1.1 Point of Departure

In European Union (EU) law, we can find more and more references in different legal documents to non-legal concepts such as ethics and morality.Footnote 1 This phenomenon, observed at both the nationalFootnote 2 as well as the EU level,Footnote 3 has been described as an “ethicalization” of law.Footnote 4 The term of ethicalization can refer to opening clauses (references to non-legal concepts), ethics codices, as well as ethics committees,Footnote 5 thus including standards, procedures and institutions in law, which themselves are not part of the legal system.Footnote 6

So far, at EU level, literature on EU law and ethics has covered selected sectoral topics such as research and patenting of human embryonic stem cells,Footnote 7 biotechnology,Footnote 8 science at large,Footnote 9 or world politics.Footnote 10 Some authors have focussed on the role of the European Commission (EC)’s keyFootnote 11 ethics advisory board, the European Group on Ethics in Science and New Technologies (EGE),Footnote 12 while others have also concentrated on the references of the Charter of Fundamental Rights of the EU (CFRFootnote 13) to moral norms.Footnote 14 However, we can still observe a gap, as we lack a comprehensive analysis of which approach EU lawFootnote 15 in general takes with regard to ethics and morality.Footnote 16

In enacting legal provision, the EU is bound to the ‘rule of law’ (Art 2 TEUFootnote 17). According to the EC’s recent Communication,Footnote 18 one (formalFootnote 19) element of the rule of law is legal certainty,Footnote 20 which, according to the Court of Justice of the EU (CJEUFootnote 21), requires amongst other things that “legislation must be clear and predictable for those who are subject to it”.Footnote 22

This applies to both, whether law refers to legal concepts, or to non-legal concepts. References from one discipline (law) to another (see Fig. 1.1) can create certain challenges, which we already know from the interface of law and science in general,Footnote 23 as well as from EU law using concepts, which require the import of medical knowledge into the legal sphere.Footnote 24 Finally, this is also true if EU law refers to ethics, thus importing concepts of practical philosophy (i.e. normative ethical theories)Footnote 25 into law, a phenomenon, which we can increasingly observe since the 1990s.Footnote 26

Fig. 1.1
figure 1

References of law to non-legal concepts

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In 2009, Williams has identified a “lack of ideal constitution for the EU”, as “values have not been taken seriously”Footnote 27; hence, he addressed the question “whether an alternative philosophy, as a first step towards constructing a more just institution, can be achieved in the context of the EU and its current law”.Footnote 28 He has also argued that although it might not be satisfactory, however, “some form of philosophy does exist”.Footnote 29 Such a ‘philosophy of EU law’ can either be identified from within,Footnote 30 or at the interface of law and philosophy, that is to say where EU law refers to non-legal concepts of ethics and morality (i.e. partly from the outside).Footnote 31 Thus, the focus of this book is on the ‘import’ of non-legal concepts of ‘ethics’ and ‘morality’Footnote 32 into EU law.

In the following, this term of EU law comprises different ‘layers’ (in the sense of the hierarchy of EU law), which comprises EU primary law, EU secondary law, EU tertiary law, as well as, in between primary and secondary law, international agreements concluded by the EUFootnote 33 (i.e. a vertical perspectiveFootnote 34).

From a horizontal perspective,Footnote 35 in terms of different ‘areas’ of EU law, this book will mainly take into account the legislative output of the EU institutions (i.e. EU secondary and tertiary law). Due to the importance of the EU’s legal system, this book will also include the CJEU’s approach when dealing with ethics and morality. Beyond the legislative output, this book will also cover the question of ethics in law making concerning the sensitive issue of lobbying, as well as the ethical approach of the EGE in its opinions.

As EU secondary law also comprises EU directives (referring to ethics and morality), which require implementation into national law, also the different approaches of selected MS in implementing these EU directives into national law will be covered.Footnote 36

These different (vertical) layers and (horizontal) areas of EU law covered in this book are displayed below in Fig. 1.2.

Fig. 1.2
figure 2

Layers and areas of EU law covered (The vertical axis refers to the hierarchy of law, the horizontal axis to the separation of powers. The orientation of these arrows refers to the import of these non-legal concepts of ethics and morality into EU law; however, in the sense of references of EU law to them, the arrows could also be depicted in the opposite direction)

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1.2 Objective and Limitations

Hence, this book is based on comprehensive research, identifying those references of EU law to the non-legal concepts of ethics and morality. While the legal order of EU law can be seen as autonomous,Footnote 37 it shall nevertheless respect principles of justiceFootnote 38 (i.e. ‘relative autonomy’).Footnote 39

As this book will also look at this interface of law and philosophy from a legal lens,Footnote 40 one important issue is the question, whether the references of legal texts to non-legal concepts are sufficiently determined regarding their content, so that the subject of law has enough information about the legal situation. In addition, looking at the different layers or areas of EU law, it will also be important to answer the question, of whether there is a common underlying pattern, i.e. if the references to ethics can be attributed to one (or more) particular normative theory(ies).

