Content

Kris Grimonprez

The European Union and Education for Democratic Citizenship

Legal foundations for EU learning at school

1. Edition 2020, ISBN print: 978-3-8487-6074-9, ISBN online: 978-3-7489-0203-4, https://doi.org/10.5771/9783748902034

Series: Luxemburger Juristische Studien - Luxembourg Legal Studies, vol. 20

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Bibliographic information
The European Union and Education for Democratic Citizenship Kris Grimonprez Nomos Luxemburger Juristische Studien – Luxembourg Legal Studies 20 Legal foundations for EU learning at school Luxemburger Juristische Studien – Luxembourg Legal Studies edited by Faculty of Law, Economics and Finance University of Luxembourg Volume 20 Kris Grimonprez The European Union and Education for Democratic Citizenship Legal foundations for EU learning at school Nomos The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available on the Internet at http://dnb.d-nb.de ISBN 978-3-8487-6074-9 (Print) 978-3-7489-0203-4 (ePDF) British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN 978-3-8487-6074-9 (Print) 978-3-7489-0203-4 (ePDF) Library of Congress Cataloging-in-Publication Data Grimonprez, Kris The European Union and Education for Democratic Citizenship Legal foundations for EU learning at school Kris Grimonprez 807 pp. Includes bibliographic references and index. ISBN 978-3-8487-6074-9 (Print) 978-3-7489-0203-4 (ePDF) Published by Nomos Verlagsgesellschaft, Baden-Baden, Germany 2020. Printed and bound in Germany. This publication is licensed under the Creative Commons Attribution-NonCommercial- NoDerivatives 4.0 International License (CC BY-NC-ND). Usage and distribution for commercial purposes as well as any distribution of modified material requires written permission. 1st Edition 2020 © 2020 The Author. No responsibility for loss caused to any individual or organization acting on or refraining from action as a result of the material in this publication can be accepted by Nomos or the author. To Linde, Sander, Niels, Elke, Lise, Thomas, Zoë, Floor, Lotte and Wout To all children in the EU May they be educated in the spirit of the values of Article 2 TEU1 1 Article 2 Treaty on European Union: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’. Preface The book that you have in your hands is the fruit of an exceptional path. Much more than a rigorous, careful and detailed revision of the PhD thesis that Kris Grimonprez defended brilliantly at the University of Luxembourg in December 2018, this book emerged from the author’s commitment not only to legal academic research but also to social and political change. The unique combination at the genesis of this work, far from detracting from the intellectual value of the endeavour, has led the author to engage in an in-depth scientific analysis of a legal problem – the scattered dimensions of the right to education, of citizenship education and its relationship to EU citizenship – with a view to inform the normative development of the legal systems that shape and influence our collective life. The book has a dual audience. On the one hand, it is directed at the community of EU lawyers, in whose regard the author convincingly makes three main arguments. First, the absence of an EU dimension in education for democratic citizenship is the hidden face of the EU’s democratic and civic deficit. Put in stronger terms, the author reminds us that without linking EU citizenship to citizenship education, attempts to remedy the widening gap between EU integration and citizens may easily continue to fail. Secondly, the general principles of law with which EU lawyers work and the status of EU citizenship have educational implications and there are enough legal normative grounds for establishing an EU dimension in education for democratic citizenship. Thirdly, the EU has competence to support education for democratic citizenship and its EU dimension. On the other hand, this book also addresses all professionals involved in citizenship education and educational policy. In their regard, Kris Grimonprez argues that law has a value for citizenship education and that EU law has necessary consequences for the content of citizenship education. Given the significance of the EU’s impact on our societies and on citizens’ rights, curricula of both primary and secondary education and teachers’ training can no longer ignore the importance of EU learning, and, particularly, of the European dimension of education for democratic citizenship. While the reader is unlikely to be both an EU lawyer and an education scholar or practitioner, they should bear in mind the dual character of this work that makes the book unique. The critical reader should also be aware from the outset that the author does not shy away from the difficulties that her topic 7 raises: that both citizenship education and EU citizenship are contentious matters is one of the reasons why this book should trigger a wider discussion on education for democratic citizenship in the European Union. The book brings together a wealth of material on international law instruments and on EU law (as the impressive and lengthy list of primary sources can testify), analyzing both the interactions between them and their implications for EU law. Core issues of EU law are discussed in depth, always with the view to advance the argument on the legal foundations for EU learning at school. Thus, as the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education of 2010 and the right to education defined in international instruments (the 1966 International Covenant on Economic, Social and Cultural Rights and the 1989 Convention on the Rights of the Child) are two of the “anchor points” for citizenship education of EU citizens, the reader will find an accurate mapping of the different modes of reception of exogenic legal norms in the EU legal order. Similarly, because one of the aims of the book is to identify the substance of citizenship education of EU citizens, the reader is provided with an analysis of EU citizenship rights, of the democratic participation rights enshrined in the Title II of the Treaty on European Union and of other EU rights and obligations of both mobile and static citizens, all in light of the standards of education for democratic citizenship (identified by the author on the basis of the Charter of the Council of Europe). The book goes one step further: it identifies the learning content of citizenship education of EU citizens, showing how it can be included in mainstream education. For this purpose, the reader is presented with a possible teaching method, accompanied by a beautiful transformation of the case law of the Court of Justice of the European Union into stories that pupils could be taught in order to develop their critical thinking, to later exercise their rights and responsibilities as citizens, to value diversity and to play an active part in democratic life. Finally, because education is often treated as a matter of national policy and part of the states’ duties and prerogatives, the whole work could stumble upon the competence of the European Union. The author therefore concludes her work with the analysis of the EU’s supporting competence, as enshrined in Article 165 of the Treaty on the Functioning of the European Union, and of the principles of subsidiarity and proportionality, inquiring how, combined, this Treaty article and principles relate to the autonomy of the Member States in providing for the inclusion of an EU dimension in citizenship education. Preface 8 The questions with which the book opens are many, complex and controversial. All are carefully intertwined in an analysis that only an author with a masterful domain of EU law and highly committed to citizenship education could successfully undertake. In times of deep challenges to the European Union, the arguments made in this book should be seriously considered by both critics and advocates of citizenship education; and, irrespective of where one stands in the debate, by those concerned with the democratic and civic deficits that spread deeper into the social and political structures of the state, while afflicting particularly the European Union. Joana Mendes Professor of Comparative Administrative Law University of Luxembourg Preface 9 Acknowledgements My gratitude goes to all the people who have accompanied me on the journey to completion of the doctoral dissertation on which this study is based: ‘The EU Dimension in Education for Democratic Citizenship—a Legal Analysis’, defended at the University of Luxembourg on 20 December 2018. I would like to thank the members of the thesis supervision committee who have guided me from the very beginning: Professor Pascal Ancel, Professor Jörg Gerkrath, Professor Luc Heuschling, Professor Johan van der Walt, and, last but not least, Professor Herwig Hofmann. Conversations with him were precious in helping me to structure my wide-ranging ideas and lofty intentions on the basis of legal anchor points. My particular gratitude goes to Professor Joana Mendes, the dissertation supervisor, who mentored the final phase. I am indebted to the members of the defence committee, Professor Eleftheria Neframi (University of Luxembourg), Professor Christian Calliess (Freie Universität Berlin) and Professor Kurt Willems (KU Leuven). Their positive feedback has meant a lot to me and their pertinent comments were taken into account to improve the study. A special word of thank goes to ECtHR Judge Síofra O'Leary, who was a member of the defence committee but could not be present due to unexpected circumstances. She read the text in great detail and made many valuable suggestions. I benefited from her shared strong belief in the power of education. I have had the privilege of discussing topics and ideas with many experts in the legal field and in multidisciplinary contexts. I would like to thank ECJ Judges Egils Levits, Sacha Prechal, and Christiaan Timmermans, and Professor Piet Van Nuffel. Exchanges with discussants at conferences deepened my insights (inter alia at FIDE (Fédération Internationale pour le Droit Européen), NECE (Networking European Citizenship Education), Lifelong learning platforms, European summit for critical thinking education, Politicologenetmaal). I am grateful to the people who gave me a forum for testing learning methods for the EU dimension in citizenship education in practice, both in secondary schools and in Teacher Training at the KU Leuven (in particular Professor Ellen Claes). My sincere gratitude also goes to Susan Pawlak, who skillfully improved my use of English. It was a pleasure working with her. 11 Numerous people have encouraged me warmly in the undertaking of this study. I thank my children for their loving support, and my grandchildren for their patience while watching their grandmother at her computer with curiosity. Most of all, I want to thank my husband, Koen Lenaerts. During endless conversations––at the table, in the car, at the seaside, or in the forest––he listened, objected, nuanced, and increasingly shared my passion for the citizenship education of EU citizens. My deepest motivation for this work comes from my belief in the values on which the EU is founded. As a proud Flemish, Belgian, and EU citizen, I am thankful to all those who have enhanced my awareness of these values in the past. I hope to be a solid link in the ongoing chain for the future. Democracy has to be born anew every generation, and education is its midwife (John Dewey). Wise efforts are more necessary than ever to educate citizens in our common values in order to ensure a peaceful and happy life in the European Union. Kris Grimonprez Luxembourg, 30 October 2019 Acknowledgements 12 Abbreviations AFSJ Area of Freedom, Security and Justice AG Advocate General AT, BE, BG, CY, CZ, DE, DK, EE, EL, ES, FI, FR, HR, HU, IA, IT, LT, LU, LV, MT NL, PL, PT, RO, SE, SI, SK EU Member States: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Germany, Denmark, Estonia, Greece, Spain, Finland, France, Croatia, Hungary, Ireland, Italy, Lithuania, Luxembourg, Latvia, Malta, Netherlands, Poland, Portugal, Romania, Sweden, Slovenia, Slovakia Bull Bulletin BVerfG Bundesverfassungsgericht (DE) CADE Convention Against Discrimination in Education CFR Charter of Fundamental Rights of the European Union Charter on EDC/HRE Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education (CM/ Rec(2010)7) CM Committee of Ministers (CoE) CMLRev Common Market Law Review CoE Council of Europe Commission European Commission (EU) CoR Committee of the Regions Council Council of the European Union CRC Convention on the Rights of the Child CRELL Centre for Research on Lifelong Learning DG Directorate-General of the European Commission Dir Directive EAC Education and Culture (DG) 13 EACEA Education, Audiovisual and Culture Executive Agency EC European Community (Treaty establishing the European Community, 1992) ECAS European Citizen Action Service ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe) ECI European citizens’ initiative ECJ Court of Justice of the European Union ECRI European Commission against Racism and Intolerance (CoE) ECSC European Coal and Steel Community ECtHR European Court of Human Rights ed(s) editor(s) EDC Education for Democratic Citizenship edn(s) edition(s) EEC European Economic Community (Treaty establishing the European Economic Community, 1957) EERJ European Educational Research Journal EESC European Economic and Social Committee ELJ European Law Journal ELRev European Law Review EP European Parliament ESC European Social Charter ET Education and Training ET2020 Strategic Framework for European Cooperation on Education and Training (‘ET 2020’) EU European Union fn(s) footnote(s) external to the work HRE Human Rights Education i.a. Inter alia Abbreviations 14 ICCPR International Covenant on Civil and Political Rights ICCS International Civic and Citizenship Education Study ICESCR International Covenant on Economic, Social and Cultural Rights IEA International Association for the Evaluation of Educational Achievement INGOs International Non Governmental Organisations JCMS Journal of Common Market Studies JRC Joint Research Centre (Commission) JSSE Journal of Social Science Education MEP Member of the European Parliament MOU Memorandum of Understanding between the EU and the Council of Europe n/nn footnote(s) internal to the work OECD Organisation for Economic Cooperation and Development OHCHR Office of the High Commissioner for Human Rights (UN) OJ Official Journal of the European Union OSCE Organisation for Security and Cooperation in Europe PA Parliamentary Assembly (CoE) Parliament European Parliament Reg Regulation Res Resolution RFCDC Reference Framework of Competences for Democratic Culture Rn Randnummer TEU Treaty on European Union (as amended by the Lisbon Treaty) TFEU Treaty on the Functioning of the European Union UDHR Universal Declaration of Human Rights Abbreviations 15 UN United Nations UN ComESCR UN Committee on Economic, Social and Cultural Rights (ICESCR) UN ComRC UN Committee on the Rights of the Child (CRC) UN HRCom (ICCPR) UN Human Rights Committee (ICCPR) UNESCO United Nations Educational, Scientific and Cultural Organisation UNGA United Nations General Assembly UNHRC United Nations Human Rights Council UNTS United Nations Treaty Series Abbreviations 16 Abstract Education for democratic citizenship equips learners with knowledge, skills and understanding and develops their attitudes and behaviour with the aim of empowering them to exercise and defend their democratic rights and responsibilities in society, to value diversity and to play an active part in democratic life (the consensual definition in the Charter on Education for Democratic Citizenship and Human Rights Education of the Council of Europe, 2010). What does this mean for EU citizens? The study reads this Charter in combination with EU law and argues that an EU dimension must be incorporated in national citizenship education. A method for objective, critical and pluralistic EU learning is proposed, a method based on the Treaties and on case teaching (stories for critical thinking). Starting from EU law, suitable content for the EU dimension in mainstream education is then explored on the basis of four criteria: (i) additional content for national education for democratic citizenship, (ii) significant content, i.e. relating to foundational (EU primary law) values, objectives and principles, (iii) inviting critical thinking, (iv) affecting the large majority of EU citizens, including static citizens (who live at home in their own country). A broader view of EU citizenship is developed, beyond that resulting from classic citizenship rights. Finally, it is argued that the EU has the legal competence to support the EU dimension in education. Member States are invited to take more action to ensure quality education, which must now include education for democratic citizenship and its EU dimension. Democracy in the EU needs an educational substratum. 17 Aide mémoire Effects of a combined reading of EDC standards and EU law Education for Democratic Citizenship (EDC) means: (a) education, training, awareness raising, information, practices and activities which aim (b) by equipping learners with knowledge, skills and understanding and developing their attitudes and behaviour (c) to empower the learners (c-1) to exercise and defend their democratic rights and responsibilities in society (c-2) to value diversity (c-3) to play an active part in democratic life (d) with a view to the promotion and protection of democracy and the rule of law.2 Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.3 Four criteria for determining relevant content for the EU dimension of EDC in mainstream education consistent with EU law: (i) additional content for national EDC (ii) significant content, i.e. relating to foundational (EU primary law) values, objectives and principles (iii) inviting critical thinking (iv) affecting the large majority of EU citizens, including ‘static’ citizens 2 Para 2 Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education. 3 Art 20(1) Treaty on the Functioning of the European Union, Art 9 Treaty on European Union (emphasis added). 19 Table of Contents Preface 7 Acknowledgements 11 Abbreviations 13 Abstract 17 Aide mémoire 19 Introduction 27 Contrasting observations 27 The gap between the EU and its citizens 36 The two-fold challenge for ‘EU citizenship education’ 39 Three anchor points 44 Research questions, method and objectives 46 Education for Democratic Citizenship and the Council of Europe PART I 61 Introduction: Relevance of Council of Europe norms on education for the EU and its Member States 63 The Charter on Education for Democratic Citizenship and Human Rights Education (EDC/HRE) CHAPTER 1 73 Form and substanceA 73 Legal status within the Council of Europe legal order1. 73 Concept and principles of Education for Democratic Citizenship (EDC) 2. 78 Normative contextB 84 Genesis of the Charter on EDC/HRE (2010)1. 85 21 EDC standards after 2010: authoritative value of Charter on EDC/HRE confirmed 2. 97 Effects of the Charter on EDC/HRE in the Council of Europe legal order CHAPTER 2 109 Relevance for the interpretation of ECHR provisionsA 109 Limitation of member states’ margin of appreciationB 123 Strengths and weaknesses of the Recommendation on the Charter on EDC/HRE C 128 Strengths1. 132 Weaknesses2. 154 Implications for the duty to act in good faith3. 161 Law in context—some caveatsD 164 Conclusion to Part one 178 Education for Democratic Citizenship and the European Union PART II 181 Introduction: The schema of modes of reception of exogenic norms 183 Stronger modes of reception of exogenic norms in the EU legal order CHAPTER 3 191 Accession of the EU to conventions (mode 1)A 191 General1. 191 Indirect relevance of accession to conventions for Education for Democratic Citizenship 2. 194 General principles of EU law (mode 2)B 197 General1. 197 The bold proposition of a general principle on Education for Democratic Citizenship 2. 199 Incorporation of the title of exogenic instruments in EU law (mode 3) C 217 General1. 217 Occasional reception of EDC standards by incorporation of the title 2. 228 Table of Contents 22 Weaker modes of reception of exogenic norms in the EU legal order CHAPTER 4 233 Incorporation of the substantive content of exogenic norms in EU law (mode 4) A 233 General1. 233 Fragmented incorporation of the substantive content of EDC standards 2. 243 Inspiration and cooperation (mode 5)B 255 General1. 255 Shared inspiration and cooperation to implement EDC standards 2. 258 Interpretation of EU law taking account of exogenic norms (mode 6) C 270 General1. 270 Taking account of the Charter on EDC/HRE in the interpretation of EU law 2. 272 Conclusion to Part two 291 Content for the EU dimension in Education for Democratic Citizenship PART III 295 Introduction: Criteria for determing content for the EU dimension 297 Objective, critical and pluralistic EU learningCHAPTER 5 321 EU primary law: objectivityA 323 A European constitutional space1. 323 Foundational values, objectives and principles of the EU2. 339 Case teaching: critical thinking and pluralismB 356 The EU dimension based on classic EU citizenship rights CHAPTER 6 381 The right to move and to reside freelyA 383 Other EU citizenship rightsB 425 The right to equal treatment in European Parliament and municipal elections 1. 426 The right to equal diplomatic or consular protection2. 430 Table of Contents 23 The right to petition the European Parliament3. 430 The right to apply to the European Ombudsman4. 433 The right to communicate in a Treaty language5. 437 The right to a European citizens’ initiative6. 438 The ambiguities of EU citizenship do not preclude the relevance of EU citizenship rights for EDC C 453 The EU dimension based on democratic participation rights in Title II TEU CHAPTER 7 465 The right to participate in the democratic life of the UnionA 468 The right to vote for the European ParliamentB 471 The right to vote for the national parliament and its EU dimension C 482 Rights and opportunities in participatory democracyD 490 The EU dimension based on other EU rights and obligations CHAPTER 8 507 Relevance of EU rights and obligations for Education for Democratic Citizenship A 507 Additional content1. 515 Significant content2. 524 Inviting critical thinking3. 530 Affecting the large majority of citizens4. 537 Stories for case teachingB 541 Free movement rights and fundamental rights1. 543 Equality rights and obligations2. 546 Social rights and obligations3. 553 Privacy rights and obligations4. 556 Consumer rights and obligations5. 570 Environmental rights and obligations6. 580 Conclusion to Part three 586 Table of Contents 24 Competence to provide for the EU dimension in Education for Democratic Citizenship PART IV 589 Introduction: Actors 591 Conferral of competence to the EUCHAPTER 9 595 The principlesA 595 Quality educationB 602 Quality education at UN level1. 603 Quality education at Council of Europe level2. 624 Quality education at EU level3. 626 Developing the European dimension in educationC 630 Encouraging the participation of young people in democratic life in Europe D 639 Subsidiarity, proportionality and Member State action CHAPTER 10 647 Subsidiarity and proportionality of EU actionA 647 Member State actionB 673 Conclusion to Part four 686 Summary and general conclusion 689 Annexes 699 The Charter on Education for Democratic Citizenship and Human Rights Education 1. 699 Relationship between democracy, human rights and the rule of law 2. 705 The Reference Framework of Competences for Democratic Culture 3. 706 EU Recommendation on key competences for lifelong learning4. 706 Forms of citizenship education5. 708 Bibliography 709 EU1. 709 Table of Contents 25 UN human rights instruments2. 740 Council of Europe3. 743 EU/CoE4. 755 Some comparative law sources5. 755 Authors6. 758 Table of Contents 26 Introduction Why a study on this subject? This study deals with the education of pupils as EU citizens in schools. ‘Schools’ are defined as institutions delivering primary and secondary education, by contrast with higher education institutions.4 The introduction first outlines two contrasting observations and the problem which gave rise to the idea for this study. It then points to the challenges inherent in formulating an adequate response and proposes three anchor points to that effect. Finally, it formulates the questions which this study aims to answer, explains the method used, and the general objectives pursued throughout. Contrasting observations High importance of the EU The starting point is a puzzling contrast between two observations: the high importance of the EU in public life and the low importance of EU learning in many schools. Europeanisation has multiple aspects and is difficult to quantify, yet its existence cannot be denied.5 The paradigm of the 19th century nation state, perceived as being exclusively sovereign within its territory, has shifted.6 1 2 4 See Charter on EDC/HRE, para 2(c) on formal education; and text to n 1041 for a definition of formal learning (in schools). Definition of ‘higher education institutions’ in Regulation 1288/2013 of the European Parliament and of the Council of 11 December 2013 establishing 'Erasmus+': the Union programme for education, training, youth and sport and repealing Decisions 1719/2006, 1720/2006 and 1298/2008 [2013] OJ L347/50 (Erasmus+ Regulation 1288/2013), Art 2 (14); Commission Proposal for a Regulation of the European Parliament and of the Council establishing 'Erasmus': the Union programme for education, training, youth and sport and repealing Regulation (EU) No 1288/2013, COM(2018) 367 final, Art 2. 5 Formulated alternatively as ‘The EU impinges directly on national policy-making': B Kohler-Koch and B Rittberger, ‘The "Governance Turn" in EU studies’ (2005) 44 JCMS 27, 35. 6 F Ost and M van de Kerchove, De la pyramide au réseau? Pour une théorie dialectique du droit (Facultés universitaires Saint-Louis 2002); HCH Hofmann, GC Rowe and AH Türk, Administrative law and policy of the European Union (Oxford University 27 Nations have gradually opened their borders. In the initial phase, they accepted the exercise of powers by the authorities of the European Coal and Steel Community (ECSC) and the European Economic Community (EEC, vertical opening of borders). In the second phase, they started recognising the decisions of other Member States (horizontal opening of borders). In the third phase, nation states have become integrated in networks.7 As a result, EU measures now affect the everyday life of citizens in many respects. EU action is not limited to the internal market, but includes policy areas such as the environment, public health, or consumer protection. With the development of an area of freedom, security and justice, the EU reaches into ever more fields traditionally seen as a matter of national sovereignty, such as criminal law, immigration, asylum, security and defence policy.8 In response to refugee crises, the EU adopts quotas,9 and in the face of global financial crises, the EU asks for sacrifices, taking from some and giving to others. EU measures in the context of economic and monetary union (adopted in accordance with the ordinary legislative procedure) aim to enhance the coordination and surveillance of budgetary discipline and to reinforce economic governance of the Eurozone.10 Newspapers report on a daily basis on the implications of EU membership (‘EU Press 2011) 5; K Nicolaïdis, ‘European Demoicracy and Its Crisis’ (2013) 51 JCMS 351, 366: European peoples have progressively left the shores of state sovereignty. 7 Hofmann, Rowe and Türk, Administrative law and policy of the European Union 5–11, with ECSC and EEC case law (first shift), Case 120/78 Rewe-Zentral (Cassis de Dijon) ECLI:EU:C:1979:42 and the subsequent line of case law (second), and integrated administration (third). See in general, legal pluralism, Ost and van de Kerchove, De la pyramide au réseau? Pour une théorie dialectique du droit; M Delmas-Marty, Ordering Pluralism. A Conceptual Framework for Understanding the Transnational Legal World (Hart 2009); M Avbelj and J Komárek, Constitutional Pluralism in the European Union and Beyond (Hart 2012). 8 Evolution in several fields, see P Craig and G de Búrca, EU Law: Text, Cases, and Materials (6th edn, Oxford University Press 2015); A Rosas and L Armati, EU Constitutional Law: An Introduction (Hart 2018) i.a. 12; K Lenaerts, ‘L'apport de la Cour de justice à la construction européenne’ (2017) 25 Journal de droit européen 134 (impact of EU law on several delicate issues during the last 30 years). 9 Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece [2015] OJ L248/80; Joined Cases C-643/15 and C-647/15 Slovakia and Hungary v Council ECLI:EU:C:2017:631. 10 Regulations in ‘six pack’ in 2011 (OJ [2011] L306); ‘two pack’ in 2013 (OJ [2011] L140). See i.a. Art 136 TFEU. Introduction 28 cautious with German dieselplan’ or ‘France gets three months to tweak budget’) and speculate on the implications of Brexit.11 A substantive part of public power—legislative, executive as well as judicial—is exercised jointly by the EU and its Member States. Europeanisation of national law takes many different forms.12 By signing the Treaties, Member States agreed to limit their sovereign rights and created a common legal order which became an integral part of their domestic legal orders. The principle of the primacy of Union law, inherent in the specific nature of the EU13 and a crucial corollary to the equality of Member States, is stated in a declaration annexed to the Lisbon Treaty.14 The European Court of Justice (ECJ) has confirmed that ‘it follows from well-established case-law that rules of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of European Union law’.15 National courts and administrations have an obligation to interpret national law in conformity with Union law and a duty to set aside conflicting national rules. In this context, national legislation voted within national parliaments—and even constitutional law —may become inapplicable. Every Member State body must ensure the full effectiveness in the national legal order of rights derived from Union law.16 The unlawful consequences of a breach of Union law must be nullified, e.g. unlawful taxes must be refunded. National democracies adopting legislation on the basis of majority voting have to take into account, and 11 ; ; or ‘L’Italie prépare l’affrontement avec l’Europe. La coalition populiste annoncera à la rentrée des mesures qui inquiètent déjà Bruxelles et les marchés’ (). 12 See, i.a., F Snyder (ed) The Europeanisation of Law: The Legal Effects of European Integration (Hart 2000); N Jääskinen, ‘Europeanisation of National Law: A Legaltheoretical Analysis’ (2015) 40 ELRev 667. Further in Part three. 13 Case 6/64 Costa v ENEL ECLI:EU:C:1964:66; Case 11-70 Internationale Handelsgesellschaft ECLI:EU:C:1970:114. 14 Declaration No 17 concerning primacy [2010] OJ C83/344. 15 Case C‑416/10 Križan ECLI:EU:C:2013:8, para 70 (the competent national authorities involved in the construction of a landfill site could not refuse public access to an urban planning document pursuant to European environmental provisions). See earlier: Case 106/77 Simmenthal II ECLI:EU:C:1978:49, paras 22–24; Case C-213/89 Factortame I ECLI:EU:C:1990:257, paras 14–15; Case C-409/06 Winner Wetten ECLI:EU:C:2010:503, para 61. 16 Art 4(3) TEU on sincere cooperation. See i.a. Case C‑432/05 Unibet ECLI:EU:C: 2007:163, para 38; Case C‑404/13 ClientEarth ECLI:EU:C:2014:2382, para 52. Also Case C-282/10 Dominguez ECLI:EU:C:2012:33, paras 30–3. Contrasting observations 29 give precedence to, rules adopted at the EU level on the basis of majority voting in accordance with the relevant Treaty procedures. A European directive adopted in accordance with the ordinary legislative procedure must be implemented by all Member States even if it would not have obtained the necessary majority in the national parliament. Although estimating percentages is hard to do, national legislation often stems from EU law.17 Moreover, beyond quantitative estimates, ‘the law’ in Member States has become a mixture of EU law and national law. EU law influences legal thinking and judicial interpretation of legislation in the Member States.18 Another aspect of the Europeanisation of law is that to a large extent the Member States take up the executive function for the EU.19 EU law, including EU administrative law, has been described as an incoming tide, flowing into the estuaries and up the rivers, its waves relentless and impossible to hold back.20 Extensive legal review and remedies guarantee the correct application of this joint exercise of public power. Compliance by a Member State with 17 In 1988, Delors claimed that in 10 years, the EC would be the source of 80% of Member States’ legislation (especially economic, may be even fiscal and social). Actual numbers, ranging from 1 to 80%, should be looked at with great care. See for the Netherlands, M Bovens and K Yesilkagit, ‘The EU as lawmaker: the impact of EU directives on national regulation in the Netherlands’ (2010) 88 Public Adminstration 57. For other Member States, see AE Töller, ‘Concepts of Causality in Quantitative Approaches to Europeanization’ in C Radaelli and T Exadactylos (eds), Establishing Causality in Europeanization Research (Palgrave Macmillan 2012): studies showed rather low shares of Europeanised national legislation (15% for the UK, 14 % for Denmark, 10% for Austria, 3 to 27% for France, 1 to 24% for Finland, yet 39% for Germany). The author concludes that these figures tell us little about the impact of EU-policy-making, i.a. because of differences in policy fields (the famous Delors 80% could be reality in agriculture, environment or financial market regulations). See also WC Muller and others, ‘Legal Europeanization: comparative perspectives’ (2010) 88 Public Administration 75. 18 Jääskinen, ‘Europeanisation of National Law: A Legal-theoretical Analysis’, distinguishing ‘law’ as legal order, legal system, jurisprudence or legal culture. 19 Hofmann, Rowe and Türk, Administrative law and policy of the European Union. 20 D Curtin, Executive Power of the European Union. Law, Practices, and the Living Constitution (Oxford University Press 2009) 278, referring to Lord Denning in Bulmer v Bollinger [1974] Ch 401 (418F): ‘But when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.’. Introduction 30 EU law is ensured through actions brought by the Commission,21 by citizens22 or by other Member States23. National courts have the task of implementing EU law in their capacity as the ‘ordinary’ courts within the EU legal order and have to ensure an effective remedy when rights and freedoms guaranteed by EU law are infringed (Article 47 Charter of Fundamental Rights of the European Union, hereafter CFR).24 National judges have sent more than 10 000 references for preliminary rulings to the ECJ, asking for its help in the interpretation of EU law.25 In Wightman, the ECJ noted that any withdrawal of a Member State from the EU ‘is liable to have a considerable impact on the rights of all Union citizens’.26 This, then, is the first observation: the EU has become an important reality, a fact of life and law, with considerable impact on the society in which citizens live. This first observation is in stark contrast to the second observation, which follows now. Low importance of EU learning in many schools Have education systems adapted to the paradigm shift? Can national education systems embrace these developments flexibly and prepare young people for citizenship in the European system of multilevel governance? In her study of the field of education, Keating observes: ‘Member States tend to reframe the notion of European citizenship to reflect the national model of citizenship and the histories, traditions, and socio-political priori- 3 21 Arts 258–260 TFEU, possibly leading to financial penalties being imposed on the defendant Member State. See Case C-304/02 Commission v France ECLI:EU:C: 2005:444: France failing i.a. to carry out checks of fishing activities in accordance with Community provisions, was ordered to pay a lump sum of 20 million euros for past non-compliance and 57 million euros for each period of six months of future non-compliance; Case C-533/11 Commission v Belgium ECLI:EU:C:2013: 659: Belgium failing i.a. to implement correctly Directive 91/271/EEC on urban waste-water treatment, was ordered to pay a lump sum of 10 million euros for past non-compliance and a penalty payment of 859 000 euros for each future sixmonth period of delay. 22 See §§ 242 243 . Citizens in national courts can rely on the direct effect of EU provisions when these are clear, precise and unconditional, or can claim damages against the defaulting Member State (private enforcement). 23 Art 259 TFEU and, e.g., Case C-591/17 Austria v Germany ECLI:EU:C:2019:504. 24 Opinion 1/09 ECLI:EU:C:2011:123, para 80. 25 Court of Justice of the European Union, Annual Report 2017, Judicial activity, p 125 (10 149 new references for a preliminary ruling between 1952 and 2017). 26 Case C-621/18 Wightman and Others ECLI:EU:C:2018:999, para 64. Contrasting observations 31 ties of the nation-state.’27 Yet, the nation states as ‘Masters of the Treaty’ have chosen to transfer competences to the Union in respect of objectives which they consider they can achieve better together. It would be logical to explain this choice, the motives underpinning it, and its far-reaching consequences, to the young citizens at school. A significant percentage of national legislation may stem from EU directives. But what percentage of 18 years-olds has been taught what an EU directive is? Quite a degree of inertia characterises education systems operating within the old paradigm. Based on successive surveys and analyses, it is fair to observe that learning about the EU in schools is fragmented.28 The 2013 ICF GHK report ‘Learning Europe at school’ concludes that Member States differ widely as to the aspects of the EU they expect to be taught in schools.29 The European citizenship dimension, in particular, is rarely clearly defined. The EU curriculum is very fragmented in most countries, with little evidence of progressive building on basic facts towards complex understanding, and with little consistency and complementarity at different levels and in different subjects.30 No clear picture is created of the EU as an entity. The functioning of EU institutions is neglected as a subject, compared to European history or geography. There is great disparity in teacher training about the EU, with limited evidence of EU study in initial teacher training programmes. Much depends on the teachers’ motivation or personal convictions. In many school books, there is relatively little coverage of EU issues. The results of the 2009 International Civic and Citizenship Education Study31, which mainly tested 14 years-old pupils, are described by the Commission as follows: 27 A Keating, ‘Educating Europe's citizens: moving from national to post-national models of educating for European citizenship’ (2009) 13 Citizenship Studies 135, 147. 28 See further Part four (§ 311 ). 29 Commission, Learning Europe at School (DG for Education, Youth, Sport and Culture, ICF GHK, 2013). 30 ‘Curriculum’ can be defined as ‘a plan for learning in the form of the description of learning outcomes, of learning content and of learning processes for a specified period of study’. See CoE Reference Framework of Competences for Democratic Culture, Vol 3: Guidance for implementation (2018) 13. 31 The 2009 International Civic and Citizenship Education Study (ICCS) assessed lower-secondary students (8th grade) with regard to inter alia civic knowledge, identity, attitudes, engagement, participation. See D Kerr and others, ICCS 2009 European Report: Civic knowledge, attitudes and engagement among lower-secondary Introduction 32 The European module data show that knowledge about the European Union is relatively good in EU countries ..., but there is still a clear need for improvement. In all participating EU countries more than 95% of pupils knew that their country was an EU Member State. Over 90% of pupils knew the flag of the European Union (...).32 Given the extensive impact of the exercise of EU public power on citizens’ daily life, I wonder whether being able to recognise the flag of the EU should be deemed a sufficient learning outcome.33 The 2016 International Civic and Citizenship Education Study, too, reports that the opportunities to learn about Europe vary substantially across Europe. Pupils mostly have the opportunity to learn about European history, but far less opportunity to study European political and economic integration or European political and social issues.34 Eurydice, a network consisting of 42 national units in 38 States––including all EU Member States––providing information and analyses of European education systems and policies,35 concluded in 2012 that the European dimension is well represented in citizenship curricula.36 Upon a closer look, however, significant disparities appeared in the quality and students in 24 European countries (International Association for the Evaluation of Educational Achievement IEA, 2010). 32 Commission Staff working document ‘Progress towards the common European objectives in education and training- Indicators and benchmarks 2010/2011', 105–109. 'European pupils score high in civic knowledge', titled the Commission in a 2010 press release, but continued: 'The study found large differences in pupils' levels of civic knowledge’ . 33 Former webpage accessed 6 September 2017. 34 B Losito and others, Young People's Perceptions of Europe in a Time of Change: IEA International Civic and Citizenship Education Study- 2016 European Report (2017), 14–15 (reported learning opportunities about Europe at school, to a large or a moderate extent: on average 50% of the pupils). 35 Next to the EU Member States, also Albania, Bosnia and Herzegovina, the former Yugoslav Republic of Macedonia, Iceland, Liechtenstein, Montenegro, Norway, Serbia, Switzerland and Turkey. The coordinating unit in EACEA (Education, Audiovisual and Culture Executive Agency) supports the Commission in cooperative work the CoE and UNESCO. 36 Commission/EACEA/Eurydice, Citizenship Education in Europe (2012) 97. Earlier: Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2005). Contrasting observations 33 extent of the EU dimension of citizenship education in schools.37 Eurydice reported in 2017 that ‘[a]s many as eight EU member states do not have an international dimension in the curriculum of secondary education’ and that in most countries the citizenship education curriculum for vocational training does not mention the EU at all.38 Thus, while optional or extra-curricular activities may offer more opportunities for EU learning, surveys and authors report on patchy rules concerning the curricula of formal education.39 They point, moreover, to a compliance gap, there being disparities between the intended curriculum and the implemented curriculum.40 The inadequacies in EU learning may be the result of many factors: poorly-defined EU learning content, insufficient training of teachers on EU matters, non-mandatory EU learning, a lack of assessment, or tenacious convictions that the EU as a subject is too sensitive, too complex, or not essential in an overburdened curriculum. Education is often underpinned by an economic rationale, the need to prepare students for the job market, not for citizenship. Furthermore, sociological realities play a role: the autonomy of philosophical-ideological school platforms and of schools (private and public institutions), and the 37 Commission/EACEA/Eurydice, Citizenship Education in Europe (2012) 17 ff; for diversity in approaches and themes, see figure p 30; see also p 32 (in Germany, themes related to the European dimension were no longer included in the upper secondary level curriculum). Eurydice’s concept of citizenship education in text to n 902. 38 Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2017) 67 (based on questionnaires answered by national units, who used official recommendations, regulations as well as national strategies or action plans as primary information sources). See also ibid, pp 29, 58, 65; Commission/EACEA/ Eurydice, Promoting citizenship and the common values of freedom, tolerance and non-discrimination through education: Overview of education policy developments in Europe following the Paris Declaration of 17 March 2015 (2016); European Parliament Resolution of 12 April 2016 on Learning EU at school [2018] OJ C58/57, recitals J-L. On problematic EU learning, further § 312 and text to n 1039 ff. 39 Many laudable initiatives organised ad hoc in or outside schools: Europe Days, 9 May actions, Spring Day in Europe, European Youth Parliament, Parlamentarium, EPAS, eTwinning, Your Europe Your Say, Back to School, guest speakers, special debates, conferences, competitions, exhibitions, chat sessions. See further text to n 1039 ff, § 152 . Concept of formal education in text to n 1040. 40 C Bîrzéa, ‘EDC policies in Europe - a synthesis’ in All-European Study on Education for Democratic Citizenship Policies (CoE 2005) 29. See also n 243. Introduction 34 freedom of teachers.41 A worrying impression is that it is not only the teachers (trainers) themselves who may lack essential knowledge about the EU, but also the trainers of the trainers. Even scholars in the field of citizenship education sometimes fail to clearly distinguish between the EU and the Council of Europe42, or between EU citizens and immigrants.43 In short, a huge number of pupils leave school at age 18 with impressive knowledge about science or literature, but in relative ignorance of the EU. The high importance of the EU contrasts with the low importance attached to EU learning in many schools. These two observations are related to a wider problem. 41 Various factors described, i.a., in Kerr and others (n 31); H Walkenhorst, ‘Problems of Political Education in a Multi-level Polity: explaining Non-teaching of European Union Issues in German Secondary Schooling’ (2006) 14 Journal of Contemporary European Studies 353, 354: ‘The European Union initiative “European Dimension in Education”, designed to raise pupils’ awareness and knowledge of European integration issues, is highly contested and has not always found its way into the school curricula of the Member States.' See further challenges documented in § 66 . 42 Unclear, e.g. E Féron, ‘Citizenship Education in France’ in VB Georgi (ed), The Making of Citizens in Europe: New Perspectives on Citizenship Education (Schriftenreihe Band 666, Bundeszentrale für politische Bildung 2008) 108, citing the ECHR as a founding text in courses on European citizenship and on European integration, with no mention of the EU Treaties. European citizenship is not founded on the ECHR (this convention is also valid for Turkish or Azerbaijan citizens). In the EU, the ECHR is at present an indirect source of general principles of law (Art 6(3) TEU, before accession to the ECHR). 43 Unclear questions asked to pupils in ICCS 2016 (how strongly do you agree: ‘Immigrants should have the same rights that everyone else in the country has’): see Losito and others, Young People's Perceptions of Europe in a Time of Change: IEA International Civic and Citizenship Education Study- 2016 European Report 24, 27 (e.g. on the immigration of people from other EU Member States). See also D Sampermans and others, ICCS 2016 Rapport Vlaanderen, Een onderzoek naar burgerschapseducatie in Vlaanderen. Eindrapport november 2017 (KU Leuven, Centrum voor Politicologie, 2017) 165 (‘Politieke tolerantie is het geven van gelijke rechten aan alle groepen die deel uitmaken van de maatschappij, zodat iedereen op gelijke wijze zijn belangen kan verdedigden. Zonder deze gelijke rechten kan er van een volwaardige democratie geen sprake zijn’). Contrasting observations 35 The gap between the EU and its citizens Problem of democratic and civic deficit The legitimacy of the EU is questioned. The gap between the EU and its citizens is often referred to as the ‘democratic deficit’.44 The disconnect between the EU and its citizens can also be described by the concept of the ‘civic deficit’, highlighting other aspects than the ‘democratic deficit’.45 The EU civic deficit, the unacceptable distance between the EU and its citi- 4 44 Vast literature on democratic deficit and (social) legitimacy. See, i.a., AK Kiernan, ‘Citizenship—the real democratic deficit of the European union? 