realist take on European society is informed by law in context approach as well as the recent proliferation of empirical legal studies in EU law. It studies the law not (just) as a system of norms, but (also) as a social phenomenon and practice. This approach takes as its starting point that the EU and its law are insufficiently attuned to (or even disconnected from) the social. The appeal to society forms an attempt to bring EU law’s reality deficit into focus and draw out its normative consequences. From this perspective, EU law lacks the concepts and tools to accurately capture lived experiences or translate social conflicts into a legal form. Hence, realists study colonial legacies, marginalised groups, and relations of domination and exploitation in contemporary Europe. While these studies might attempt to reconnect EU law and society, they are just as likely to point to the limits of the law as an instrument of social change.

The idealists, in contrast, seek to doctrinally reconstruct EU law in light of Article 2 TEU. Its starting point is the notion of society as referenced in the text of Article 2 TEU and the value case law of the Court of Justice. The focus is therefore on studying legal text and developing novel doctrinal arguments. For example, its proponents conceptualise the common values as the EU’s constitutional core and reconstruct primary law as a pyramid with Article 2 TEU at the top. From this perspective, the EU’s common values offer a language in which social conflicts should be articulated (thereby assuming that social reality can and must conform to the language of EU law). This approach exhibits great trust in the common values as tools of transformative change, which are presented as an instrument to solve the EU’s democratic shortcomings, create a more substantial EU citizenship, and enhance solidarity with migrants and refugees.

While the realists focus on the social, the idealists prioritise Article 2 TEU. From an institutional perspective, this difference matters. The realist approach is contextual, critical, and, hence, not very practical for institutional purposes. The idealist approach, in contrast, can be easily operationalised, providing arguments that allow institutional actors to mobilise the common values. But it is precisely the proximity to power that undermines the transformative potential of the idealists’ agenda.

Academic Allies and the Legitimation of EU Law

Not all ideas are created equally. This is the key insight of the archival and socio-historical research on the historical formation of EU law. This body of work maps how institutional actors mobilised academic allies to legitimise their constitutional vision of EU law and establish this vision as the common-sense understanding of the Treaties. As such, these studies convincingly show how legal knowledge is not neutral, but inevitably part of discursive struggles about the direction and future of the integration process. In these struggles, not only the quality of the idea matters, but also the social resources that can be mobilised to support one’s argument.

Exactly how the notion of European society circulated among academic and institutional circles is for future historians and sociologist to discover, but there is no doubt that Armin von Bogdandy’s The Emergence of European Society through Public Law plays a key role. This book forms the most elaborate effort to reconstruct EU law in light of the concept of European society to date. Moreover, as a Director of the Max Planck Institute in Heidelberg, von Bogdandy has both the network and the financial means to promote his society frame as the new ‘common sense’ of the EU legal discipline (see e.g. here, here and here). This might help to explain why his arguments are picked up by the lawyers in the Commission, Advocate General Ćapeta, and the plenary of the Court of Justice. These institutions seem quite receptive to the idea that a European society is constituted by the very laws that those who work in these institutions uphold and create.

The attractiveness of the society frame is, no doubt, also that it continues a long tradition of grand narratives that appeal to the inherent ideals of the Treaties to justify the authority of EU law. For Judge Pierre Pescatore, the Treaties contained the inherent telos of a common market and a political union; for Commission President Walter Hallstein, the Treaties, at their core, formed a system that would regulate inter-State relations on the European continent through law rather than force; for the editors of the Integration Through Law volumes, the Treaties possessed an inner ethos that expressed a new conception of postnational citizenship. Each of these influential accounts of European legal integration explains the authority of the law in a circular and self-referential manner: the authority of EU law derives from the market, system, or postnational community as constituted by EU law.

Such self-referential narratives have a legitimating function. They ground the “authority of the law on law itself” and anchor “the legitimacy of the EU in the authority of the law”, as Mendes accurately put it. The European society frame performs the same function. It derives the authority of EU law from an abstract and idealised notion of European society, while simultaneously positing that this society is constituted through Article 2 TEU and the Court’s value-based case law. This discourse thereby provides a self-sustaining justification for the authority of EU law that obfuscates the question how EU law is democratically authorised. It is precisely what makes this notion so attractive: a society has no will and does not speak with a single voice, not even metaphorically (in contrast to a people, nation, or State). From this perspective, the democracy of European society inevitable operates via “compromise hammered out within its institutions.”

The ideal of European society thus coincides with the EU and its institutional machinery in Brussels and Luxembourg. It offers a new vocabulary to describe the EU’s legal-institutional framework as it already is. Von Bogdandy is explicit in this regard, stating that his account presumes that “legal structures express social structures”. This means that if the EU treaties say there is a society, such a society exists; or if the Treaties state that the EU is democratic, it follows that the EU is, in fact, a democracy. If one takes this line of reasoning to its logical conclusion even the trilogue process appears as a “significant democratic innovation”.

The starting premise therefore deprives von Bogdandy’s approach to European society of any transformative potential. This is why a realist approach to European society rejects this premise. Instead, it draws out the contrast between a highly idealistic values discourse (legal structures) and the far more gloomy lived reality of political marginalisation, economic inequality, and societal alienation on the European continent (social structures). The great risk of speculating about European society in the abstract is that it all too easily obscures the actual social circumstances which EU law produces.

Conservative, Not Transformative

The paradox of the idealist approach to European society is that it is inherently conservative. While it proposes novel concepts and creative reinterpretations, these serve highly traditional ends, namely, to protect the authority of EU law from Member States that challenge the EU. The mobilisation of Article 2 TEU is primarily motivated by the goal to intervene in backsliding Member States (but, as we saw in the Maltese citizenship case, is not limited to those States). It would be a mistake to consider such an expansion of EU powers as transformative. The Court of Justice’s foundational case law has always been geared towards enabling the EU’s exercise of public authority, rather than constraining the EU institutions. If anything, the Court’s Article 2 TEU case law confirms the persistence of this enabling-logic, which I have described elsewhere as “a structural bias towards the very structure of EU legal order”.

Illustrative is the argument that the Court’s President Lenaerts and Gutiérrez-Fons made in response to my claim, namely, that the EU’s constitution is not an “empty shell” because the values “permeate throughout the constitutional structure of the EU”. In their understanding, the foundational values are expressed through the EU’s legal framework, rather than forming a normative benchmark against which that framework is assessed. The way in which the common values are conceptualised as legal norms thus risks precluding their application vis-à-vis acts of the EU institutions or the laws they adopt.

Of course, the outcome in C-769/22 Commission v Hungary is commendable: defending the rights of the LGBTQI community against discriminatory and degrading treatment by the Hungarian State. But this is a single judgment, against a government that already was the “pariah” of the EU family, and in which sixteen Member State governments endorsed the enforcement of the EU’s foundational values. In these circumstances, it is far too optimistic to contemplate “a new constitutional horizon”. This is not the beginning of a novel type of constitutional jurisprudence that will render the EU and its Member States more responsive to democratic demands, solidary between rich and poor, or respectful of the human dignity of minorities and migrants. Rather we are witnessing the mobilisation of new discursive means (European society) to defend very traditional ends (the constitutional orthodoxy).

The post The Politics of European Society appeared first on Verfassungsblog.