Based on where (in which particular sectoral fields, e.g. health, technology, finance) and to which extent we can find references to ethics and morality in EU legal documents, this book will strive to answer the following questions:

  • First, are those references to ethics and morality determined in their content, or are they used without providing sufficient clarification (i.e. objective 1)?

  • Second, when it comes to the implementation of relevant EU directives in national law, how have selected MS dealt with ethics and morality in the way they implemented these directives (i.e. objective 2)?

  • Third, which role does the CJEU play in shaping the notion of ethics and morality in its case-law? Can we observe a phenomenon, which has been called a ‘gouvernement des juges’,Footnote 41 or does the CJEU rather take a more reluctant approach, a so-called ‘judicial self-restraint’Footnote 42 (i.e. objective 3)?Footnote 43

  • Finally, can we identify a certain common horizontal (or rather a specificFootnote 44) pattern in referring to these terms of ethics and morality, and can we thus identify an ethical spiritFootnote 45 based on an analysis of these legal texts, or do we have to ascertain a gap, which has to be filled by other means (i.e. objective 4)?

  • Questions to be answered are the following:

    • In EU law’s references to ethics, can we identify any philosophical theory at all (question No 1)?

    • If yes, does this comprise one or more philosophical theories (question No 2)?

    • If yes, should this be understood as an unconditional reference to one or more philosophical theories, or only as pointing towards a certain idea (question No 3)?Footnote 46

The relationship of these objectives to the different layers and areas of EU law covered in this book (see above Fig. 1.2) is visualized above in Fig. 1.3.

Fig. 1.3
figure 3

Objectives

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It is clearly no objective of this book to create an inventory of all the examples of EU law, which reference ethics and/or morality. Based on a comprehensive empirical research (database research in EUR-Lex and other databases), the objective of this book is rather to answer the above-mentioned questions, especially if there is a coherent ethical spirit which, thus, can be identified in EU law.

In order to guarantee a manageable scope and length of this book, certain limitations have to be emphasized.

  • While the book will take a look at the law enacted by the EUFootnote 47 institutions in the sense of EU secondary law (by the European Parliament [EP] as well as the Council of Ministers) and EU tertiary law (by the EC), it will remain in this legislative field from the perspective of Montesquieu’sFootnote 48 ‘separation of powers’.Footnote 49 While the judiciary (i.e. the CJEU) will briefly be covered in terms of relevant case-law, the administrative branch in the sense of all the policy decisions of the EU institutions (mainly the EC) will be clearly excluded from this book, as the amount of decisions and documents to be analysed would require one or several distinct book(s).

    • Hence, the objective of this book is clearly not to cover any situation where EU law and/or policy have an ethical dimension or ethical implications, irrespective of whether there is a relevant EU document for this particular situation.

    • The way in which these documents are applied by the competent authorities (at EU or at national level) is also beyond the scope of this book.

  • This book will not analyse a possible clash of ethics and law, which could lead to a discussion, as it took place between law and justice. According to the Radbruch formula, for the sake of legal certainty, in principle “positive law, secured by legislation and power, takes precedence even when its content is unjust and fails to benefit the people, unless the conflict between statute and justice reaches such an intolerable degree that the statute, as ‘flawed law’, must yield to justice”.Footnote 50 Radbruch’s formula was an attempt to challenge intolerable unjust law (for example, of the Nazi regime) by the principle of justice. Radbruch’s approach has to be seen against the background of legal positivism, whereby law and morality have been strictly separated.Footnote 51 However, as the objective of this paper is to depict and analyse the status quo of ethics and morality in EU law, this challenging task can be left aside.

  • In the legislative field, the book will focus on the documents that explicitly refer to ethics and morality, implicit references in other legal documents cannot be taken into account.Footnote 52

  • One could also assess the ethical quality of any provision of EU law, even if it does not entail a direct (or even indirect) reference to ethics and morality. Such an analysis is also clearly beyond the scope of this book.

  • When analysing EU legal documents referring to ethics and morality, this book will focus on these legal documents, which are still in force.