1’ (1997) 1 Citizenship Studies 323; C Blumann, ‘Citoyenneté européenne et déficit démocratique’ in C Philip and P Soldatos (eds), La citoyenneté européenne (Collection études européennes, Chaire Jean Monnet, 2000); C Philip and P Soldatos (eds), La citoyenneté européenne (Collection études européennes, Chaire Jean Monnet, 2000) (democracy, transparency and communication deficit); A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (European Monographs 38, Kluwer Law International 2002) 60; G Majone, Dilemmas of European integration: the ambiguities and pitfalls of integration by stealth (Oxford University Press 2005); S Smismans, Law, Legitimacy, and European Governance: Functional Participation in Social Regulation (Oxford Studies in European Law, Oxford University Press 2004); A Follesdal and S Hix, ‘Why there is a democratic deficit in the EU: A response to Majone and Moravcsik’ (2006) 44 JCMS 533; P Craig, ‘Integration, Democracy and Legitimacy’ in P Craig and G de Búrca (eds), The evolution of EU law (Oxford University Press 2011); Curtin, Executive Power of the European Union. Law, Practices, and the Living Constitution, 283 ff; P Norris, Democratic Deficit: Critical Citizens Revisited (Cambridge University Press 2011); J Habermas, ‘The Crisis of the European Union in the Light of a Constitutionalization of International Law’ (2012) 23 European Journal Of International Law 335, 345; JHH Weiler, ‘In the Face of Crisis: Input Legitimacy, Output Legitimacy and the Political Messianism of European Integration’ (2012) 34 Journal of European Integration 825. 45 Concepts of democratic and civic deficit overlap to some extent, e.g. with regard to 'distance' and 'transparency and complexity' issues as described by Craig, ‘Integration, Democracy and Legitimacy’ 13 and 30, but they emphasise different aspects. An extreme hypothesis to illustrate the difference: enlightened despotism, by definition suffering from a major democratic deficit, may only result in a minor civic deficit if a much-loved king or queen achieves popular outcomes and most people feel connected to the governing system and accept it. I make this point not to downplay the importance of democracy, but to clarify concepts. Recital F in European Parliament Resolution of 12 April 2016 on Learning EU at school [2018] OJ C58/57 refers to the democratic deficit. Introduction 36 zens,46has cognitive, affective and behavioural dimensions.47 Fragmented learning about the EU in schools is relevant to the civic deficit (at least) in its cognitive dimension. Studies invariably reveal a lack of knowledge about the EU. A 2018 Eurobarometer survey found that 59 per cent of Europeans feel that they understand how the EU works (subjective knowledge), yet only 18 per cent answered questions on the EU correctly (objective knowledge).48 Poor understanding easily turns into ambivalence, irritation about 'Brussels' or hostility. Negative referendum results and low turn-out rates at the European Parliament elections are significant.49 A positive signal is that the increased turnout at the 2019 European Parliament elections was driven by greater participation by young people.50 However, older people (over 55 years old) continued to constitute the main voter 46 The term 'civic deficit' was probably first used in a Report of the Australian Civics Expert Group, Whereas the people: Civics and Citizenship Education (Canberra 1994). See Dutch Ministry of Education Culture and Science, Citizenship – made in Europe: living together starts at school (2004) 11; V Pérez-Díaz, ‘The European Civic Deficit’ (2004) ; L McNabb, ‘Civic Outreach Programs: Common Models, Shared Challenges, and Strategic Recommendations’ (2013) 90 Denver University Law Review 871, 872, 876 (on deficits in civic literacy and participation); M Chou and others, Young people, citizenship and political participation: combatting civic deficit (Rowman & Littlefield 2017). On the elite vs public divide, see T Raines, M Goodwin and D Cutts, The Future of Europe: Comparing Public and Elite Attitudes (Research Paper, Europe Programme, Chatham House, The Royal Institute of International Affairs, 2017). 47 On the affective crisis of European citizenship, see i.a. JHH Weiler, ‘To be a European Citizen –Eros and Civilization’ (1997) 4 Journal of European Public Policy 495. On dimensions of active citizenship: E Cresson, Learning for active citizenship: a significant challenge in building a Europe of knowledge. Foreword (1998); M Nussbaum, Political Emotions: Why Love Matters for Justice (Harvard University Press 2015). 48 Standard Eurobarometer 89, Public Opinion in the European Union (June 2018), 132: 18% of respondents were wrong with regard to 3 true/false statements (the euro area currently consists of 19 Member States; the Members of the EP are directly elected by the citizens of each Member State; Switzerland is a Member State of the EU). See Standard Eurobarometer 91, 'European citizenship' (August 2019): 57% of Europeans feel they know their rights as EU citizens, yet 68% would like to know more. See also n 1637. 49 Negative referenda outcomes (as in Denmark in 1992, France in 2005, Ireland in 2001 and 2008, the Netherlands in 2005) illustrate hesitation or opposition towards the EU on issues which are essentially a matter of national politics: J Habermas, Zur Verfassung Europas. Ein Essay (Suhrkamp 2011) 118. 50 Global turnout at EP elections: 42,61% (2014) and 50,62% (2019). Young voters’ turnout: 27,8 % of 18–24 year-olds (2014), 42% in 2019. The gap between the EU and its citizens 37 population and some socio-demographic groups were poorly represented. About 49 per cent of the EU citizens did not vote.51 The EU still has to strengthen its social legitimacy, i.e. the subjective acceptance by the public of the political system. Social legitimacy is based on deep common interests and feelings of loyalty.52 Yet, a sense of alienation vis-à-vis the EU as a level of governance can be observed. The Brexit vote convincingly illustrates the structural consequences to which the gap with the citizens may lead, both for the Member State (UK) and for the whole of the EU. The causes of the Leave vote are complex and cannot simply be attributed to the failure to learn about the EU at school. However, it is thought-provoking that in the 2012 Eurydice study on ‘citizenship education themes, as recommended in national curricula’, some columns for the UK (though not for Scotland) were left empty, namely those relating to European identity and belonging, and European history, culture and literature.53 In 2014, England made the study of ‘Fundamental British Values’ compulsory in schools.54 51 See Eurobarometer Survey 91.5 of the European Parliament, The 2019 post-electoral survey: Have European elections entered a new dimension? (September 2019), 22–23. 52 Concept and problem of social legitimacy in: S O'Leary, The Evolving Concept of Community Citizenship: From the Free Movement of Persons to Union Citizenship (European Monographs 13, Kluwer 1996) 312; Curtin, Executive Power of the European Union. Law, Practices, and the Living Constitution 284; Weiler, ‘In the Face of Crisis: Input Legitimacy, Output Legitimacy and the Political Messianism of European Integration’, 826; G Davies, ‘Social Legitimacy and Purposive Power: The End, the Means and the Consent of the People’ in D Kochenov, G de Búrca and A Williams (eds), Europe's Justice Deficit? (Hart 2015) 261. 53 Commission/EACEA/Eurydice, Citizenship Education in Europe (2012), 30 (not recommended in any level in national curricula). See also J Arthur and D Wright, Teaching Citizenship in the Secondary School (David Fulton 2001), only referring to some EU websites. Further B Hoskins, ‘Brexit and its implications for Citizenship Education across Europe’ 2 August 2016 . For empirical studies on impact of citizenship education, see n 108. In the Brexit referendum 71 % of the 18–25 age group voted Remain, yet, apparently, only 30% of young people actually voted (YouGov opinion poll). See further J Curtice, ‘Why Leave Won the UK's EU Referendum’ (2017) 55 JCMS 19; L Gormley, ‘Brexit - Never Mind the Whys and Wherefores? Fog in the Channel, Continent Cut Off!’ (2017) 40 Fordham International Law Journal 1175; J Snell, ‘European Union and National Referendums: Need for Change after the Brexit Vote?’ (2017) 28 European Business Law Review 767. 54 See n 1180 and text. Introduction 38 One of the basic challenges to be resolved by the EU is how to bridge the gap with its citizens. This study will approach the problem of the democratic and civic deficit from the educational perspective by studying EU citizenship education.55 The term ‘EU citizenship education’ brings with it a two-fold challenge. The two subjects which this study aims to link––namely, EU citizenship and citizenship education––are to a certain extent each contentious in their own right. The two-fold challenge for ‘EU citizenship education’ Which citizenship education? The first challenge is to find a neutral and commonly accepted concept of citizenship education. On the Beaufort scale, the winds in the field of citizenship education range from calm indifference, via light breeze, to strong gale, and storms causing structural damage. In the past, totalitarian regimes such as nazism or communism have demonstrated the potentially devastating effects of citizenship education. Today, ‘citizenship education’ is also provided by the Taliban (to boys only) and in Turkey (by loyal professors only). The fear of social engineering, of a religious or ideological nature, leads some to reject the need for citizenship education of any kind: neither states nor schools have to ‘educate’ citizens. Osler, an authoritative scholar on citizenship education, observes: ‘Citizenship is a contested subject and it is therefore not surprising that education for citizenship in schools often tends to provoke heated debate and controversy’.56 Talking about citizenship education is like opening Pandora’s box.57 A huge variety 5 55 Calls for research on this topic, in Walkenhorst, ‘Problems of Political Education in a Multi-level Polity: explaining Non-teaching of European Union Issues in German Secondary Schooling’ 354 (the democratic deficit is generally seen as an institutional-structural problem; ‘[a]stonishingly, few EU scholars have approached the issue of the democratic deficit from an educational perspective)’; see also Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2005) 62; S Philippou, A Keating and D Hinderliter Ortloff, ‘Citizenship education curricula: comparing the multiple meanings of supra-national citizenship in Europe and beyond’ (2009) 42 Journal of curriculum studies 291, 296. 56 A Osler and H Starkey, ‘Education for democratic citizenship: a review of research, policy and practice 1995–2005’ (2006) 21 Research Papers in Education 433, 435, see also 455. 57 T Olgers, ‘Escaping the Box of Pandora, in K O'Shea, EDC policies and regulatory frameworks’ (Strasbourg, 6-7 December 2001). The two-fold challenge for ‘EU citizenship education’ 39 of definitions, approaches, objectives, sceptical and even hostile reactions emerge. Sensitive questions often remain unspoken, e.g. how competent are teachers, or, do pupils think sufficiently critically? To avoid propaganda and the indoctrination of future voters, ‘politics’ is not considered to be an appropriate curriculum subject.58 Although curriculum guidelines often include citizenship education, there is reticence about it in practice, as teachers want to avoid accusations of hidden agendas or the inappropriate influencing of young minds in schools. A recurring problem is that Member States fail to move beyond mere rhetoric on citizenship education. Citizenship education goals are set, but surveys and scholars point to an implementation gap.59 Everyone is in favour of citizenship education (who would advocate having uneducated citizens?). How the abstract ideal is to be translated into reality, however, is open to discussion. In its 2017 report, Eurydice draws attention to the fluidity of citizenship education.60 Both ‘citizenship’ and ‘education’ are debatable concepts in themselves. Combining them in ‘citizenship education’ intensifies the debate. Brubaker is realistic: ‘Citizenship and nationhood are intensely contested issues in European politics… They are likely to remain so for the foreseeable future’.61 The same can be expected to hold true for citizenship education. Shaw describes citizenship as ‘an open-textured concept’, with a host of meanings, susceptible to interpretation and even ideological manipulation, with no consensus even as to the methods for approaching it.62 Citizenship education can be accused of the same ‘muddiness’ as citizenship. It 58 Even the study of constitutional law at universities had to fight for acceptance. See L Heuschling, ‘Wissenschaft vom Verfassungsrecht: Frankreich’ in A von Bogdandy, P Cruz Villalón and PM Huber (eds), Handbuch Ius Publicum Europaeum, vol II Offene Staatlichkeit- Wissenschaft vom Verfassungsrecht (CF Müller Verlag 2007). 59 Bîrzéa, ‘EDC policies in Europe - a synthesis’ 29; Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2017) 19–21. 60 Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2017) 19–21; variations in organisation and content, i.a. p 43, 45. See also Commission/EACEA/Eurydice, Promoting citizenship and the common values of freedom, tolerance and non-discrimination through education: Overview of education policy developments in Europe following the Paris Declaration of 17 March 2015 (2016). 61 R Brubaker, Citizenship and nationhood in France and Germany (3rd edn, Harvard University Press 1996) 189. 62 J Shaw, ‘The many pasts and futures of citizenship in the European Union’ (1997) 22 ELRev 554, 558. See also B Hoskins and others, Contextual Analysis Report: Participatory Citizenship in the European Union (Report 1) (2012) 9- 12: countries have developed different citizenship models (liberal, communautarian, civic republi- Introduction 40 is not only citizenship which is a highly-charged concept: education in general is contentious, with all that implies for our children: ‘What children should learn at school and how the learning process should be organized is the source of never-ending challenge and change.’63 It is true that citizenship and education are the subject of rational reflection in political and social sciences, in philosophy or legal theory, yet, it must be recognised, both subjects reach into deeper layers of feelings, beliefs and values. Sir Bernard Crick, on whose recommendation citizenship was introduced into the English National Curriculum,64 states that citizenship education is important, ‘yet, it is also full of complications, conflicts and irrationalities’.65 There are countless theories of education, and the diverging viewpoints of governments, parents, children, schools, and other stakeholders, have to be reconciled. In the case of citizenship education in particular, obstacles and inherent tensions are part of the game, and they are not infrequently accompanied by terms such as suspicion, perennial debate, painful, or malaise.66 How then can some common ground be found on the issue of citizenship education? In the Member States, citizenship education is defined and approached in many different ways because it is closely related to the historical, political and cultural traditions of the nation states concerned.67 Even the terminology used to designate citizenship and citizenship educacan, critical) based on civic traditions, societal problems, or the political leaning of governing parties. 63 K Tomaševski, Human rights obligations: making education available, accessible, acceptable and adaptable (Right to education Primers No 3, 2001). 64 Advisory Group on Citizenship, Education for citizenship and the teaching of democracy in schools: the Crick Report (Qualifications and Curriculum Authority, 1998). See also n 594. 65 Foreword to D Heater, Citizenship : the civic ideal in world history, politics and education (3rd edn, Longman 2004) xi. 66 O Ichilov (ed), Citizenship and Citizenship Education in a Changing World (Woburn Press 1998); J Arthur, I Davies and C Hahn (eds), The SAGE Handbook of Education for Citizenship and Democracy (Sage 2008), Introduction by editors, see p 8; M Sundstrom and C Fernandez, ‘Citizenship education and diversity in liberal societies: Theory and policy in a comparative perspective’ (2013) 8 Education, Citizenship and Social Justice 103. 67 T Grammes, ‘Different Cultures in Education for Democracy and Citizenship’ (2012) 11 Journal of Social Science Education 3; J Ainley, W Schulz and T Friedman (eds), ICCS 2009 Encyclopedia: Approaches to civic and citizenship education around the world (International Association for the Evaluation of Educational Achievement IEA 2013) 20; Commission/EACEA/Eurydice, Promoting citizenship and the common values of freedom, tolerance and non-discrimination The two-fold challenge for ‘EU citizenship education’ 41 tion varies.68 Merely choosing one of the national models for citizenship education as a template for examining the situation of the EU citizen, would not be satisfactory. Scholarly writing on citizenship education does not offer a solution either. Definitions of the terms used in citizenship education are the subject of ‘ongoing and vigorous academic dialogue’.69 Which EU citizenship? The second challenge inherent in the concept of ‘EU citizenship education’ is the need to find a basic consensual view on the EU and EU citizenship before linking it with education.70 The EU is not only complex, but it is, to say the least, the object of diverging visions and opinions. As it weathers the storms of financial and economic crises, migration, or Brexit, the EU finds itself contested in its fundamentals by some, in its nuances by others.71 In its proposals for the EU27 by 2025, the Commission has set out five scenarios reflecting radically different visions of the EU.72 The fragility 6 through education: Overview of education policy developments in Europe following the Paris Declaration of 17 March 2015 (2016), see annex with references to various national programs and websites. 68 Examples in n 480. Overview of terms in Bîrzéa, ‘EDC policies in Europe - a synthesis’, appendix I-II; as well as examples in Hoskins and others, Contextual Analysis Report: Participatory Citizenship in the European Union (Report 1) 18–21; and CoE, Government Replies to the Questionnaire, in 2016 Report on the State of citizenship and Human Rights Education in Europe. See also H Becker, ‘Politische Bildung in Europa’ Bundeszentrale für politische Bildung (2012) : ‘Wer in der höchst diversen Szene politischer Jugend-, Erwachsenen- und Schulbildung schon in Deutschland heftig um Begriffe als Stellvertreter für Konzepte streitet, dem erscheinen die nationalen Ausprägungen und unterschiedlichen Begrifflichkeiten quer durch Europa erst recht unbezähmbar’. 69 W Schulz and others, IEA International Civic and Citizenship Education Study 2016: Assessment Framework (2016) 15. 70 Education in itself is a difficult topic in the EU context. See J Pertek, ‘L’éducation et la Communauté: une relation mouvementée et incertaine’ [2005] Law & European affairs 7. 71 Z Bañkowski and E Christodoulidis, ‘The European Union as an Essentially Contested Project’ (1998) 4 ELJ 341; L van Middelaar, De passage naar Europa. Geschiedenis van een begin (Historische uitgeverij 2009) 11–12: it is ‘extremely tricky’ to answer the question as to whether Europe exists as a political entity. 72 Commission White paper of 1 March 2017 on the future of Europe COM(2017) 2025 final; C Calliess, ‘Bausteine einer erneuerten Europäischen Union- Auf der Suche nach dem europäischen Weg: Überlegungen im Lichte des Weißbuchs der Europäischen Kommission zur Zukunft Europas’ (2018) 20 Neue Zeitschrift für Verwaltungsrecht 1. Introduction 42 of EU citizenship is apparent in civil and political society, where Eurosceptic views contrast with the ambitions of Eurofederalists for deeper integration.73 In scholarly writing, conflicting ideas on the EU result from attempts to fit the EU as a political system into concepts traditionally used in political science. Demos or no demos, democracy or demoi-cracy, international, supra-national or trans-national organisation, ...: many opinions are canvassed.74 Semantic debates appear to be about more than just semantics. Terms matter.75 Choosing to label the EU as a constitutional order, a polity, a multilevel system of governance, an international organisation, intergovernmental cooperation by sovereign Member States, or an internal market, produces different answers to the question as to whether, in a given form, the EU should be linked with citizenship education. Citizenship education would appear to be the natural companion of a constitutional model but might seem superfluous in the context of intergovernmental cooperation or an internal market. In a pluralistic society the diversity of views about the EU is normal and healthy. However, what should schoolchildren be taught? Should the EU as a subject be excluded from the school curriculum because it is too controversial for citizenship education?76 An author published by the German Bundeszentrale für politsche Bildung writes: Trotz der überragenden Bedeutung der EU für praktisch alle Politikbereiche lassen sich die einschlägigen Bücher an einer Hand abzählen. Ein akzeptiertes Konzept zur Beschäftigung mit Europa in der [Politische Bildung] ist bislang nicht in Sicht.77 73 See Eurobarometers, newspapers, think tanks, Bratislava meeting after Brexit. 74 See i.a. nn 1036 and 1702 and text. 75 L Azoulai and E Jaeger, ‘Review: The Passage to Europe (van Middelaar)’ (2014) 51 CMLRev 311, 311 (European integration, European project, European construction… terms carry important assumptions about the way we understand the EU). 76 JM Halstead and MA Pike, Citizenship and Moral Education: Values in Action (Routledge 2006) (controversial subjects in the classroom: death penalty, fox hunting, the EU, gay mariage). Cf AEC Struthers, ‘Human Rights: A Topic Too Controversial for Mainstream Education?’ (2016) 16 Human Rights Law Review 131. 77 R Müller, ‘Politische Bildung (und Europa)’ Bundeszentrale für politische Bildung (2016) : ’In spite of the overriding importance of the EU in practically all areas of politics, relevant textbooks can be counted on the fingers of one hand. An accepted model for studying Europe in politics classes is not yet in sight.’. The two-fold challenge for ‘EU citizenship education’ 43 Is it wise to wait until the waters calm and clear EU certainties appear? The answer this study advocates is: no, on the contrary. A society claiming to be democratic is supposed to make sure its citizens are on board. With potentially high waves in the sea of citizenship education and strong winds forecast around EU citizenship, firm anchor points are needed. Three anchor points First anchor point: Education for Democratic Citizenship (EDC) of the Council of Europe Charter on EDC/HRE The first anchor point is the concept of Education for Democratic Citizenship (EDC), with associated principles, as defined in the 2010 Charter on Education for Democratic Citizenship and Human Rights Education (hereafter Charter on EDC/HRE), recommended by the Council of Europe. It responds to the first challenge of finding a neutral and commonly accepted concept of citizenship education. Paragraph 2(b) contains the following definition: ‘Education for democratic citizenship’ means education, training, awareness raising, information, practices and activities which aim, by equipping learners with knowledge, skills and understanding and developing their attitudes and behaviour, to empower them to exercise and defend their democratic rights and responsibilities in society, to value diversity and to play an active part in democratic life, with a view to the promotion and protection of democracy and the rule of law.78 Hereafter, capital letters will be used for ‘Education for Democratic Citizenship’ (EDC) to refer specifically to this Council of Europe concept. Otherwise ‘education for democratic citizenship’ or ‘citizenship education’ will be the generic terms.79 7 78 CoE Recommendation CM/Rec(2010)7 of the Committee of Ministers to member states on the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education (11 May 2010). While the TFEU differentiates between ‘education’ (Art 165) and ‘vocational training’ (Art 166), in the EDC context, the concept of ‘education’ includes vocational training. ‘Education’ in the EDC concept is like the concept of ‘lifelong learning’ as defined in the Erasmus+ Regulation 1288/2013 (Art 2(1)). 79 For Eurydice’s definition of citizenship education, see text to n 902; see also definition in text to n 99. Introduction 44 Second anchor point: EU citizenship of the EU Treaties The second anchor point is the concept of EU citizenship and associated rights, as set out in the EU Treaties and the Charter of Fundamental Rights of the European Union (CFR), which constitute EU primary law.80 Referring to the EU and EU citizenship as described in EU primary law is a response to the second challenge, that is, the need to start from a basic consensual view. The 1992 Maastricht Treaty established the legal concept of ‘citizenship of the Union’ (hereafter EU citizenship). EU citizenship is defined in Articles 9 TEU and 20(1) TFEU: Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. Since the adoption of the 1992 Maastricht Treaty and the 2009 Lisbon Treaty, the rights of EU citizens are set out in Title II ‘Provisions on democratic principles’ of the TEU (Articles 9–11 TEU) and in Part Two ‘Nondiscrimination and citizenship of the Union’ of the TFEU (Articles 20–24 TFEU). Third anchor point: the right to education of the ICESCR and the Convention on the Rights of the Child (CRC) The third anchor point is the right to education as defined in the 1966 International Covenant on Economic, Social and Cultural rights (ICE- SCR) and the 1989 Convention on the Rights of the Child (CRC), which are binding international agreements ratified by all EU Member States. This will help to respond to the challenge of linking citizenship education and EU citizenship. Pursuant to Article 13(1) ICESCR: The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, toler- 8 9 80 Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2016] OJ C202/1; Charter of Fundamental Rights of the European Union [2016] OJ C202/389 (proclaimed at Strasbourg on 12 December 2007 by the European Parliament, the Council and the Commission [2007] OJ C303/1). Three anchor points 45 ance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.81 These educational aims are considered to be compulsory (‘shall be directed to’). Article 13(1) ICESCR develops the aims for education set out in Article 26(2) of the Universal Declaration of Human Rights (UDHR) and is comparable to Article 29(1) CRC.82 Research questions, method and objectives Implications of a joint assessment of the anchor points for citizenship education of EU citizens Starting from the three anchor points (the Council of Europe Charter on EDC/HRE, the EU Treaties on EU citizenship, and the right to education in international agreements), the central question examined in the study is: What are the implications for citizenship education of EU citizens of a combined reading––as to form and substance––of the provisions on Education for Democratic Citizenship in the Council of Europe Charter on EDC/HRE, on EU citizenship in the EU Treaties, and on the right to education in the ICESCR and CRC? As to the substance, the three anchor points are directly relevant for citizenship education in the EU. As to the form, however, they are based on normative instruments of varying legal force: a Council of Europe recommendation, EU primary law and interna- 10 81 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966 A/RES/2200 (XXI), entered into force 3 January 1976) 993 UNTS3 (emphasis added). 82 Art 29(1) CRC: ‘States Parties agree that the education of the child shall be directed to: (a) The development of the child's personality, talents and mental and physical abilities to their fullest potential; (b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; (c) The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; (d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; (e) The development of respect for the natural environment’. Introduction 46 tional agreements binding for Member States. This raises various questions. What are the legal status and effects of these anchor points within the legal orders of the Member States and within the EU legal order, separately and taken together? How should the three anchor points be combined in a legal analysis as to form (sources of variable normativity) and as to substance (combining the components)? How do EDC and the right to education apply to nationals of Member States in their capacity as EU citizens? The EU, in which Member State nationals live, is a relatively young construction compared with nation states, whose structures enjoy deeply embedded authority. In the face of the above mentioned ‘two-fold challenge’ (diverging opinions on citizenship education and on EU citizenship), the aim is to use sources of law as a secure starting point. A central concern of this study is to identify suitable teaching content for the EU dimension in education. What are the implications of a combined reading of the Charter on EDC/HRE, EU law, and the right to education for what EU citizens should learn about the EU at school? Finally, the issue of competence to act in the field of citizenship education will be addressed. Does the EU have the legal competence to promote education for democratic citizenship for EU citizens? On a combined reading of the instruments mentioned above, to what extent do EU citizens have a right to EU citizenship education and do Member States have a corresponding obligation to provide it? How do human rights affect the exercise of competences by actors in the education field? The importance of these questions is clear if compared with the traditional view that education is the state’s duty and prerogative. A member of the DARE network––Democracy and Human Rights Education in Europe––testifies: ‘I do not know how often I have heard this killer phrase: “Your work is incredibly important, but education is subject to national policies”’.83 How far does the discretion enjoyed by Member States with regard to the education of their citizens extend? Does citizenship education depend on the political views of the government which happens to be in power at any given time? Can Member States freely decide to include an EU dimension in the citizenship education which they provide for their nationals, or is their autonomy with regard to education policy con- 83 ; Georg Pirker, Arbeitskreis deutscher Bildungsstätten in former webpage accessed 16 October 2018. See also the recurring argument of Member State autonomy in education in debates before adoption of European Parliament Resolution of 12 April 2016 on Learning EU at school [2018] OJ C58/57. Research questions, method and objectives 47 strained by rights and obligations? Identifying rights and obligations could help to transform the rhetoric on citizenship education into actual implementation. Hence the need to examine the legal framework which Member States must take into account when designing their policies on citizenship education. Understanding the legal status and effects as to form and substance of the provisions on EDC, EU citizenship, and the right to education—especially when read together—will shed light on national educational autonomy. Global structure In order to answer the questions raised, the study is structured in four Parts, reflecting four consecutive steps. Part one analyses the Charter on EDC/HRE as to form and substance within the Council of Europe legal order (first anchor point). It is argued that the recommendation of the Committee of Ministers on the EDC/HRE Charter has a high degree of normativity and produces legal effects for the EU Member States as member states of the Council of Europe. EDC standards reflect a European consensus, including with regard to the concept of EDC itself. In Part two, EDC standards meet EU law. In an analysis as to form, I explain the normative reception of the EDC standards of the Council of Europe (fragmented, but convincing) in the EU legal order and demonstrate that the Charter on EDC/HRE should be taken into account in the interpretation of EU law on citizenship, democracy and education, while respecting EU autonomy. Based on the foundations of Parts one and two, Part three provides an analysis as to substance focusing on EU citizenship (second anchor point). It is argued that national EDC in the Member States––in an adaptation perspective––should include an EU dimension consistent with EU law. The result of a combined reading of EU law and EDC standards is the recognition of an EU dimension to the various components of EDC relevant to mainstream education. Part four examines the competence of the EU and of the Member States to bring this EU dimension into the national EDC curriculum and takes a human rights-based approach to education, considering inter alia the right to education (third anchor point) and its effects on the concept of quality education. It is posited that the EU can adopt incentive measures and recommendations to encourage EDC and its EU dimension. 11 Introduction 48 A legal analysis Analysis of legal sources will be the main method used to answer the research questions. Legal sources were consulted until 15 October 2019.84 Part one examines the normative framework on EDC in the Council of Europe legal order, including in relation to the ECHR and the case law of the European Court of Human Rights (ECtHR). The other Parts are based on an analysis of EU primary, secondary and case law, complemented by academic legal writing. The novel aspect of this study is that the three anchor points are not only read individually, but also in combination with one another. This enhances their significance. Member State law occasionally supplements the analysis, but no exhaustive comparative study is made. Empirical material on the state of citizenship education in Member States is borrowed from reports on citizenship education, i.a. of actors in the Council of Europe (review cycles of the Charter on EDC/HRE), Eurydice, the International Civic and Citizenship Education Study, and by academic writers. The value of law for citizenship education This study will clarify the legal foundations for learning about the EU at school. An examination of the law helps to understand why it is important to learn about the EU at school, what pupils should be taught, how they should be taught, and who is legally competent to ensure that study of the EU is part of the curriculum. Legal analysis contributes to the field of citizenship education in various ways. In conferences on citizenship education, I am frequently the only lawyer among the participants. Participants are government officials and policy makers, representatives of NGOs and youth organisations, educators and trainers of trainers, activists, and experts from multiple disciplines. The legal approach is often considered to be reductive.85 Indeed, society is much richer than its written law alone. That said, the law has much to offer the field of citizenship education. While the law cannot impose ‘truths’ on pupils, it cannot, either, be neglected. As Ronald Dworkin and other legal theorists have argued, law is more than the technical rule in a given legal text. Law includes the objectives of the rule (ratio legis), the policies, and the underlying principles.86 In a constant search for justice and 12 13 84 Links to websites were checked in July 2019. 85 See, e.g., RFCDC 2018, text to nn 303-304; also text to n 906. 86 R Dworkin, Law's Empire (Harvard University Press 1987); R Dworkin, A matter of principle (repr. edn, Clarendon 1992). Cp H Hart, The Concept of Law (2nd edn, Research questions, method and objectives 49 integrity, law cannot be separated from values and the underlying morality.87 This is valid for EU law, with EU primary law embracing values, objectives and principles.88 The application of the law often implies balancing those values, objectives and principles, and therefore requires critical thinking, which is especially pertinent to citizenship education. Admittedly, the analysis risks becoming ‘embroiled in the conjunctions of law, morality and education’.89 Yet working with the law is fertile ground for the field of citizenship education as it is a source simultaneously of objective support and challenge. It awakens the curiosity of all those concerned: the lawyer, the citizenship educator, and the pupil. For the lawyer, it may lead to the challenge of bridging the gap between, on the one hand, legal norms often considered to be self-evident because they are firmly established in primary law, and, on the other hand, legal culture or practice in contexts in which the norms in question are unfamiliar or even entirely unknown to the citizen. EU law is not an exception; it is even a very good example. The citizenship educator is challenged to go beyond communicating information about institutions and the pupil is invited to reflect and think critically, not just to absorb knowledge. EU law triggers several democratic citizenship competences (as defined further).90 The value of law for citizenship education is multifaceted. Law affects citizenship education from a number of different angles. It determines the legal competence of public authorities to set the school curriculum and sets limits to that competence, inter alia requiring respect for the constitution and for fundamental rights, such as freedom of education. In providing citizenship education, the right to education must be respected (compulsory aims of education) as well as rights in education (such as respect Oxford University Press 1994); H Kelsen, Pure Theory of Law (Knight tr, 2nd edn, University of California Press 1967). 87 See also Jääskinen, ‘Europeanisation of National Law: A Legal-theoretical Analysis’, 669: ‘legal order means a momentary and concrete order of legal norms, and combines the propositional and the concrete, whereas the legal system, that is, an order consisting of the conceptual and axiological elements of law, is both propositional and abstract’. 88 E.g. Arts 2- 6 TEU, Arts 18–19 TFEU. 89 M Minow, ‘What the rule of law should mean in civics education: from the "Following Orders" defence to the classroom’ (2006) 35 Journal of Moral Education 137. 90 CoE Reference Framework of Competences for Democratic Culture, Vol 1: Context, concepts and model (2018); Council Recommendation of 22 May 2018 on key competences for lifelong learning [2018] OJ C189/1. Introduction 50 for human dignity or freedom of expression).91 Law governs the relationship between the actors in the field (schools, teachers, pupils, parents, churches, NGOs, ...). Citizenship education is also said to strengthen rights through education, because education unlocks the door to the exercise of rights (e.g. citizenship rights, various human rights).92 Furthermore, law underpins the need for citizenship education in relation to basic legal principles, such as the rule of law, democracy and fundamental rights. Law provides substance for citizenship education.93 A connection traditionally made is that between citizenship education and constitutions (learning about constitutional values, the political system of the state, the institutions).94 The principle that education must be linked to the constitution has been confirmed by thinkers throughout history. Aristotle strongly encouraged the education of citizens in the spirit of their constitution: ‘There is no profit in the best of laws … if the citizens themselves have not been attuned, by the force of habit and the influence of teaching, to the right constitutional temper’.95 Condorcet (a philosopher at the time of the French revolution who devoted much thought to how to educate the newly born ‘citoyen’) affirmed: une constitution vraiment libre, où toutes les classes de la société jouissent des mêmes droits, ne peut subsister si l'ignorance d'une partie des citoyens ne leur permet pas d'en connaître la nature et les limites, les oblige de prononcer sur ce qu'ils ne connaissent pas, de choisir quand ils ne peuvent juger; une telle constitution se détruirait d'elle-même après quelques orages, et dégénérerait en une de ces formes de gou- 91 See i.a. § 179 and n 592 (human rights education should underpin citizenship education). 92 See n 2167. 93 On the importance of law in general within citizenship education, H Oberreuter, ‘Rechtserziehung’ in W Sander (ed), Handbuch politische Bildung (Reihe Politik und Bildung 32, 3rd edn, Wochenschau 2005). The author considers the law to be more than the technical rule: 326 (‘Recht erschöpft sich nicht in Rechtsnormen’); 329 (‘Recht ist kein Instrument der Herrschenden’), 328 (‘Politik ist dem Grundgesetz unterworfen’), 332 (‘Rechtserziehung ist Wertevermittlung’). See further n 579, n 592, and n 1071. 94 On the link between citizenship education and constitutions, further i.a. § 89 (n 670), § 165 . 95 R Curren, ‘A neo-Aristotelian account of education, justice, and the human good’ (2013) 11 Theory and Research in Education 231. Research questions, method and objectives 51 vernement qui ne peuvent conserver la paix au milieu d'un peuple ignorant et corrompu.96 A constitution is incomplete without corresponding citizenship education.97 Civics is defined by experts as ‘the didactic transmission of factual information about constitutions and institutions’.98 Yet, citizenship education is more than that definition of civics. Citizenship education refers to ‘the knowledge, understanding, skills and dispositions that are connected with public life’.99 Citizenship education potentially covers all aspects of society, from learning about traffic rules, to how to draw up a contract, but also–with some courage–discussing the Islamic headscarf or burqa. The 96 Condorcet, Cinq mémoires sur l’instruction publique (digital JM Tremblay edn, 1791), Premier Mémoire, IV : ‘a constitution based on true freedom, where all social classes enjoy the same rights, cannot survive if the lack of education of some citizens does not enable them to understand its nature and limits, obliges them to express a view on things of which they are ignorant, to choose when they cannot judge; such a constitution would destroy itself after a few storms and degenerate into one of those forms of government which cannot preserve peace in the midst of an uneducated and corrupted people.’ Concorcet was one of the most important educational philosophers of the French revolution, influential in the 19th and 20th century. 97 See also Talleyrand-Périgord, Rapport sur l'Instruction Publique, fait au nom du Comité de Constitution à l'Assemblée Nationale, les 10, 11 et 19 Septembre 1791 : ‘Les pouvoirs publics sont organisés: la liberté, l'égalité existent sous la garde toute-puissante des Lois; la propriété a retrouvé ses véritables bases; et pourtant la Constitution pourroit sembler incomplette, si l'on n'y attachoit enfin, comme partie conservatrice et vivifiante, L'INSTRUCTION PUBLIQUE’ (…) Enfin, et pour tout dire, la constitution existeroit-elle véritablement, si elle n'existoit que dans notre code; si de-là elle ne jettoit ses racines dans l'âme de tous les Citoyens; si elle n'y imprimoit à jamais de nouveaux sentimens, de nouvelles moeurs, de nouvelles habitudes?’; ‘L'Instruction, considérée dans ses rapports avec l'avantage de la Société, exige, comme principe fondamental, qu'il soit enseigné à tous les hommes: 1º. A connoître la Constitution de cette Société; 2º. A la défendre; 3º. A la perfectionner; 4º. Et, avant tout, à se pénétrer des principes de la morale qui est antérieure à toute Constitution, et qui, plus qu'elle encore, est la sauve-garde et la caution du bonheur public.’ See also: ‘En attachant l'Instruction publique à la constitution, nous l'avons considérée dans sa source, dans son objet, dans ses rapports, dans son organisation, dans ses moyens’. 98 I Davies, ‘Political Literacy’ in J Arthur, I Davies and C Hahn (eds), The SAGE Handbook of Education for Citizenship and Democracy (Sage) 382. 99 J Arthur, I Davies and C Hahn, ‘Introduction’ in J Arthur, I Davies and C Hahn (eds), The SAGE Handbook of Education for Citizenship and Democracy (Sage 2008) 9; see also nn 902- 904. Introduction 52 law can give guidance in discussions and controversies.100 Constitutions, and the law in general, may provide objective support for teachers and pupils in what are sometimes sensitive fields. Yet, caution is needed. The legal approach must remain dynamic and open. It should invite critical thinking, which is an essential component of citizenship education as well. In short, law contributes to the rationale for citizenship education, to the means, the methods, the substance, and the limits.101 The objective of this study is, therefore, not only to clarify the EU legal framework providing the basis for establishing effective measures for citizenship education for EU citizens. It will also consider the extent to which EU law provides the rationale, the method, the substance and the limits to citizenship education. To my knowledge, this has not been analysed before in a systematic way. The legal analysis will show that there is a normative basis (both formal and substantive) justifying the inclusion of an EU dimension in EDC. Considering citizenship education from the vantage point of EU law will be enriching in multiple ways. Law in the context of various epistemological approaches While law can make a valuable contribution to citizenship education, citizenship education cannot be studied in isolation by sole reference to the law. This study conjoins EU law with insights gained from other disciplines. I will sometimes refer to their contributions as context for the law, widening the field, giving depth to it, broadening the scope for critical reflection. Various other disciplines may shed light on the extent to which EU citizenship education can provide a solution to bridging the gap between the EU and its citizens. The literature on citizenship education is substantial. In many Member States, citizenship education is a new field of academic study, yet in some Member States––such as France and Germany––it is founded on an established tradition.102 Though individual country studies or comparative stud- 14 100 E.g. the proportionality principle as a tool in solving problems (text and n 1265). Law provides core content to be respected in citizenship education, see i.a. §§ 258 259 326 . Affective (irrational) dimensions of citizenship may need some legal constraints, see i.a. Nussbaum (nn 579-580). 101 Methods and substance of citizenship education cannot not always be distinguished, see S Reinhardt, Teaching Civics: A Manual for Secondary Education Teachers (Barbara Budrich 2015). 102 For France, see n 492 ff; for Germany n 497 ff. Arthur, Davies and Hahn, ‘Introduction’ (p 3–4: citizenship education has ‘relative immaturity as an academic field’ but insights from established disciplines such as political or social studies enhance understanding in the field). Research questions, method and objectives 53 ies are often cross-disciplinary,103 differentiating epistemological approaches helps to master the wealth of literature. Studies in history examine the phenomenon of citizenship education throughout different historical periods, in peaceful and in disturbed times, and point to its effects, auspicious as well as devastating.104 History provides evidence of the powerful role of citizenship education in the formation of nation states and the creation of national identities during the 19th century.105 The teaching of history (or of the state’s interpretation of history) is an important form of citizenship education.106 The effects of citizenship education on society 103 D Kerr, S McCarthy and A Smith, ‘Citizenship Education in England, Ireland and Northern Ireland’ (2002) 37 European Journal of Education 179; K Haav, ‘Civic Education in Estonia: Democratic or Authoritarian’ (2008) 7 Journal of Social Science Education 121; J Krek and MK Sebart, ‘Citizenship Education in Slovenia after the Formation of the Independent State’ (2008) 9 Journal of Social Science Education 66; D Kavadias and B Dehertogh, Scholen en Burgerschapseducatie : de totstandkoming van de vraag tot ondersteuning binnen scholen (Koning Boudewijnstichting 2010); M Sandström Kjellin and others, ‘Pupils’ voices about citizenship education: comparative case studies in Finland, Sweden and England’ (2010) 33 European Journal of Teacher Education 201; L Johnson and P Morris, ‘Critical citizenship education in England and France: a comparative analysis’ (2012) 48 Comparative Education 283; Sandström Kjellin and others, ‘Pupils’ voices about citizenship education: comparative case studies in Finland, Sweden and England’; M Jeliazkova and T Zimenkova, ‘Beyond description: Civic and political education in Europe - dialogue and comparison’ (2017) 16 Journal of Social Science Education 2. 