Beyond the Rule of Law: Normative Foundations of the CJEU's Ordo-Ethical EU Legal Order

In its case-law, the CJEU often employs a legitimizing discourse known as value constitutionalism, extending beyond the operational aspects of concepts like the rule of law. This discourse involves the construction of a European constitutional identity and a value constitutionalist legal order, akin to an ordo-ethical order. Rooted in the notion of communities united by shared ethical values, the CJEU’s value constitutionalist reasoning is underpinned by often overlooked normative premises that ought to be taken seriously. By questioning these premises and engaging in ideology critique, this article challenges the Court's reasoning, particularly in light of the EU's transnational nature and commitment to pluralism. Doubts arise regarding the compatibility of a centrally determined value order or constitutional identity with the EU's claim to pluralism, especially when privileging specific actors such as Member States or the Court itself in this value discourse. This approach risks narrowing the space of reason and pluralistic divergence by deeming certain questions as pre-political. Moreover, when understanding the EU as transnational, the Court's reliance on nation-state-centric conceptions of constitutionalism raises concerns about justifying the EU legal order on national terms. This critique of the CJEU’s value jurisprudence is meant to highlight the power of certain concepts and ideological assumptions, which directly influence the development of EU law through the CJEU.