  • While it could be interesting to address the question at which stage (right from the beginning in the Commission’s proposal or later on by Parliament or Council) of the law-making process references to ethics and morality have been inserted, it is beyond the scope of this book to address this question. Hence, only the finally adopted legal document will be taken into account.Footnote 53

  • This book will also not examine how values come to matter in the EU institutions, as, for instance, it was analysed with regard to the EC.Footnote 54

  • Sometimes, EU law (e.g. Directive 2001/20/EC,Footnote 55 now Regulation 536/2014Footnote 56 on clinical trials) foresees the establishment of ethics committees in the various MS. The work of these committees might have been initiated due to EU law, but is clearly beyond the objective of this book.

  • While this book will cover international agreements concluded by the EU, it will not cover international law as such.Footnote 57

  • When this book also takes a philosophical lens, this only covers ethics as one part of practical philosophy, while theoretical philosophy is not covered. Within ethics, this book focuses on normative theories, thus not on meta-ethics and applied ethics (see Fig. 1.4).

    Fig. 1.4
    figure 4

    Overview philosophy [The author would like to thank Bruno Niederbacher (University of Innsbruck | Department of Christian Philosophy) for this (non-exhaustive) overview]

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1.3 Methodology

Ethics and moralityFootnote 58 have not explicitly accompanied the EU integration process right from the beginning.Footnote 59 Instead, we can rather identify a process of increasing references of EU law to ethics and morality since the 1990s.Footnote 60 Hence, there is no pre-determined and explicitly stated philosophical theory of ethics in the EU, which could be applied to specific topics in a deductive way. Thus, in terms of methodological approach, the above-mentioned research question (especially determination of content and possible identification of an ethical spirit of EU law) requires an indicative approach, evaluating the current situation of EU law in relation to ethics and morality, as it stands today.

Therefore, a comprehensive inductive database research, using primarily the open access EUR-Lex database, as well as Curia for the CJEU’s case-law, was conducted. The language for this search was mainly English (as the most important factual working language of the EU institutions). However, also the German and French language versions were taken into account.Footnote 61

  • The first question, the determination of content (objective 1) of EU law (primary, secondary, tertiary and agreements), will be analysed by using the following inductively developed categories:

    1. 1.

      References only as an argument against interference from the EU

    2. 2.

      References only as a supportive argument for a certain legal solution

    3. 3.

      References in order to create a parallel ethical assessment (besides the legal one)

    4. 4.

      Determination via ethics committees, at EU or at national level

    5. 5.

      Determination via codes of conduct, at EU or at national level

    6. 6.

      Determination via references to other (international) documents

    7. 7.

      Determination in document itself (some hints with regard to the content or understanding of ethics)

    8. 8.

      No determination at all.

  • As lobbying (i.e. influencing decision-making processes) is a topic, which is often perceived by many citizens in a very critical way, the book will analyse, if there are both explicit, as well as implicit references to ethical or moral behaviour concerning both actors and targets of lobbying.

  • In terms of implementation of EU directives (objective 2), the book will analyse, how those EU directives referring to ethics and morality have been dealt with by selected MS. Have those countries been more or less ambitious, and can we observe a similar approach in these countries?

  • Concerning the case-law of the CJEU (objective 3), the book will address the question, if we can observe a ‘gouvernement des juges’, or rather a judicial self-restraint when dealing with ethics and morality in some sensitive fields (e.g. patentability of human life).

  • Finally, for the possible identification of a common pattern (objective 4), the book will put together the different findings of the above-mentioned layers and areas. In addition, it will analyse the opinions of the EGE, which has played an “influential role”Footnote 62 in EU law making in some sensitive fields, and whose roleFootnote 63 and appointment of membersFootnote 64 has been criticized in the past. Therefore, it will be essential to see if the group substantiates its ethical reasoning on certain normative ethical theories.Footnote 65

By putting all these findings together, this inductive research will try to identify a general proposition, which can be derived from these specific examples. These findings will be analysed through two different lenses. First, these findings will allow to answer the question, if there is an underlying common normative ethical approach, and, if yes, if this can be referred to one (single or at least predominant) ethical normative theory (i.e. the philosophical lens). Second, these findings will also be placed in the legal context of the EU’s common values, human rights (CFR), human dignity, and the relationship of EU law and religion (i.e. the legal lens).