104 Citizenship education was practiced in Ancient Greece and Rome; it was studied intensely in the Enlightenment (e.g. by Montesquieu and enlightened monarchs) and during the age of revolutions to form ‘le citoyen’ in the spirit of ‘liberté, égalité, fraternité’ (Condorcet, Talleyrand, Lepelletier); it was effective in nation-building during the 19th century, it was devastating in its use by totalitarian regimes and seen as one of the causes leading to World Wars. See D Heater, ‘The history of citizenship education: a comparative outline’ (2002) 55 Parliamentary Affairs (UK) 457; P Riesenberg, A History of Citizenship: Sparta to Washington (Anvil Series, Krieger 2002); D Heater, A history of education for citizenship (Routledge Falmer 2004); D Heater, Citizenship: the Civic Ideal in World History, Politics and Education (3rd edn, Manchester University Press 2004). Further on Montesquieu, Condorcet and Talleyrand, text to nn 96, 492, 1160, 1217- 1220. 105 Brubaker, Citizenship and nationhood in France and Germany; BRO Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (revised edn, Verso 2006). 106 On the impact of history education in schools, K Tomaševski, Human rights in education as prerequisite for human rights education (Right to Education Primers Introduction 54 (‘socialisation’) are researched in sociology.107 Empirical political science analyses the effectiveness of citizenship education by the various actors in society and seeks to provide evidence of its concrete impact (to a greater or lesser degree).108 Normative political science, philosophy (political and social), No 4, Novum Grafiska 2001) 19; G Clemitshaw, ‘Citizenship without history? Knowledge, skills and values in citizenship education’ (2008) 3 Ethics and Education 135; K Korostelina, ‘History Education and Social Identity’ (2008) 8 Identity 25; A Osler, ‘Patriotism, multiculturalism and belonging: political discourse and the teaching of history’ (2009) 61 Educational Review 85; KV Korostelina and S Lässig (eds), History education and post-conflict reconciliation: reconsidering joint textbook projects (Routledge 2013); M Lücke and others (eds), CHANGE – Handbook for History Learning and Human Rights Education (Wochenschau Verlag 2016). See also n 278, n 2441. 107 Sociological approach, i.a., in DH Kamens, ‘Education and Democracy: A Comparative Institutional Analysis’ (1988) 61 Sociology of Education 114; J Brine, ‘Educational and Vocational Policy and Construction of the European Union’ (1995) 5 International Studies in Sociology of Education 145; RG Niemi and MA Hepburn, ‘The Rebirth of Political Socialization’ (1995) 24 Perspectives on Political Science 7; RG Sultana, ‘A Uniting Europe, a Dividing Education? Euro‐centrism and the Curriculum’ (1995) 5 International Studies in Sociology of Education 115; G Delanty, ‘Citizenship as a learning process: disciplinary citizenship versus cultural citizenship’ (2003) 22 International Journal of Lifelong Education 597; MT Hallinan (ed) Handbook of the sociology of education (Springer 2006); A Keating, ‘Developing a European dimension to the sociology of education’ (2006) 27 British Journal of Sociology of Education 269; R Hedtke, T Zimenkova and T Hippe, ‘A Trinity of Transformation, Europeanisation, and Democratisation? Current Research on Citizenship Education in Europe’ (2007) 6 Journal of Social Science Education 5; S Philippou, ‘Policy, curriculum and the struggle for change in Cyprus: the case of the European dimension in education’ (2007) 17 International Studies in Sociology of Education 249; T Zimenkova and R Hedtke, ‘The Talk-and-Action Approach to Citizenship Education. An Outline of a Methodology of Critical Studies in Citizenship Education’ (2008) 7 Journal of Social Science Education 5; RM Brooks and JAK Holford, ‘Citizenship, learning and education: themes and issues’ (2009) 13 Citizenship Studies 85; K Dunn, ‘Left-Right identification and education in Europe: A contingent relationship’ (2011) 9 Comparative European Politics 292; F Borgonovi, ‘The relationship between education and levels of trust and tolerance in Europe’ (2012) 63 British Journal of Sociology 146; D Tröhler, ‘La construction de la société et les conceptions sur l'éducation. Visions comparées en Allemagne, en France et aux États-Unis dans les années 1900’ [2013] Education et sociétés 35; E Arbués, ‘Civic Education in Europe: Pedagogic Challenge versus Social Reality’ (2014) 4 Sociology Mind 226. 108 Empirical approach, i.a., in N Emler and E Frazer, ‘Politics: the education effect’ (1999) 25 Oxford Review Of Education 251; CL Hahn, ‘Citizenship Education: an empirical study of policy, practices and outcomes’ (1999) 25 Oxford Review Of Education 231; J Torney-Purta and others, Citizenship and education in Research questions, method and objectives 55 and ethics reflect on citizenship education in the light of its relationship to freedom, justice, equality, democracy, etc., and uncover its normative assumptions.109 The need, aims and methods of citizenship education are studied further in social sciences, in educational sciences in particular. Didactitwenty-eight countries: Civic knowledge and engagement at age fourteen (IEA 2001); SE Finkel, ‘Can democracy be taught?’ (2003) 14 Journal of Democracy 137; RG Niemi and M Sanders, ‘Assessing Student Performance in Civics: The NAEP 1998 Civics Assessment’ (2004) 32 Theory & Research in Social Education 326; B Hoskins, B D'Hombres and J Campbell, ‘Does Formal Education Have an Impact on Active Citizenship Behaviour?’ (2008) 7 EERJ 386; E Quintelier, ‘The effect of schools on political participation: A multilevel logistic analysis’ (2008) 25 Research Papers in Education 137−154; E Claes, ‘Schools and Citizenship Education. A Comparative Investigation of Socialization Effects of Citizenship Education on Adolescents’ (PhD in Social Science KULeuven, Faculteit Sociale Wetenschappen 2010); M Hooghe and others, Jongeren, politiek en burgerschap : politieke socialisatie bij Belgische jongeren (Acco 2012); A Keating, T Benton and D Kerr, ‘Evaluating the impact of citizenship education in schools: What Works and What are we Measuring?’ in M Print and D Lange (eds), Schools, Curriculum and Civic Education for Building Democratic Citizens (Series Civic and Political Education 2, Sense 2012); J Lauglo, ‘Do more knowledgeable adolescents have more rationally based civic attitudes? Analysis of 38 countries’ (2013) 33 Educational Psychology 262; AM Martens and J Gainous, ‘Civic Education and Democratic Capacity: How Do Teachers Teach and What Works?’ (2013) 94 Social Science Quarterly 956; S Verhaegen, M Hooghe and C Meeusen, ‘Opportunities to learn about Europe at school. A comparative analysis among European adolescents in 21 European member states’ (2013) 45 Journal of Curriculum Studies 838; RL Claassen and JQ Monson, ‘Does Civic Education Matter? The Power of Long-Term Observation and the Experimental Method’ (2015) 11 Journal of Political Science Education 404; E Claes and M Hooghe, ‘The Effect of Political Science Education on Political Trust and Interest: Results from a 5-year Panel Study’ (2017) 13 Journal of Political Science Education 33; JF Ziemes, K Hahn- Laudenberg and HJ Abs, ‘From Connectedness and Learning to European and National Identity: Results from Fourteen European Countries’ (2019) 18 Journal of Social Science Education (3: European Citizenship Education: Business as Usual or Time for Change?) 5. 109 E Callan, Creating Citizens: Political Education and Liberal Democracy (Oxford University Press 1997); A Lockyer, B Crick and J Annette, Education for Democratic Citizenship: Issues of Theory and Practice (Ashgate 2003); E Callan, ‘Citizenship and Education’ (2004) 7 Annual Review of Political Science 71; C Lohrenscheit, ‘Dialogue and Dignity - Linking Human Rights Education with Paulo Freire's "Education for Liberation"’ (2006) 5 Journal of Social Science Education 126; T McCowan, ‘Approaching the political in citizenship education: The perspectives of Paulo Freire and Bernard Crick’ (2006) 6 Educate 57; A Scherb, Der Bürger in der Streitbaren Demokratie: Über die normativen Grundlagen Politischer Bildung (Springer Verlag 2008). See also nn 565-594. Introduction 56 cal sciences examine appropriate methods for the classroom, including ways to stimulate critical thinking.110 Combining insights gained from other disciplines with EU law, I will propose an innovative learning method for EU citizenship education in schools in Chapter five. Bridging EU law and citizenship education Both EU law and the science of citizenship education are in flux. This study cannot comprehensively analyse all theories or issues in both fields, nor aim to give definitive answers. The objective is, rather, to link the fields and to raise awareness in each field of the other field of study. Too often, legal approaches to EU citizenship disregard the educational dimension and approaches to citizenship education lack the EU dimension. My ambition is to demonstrate, on the one hand, that in order to render EU citizenship more democratic, the development of an educational dimension is necessary, and that, on the other hand, in order to render citizenship education more adequate and acceptable in European society, an EU dimension needs to be interwoven into its component parts. In other words, it will be argued that the EU dimension must necessarily be part of the ongoing debates on citizenship education, and, conversely, that the educational dimension should be part of the thinking on EU citizenship. I hope to convince EU law experts and constitutionalists in the Member States of the educational implications of the general principles they deal with on a daily basis. The principle of non-discrimination on grounds of nationality, for instance, is taught at universities all over the EU (and is a cornerstone of EU construction) but is not necessarily matched by culture and actual practice. While law has much to offer citizenship education, citizenship education also has something to offer law. Looking through the prism of EDC will enrich the legal approach to EU citizenship and shed light on it. Considering EU citizenship from the perspective of education for democratic citizenship and the right to education contributes to the originality of the study. I also hope to convince citizenship education experts and curriculum designers of the EU implications of the educational principles they deal with on a daily basis. Educational aims in the EU Member States can only 15 110 W Sander (ed) Handbuch politische Bildung (Reihe Politik und Bildung 32, Bundeszentrale für politische Bildung 2005), see in particular W Sander on ‘Politikdidaktik’ as a science (21–35) and authors on ‘Methoden und Medien politischer Bildung’ (487–619); Reinhardt, Teaching Civics: A Manual for Secondary Education Teachers. Research questions, method and objectives 57 be achieved by including the EU dimension. The EU–driven by EU law– has evolved in a way which requires academic study of citizenship education to keep pace. Citizenship education should be systematically adapted to assure consistency with EU law (alignment). The empowerment of EU citizens fails when based on outdated content. Education: The Necessary Utopia––empowering EU citizens In 1996, Delors described education as ‘the Necessary Utopia’.111 That is even more true of citizenship education: it is necessary and utopian. At times, the ‘two-fold challenge’ of linking two uncertain subjects (citizenship education and EU citizenship) has given me a feeling of ‘mission impossible’. However, the path forward must be waymarked. The normative assumption underlying this study is that if we are to take the values of democracy, the rule of law and respect for fundamental rights seriously, citizenship education becomes extremely important. Quality education is needed to strengthen values of human dignity, freedom, equality and solidarity, which belong to the core values underlying national constitutions, the EU Treaties, and the CFR. Two aphorisms come to mind: ‘today’s education is tomorrow’s society’112 and ‘we are not born as a citizen, we are educated to be a citizen’113. Admittedly, citizenship education is closely connected to politics and power, and therefore a delicate enterprise.114 Yet, the benefits of citizenship education largely outweigh the potential risks— 16 111 J Delors, ‘Education: The Necessary Utopia’ in Learning: the Treasure Within, Report to Unesco of the International Commission on Education for the Twenty-first Century (Unesco 1996). See also E Callan, ‘A Note on Patriotism and Utopianism: Response to Schrag’ (1999) 18 Studies in philosophy and education 197; H Starkey, ‘Human rights, cosmopolitanism and utopias: implications for citizenship education’ (2012) 42 Cambridge Journal of Education 21. 112 Cited by Mr Tibor Navracsics, EU Commissioner for Education, Culture, Youth and Sport, in CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe (in accordance with the objectives and principles of the Council of Europe Charter on Education for Democratic Citizenship and Human Rights, 2017) 39. 113 Often repeated aphorism, see i.a. R Maxwell ‘Citizens Are Made, Not Born: How Teachers Can Foster Democracy’, in Citizens in the Making (2017 ASCD); Dutch Education minister A Slob, Citizenship to have key role in Dutch schools: ‘children are not born democratic’, in . 114 A Osler and YW Leung, ‘Human rights education, politics and power’ (2011) 6 Education, Citizenship and Social Justice 199. Introduction 58 risks which can, moreover, be contained.115 The objective is to empower EU citizens, an empowerment advocated by many actors.116 In the search for democracy in Europe, Calliess and Hartmann ask the central question: How does the public sphere develop in a transnational context?117 This study will contribute part of the answer by highlighting the educational substratum of the public sphere. The EU dimension cannot be left out of citizenship education, because the EU exercises important parts of public authority. There is no other choice for EU Member States but to find ways of dealing with citizenship education to the best of their abilities and including an EU dimension in it. Given the ‘two-fold challenge’, criticism of this study is unavoidable and will be taken into account in all openness.118 I will use continuous numbering for the paragraphs and chapters. 115 See, i.a., human rights in education and multiple guidelines (§ 179 ). 116 Scholars, institutions, politicians, NGOs, ... see further Part one, i.a. n 562; also M Dougan, N Nic Shuibhne and E Spaventa (eds), Empowerment and disempowerment of the European citizen (Hart 2012); G Smith, ‘The European Citizens’ Initiative: A New Institution for Empowering Europe’s Citizens?’ in M Dougan, N Nic Shuibhne and E Spaventa (eds), Empowerment and Disempowerment of the European Citizen (Hart 2012); A Somek, ‘The Individualisation of Liberty: Europe's Move from Emancipation to Empowerment’ (2013) 4 Transnational Legal Theory 258; C Calliess and M Hartmann, Zur Demokratie in Europa: Unionsbürgerschaft und europäische Öffentlichkeit (Mohr Siebeck 2014); D Sarmiento and E Sharpston, ‘European Citizenship and Its New Union: Time to Move on?’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge University Press 2017) 226 (‘only with the support of empowered citizens will the European Union have a real future’); and European Parliament Resolution of 18 May 2010 on ‘An EU Strategy for Youth – Investing and Empowering’ [2011] OJ C161E/21; Commission Citizenship Report 'Strengthening Citizens' Rights in a Union of Democratic Change, EU Citizenship Report 2017' COM(2017) 030 final/2; Commission Communication 'A Modern Budget for a Union that Protects, Empowers and Defends- The Multiannual Financial Framework for 2021-2027' COM(2018) 321 final. 117 Calliess and Hartmann, Zur Demokratie in Europa: Unionsbürgerschaft und europäische Öffentlichkeit 150: ‘Wie entstehen Öffentlichkeiten in der transnationalen Konstellation?’. 118 Reactions to . Research questions, method and objectives 59 Education for Democratic Citizenship and the Council of Europe PART I Introduction: Relevance of Council of Europe norms on education for the EU and its Member States Structure of Part one Part one examines the Charter on EDC/HRE as an anchor point for a neutral and commonly accepted concept of citizenship education. That concept will be examined with regard to EU citizens in Parts two and three. The Introduction to Part one provides an initial explanation as to why a Council of Europe instrument has been chosen as an anchor point and how it is relevant for the EU and its Member States.119 Chapter one is descriptive. The Charter on EDC/HRE is described as to its form (non-binding) and its substance (EDC concept and principles) in section A, and is then situated in its normative context in section B. The account of the genesis and the restatements of the Charter by Council of Europe bodies provides insight into the rationale and the consistency of Council of Europe action on EDC. Against this background, Chapter two assesses the effects of the Charter in the Council of Europe legal order through an analysis of case law of the ECtHR (sections A and B). The argument that EDC standards carry great weight is developed further in section C based on criteria borrowed from scholars. Strengths and weaknesses of the Charter are pointed out. The Charter on EDC/HRE has a high degree of normativity, reflecting the European consensus on the need for, the concept, and the principles of EDC and HRE. Finally, in section D, the Charter on EDC/HRE is examined in the context of some other epistemological approaches in order to establish its significance as an anchor point as to substance. Caveats about citizenship education in general should be acknowledged before addressing the question of citizenship education for the EU citizen. It will be concluded that the Charter on EDC/HRE and the EDC standards it contains, form a reliable anchor point for the analysis in the following parts of the study. An unconvincing starting point? One may wonder why a recommendation of the Council of Europe has been chosen as an ‘anchor point’ for this study. Recommendations are not 17 18 119 Further explained in Chapters two, three and four (see §§ 74 129 145 ). 63 binding and the Council of Europe has a relatively weak reputation.120 Seen from the angle of EU law, where many binding norms have direct effect and primacy, causing national legislation to be set aside, this may appear to be a weak starting point. To motivate the reader for the subsequent analysis of Council of Europe instruments, I will first recall a number of provisions of the Council of Europe Statute, EU primary law, and the Memorandum of Understanding between the EU and the Council of Europe. The standards set by the Council of Europe are relevant both from the perspective of the EU Member States and from that of the EU. Members of the Council of Europe, parties to the Statute With regard to the EU Member States, it is recalled that all EU Member States (hereafter capitalised, as in the EU Treaties) are among the 47 member states of the Council of Europe (hereafter not capitalised, as in the Charter on EDC/HRE). They are parties to the Statute (Article 2), which is a binding international agreement.121 The analysis of the legal status and effects of the Charter on EDC/HRE is relevant for them in their capacity as member states of the Council of Europe. In that capacity, EU Member States participate in the norm-setting of the Council of Europe and are called upon to give effect to the norms in their domestic legal orders. Each member state must accept the principles of the rule of law and of the enjoyment by all persons of human rights, and must collaborate sincerely and effectively to achieve the aims of the Council (Article 3 Statute, sanctioned by Article 8). At the same time, EU Member States are actors in the EU. Their legislative, executive and judicial authorities are involved in the adoption, implementation and enforcement of EU decisions.122 In that capacity, the three following arguments are also relevant for them. 19 120 G Sasse, ‘The Council of Europe as a Norm Entrepreneur: The Political Strengths of a Weak International Institution’ in N Walker, J Shaw and S Tierney (eds), Europe’s Constitutional Mosaic (Hart 2011) 171. See also text to n 398. 121 Statute of the Council of Europe (signed in London, 5 May 1949; entry into force 3 August 1949), ETS No 001. See signatures and ratifications in . EU Member States who joined the CoE more recently are Hungary (1990); Poland (1991); Bulgaria (1992); Estonia, Lithuania, Slovenia, the Czech Republic, the Slovak Republic and Romania (1993); Latvia (1995); and Croatia (1996). 122 K Lenaerts and P Van Nuffel, European Union Law (R Bray and N Cambien, eds 3rd edn, Sweet & Maxwell 2011) 609 ff. Introduction 64 Sharing foundational values From the perspective of the EU, three arguments stand out as a justification for an analysis of Council of Europe norms on EDC. Firstly, the Council of Europe and the EU share foundational values. Democracy, the rule of law and respect for human rights, which are at the core of the Council of Europe mission (Article 1 and 3 Statute), are also values on which the Union is founded (Article 2 TEU). Only European States which respect these values can become Member States of the Union (Article 49 TEU, and Article 7 TEU on a clear risk of a serious breach). In the Council of Europe, as in the EU normative order, the rule of recognition is not neutral, but is value-charged.123 In the preamble to the Statute, the governments of the member states of the Council of Europe reaffirm ‘their devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy’.124 Promoting these values is its core mission125 and the Council of Europe is ‘[f]irmly convinced that education and training play a central role in furthering this mission’.126 Democracy, the rule of law and human rights are the values at the basis of the commitment of Council of Europe member states to the EDC project and of ‘the standards they are setting themselves to achieve.’127 Certainly, democracy and human rights are founded on law and institutions. Yet, as Mr. Thorbjørn Jagland, Secretary General of the Council of Europe observed: 20 123 For the CoE legal order, see Pinto de Albuquerque, Partly dissenting opinion in Muršić v Croatia no 7334/13 (ECtHR 20 Oct 2016), para 26. 124 Third recital. 125 Repeated over and over again in CoE instruments. All activities of the CoE must contribute to the fundamental objective of promoting human rights, democracy and the rule of law, see i.a. CoE Third Summit of Heads of State and Government, The Declaration and the Action Plan (Warsaw, 16-17 May 2005), para 1. 126 CoE Recommendation CM/Rec(2010)7 of the Committee of Ministers to member states on the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education (11 May 2010), second and third recital. See also CoE Recommendation Rec(2002)12 of the Committee of Ministers to member states on education for democratic citizenship (16 October 2002), para 1; and text to n 233. 127 Explanatory memorandum to CoE Recommendation CM/Rec(2010)7 of the Committee of Ministers to member states on the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education (11 May 2010), para 24. Introduction 65 While democratic institutions are crucial, they will only work if they build on a democratic culture and a culture of human rights; and in building this culture, for each generation, we need our education systems to play a key role.128 The EU institutions, too, are convinced that education plays a central role in furthering a culture of democracy and human rights. The European Parliament, the Council and the Commission confirm the role of education in this respect.129 Cooperation of the EU with the Council of Europe, in particular in education Secondly, the EU ‘shall’ cooperate with the Council of Europe in general (Article 220 TFEU) and on education in particular (Article 165(3) TFEU). Article 220 TFEU states that the Union shall establish all appropriate forms of cooperation with the organs of the Council of Europe. Article 165(3) TFEU provides a specific legal basis: the Union and the Member States shall foster cooperation with competent international organisations in the field of education, in particular the Council of Europe.130 While sharing values, the Council of Europe and the Union have different objectives, as appears from their constitutional documents. For the EU, education is not a central preoccupation. Absent from the Treaty of Rome, for a long time education only appeared incidentally to Community action in the economic sphere. The first instance of Community action in the field of education dates from the 1970s (i.a. vocational training related to the single market).131 The 1992 Treaty of Maastricht 21 128 CoE Proceedings of the Conference on 'Human Rights and Democracy in Action - Looking Ahead: The Impact of the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education' (Strasbourg, 29-30 November 2012), p 7. See also Thorbjørn Jagland’s Foreword to CoE Reference Framework of Competences for Democratic Culture, Vol 1: Context, concepts and model (2018). Further CoE Third Summit of Heads of State and Government, The Declaration and the Action Plan (Warsaw, 16-17 May 2005); in the same way CoE Report of the Group of Eminent Persons of the Council of Europe, Living together: combining diversity and freedom in 21st century Europe (2011) 37. 129 See adopted instruments in i.a. §§ 118 120 124 127 . 130 Emphasis added. See also Art 167(3) TFEU (culture). Cp Art 166(3) TFEU on vocational training: no specific reference to the CoE. 131 For the key stages of Community action in education, see L Pépin, The history of European cooperation in education and training. Europe in the making - an example (European Commission 2006) 22–35. Introduction 66 conferred competences on the EU with regard to education, but only supporting competences.132 The recent and limited nature of these competences explains why many legal instruments on education stem from outside the EU legal order. For the Council of Europe, however, education has been part of its core mission since the very beginning. After the war, the Council of Europe was immediately seen as the appropriate forum for educational cooperation between states,133 and it did pioneering work, for instance on adult education or language learning, fields in which the EU only later took an interest.134 At present, education still constitutes a central focus of the standardsetting activities of the Council of Europe, a field in which it has developed significant expertise. Against this background of shared values but different objectives and competences, it is thus not so surprising that this study should start with Council of Europe standard-setting on EDC. Examining the legal status and effects of Council of Europe recommendations on EDC will moreover make it possible to take a broader perspective. In the specific context of the EDC recommendations, the basic question becomes: are these recommendations appropriate as a reference framework for EU policy and how effective are they at a normative level? Recognised benchmark and shared priority Thirdly, the EU recognises that the Council of Europe sets the benchmark for human rights, the rule of law and democracy, and mentions EDC and HRE as a shared priority and focal area for cooperation in the Memorandum of Understanding (MOU). The 2007 Memorandum of Understanding between the EU and the Council of Europe (MOU) was the response to a call by the Council of Europe Heads of State and Government at the 2005 Warsaw Summit ‘to create a new framework for enhanced co-operation and interaction in areas of common concern, in particular human rights, democracy and the rule of law’, as they were ‘determined to ensure complementarity of the Council of Europe and the other organizations involved in building a demo- 22 132 Arts 126–127 Treaty on European Union, signed at Maastricht on 7 February 1992 [1992] OJ C191/1. 133 See i.a. CoE Standing Conference of European Ministers of Education, Resolution on the activities of international organisations in the fields of education and science (No 3) and Resolution on future meetings of the Ministers of Education (No 4) (The Hague, 12-13 November 1959). 134 Pépin, The history of European cooperation in education and training. Europe in the making - an example 51–52, 83, with other examples. Introduction 67 cratic and secure Europe’.135 The Heads of State and Government of the member states stated among their principal tasks: ‘We will make full use of the Council of Europe’s standard-setting potential’.136 Several provisions of the MOU are applicable to education for democratic citizenship and human rights. Under its first heading, the Memorandum sets out ‘Purposes and principles of co-operation’, seeking ‘to achieve greater unity between the states of Europe through respect for the shared values’.137 In ‘all areas of common interest’, the relationship between the Council of Europe and the EU will be developed.138 Paragraph 10 states that ‘[t]he Council of Europe will remain the benchmark for human rights, the rule of law and democracy in Europe.’139 Cooperation ‘will take due account of the comparative advantages, respective competences and expertise’ (avoiding duplication and fostering synergy). It ‘will search for added value and make better use of existing ressources’. It is understood that the Council of Europe and the EU ‘will acknowledge each other’s experience and standard-setting work, as 135 CoE Third Summit of Heads of State and Government, The Declaration and the Action Plan (Warsaw, 16-17 May 2005), para 10. Follow-up in J-C Juncker, Council of Europe - European Union: 'A sole ambition for the European continent', Report to the attention of the Heads of State or Governments of the Member States of the Council of Europe (2006). See earlier CoE Compendium of Texts governing the relations between the Council of Europe and the European Union (2001). On the cooperation, see F Benoît-Rohmer and H Klebes, Council of Europe Law - Towards a pan-European legal area (CoE 2005) 146 ff; T Joris and J Vandenberghe, ‘The Council of Europe and the European Union: Natural Partners or Uneasy Bedfellows’ (2008-2009) 15 Columbia Journal of European Law 1; E Cornu, ‘The impact of Council of Europe Standards on the European Union’ in RA Wessel and S Blockmans (eds), Between Autonomy and Dependence: The EU Legal Order Under the Influence of International Organisations (Asser Press 2013) 116–120. 136 CoE Third Summit of Heads of State and Government, The Declaration and the Action Plan (Warsaw, 16-17 May 2005), Action Plan, para 3, Guidelines, paras 1 and 3. See also CoE Second Summit of Heads of State and Government, Final Declaration and Action Plan (Strasbourg, 10-11 October 1997). 137 Memorandum of Understanding between the Council of Europe and the European Union (2007), paras 1 and 8. 138 Para 9, ‘in particular the promotion and protection of pluralistic democracy, the respect for human rights and fundamental freedoms, the rule of law, ...’. 139 Emphasis added. Compared to previous documents, a new recognition, see M Kolb, The European Union and the Council of Europe (Palgrave Macmillan 2013) 153. Introduction 68 appropriate, in their respective activities.’140 Undeniably, under these provisions of the first heading of the MOU, the Charter on EDC/HRE counts as an ‘existing resource’. If it is a Council of Europe standard and to be seen as part of ‘the benchmark for human rights, the rule of law and democracy in Europe’, it is ‘appropriate’ that the EU ‘acknowledges’ the Council of Europe’s experience and ‘standard-setting work’ in the field of EDC/HRE. It is thus relevant to examine the legal status and effects of norms on EDC and to see in what legal form the EU ‘acknowledges’ them. Under a following heading, the Memorandum mentions EDC and HRE expressis verbis among the ‘Shared priorities and focal areas for co-operation’.141 In the area of common interest ‘Human rights and fundamental freedoms’, the Memorandum states that the EU ‘regards the Council of Europe as the Europe-wide reference source for human rights’, that ‘the relevant Council of Europe norms will be cited as a reference in European Union documents’ and that cooperation between the Council of Europe and the EU will include the promotion of human rights education.142 Applying the provisions of this heading, the Charter on EDC/HRE undoubtedly qualifies as a ‘relevant Council of Europe norm’ to be cited as a reference in EU documents.143 In the area of common interest ‘Education, youth and the promotion of human contacts’, it is stated that ‘[t]he Council of Europe and the European Union will co-operate in building a knowledge-based society and a democratic culture in Europe, in particular through promoting democratic citizenship and human rights education.’144 In the youth field, cooperation will aim ‘to empower young people to participate actively in the democratic process’.145 The Council of Europe and the EU ‘will draw on each other’s expertise and activities to promote and strengthen democracy and good governance’ as well as ‘democratic stability’.146 Applying these provisions, the relevance of an 140 Para 12. See also para 25: ‘to the extent necessary the Council of Europe and the European Union will consult each other at an early stage in the process of elaborating standards’. A difficult provision in the negotiation, ibid, 153. 141 Para 14. 142 Paras 17 and 21. 143 Reception of the Charter on EDC/HRE in the EU legal order is analysed in Part two. 144 Para 36. See CoE Third Summit of Heads of State and Government, The Declaration and the Action Plan (Warsaw, 16-17 May 2005), Action plan, III, 3. 145 Para 37. 146 Paras 27 and 30. Introduction 69 analysis of the Charter on EDC/HRE from the perspective of EU law and EU citizenship speaks for itself. Both the EU institutions and the Council of Europe continue to refer to the 2007 Memorandum of Understanding.147 In the 2010 Stockholm Programme, the European Council defines strategic guidelines for the development of an area of freedom, security and justice. It considers that the ‘work of the Council of Europe is of particular importance. It is the hub of the European values of democracy, human rights and the rule of law. The Union must continue to work together with the Council of Europe based on the Memorandum of Understanding’.148 In line with the MOU, the Council of Europe and the EU do indeed cooperate on EDC/HRE ‘within their respective policy frameworks’ and in various forms.149 What is the legal value of the MOU? Admittedly, this question is the subject of discussion among academic writers.150 It appears from the negotiating process that the EU did not want to create a legally binding instrument.151 Moreover, the terminology used in the Memorandum is that of a non-binding instrument (e.g. constant use of ‘will’ instead of ‘shall’).152 However, it cannot be denied that the MOU was signed by the EU, represented by the President of the Council and by the European Commis- 147 CoE Parliamentary Assembly Recommendation 2060(2015) 'The implementation of the Memorandum of Understanding between the Council of Europe and the European Union', para 6. 148 European Council, The Stockholm Programme — An open and secure Europe serving and protecting citizens [2010] OJ C115/1, 7(6). Further cooperation in line with the MOU: Commission Communication 'Strengthening the rule of law within the Union: A blueprint for action' COM(2019) 343 final; CoE Committee of Ministers Summary Report on co-operation between the Council of Europe and the European Union Helsinki (16–17 May 2019) CM(2019)67-final; CoE Parliamentary Assembly Recommendation 2151 (2019) 'Establishment of a European Union mechanism on democracy, the rule of law and fundamental rights'. 149 See § 124 ff. 150 See Kolb, The European Union and the Council of Europe 142–143, with references. 151 Ibid 152; see also 162: a main contentious issue of the MOU was its legal nature (the CoE preferred it binding, the EU was hesitant). The drafting of the text took over two years and was ‘very difficult’ (ibid, 146). 152 Ibid 143, 151 (only the preamble in the beginning of the document reminds of a treaty). Introduction 70 sion.153 It is certainly an agreement expressing a political commitment.154 It is thus relevant to examine how the Charter on EDC/HRE fits into the standard-setting work of the Council of Europe and in what way it is part of the benchmark for human rights, the rule of law, and democracy recognised by the EU. Although in EU law, most attention has been directed at the Council of Europe standards on human rights (EHCR), standards on democracy are just as important. Indeed, they belong to the shared priorities and focal areas for cooperation. In the light of the provisions of EU primary law cited above, the Council of Europe Statute, and the MOU, it can be concluded that the analysis of the Charter on EDC/HRE which follows is relevant, both from the perspective of the Member States and that of the EU. 153 Signed in Strasbourg on 23 May 2007. Commissioner for External Relations, Benita Ferrero-Waldner, represented the European Commission. Germany had the presidency of the Council of the EU. 154 Kolb, The European Union and the Council of Europe 142. Introduction 71 The Charter on Education for Democratic Citizenship and Human Rights Education (EDC/HRE) Form and substance Legal status within the Council of Europe legal order Terminology—endogenic and exogenic norms The ‘legal order’ of the Council of Europe is the composite of valid legal norms based on the Statute of the Council of Europe–a treaty which functions as the founding text–and on statutory resolutions. 155 Some authors call it ‘a common legal area’, ‘a pan-European legal area’ (‘un espace juridique paneuropéen’), or ‘an autonomous legal order’, and describe the Statute as ‘constitutional’.156 The expression ‘legal instrument’ is used in a wide sense, including conventions, recommendations, declarations, resolutions, guidelines, memoranda of understanding, etc.157 Legal instruments contain ‘norms’, the term used to refer to the substance of the legal instrument. From the viewpoint of the EU, norms originating in normative systems other than that of the EU, are described as ‘exogenic’; those norms originating in the EU legal order itself are ‘endogenic’. The Charter on EDC/HRE is a norm exogenic to the EU, but a norm which the EU is committed to acknowledging (MOU). The first question here is: what are the legal status and effects of the Charter on EDC/HRE as a matter of Council CHAPTER 1 A 1. 23 155 N 121. 156 I.a. Benoît-Rohmer and Klebes, Council of Europe Law - Towards a pan-European legal area (‘constitutional charter’); B Haller, H Krüger and H Petzold (eds), Law in Greater Europe: Towards a Common Legal Area (Kluwer Law International 2000); HG Schermers and NM Blokker, International Institutional Law: Unity within Diversity (5th edn, Martinus Nijhoff 2011); Separate Opinion of Pinto de Albuquerque in Baka v Hungary no 20261/12 (ECtHR 23 June 2016), para 23 (‘an autonomous legal order’). 157 More on the legal quality of CoE instruments, text to n 402, n 409 ff. Also in the EU legal order, ‘legal instrument’ gets a wide definition; see European Convention, Working Group IX on Simplification (aimed at reducing the number of legal instruments available to the Union’s Institutions, then 15 types); Legal acts (Art 288 TFEU). 73 of Europe law? The answer is directly relevant to the EU Member States in their capacity as Council of Europe member states. What is meant by ‘a standard’ and to what extent the Charter on EDC/HRE can be qualified as a standard will be examined step by step in this Part. In what legal form the EU then acknowledges the EDC standards, will be analysed in Part two (reception of exogenic norms). A non-binding Charter The term ‘Charter’ is ambiguous. International practice contains examples of binding Charters (such as the UN Charter or the EU CFR) as well as non-binding Charters (such as the European Charter on the Participation of Young People in Local and Regional Life158). However, there is no doubt that the Charter on EDC/HRE is a non-binding text, a document without treaty status. The Charter is set out in the appendix to Recommendation CM/Rec(2010)7. Recommendations are, by definition, non-binding legal instruments. It was the clear intention of the member states that the Charter should be ‘non-binding as a matter of public international law’.159 The explanatory memorandum records how in 2009, a binding and a nonbinding draft text was presented to the members of the Steering Committee for Education at a plenary meeting. The first draft text was a convention, using the language of obligation (‘shall’), and providing for a reporting mechanism by states and for external supervision. The second text used softer terms (‘should’) and relied on self-evaluation by states. An overwhelming majority chose the non-binding variant.160 To seal the non-binding character, a subtitle ‘Charter without the status of a Convention’ was added. This subtitle was dropped later when it was decided to adopt the Charter ‘in the framework of a recommendation’ in accordance with the practice of the Council of Europe, as advised by the Legal Advice Department of the Council of Europe. Since the Charter was adopted in the form of an appendix to a recommendation, its non-binding character was not in doubt. At the same time, however, the authors of the Charter on EDC/HRE wanted to express their strong commitment by choosing the title and form of a ‘charter’, a more ‘weighty’ document than those previ- 24 158 CoE Congress of Local and Regional Authorities of Europe Recommendation 128(2003) on the revised European Charter on the Participation of Young People in Local and Regional Life (21 May 2003). 159 Explanatory memorandum para 32. 160 Explanatory memorandum paras 17–18. See text to n 518. CHAPTER 1 The Charter on Education for Democratic Citizenship 74 ously adopted.161 The preamble of the Charter was reformulated as the preamble of the recommendation.162 Form: a recommendation of the Committee of Ministers addressed to member states On 11 May 2010, under the terms of Article 15(b) of the Statute, the Committee of Ministers adopted ‘Recommendation CM/Rec(2010)7 recommending the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education’.163 Pursuant to Article 1(a) of the Statute, the Council of Europe aims ‘to achieve a greater unity between its Members for the purpose of safeguarding and realizing the ideals and principles which are their common heritage and facilitating their economic and social progress’. To pursue this aim, the Committee of Ministers acts on behalf of the Council of Europe as the decision-making body (Article 13 Statute). It is important to note the representation of all EU Member States in this body, as the Committee of Ministers is composed of the Ministers for Foreign Affairs of each member state of the Council of Europe, or a representative, if possible, a member of Government (Article 14 Statute). The Committee of Ministers has meetings at ministerial level (generally once a year) and at deputies level (regularly), the latter taking decisions of the same legal value.164 Under Article 15 of the Statute, norm-setting by the Committee of Ministers can take the form of conventions (paragraph a), which become binding for members who ratify them afterwards, or ‘in appropriate cases’ the form of recommendations to the governments of members (paragraph b), which are legally non-binding. By adopting norms in these two forms the Committee of Ministers contributes to the creation of a common European legal area.165 Council of Europe standards 25 161 Explanatory memorandum para 32. 162 Explanatory memorandum paras 20–21, 23, 32. See text to n 466. 163 First preambular paragraph. 164 Meetings at deputies level are not provided for in the Statute. See Art 14 Rules of Procedure of the Committee of Ministers (each representative on the Committee of Ministers appoints a Deputy to act on its behalf when the Committee is not in session. They transact business and record decisions on behalf of the Committee of Ministers). More on the Committee of Ministers at Deputy level: CoE iGuide, Committee of Ministers: Procedures and working methods (24 September 2018). 165 Cornu, ‘The impact of Council of Europe Standards on the European Union’ 115. On the common legal space, more in G De Vel, The Committee of Ministers of the Council of Europe (CoE 1995); G De Vel and T Markert, ‘Importance and Weaknesses of the Council of Europe Conventions and of the Recommenda- A Form and substance 75 (like UN standards) can thus be legally binding or non-binding. The fact that the member states have opted for a non-binding form, does not imply that they have not agreed on a common text containing ‘a standard’.166 The Council of Europe compendium of standards includes recommendations and guidelines adopted by the Committee of Ministers, the Parliamentary Assembly, the Congress of Local and Regional Authorities, the Commissioner for Human Rights, and the European Commission for Democracy through Law (hereafter the Venice Commission).167 Under the Statute, the strongest legal form for the Charter on EDC/HRE would thus have been a convention, ratified by all member states. In practice, however, the Committee of Ministers considers the field of education in general, and the sensitive field of education for democratic citizenship in particular, to be ‘appropriate cases’ (Article 15(b) Statute) for the use of recommendations. Scholars point to various advantages which make recommendations a politically interesting choice.168 By contrast with conventions, which only become binding after a certain period of time tions addressed by the Committee of Ministers to Member States’ in B Haller, HC Krüger and H Petzold (eds), Law in Greater Europe: Towards a Common Legal Area (Kluwer Law International 2000) 353; Benoît-Rohmer and Klebes, Council of Europe Law - Towards a pan-European legal area 123; S Schmahl and M Breuer (eds), The Council of Europe: Its Law and Policies (Oxford University Press 2017). For the type of texts adopted by the Committee of Ministers, see . 166 Oxford dictionaries define a ‘standard’ as ‘[a] level of quality or attainment’ or ‘[s]omething used as a measure, norm, or model in comparative evaluations’. 167 Compendium of standards, see e.g. CoE Secretary General, State of Democracy, Human Rights and the Rule of Law in Europe. Report 2014, 9; also n 414. 168 De Vel and Markert, ‘Importance and Weaknesses of the Council of Europe Conventions and of the Recommendations addressed by the Committee of Ministers to Member States’ 347, 351, 353; Benoît-Rohmer and Klebes, Council of Europe Law - Towards a pan-European legal area 123 (it is said in the CoE that to advance the rule of law, a good recommendation is preferrable to a bad convention). Bartsch explains a shift in 2000 from treaty obligations to recommendations, with more easily reached compromises: H-J Bartsch, ‘The Acceptance of Recommendations and Conventions within the Council of Europe’ in Le rôle de la volonté dans les actes juridiques: Etudes à la mémoire du Professeur Alfred Rieg (Bruylant 2000) 94. Sasse addresses four plausible explanations for the sustained norm production and credibility of the CoE, see Sasse, ‘The Council of Europe as a Norm Entrepreneur: The Political Strengths of a Weak International Institution’. See also for international organisations in general, Schermers and Blokker § 1229: in some fields, as WHO, ‘[t]he speed and flexibility of recommendations are preferred to the cumbersome formality of legally binding regulations’. CHAPTER 1 The Charter on Education for Democratic Citizenship 76 and only on those who have ratified them, recommendations are immediately and universally applicable to all member states. While the process for the adoption of conventions tends to be lengthy and rigid because of the need for the consent of each state party, recommendations allow for a flexible and rapid response to changing circumstances. Moreover, the noncompulsory nature of recommendations ensures respect for member states’ freedom, which is perceived as especially valuable in the education field, and even more so in the field of citizenship education, both areas which are traditionally closely associated with national sovereignty. What may be perceived as a legal weakness—namely, the non-binding form of the Charter on EDC/HRE—may actually be a political strength: the member states retain autonomy but commit to a common standard. It is therefore understandable that the Committee of Ministers has opted to use recommendations in many instances in the education field, inviting the governments of member states to act according to the norms set out in an appendix.169 The Recommendation on the Charter on EDC/HRE is in keeping with this tradition. In accordance with the classic recommendation formula, the Committee of Ministers recommends that the governments of member states implement measures based on the provisions of the Charter on EDC/HRE set out in the appendix and ensure that the Charter is widely disseminated to the national authorities responsible for education and youth. The Secretary General of the Council of Europe is instructed to transmit the Charter on EDC/HRE to international organisations, such as the EU and the UN. The Recommendation on the Charter on EDC/HRE entered into force upon adoption in 2010 and is addressed to 50 states: the 47 member states of the Council of Europe (all EU Member States, plus Azerbaijan, the Russian Federation, Turkey, Ukraine, etc.), as well as the parties to the European Cultural Convention who are not member states of the Council of Europe (Belarus, the Holy See, and Kazakhstan).170 The Committee of Ministers thus contributed to a major objective of the European Cultural Convention added in 2004: ‘[c]reating conditions for full participation in democratic life’.171 169 E.g. nn (and text) 214, 223, 253, 273, 283, 339, 345, 355, 356. 170 European Cultural Convention (Paris, 19 December 1954) ETS No 18. See 50 ratifications in list (n 121). 171 Ministers responsible for culture, education, youth and sport from the States Parties to the European Cultural Convention, Wroclaw Declaration on 50 Years of Cultural Cooperation (9-10 December 2004) ETS No 18, i.a. section I: ‘Less than 10 years after the end of World War II, the adoption of the European Cultural Convention within the framework of the Council of Europe reflected the A Form and substance 77 As to the form, it may be concluded that the legal status of the Charter on EDC/HRE is that of a recommendation of the Committee of Ministers under Article 15(b) of the Statute. It is non-binding in the Council of Europe legal order, but implies a weighty commitment, reflected in the use of the word ‘Charter’. What is the substance of this Charter? Concept and principles of Education for Democratic Citizenship (EDC) Substance The Charter on EDC/HRE has four sections: (I) General provisions, (II) Objectives and principles, (III) Policies, and (IV) Evaluation and cooperation. In documents of the Council of Europe, in academic writing and in practice, ‘Education for Democratic Citizenship’ or ‘EDC’ is widely used as an umbrella term, referring to principles and practices recommended in the Charter on EDC/HRE.172 Essential elements covered by the overarching concept ‘EDC’ will be briefly described. For more precise information, and in response to the call for wide dissemination, I have attached the Charter in annex to this study.173 Definitions of EDC/HRE and scope When compared with previous instruments on EDC, the Charter on EDC/HRE represents distinct progress. Firstly, it responds to a need for clear concepts in order to facilitate implementation. Earlier Council of Europe instruments tended to give lengthy descriptions of what EDC included rather than truly defining it.174 Moreover, the Charter is the first to deal with education for democratic citizenship (EDC) and human rights education (HRE) in conjunction with one another and define their relationship. It was felt that this could no longer be postponed. Before 2010, 2. 26 27 hope of future unity and a belief in the power of the humanistic spirit of education and culture to heal old and new divisions, prevent conflicts, and cement the democratic order’. See n 240. 172 Explanatory memorandum para 33 (‘overarching concept’); M Hartley and T Huddleston, School-community-university partnerships for a sustainable democracy: Education for Democratic Citizenship in Europe and the United States of America (CoE 2010) 17. 173 Annex 1. 174 Explanatory memorandum para 34. CHAPTER 1 The Charter on Education for Democratic Citizenship 78 EDC and HRE were the subject of separate normative instruments.175 Drawing on earlier documents of the Council of Europe176 and of the UN177, the Charter refines and extends the definitions of EDC and HRE in such a way that in both the words ‘to empower’ appear. Emphasis is placed on the outcome of education, which is not simply knowledge, but the empowerment of learners.178 In accordance with the terms of paragraph 2(b) of the Charter,179 the EDC concept can be studied in its various components. These components will be used as parameters to analyse the situation of EU citizens in Part three. For ease of reference in this study, I have numbered them (a) to (d). EDC means: (a) education, training, awareness raising, information, practices and activities which aim (b) by equipping learners with knowledge, skills and understanding and developing their attitudes and behaviour (c) to empower the learners (c-1) to exercise and defend their democratic rights and responsibilities in society (c-2) to value diversity (c-3) to play an active part in democratic life (d) with a view to the promotion and protection of democracy and the rule of law. The definition of HRE is structured similarly: ‘Human rights education’ means education, training, awareness raising, information, practices and activities which aim, by equipping learners with knowledge, skills and understanding and developing their attitudes and behaviour, to empower learners to contribute to the building and defence of a universal culture of human rights in society, 175 Explanatory memorandum paras 33, 37. 176 Further §§ 31 35 . 177 Reference to the right to education in the UDHR, ICESCR, and CRC, and to the World Conference on Human Rights, Vienna Declaration and Programme of Action (25 June 1993) A/CONF.157/23. 178 Explanatory memorandum para 35; and text to nn 201-202. 179 Definition cited in the Introduction § 7. A Form and substance 79 with a view to the promotion and protection of human rights and fundamental freedoms.180 EDC and HRE are ‘closely inter-related and mutually supportive’, as they ‘differ in focus and scope rather than in goals and practices’. While EDC ‘focuses primarily on democratic rights and responsibilities and active participation, in relation to the civic, political, social, economic, legal and cultural spheres of society’, HRE looks at ‘the broader spectrum of human rights and fundamental freedoms in every aspect of people’s lives.’181 EDC and HRE overlap, ‘because the rights important to citizenship, for example, the rights to vote, to freedom of speech and to freedom of assembly, are classic human rights, which are as much the field of HRE as of EDC.’182 Given the interconnectedness of EDC and HRE, the use in this study of the term ‘EDC’ alone automatically implies HRE as well (only when EDC and HRE both need an explicit focus, will they be mentioned separately). In a legal analysis, human rights are part of the constitutional rights of democratic citizenship. If democracy and human rights are intrinsically related concepts183, then EDC and HRE are intrinsically related too.184 They are twin fields, with the same roots.185 The scope of the Charter does not cover areas related to EDC/HRE, such as intercultural education, equality education, education for sustainable development and peace education. Yet, ‘where they overlap and interact’ with EDC/HRE, the Charter principles apply.186 The explanatory memorandum posits that all these areas have a specific focus (intercultural education addresses mutual understanding and respect in multicultural societies, education for sustainable development has an environmental focus, etc.), 180 Charter para 2(b), emphasis added. 181 Charter para 3. 182 Explanatory memorandum para 37. 183 As stated in CoE Conference of International Non-Governmental Organisations (INGOs), Declaration on genuine democracy (24 January 2013), V (a)-(c) (‘Genuine democracy and human rights are intrinsically related concepts which cannot exist without each other. Political rights and freedoms form part of human rights, while respect for human rights is essential to the establishment and maintenance of a democratic system’). See Annex 2 to this study. 184 More on the relationship in text to n 515, § 294 and text to n 2205. See also A Osler, ‘Human Rights Education: The Foundation of Education for Democratic Citizenship in our Global Age’ in J Arthur, I Davies and C Hahn (eds), The SAGE Handbook of Education for Citizenship and Democracy (Sage 2008). 185 See also DARE network, Democracy and Human Rights Education in Europe. 186 Charter para 1. CHAPTER 1 The Charter on Education for Democratic Citizenship 80 but they are nevertheless covered to a large extent by the overarching concept of EDC/HRE.187 The same is true for related areas which are not mentioned in the 2010 Charter but came to the fore later, such as education for global interdependence and solidarity188, global citizenship education189 and global development education.190 Global education addresses the global dimensions of EDC, and encompasses ‘Development Education, Human Rights Education, Education for Sustainability, Education for Peace and Conflict Prevention and Intercultural Education’.191 Objectives, principles and policies of EDC In its second section, the Charter describes the ‘Objectives and principles’ which ‘should guide member states in the framing of their policies, legislation and practice’.192 The words ‘should guide’ were deliberately chosen, indicating neither a prescriptive blueprint nor a mere background consideration.193 These objectives and principles are fleshed out in the third section ‘Policies’. The aim of the Charter is that every person within the territory of the member states has the opportunity of EDC/HRE.194 EDC/HRE are thus not only reserved to citizens in the legal sense of a state’s own 28 187 Explanatory memorandum para 33, also para 7. 188 E.g. CoE Recommendation CM/Rec(2011)4 of the Committee of Ministers to member states on education for global interdependence and solidarity (5 May 2011). See n 2192. 189 E.g. UNESCO Global Citizenship Education: Preparing learners for the challenges of the 21st century (2014); UNESCO Global Citizenship Education: Topics and Learning Objectives (2015). 190 Global Development Education (GDE) in a cooperation CoE/EU, e.g. Intercultural Learning Exchange through Global Education, Networking and Dialogue (iLEGEND, project for school curricula helping ‘to understand an increasingly interconnected world, and appreciate economic, political, environmental and cultural challenges that people from different countries face, from north to south’. 191 Definition of the CoE North-South Centre recalled in CoE Europe-wide Global Education Congress, European Strategy Framework For Improving and Increasing Global Education In Europe to the Year 2015 (Maastricht Global Education Declaration) (Maastricht, 15-17 November 2002), using the expression ‘the global dimensions of Education for Citizenship’. See also Global Education Guidelines: a Handbook for Educators to Understand and Implement Global Education (Global Education Week Network, CoE, 2012); and United Nations Secretary-General’s Global Education First Initiative, UN, NY, 2012. 192 Para 5. 193 Explanatory memorandum 40: the drafters did not choose the wording ‘should base’, nor the words ‘should take into account’. 194 Charter para 5(a) (my emphasis). A Form and substance 81 nationals but apply to all residents in the member state. Strictly speaking, EDC should thus be differentiated from ‘citizenship education’ in the literal sense of the education of the state’s own nationals. History has shown what a dangerous turn that concept may take.195 EDC/HRE is a lifelong learning process in which formal, non-formal and informal learning have a part to play.196 EDC/HRE may be provided in schools in a structured way leading to certification (formal education). Member states should include EDC and HRE in the curricula at pre-primary, primary and secondary school level, as well as more generally in vocational education and training. They should also continue to support, review and update EDC and HRE in these curricula in order ‘to ensure their relevance’.197 In higher education, member states should promote the inclusion of EDC/HRE, with due respect for academic freedom.198 EDC and HRE are also part of extra-curricular learning in planned education programmes outside schools to improve skills and competences (non-formal learning) and in daily life in the family and work environment, through media, etc. (informal learning).199 Accordingly, the training of teachers and education professionals for EDC/HRE in schools, and the training of youth leaders, is vital and should be adequately planned and resourced by member states.200 Clarifying the objectives of EDC/HRE (already incorporated in their respective definitions), the Charter adds that, as preparation for living together in a democratic and multicultural society, EDC/HRE should develop the knowledge, understanding and skills for promoting social cohesion and handling differences and conflict,201 and, crucially, should empower learners to participate in the democratic process: One of the fundamental goals of all education for democratic citizenship and human rights education is not just equipping learners with knowledge, understanding and skills, but also empowering them with 195 Citizenship education under totalitarian regimes, as nazism or USSR. See § 288 n 2137. Further Heater, ‘The history of citizenship education: a comparative outline’. On a right to education for all, see § 241 and text to n 2008. 196 Charter para 5(b) and (c). See Annex 5 to this study. 197 Charter para 6. 198 Charter para 7. 199 Definitions in para 2 (c)-(e). 200 Charter paras 5(h), 7 and 9. 201 Charter paras 5(f) and 13. CHAPTER 1 The Charter on Education for Democratic Citizenship 82 the readiness to take action in society in the defence and promotion of human rights, democracy and the rule of law.202 To reach the objectives of EDC/HRE, schools themselves should be democratically governed, and provide learning activities in a way which reflects human rights and democratic values.203 Effective EDC/HRE involves a wide range of stakeholders in society as a whole, including pupils and educational institutions and professionals, but also policy makers, non-governmental organisations, parents, youth organisations, media and the general public.204 Member states should promote their role in EDC/HRE and encourage partnerships and collaboration at state, regional and local level.205 Respect for member states’ responsibility: the paragraph-4 principle An important EDC principle which underlies the whole Charter, is respect for member states.206 The Committee of Ministers recommends EDC/HRE ‘[b]earing in mind that member states are responsible for the organization and content of their educational systems’.207 An essential provision of the Charter is paragraph 4, which states that the objectives, principles and policies relating to EDC/HRE ‘are to be applied with due respect for the constitutional structures of each member state, using means appropriate to those structures’ and ‘having regard to priorities and needs of each member state’. This paragraph-4 principle will arise from time to time throughout the study. The Charter thus leaves an important margin of appreciation to member states as to its application.208 Furthermore, its implementation relies on a system of self-evaluation by member states and on the encouragement to cooperate. Member states should develop criteria themselves for the evaluation of the effectiveness of their EDC/HRE programmes,209 should regularly evaluate their strategies and policies, and adapt them as appropriate. Member states should cooperate in follow-up activities, i.a. by pursuing topics of common interest and common priorities, by fostering the existing network of EDC/HRE coordinators, exchanging good practice, or supporting networks. Because of ‘the international 29 202 Charter para 5(g). 203 Charter paras 5(e) and 8. 204 Charter paras 5(b) and (d). 205 Charter paras 10 and 5(i). 206 Explanatory memorandum para 29. 207 Preambular para 13. 208 To complement with text to n 394. 209 Charter paras 11 and 14; explanatory memorandum paras 41 and 53. A Form and substance 83 nature of human rights values and obligations and the common principles underpinning democracy and the rule of law’, member states should cooperate internationally and regionally on EDC/HRE,210 and share results achieved in the framework of the Council of Europe with other international organisations.211 Now that the form and substance of the Charter on EDC/HRE have been explained, I will examine how the elements of the Charter on EDC/HRE thus described––the definition of EDC (closely interlinked with HRE), its objectives and principles, including respect for member States’ responsibilities, constitutional structures and priorities––form standards (hereafter EDC standards) and whether the Recommendation on the Charter on EDC/HRE has legal effects despite its non-binding character. To answer these questions, the Charter on EDC/HRE must first be situated in the context of the many normative instruments of the Council of Europe related to EDC. Its legal effects can then be appraised in Chapter two. Normative context Ongoing process of standard-setting on EDC The Charter on EDC/HRE was not drafted overnight by one or two wellintentioned authors. The Recommendation on the Charter on EDC/HRE is not some random recommendation of the Council of Europe. It is a milestone along a long path of persistent work and perseverence, involving numerous actors and spread over the course of several decades. The significance of the Charter on EDC/HRE cannot therefore be understood in isolation. The purpose of this section is to explain the Charter on EDC/HRE as a standard by putting it in the broader context of norm-setting on EDC and to provide insight into the rationale for so much joint action. This overview will provide the elements necessary to assess the legal effects of the Charter on EDC/HRE. The interpretation of a legal instrument depends not only on its wording, but equally on examining its provisions in their context and in the light of the objectives pursued.212 Moreover, if the EU commits itself in the MOU to drawing on the expertise and activi- B 30 210 Charter para 5(j). 211 Charter para 16. 212 Cf Art 31 Vienna Convention on the Law of Treaties. Explanatory reports do not provide authoritative interpretations, yet their interpretative value is recognised. CHAPTER 1 The Charter on Education for Democratic Citizenship 84 ties of the Council of Europe to promote democratic culture and to empower young people to participate actively in the democratic process, in particular through EDC and HRE, then it is important to gain an overview of the action the Council of Europe has taken in this field. Throughout this chronological account and in anticipation of possible effects in the EU legal order, it should be borne in mind that the EU Member States were always participants in the Council of Europe bodies adopting the EDC instruments in question.213 Genesis of the Charter on EDC/HRE (2010) Early years: before 1997 As early as the seventies and eighties, the Council of Europe recommended essential principles of education for democratic citizenship, without actually naming it as such.214 It was after the fall of the Berlin Wall (1989) that education for democratic citizenship became a central preoccupation. At their First Summit in 1993, the Heads of State and Government adopted the Vienna Declaration, welcoming former communist countries into the Council of Europe. With the aim of making Europe ‘a vast area of democratic security’, new member states were reminded that ‘accession presupposes that the applicant country has brought its institutions and legal sys- 1. 31 213 When in 1997 the work on EDC started, all the current EU Member States were members of the CoE (Croatia was the last to join the CoE, in 1996). See bibliography to this study for an overview of the various instruments per body of the Council of Europe. For organs and bodies, see Art 10 Statute and statutory resolutions. 214 CoE Recommendation R(83)13 of the Committee of Ministers to member states on the role of the secondary school in preparing young people for life (23 September 1983), appendix ‘Principles for the guidance of those responsible for programmes concerned with preparing young people for life’, see i.a. para 2. See also CoE Committee of Ministers Resolution (78)41 on the teaching of human rights (25 October 1978); CoE Recommendation R(83)13 of the Committee of Ministers to member states on the role of the secondary school in preparing young people for life (23 September 1983); CoE Recommendation R(85)7 of the Committee of Ministers to member states on teaching and learning about human rights in schools (14 May 1985); CoE Parlementary Assembly Recommendation 1111(1989) 'European dimension of education'; CoE Parliamentary Assembly Recommendation 1346(1997) 'Human rights education'; CoE Standing Conference of Ministers of Education, Resolution on 'the European dimension of education: teaming and curriculum content' (Vienna, 16-17 October 1991). B Normative context 85 tem into line with the basic principles of democracy, the rule of law and respect for human rights’. Education was mentioned among the prime instruments for creating a cohesive yet diverse Europe.215 In 1994, the European Ministers of Education (Standing Conference) emphasised ‘the need for a coherent and sustained approach by schools to education for democratic citizenship’, starting at an early age and making full use of possibilities in the formal curriculum and in extra-curricular activities.216 Agenda setting: 1997 At their Second Summit in 1997 (Strasbourg), the Heads of State and Government, taking account of the significant enlargement of the Council of Europe, underlined its essential standard-setting task. Conscious of the crucial role of education in achieving pluralist democracy and mutual understanding, they expressed the ‘desire to develop education for democratic citizenship based on the rights and responsibilities of citizens, and the participation of young people in civil society’.217 They outlined an Action Plan to strengthen democratic stability in the member states and launched the EDC project within one of the main areas for immediate action. A Steering Group for EDC/HRE was formed. In 1997, the European Ministers of Education adopted a work programme which comprised the EDC project.218 The project unfolded in three phases. First phase: 1997–2000 During this phase, EDC definitions were developed, and skills and competencies for effective democratic citizenship learning in schools were identified. Various sections of the Council of Europe cooperated, research was 32 33 215 CoE First Summit of Heads of State and Government, Vienna Declaration (Vienna, 9 October 1993). 216 CoE Standing Conference of European Ministers of Education, Resolution on education for democracy, human rights and tolerance (No 1) (Madrid, 23‐24 March 1994), paras 4–6. 217 CoE Second Summit of Heads of State and Government, Final Declaration and Action Plan (Strasbourg, 10-11 October 1997) (enlargement of the CoE from 23 to 32 member states by 1995; most new members belonged to the former communist system). 218 Three projects: EDC, Learning and Teaching about the History of Europe in the 20th Century, and Language Policies for a Multicultural and Multilingual Europe. See CoE Standing Conference of European Ministers of Education, Resolution No 1 on trends and common issues in education in Europe, Resolution No 2 on fundamental values, aims and the future role of educational co-operation in the Council of Europe (Kristiansand, Norway, 22-24 June 1997). CHAPTER 1 The Charter on Education for Democratic Citizenship 86 done, and conferences held.219 In a general ‘Declaration and programme on education for democratic citizenship, based on the rights and responsibilities of citizens’ (1999), the Committee of Ministers insisted on ‘the urgency of strengthening individuals' awareness and understanding of their rights and responsibilities so that they develop a capacity to exercise these rights and respect the rights of others’ and stressed ‘the fundamental role of education in promoting the active participation of all individuals in democratic life at all levels: local, regional and national’ (the objective of this study is to add the EU level). The Ministers called upon member states to make EDC ‘an essential component of all educational, training, cultural and youth policies and practices’, deeming it a high priority.220 The Programme was added to the Declaration and underlined ‘the evolving concept of democratic citizenship, in its political, legal, cultural and social dimensions’221 (I will argue that in this evolving concept, the EU dimension is increasingly important). During this phase, several instruments adopted by the Committee of Ministers and the Parliamentary Assembly highlighted specific aspects of EDC. The Committee of Ministers recommended EDC in secondary schools (reaffirming their ‘decisive role’)222, at universities in European Studies (studies ‘particularly well suited’ to providing EDC)223, and in social sciences (‘strategic’ for true democratic citizenship)224. The Parliamentary Assembly asked for the inclusion of duties and responsibilities in 219 The explanatory memorandum to the Recommendation on the Charter on EDC/HRE (paras 1–22) explains the ‘background, origins and negotiating history’. Preambular paras 7–10 mention some important instruments in the genesis of the Charter. 220 CoE Committee of Ministers Declaration and programme on education for democratic citizenship, based on the rights and responsibilities of citizens (Budapest, 7 May 1999), paras 6–7, 14–15. 221 Heading 3(1) in Key issues. 222 CoE Recommendation R(99)2 of the Committee of Ministers to member states on secondary education (19 January 1999) . 223 CoE Recommendation Rec(2000)24 of the Committee of Ministers to member states on the Development of European Studies for Democratic Citizenship (20 December 2000), appendix para 2(d). EDC is seen as a general principle to be applied in European Studies (which are defined in para 1). 224 CoE Recommendation Rec(2000)12 of the Committee of Ministers to member states on the social sciences and the challenge of transition (13 July 2000), recalling ‘that the process of transition from totalitarian regimes to democracy requires efficient and independent social sciences able to contribute to a true democratic citizenship’ (social sciences cover ‘disciplines aiming at improving the understanding and functioning of society, as well as its welfare: mainly soci- B Normative context 87 EDC, not only rights.225 The Assembly further recommended that EDC become a part of the fight against terrorism226, against religious intolerance227 and against extremism228. In 2000, the European Ministers of Education endorsed the results of the EDC project (welcoming their quality) and called for a recommendation from the Committee of Ministers on EDC drawing up common guidelines for all educational systems beyond national specificities.229 During the first phase, experts developed Council of Europe materials and scholars reflected on EDC.230 Second phase: 2001–2005 EDC policies and networks continued to be developed with national EDC coordinators231 and experts. The 2002 Recommendation of the Committee of Ministers to member states on education for democratic citizenship— 34 ology and anthropology, political science, contemporary history, psychology, educational science, economics and law’ (emphasis added). 225 CoE Parliamentary Assembly Recommendation 1401(1999) 'Education in the responsibilities of the individual', see para 13. 226 CoE Parliamentary Assembly Recommendation 1426(1999) 'European Democracies facing up to terrorism'. 227 CoE Parliamentary Assembly Recommendation 1396(1999) 'Religion and democracy', paras 14(1), para 13(2)(a): ‘teaching about religions as sets of values towards which young people must develop a discerning approach within the framework of education on ethics and democratic citizenship’. 228 CoE Parliamentary Assembly Recommendation 1438(2000) 'Threat posed to democracy by extremist parties and movements in Europe'. 229 CoE Standing Conference of European Ministers of Education, Resolution on results and conclusions of the completed projects on the 1997-2000 Mediumterm programme: Educational policies for democratic citizenship and social cohesion: challenges and strategies for Europe (Cracow, 15-17 October 2000), see paras 9–10. 230 E.g. R Veldhuis, Education for democratic citizenship: dimensions of citizenship, core competencies, variables and international activities (CoE 1997); A Osler, ‘European Citizenship and Study Abroad: student teachers’ experiences and identities’ (1998) 28 Cambridge Journal of Education 77; F Audigier, Basic concepts and core competencies for education for democratic citizenship (CoE 2000); C Bîrzéa, Education for Democratic Citizenship: A LifeLong Learning Perspective (CoE 2000); L Carey and K Forrester, Sites of Citizenship: Empowerment, Participation and Partnerships (CoE 2000); K Durr, V Spajic-Vrkaš and I Ferreira Martins, Strategies of Learning Democratic Citizenship (CoE 2000). 231 The Ministry of Education in each member state appointed a contact person within the EDC project, part of the network. CHAPTER 1 The Charter on Education for Democratic Citizenship 88 the forerunner of the 2010 Charter on EDC/HRE—was a landmark.232 The Committee of Ministers affirmed that EDC was fundamental to the Council of Europe’s primary task of promoting a free, tolerant and just society, and contributed ‘to defending the values and principles of freedom, pluralism, human rights and the rule of law, which are the foundations of democracy’.233 While respecting member state constitutional structures, national or local situations, and education systems, it recommended that national governments make EDC a priority objective of educational policy-making and reforms.234 EDC should be ‘seen as embracing any formal, non-formal or informal educational activity, including that of the family, enabling an individual to act throughout his or her life as an active and responsible citizen respectful of the rights of others’.235 The Committee of Ministers set out general guidelines for EDC policies, outlined EDC objectives, content and methods as well as teacher training, and described the role of media and new information technologies. EDC could be a specific discipline but also be cross-curricular. Civic, political or human rights education could contribute to EDC without covering it completely. Multidisciplinary approaches were recommended, including history, philosophy, religion, languages, or social sciences. Priority was given to the acquisition of knowledge, attitudes and skills which reflected the fundamental values of human rights and the rule of law. The Committee of Ministers recognised that: education for democratic citizenship is a factor which promotes relations of trust and stability in Europe beyond the boundaries of the member states. The European dimension should consequently be a component as well as a source of inspiration when formulating the corresponding policies.236 Therefore, it was recommended that each state’s contribution to the European and international debate on EDC should be reinforced by ‘sites of cit- 232 CoE Recommendation Rec(2002)12 of the Committee of Ministers to member states on education for democratic citizenship (16 October 2002). 233 Para 1. 234 Para 3. 235 Para 2. 236 CoE Recommendation Rec(2002)12 of the Committee of Ministers to member states on education for democratic citizenship (16 October 2002), appendix, heading 1. Remark the same terminology ‘European dimension’ as in the 1992 Maastricht Treaty provision on education, now Art 165 TFEU. B Normative context 89 izenship’, European networks for practitioners and researchers, and fora for experimenting on and developing EDC.237 In 2004, the Parliamentary Assembly recommended that the Committee of Ministers should ‘draft a European framework convention on education for democratic citizenship and human rights’ 238 and the European Ministers asked for ‘the setting of European standards by means of appropriate conventional mechanisms’ to be considered, because ‘the Council of Europe should strengthen its role as a center of excellence for policies to equip people with the knowledge, skills and attitudes for life in democratic societies’.239 In their Wroclaw Declaration on 50 Years of Cultural Cooperation, one of the new objectives (added to the original objectives of the European Cultural Convention240) was to create the conditions for full participation in democratic life, with EDC being seen as central to educational quality.241 European action on EDC matched with international action to achieve quality education linked with democratic citizenship.242 Responding to the implementation gap—the difference between words and deeds on EDC243—the 2005 European Year of Citizenship through Education disseminated good practice and directed different players to 237 Appendix heading 1–2. 238 CoE Parliamentary Assembly Recommendation 1682(2004) 'Education for Europe', para 8 (emphasis added). 239 Ministers responsible for culture, education, youth and sport from the States Parties to the European Cultural Convention, Wroclaw Declaration on 50 Years of Cultural Cooperation (9-10 December 2004) ETS No 18, heading III (emphasis added). See also CoE Conference of European Ministers responsible for Youth, Human dignity and social cohesion: youth policy responses to violence. Final Declaration (Budapest, 23-24 September 2005), calling for a framework policy document, and paras 4 and 11. 240 Text to n 171. The initial aim in 1954 was to contribute to the common cultural heritage of Europe (Article 1). Two other new objectives were ‘A European dimension in standards, policy and practice’ and ‘Promoting cultural diversity and building up shared values’. See also 50 years of the European Cultural Convention (2004). 241 Heading I. 242 See ‘Issues for discussion at meeting of OECD Ministers of Education’ (18–19 March 2004): A meeting of Education Ministers from the Organisation for Economic Co-operation and Development (OECD) member states on the subject of ‘Raising the Quality of Education for All’: The issue for education is how to develop not only successful individuals with good workplace skills, but also ‘democratic citizenship’ — an outcome both linked to, and supportive of, social cohesion’. 243 JM Heydt, Education for Democratic Citizenship: Words and Actions (CoE 2001); K O'Shea, ‘EDC policies and regulatory frameworks’ (Strasbourg, 6-7 December CHAPTER 1 The Charter on Education for Democratic Citizenship 90 their responsibilities with regard to EDC (decision-makers in ministries, university vice-chancellors, school heads, teachers, trainers, NGOs, etc.).244 Several states requested the assistance of the Council of Europe in developing their EDC policies and practice.245 The 2005 Third Summit of Heads of State and Government was crucial. They reconfirmed the fundamental role of EDC/HRE and called for increased efforts. The action plan included ‘Education: promoting democratic citizenship in Europe’.246 During the second phase too, EDC appeared in various specific Council of Europe instruments as an overarching concept, a platform for specific action within an integrated approach, a general principle informing, for example, history teaching247, gender equality248, e-learning249, lifelong 2001), section 3(1): ‘La question de l'écart entre la politique et la pratique demeure l'un des problèmes majeurs dans les Etats membres'. For a systematic description of EDC policies in different member states and the compliance gap, see All-European Study on Education for Democratic Citizenship Policies (CoE 2005). 244 CoE Recommendation CM/Rec(2010)7 of the Committee of Ministers to member states on the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education (11 May 2010), twelfth preambular para; explanatory memorandum para 4. See evaluation of the year during the third phase. 245 See CoE Committee of Ministers, Terms of reference of the Ad hoc Advisory Group on Education for Democratic Citizenship and Human Rights (ED- EDCHR) (5 February 2007) CM/Del/Dec(2007)985/7.2. 246 CoE Third Summit of Heads of State and Government, The Declaration and the Action Plan (Warsaw, 16-17 May 2005): ‘We will make full use of the opportunity to raise public awareness of European standards and values provided by the “European Year of Citizenship through Education” (...) The Council of Europe will enhance all opportunities for the training of educators, in the fields of education for democratic citizenship, human rights, history and intercultural education.’. 247 CoE Recommendation Rec(2001)15 of the Committee of Ministers to member states on history teaching in twenty-first-century Europe (31 October 2001), for history teaching to strengthen ‘trusting and tolerant relations within and between states’, recommends that member states adopt an integrated approach, using in particular the EDC project. 248 CoE Recommendation Rec(2003)3 of the Committee of Ministers to member states on balanced participation of women and men in political and public decision making (12 March 2003), para 23. 249 CoE Recommendation Rec(2004)15 of the Committee of Ministers to member states on electronic governance ('e-governance') (15 December 2004), para 4. B Normative context 91 learning250 or promoting a Europe without divisions251. The Congress of Local and Regional Authorities of Europe adopted the Revised European Charter on the Participation of Young People in Local and Regional Life, which recognised that ‘education about rights and duties of citizens in a democratic society must be made an integral part of any school curriculum to enable young people to contribute actively to democratic decision making’252 and the Committee of Ministers recommended this Charter to member states.253 To combat racism and intolerance, the European Commission against Racism and Intolerance (ECRI) adopted a general policy recommendation on school education referring to EDC and HRE.254 During the second phase, new EDC materials were produced and scholars continued to reflect on the matter.255 250 CoE Recommendation Rec(2003)8 of the Committee of Ministers to member states on the promotion and recognition of non-formal education/learning of young people (30 April 2003), i.a. on role of lifelong learning ‘in promoting active participation in democratic life’; CoE Recommendation Rec(2004)4 of the Committee of Ministers to member states on the European Convention on Human Rights in university education and professional training (12 May 2004). 251 CoE Parliamentary Assembly Recommendation 1682(2004) 'Education for Europe'. 252 CoE Congress of Local and Regional Authorities of Europe Recommendation 128(2003) on the revised European Charter on the Participation of Young People in Local and Regional Life (21 May 2003), para 13. 253 CoE Recommendation Rec(2004)13 of the Committee of Ministers to member states on the participation of young people in local and regional life (17 November 2004), with in appendix the Revised European Charter on the Participation of Young People in Local and Regional Life, i.a. para 15. 254 CoE ECRI General Policy Recommendation No 10 on combating racism and racial discrimination in and through school education (15 December 2006), having regard to CM Rec(2002)12; i.a. para II(2)(a) ensuring that HRE ‘is an integral part of the school curriculum at all levels and across all disciplines, from nursery school onwards’, (f) ‘revising school textbooks to ensure that they reflect more adequately the diversity and plurality of the society’. 255 E.g. P Belanger, Education for Democratic Citizenship: Methods, Practices and Strategies (CoE 2001); O'Shea, ‘EDC policies and regulatory frameworks’; C Naval, M Print and R Veldhuis, ‘Education for Democratic Citizenship in the New Europe: context and reform’ (2002) 37 European Journal of Education 107; K Forrester, ‘Leaving the academic towers: the Council of Europe and the Education for Democratic Citizenship Project’ (2003) 22 International Journal of Lifelong Education 221; Lockyer, Crick and Annette, Education for Democratic Citizenship: Issues of Theory and Practice; All-European Study on Education for Democratic Citizenship Policies (CoE 2005); D Kerr and B Losito, Tool on Key Issues for EDC Policies (CoE 2004); D Kerr, ‘Western Europe Regional Synthesis’ in All-European Study on Education for Democratic Citizenship Policies (CoE 2004); CHAPTER 1 The Charter on Education for Democratic Citizenship 92 Third phase: 2006–2009 The first two phases highlighted the need for EDC and HRE ‘to become a permanent strategic goal for the Council of Europe and its member states’.256 A multi-disciplinary Ad Hoc Advisory Committee on Education for Democratic Citizenship and Human Rights guided the third phase of the EDC project, during which sub-projects were initiated to develop standards for EDC and to link policy and practice.257 In the light of the experience acquired in the 2005 European Year,258 and in order to consolidate and fine-tune the work, the Parliamentary Assembly and other Council of Europe bodies called for a new, appropriate European framework policy document to set out basic EDC/HRE principles and to establish a follow- 35 C Bîrzea and others, Tool for Quality Assurance of Education for Democratic Citizenship in Schools (UNESCO, CoE, CEPS 2005); C Bîrzea, B Losito and R Veldhuis, ‘Editorial’ (2005) 4 Journal of Social Science Education; MH Salema, ‘Teacher and Trainer Training in Education for Democratic Citizenship Competencies’ (2005) 4 Journal of Social Science Education 39. One of the most popular manuals is ‘Compass Manual on Human Rights Education with Young People’, first published in 2002, now updated and translated in more than 30 languages . See also Compasito, for children. National recommendatios for Compass in Denmark, Germany, Estonia and Austria (Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2017) 82). 256 CoE Ad Hoc Committee of Experts for the European Year of Citizenship through Education (CAHCIT), Education for Democratic Citizenship and Human Rights: Programme of Activities (2006-2009), Learning and living democracy for all, DGIV/EDU/CAHCIT(2006)5. 257 CoE Committee of Ministers, Terms of reference of the Ad hoc Advisory Group on Education for Democratic Citizenship and Human Rights (ED-EDCHR) (5 February 2007) CM/Del/Dec(2007)985/7.2. Three lines of action for the 3rd phase in CoE Ad Hoc Committee of Experts for the European Year of Citizenship through Education (CAHCIT), Education for Democratic Citizenship and Human Rights: Programme of Activities (2006-2009), Learning and living democracy for all, DGIV/EDU/CAHCIT(2006)5 (ie education policy development and implementation for democratic citizenship and social inclusion; new roles and competences of teachers and other educational staff in EDC/HRE (defining competencies for teachers in EDC); and democratic governance of educational institutions). See also O Olafsdottir, ‘Education for Democratic Citizenship and Human Rights: A Project by the Council of Europe’ in VB Georgi (ed), The Making of Citizens in Europe: New Perspectives on Citizenship Education (Schriftenreihe Band 666, Bundeszentrale für politische Bildung 2008) 134. 258 CoE Evaluation Conference of the 2005 European Year of Citizenship through Education: Conclusions (Sinaia, 27-28 April 2006); D Kerr and J Lopes, Implementation and outcomes of the 2005 European Year of Citizenship through Education: Learning and Living Democracy, Report DGIV/EDU/CAHCIT (2006)11 . B Normative context 93 up mechanism.259 In 2007, the European Ministers of Education recommended unanimously, with the exception of the Polish delegation, that the Steering Committee for Education should continue its work on EDC/HRE programmes and draw up a reference framework.260 The culmination of the third phase was Recommendation CM/Rec(2010)7 of the Committee of Ministers to member states on the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education. The Steering Committee for Education had drafted the Charter on EDC/HRE in close collaboration with various Council of Europe bodies, member state EDC/HRE coordinators, experts and networks.261 The Charter on EDC/HRE is effectively ‘the outcome of international co-operation among the 47 member states of the Council of Europe––and in the education field, between all the States Parties to the European Cultural Convention’,262 illustrating that educational cooperation is one of the cornerstones of the Council of Europe.263 By consensus, the member states of the Council of Europe adopted the Recommendation on the Charter on EDC/HRE, with its 259 CoE Parliamentary Assembly Recommendation 1791(2007) 'State of human rights and democracy in Europe', para 18(2), also para 2(3); CoE Parliamentary Assembly Recommendation 1849(2008) 'For the promotion of a culture of democracy and human rights through teacher education', paras 5–6. See also call in CoE Evaluation Conference of the 2005 European Year of Citizenship through Education: Conclusions (Sinaia, 27-28 April 2006) (n 258), paras 1, 3. 260 CoE Standing Conference of European Ministers of Education, Building a more humane and inclusive Europe: role of education policies, Resolution on the 2008-2010 programme of activities (Istanbul, 4-5 May 2007), paras 7–8 (also asking to reinforce work on indicators (with the European Commission) on quality assurance in the field of EDC/HRE). On front page: ‘This resolution was adopted unanimously with the exception of the Polish Delegation’. 261 Details in explanatory memorandum to CoE Recommendation CM/Rec(2010)7 of the Committee of Ministers to member states on the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education (11 May 2010), paras 9–22. A study on the feasability of a reference framework for EDC/HRE had been submitted in 2007, drafted by an expert assisted by an informal group of experts. This was subsequently commented by numerous CoE consulted bodies, i.a. the Ad hoc Advisory Group on EDC and Human Rights, the Steering Committee on Human Rights, the Joint Council on Youth, the Steering Committee for Higher Education, the Bureau of the Steering Committee for Education, and in March 2008, the plenary Steering Committee for Education. 262 Explanatory memorandum para 40(j). 263 CoE Standing Conference of European Ministers of Education, Building a more humane and inclusive Europe: role of education policies, Resolution on the 2008-2010 programme of activities (Istanbul, 4-5 May 2007), para 14(1). CHAPTER 1 The Charter on Education for Democratic Citizenship 94 appendix, as was proposed by the Steering Committee for Education (CDED). Among them, as appears from the documents, were all the EU Member States, represented by their Ministers of Foreign Affairs or representatives thereof.264 The EU representative to the Council of Europe was also present. No reservations were submitted.265 In addition to the general recommendation on EDC, specific instruments of Council of Europe bodies continued to refer to EDC, with EDC thus appearing as a general principle, a paradigm in which other issues were approached, or of which specific dimensions would be developed further. EDC was recommended in actions to promote the participation of young people in public life266, new information and communications environment267, gender equality268, race equality269, or the integration of migrants.270 In 2008, the European Ministers for Foreign Affairs launched 264 Addendum 1 to the Minutes of the sitting held at the Palais de l'Europe, Strasbourg on 11 May 2010 (CM(2010)PV-Add 1. On voting procedures, text to n 423 ff. 265 See n 433 and text. 266 CoE Recommendation Rec(2006)14 of the Committee of Ministers to member states on citizenship and participation of young people in public life (25 October 2006), importance of youth associations (non-formal learning). 