1.4 Structure

After a definition of some key terms (Sect. 1.5), the book will start with a brief introduction of the three main theories of normative ethics, i.e. deontology, consequentialism, and virtue ethics (Chap. 2). The first theory rather focuses on an act, the second on its consequences, and the last one putting an emphasis on the agent itself.Footnote 66 This will provide the necessary foundations for later (Chap. 4) putting the research findings into a philosophical (i.e. ethical) context.

Taking a closer look at the different layers of EU law, this book will first focus on EU primary law (i.e. the constitutional perspective, Sect. 3.1), international agreements (i.e. the external perspective, Sect. 3.2), and EU secondary law (i.e. the internal law perspective, Sect. 3.3). The latter part will start with the question, whether in regard to the legislative and the judiciary branch of power (CJEU case-law) we can observe a ‘gouvernement des juges’, or rather a judicial self-restraint (Sect. 3.3.1). This internal law perspective will then cover the law-making process in the sense of ethics in lobbying (Sect. 3.3.2), before finally turning to EU secondary (and tertiary) law (Sect. 3.3.3). As EU secondary law also comprises EU directives (referring to ethics and morality) which have to be implemented into national law, also the different implementation approaches of selected MS will be covered (Sect. 3.3.4).

Both the questions regarding the determination of content of EU law referring to ethics and morality (objective 1), as well as the related question as to how selected MS have implemented the relevant directives into national law (objective 2) will mainly be answered in Chap. 3. The same is true for the CJEU’s approach in this field (objective 3; Sect. 3.3.1).

Based on these findings, the question concerning the ethical spirit of EU law (objective 4) will be addressed in Chap. 4 as follows.

Section 4.1 will put all the findings (of Chap. 3) together and will relate them to the three main philosophical theories covered in Chap. 2 (i.e. deontology, consequentialism, and virtue ethics). As mentioned above, this includes the question of whether we can identify any normative ethical theory at all, and, if yes, if we can identify one or more theories (i.e. the philosophical lens). In the latter situation, the question will be if one of them is the predominant one.

As displayed above in Fig. 1.5, Sects. 4.1 and 4.2 will answer the question if at all, and to which extent we can identify an ethical spirit of EU law from the lens of practical philosophy.Footnote 67

Fig. 1.5
figure 5

Philosophical lens

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As can also be seen from Fig. 1.5, references of EU law to ethics and morality address the same question as in case of references to science and medicine. That is to say, the question whether these notions shall be imported in an unaltered way (i.e. absolute approach), or whether they shall be imported by placing them in the legal context (i.e. relative approach).Footnote 68 This already takes us to the next chapter, the legal lens (see Fig. 1.6).

Fig. 1.6
figure 6

Legal lens

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Finally, these findings will also be analysed from a legal lens. Chapter 5 will include the EU’s values enshrined in Art 2 TEU, which have a high normative orientation function.Footnote 69 As emphasized by Potacs, these values have to be taken into account in the interpretation of EU law.Footnote 70 This part on the EU’s valuesFootnote 71 will also include literature on the notion of the EU as a ‘community of values’ (Wertegemeinschaft).Footnote 72 Furthermore, this chapter will cover human rights, with a special emphasis on the CFR. Within the different values mentioned in Art 2 TEU,Footnote 73 a special emphasis will be put on human dignity,Footnote 74 the corner stoneFootnote 75 of both the CFR and the values.

In search for the ethical spirit of EU law, also the preamblesFootnote 76 of both the CFR as well as of the TEU will be taken into account,Footnote 77 as they include valuable contributions to the topic at hand.Footnote 78 This will also lead us to the heated debates in the European Convention about an invocatio dei, respectively a reference to (one or more) religion(s) in the process of drafting the CFR,Footnote 79 as well as the influence of religion on the notion of human dignity.Footnote 80

Given the fact that so far, the European integration process is new and unique, one question will be whether the ethical spirit of the EU can be identified as an accomplished status quo, or whether it is a nascent one. Thus, a short look should also be taken at the Schuman declaration, which initiated this integration process, as well as at today’s vertical separation of powers, as enshrined in articles 2–6 TFEU.Footnote 81

All of this together will help us to answer the question about the ethical spirit of EU law. In other words, as it was described elsewhere,Footnote 82 the discovery of a common approach which can serve as a basis of understanding to the underlying philosophy of EU law. This shall help contribute to a better understanding not only of those legal documents referring to ethics and morality, but also for the rest of them.