267 CoE Recommendation Rec(2006)12 of the Committee of Ministers to member states on empowering children in the new information and communications environment (27 September 2006); CoE Recommendation CM/Rec(2007)11 of the Committee of Ministers to member states on promoting freedom of expression and information in the new information and communications environment (26 September 2007); CoE Recommendation CM/Rec(2007)16 of the Committee of Ministers to member states on measures to promote the public service value of the Internet (7 November 2007): ‘Member states should use the Internet and other ICTs in conjunction with other channels of communication to formulate and implement policies for education for democratic citizenship to enable individuals to be active and responsible citizens throughout their lives, to respect the rights of others and to contribute to the defence and development of democratic societies and cultures' (appendix, section I). 268 CoE Recommendation CM/Rec(2007)13 of the Committee of Ministers to member states on gender mainstreaming in education (10 October 2007), para 37. 269 CoE ECRI General Policy Recommendation No 10 on combating racism and racial discrimination in and through school education (15 December 2006) (fundamamental role of schools towards equality). 270 CoE Recommendation CM/Rec(2008)4 of the Committee of Ministers to member states on strengthening the integration of children of migrants and of immigrant background (20 February 2008), C(5) (ii): ‘The school curricula should include education for democratic citizenship, human rights and intercultural competence.’. B Normative context 95 the White Paper on Intercultural Dialogue, recognising that the competences necessary for intercultural dialogue are not automatically acquired but need to be learned, with EDC as one of the key areas of competence.271 In the case of, for example, religious differences, teaching should be consistent with the aims of EDC and HRE, aiming at tolerance and critical thinking.272 Public authorities should ensure that higher education institutions can fulfil their objectives, including ‘preparation for life as active citizens in democratic societies’.273 Categorising activities that foster the rule of law, the Committee of Ministers mentioned EDC and HRE as ‘important activities that seek to promote the rule of law in indirect ways’.274 One binding instrument is particularly noteworthy in this third phase: the 2005 Council of Europe Convention on the Prevention of Terrorism. It contains an obligation for member states to take appropriate measures in the field of education ‘with a view to preventing terrorist offences and their negative effects’.275 This instrument presaged the link between education and security, which was to become central in the next phase. Throughout the third phase, materials were further developed to assist member states and practitioners with implementation (six manuals on EDC/HRE for school practice were included in an EDC Pack), scholarly reflections were published, and good practices shared.276 271 CoE Committee of Ministers, White Paper on Intercultural Dialogue: Living together as equals in dignity (2 May 2008), paras 76 and 93–94 (‘Education for democratic citizenship is fundamental to a free, tolerant, just, open and inclusive society, to social cohesion, mutual understanding, intercultural and interreligious dialogue and solidarity, as well as equality between women and men’). Also explanatory memorandum to the Charter on EDC/HRE, para 7. 272 CoE Recommendation CM/Rec(2008)12 of the Committee of Ministers to member states on the dimension of religions and non-religious convictions within intercultural education (10 December 2008), appendix para 5. 273 CoE Recommendation CM/Rec(2007)6 of the Committee of Ministers to member states on the public responsibility for higher education and research (16 May 2007), preambular paras 17–18, and appendix para 5. See in the same line CM/Rec(2012)7 (n 281). 274 CoE Committee of Ministers, The Council of Europe and the Rule of Law, CM(2008)170, para 62 fn 19 (categorisation of activities that further the rule of law). 275 CoE Convention on the Prevention of Terrorism CETS No 196 (Warsaw, opened 16 May 2005, entered into force 1 June 2007), Art 3(1). The EU and all EU Member States signed the Convention, but some did not ratify (e.g. BE, EL, IE). 276 Osler and Starkey, ‘Education for democratic citizenship: a review of research, policy and practice 1995–2005’; CD Dziuban and others, ‘Developing the Euro- CHAPTER 1 The Charter on Education for Democratic Citizenship 96 EDC standards after 2010: authoritative value of Charter on EDC/HRE confirmed Fourth phase: the Charter on EDC/HRE as a frequently cited reference point In the ongoing normative work of the Council of Europe since 2010, the Charter on EDC/HRE has been a frequently cited reference point.277 Various recommendations of the Committee of Ministers refer to it and go on to consider specific aspects or dimensions of EDC, for instance in relation to the teaching of history278, in the context of disadvantaged neighbor- 2. 36 pean Citizen: Investing in Europe's Democratic Future’ (2007) 21 International Journal of Social Education 177; T Huddleston (ed) Tool on Teacher Training for Education for Democratic Citizenship and Human rights Education (revised, CoE 2007); Olafsdottir, ‘Education for Democratic Citizenship and Human Rights: A Project by the Council of Europe’; Osler, ‘Human Rights Education: The Foundation of Education for Democratic Citizenship in our Global Age’; HJ Abs (ed) Introducing Quality Assurance of Education for Democratic Citizenship in Schools: A comparative Study on Ten Countries (CoE 2009); P Brett, P Mompoint-Gaillard and MH Salema, How all teachers can support citizenship and human rights education: a framework for the development of competences (CoE 2009); B Guidetti, ‘Intercultural education for citizenship in complex societies. Summary of the International Conference on Intercultural Education for citizenship’ (2009) 4 Ricerche di Pedagogia e Didattica 1; A Keating, DH Ortloff and S Philippou, ‘Citizenship Education Curricula: The Changes and Challenges Presented by Global and European Integration’ (2009) 41 Journal of Curriculum Studies 145. For materials and good practices in this period, see R Gollob and P Krapf (eds), Living in democracy: EDC/HRE lesson plans for lower secondary level (EDC/HRE vol III, CoE 2008); R Gollob and P Krapf, Exploring Children's Rights: Nine short projects for primary level (EDC/HRE vol V, CoE 2007); R Gollob and P Krapf, Teaching Democracy: A collection of models for democratic citizenship and human rights education (EDC/HRE vol VI, CoE 2009); Human Rights Education in the School Systems of Europe, Central Asia and North America: A Compendium of Good Practice (CoE, OSCE/ODIHR, UNESCO, OHCHR, 2009) 187. 277 Almost in all instruments cited in this section B. See also Hartley and Huddleston, School-community-university partnerships for a sustainable democracy: Education for Democratic Citizenship in Europe and the United States of America 51. 278 CoE Recommendation CM/Rec(2011)6 of the Committee of Ministers to member states on intercultural dialogue and the image of the other in history teaching (6 July 2011) (‘history teaching constitutes an integral part of education for democratic citizenship’). B Normative context 97 hoods279, the participation of young people280, the responsibilities of public authorities281, or global interdependence and solidarity282. The 2012 Recommendation of the Committee of Ministers on ensuring quality education, which has (i.a.) regard to the Charter on EDC/HRE is particularly important. This Recommendation describes quality education not only by reference to employability, but also with an expectation that education will promote democracy, respect for human rights, and responsible citizenship.283 In the 2013 Helsinki agenda for quality education, the European Ministers of Education share this view, recalling that one of the four main purposes of education is ‘[p]reparation for life as active citizens in democratic societies’ (echoing Article 13(1) ICESCR, third anchor point).284 279 CoE Recommendation CM/Rec(2015)3 of the Committee of Ministers to member States on the access of young people from disadvantaged neighbourhoods to social rights (21 January 2015). 280 CoE Recommendation CM/Rec(2012)2 of the Committee of Ministers to member States on the participation of children and young people under the age of 18 (28 March 2012). 281 CoE Recommendation CM/Rec(2012)7 of the Committee of Ministers to member States on the responsibility of public authorities for academic freedom and institutional autonomy (20 June 2012) (‘higher education fulfils the multiple purposes of preparation for the labour market, preparation for life as active citizens in democratic societies, personal development ...’); CoE Recommendation CM/Rec(2019)5 of the Committee of Ministers to member States on the system of the European Convention Human Rights in university education and professional training (16 October 2019). 282 CoE Recommendation CM/Rec(2011)4 of the Committee of Ministers to member states on education for global interdependence and solidarity (5 May 2011) (recommends a more prominent role for education for global interdependence and solidarity in the framework of the implementation of the Charter on EDC/ HRE). See also CoE Parliamentary Assembly Recommendation 2157 (2019) 'Towards an ambitious Council of Europe agenda for gender equality'. 283 CoE Recommendation CM/Rec(2012)13 of the Committee of Ministers to member States on ensuring quality education (12 December 2012), preambular paras 25–26; appendix para 6 (d-f). 284 CoE Standing Conference of Ministers of Education, Governance and Quality Education (Helsinki, 26 -27 April 2013), see paras 6, 15, and 18 (1)-(2). See also CoE Standing Conference of European Ministers of Education, Final Declaration on 'Education for Sustainable Democratic Societies: the Role of Teachers' (Ljubljana, 4-5 June 2010), and especially CoE Standing Conference of Ministers of Education, Securing Democracy through Education: The development of a Reference Framework of Competences for Democratic Culture (Brussels, 11-12 April 2016), para 13. CHAPTER 1 The Charter on Education for Democratic Citizenship 98 In the 2012–2015 Strategy for the Rights of the Child, the Committee of Ministers builds on the achievements of the programme on EDC and HRE. In several policy cycles, the Charter on EDC/HRE appears among the standards protecting the child, and forms part of strategic objectives and priority areas.285 Member states are supported in the effective implementation of the Charter on EDC/HRE, for instance through the pilot project scheme ‘Human Rights and Democracy in Action’ jointly funded by the EU and the Council of Europe.286 The importance of EDC continues to be confirmed by other Council of Europe bodies, such as the Conference of International Non-Governmental Organisations287 and the Congress of Local and Regional Authorities, which uses the definition of EDC in the Charter and advocates ‘draw[ing] up local policies, strategies and action plans for education for democratic citizenship’.288 Unfortunately, the Venice Commission has not worked on EDC. This authoritative body sets standards on democracy with a focus on legal orders and the working of democratic institutions.289 EDC as a security imperative Two interlinked developments mark the period after 2010. The first is that EDC gained momentum through its relationship with the issue of security 37 285 CoE Committee of Ministers, Council of Europe Strategy for the Rights of the Child (2012-2015) (15 February 2012) CM(2011)171final, third policy cycle, strategic objective 4 (p 8); CoE, Council of Europe Strategy for the Rights of the Child (2012-2015): Implementation report (2016), 8, 17, 24; CoE Committee of Ministers, Council of Europe Strategy for the Rights of the Child (2016-2021): Children’s human rights (3 March 2016) CM(2015)175 final, para 10, priority areas 3 and 4 (paras 37, 40, 48, 60, on participation in and through school, violence, and digitial citizenship education). 286 CoE Committee of Ministers, Council of Europe Strategy for the Rights of the Child (2016-2021): Children’s human rights (3 March 2016) CM(2015)175 final, para 40. 287 CoE Conference of International Non-Governmental Organisations (INGOs), Declaration on genuine democracy (24 January 2013), para 13 (‘Recognising that education is the key means of developing democratic values in the young, and wishing to encourage them to exercise fully the rights and assume the responsibilities of citizenship’). 288 CoE Congress of Local and Regional Authorities of the Council of Europe Resolution 332(2011) 'Education for democratic citizenship: tools for cities', paras 2, and 5–7, and explanatory memoranum paras 6–11. 289 CoE Committee of Ministers Resolution(2002)3, Revised Statute of the European Commission for Democracy through Law (Venice Commission) (21 February 2002). Especially Statute Art 1(2)(b) would allow work on EDC/HRE. B Normative context 99 in Europe. EDC became a central preoccupation in the drive for ‘democratic security’ after the fall of the Berlin wall (1989), and renewed commitment to EDC has resulted from the challenges of radicalisation and terrorism. Acknowledging that these are complex phenomena, several Council of Europe and EU bodies have pointed to education for democratic citizenship and human rights as an important part of the response and a matter of urgency.290 Most terrorist suspects are European citizens. EDC and HRE are also needed to address the problems resulting from the influx of migrants and refugees. In the 2015 report on the ‘State of democracy, human rights and the rule of law: A shared responsibility for democratic security in Europe’, the Secretary General of the Council of Europe recalls the consensus among political scientists that ‘democracies rarely go to war with each other.’291 In order to assess the performance of each member state, five pillars of democratic security are distinguished (each broken down into parameters and detailed criteria). One of them is the ‘Inclusive society and democratic citizenship’ pillar, with EDC as a measurement criterion (to see whether specific action has been taken to increase the priority given to EDC/HRE in education policies). Curricula should be reviewed and updated in line with the Charter on EDC/HRE (country monitoring suggests that there are still large gaps).292 EDC is one of the basic criteria for assessing the degree to which states promote inclusion and democratic citizenship. ‘Building and reinforcing inclusiveness in our societies—and thereby empowering all citizens to exercise and defend their rights, to value diversity and to play an active part in democratic life—is an essential element of democratic security’ (the three components of the definition of EDC in the Charter on EDC/ HRE).293 The successive reports on the state of democracy, human rights and the rule of law continue in the same vein, inter alia recommending 290 Discussed in various fora. See e.g. CoE Exchange on the religious dimension of intercultural dialogue: the role of education in the prevention of radicalisation leading to terrorism and violent extremism (Strasbourg, 9-10 November 2016); World Forum for Democracy 2016, Democracy & equality: does education matter? (Strasbourg, 7-9 November 2016); CoE Conference, Securing Democracy through Education (Nicosia, 22-23 March 2017). See also CoE Parliamentary Assembly Recommendation 2084(2016) 'Foreign fighters in Syria and Iraq'. See for EU reactions §§ 127 . 291 CoE Secretary General, State of democracy, human rights and the rule of law: A shared responsibility for democratic security in Europe. Report 2015, 6. 292 Ibid 13, 86–88. On practice, see text to n 523. 293 Ibid 75 (emphasis added); see also 86. CHAPTER 1 The Charter on Education for Democratic Citizenship 100 assessment of the need to make the Charter on EDC/HRE a binding legal instrument.294 In 2016, the Charter on EDC/HRE was included in a Compendium of the most relevant Council of Europe texts in the area of democracy.295 The Reference Framework of Competences for Democratic Culture (RFCDC) A further development was the work on a Reference Framework for Competences for Democratic Culture (RFCDC). In 2011, a ‘Group of Eminent persons’ was asked by the Secretary General of the Council of Europe, Thorbjørn Jagland, to analyse the threat of rising intolerance and discrimination and loss of democratic freedoms (i.a. through populism, xenophobic parties, and Islamic extremism). This Group regarded educators as the primary actors for change and urged them to develop ‘intercultural competencies’ as core elements in school curricula.296 Intercultural and democratic competences were developed in the RFCDC at the insistence of the Committee of Ministers (Declaration and Action Plan), the European Ministers of Education, the Secretary General, and the Parliamentary Assembly.297 The RFCDC was officially launched in April 2018 during the con- 38 294 CoE Secretary General, State of democracy, human rights and the rule of law— a security imperative for Europe. Report 2016, 81–101 (pillar on inclusive societies), 97 (criteria), 201 (binding); CoE Secretary General, State of democracy, human rights and the rule of law: Populism—How strong are Europe’s checks and balances? Report 2017, 112 (narrowing implementation gaps); CoE Secretary General, State of democracy, human rights and the rule of law: Role of institutions—Threats to institutions Report 2018 (ch 5, education and culture for democracy). 295 CoE Secretariat, Compendium of the most relevant Council of Europe texts in the area of democracy CDDG(2016)Compendium, Chapter E. The Compendium has been drawn up by the SG, authorised for publication by the CM, reflecting ‘the state of play as regards the texts adopted by Council of Europe bodies in areas that fall into the shared definition of democracy’ and with ‘no legal force nor authoritative status’. 296 CoE Report of the Group of Eminent Persons of the Council of Europe, Living together: combining diversity and freedom in 21st century Europe, p 37, 61, para 31. Joschka Fischer headed the Group; members were Emma Bonino (Italy), Timothy Garton Ash (UK), Martin Hirsch (France), Danuta Hübner (Poland), Ayşe Kadıoğlu (Turkey), Sonja Licht (Serbia), Vladimir Lukin (Russia) and Javier Solana (Spain). 297 CoE Committee of Ministers Declaration 'United around our principles against violent extremism and radicalisation leading to terrorism' (19 May 2015) CM(2015)74-final; CoE Committee of Ministers, The fight against violent extremism and radicalisation leading to terrorism - Action Plan (19 May 2015) B Normative context 101 ference ‘Democratic Culture—from words to action’ (Copenhagen).298 It aims to support member states in the implementation of the Charter on EDC/HRE and to increase effectiveness of EDC and HRE.299 The RFCDC has the Charter on EDC/HRE as a main source of inspiration and refers to the central conceptual foundations of EDC/HRE. The enormous value of having a single, consensual EDC concept in the Charter on EDC/HRE is underscored when it is compared with the 101 schemes on citizenship education audited to establish the model for the RFCDC.300 The schemes examined—schemes drawn up by Council of Europe or EU bodies, UNESCO, OECD, member state governments, and academic CM(2015)74 add final, especially heading 2(1)(1); CoE Standing Conference of Ministers of Education, Governance and Quality Education (Helsinki, 26 -27 April 2013), para 21(4); CoE Standing Conference of Ministers of Education, Securing Democracy through Education: The development of a Reference Framework of Competences for Democratic Culture (Brussels, 11-12 April 2016), see paras 12–14 (also on quality education), 20, 31, 37. See also CoE Committee of Ministers, Thematic debate: 'Living together implies having a level of common competences as regards intercultural and democratic dialogue, as well as a system of attitudes, behaviour and common values. Can these be taught?'—Follow-up (4 and 6 July 2012); CoE Committee of Ministers Action Plan on Building Inclusive Societies (2016-2019) (15-16 March 2016) CM(2016)25; CoE Secretary General, The fight against violent extremism and radicalisation leading to terrorism - Implementing the Action Plan. Report (18 May 2016); CoE Parliamentary Assembly Recommendation 2088(2016) 'Towards a framework of competences for democratic citizenship'. See also nn 291 and 294. 298 . 299 More in text to n 300. 300 Competences for democratic culture: Living together as equals in culturally diverse democratic societies (CoE 2016) 3 (four phases). See CoE Committee of Ministers, The fight against violent extremism and radicalisation leading to terrorism - Action Plan (19 May 2015) CM(2015)74 add final, especially 2.1.1; CoE Standing Conference of Ministers of Education, Securing Democracy through Education: The development of a Reference Framework of Competences for Democratic Culture (Brussels, 11-12 April 2016), see paras 12–14 (also on the quality of education), 20, 31, 37. Also CoE Committee of Ministers, Thematic debate: 'Living together implies having a level of common competences as regards intercultural and democratic dialogue, as well as a system of attitudes, behaviour and common values. Can these be taught?'—Follow-up (4 and 6 July 2012); CoE Committee of Ministers Action Plan on Building Inclusive Societies (2016-2019) (15-16 March 2016) CM(2016)25; CoE Secretary General, The fight against violent extremism and radicalisation leading to terrorism - Implementing the Action Plan. Report (18 May 2016). CHAPTER 1 The Charter on Education for Democratic Citizenship 102 researchers—are evidence of the variety of approaches to citizenship education.301 The proliferation of schemes, which moreover differ considerably, presents ‘a dilemma to educational planners and policy makers who wish to find an authoritative model upon which to base their work’.302 The Glossary to the RFCDC reiterates the definition of EDC (concept in para 2). It is interesting that the authors added this comment to the definition: As democratic citizenship is not limited to the citizen’s legal status and to the voting right this status confers, education for democratic citizenship includes all aspects of life in a democratic society and is therefore related to a vast range of topics such as sustainable development, participation of people with disabilities in society, gender mainstreaming, prevention of terrorism and many others.303 EDC does indeed relate to all the rights and obligations which the law confers on citizens, including those concerning sustainable development, disability, gender, etc. Citizens’ participation rights, moreover, relate to the prevention of terrorism and much more. All these subjects fall ipso facto under the definition of para 2 of the Charter on EDC/HRE. The legal status of citizens and component (c-1) cannot be construed narrowly. The RFCDC proposes a model of 20 democratic competences needed for effective participation in a culture of democracy.304 Democratic competence is defined as ‘the ability to mobilise and deploy relevant psychological resources (namely values, attitudes, skills, knowledge and/or understanding) in order to respond appropriately and effectively to the demands, challenges and opportunities presented by democratic situations’.305 The RDCDC sets out the values, attitudes, skills, and knowledge and critical understanding which an individual needs in order to be an 301 Appendix A. See also Grammes, ‘Different Cultures in Education for Democracy and Citizenship’. 302 Competences for democratic culture: Living together as equals in culturally diverse democratic societies (CoE 2016), 27. 303 CoE Reference Framework of Competences for Democratic Culture, Vol 1: Context, concepts and model (2018), 72. See also definition of ‘democratic culture’, etc. in p 71 ff. 304 See Annex 3 to this study. 305 CoE Reference Framework of Competences for Democratic Culture, Vol 1: Context, concepts and model (2018), 32 (intercultural competences are defined likewise as a response to intercultural situations; for citizens who live within culturally diverse democratic societies, they are an integral aspect of democratic competence). B Normative context 103 active participant in a ‘democratic culture/society/group’306—there is, notably, no mention of the state.307 It will be possible to apply these democratic competences in the EU context as they have been chosen to be multipurpose, flexible, open and dynamic.308 An example is the competence specifying the expected knowledge and critical understanding of the world (including politics, law, human rights, etc.).309 Moreover, 447 descriptors have been developed. Descriptors are ‘statements referring to concrete observable behaviour of a person with a certain level of competence’.310 The RFCDC is ‘not a prescribed or even recommended European curriculum’.311 It is a reference document, a tool to enable European education systems to specify learning outcomes, and is destined for use in school curricula at different levels of formal education. The democratic competences in the RFCDC and their descriptors add precision to the EDC standards. For the purposes of this study, the concept of EDC in the Charter on EDC/HRE is useful in itself, especially in its components (c-1–2–3), which set out the EDC and HRE objectives, i.e. empowering citizens to exercise and defend their democratic rights and responsibilities in society, to value diversity (in its behavioural aspects), and to play an active part in democratic life. These components will be used as parameters to apply EDC/HRE standards to the position of EU citizens under EU law. Furthermore, the EDC concept provides a common denominator from which to approach citizenship education, bridging the different political systems in the member states. It is possible to apply the EDC parameters and still 306 CoE Reference Framework of Competences for Democratic Culture, Vol 3: Guidance for implementation (2018), 12. 307 See § 150 statal thinking, i.a. text to n 1026. 308 Competences for democratic culture: Living together as equals in culturally diverse democratic societies (CoE 2016), 31. 309 See ibid 52–53 (also knowledge and critical understanding of culture, media, economies, environment, and sustainability...). 310 Including 135 key descriptors. See CoE Reference Framework of Competences for Democratic Culture, Vol 2: Descriptors of competences for democratic culture (2018), p 11; CoE Reference Framework of Competences for Democratic Culture, Vol 3: Guidance for implementation (2018), p 12: descriptors cover only those values, attitudes, skills, and knowledge and understanding which are learnable, teachable and assessable. 311 CoE Reference Framework of Competences for Democratic Culture, Vol 1: Context, concepts and model (2018), 20: ‘The Framework is thus a tool for use in designing and developing curricula, pedagogies and assessments suitable for different contexts and education systems as determined by those responsible’. It provides a shared language. CHAPTER 1 The Charter on Education for Democratic Citizenship 104 respect national constitutional differences. Even within the EU, the political systems of the Member States differ widely (constitutional monarchies and republics; presidential, semi-presidential, and parliamentary systems; unitary states, federal systems, and states with devolved powers to certain regions; unicameral and bicameral parliaments, etc.). However, they are all representative democracies, their constitutions guaranteeing free elections and human rights. The concise common denominator of EDC is wide enough to embrace different national concepts and allow for diverse approaches in the member states. The democratic competences and their descriptors in the RFCDC provide additional detail. Ongoing work on EDC The follow-up activities since 2010 continue to involve a wide range of actors.312 National public authorities, educational establishments, NGOs, youth organisations, partnerships, networks, and other stakeholders, put Council of Europe instruments into practice. Materials and tools for the implementation and assessment of EDC have been developed further and made available through Council of Europe publications.313 Strategic support has been offered to policy makers.314 EDC continues to be studied in social science.315 At the 2016 Standing Conference, the Ministers of Educa- 39 312 See i.a. CoE Committee of Ministers, Terms of reference for the Steering Committee for education policy and practice (CDPPE), 1 January 2018 until 31 December 2019, CM(2017)131-addfinal (Education for Democracy). 313 R Gollob, P Krapf and W Weidinger (eds), Taking Part in Democracy: Lesson plans for upper secondary level on democratic citizenship and human rights education (EDC/HRE vol IV, CoE 2010); R Gollob, P Krapf and W Weidinger (eds), Educating for democracy: Background materials on democratic citizenship and human rights education for teachers (EDC/HRE vol I, CoE 2011). See also § 126 on the ACCI and the CCCI, in co-operation with the EU. 314 I.a. D Kerr and others, Strategic support for decision makers: Policy tool for education for democratic citizenship and human rights (CoE 2010); Curriculum Development and Review for Democratic Citizenship and Human Rights Education (prepared by Felisa Tibbits for UNESCO/CoE/Office for Democratic Institutions and Human Rights/Organization of American States, 2016). 315 E.g. Hartley and Huddleston, School-community-university partnerships for a sustainable democracy: Education for Democratic Citizenship in Europe and the United States of America; K Hüfner, ‘The Human Rights Approach to Education in International Organisations’ (2011) 46 European Journal of Education 117; D Kerr and A Keating, ‘Intercultural, citizenship and human rights education: the challenges of implementation for policy, practice and research’ (2011) 53 Educational Research 119; Becker, ‘Politische Bildung in Europa’; Grammes, ‘Different Cultures in Education for Democracy and Citizenship’; D Kerr, Implementation of the Council of Europe Charter on Education for Democratic Citizenship and B Normative context 105 tion supported the development of a long-term strategy for a more coherent and comprehensive approach to EDC/HRE and requested the Council of Europe to consider ways of increasing the impact of the Charter.316 Successive chairmanships of the Council of Europe mention education for democratic citizenship and human rights among their priorities.317 Every five years, a Council of Europe report and a conference assess the impact of the Charter on EDC/HRE.318 Human Rights Education: Final Report (CoE Steering Committee for Educational Policy and Practice, 2012); J Menthe, ‘Education for Democratic Citizenship: Values vs Process’ in M Print and D Lange (eds), Schools, Curriculum and Civic Education for Building Democratic Citizens (Sense 2012); GH Helskog, Democracy and diversity in education. Report of the International conference at Buskerud University College (Norway 12-13 March 2013) ; Korostelina and Lässig, History education and post-conflict reconciliation: reconsidering joint textbook projects; M Print and D Lange (eds), Civic Education and Competences for Engaging Citizens in Democracies (Springer 2013); Arbués, ‘Civic Education in Europe: Pedagogic Challenge versus Social Reality’; R Otte, ‘The Council of Europe's work on "Education for Democratic Citizenship and Human Rights Education" and its links to the PIDOP project’ in M Barrett and B Zani (eds), Political and Civic Engagement: Multidisciplinary Perspectives (Routledge 2014 ); Curriculum Development and Review for Democratic Citizenship and Human Rights Education (prepared by Felisa Tibbits for UNESCO/CoE/Office for Democratic Institutions and Human Rights/Organization of American States, 2016). See also A Osler, General Rapporteur Conference report, in CoE Proceedings of the Conference on 'Human Rights and Democracy in Action - Looking Ahead: The Impact of the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education' (Strasbourg, 29-30 November 2012) (2013). 316 CoE Standing Conference of Ministers of Education, Securing Democracy through Education: The development of a Reference Framework of Competences for Democratic Culture (Brussels, 11-12 April 2016), paras 22, 31. 317 E.g. Priorities of the Czech Chairmanship of the Committee of Ministers of the Council of Europe (May—November 2017) CM/Inf(2017)12, section 4; Priorities of the Finnish Presidency of the Committee of Ministers of the Council of Europe (21 November 2018–17 May 2019) CM/Inf(2018)30, point 3. See also Stocktaking of the Finnish Presidency CM/Inf(2019)16: ‘The Expert Meeting of the Education Policy Advisers Network (EPAN) on Education for Democratic Citizenship and Human Rights was held on 16–17 April 2019 in Helsinki with a focus on implementing the Council of Europe’s Reference Framework of Competencies for Democratic Culture (RFCDC)’. 318 First review cycle (2010–2012), see CoE Proceedings of the Conference on 'Human Rights and Democracy in Action - Looking Ahead: The Impact of the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education' (Strasbourg, 29-30 November 2012); see i.a. Kerr, Implementation of the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education: Final Report; and Osler, General Rapporteur CHAPTER 1 The Charter on Education for Democratic Citizenship 106 Conclusion The genesis of the Charter on EDC/HRE and the period after its adoption have revealed its solid foundations, its authority and major political significance. The Charter is a cornerstone in the Council of Europe normative framework on EDC. A huge number of legal instruments containing EDC norms have been mentioned: about 30 recommendations of the Committee of Ministers, various declarations and action plans of the Committee of Ministers, about 10 recommendations of the Parliamentary Assembly, 3 declarations of Summits of Heads of State and Government, about 10 declarations of the Standing Conference of European ministers of Education, several Secretary General reports, and various instruments of the Conference of International Non-Governmental Organisations (INGOs), the Congress of Local and Regional Authorities of the Council of Europe, etc.319 Together, these instruments demonstrate that EDC is a common objective, a paradigm in which all organs and bodies of the Council of Europe cooperate, a generally accepted principle. The political consensus is undeniable. EDC standards belong to the category of ‘generally accepted rules, which would be politically embarrassing to neglect’.320 The question is: what is their legal impact? Having clarified the normative context, I will now examine the legal effects. 40 Conference report, in CoE Proceedings of the Conference on 'Human Rights and Democracy in Action - Looking Ahead: The Impact of the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education' (Strasbourg, 29-30 November 2012). Second review cycle (2012–2017), see CoE Conference, Learning to Live Together: a Shared Commitment to Democracy: Conference on the Future of Citizenship and Human Rights Education in Europe (Strasbourg, 20-22 June 2017). 319 Overview in bibliography. 320 Applying Schermers and Blokker § 1226 (recommendations of international organisations reflecting the generally held view on a given matter). B Normative context 107 Effects of the Charter on EDC/HRE in the Council of Europe legal order Perspectives for assessing the effects of the Charter on EDC/HRE The effects of the Charter on EDC/HRE within the Council of Europe legal order are assessed, firstly, in the light of the case law of the ECtHR (sections A and B) and, secondly, according to criteria established by legal scholars, revealing strengths and weaknesses (section C). Section D draws on research and scholarship outside the legal field providing a context for further analysis. Relevance for the interpretation of ECHR provisions The 2002 Recommendation cited in case law The legal status of the Charter on EDC/HRE is that of a recommendation of the Committee of Ministers under Article 15(b) of the Statute (CM/ Rec(2010)7). This recommendation is not mentioned in the case law of the ECtHR: it is not cited in any judgment, decision or opinion.321 However, its predecessor is: the 2002 Recommendation of the Committee of Ministers on education for democratic citizenship (Rec(2002)12).322 In Seurot v France (2004), a secondary school teacher was dismissed after he published an article with racist content inciting hatred in the school’s newspaper (‘unassimilable Muslim hordes’). In an application to the ECtHR, Seurot invoked the right to freedom of expression (Article 10 ECHR). The Court found that the dismissal did indeed interfere with his right to freedom of expression, but that that was necessary in a democratic society.323 It pursued a legitimate aim of protection of the reputation and of the rights of others. The exercise of the right to freedom of expression ‘carries with it duties and responsibilities’ (Article 10(2) ECHR). These are of a special significance in the case of teachers, ‘who are figures of authority to their CHAPTER 2 41 A 42 321 search in October 2019. 322 Rec(2002)12 of the Committee of Ministers to member states on education for democratic citizenship (text to n 232). 323 Seurot v France no 57383/00 (ECtHR Decision 18 May 2004). 109 pupils’.324 In earlier case law, the concept of special duties and responsibilities had been applied to a certain extent to the teachers’ activities outside the school and—continued the Court—the same must a fortiori apply to the activities of teachers in school. To support its reasoning, at this point, the Court cited the 2002 Recommendation noting that (‘La Cour note d’ailleurs que’) in the Recommendation Rec(2002)12 on education for democratic citizenship, the Committee of Ministers recalls that ‘education for democratic citizenship is fundamental to the Council of Europe’s primary task of promoting a free, tolerant and just society’ throughout life and at each level of education (primary, secondary, …). The Court held that such an education for democratic citizenship, which is essential (‘indispensable’) to combating racism and xenophobia, requires the mobilisation of responsible actors, in particular teachers. The Court explicitly referred to the provision on the teacher training necessary for education for democratic citizenship in the Appendix to the 2002 Recommendation.325 The Court found the complaint to be manifestly ill-founded and unanimously declared the application inadmissible.326 The Seurot decision indicates that the ECtHR recognises the essential role of EDC. It gives some effect to the 2002 Recommendation in its interpretation and application of Article 10 ECHR, striking a fair balance between the fundamental right of the individual to freedom of expression and the legitimate interest of a democratic State. Because the 2010 Recommendation builds on the 2002 Recommendation and contains similar provisions to those cited by the ECtHR,327 it can be expected to produce the same effect. In addition to this first argument militating in favour of the legal effects of the Charter on EDC/HRE, a more general argument will now be developed. Even though recommendations of the Committee of Ministers do not lead to obligations of compliance, judgments of the ECtHR show that such recommendations are not devoid of any legal effects. This second 324 Ibid; Vogt v Germany no 17851/91 (ECtHR 2 Sept 1996), para 60. 325 Rec(2002)12, para 4. 326 See also CoE Parliamentary Assembly, Motion for a resolution tabled by Mr Luca Volontè and other members of the Assembly, 'Respect for human rights in education for democratic citizenship in Spain' (3 June 2010): 305 parents and children lodged an application concerning compulsory ‘Education for Citizenship’ in Spain, in accordance with the 2002 Recommendation. Further Motos (n 462). 327 CM/Rec(2010)7 preamble (‘Recalling the core mission… Firmly convinced’), appendix (Charter) paras 5, 6, 9. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 110 argument will first be explained in general terms, then applied to the 2010 Recommendation on the Charter on EDC/HRE. The ECtHR takes non-binding instruments into account to interpret the ECHR and to establish common European standards The normative context in Chapter one has revealed a wide range of nonbinding instruments on EDC adopted by various bodies of the Council of Europe. They all have potential legal relevance. Case law of the ECtHR demonstrates that non-binding instruments of the Council of Europe have been decisive in important cases. In Tănase v Moldova (Grand Chamber), [t]he Court emphasises that it has consistently held that it must take into account relevant international instruments and reports, and in particular those of other Council of Europe organs, in order to interpret the guarantees of the Convention and to establish whether there is a common European standard in the field.328 In this case, the Court interpreted the right to free elections (Article 3 Protocol 1 ECHR) in the light of various non-binding instruments of bodies of the Council of Europe.329 In Mosley, the ECtHR confirmed even more clearly that ‘any standards set out in applicable international instruments and reports’ are relevant to the interpretation of the ECHR and to the identification of ‘any common European standard in the field’.330 Indeed, throughout the case law of the ECtHR and in the context of many different ECHR rights, non-binding instruments of Council of Europe bodies 43 328 Tănase v Moldova no 7/08 (ECtHR 24 April 2010), paras 176–77. See earlier Demir and Baykara v Turkey no 34503/97 (ECtHR 12 November 2008), paras 74– 76, 85–86; and later Soltysyak v Russia no 4663/05 (ECtHR 10 February 2011), para 51. 329 Tănase, paras 55–60 and 124: to assess proportionality, the ECtHR took account of conclusions and reports of the European Commission against Racism and Intolerance, the Code of Good Practice in Electoral Matters of the Venice Commission, and resolutions of the Parliamentary Assembly, i.a. PA Resolution 1619(2008) on the state of democracy in Europe (25 June 2008). 330 Mosley v UK no 48009/08 (ECtHR 10 May 2011), para 110; also Çam v Turkey no 51500/08 (ECtHR 23 February 2016), para 53; Saadi v UK no 13229/03 (ECtHR 29 January 2008), para 62. Concrete application in Mosley: see paras 56–60, 124, for interpretation of Art 8 ECHR taking PA resolutions into account (i.a. Resolution 1636(2008) on indicators for media in a democracy) as well as a Declaration and Programme of action adopted by the Cracow 2000 European Ministerial Conference (A media policy for tomorrow). A Relevance for the interpretation of ECHR provisions 111 are relevant. The Court relies on them to determine the scope of provisions, interference or justification, often in unprecedented cases where it formulates new standards.331 As early as the 1979 Marckx case, in order to interpret the word ‘everyone’ in Article 8 ECHR (everyone has the right to respect for his family life), the Court took note of the Committee of Ministers’ Resolution on the social protection of unmarried mothers and their children (recommendations of the Committee of Ministers were initially called ‘resolutions’).332 In Telegraaf Media Nederland Landelijke Media, the ECtHR used the definition of journalistic sources in the appendix of a recommendation of the Committee of Ministers in order to decide whether there was infringement of Articles 8 and 10 ECHR, and declared that ‘[p]rotection of journalistic sources is one of the basic conditions for press freedom, as is recognised and reflected in various international instruments including the [quoted] Committee of Ministers Recommendation’.333 The ECtHR thus refers to Council of Europe recommendations to stress the importance of certain general principles.334 In Shtukaturov v Russia, Article 8 ECHR was interpreted and applied by reference to a Committee of Ministers recommendation on principles concerning the legal protection of incapable adults: ‘[a]lthough these principles have no force of law for this Court, they may define a common European standard in this area’.335 The Court held that Russian legislation contrary to these principles, constituted a disproportionate restriction on the right guaranteed by Article 8 ECHR. In the landmark Demir case, the Court recalled that it has 331 LR Glas, ‘The European Court of Human Rights' use of non-binding and standard-setting Council of Europe documents’ (2017) 17 Human Rights Law Review 97, 100, 102–103, 106–108, 119. In a sample of 795 judgments between 2012 and 2015, the ECtHR used CoE documents in a minority of cases (about 230), but these cases were relatively important and formulate new standards. 332 Marckx v Belgium no 6833/74 (ECtHR 13 June 1979), para 31 (CM Resolution (70)15 on the social protection of unmarried mothers and their children (15 May 1970) was an argument ‘in addition’). See this and other examples in Pinto de Albuquerque (n 401). Text to n 402 on the role of soft law. 333 Telegraaf Media Nederland Landelijke Media v the Netherlands no 39315/06 (ECtHR 22 November 2012), paras 86 and 127 (quoting Recommendation No. R (2000) 7 of the Committee of Ministers to member states on the right of journalists not to disclose their sources of information). 334 Glas, ‘The European Court of Human Rights' use of non-binding and standardsetting Council of Europe documents’, 110, with examples. 335 Shtukaturov v Russia no 44009/05 (ECtHR 27 March 2008), para 95. Taking into account CoE Recommendation R(99)4 of the Committee of Ministers to member states on principles concerning the legal protection of incapable adults (23 February 1999). CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 112 never considered the provisions of the ECHR as the sole reference framework for interpreting the rights and freedoms therein. ‘On the contrary, it must also take into account any relevant rules and principles of international law applicable in relations between the Contracting Parties’.336 The Court ‘has used, for the purpose of interpreting the Convention, intrinsically non-binding instruments of Council of Europe organs, in particular recommendations and resolutions of the Committee of Ministers and the Parliamentary Assembly’.337 Here, the Court took account of a recommendation of the Committee of Ministers on the status of public officials in Europe to interpret the right to freedom of association (Article 11 ECHR).338 In several cases, European Prison Rules, featuring as an appendix to recommendations of the Committee of Ministers just like the Charter on EDC/HRE, have played an important role in the interpretation of Article 3 (prohibition of torture or inhuman or degrading treatment or punishment) or of Article 8 ECHR (right to respect for private and family life).339 In S v Switzerland, the ECtHR recognised the right of the accused to communicate with his lawyer out of hearing of third persons as a basic condition for a fair trial in a democratic society (Article 6(3)(c) ECHR). This right had been set forth in the Standard Minimum Rules for the Treatment of Prisoners (appendix to Resolution (73)5 of the Committee of Ministers). The Court held this to be a necessary right, considering that ‘the Convention is intended to guarantee rights that are practical and effective’.340 In Salduz, the ECtHR held that Article 6(1) ECHR included the suspect’s right of access to a lawyer from the time of the first police 336 Demir (n 328), para 67. 337 Demir (n 328), paras 74–75. The Court has also supported its reasoning ‘by reference to norms emanating from other CoE organs, ‘even though those organs have no function of representing States Parties to the Convention, whether supervisory mechanisms or expert bodies’. See also para 85: When ‘defining the meaning of terms and notions in the text of the Convention, [the Court] can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values’. 338 Demir (n 328), paras 46, 76, 104, using Recommendation No R(2000)6). 339 The European Prison Rules are the minimum standards to be applied in prisions. See CoE Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules (1 January 2006), and earlier CoE Recommendation R(87)3 of the Committee of Ministers to member states on the European Prison Rules (12 February 1987). See also text to n 512. 340 S v Switzerland no 12629/87 (ECtHR 28 November 1991), para 48. A Relevance for the interpretation of ECHR provisions 113 interrogation,341 and also referred to several recommendations of the Committee of Ministers and of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.342 In Murray, interpreting Article 3 ECHR, the ECtHR found support for its decision that prisoners should be given an opportunity to rehabilitate i.a. in recommendations of the Committee of Ministers confirming the rehabilitative aim of imprisonment—notwithstanding the fact that the ECHR does not guarantee such a right—and held that States have an obligation of means to provide this.343 Finally, and without seeking to provide an exhaustive list of examples,344 in Baka, the Court considered Hungary’s alleged violation of Articles 6 and 10 ECHR in the light of ‘international and Council of Europe standards on the independence of the judiciary and the procedural safeguards applicable in cases of removal of judges’, including a Recommendation of the Committee of Ministers to member states on judges’ independence, efficiency and responsibilities (with norms in the appendix also expressed in terms of ‘should’), and in the light of other non-binding instruments of Council of Europe bodies, such as opinions of the Venice Commission.345 341 Salduz v Turkey no 36391/0227 (ECtHR November 2008), para 55, ‘in order for the right to a fair trial to remain sufficiently “practical and effective”’. 342 Ibid, paras 37–38, 54–55 (i.a. CM Res(73)5, CM Rec(2006)2). See earlier Perez v France no 47287/99 (ECtHR 12 February 2004), para 72 (‘the Court draws attention for information to the text of Recommendations Nos. R (83) 7, R (85) 11 and R (87) 21 of the Committee of Ministers ..., which clearly specify the rights which victims may assert in the context of -criminal law and procedure’). 343 Murray v the Netherlands no 10511/10 (ECtHR 26 April 2016), paras 58, 60, 66, 70, 73, 76, 99, 103–04 (taking into account European Prison Rules, also CM recommendations Rec(2003)23, Rec(2003)22, R (98)7 and Resolution 76(2)). Various other international and European materials are referred to, i.a. country reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (paras 57, 62). Other case law on prison rules with role of non-binding CoE instruments, see i.a. Enea v Italy no 74912/01 (ECtHR 17 September 2009), para 101; Vinter and Others v UK no 66069/09 et al (ECtHR 9 July 2013), paras 114, 116, 119 (i.a. a report on Switzerland of the Committee for the Prevention of Torture). 344 Other examples in Pinto de Albuquerque (n 401), and Glas, ‘The European Court of Human Rights' use of non-binding and standard-setting Council of Europe documents’. 345 Baka v Hungary no 20261/12 (ECtHR 23 June 2016), paras 77–79, 82–83, 114, 117, such as Opinion no. 1 (2001) of the Consultative Council of European Judges on standards concerning the independence of the judiciary and the irremovability of judge, CoE Recommendation CM/Rec(2010)12 of the Committee of Ministers of the Council of Europe on judges: independence, efficiency and CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 114 The interpretative value of Council of Europe recommendations, and recognition of their legal effect within the Council of Europe legal order, is comparable—mutatis mutandis—to the ECJ Grimaldi line of case law, acknowledging the legal effects of recommendations within the EU legal order. The ECJ stressed that recommendations cannot be regarded as having no legal effects: national courts are bound to take recommendations into consideration in order to decide disputes submitted to them, in particular where they cast light on the interpretation of national measures adopted in order to implement them or where they are designed to supplement binding Community provisions.346 To conclude, in its interpretation of the ECHR, the ECtHR is mainly guided by the rules of interpretation of the Vienna Convention on the Law of Treaties.347 The ECHR ‘cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law’.348 When the ECtHR considers the object and purpose of ECHR provisions, it also takes account of the international law background to the legal question before it,349 and relies on a wide range Council of Europe instruments: recommendations of the Committee of Ministers, resolutions or recommendations of the Parliamentary Assembly, declarations of European ministerial conferences, reports of Council of Europe bodies, etc. All responsibilities (17 November 2010) (norms in appendix), opinions of the Venice Commission, or the European Charter on the Statute for Judges. See also Joint Concurring Opinion of Judges Pinto de Albuquerque and Devov, paras 6 and 17: ‘The Court’s direct recourse to international-law standards on judicial independence, including soft-law sources, as a source of law in order to address the applicant’s situation is highly remarkable, and laudable.’ Further Murray v the Netherlands no 10511/10 (ECtHR 26 April 2016), paras 57 ff, i.a. report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Aruba and the Netherlands Antilles in 2007; and in Vinter and Others v UK no 66069/09 et al (ECtHR 9 July 2013), para 116, i.a. report on Switzerland of the CPT. 346 Case C-322/88 Grimaldi ECLI:EU:C:1989:646, para 18. 347 Demir (n 328), para 65, referring to Arts 31–33 Vienna Convention on the Law of Treaties. 348 RMT v UK no 31045/10 (ECtHR, 8 April 2014), para 76. The ECtHR consistently holds that the Convention cannot be interpreted in a vacuum; see i.a. Al- Adsani v UK no 35763/97 (ECtHR 21 November 2001), para 55; Hassan v UK no 29750/09 (ECtHR 16 September 2014), para 77. 349 Demir and Baykara v Turkey no 34503/97 (ECtHR 12 November 2008), para 76, also 67; Saadi v UK no 13229/03 (ECtHR 29 January 2008), para 63. A Relevance for the interpretation of ECHR provisions 115 such instruments have featured in the normative context of the Charter on EDC/HRE and therefore have legal relevance. Taking account of the Charter on EDC/HRE and the establishment of common EDC standards In the light of the ECtHR case law set out above, the Charter on EDC/HRE can be seen as an instrument which is relevant for interpreting the ECHR and establishing common European EDC standards in the field of citizenship education. As stated in Demir: Being made up of a set of rules and principles that are accepted by the vast majority of States, the common international or domestic law standards of European States reflect a reality that the Court cannot disregard when it is called upon to clarify the scope of a Convention provision that more conventional means of interpretation have not enabled it to establish with a sufficient degree of certainty.350 By the same token, the EDC standards form ‘a set of rules and principles that are accepted by the vast majority of States’ and make up ‘the common international or domestic law standards of European States’. They ‘reflect a reality that the Court cannot disregard’ in the interpretation of the Convention. In line with the Demir, Tănase and Mosley case law of the ECtHR, and taking into account all the relevant Council of Europe instruments on EDC which form its normative context, the Charter on EDC/HRE establishes a common European standard in the field of citizenship education.351 In its definition of the EDC concept and principles, the Charter on EDC/HRE marks an important stage in a long-standing educational policy of the Council of Europe and is accepted throughout Europe as an important reference point.352 Moreover, several bodies of the Council of Europe refer to the Charter on EDC/HRE as a ‘standard’.353 This common European standard on EDC/HRE is part of the Council of Europe benchmark for 44 350 Demir (n 328), para 76. 351 Text to n 328. 352 Explanatory memorandum para 1; Kerr, Implementation of the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education: Final Report 1; CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe. 353 CoE Committee of Ministers, Council of Europe Strategy for the Rights of the Child (2012-2015) (15 February 2012) CM(2011)171final, p 3 and 8 (aims at an effective implementation of children’s rights standards and works on the Charter on EDC/HRE in strategic objective 4); CoE, Council of Europe Strategy for the Rights of the Child (2012-2015): Implementation report, p 6 and 8; CoE Committee CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 116 human rights, the rule of law and democracy in Europe, which the EU has committed itself to respecting in the Memorandum of Understanding. Eurydice also states that the Council of Europe has set policy standards in the field of EDC and includes Council of Europe work in the basis for its reports.354 Case law on the Convention right to education (Article 2 Protocol 1 to ECHR) confirms a reading in the light of recommendations of the Committee of Ministers and of other non-binding Council of Europe instruments. At this point of the study, it is sufficient to draw attention to the use of non-binding instruments as a reference for understanding formal sources of law. The consequences of applying these instruments as to the substance will be considered in Parts three and four. In the area of education, the ECtHR regularly refers to non-binding instruments under the heading ‘relevant Council of Europe documents’ and incorporates them in the reasoning on the merits, for instance with regard to Roma children.355 In Horváth the Court held that positive measures were to be taken to assist of Ministers, Council of Europe Strategy for the Rights of the Child (2016-2021): Children’s human rights (3 March 2016) CM(2015)175 final, para 40 and 62 (making the standards work, Charter in priority area 2(3)). See also CoE Secretary General, State of Democracy, Human Rights and the Rule of Law in Europe. Report 2014, p 9. 354 Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2005), 7. In the 2012 report, Eurydice takes CoE studies on EDC as a basis for its work on citizenship education in national curricula, and updates and enriches it: see Commission/EACEA/Eurydice, Citizenship Education in Europe (2012), p 109 fn 95. Further Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2017), 27. 355 Concerning Roma children, see DH and Others v Czech Republic no 57325/00 (ECtHR 13 November 2007), paras 54–61, 182, 216 (i.a. PA Recommendation No 1203(1993) on Gypsies in Europe; PA Recommendation No 1557(2002) on the legal situation of Roma in Europe; ECRI General Policy Recommendation No 3 and 7, with reference to definitions and explanatory memorandum); Oršuš and Others v Croatia no 15766/03 (ECtHR 16 March 2010), paras 65–76, 79–86, 147 (i.a. citing CoE Recommendation CM/Rec(2009)4 of the Committee of Ministers to member States on the education of Roma and Travellers in Europe (17 June 2009), with appendix; ECRI reports on Croatia; Opinions of Advisory Committee on the Framework Convention for the Protection of National Minorities; and reports of the Commissioner for Human Rights). Also in other education cases (not on Roma), non-binding CoE instruments form part of the reasoning: e.g. Hasan and Eylem Zengin v Turkey no 1448/04 (ECtHR 9 October 2007), paras 26–28, 52, 69, 74 (PA Recommendations 1396(1999) and 1720(2005) and ECRI General policy recommendation no 5); Velyo Velev v Bulgaria no 16032/07 (ECtHR 27 May 2014), paras 34–35, and para 41 (on CoE A Relevance for the interpretation of ECHR provisions 117 Roma children who had difficulties following the school curriculum. The Court referred in this context to a recommendation of the Committee of Ministers according to which appropriate support structures should be put in place to enable Roma/Gypsy children to benefit from equal opportunities at school, in particular through positive action.356 Like the EDC norms in the appendix to the Recommendation on the Charter on EDC/HRE, the relevant norms were set out in the appendix to the recommendation and framed in ‘should’ terms. The fact that the ECtHR uses soft law instruments is often linked to the living instrument doctrine and the effectiveness ambitions of the Court. In Leyla Şahin, the Court notes that the substance of the right to education may vary from one time or place to another according to economic and social circumstances, and adds that it is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. Moreover, the Convention is a living instrument which must be interpreted in the light of present-day conditions.357 The Court referred to recommendations of the Committee of Ministers and of the Parliamentary Assembly on access of minorities to higher education, in which ‘the Council of Europe has stressed the key role and importance of higher education in the promotion of human rights and Recommendation R(89)12 of the Committee of Ministers to member states on education in prison (13 October 1989)); Altınay v Turkey no 37222/04 (ECtHR 9 July 2013), paras 22, 43–44 (on CoE Recommendation R(98)3 of the Committee of Ministers to member states on access to higher education (17 March 1998), and appendix). 356 Horváth and Kiss v Hungary no 11146/11 (ECtHR 29 January 2013), para 104, see also paras 72–75, 114 (i.a. citing CoE Recommendation R(2000)4 of the Committee of Ministers to member States on the education of Roma/Gypsy children in Europe (3 February 2000), with relevant sections of the appendix; Opinion on Hungary of the Advisory Committee on the Framework Convention for the Protection of National Minorities, and Follow-up Report on Hungary (2002– 2005) of the CoE Commissioner for Human Rights, and Report on Hungary of ECRI). 357 Leyla Şahin v Turkey no 44774/98 (ECtHR 10 November 2005), para 136; Mihalache v Romania no 54012/10 (ECtHR 8 July 2019), para 91. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 118 fundamental freedoms and the strengthening of democracy’.358 The Court reads Article 2 of Protocol 1 ‘in its context and having regard to the object and purpose of the Convention, a law-making treaty’, stating that in a democratic society, the right to education is indispensable to the furtherance of human rights.359 Not only recommendations, but also the reports of various Council of Europe and international bodies have been used by the ECtHR to interpret and apply the right to education in specific cases.360 It is not impossible that, in an appropriate and comparable way, the reports for the 2012 and 2017 review cycles of the implementation of the Charter on EDC/HRE, surveying national practices, may have legal relevance. They may point to standards in the same way as national reports in ECtHR case law have done in other fields.361 Caution: weight of standards is to be determined by the ECtHR While recommendations of the Committee of Ministers may have important interpretative value and the ECtHR takes a wide array of non-binding sources of various Council of Europe bodies into account, the use of soft law instruments in the Council of Europe legal order is not straightforward. Doubts have been expressed as to whether it is appropriate that non- 45 358 Şahin, para 136, see also paras 66, 68–69 (on CoE Recommendation R(98)3 of the Committee of Ministers to member states on access to higher education (17 March 1998), with referral to preamble, and CoE Parliamentary Assembly Recommendation 1353(1998) on the access of minorities to higher education). 359 Şahin, para 137. See also para 141: ‘This is not an extensive interpretation forcing new obligations on the Contracting States: it is based on the very terms of the first sentence of Article 2 of Protocol No 1 read in its context and having regard to the object and purpose of the Convention, a law-making treaty’ (with reference to Golder v UK no 4451/70 (ECtHR 21 February 1975), para 36). 360 E.g. nn 355-356 (cases DH, Oršuš, and Horvath,); Mansur Yalçin and Others v Turkey no 21163/11 (ECtHR 16 September 2014), para 33. 361 See nn 330, 343 and 369 (and text); further Glas, ‘The European Court of Human Rights' use of non-binding and standard-setting Council of Europe documents’, 101, 104 (reports of independent experts, even of one person are taken into account). Reports on EDC: CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, see e.g. 51– 52: the Analytical Summary of Replies to the Questionnaire for Governments, part of the 2016 Report on the State of citizenship and Human Rights in Europe, was drawn up in a collaboration of independent experts and academics. The ultimate goal of the report is to strengthen the Charter on EDC/HRE as ‘an effective support instrument for the promotion of respect and dialogue through education’. A Relevance for the interpretation of ECHR provisions 119 binding Council of Europe standards become binding indirectly via interpretation, as a result of their incorporation into ECtHR case law (judgments are binding on member states and precedents are created).362 The answer to this question should start with the recognition that the incorporation of non-binding Council of Europe standards is far from automatic. The judges of the ECtHR do not adopt one single approach in this matter.363 In ECtHR case law, the existence of recommendations of Council of Europe bodies (such as the Committee of Ministers or the Parliamentary Assembly) does not necessarily lead to corresponding interpretations. In Velyo Velev, the ECtHR held that ‘[w]hile the Court is aware of the recommendations of the Committee of Ministers to the effect that educational facilities should be made available to all prisoners ..., it reiterates that Article 2 of Protocol 1 does not place an obligation on Contracting States to organise educational facilities for prisoners where such facilities are not already in place’.364 Ultimately it is the ECtHR which decides in the spe- 362 Glas, ‘The European Court of Human Rights' use of non-binding and standardsetting Council of Europe documents’ 98–99, 120. 363 Compare the open-minded attitude vàv soft law of Judges Pinto de Albuquerque and Tulkens with more reticent views: e.g. Concurring Opinion of Judge Wojtyczek in National Union of Rail, Maritime and Transport Workers v UK no 31045/10 (ECtHR 8 April 2014), para 4 (warning for judicial activism); Dissenting Opinion of Judge Keller, joined by Judge Popovic in Ruiz Rivera v Switzerland no 8300/06 (ECtHR 18 February 2014), para 17. Drawing judicial inspiration from exogenic soft law can be criticised as eroding the values of democracy and the rule of law. Further : F Tulkens, S Van Drooghenbroeck and F Krenc, ‘Le soft law et la Cour européenne des droits de l'homme: questions de légitimité et de méthode’ (2012) 23 Revue trimestrielle des droits de l'homme 433, 437, on the methodology of the use of soft law; and below n 401. 364 Velyo Velev v Bulgaria no 16032/07 (ECtHR 27 May 2014), para 34. Not following either: Üner v the Netherlands no 12629/87 (ECtHR 18 October 2006), paras 35–37, 55–56; Muršić v Croatia no 7334/13 (ECtHR 20 October 2016), with critical reaction of Pinto de Albuquerque, para 2 (‘the majority assume that they are not bound by the standards set by the Committee of Ministers, the Committee for the Prevention of Torture (the CPT) and the Council for Penological Cooperation (PC-CP) of the European Committee on Crime Problems (CDPC) of the Council of Europe’). According to Glas, ‘The European Court of Human Rights' use of non-binding and standard-setting Council of Europe documents’, the Court usually follows standards of other CoE organs (p 113, with more examples of exceptions). The autonomy of the Court also appears in the interpretation of certain concepts vàv domestic legislators, see e.g. C Grabenwarter, European Convention on Human Rights: Commentary (Beck Hart Nomos 2014) 101, 108, 112. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 120 cific case what weight is to be given to the various sources.365 The Court has attached ‘considerable importance’ or ‘great weight’ to various recommendations of the Committee of Ministers, while acknowledging that, in se, they have no binding force for the member states,366 for instance with regard to European prison standards.367 Hence the question: what is the weight of the Charter on EDC/HRE? In the absence of case law on the Recommendation on the Charter on EDC/HRE, but in line with the ECtHR’s reasoning in the cases cited above, situating the Charter in its normative context helps to appraise the weight of the EDC standards. The Charter on EDC/HRE is a standard which deserves to be given ‘considerable importance’ or ‘great weight’. It is based on an impressive body of instruments on EDC emanating from all the Council of Europe bodies and has repeatedly been recalled as an authoritative instrument since its adoption. It is anchored in the core aims and values of the Council of Europe and is informed by a persistent rationale for democratic security. That soft law and hard law are profoundly interwoven,368 should not only apply to prison standards or the protection of incapable adults (case law cited above) but should be relevant a fortiori for norms concerning the foundations of our society, namely democracy, the rule of law and human rights. In line with the Leyla Şahin case law369 and on a reading based on the context and aims of the provisions, the ECtHR would probably consider the Recommendation on the Charter on EDC/HRE to be relevant to the interpretation of the right to education (Article 2 Protocol 1 to ECHR) and a standard of great weight contributing to rendering ECHR rights ‘practical and effective, not theoretical and illusory’.370 After all, EDC and HRE seek the empowerment of citizens, as appears from their definitions. Importantly, the Recommendation on the 365 Tănase v Moldova no 7/08 (ECtHR 24 April 2010), paras 176. 366 See also Rivière v France no 33834/03 (ECtHR 11 July 2006), para 72 (‘la Recommandation du Comité des Ministres du Conseil de l’Europe relative aux aspects éthiques et organisationnels des soins de santé en milieu pénitentiaire, … la Cour … y attache un grand poids, même si elle admet qu’elle n’a pas en soi valeur contraignante à l’égard des Etats membres’); Gülay Çetin v Turkey no 44084/10 (ECtHR 5 March 2013), para 130. 367 See cases cited in Pinto de Albuquerque (n 401), para 35. While the ECtHR recognises the value of soft law instruments, it underlines at the same time the conceptually different role of the Court and the bodies drawing up soft law (preventive function, higher protection): see Muršić v Croatia no 7334/13 (ECtHR 20 October 2016), para 114. 368 Pinto de Albuquerque (n 401), para 18. 369 Text to nn 357-359. 370 Şahin, para 136. A Relevance for the interpretation of ECHR provisions 121 Charter on EDC/HRE is fully in keeping with the Convention’s aim of achieving ‘effective political democracy’ (preamble ECHR).371 Former ECtHR Vice-President Françoise Tulkens underlines that the preamble’s reference to effective political democracy is not rhetorical: ‘In interpreting and applying the Convention, the European Court of Human Rights relies heavily on these principles not only as a source of inspiration but also as a basis for its action’.372 The ECtHR frequently reiterates that democracy is a fundamental feature of the European ordre public,373 and the only political model compatible with the ECHR.374 While case law of the ECtHR on this aspect will be examined in Part four, the point may already be made that it seems highly unlikely that the Court would ignore EDC/HRE standards. EDC/HRE are basic pre-conditions for genuine democracy and respect of human rights, as recognised and reflected in the innumerable Council of Europe instruments on EDC, and in particular the Recommendation on the Charter on EDC/HRE. The Committee of Ministers, the highest decision-making body of the Council of Europe, and other bodies too, frequently repeat that the core mission of the Council of Europe is to promote human rights, democracy and the rule of law, and that they are firmly convinced that education and training play a central role in furthering this mission. 371 Preamble: ‘Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend’ (emphasis added). 372 F Tulkens, ‘Freedom of Religion under the European Convention on Human Rights: A Precious Asset’ [2014] Brigham Young University Law Review 509. See also S Marks, ‘The European Convention on Human Rights and its Democratic Society’ (1996) 66 The British Year Book of International Law 209; P van Dijk and others (eds), Theory and practice of the European Convention on human rights (4 edn, Intersentia 2006) 912. 373 United Communist Party of Turkey and Others v Turkey no 19392/92 (ECtHR 30 January 1998), para 45; Karácsony and Others v Hungary no 42461/13 et al (ECtHR 17 May 2016), para 141; Selahattin Demirtaş v Turkey no 14305/17 (ECtHR 20 November 2018), para 227. 374 United Communist Party of Turkey and Others v Turkey no 19392/92 (ECtHR 30 January 1998), para 45; Hirst v UK no 74025/01 (ECtHR 6 October 2005), para 58. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 122 A possible reason why the ECtHR might not follow the recommendations adopted by Council of Europe bodies is that it disagrees with them.375 This can hardly be imagined in the case of EDC/HRE, given the reference to the 2002 Recommendation in Seurot v France and the consensus in all Council of Europe bodies on the importance of recommending EDC. Another reason for refusing to follow a recommendation might be a disparity between required minimum human rights standards and recommended desirable standards.376 Certainly, the desirable standards set out in recommendations do not automatically equate with the minimum standards protected by human rights. In the case of EDC standards, however, establishing a set of human rights in the ECHR as minimum standards (including participation rights, freedom of expression, etc.) but not at the same time providing for adequate education to empower citizens to exercise such rights, may deprive those rights of their essence and effectiveness. EDC standards can be seen as belonging to internationally recognised general principles. Education for democracy and human rights are not only protected in Council of Europe instruments, but also vigorously defended in UN instruments.377 Applying criteria proposed by academic writers (section C) will provide additional arguments for appraising the weight of EDC standards. Taking the Charter on EDC/HRE into account as a weighty standard when interpreting ECHR provisions, is not only relevant within the Council of Europe legal order. It will have knock-on effects in the national legal orders and in the EU legal order. Limitation of member states’ margin of appreciation A European consensus generally limits the margin of appreciation of member states ECtHR case law shows that the existence of a European consensus, based on binding and/or non-binding standards, has consequences for the breadth of the margin of appreciation enjoyed by member states: ‘where no consensus exists, the margin of appreciation afforded to States is gener- B 46 375 Glas, ‘The European Court of Human Rights' use of non-binding and standardsetting Council of Europe documents’ 116 (example: disagreement among CoE bodies on the blanket ban on clothing designed to conceal one’s face in public). 376 Ibid, 117. 377 Further text to n 442 ff and Part four § 294 . B Limitation of member states’ margin of appreciation 123 ally a wide one’.378 A contrario, finding a European consensus generally narrows the breadth of the margin of appreciation for member states. A wide European consensus on EDC The normative context of the Charter on EDC/HRE is evidence that the Charter on EDC/HRE is based on a wide European consensus, more particularly on the need for, the concept and the principles of EDC. The numerous legal instruments cited above adopted by the various Council of Europe actors demonstrate the political will of European leaders to bring about meaningful EDC. The main reason for the success of the EDC/HRE project is the acknowledgment by governments and other decision-makers of the crucial role of education in fostering the civic engagement of European citizens.379 Over the course of 30 years work, there has been a consensus on the role of education as preparation for democracy, in other words, on the inseparable link between democratic citizenship and human rights on the one hand, and education on the other hand. EU Member States share this consensus on EDC standards. They have been continuous participants in the Council of Europe bodies which have adopted legal instruments on EDC. The Committee of Ministers is ‘the best intermediary of the European consensus’: as the ECtHR has stated, it is ‘through the Committee of Ministers’ that ‘the member states of the Council of Europe have agreed 47 378 Mosley v UK no 48009/08 (ECtHR 10 May 2011), para 110. See also Fretté v France no 36515/97 (ECtHR 26 February 2002), para 41; Evans v UK no 6339/05 (ECtHR 10 April 2004), paras 54, 59, 77; Lautsi and Others v Italy no 30814/06 (ECtHR 18 March 2011), para 70; SH and Others v Austria no 57813/00 (ECtHR 3 November 2011), para 94; Siebenhaar v Germany no 18136/02 (ECtHR 3 February 2011), para 39; Sindicatul “Păstorul cel Bun” v Romania no 2330/09 (ECtHR 9 July 2013), para 171. See also Joint Dissenting Opinion of Judges Tulkens, Hirvelä, Lazarova Trajkovska and Tsotsoria in SH, para 8: ‘The differences in the Court’s approach to the determinative value of the European consensus and a somewhat lax approach to the objective indicia used to determine consensus are pushed to their limit here, engendering great legal uncertainty.’ Other examples and discussion in Dialogue between Judges, European Court of Human Rights (2008), ‘The role of consensus in the system of the European Convention on Human Rights’, concluding that consensus in the Convention sense is not unanimity, but ‘more an expression of the common ground required for the collective approach underlying the Convention system and the interaction between the European and domestic systems’. 379 Olafsdottir, ‘Education for Democratic Citizenship and Human Rights: A Project by the Council of Europe’ 130; Arbués, ‘Civic Education in Europe: Pedagogic Challenge versus Social Reality’ 229. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 124 that ...’.380 The intergovernmental consensus, to which several scholars refer in order to argue the importance of Council of Europe recommendations in general,381 is even more marked in the case of the Recommendation on the Charter on EDC/HRE, which was not only adopted by the Ministers of Foreign Affairs (Committee of Ministers), but corresponds to declarations of the Heads of State and Government (Summits) and of the Ministers of Education or Youth (Standing Conferences). Furthermore, the consensus reaches much deeper than an intergovernmental consensus. The Recommendation on the Charter on EDC/HRE is embedded in several recommendations and resolutions of the Parliamentary Assembly, thus involving representatives of national parliaments, and other bodies of the Council of Europe. Finally, the Council of Europe has recognised EDC as a complex and multifaceted undertaking for which rule-making should not be left to official institutions alone.382 The Charter on EDC/HRE is the result of wide consultations with stakeholders and experts, civil society and grassroots organisations.383 In keeping with its reputation as a norm entrepreneur,384 the Council of Europe took into account the wealth of information resulting from its interaction with many actors. The Council of Europe works together with international NGOs (INGOs) and has civilsociety programmes with national NGOs to increase the active participation of citizens in public life.385 The consensus on EDC continues to be manifest in the period since the adoption of the Charter. A key conclusion after the second review cycle (2012–2017) of the Charter on EDC/HRE was that the implementation of EDC/HRE had gained importance in Europe, that education is increasingly recognised as an essential response to the challenges that our societies are facing, and that the Charter needs to be 380 MC v Bulgaria no 39272/98 (ECtHR 4 December 2003), para 162; Pinto de Albuquerque (n 401), para 40. 381 See § 55 , De Vel and Markert (n 168); Benoît-Rohmer and Klebes, Council of Europe Law - Towards a pan-European legal area. 382 Hartley and Huddleston, School-community-university partnerships for a sustainable democracy: Education for Democratic Citizenship in Europe and the United States of America 15. An open-ended list of stakeholders in Charter on EDC/ HRE, paras 5(b)(d)(i), 10, 15 (b)(d)(e); explanatory memorandum para 40. 383 Conferences, working groups, text drafting sessions and revisions, see text to n 261. A commonly accepted standard, see also Durr, Spajic-Vrkaš and Ferreira Martins, Strategies of Learning Democratic Citizenship. 384 Sasse, ‘The Council of Europe as a Norm Entrepreneur: The Political Strengths of a Weak International Institution’ 175–176. 385 CoE Committee of Ministers Declaration on the Code of Good Practice for Civil Participation in the Decision-Making Process (21 October 2009). B Limitation of member states’ margin of appreciation 125 further developed as a common framework for policy dialogue among and within countries.386 Governments of 40 member states (Ministries of Education, in consultation with diverse partners) and almost 100 civil society organisations from 44 countries (NGOs and youth organisations) responded to the questionnaires on the implementation of the Charter on EDC/HRE.387 Admittedly, three EU Member States did not answer (DK, IT, and PL). Yet, sporadic dissonance does not destroy the European consensus, nor its relevance in ECtHR case law. The consensus does not require unanimity in order to carry weight. In Demir, the Court found it sufficient ‘that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member [s]tates of the Council of Europe and show, in a precise area, that there is common ground in modern societies’.388 The Court has referred in several cases to the ‘great majority’ of the member states.389 Applied to EDC standards, the fact that some member states have reservations on a certain issue or at a particular time is not a contra-indication for a European consensus.390 In the search for common ground among the norms on citizenship education in member states, the Charter on EDC/HRE is undoubtedly a widely accepted reference point, as confirmed in 2017: ‘Although the charter is a non-binding legal instrument, it 386 CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 7. See also CoE Proceedings of the Conference on 'Human Rights and Democracy in Action - Looking Ahead: The Impact of the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education' (Strasbourg, 29-30 November 2012), 12. 387 CoE, Government Replies to the Questionnaire, in 2016 Report on the State of citizenship and Human Rights Education in Europe. 388 See Demir (n 328), para 85–86, see also paras 77–78. 389 Pinto de Albuquerque (n 401), para 20: ‘As a matter of constitutional principle guiding the Council of Europe, consensus is decoupled from unanimity’, see e.g. ‘great majority’of member states in Tyrer or Marckx. See also Discussion article ‘The role of consensus in the system of the European Convention on Human Rights’, in CoE, Dialogue between Judges, European Court of Human Rights (2008), concluding that consensus in the Convention sense is not unanimity, but ‘more an expression of the common ground required for the collective approach underlying the Convention system and the interaction between the European and domestic systems.’. 390 A reservation of Poland has been noted in text to n 260. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 126 provides a unique common European framework of reference and is a focus and catalyst for action in the member states’.391 Nuancing the ‘killer phrase’ In the light of the previous considerations, the phrase ‘Your work is incredibly important, but education is subject to national policies’, which is perceived as a ‘killer phrase’ in European citizenship education networks,392 requires nuancing. Situating the phrase in the wider legal context largely reduces its killer potential.393 It is correct that education is subject to national policies (see, for instance, the paragraph-4 principle of the Charter on EDC/HRE, as well as Article 165(1) TFEU). However, this does not imply that member states have unlimited freedom in framing their national education policies and can educate their citizens as they wish. Common objectives like EDC and HRE are widely accepted limitations on member states’ freedom. By adopting recommendations and numerous other legal instruments on EDC as actors in the Council of Europe, the member states have to a certain extent limited their wide discretion to regulate education. Even if EDC standards include due respect for state constitutional structures and national priorities and needs (the paragraph-4 principle), leaving a corresponding margin of discretion, member states have nevertheless accepted the principle that they should include EDC, as understood in the Charter, in the curricula for formal education at all school levels, that they should review and update EDC to ensure its relevance, and that they should provide adequate EDC for all (paragraphs 5 and 6). Not providing for EDC and HRE would be tantamount to disavowing the weighty European standard they themselves have established as actors in the Council of Europe legal order. Member states enjoy broad autonomy as to how they implement EDC standards in their country; yet, that they should provide for EDC and HRE is a matter of established consensus. Choosing not to provide for EDC is no longer an option. The margin of appreciation enjoyed by member states based on paragraph 4 of the Charter cannot be interpreted as giving them arbitrary powers to organise education curricula as they like.394 It is the duty of national authorities in a 48 391 CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 4. 392 Text to n 83. 393 Further nuances in Part three and four (obligations flowing from EU law and international agreements). 394 Supra text to n 208. See also Fretté v France no 36515/97 (ECtHR 26 February 2002), para 41. B Limitation of member states’ margin of appreciation 127 democratic society to consider, within the limits of their jurisdiction, the interests of society as a whole.395 The elementary EDC standards set out in the Charter on EDC/HRE reflect the interests of society as a whole and thus limit the margin of member state appreciation. As appears from the explanatory memorandum, the intention of the authors of the Charter on EDC/HRE was to respect national differences. The authors acknowledge that education is an area where member states’ systems differ widely, and that those differences—constitutional or organisational—must always be respected: ‘[a]ccordingly, all the policies and practices set out in the Charter are to be applied by individual states with due respect to those constitutional and structural systems’396, no less, and no more. The authors’ intention was not to allow member states to silently opt out of the European consensus on EDC. Even with regard to education, a field traditionally associated with national sovereignty, limits must be respected. Interdependence in Europe and the world is too great for just any type of national education to be acceptable. As an extreme example, national policy cannot be permitted to promote the style of education favoured by the Nazi regime in Germany. When formulating national policies, member states have to respect the ECHR, interpreted by taking the weighty EDC standards into account. They also have to respect the obligations flowing from international agreements at UN level and flowing from the EU Treaties and the Charter of Fundamental Rights, as will be examined further. In addition, they have to honour, in good faith, the commitments they have made based on norms which are not always hard law, but nevertheless have a certain normative intensity.397 In order to understand this normative intensity, the strengths and weaknesses of the Charter on EDC/HRE will now be analysed. Strengths and weaknesses of the Recommendation on the Charter on EDC/HRE Worthy but weak? Given the challenges in the field of citizenship education, the purpose of Part one is to examine the Charter on EDC/HRE as the first anchor point. In order to deepen the analysis, I will now evaluate the Recommendation C 49 395 Ibid, para 41. 396 Explanatory memorandum para 29. 397 Continuum, see text to n 402. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 128 on the Charter on EDC/HRE as a legal instrument on the basis of criteria put forward by a number of legal scholars. If one applies the criterion of enforceability in court, the Charter on EDC/HRE is of course weak. That, admittedly, is in keeping with the image of the Council of Europe as a ‘worthy’ but ‘weak’ organisation, as analysed by Sasse: a valuable creator of norms but lacking the means for enforcement. In its dual capacity as a developer and enforcer of norms, the Council of Europe succeeds in the first, but has wobbly credibility with regard to the second.398 According to Lenaerts and Van Nuffel, the Council of Europe ‘has not evolved any further than a forum of discussion, providing interesting ideas for European cooperation, but not affording any genuine prospects of realising them’.399 So is the Charter on EDC/HRE nothing more than an interesting idea? Factors strengthening recommendations Schermers and Blokker recall that it is not only the existence of a legal obligation and the possibility of sanctions which justifies observance of a rule. In international law, sanctions often prove to be illusory. These authors mention eight factors which strengthen the recommendations of international organisations: constitutional provisions, structure of the organisation, method of enactment, formal acceptance, need for a rule, application by others, moral or legitimising effect, and restatement.400 To what extent do these factors apply to the Recommendation on the Charter on EDC/HRE? Factors hardening soft law Pinto de Albuquerque, scholar and ECtHR judge, points to a dégradé normatif.401 Without abandoning the formal theory of sources of law (still pre- 50 51 398 Sasse, ‘The Council of Europe as a Norm Entrepreneur: The Political Strengths of a Weak International Institution’ 172 (exploring the tension between ‘weak’ and ‘worthy’). 399 Lenaerts and Van Nuffel, European Union Law 6. Further text to n 533. 400 Schermers and Blokker § 1220–1240. The factor of formal acceptance does not apply and is left aside. 401 Pinto de Albuquerque, Partly dissenting opinion in Muršić v Croatia no 7334/13 (ECtHR 20 Oct 2016). See also Tulkens, Van Drooghenbroeck and Krenc, ‘Le soft law et la Cour européenne des droits de l'homme: questions de légitimité et de méthode’ i.a. 469: (tr) ‘The Tanase ruling is not based on the binary logic of “all” or “nothing”, but on a ternary form, a gradualist logic whereby a norm set out in a source which is intrinsically non-binding may nevertheless have some normative value, and whereby, moreover, that normative value—in the sense of C Strengths and weaknesses of the Recommendation on the Charter on EDC/HRE 129 vailing), the influence of soft law has to be acknowledged: ‘there is no water-tight, binary distinction between hard law and non-law, since European human rights law evolves by means of a rich panoply of sources that do not necessarily share the classic, formal features of hard international law’.402 In the continuum from soft law to hard law, this author lists seven factors which may harden a text: prescriptive language or label; linguistic accuracy and content precision; the existence of travaux préparatoires, being capable of influencing the interpretation and application of Convention guarantees—may vary in intensity. It is not a question of all or nothing, but of more or less, or, to employ the terms of the Tanase ruling itself, of differentiated “weight” within a set of external sources acknowledged to be “worth considering”.’. 402 Pinto de Albuquerque (n 401), para 23, also para 2. There is no unique parameter to distinguish hard law from soft law. For deeper analysis of formal theory of sources of law and scholarly writing accepting or criticising soft law in the human rights field, see i.a. fns 2–4, and 40. The rich panoply includes non-ratified treaties; declarations of international organisations, e.g. UDHR; resolutions and recommendations of international organisations, e.g. of the CoE Committee of Ministers or Parliamentary Assembly; General Comments of international organisations, e.g. of UN treaties bodies; Codes of Conduct and Guidelines of international organisations, e.g. of the WHO, etc. (ibid, fn 43). Further para 24– 26 on the rule of recognition of a democratic international community. See also Tulkens, Van Drooghenbroeck and Krenc, ‘Le soft law et la Cour européenne des droits de l'homme: questions de légitimité et de méthode’: that soft law is used by the ECtHR is clear, yet the question is the methodology for determining under which conditions and to what extent measures in the grey zone between law and non-law can be relied on. On soft law in EU law, see European Parliament Resolution of 4 September 2007 on institutional and legal implications of the use of ‘soft law’ instruments [2008] OJ C187E/75, recitals C and M; L Senden, Soft Law in European Community Law (Hart 2004); Hofmann, Rowe and Türk, Administrative law and policy of the European Union 566–67 (cp: ‘one can distinguish three possible types of effects of a measure (including so-called soft law), direct, indirect and factual’). EU administrative law illustrates how the complexity of institutional practice transcends the dichotomy binding/nonbinding. Unilateral administrative rule-making by the European Commission can take the form of recommendations and opinions, guidelines, rules as a form of regulation by information, interpretative communications, notes, notices, and memoranda, indicators, codes of practice, internal directions, and vademecums. They may have legal effects, depending on conditions specified in case law; see ibid, 544–566, and 566–579 for analysis of the legal character of these rules). The use of soft law as a source is debated in international law. See classic (critical of soft law) and other approaches (open to greater or lesser extents) mentioned in Tulkens, Van Drooghenbroeck and Krenc, ‘Le soft law et la Cour européenne des droits de l'homme: questions de légitimité et de méthode’, 448 ff. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 130 explanatory reports and commentaries; the complexity of the deliberation procedure, including the voting pattern; wide publicity; follow-up mechanisms and an independent third body; and subsequent practice confirming or developing the standards.403 Soft law not only enriches hard law by fulfilling an interpretative function, it can also be seen independently, containing standards in its own right: ‘Where there is no hard law, ... soft law may exercise alone its normative claim, in accordance with the relevant hardening factors that it puts forward’.404 The greater the number of attendant factors, the greater the normative intensity of the text.405 At the end of the spectrum, ‘hardened soft law is an imperative constraint, the flouting of which constitutes an internationally unlawful act’.406 What is the place of the Charter on EDC/HRE in the continuum? In addition to its interpretative function, can the Charter on EDC/HRE stand alone as an independent source of normativity? Testing the anchor point The Charter on EDC/HRE will be tested as an anchor point by looking for the presence of the strengthening or hardening factors suggested as criteria by Schermers and Blokker, and by Pinto de Albuquerque. The criteria have been regrouped to draw attention to the strengths and weaknesses of the Charter on EDC/HRE as a legal instrument. This appraisal will deepen the understanding of this instrument in the Council of Europe legal order and provide additional arguments for considering the Recommendation on the Charter on EDC/HRE to be a European standard of ‘great weight’ or ‘considerable importance’. At the same time, some of its weaknesses are acknowledged. 52 403 Pinto de Albuquerque (n 401), para 28 (the hardening factors relate either to the rule-making procedure or to the rule-application procedure). See also Tulkens, Van Drooghenbroeck and Krenc, ‘Le soft law et la Cour européenne des droits de l'homme: questions de légitimité et de méthode’: as parameters to distinguish which soft law to use and to what extent, Tulkens analyses ‘legitimité’ (consensus among the CoE member states) and ‘effectivité’ (accepted and practiced by member states). 404 Pinto de Albuquerque (ibid), para 33. 405 Para 24. 