1.5 Terminology

The word ‘ethics’ is partly used in the sense of ‘justified morality’ (the philosophers’ view), partly in the sense of ‘common morality’ or ‘social morality’ (in a sociological sense). However, we should not only focus on individual moral beliefs and at the same time disregard norms embodied in institutions, in our case the EU.Footnote 83

In EU law, the terms of ‘ethics’ and ‘morality’ are often used in a way that leaves it open whether they are to be understood as synonymous. As we have seen above in Fig. 1.4, ‘ethics’ is a branch of practical philosophy which deals with what is morally right or wrong, whereas ‘morality’, on the other hand, is described by Beauchamp and Childress in the following wayFootnote 84:

In its most familiar sense, the word morality […] refers to norms about right and wrong human conduct that are so widely shared that they form a stable social compact. As a social institution, morality encompasses many standards of conduct, including moral principles, rules, ideals, rights, and virtues. We learn about morality as we grow up, and we learn to distinguish the part of morality that holds for everyone from moral norms that bind only members of specific communities or special groups […].

Hence, in a very simplified way, one can say that ethics is the theoretical/philosophical approach to morality, where the latter refers to certain rules (“mores”) and formalFootnote 85 codes of conduct in a specific (cultural, territorial and temporal) social system.Footnote 86 At least, this is the standard terminology in philosophy.

This is also true for the notion of ‘public morality’Footnote 87 in EU law; while morality changes over the years (evolutionary character), it is different from country to country (“in its territory”) and is based on certain values (“in accordance with its own scale of values”).Footnote 88

This collective notion of ‘public morality’ can be opposed to the notion of ‘ethos’, which has more of an individual connotation. The latter describes the special nature and attitude of a person, his convictions, customs and behaviours, which are rooted in an innate natural disposition (including the natural disposition to reason), but which can also be developed and fortified by habit, practice and adaptation according to origin.Footnote 89 Nowadays, the term of ethos is often used to refer to a certain professional group.Footnote 90 However, the notion of ‘ethos’ refers not only to humans, but is also used in the context of organisations.Footnote 91

Besides ‘ethics’, ‘morality’ and ‘ethos’, we also need to shed some light on the notions of ‘principles’, ‘values’ and ‘virtues’. This book is based on a legal, not on a philosophicalFootnote 92 understanding of the notion of ‘principles’,Footnote 93 whereas “principles are legal norms laying down essential elements of a legal order”.Footnote 94 Principles “refer to general propositions from which rules might derive [and] relate to certain standards that might be based in law or practice, which contribute to forming a framework for decision-making and action”.Footnote 95

‘Values’,Footnote 96 according to one view,Footnote 97 can be explained as follows, by distinguishing them from principlesFootnote 98:

principles possess a deontological character ‘whereas values are teleological’. […] A sense of obligation attaches to principles whereas a sense of purpose is emitted by values, which ‘are to be understood as intersubjectively shared preferences.’ […] Values are therefore those ends deemed worth pursuing. Politically, they describe those qualities and states of condition that are considered desirable as shaping action or political programmes.

It is important to emphasise that values are more abstract than principles, as the former lack specific limitations, in particular with regard to specific legal consequences and addressees.Footnote 99

Besides ‘principles’ and ‘values’, ‘virtues’Footnote 100 have been described as “[t]raits of character that are judged to be morally admirable or valuable”.Footnote 101 In the words of MacIntyre, virtue is understood “as a disposition or sentiment which will produce in us obedience to certain rules”.Footnote 102 Virtues are usually only spoken of when they are actually lived and not just wanted, a combination of competence and performance, so to speak.Footnote 103 “Good character is not an accident. It requires discipline, reflection and responsibility.”Footnote 104

The basic virtues necessary for a virtuous life are called the ‘cardinal virtues’, which are temperance (temperantia), courage (fortitudo), practical wisdom (prudentia) and justice (iustitia).Footnote 105 As for all theories of ethics it has to be emphasized that those cardinal virtues can be understood in a secular (Platon), or in a religious way (Ambrose).Footnote 106 Although virtues can be relative to culture, as Kollar pointed out: “Some virtues are part of any listing of virtues: justice, prudence, generosity, courage, temperance, magnanimity, gentleness, magnificence, wisdom. Yet there is no agreed-upon list of virtues.”Footnote 107

The last term to be defined is ‘humanism’, which can be described as “any philosophical perspective that assigns preeminent value to human beings, their experiences, their interests, and their rights”.Footnote 108 Humanism is a central notion for the EU, although a reference to humanism in an earlier version,Footnote 109 in the end, has not made it into the preamble of the CFR.

Having shed some light on these terms, let us now turn to the three main theories of normative ethics.