406 Para 27. C Strengths and weaknesses of the Recommendation on the Charter on EDC/HRE 131 Strengths Accordance with constitutional provisions The first strengthening factor advanced by Schermers and Blokker relates to the constitutional provisions which underlie the powers of the body adopting the recommendation.407 In this case, the Recommendation on the Charter on EDC/HRE fully conforms to the Statute of the Council of Europe. From a substantive point of view, the Recommendation directly relates to the core mission of the Council of Europe defined in Article 1 and the preamble.408 From a formal point of view, the Recommendation is a legal act in the sense that it was issued by a competent body acting in accordance with its mandate and with respect for the procedural requirements of the Statute,409 and thus correctly based on the internal rule of recognition.410 Bartsch and Jung highlight that recommendations of the Committee of Ministers are ‘Council of Europe law’, by contrast with European conventions. The latter are drafted within the ambit of the Council of Europe, but legally, they are international agreements signed by the member states as parties, not by the Council of Europe, and they have to be ratified to have a binding effect.411 Recommendations of the Committee of Ministers, on the other hand, are decisions addressed to the governments of the member states which come into existence through the mere expression of the collective will of the Committee of Ministers and are adopted according to 1. 53 407 Schermers and Blokker § 1221–1222. 408 Text to n 163 ff (Form and Substance). 409 Arts 14–21 Statute; CoE, Rules of Procedure of the Committee of Ministers (5th revised edn 2005); CoE Committee of Ministers, Rules of Procedure for the meetings of the Ministers’ Deputies (4th revised edn 2005). See also CoE iGuide, Committee of Ministers: Procedures and working methods (24 September 2018). 410 M Desomer, Reform of the Legal Instruments of the European Union (Proefschrift, KUL 2008) 124. 411 Bartsch, ‘The Acceptance of Recommendations and Conventions within the Council of Europe’ 92–96. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 132 predefined procedures.412 Both are essential for determining the legal quality of Council of Europe recommendations.413 In this sense, the Charter on EDC/HRE thus has legal status in the Council of Europe normative system. Unfortunately, the legal status of non-binding standards of the Council of Europe gets lost in some Council of Europe documents which reflect the traditional concept of law, whereby the legal quality of a norm is essentially determined by its binding force. These documents categorise standards of the Council of Europe in terms of ‘legal standards’ (binding), and other standards (non-binding),414 which may suggest to readers that they are of minor importance. If ‘legal’ is narrowly construed as only including what is binding and justiciable in court, the EDC Charter on EDC/HRE is certainly not a legal instrument. Yet, other Council of Europe documents consider both recommendations and conventions as ‘legal standards’ and cite the Charter on EDC/HRE among them.415 The equation ‘legal—binding’ has also been 412 In the present Council of Europe structure, work on EDC falls in the mandate of the Directorate General of Democracy (DGII) ‘[t]o strengthen the democratic competencies of the citizens and their willingness to engage themselves in the democratic process’). Within this DGII, the ‘Directorate of Democratic Citizenship and Participation’ is composed of an Education Department and a Youth Department. The Education Department is concerned with the work of the Standing Conference of Ministers of Education, and includes a Steering Committee for Educational Policy and Practice (CDPPE). Art 17 Statute allows the CM to set up steering committees. See for practices and procedures, also Cornu, ‘The impact of Council of Europe Standards on the European Union’. 413 Bartsch, ‘The Acceptance of Recommendations and Conventions within the Council of Europe’ 92. In the same sense: H Jung, ‘Die Empfehlungen des Ministerskomitees des Europarates: zugleich ein Beitrag zur europäischen Rechtsquellenlehre’ in JR Bröhmer and GR Gerhard (eds), Internationale Gemeinschaft und Menschenrechte: Festschrift für Georg Ress (Carl Heymanns Verlag 2005) 522, and Cornu, ‘The impact of Council of Europe Standards on the European Union’ 116. 414 In various documents or webpages, e.g. CoE Secretary General, State of Democracy, Human Rights and the Rule of Law in Europe. Report 2014, 9, or (legal standards only include conventions). The Venice Commission categorises standards in hard law and soft law, see CoE European Commission for Democracy through Law (Venice Commission), Rule of law checklist (11-12 March 2016), p 34. 415 E.g. CoE, Council of Europe Strategy for the Rights of the Child (2012-2015): Implementation report, 6 and 8. C Strengths and weaknesses of the Recommendation on the Charter on EDC/HRE 133 abandoned by a number of scholars.416 Variations in the legal effects of instruments (as seen in ECtHR case law above) transcend the black and white distinction between legal and binding versus non-legal and nonbinding. Normative realities and governance in a globalised world are more complex than this binary categorisation suggests. In this context, there is no longer any justification for dismissing recommendations of the Council of Europe as insignificant because they are non-binding.417 By the way, the MOU—in which the EU recognises the Council of Europe as a standard-setting authority—refers to ‘standards’ in general.418 It must be observed that in the EU legal order as well, recommendations are listed among the ‘legal acts of the Union’ (Article 288 TFEU). They are published in the L-series of the Official Journal and are included in the Directory of European Union legislation (EUR-Lex).419 Von Bogdandy, Arndt and Bast state that ‘[a] non-binding operating mode cannot be equated with legal irrelevance’.420 Indeed, ‘non-binding instruments are an integral part of the legal order’.421 Thus, Council of Europe recommendations are an integral part of the Council of Europe legal order. In a community based on the rule of law, they are of relevance. 416 Leaving Kelsen’s equation Recht-Zwang. Also Jung, ‘Die Empfehlungen des Ministerskomitees des Europarates: zugleich ein Beitrag zur europäischen Rechtsquellenlehre’ 522–23 (‘Kleine variation über das Thema “Geltung”, “Authorität” und “Wirkung”’). This is not the place for an examination of legal theory. Further: A von Bogdandy, F Arndt and J Bast, ‘Legal instruments in European Union law and their reform: A systematic approach on an empirical basis’ (2004) 21 Yearbook of European Law 91, 111; Delmas-Marty, Ordering Pluralism. A Conceptual Framework for Understanding the Transnational Legal World 162–165 (on ‘orderly cloud’ models, i.a. pyramidal models with guaranteed consistency). 417 Jung, ‘Die Empfehlungen des Ministerskomitees des Europarates: zugleich ein Beitrag zur europäischen Rechtsquellenlehre’ 519, 523. 418 Paras 2, 16, 23, 25; exception in para 24 (standards in conventions, in the context of legal cooperation for their coherence). 419 C-series of Official Journal refers to information and notices. See overview ‘Types of documents in EUR-Lex’ (website): Sector 3 ‘Legislation’ includes recommendations, opinions, resolutions, declarations, etc. 420 von Bogdandy, Arndt and Bast, ‘Legal instruments in European Union law and their reform: A systematic approach on an empirical basis’, 93: adopting a nominalist approach, all acts present in the L-series ‘can be considered as a legal act and any adopting institution as a law-making institution’; see also 111. 421 Ibid, 112. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 134 Structure of the organisation A second factor strengthening recommendations relates to the structure of the organisation.422 The adoption of the Recommendation on the Charter on EDC/HRE was not an isolated action by the Committee of Ministers. As is obvious from the normative context in Chapter one, several bodies within the institutional structure of the Council of Europe have been, and still are, actively engaged in the EDC project and in its implications in specific fields. Method of enactment The voting pattern leading to the adoption of recommendations increases their persuasive force and influences subsequent implementation. States which have supported a particular recommendation will be more inclined to give effect to it.423 What was the voting pattern for the Recommendation on the Charter on EDC/HRE? Recommendations of the Committee of Ministers to governments of member states (Article 15(b) Statute) belong to the category of ‘important matters’ and fall under the rule of unanimity (Article 20(a)(i) Statute).424 However, as an effect of the enlargement of the Council of Europe, the Ministers’ Deputies decided in 1994 on the basis of a gentleman’s agreement that no delegation would block the adoption of recommendations and accepted that the two-thirds majority rule would suffice.425 In return, Ministers Deputies may issue reservations about the recommendations, approving the adoption of the text but reserving the right of their government to comply or not (Article 10(2)(c) Rules 54 55 422 Schermers and Blokker § 1223. 423 Ibid, § 1224–1230; also Pinto de Albuquerque (n 401), para 28. 424 They ‘require the unanimous vote of the representatives casting a vote, and of a majority of the representatives entitled to sit on the Committee’ (‘Sont prises à l'unanimité des voix exprimées et à la majorité des représentants ayant le droit de siéger au Comité des Ministres les résolutions du Comité relatives aux questions importantes mentionnées ci après: i. les recommandations relevant de l'article 15.b’). 425 CoE Ministers' Deputies, Effects of enlargement of the Council of Europe, Report (4 November 1994) CM/Del/Dec(94)519bis/2.2 (1994); CoE Committee of Ministers Declaration on compliance with commitments accepted by member states of the Council of Europe (10 November 1994); CoE Committee of Ministers, Procedure for implementing the Declaration of 10 November 1994 on compliance with commitments accepted by member states of the Council of Europe (20 April 1995). Earlier CoE Committee of Ministers Statutory Resolution (93)27 on majorities required for decisions of the Committee of Ministers (14 May 1993). C Strengths and weaknesses of the Recommendation on the Charter on EDC/HRE 135 of Procedure for the meetings of the Ministers’ Deputies).426 A quorum of two thirds of the representatives of the members is required.427 In practice, the recommendations of the Committee of Ministers are adopted by consensus and ‘usually cover all or nearly all member [s]tates’.428 The Committee of Ministers takes care that all agree on the adoption of the recommendations and does not vote.429 Thus, the adoption of recommendations constitutes ‘a joint expression of European governmental opinion on a given subject, which obviously lends them considerable weight, even though they do not have the binding force of conventions.’430 Admittedly, the opinion expressed is that of the government, without direct parliamentary support for the recommendations in the member states. This will be discussed in the next section. Jung argues that the possibility of issuing reservations enhances the binding effect of Council of Europe recommendations.431 Bartsch points out that by recording reservations in cases where they cannot fully apply a recommendation, member States implicitly recognize the quasi-legal authority of the instrument; they treat recommendations, although they are legally not bound by them, as if they contained treaty obligations; for strictly speaking, a reservation has no place in the acceptance of a non-binding instrument.432 426 CoE Committee of Ministers, Rules of Procedure for the meetings of the Ministers’ Deputies (4th revised edn 2005). 427 Art 11 CoE, Rules of Procedure of the Committee of Ministers (5th revised edn 2005); Art 7 CoE Committee of Ministers, Rules of Procedure for the meetings of the Ministers’ Deputies (4th revised edn 2005). 428 De Vel and Markert (n 168), 346. 429 Benoît-Rohmer and Klebes, Council of Europe Law - Towards a pan-European legal area 62–63. 430 De Vel, The Committee of Ministers of the Council of Europe 37. 431 Jung, ‘Die Empfehlungen des Ministerskomitees des Europarates: zugleich ein Beitrag zur europäischen Rechtsquellenlehre’ 524: ‘ein Zugewinn an Bindungswirkung’, agreeing with Bartsch. Jung gives another example on p 525, illustrating that member states feel as if recommendations are binding and therefore want to use the possibility of making reservations. 432 Bartsch, ‘The Acceptance of Recommendations and Conventions within the Council of Europe’ 94. See also Schermers and Blokker § 1225 (‘By making an official declaration that it does not wish to be affected by a recommendation, a state places itself outside the scope of the recommendation. It thus considers the recommendation as a res inter alios acta, as an act between other parties, which is of no concern to it.’). CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 136 At the adoption of the Recommendation on the Charter on EDC/HRE no reservations were expressed.433 It follows that all EU Member State governments agreed.434 As a matter of fact, Mrs. Androulla Vassiliou, the EU Commissioner responsible for Education, Culture, Multilingualism and Youth, wrote that ‘[i]n 2010, all the Member States of the European Union adopted the Council of Europe's Charter on Education for Democratic Citizenship and Human Rights Education’.435 Complexity of the deliberation procedure The complexity of the deliberation procedure is a factor which hardens soft law. It helps to guarantee wide acceptance of the norms, which in turn tends to legitimise the normative claims of the text.436 Admittedly, recommendations of the Council of Europe can be criticised for lacking democratic legitimacy as they have not been approved by parliament or by the citizens of the member states (referendum), unlike conventions, which need to be ratified in order to be binding for any participating state.437 Recommendations are decisions of the Committee of 56 433 No mention of reservations of Ministers’ Deputies under Article 10(2)(c) of the Rules of Procedure (compare for instance reservations of Ireland in CoE Recommendation R(99)4 of the Committee of Ministers to member states on principles concerning the legal protection of incapable adults (23 February 1999)). Pro memorie, the reservation found for Poland concerned a resolution of the Standing Conference of European Ministers of Education (n 260). In the draft annotated agenda (Ministers’ Deputies CM(2010)OJ1-final) for the 120th Session of the Committee of Ministers on 11 May 2010, in view of the important role of education for the promotion of knowledge on the ECHR and the fundamental rights enshrined therein, the Ministers were invited to adopt Recommendation CM/Rec(2010)7 ‘without debate’ (item 2, para 5). However, ‘Ministers will be able to speak on items on the agenda during the formal and the informal sessions. It is recalled that national position papers containing detailed statements may be distributed’ (ibid, ‘General comment’). All EU Member States were present, see text to n 264 (Genesis). The Charter was also adopted as a follow-up to CoE Committee of Ministers, Declaration and Action Plan, High Level Conference on the Future of the European Court of Human Rights (Interlaken, 19 February 2010), adopted unanimously. 434 See also CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 23 : unanimous adoption. 435 Commission/EACEA/Eurydice, Citizenship Education in Europe (2012) 3, Foreword. 436 Pinto de Albuquerque (n 401), para 28. 437 Sasse, ‘The Council of Europe as a Norm Entrepreneur: The Political Strengths of a Weak International Institution’ 180, its ‘institutional structure insulates the Council of Europe from direct public or democratic scrutiny’. C Strengths and weaknesses of the Recommendation on the Charter on EDC/HRE 137 Ministers, thus adopted by ministers of member state governments and by their deputies, and are not directly based on a democratic parliamentary decision-making process. By way of comparison, recommendations in the EU legal order generally have greater democratic legitimacy, especially when adopted by ordinary legislative procedure, involving not only the Council (governments) but also the European Parliament and national parliaments (Title II TEU, Art 289 TFEU, Protocols Nos 1 and 2 annexed to the Treaties). However, in particular with regard to the Recommendation on the Charter on EDC/HRE, there are several factors which increase its democratic legitimacy. As its genesis shows, this Recommendation was drafted on the basis of input from many state and non-state actors. The ministers conducting the EDC processes (Ministers of Foreign Affairs, of Education, etc.) are accountable vis-à-vis democratically elected national parliaments. The Parliamentary Assembly of the Council of Europe has at several stages recommended action on EDC and proposed guidelines, although only in consultative role (Article 22 Statute). Grassroots actors and stakeholders, NGOs, and numerous experts were involved in the drafting of the EDC standards during the three phases leading to the adoption of the Charter.438 Governments continue to work with other stakeholders to implement the Charter on EDC/HRE and strong support comes from NGOs (88 per cent) and youth organisations (78 per cent).439 Compared to some European Commission recommendations or administrative rules in the EU legal order, the Recommendation on the Charter on EDC/HRE in the Council of Europe legal order withstands the test of normativity very well: it reflects a wide European consensus, is supported by wide-reaching consultation of stakeholders, and is based on a specific adoption procedure. Certain norms of the European Commission, which do have legal effects, are criticised for lacking a wide platform of support and for not being the result of standardised procedures.440 438 Text to n 261. Pinto de Albuquerque (n 401), para 25: ‘The involvement of States and grass-roots non-State actors in the exercise of law-making powers ... reinforces the democratic nature of the process and the responsiveness of the international public policy-making system towards the European people’. 439 CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 70. 440 See Hofmann, Rowe and Türk, Administrative law and policy of the European Union 544–45. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 138 The Charter on EDC/HRE satisfies the Schermers and Blokker criterion of reflecting ‘the generally held view on a given matter’441, as shown by the normative context of the Charter on EDC/HRE. Widespread acceptance A particular strength of the Charter on EDC/HRE is its connection with the international right to education (third anchor point of the study) and its embeddedness in UN standards. This is clear from the preambular paragraphs to the Recommendation on the Charter on EDC/HRE.442 The Charter on EDC/HRE is a regional instrument, congruent with UN action on education for democracy and human rights education, and in line with the compulsory educational aims in the ICESCR and CRC.443 It is part of a contemporary interpretation of the international right to education, as will appear in Part four.444 Starting from the right to education recognised in the UDHR and the post-World War rationale on non-totalitarian education, an international consensus developed on the importance of education for democracy and human rights.445 The UN General Assembly adopted various resolutions on this.446 Within the Council of Europe legal order, the ECtHR has held that UN General Assembly resolutions, although not legally binding, may provide an indication of the existence of an international consensus.447 Education for democratic citizenship and human rights education, however they may be termed in national school curricula, have become universally accepted normative realities, goals to be 57 441 Schermers and Blokker § 1226–1230. 442 Fourth, fifth and eleventh preambular paragraphs; explanatory memorandum para 8. 443 Text to nn 81- 82. Convention Against Discrimination in Education (adopted 14 December 1960, entered into force 22 May 1962) (CADE); International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966 A/RES/2200 (XXI), entered into force 3 January 1976) 993 UNTS3; Convention on the Rights of the Child (adopted 20 November 1989 UNGA Res 44/25, entered into force 2 September 1990) 15777 UNTS 3. See Case C-540/03 Parliament v Council ECLI:EU:C:2006:429, para 37 (the CRC and ICESCR bind each of the Member States). 444 §§ 291 292 294 . 445 Also text to n 170; explanatory memorandum para 31. Further Part four, § 285 ff. 446 § 294 nn 2203-2204. 447 V v UK no 24888/94 (ECtHR 16 December 1999), para 73. C Strengths and weaknesses of the Recommendation on the Charter on EDC/HRE 139 pursued, yet not always reached.448 That the European consensus on EDC and HRE matches an international consensus is illustrated by the links between the Council of Europe and other international actors, and this, in turn, is one of the strengths of the Council of Europe as a normentrepreneur.449 The EDC norms were adopted principally in partnership with the UN, the EU and the Organisation for Security and Co-operation in Europe (OSCE).450 The Charter review processes are part of the contribution of the Council of Europe to the UN World Programme for Human Rights Education and the 2030 Education Agenda.451 Council of Europe action on EDC is internationally recognised and supported. The 2016 World Forum on Democracy recommended Council of Europe member states to ensure full implementation of the Charter on EDC/HRE.452 448 Charter on EDC/HRE, para 5(j); S Bergan, T Gallagher and I Harkavy (eds), Higher education for democratic innovation (CoE Higher Education Series No 21, 2016). Comparable elements in concept of US Department of Education, Office of the Under Secretary and Office of Postsecondary Education, Advancing Civic Learning and Engagement in Democracy: A Road Map and Call to Action, Washington DC, 2012, 1: ‘By “civic learning and democratic engagement” we mean educational experiences that intentionally prepare students for informed, engaged participation in civic and democratic life by providing opportunities to develop civic knowledge, skills, and dispositions through learning and practice. These include civics and government as subjects unto themselves but also service-learning and other approaches for integrating a civic and democratic dimension into other disciplines, such as science, technology, engineering, and math’. Compared to the European concept of EDC, in the US there is more emphasis on ‘civic engagement’, see Hartley and Huddleston, School-communityuniversity partnerships for a sustainable democracy: Education for Democratic Citizenship in Europe and the United States of America. See also D Feith (ed) Teaching America: the Case for Civic Education (Rowman & Littlefield Education 2011). 449 Sasse, ‘The Council of Europe as a Norm Entrepreneur: The Political Strengths of a Weak International Institution’ 196. 450 Paras 5(j) and 16 Charter on EDC/HRE, para 56 explanatory memorandum; yearly Memoranda CoE-UN activities. 451 CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 6 (Target 4.7 in Education Agenda). 452 World Forum for Democracy 2016, Democracy & equality: does education matter? (Strasbourg, 7-9 November 2016), 5; Human Rights Education in the School Systems of Europe, Central Asia and North America: A Compendium of Good Practice (CoE, OSCE/ODIHR, UNESCO, OHCHR, 2009): worldwide exemplary practices of human rights education, education for democratic citizenship and education for mutual respect and understanding, i.a. reference to longstanding tradition of CoE work on EDC. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 140 Need for a rule Schermers and Blokker point to the need for a rule as a powerful factor strengthening recommendations of international organisations. A nonbinding yet genuinely necessary rule is stronger than a binding rule which is considered obsolete. What is determining is the opinion of the participating governments as to the need.453 The need for a rule on EDC follows from the core values and aims of the Council of Europe expressed in the Statute (Article 1 and preamble). In the MOU, EDC is part of the shared priorities and focal areas for cooperation. Several Heads of State and Government have underlined the urgent need for common action on EDC to ensure democratic security, first because of the political changes in Europe since 1989 and, more recently, because of the challenges of terrorism and the refugee crisis. In their individual answers to the 2016 questionnaire on the implementation of the Charter on EDC/HRE, a large number of member states said they agreed ‘to a great extent’ that citizenship and human rights education are a means of addressing violent extremism and radicalisation leading to terrorism, the integration of migrants and refugees, and the deficit in the democratic participation of both vulnerable and non-vulnerable groups in society with the overall aim of building cohesive and equitable societies.454 The usefulness of international cooperation and of EDC norms at Council of Europe level appears from surveys.455 Many member states consider the review process of the Charter on EDC/HRE to be a support, e.g. as encouragement and motivation for more action and better quality, as an opportunity to promote good practice, a support tool for dialogue, and as a means of access to expertise from other countries and international institutions.456 Council of Europe action on EDC is expected 58 453 Schermers and Blokker § 1233–1235, example: food standards of the Codex Alimentarius Commission. Pinto de Albuquerque (n 401), para 33: hard law should not be softened, only upgrading of soft law is possible (thus, the lack of a need cannot serve to downgrade hard law). 454 CoE, Government Replies to the Questionnaire, in 2016 Report on the State of citizenship and Human Rights Education in Europe, Q1, less importance to address the consequences of the economic crisis, austerity measures, or social exclusion. 455 CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 22. 456 CoE, Government Replies to the Questionnaire, in 2016 Report on the State of citizenship and Human Rights Education in Europe, Q 24, many high ratings on various components. See also Foreword of Thorbjørn Jagland, Secretary General of the Council of Europe, to CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe: ‘edu- C Strengths and weaknesses of the Recommendation on the Charter on EDC/HRE 141 to provide a shared reference framework and common standards, and member states are satisfied that this is the case.457 A lesser expectation was authoritative encouragement to ensure compliance with commitments. Governments consistently marked a review of the Charter on EDC/HRE as being of high importance for formal education and more than two thirds of civil society organisations considered the Charter on EDC/HRE as useful or very useful (in non-formal educational activities).458 Furthermore, the Charter on EDC/HRE is valued as the only international legal document which responds to the need to define education for democratic citizenship and human rights education in conjunction with one another.459 The fact that the 2010 Charter does not provide the last word on EDC/HRE is not a weakness. The need to respond to new challenges and to incorporate new ideas on effective implementation is inherent in the dynamic nature of citizenship education, a field ‘constantly questioned, tested, reviewed and updated’,460 and is good for the health of a genuine democracy. In the meantime, the Charter remains a strong reference point. Legitimising effect In certain areas, norm-setting can be so complicated that member states prefer to use the standards of an international organisation rather than trying to formulate norms themselves and risking opposition from various parties. Recommendations of an international organisation increasingly tend to legitimise national action.461 This is true of citizenship education, 59 cation is increasingly recognised as a tool for tackling radicalisation leading to terrorism, for successfully integrating migrants and refugees and for tackling disenchantment with democracy and the rise of populism’. 457 CoE, Government Replies to the Questionnaire, in 2016 Report on the State of citizenship and Human Rights Education in Europe, Q25: of 40 respondents, 30 marked 4 or 5 on a scale 1–5 (1 not useful, 5 very useful). Overview in CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 75. 458 CoE, Government Replies to the Questionnaire, in 2016 Report on the State of citizenship and Human Rights Education in Europe, Q27; CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 23, 87, 94. 459 CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 25. 460 See perspectives in World Forum for Democracy 2016, Democracy & equality: does education matter? (Strasbourg, 7-9 November 2016); CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 80. 461 Schermers and Blokker § 1236, 1238–39. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 142 which can be quite a sensitive matter in certain domestic contexts. When confronted with critics or inertia in the education sector, some states will base their arguments in favour of changes in the curriculum on Council of Europe EDC recommendations. This happened in Spain, where domestic opposition was countered by referring to the implementation of the 2002 Council of Europe recommendation on EDC, the precursor of the 2010 Recommendation on the Charter on EDC/HRE.462 In answer to the question about what would be needed to raise the priority of EDC and HRE, 82 per cent of the respondent governments in the 2016 survey identified ‘some political pressure from regional and international institutions’.463 Many civil society organisations use the Charter on EDC/HRE as an advocacy and lobbying tool vis-à-vis national and local authorities.464 Prescriptive language or label Pinto de Albuquerque mentions ‘the prescriptive language adopted in a text or the label attached to the instrument’ as a factor hardening soft law. Admittedly, the provisions of the Recommendation on the Charter on EDC/HRE are framed in ‘should’ terms.465 However, some provisions take a more affirmative tone (paragraph 4 ‘are to be applied’; paragraph 5(c) ‘have a part to play in’). In particular, the label ‘Charter’ indicates the high degree of normativity which the actors wished to attach to the text, differentiating it from the usual Council of Europe recommendations. The many preambular paragraphs (recalling the core mission of the Council of Europe, firmly convinced, having regard to, etc.) are reminiscent of a convention and reinforce the formal setting of norms in the Charter on EDC/HRE.466 60 462 CR Motos, ‘The Controversy over Civic Education in Spain’ (2010) 9 European Political Science 269, 270–71, on claims of the Catholic Church and other conservative actors that moral education was exclusively reserved for families, not for schools and government via EDC. Motos argues for a liberal democracy in which EDC stimulates critical thinking. In a political theory framework, he points to reasons justifying both content of EDC and competence of democratic government. See also n 2073. 463 CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 98 (in addition to an improved awareness of relevance of EDC/HRE for meeting current challenges in society, 87%). 464 Ibid, 87, 94 (41%). 465 Text to n 193. 466 Text to n 162. C Strengths and weaknesses of the Recommendation on the Charter on EDC/HRE 143 Travaux préparatoires, explanatory reports and commentaries The normative intensity of a text is further increased by the existence of travaux préparatoires, explanatory reports and commentaries, and by giving wide publicity to the text.467 These hardening factors all apply to the Recommendation on the Charter on EDC/HRE.468 The Committee of Ministers recommends wide dissemination of the Charter to the authorities responsible for education and youth, and says member states should cooperate in ‘informing all stakeholders, including the public, about the aims and implementation of the Charter’.469 Since the official languages of the Council of Europe are English and French (Article 12 Statute), the European Commission provided a translation into all the languages of the EU Member States of Recommendation Rec(2002)12 on education for democratic citizenship (precursor).470 At present, almost all member states have translated the Charter on EDC/HRE into their languages and most states have published it on the website of their Ministries of Education or other relevant bodies.471 However, the Charter on EDC/HRE only partially satisfies the criterion of wide publicity. It is, for instance, not available in Dutch and not published on the website of the Ministry of Education in the Netherlands.472 Awareness of the Charter on EDC/HRE among young people, educationalists, and even governments, should be raised.473 A key recommendation of the 2017 61 467 Pinto de Albuquerque (n 401), para 28. 468 Explanatory memorandum, and huge number of comments and materials published by the CoE (mentioned after each phase in the normative context, see Genesis). 469 Fifteenth preambular para; Charter para 15(d). 470 Hartley and Huddleston, School-community-university partnerships for a sustainable democracy: Education for Democratic Citizenship in Europe and the United States of America 51 (the EU has more financial means than the Council of Europe). 471 CoE, Government Replies to the Questionnaire, in 2016 Report on the State of citizenship and Human Rights Education in Europe, Q8. CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 51–52, 64: 38 out of 40 made the Charter available in the official national language(s); 83% published it on the website of Ministries of Education or other relevant bodies; only 60% disseminated it by other means; see p 64 about minority languages). 472 See systematic ‘No’ answer on Q8. In Belgium, it does not exist ‘in Flemish’. 473 CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 23 (‘according to the respondents from both governmental and civil society organisations, the charter is not well known in the countries). CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 144 Conference is to promote the Charter more widely among the stakeholders.474 Subsequent practice (positive) This factor must be treated with caution. Schermers and Blokker note that in certain cases, ‘the application by others’ can strengthen recommendations.475 Pinto de Albuquerque states that ‘subsequent practice’ confirming or developing the standards set out in the text, can reinforce the standardsetting function of the text. Of course, this does not mean that, in general, normativity depends on compliance, which would be putting the cart before the horse.476 To the extent that application by others and subsequent practice are strengthening factors, it must be acknowledged that in this respect the findings for the Charter on EDC/HRE are mixed. In 2015, the Secretary General of the Council of Europe stated that only 32 per cent of the member states provide for satisfactory EDC.477 The 2017 Report on the state of citizenship and human rights education in Europe points to both achievements and gaps. It is positive that many member states provide for citizenship education in accordance with the EDC standards. All the member states (40) which replied to the 2016 questionnaire on the implementation of the Charter reported that concrete measures had been taken to promote citizenship and human rights education in accordance with the objectives and principles of the Charter (in 2012, only two thirds of respondents did). Substantial progress has been made and almost all governments foresee further action to promote it.478 One of the main findings is that there is a shared working definition of EDC/HRE in 31 countries (78 per cent of the respondents).479 This is an important strength of the Council of Europe 62 474 Ibid, 7, 25, 52 (also increased visibility in media, and advocacy by prominent personalities are asked for). 475 Schermers and Blokker § 1237. In the same sense Tulkens, Van Drooghenbroeck and Krenc, ‘Le soft law et la Cour européenne des droits de l'homme: questions de légitimité et de méthode’ 483–4: ‘L’instrument de soft law pèsera d’autant plus sur l’interprétation conventionnelle si la norme qu’il véhicule a d’ores et déjà reçu dans le droit interne des Etats membres une certaine effectivité.’. 476 Pinto de Albuquerque (n 401), para 28, fn 55. 477 CoE Secretary General, State of democracy, human rights and the rule of law: A shared responsibility for democratic security in Europe. Report 2015, table p 87. 478 CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 51–52, and conclusions p 77, 80. 479 Ibid, 52 (but only 17% of civil society respondents think the definition is shared). C Strengths and weaknesses of the Recommendation on the Charter on EDC/HRE 145 norm on EDC/HRE, underscoring the legitimacy of using the EDC concept as an anchor point for this study. It is impossible to give a comprehensive overview of the application of the Charter on EDC/HRE by the 47 member states of the Council of Europe, not even of that of the 27 EU Member States. The first difficulty is that the expression ‘education for democratic citizenship’ (EDC) is translated in many different ways and that its content is given many varied forms in the Member States. The diversity of terminology referring to ‘citizenship education’ is striking.480 Citizenship education norms reach into many areas of the curriculum, for instance into history, geography, philosophy, or into topics like human rights, citizenship/civic education, democracy, intercultural education, and many—often optional—courses in social sciences. Most frequently, EDC and HRE are promoted through a crosscurricular approach and are therefore formulated in rather abstract norms.481 Moreover, an overview would involve the examination of not 27 EU Member State educational systems, but in fact many more, as education policy is not centralised in every Member State. Because education is a regional competence in federal states, various regional versions of citizenship education exist (16 Länder in Germany, 3 communities in Belgium, etc.). Several States have also recognised devolved competences for autonomous regions, including for some aspects of education (e.g. Spain). 480 Civic education, social sciences, life skills, state and law, individuals and society, living together, principles of civil society, ... See overview of terminology in Bîrzéa, ‘EDC policies in Europe - a synthesis’, appendix II; CoE, Government Replies to the Questionnaire, in 2016 Report on the State of citizenship and Human Rights Education in Europe. Certain names are historically charged and therefore avoided (e.g. for some, ‘citizenship education’ recalls practice in the USSR). See also Becker, ‘Politische Bildung in Europa’, fns 8 and 11: there are differences even within the same language, e.g. in Austria usually ‘politische Bildung’, in Germany ‘Demokratieerziehung’, with translation of the Charter on EDC/HRE as ‘Charta des Europarats zur Demokratie- und Menschenrechtsbildung’, in Austria as ‘Europarats-Charta zur Politischen Bildung und Menschenrechtsbildung’. But see also in Germany, the Bundeszentrale für politische Bildung. Political education is not necessarily the same as education for democracy (see, i.a., B Widmaier and B Overwien (eds), Was heisst heute Kritische Politische Bildung? (Non-Formale Politische Bildung, Band 2, Wochenschau Verlag 2013)). 481 CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 67 : a crosscurricular approacht (88% of the respondents), obligatory (78%), whole school approach (73%), optional (45%). See Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2017) and Commission/EACEA/Eurydice, Citizenship Education at School in Europe—Annexes: National Information and Websites (2017). CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 146 Further differentiation of citizenship education norms would be necessary to reflect different levels of education (primary or secondary education), different pupil age (grades) and different programmes and educational paths (general, technical, vocational, and numerous options). On top of this, ideological or religious schools may have their own curricula, and school freedom and the autonomy of educational institutions add to the complexity. It is not only the many actors and the autonomy they enjoy which make a comprehensive overview of norms on citizenship education a quite impossible task—it is also a never-ending task because of the frequent changes over time in the educational programmes. The political context plays a part in the formulation of citizenship education aims and changes in government may lead to changing curricula. However, a few snapshots will provide a flavour of EDC in some EU Member States, with all due reservations.482 Reports indicate that subsequent practice confirms the standards set out in the Recommendation on the Charter on EDC/HRE. In several Member States, citizenship education is currently in the process of revision, aligning it with EDC standards.483 The Irish Government reports that the revised Civic Social and Political Education ‘incorporates all of the concepts expressed at [Council of Europe] level’, an obligatory 482 For legislation supporting and promoting EDC/HRE mentioned by parliaments of five Member States (BE, EE, ES, FI, LT), see appendix II of CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 82. See also Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2017), Annex 3. 483 Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2017), 10. See i.a. Three Country Audit of the lower secondary citizenship and human rights education curriculum: Reflection of the principles of the Charter on Education for Democratic Citizenship and Human Rights Education in the curricula of France, Finland and Ireland (2013). Also CoE, Government Replies to the Questionnaire, in 2016 Report on the State of citizenship and Human Rights Education in Europe, i.a. in IE (revisions to Civic Social and Political Education, which ‘incorporates all of the concepts expressed at CoE level’), NL (‘in 2015, the Dutch government launched an initiative to develop a new national curriculum for primary and secondary education, with EDC/HRE as one of the priorities’); HU (revisions mainly occur in lower secondary education); BE (n 485). See also Commission/EACEA/Eurydice, Promoting citizenship and the common values of freedom, tolerance and non-discrimination through education: Overview of education policy developments in Europe following the Paris Declaration of 17 March 2015 (2016), references to national measures. C Strengths and weaknesses of the Recommendation on the Charter on EDC/HRE 147 subject at lower secondary level.484 In Belgium, the Flemish Community hosted pilot projects for the Council of Europe RFCDC, in preparation for revision of the learning outcomes in the curricula (‘eindtermen’).485 In various Member States, including Bulgaria, new curricula have been designed for more consistency with EDC standards.486 The Czech Republic is working, for example, on participation in school governance.487 In Spain, a new Strategic Plan for School Coexistence was drawn up by the Ministry of Education with the collaboration of autonomous communities.488 The Hungarian Ministry of Human Capacities reports that the content of Moral Education is regulated by the National Core Curriculum and the Framework Curricula in line with the Act on Public Education, and that the New Moral and Religious Education subject is in line with EDC/HRE.489 In other Member States, the implementation of the Charter is an incentive to build further on EDC and HRE, a tool to deepen or complement certain aspects of existing citizenship education. Austria has done extensive 484 CoE, Government Replies to the Questionnaire, in 2016 Report on the State of citizenship and Human Rights Education in Europe. 485 Vlaamse Gemeenschap: ; ‘eindtermen’ are under revision: Decreet 26 januari 2018 houdende wijziging van het decreet basisonderwijs van 25 februari 1997 en de Codex Secundair Onderwijs, wat de onderwijsdoelen betreft (opschrift gewijzigd door de commissie: ... tot wijziging van het decreet basisonderwijs van 25 februari 1997 en de Codex Secundair Onderwijs, wat onderwijsdoelen betreft, en tot wijziging van de decreten Rechtspositie onderwijspersoneel) BS 9 maart 2018, 2018030576; Communauté française: Décret relatif à l'organisation d'un cours et d'une éducation à la philosophie et à la citoyenneté (D 22-10-2015, MB 09-12-2015), inserting a number 11° in article 9 of ‘décret du 24 juillet 1997 définissant les missions prioritaires de l'enseignement secondaire et organisant les structures propres à les atteindre’. 486 Reported by BG: ‘The new curricula have been designed so as to target EDC/HRE to a greater extent’. See Law on Pre-School and School Education (2016); and new standard on civic, intercultural and environmental education to enact under the Educational Law (Q5). 487 CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 46 (democratic administration of schools). See for PT, Decree-Law no. 139/2012, July 5, and a Reference Document ‘Citizenship Education Guidelines’. 488 Ibid, 20, devised by the Ministry of Education, Culture and Sport, also with the Observatory for Racism and Xenophobia, the Institute for Women, and other tertiary-sector organisations. 489 See CoE, Government Replies to the Questionnaire, in 2016 Report on the State of citizenship and Human Rights Education in Europe, Q8 and 13. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 148 work in the citizenship education field in accordance with the competence model.490 The Workprogramme of the Federal government mentions the establishment of political education as a compulsory module, in order to prepare Austria for the future.491 In France, ‘éducation à la citoyenneté’ has roots in the French revolution (1789). The deep concern to educate and to form le citoyen according to the new constitution(s), led to the introduction of several education schemes at the end of the 18th century, i.a. by Condorcet and Talleyrand.492 In the 19th century, education helped to turn ‘peasants into Frenchmen’493 and l’amour pour la patrie was (and still is) inculcated in schools.494 Today, consistency with EDC standards can be seen in various legislative acts. Le Code 490 The concept of citizenship education is based on the competence model (Krammer, Kompetenz-Strukturmodell Politische Bildung, Wien, 2008). Lehrpläne in . 491 Work programme of the Austrian Federal Government 2013–2018, 27: Establish Political Education as a compulsory module from the 6th school grade as part of the subject History and Social Studies/Political Education. 492 Condorcet, Cinq mémoires sur l’instruction publique; Talleyrand-Périgord, Rapport sur l'Instruction Publique, fait au nom du Comité de Constitution à l'Assemblée Nationale, les 10, 11 et 19 Septembre 1791. 493 E Weber, Peasants Into Frenchmen: The Modernization of Rural France, 1880–1914 (Stanford UP 1976). 494 About historic aspects of citizenship education in France, see e.g. M Lepelletier, Plan d'Éducation Nationale, présenté à la Convention par Maximilien Robespierre au nom de la Commission d'Instruction publique, le 29 juillet 1793 (1793); F Buisson, Dictionnaire de pédagogie et d'instruction primaire (1911 edn, 1882-1887); G Compayré, Histoire critique des doctrines de l'éducation en France depuis le seizième siècle (4th edn, Hachette 1883); J Vaujany, L'école primaire en France sous la Troisième République: les lois fondamentales, l'école nouvelle, l'évolution de l'école (Perrin 1912); P Nora, ‘Ernest Lavisse: son rôle dans la formation du sentiment national’ (1962) 228 Revue Historique 73; A Prost, Histoire de l'enseignement en France 1800-1967 (2nd edn, Colin 1970); M Gontard, L'oeuvre scolaire de la Troisième République: l'enseignement primaire en France de 1876 à 1914 (2nd edn, CRDP 1976); J-F Chanet, L'école républicaine et les petites patries (Aubier 1996); R Grevet, ‘La réforme des études en France au siècle des Lumières’ (1997) 297 Revue Historique 85; B Baczko, Une éducation pour la démocratie: textes et projets de l'époque révolutionnaire (2nd edn, Droz 2000); R Grevet, L'avènement de l'école contemporaine en France (1789-1835): laïcisation et confessionnalisation de la culture scolaire (Presses universitaires du Septentrion 2001); F Audigier, ‘L’éducation civique dans l’école française’ (2002) 1 Journal of Social Science Education 1; JF Chanet, ‘Instruction publique, éducation nationale et liberté d'enseignement en Europe occidentale au XIXe siècle’ (2005) 41 Paedagogica Historica 9; A Ferrari, ‘The problem of civic cohesion and the role of the state school in France and Italy: historical, religious and secular comparisons’ (2006) 35 Journal of Moral C Strengths and weaknesses of the Recommendation on the Charter on EDC/HRE 149 de l’Education states that ‘[a]u titre de sa mission d'éducation à la citoyenneté, le service public de l'éducation prépare les élèves à vivre en société et à devenir des citoyens responsables et libres, conscients des principes et des règles qui fondent la démocratie’.495 More detailed programmes set out the curriculum to be followed and the objectives to be achieved.496 In Germany, at the prompting of the Allies after World War II, huge efforts were made to counter totalitarian tendencies through re-education. The Bundeszentrale für politische Bildung (Federal Agency for Civic Education) was established to educate German citizens about democratic principles.497 The reunification of East and West Germany was also a spur for citizenship education.498 ‘Democracy calls for political education’ was the Education 533; L Heuschling and J Hummel, ‘Le libéralisme du Vormärz : la figure du « professeur politique »’ (2006) 24 Revue Française d'Histoire des Idées Politiques 227 (article revealing the context of the time, see also n 58). 495 Code de l’éducation, Art L121–4–1 (crée par la Loi d'orientation et de programmation pour la refondation de l'École de la République n 2013–595 du 8 juillet 2013). 496 Décret relatif au Socle commun de connaissances, de compétences et de culture: Bulletin Officiel n°17 du 23-4-2015; Circulaire n° 2016–092 du 20–6–2016 relative au parcours citoyen de l'élève; Circulaire relative aux orientations générales pour les comités d'éducation à la santé et à la citoyenneté; Arrêté fixant le programme d'enseignement moral et civique à l'école élémentaire et au collège (Arrêté du 12–6–2015, Journal officiel du 21–6–2015): Bulletin officiel spécial n° 6 du 25 juin 2015; Arrêté fixant les programmes d'enseignement moral et civique en classes de seconde générale et technologique, de première et terminale des séries générales (Arrêté du 12–6–2015, Journal officiel du 21–6–2015): Bulletin officiel n°6 du 25 juin 2015. See also overview of Féron, ‘Citizenship Education in France’; and Johnson and Morris, ‘Critical citizenship education in England and France: a comparative analysis’. 497 Established as Federal Agency for Homeland Services in 1952. See ; : ‘Considering Germany's experience with various forms of dictatorial rule down through its history, the Federal Republic of Germany bears a unique responsibility for firmly anchoring values such as democracy, pluralism and tolerance in people's minds’. Further § 319 . 498 W Sander, ‘Theorie der politischen Bildung: Geschichte - didaktische Konzeptionen - aktuelle Tendenzen und Probleme’ in W Sander (ed), Handbuch politische Bildung (Reihe Politik und Bildung 32, Bundeszentrale für politische Bildung 2005); S Reinhardt, ‘The Case of (East-) Germany’ (2008) 6 Journal of Social Science Education 67; J Bruen, ‘From Dictatorship to Democracy? The Impact of the Collapse of the German Democratic Republic (GDR) on Political Education in its Schools’ (2014) 10 Journal of Political Science Education 315. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 150 title of the 1997 Münchner Manifest.499 As a consequence, citizenship education in Germany builds on decades of remarkable work, based on various lines of academic research in social sciences.500 German Demokratiebildung provides good examples of citizenship education norms for schools 499 Public statement of the heads of the Bundeszentrale and the Landezentralen für politische Bildung on 26 May 1997. 500 See, e.g., B Sutor, ‘Politische Bildung im Streit um die "intellektuelle Gründung" der Bundesrepublik Deutschland. Die Kontroversen der siebziger und achtziger Jahre’ (2002) 52 Aus Politik und Zeitgeschichte: APuZ 17; P Massing, ‘Die Infrastruktur der politischen Bildung in der Bundesrepublik Deutschland - Fächer, Institutionen, Verbände, Träger’ in W Sander (ed), Handbuch politische Bildung (Bundeszentrale für politische Bildung 2005); Sander, ‘Theorie der politischen Bildung: Geschichte - didaktische Konzeptionen aktuelle Tendenzen und Probleme’, i.a. on ‘Politikdidaktik’; G Weißeno, ‘Standards für die politische Bildung’ (2005) 55 Aus Politik und Zeitgeschichte: APuZ 32; Walkenhorst, ‘Problems of Political Education in a Multi-level Polity: explaining Non-teaching of European Union Issues in German Secondary Schooling’; D Lange and G Himmelmann (eds), Demokratiebewusstsein: Interdisziplinäre Annäherungen an ein zentrales Thema der Politischen Bildung (VS Verlag für Sozialwissenschaften 2007); P Massing, ‘Politische Bildung in der Grundschule: Uberblick, Kritik, Perspektiven’ in D Richter (ed), Politische Bildung von Anfang an: Demokratie-Lernen in der Grundschule (Schriftenreihe Band 570, Bundeszentrale für politische Bildung 2007); D Richter (ed) Politische Bildung von Anfang an. Demokratie-Lernen in der Grundschule (Schriftenreihe Band 570, Bundeszentrale für politische Bildung 2007); D Lange, ‘Citizenship Education in Germany’ in VB Georgi (ed), The Making of Citizens in Europe: New Perspectives on Citizenship Education (Schriftenreihe Band 666, Bundeszentrale für politische Bildung 2008); G Weisseno (ed) Politikkompetenz. Was Unterricht zu leisten hat (Schriftenreihe Band 645, Bundeszentrale für politische Bildung 2008); M-B Vincent, ‘« La Constitution doit devenir un livre populaire »: Enseigner le patriotisme constitutionnel sous la République de Weimar’ (2009) Histoire de l’éducation 71; A Eis, ‘Concepts and Perceptions of Democracy and Governance beyond the Nation State: Qualitative Research in Education for European Citizenship’ (2010) 9 Journal of Social Science Education 35; W Edelstein, ‘Education for Democracy: reasons and strategies’ (2011) 46 European Journal of Education 127; B Lösch and A Thimmel (eds), Kritische politische Bildung: Ein Handbuch (Reihe Politik und Bildung, Band 54, Wochenschau Verlag 2011); B Blessing, T Grammes and H Schluss, ‘Civics Courses in the German Democratic Republic: A Case Study in the History of Curriculum and Educational Research’ (2012) 11 Journal of Social Science Education 85; G Weisseno, ‘Dimensionen der Politikkompetenz’ in G Weiseno and H Buchstein (eds), Politisch Handeln Modelle, Möglichkeite, Kompetenzen (Schriftenreihe Band 1191, Bundeszentrale für politische Bildung 2012); K-P Hufer and D Richter (eds), Politische Bildung als Profession: Verständnisse und Forschungen (Schriftenreihe Band 1355, Bundeszentrale für politische Bildung 2013); Widmaier and Overwien, Was heisst heute Kritische Politische Bildung?; W Sander and P Steinbach C Strengths and weaknesses of the Recommendation on the Charter on EDC/HRE 151 and higher education, best practices, and interaction with civil society (NGOs, networks, youth organisations, foundations501). Because education is in principle a Länder competence,502 there are a variety of EDC/HRE policies in formal education in Germany. Yet, essential guidance is provided by resolutions of the German Standing Conference of the Ministers of Education and Cultural Affairs.503 This Standing Conference recommends that education for democracy should be a central task in primary and secondary schools, and sets out content and objectives. The Education Ministers refer to the Council of Europe project on EDC/HRE, the RFCDC, and recommend the use of Council of Europe materials in schools.504 The Standing Conference furthermore recommends that human rights educa- (eds), Politische Bildung in Deutschland (Schriftenreihe Band 1449, Bundeszentrale für politische Bildung 2014); A Petrik (ed) Formate fachdidaktischer Forschung in der politischen Bildung (Gesellschaft für Politikdidaktik und politische Jugend- und Erwachsenenbildung, Band 14, Schwalbach/Ts 2015). 501 E.g. Society for Civic Education Didactics and Civic Youth and Adult Education (Gesellschaft für Politikdidaktik und politische Jugend- und Erwachsenenbildung), DARE (n 83), NECE (Networking Citizenship Education in Europe), or HREYN (Human Rights Education Youth Network). 502 Grundgesetz für die Bundesrepublik Deutschland Arts 7, 23(6), 72, 74, 91b; see HD Jarass and B Pieroth, Grundgesetz für die Bundesrepublik Deutschland: Kommentar (11th edn, Beck 2011). See also H-U Evers, Die Befugnis des Staates zur Festlegung von Erziehungszielen in der pluralistischen Gesellschaft (Duncker und Humblot 1979); I Hochbaum, ‘The Federal Structure of Member States as a Limit to Common Educational Policy: The Case of Germany’ in B De Witte (ed), European Community Law of Education (Nomos 1989); H-P Füssel, ‘Cooperative Federalism in Education: About the Work of the Conference Education Ministers and the Joint Federal and Länder Commission on Education Planning and Research Promotion’ in J De Groof and others (eds), Power Sharing in Education: Dilemmas and Implications for Schools (Acco 1998). 503 Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2017), p 32, on the unique approach in Germany: ‘Although subject curricula are defined at the level of each Land, several official documents dealing with human rights education, intercultural education, democracy education, media literacy, and historical and political education apply to all Länder and therefore make citizenship education a cross-curricular feature of the whole education system’. See also p 144. 504 Beschluss der Kultusministerkonferenz vom 06.03.2009, Stärkung der Demokratieerziehung (Strengthening of democracy education, KMK Resolution of 06.03.2009): ‘Demokratie ist stets aufs Neue Gefahren ausgesetzt. Dies zeigt die deutsche Geschichte mit zwei Diktaturen im 20. Jahrhundert. (…) Erziehung für die Demokratie ist eine zentrale Aufgabe für Schule und Jugendbildung. Demokratie und demokratisches Handeln können und müssen gelernt werden’ (in der Grundschule und Sekundarstufe, und Augabe aller Fächer). CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 152 tion should be one of the primary aims of education, a common task of all subjects and all teachers, and states that ‘textbooks must take account of the content of this recommendation’.505 The Bundeszentrale für politische Bildung also gives guidance by ‘providing citizenship education and information on political issues to all people in Germany’ in conformity with the German constitution, defining citizenship education in general as ‘educating and encouraging citizens to actively participate in society and in the democratic process’.506 To conclude, the factor ‘application by others’ is relevant and strengthens the Recommendation on the Charter on EDC/HRE to a large extent. Restatements One last strength of the Charter on EDC/HRE is related to the factor ‘restatement’. Schermers and Blokker explain how restatement of a recommendation of an international organisation in later recommendations strengthens the earlier one.507 Pinto de Albuquerque notes that the further development of standards set out in a text hardens them.508 The frequent recalling of the Charter on EDC/HRE in later instruments reinforces its authority.509 One of the essential developments of the Charter on 63 Confirmed in Beschluss der Kultusministerkonferenz vom 06.03.2009 i. d. F. vom 11.10.2018, 'Demokratie als Ziel, Gegenstand und Praxis—historisch-politischer Bildung und Erziehung in der Schule',13, with reference to the CoE RFCDC. 505 ‘Schulbücher müssen dem Inhalt dieser Empfehlung Rechnung tragen. Dasselbe gilt für sonstige Lehr- und Lernmittel’ para 4 in ‘Beschluss der Kultusministerkonferenz vom 04.12.1980 i.d.F. vom 14.12.2000, Empfehlung der Kultusministerkonferenz zur Förderung der Menschenrechtserziehung in der Schule’ (Resolution of the Standing Conference of the Ministers of Education and Cultural Affairs of 4 December 1980 in the version of 14 December 2000, Recommendation of the Standing Conference of the Ministers of Education and Cultural Affairs on the promotion of human rights in schools). Continued importance in Beschluss der Kultusministerkonferenz vom 04.12.1980 i.d.F. vom 11.10.2018, 'Menschenrechtsbildung in der Schule'. 506 : ‘Being an institution entrusted with providing the kind of civic education specified in the German constitution …’ (emphasis added). Further § 319 . 507 Schermers and Blokker § 1240. 508 Pinto de Albuquerque (n 401), para 28. To that extent that the factor ‘subsequent practice’ of Pinto de Albuquerque means that organs of the international organisation confirm or develop the standards set out in the text, the Charter on EDC/HRE satisfies this criterion. 509 See § 36 - 39 . C Strengths and weaknesses of the Recommendation on the Charter on EDC/HRE 153 EDC/HRE is the 2018 Reference Framework on Competences for Democratic Culture (RFCDC). Thus, several factors strengthen the Recommendation on the Charter on EDC/HRE. However, its weaknesses must also be acknowledged. Weaknesses Linguistic accuracy and content precision ‘The more accurate the terminology of a text and the more precise its content, the stronger is the normative claim’, according to Pinto de Albuquerque.510 This factor can probably be nuanced to the extent that some abstract norms have also proven to be powerful sources of law. Several human rights provisions are formulated as rather abstract principles and have little content precision, yet, since they are part of conventions or primary EU law, no one would call their binding, hard law character into question.511 But it is true that the binding character of conventions usually goes hand in hand with the drafting of precise provisions, while the noncompulsory nature of recommendations allows for more generality. On the one hand, it must be recognised that the Charter on EDC/HRE does not include precise provisions comparable to the European prison standards, which are considered by Pinto de Albuquerque as the prototype of hardened soft law. European prison standards can be crystal-clear, for instance, when they list the personal details to be recorded for each prisoner on admission.512 By contrast, some provisions of the Charter on EDC/HRE are quite programmatic, such as paragraph 5, stating which ‘objectives and principles should guide member states in the framing of their policies, legislation and practice’. The description of one of the fundamental goals of EDC and HRE as empowering learners with ‘the readiness to take action in society in the defence and promotion of human 2. 64 510 Second hardening factor, para 28. (Abstraction is here made of the ‘should’ terminology, it concerns another factor). 511 E.g. CFR Art 3(1) or 6(1); or Art 18 TFEU (many precise applications in case law; admittedly, it is easier for negatively formulated abstract rules to be hard law). 512 E.g. CoE Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules (1 January 2006), para 15(1). See Pinto de Albuquerque (n 401), para 2 (‘crystal-clear standards’); paras 34–35, citing cases where the ECtHR itself stated the ‘considerable importance’ or ‘great weight’ of prison standards. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 154 rights, democracy and the rule of law’ (paragraph 5(g)) does not excel as an example of precision. On the other hand, while leaving an important degree of freedom to member states, EDC standards are, at the same time, sufficiently clear and precise to resolutely indicate to the member states the action they are to take. One clear aim is, for instance, to provide ‘every person within their territory’ with the opportunity of EDC and HRE (paragraph 5(a)). The content is sufficiently precise to make it clear that that there can be no exclusion or disregard of certain social groups of (young) citizens, such as Roma, or of some categories of school pupils, such as those taking vocational training classes. The various provisions of the Charter on EDC/HRE form one coherent and meaningful set of norms, frequently expanding the principles with more concrete elements (e.g. paras 9, 11, 12, 13). The Charter unambiguously states that member states should ‘include [EDC and HRE] in the curricula for formal education at pre-primary, primary and secondary school level as well as in general and vocational education and training’ and that member states ‘should review and update’ them ‘in order to ensure their relevance’ (paragraph 6). It must be remembered that one of the strengths of the Charter on EDC/HRE is that its drafters had the courage to put forward a well defined concept of EDC and HRE.513 Admittedly, not all elements of the definition have sufficiently precise content— for instance, the reference to empowering learners ‘to value diversity’. Yet, sometimes open-ended formulations are the price to pay for establishing any standards in the delicate area of citizenship education. They provide space for national traditions and expertise, which can render EDC standards more concrete. From a legal point of view, components of the EDC concept could be criticised as overlapping. Component (c-1) is empowerment ‘to exercise and defend democratic rights and responsibilities in society’. In a democratic society all rights are ‘democratic rights’, in the sense of rights created by democratic institutions and respecting procedures. Strictly speaking, democratic rights (c-1) therefore include the rights relating to valuing diversity (c-2) and participation rights (c-3). However, it seems that the authors of the Charter wanted to provide specific emphasis in a context of interdisciplinary cooperation. I will therefore retain the separate components, as they reflect a specific focus which is useful for the analysis. More- 513 Text to n 174. C Strengths and weaknesses of the Recommendation on the Charter on EDC/HRE 155 over, it is crucial to respect the consensus which the Council of Europe was able to establish in the sensitive field of citizenship education.514 The relationship between EDC and HRE as defined in the Charter may also seem blurred. Rights of democratic citizenship arguably include human rights. This is true in most member states. However, in some self proclaimed ‘democratic states’, human rights are eclipsed by the governmental majority which come to power after elections. The risk is that the political majority of the day will limit freedom of expression and pluralism in society, and impose ‘education for democratic citizenship’ on its own terms (setting aside or neglecting the constitutional rights of minorities). In these cases, democratic citizenship rights do not include human rights, and EDC deviates from HRE. Both EDC and HRE should therefore be conceptually distinguished, yet necessarily belong together. I recall that in this study, the term EDC always implies HRE as well.515 The EDC concept and principles in the Charter on EDC/HRE are sufficiently clear to form the basis for unequivocal normative claims and guide progress towards preparing young citizens for responsible life in a free and democratic society—an ideal which will never be fully reached but must constantly be worked for. In the 2016 survey, civil society organisations state that the Charter on EDC/HRE has become ‘the ready-to-use instrument’ for fostering EDC and HRE.516 For the purposes of this study, the EDC concept and principles are sufficiently precise in terms of their content to serve as an anchor point for examining the citizenship education of EU citizens. Where needed in the analysis, elements from other sources will complement the EDC concept, such as the descriptors of the RFCDC.517 514 Jung, ‘Die Empfehlungen des Ministerskomitees des Europarates: zugleich ein Beitrag zur europäischen Rechtsquellenlehre’ 522: the frequent interdisciplinary genesis of recommendations has an impact on their terminology, but this genesis is usually beneficial for the quality of the content. 515 Text to n 184. 516 CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 89. See CoE, Government Replies to the Questionnaire, in 2016 Report on the State of citizenship and Human Rights Education in Europe, answers to Q9: the Charter is most often considered moderately useful as a tool and resource (e.g. in AT, CZ, DE, EL, ES, FR, GR, HU, SE; while extensively useful in HR, and scarcely useful in BE, EE, IE, and LV). Publicity actions are now given more attention. 517 See CoE Reference Framework of Competences for Democratic Culture, Vol 2: Descriptors of competences for democratic culture (2018) (text to n 310). CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 156 Follow-up mechanisms and an independent third body A hardening factor which the Charter on EDC/HRE is lacking is ‘the delegation of authority for interpretation and conflict resolution to an independent third body’. An immediately apparent weakness is that the Charter relies on a system of self-evaluation (paragraph 14). During the adoption phase, a huge majority of member states rejected a draft text providing for external supervision.518 However, the Statute allows the Committee of Ministers to request information from the governments of member states on the action undertaken with regard to recommendations under Article 15(b). This follow-up potential indicates that the Statute assumes that recommendations have legal effects. It is an incentive for implementation.519 Paragraph 15 of the Charter recommends cooperation in follow-up activities. In order to follow up the Charter’s implementation for the second review cycle (2012–2017), the Education Department of the Council of Europe organised a survey for governments and the Youth Department carried out a survey of civil society organisations.520 Pinto de Albuquerque mentions that for soft law to harden, non-compliance should not only have a reputational or political cost, but should lead to other negative consequences, such as an obligation of justification.521 The Charter on EDC/HRE is weak in this respect. Non-compliance with the Charter leads to, at most, a reputational or political cost. As recommended after the first review cycle, government reports for the second review cycle have been made available for public scrutiny. The answers of 65 518 See text to n 160. 519 On follow-up mechanisms, see CoE Committee of Ministers Declaration on compliance with commitments accepted by member states of the Council of Europe (10 November 1994); CoE Committee of Ministers, Procedure for implementing the Declaration of 10 November 1994 on compliance with commitments accepted by member states of the Council of Europe (20 April 1995); Benoît-Rohmer and Klebes, Council of Europe Law - Towards a pan-European legal area. 520 On the procedure and actors, see CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 57: the CoE Secretariat sent out a questionnaire to the representatives of the Steering Committee for Education Policy and Practice (CDPPE) with a copy to the EDC/HRE coordinators and Permanent Representations of the CoE member states, for completion by governments. The majority of the designated representatives worked in ministries, boards or national agencies dealing with education and youth. Many of them consulted key stakeholders in EDC/HRE. 521 Pinto de Albuquerque (n 401), para 28. C Strengths and weaknesses of the Recommendation on the Charter on EDC/HRE 157 Ministries of Education are published on the Council of Europe website and were openly discussed at the 2017 conference.522 Subsequent practice (negative) While it is positive that many member states provide for citizenship education in accordance with the EDC standards, challenges remain. The quality of EDC de facto provided in member states varies largely between and within the member states of the Council of Europe.523 The majority of member states have not yet developed criteria for the evaluation of the effectiveness of EDC/HRE programmes (required in para 11 Charter on EDC/HRE).524 Member states do not always explicitly refer to education for democratic citizenship and human rights in their education laws, policies, and strategic objectives (compare para 5 Charter on EDC/HRE). In their answers to a Council of Europe questionnaire, a significant number replied ‘none’ to ‘scarcely’ with regard to vocational education and training, and higher education.525 A large majority of the respondent member states reported inconsistencies between policies (which include EDC/HRE 66 522 CoE Proceedings of the Conference on 'Human Rights and Democracy in Action - Looking Ahead: The Impact of the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education' (Strasbourg, 29-30 November 2012), 14; CoE Conference, Learning to Live Together: a Shared Commitment to Democracy: Conference on the Future of Citizenship and Human Rights Education in Europe (Strasbourg, 20-22 June 2017). 523 CoE Secretary General, State of democracy, human rights and the rule of law— a security imperative for Europe. Report 2016, 97; see also CoE Conference, Learning to Live Together: a Shared Commitment to Democracy: Conference on the Future of Citizenship and Human Rights Education in Europe (Strasbourg, 20-22 June 2017); and CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 29, Greek Ombudsman for Children’s Rights : ‘Citizenship and human rights education is still a subject that is either taught theoretically and in fragment or is not included at all in the curriculum of many European schools’. See also Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2017), i.a. p 45 (general guidelines, not specific), p 47 (challenges). 524 CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 20, 53, 71. 525 CoE, Government Replies to the Questionnaire, in 2016 Report on the State of citizenship and Human Rights Education in Europe (n 520), Q11, also Q 31. CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, figure 7 on p 67, with a major concern that the trend is in decline; see also p 77, on a lack of feedback of national parliaments (about half of the countries), contrasting with the priority they say they accord to EDC/HRE policies. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 158 in the curriculum) and practice (marginalised implementation in schools).526 For Hungary, for instance, it is reported that there is not enough time for the development of the skills and attitudes needed for EDC/HRE, because the curriculum concentrates heavily on knowledge acquisition.527 Governments pointed to a lack of support among education professionals, the media and the general public as the main obstacles, while civil society organisations indicated that EDC is not a priority among decision makers.528 Some governments do not seem to be very aware of what goes on in schools and refer to the educational autonomy of educational institutions.529 Curriculum overload is a key challenge in several member states, leading to significant inconsistencies between EDC/HRE curricula and teaching practices.530 If democracy and human rights are to be taken seriously, as founding principles of our society, it is doubtful whether it is sufficient to treat EDC and HRE as residual categories, only entering into consideration if time and energy permit and after all other curricular subjects have been dealt with. Education for employability is a political priority, education for democratic citizenship is not. The 2017 Report concludes that, with a view to the long-term, EDC/HRE must be given greater political and pedagogical priority, potentially making the provision of EDC/HRE mandatory at least in formal education.531 Admittedly, there is still a long way to go before EDC standards are actually met in every member state and in every school, yet the intention to achieve this is generally there. Authors have described the Council of Europe as the place where good ideas can become ordinary ideas.532 It is true that good ideas on EDC have over time become ordinary ideas, and this is an achievement in itself. Unfortunately, too often only lip service is paid to these ideas. Nevertheless, not putting the cart before the horse, as mentioned above, means that 526 Ibid, 16–17, 64: 66% of respondents, examples i.a. in BG, HR, EE, GR, LT, CY. 527 See CoE, Government Replies to the Questionnaire, in 2016 Report on the State of citizenship and Human Rights Education in Europe, Q8 and 13. 528 Ibid, 18, 98. 529 CoE, Government Replies to the Questionnaire, in 2016 Report on the State of citizenship and Human Rights Education in Europe, e.g. NL, SW on Q11. 530 See ibid, i.a. GR; CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 52, 68. Text to n 41. 531 CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 77. 532 Marcel Hicter, Belgian architect of cultural co-operation in Europe, cited in 50 years of the European Cultural Convention (2004), 7. C Strengths and weaknesses of the Recommendation on the Charter on EDC/HRE 159 occasional disrespect for EDC standards should not detract from their legal status or degree of normativity. In this sense, EDC standards are more than mere ‘interesting ideas’ from ‘a forum of discussion’.533 Conclusion: strong source Having tested the Charter on EDC/HRE according to the criteria of Schermers and Blokker and Pinto de Albuquerque, I conclude that the Recommendation on the Charter on EDC/HRE is a strong source. The Recommendation satisfies at least six of the eight factors which, Schermers and Blokker have suggested, strengthen the recommendations of international organisations: constitutional provisions, structure of the organisation, method of enactment, need for a rule, moral or legitimising effect, and restatement. The assessment of ‘application by others’ produces a mixed result, because of the remaining challenges. In the continuum of the dégradé normatif, the Charter on EDC/HRE displays five of the seven hardening factors proposed by Pinto de Albuquerque: prescriptive language or label; existence of travaux préparatoires, explanatory reports and commentaries; the complexity of the deliberation procedure, including the voting pattern; wide publicity; and further development of the standards. It is weaker as to linguistic accuracy and content precision, follow-up mechanisms and monitoring by an independent third body. Challenges under the heading of subsequent practice must also be mentioned. On the basis of the five hardening factors, the Charter on EDC/HRE can, in addition to its interpretative function, stand alone as an independent source with a relatively high degree of normativity and ‘exercise alone its normative claim’.534 In spite of its weaknesses, the Charter on EDC/HRE is, as such, an important source for the EU Member States as member states of the Council of Europe, including in the light of the considerations in sections A and B. Building on this conclusion, a final argument relates to the duty of good faith. Given that the Recommendation on the Charter on EDC/HRE is a Council of Europe standard of great weight and considerable importance, a strong source, it can be expected that member states acting in good faith will take EDC standards into account. 67 533 Lenaerts and Van Nuffel, European Union Law, text to n 399. 534 Applying Pinto de Albuquerque (n 401), para 33. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 160 Implications for the duty to act in good faith Good faith and recommendations in general The duty of good faith has implications for Council of Europe recommendations in general. The principle of good faith is universally recognised.535 The Statute and the ECHR, which are treaties binding upon the member states, must be performed and interpreted in good faith (Article 26 and 31 Vienna Convention). De Vel and Markert develop a good faith argument linked to the Statute of the Council of Europe. Article 3 of the Statute states that ‘[e]very member state of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realization of the aim of the Council’. As the Statute does not define ‘the principles of the rule of law’, De Vel and Markert argue that both conventions and recommendations are a privileged means of interpretation, and that even if the detail of recommendations is not binding on governments, their main principles are binding since member states have acceded to the Statute.536 One might indeed question whether a member state which has approved the text of a recommendation but not adapted its domestic practice to the main principles thereof, is acting in good faith.537 Even though they are not binding, recommendations do not discharge member states from the obligation of adopting a bona fide attitude and acting in line with the recommendation, collaborating sincerely and effectively for the aims of the Council of Europe. (A similar issue of good faith will arise in the EU legal order in the context of the principle of sincere cooperation of Article 4(3) TEU.538) With regard to the ECHR, member states’ compliance with the duty to act in good faith has been examined in ECtHR case law in various contexts, for instance when determining whether member states’ limitations on freedom of expression are ‘necessary in a democratic society’ (Article 10 ECHR). The ECtHR checks as a minimal requirement ‘whether the respondent State exercised its discretion reasonably, carefully and in good 3. 68 535 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, preamble. 536 De Vel and Markert (n 168), 353. 537 De Vel and Markert (n 168), 351. 538 §§ 138 - 139 . C Strengths and weaknesses of the Recommendation on the Charter on EDC/HRE 161 faith’.539 Member states discretion is thus limited by the duty to act in good faith. Good faith and provision of EDC The duty of good faith has implications for the Recommendation on the Charter on EDC/HRE in particular. The normative history has shown the close involvement of the Council of Europe member states, including the EU Member States, in the genesis of the Charter on EDC/HRE. Not once, but consistently and at regular intervals, they adopted legal instruments on EDC (recommendations, declarations, resolutions, or plans of action). The normative context and the history of EDC standard-setting are testimony to the involvement of the member states, including all EU Member States, in the adoption of EDC standards. The Committee of Ministers took the decisions on EDC (Article 14 Statute). The EU is an observer without a right to vote in this Council of Europe body, but the Ministers of Foreign Affairs of all the EU Member States participated and had a vote (or their representatives did). The Parliamentary Assembly, the deliberative body of the Council of Europe with an advisory function, made many recommendations to the Committee of Ministers (Article 22 Statute) with regard to EDC. EU Member States have seats in this Assembly, where they are represented by nationals and members of their Parliaments whom they have elected or appointed (Article 25 Statute).540 Council of Europe Summits of Heads of State and Government adopted declarations calling for action on EDC. The EU Heads of State and Government were among them. While the Council of the EU varies in its composition of ministers or state secretaries depending on the subject under discussion (10 configurations), in the Council of Europe the practice has developed of having standing conferences of specialised ministers. The Standing Conference of the European Ministers of Education regularly adopted declarations on EDC and asked the Committee of Ministers to adopt measures.541 All EU Ministers of Educa- 69 539 Settled case law, see i.a. Jersild v Denmark no 15890/89 (ECtHR 23 September 1994), para 31; Lindon and Others v France no 21279/02 et al (ECtHR 22 October 2007), para 45; Guja v Moldova no 14277/04 (ECtHR 12 February 2008), para 69; Navalnyy v Russia no 29580/12 et al (ECtHR 15 November 2018), para 143. To note, supervision goes beyond that. 540 For number of seats at present, see fn 6 to Art 26 Statute. 541 The first was CoE Standing Conference of European Ministers of Education, Resolution on the activities of international organisations in the fields of education and science (No 3) and Resolution on future meetings of the Ministers of Education (No 4) (The Hague, 12-13 November 1959). Overview in . CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 162 tion participated in these Conferences. EU Member States were involved in many other ways as well, for example in the Congress of Local and Regional Authorities, in the Conference of International Non-Governmental Organisations (INGOs) of the Council of Europe, or through the participation of national experts and practitioners in the wide consultations and common action on EDC.542 This consistent involvement of member states throughout the process of Council of Europe standard-setting for EDC, including in the period after adoption of the Charter, shows an unmistakable commitment to EDC, i.e. to the education-democracy-citizenshiphuman rights link. This commitment is not only a political one but has legal implications. A combined reading of the Statute and the Recommendation on the Charter on EDC/HRE in the light of the principle of good faith leads to a legitimate expectation that member states will take EDC standards into account. The EDC standards of the Charter on EDC/HRE can in this way permeate domestic legal orders of Council of Europe member states via the principle of good faith. In the domestic legal orders, constitutional provisions on democracy and education cannot be interpreted and applied in good faith without taking EDC standards into account given that their Heads of State, Ministers or other members of government, parliamentary representatives, etc. have participated actively in EDC standard-setting in Council of Europe bodies for more than 30 years, advocating EDC and setting EDC norms in general and specific contexts.543 Good faith is undermined if member states’ national public authorities contest EDC standards, or pay lip service to EDC but neglect to provide it in practice. In a system based on the rule of law and honouring good faith, provisions in national constitutions on democracy, citizenship, human rights and education should be read in conjunction with the Council of Europe Statute and the Charter on EDC/HRE, because it is a European standard of great weight, based on a wide European consensus. In this sense, the margin of discretion of member states in the field of education is 542 Acting in their own capacity. See also members of ECRI, one per member state but independent from their government: Art 2(1) and (3) in CoE Committee of Ministers Resolution Res(2002)8 on the statute of the European Commission against Racism and Intolerance (13 June 2002). 543 In the context of the adoption of treaties, Heads of State or Government, Ministers for Foreign Affairs, heads of diplomatic missions, and representatives accredited by States to an international conference or to an international organisation or one of its organs, may all represent the State for the purpose of expressing the consent of the State (Art 7 Convention on the law of Treaties). For recommendations in the CoE, see i.a. Statute Arts 14, 15. C Strengths and weaknesses of the Recommendation on the Charter on EDC/HRE 163 limited by their duty to act in good faith. This reasoning will be underscored by a reading in conjunction with international agreements such as the ICESCR and the CRC.544 The human rights-based approach will highlight ‘the international nature of human rights values and obligations and the common principles underpinning democracy and the rule of law’.545 Law in context—some caveats Complementary sources as to the substance of citizenship education The effects of the EDC standards must be understood in the context of research and scholarly work in non-legal fields. Taking the Charter on EDC/HRE as an anchor point does not mean ignoring the contributions of academics, research associations, networks, or organisations operating best practices. These sources do not have the normative authority, legal status and effects of the Charter on EDC/HRE of the Council of Europe. Yet, they corroborate the concept of EDC in its essential components and add clarification and precision, possibly remedying certain weaknesses of the Charter itself. As law does not function in a vacuum, courts may take scientific knowledge into account. In order to evaluate the weight of Council of Europe standards, some ECtHR judges and judgments have placed them ‘in the context of the knowledge gathered by social sciences’.546 Moreover, beyond the possible legal value, the intention of this (too) short section is to honour multidisciplinary approaches to citizenship education and to draw attention to the rich perspectives they offer, informing the legal ones. These perspectives add depth to legal norms and to cardinal legal principles (such as democracy or equality). They may even identify critical pitfalls and stumbling blocks. Awareness of some of the ongoing debates in the citizenship education field in general is important, because —in my experience—the arguments used to contest a possible EU dimension in citizenship education, are often the same as those used to contest citizenship education itself. Such arguments and reservations are reflected in scholarly work on national citizenship education. The arguments used D 70 544 § 285 ff. 545 Para 5(j) Charter on EDC/HRE. Further § 285 ff. 546 E.g. Muršić v Croatia no 7334/13 (ECtHR 20 October 2016), Joint partly dissenting opinion of Judges Sajó, López Guerra and Wojtyczek, para 5. Reference to social sciences in various judgments, i.a. MC v Bulgaria no 39272/98 (ECtHR 4 December 2003), para 146. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 164 against the EU dimension in citizenship education may even reach into philosophical debate on education as such. Therefore, I will not only briefly discuss research on the assessment of citizenship education, but also some thought-provoking reflections and caveats advanced by non-legal scholars. The debates will not be resolved but are presented here in a nutshell in order to enhance understanding of citizenship education in general before tackling the subject of EU citizenship education in the following parts of the study. International Civic and Citizenship Education Study (ICCS) A widely recognised assessment of citizenship education is provided by the International Civic and Citizenship Education Study (hereafter ICCS). International research shows that in spite of national differences in the content and provision of citizenship education,547 common patterns can be found. The International Association for the Evaluation of Educational Achievement (IEA) is an independent, international cooperative of national research institutions and governmental research agencies.548 It regularly examines how young people are prepared for their roles as citizens. It operates worldwide, with 38 participating countries, including 14 EU Member States.549 The conceptual underpinning of the 2016 International Civic and Citizenship Education Study (hereafter ICCS 2016) is 71 547 Ainley, Schulz and Friedman, ICCS 2009 Encyclopedia: Approaches to civic and citizenship education around the world 9 (‘content and conduct of civic and citizenship education within and across countries varies considerably’) and 20 (crosscurricular or as a separate subject, compulsory or not, at each educational level or not). 548 Schulz and others, IEA International Civic and Citizenship Education Study 2016: Assessment Framework. Much scholarly work has been done based on IEA or ICCS findings, i.a. Torney-Purta and others, Citizenship and education in twentyeight countries: Civic knowledge and engagement at age fourteen; J Torney-Purta, ‘The School's Role in Developing Civic Engagement: A Study of Adolescents in Twenty-Eight Countries’ (2002) 6 Applied Developmental Science 203; J Torney-Purta and C Barber, ‘Democratic School Engagement and Civic Participation among European Adolescents: Analysis of Data from the IEA Civic Education Study’ (2005) 4 Journal of Social Science Education 13; Verhaegen, Hooghe and Meeusen, ‘Opportunities to learn about Europe at school. A comparative analysis among European adolescents in 21 European member states’. 549 Participating Member States in the ICCS 2016 were BE-Flanders, BG, DE-North Rhine-Westphalia, DK, EE, FI, HR, IT, LT, LV, MT, NL, SE, and SI (from 2 MS only one federal entity), plus Chili, Hong Kong, Mexico, the Russian Federation, etc. D Law in context—some caveats 165 based on broad expertise and scholarly work.550 The civic and citizenship framework defines ‘those aspects of cognitive and affective-behavioral content that should be considered important learning outcomes of civic and citizenship education’.551 The field of civic and citizenship education includes ‘cognitive aspects of learning as well as the development of attitudes towards aspects of civic life and dispositions to participate actively in the life of communities.’552 One of the important contributions of the IEA was the emphasis on the role of cognitive skills: in order to participate effectively as citizens, young people need to possess a knowledge base and the capacity to reason about the institutions, events, actions and processes that exist in their civil and civic communities, as well as to develop and justify views and attitudes towards those things.553 To assess the cognitive domains, two categories are distinguished: ‘knowing’ (remembering or recalling information, and understanding) and ‘reasoning and applying’ (to new situations). To assess the affectivebehavioural domains, ‘attitudes’ (including value beliefs) are differentiated from ‘engagement’. Both the cognitive and affective-behavioural domains are applied to four content domains for ‘civics and citizenship’. The first, ‘civic society and systems’, relates to citizens, including their roles, rights, responsibilities and opportunities for civic engagement, to State institutions and to civil institutions. The second content domain, ‘civic principles’, refers to the shared ethical foundations of civic societies (equity, freedom, sense of community and rule of law). The third content domain, ‘civic participation’, relates to decision-making, exercising influence and community participation (active citizenship). The fourth domain ‘civic identities’, concerns ‘the personal sense an individual has of being an agent of civic action with connections to multiple communities’, with civic selfimage and civic connectedness as sub-domains. Establishing an internationally accepted, overarching concept of citizenship and citizenship education for the ICCS was not an easy task. The identification of different domains (dimensions) and sub-domains testifies to 550 Schulz and others, IEA International Civic and Citizenship Education Study 2016: Assessment Framework, references to scholars from pages 67 to 82. 551 Ibid, 11. Cognitive and affective-behavioral ‘domains’ are also called ‘dimensions’. 552 Ibid, 11. 553 Ibid, 11. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 166 the richness of the concepts, but at the same time reveals their complexity. When comparing and weighing up the use of concepts in different national contexts, experts in the education field discuss and sometimes criticise distinctions with regard to their empirical relevance, validity and reliability.554 I will not engage in these debates and am not qualified to do so. For the purpose of this study, it is sufficient to recognise the components of the ICCS concepts and note convergences with the Council of Europe concept. The EDC definition, for instance, inasmuch as it refers to ‘knowledge, skills and understanding and developing their attitudes and behaviour’, includes the cognitive and affective-behavioural domains pointed to in the ICCS concepts. I will use some of the specific ICCS elements mentioned to complement the EDC concept when examining the situation of the EU citizen in the following chapters. Scholars How do the reflections of academic writers relate to the EDC standards in the legal instruments of the Council of Europe? Much scholarly work is consistent with the consensus reflected in the Charter on EDC/HRE and confirms the essential components of the EDC concept. In the themes analysed by scholars, several elements of the EDC and HRE concepts and principles can be recognised, although they are sometimes worded or categorised differently.555 Key themes include the foundations of citizenship education,556 tensions between diversity and unity,557 72 554 S De Groof and others, Burgerschap bij 14-jarigen. Vlaanderen in internationaal perspectief. Vlaams eindrapport van de International civic and citizenship education study (Vlaams Ministerie van Onderwijs en Vorming, 2010) 23, 28. 555 See Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2017), 23 (e.g. scholars about compositions of competences: knowledge, skills, attitudes, values, reflections), 24 (typology of approaches). 556 Discussed below. 557 A Osler and H Starkey, ‘Citizenship Education and National Identities in France and England: Inclusive or exclusive?’ (2001) 27 Oxford Review of Education 287; A Osler and H Starkey, ‘Education for Citizenship: Mainstreaming the Fight against Racism?’ (2002) 37 European Journal of Education 143; JA Banks and others, Democracy and diversity: principles and concepts for educating citizens in a global age (University of Washington 2005). There is an international consensus on key principles for citizenship education: ‘students should learn about the complex relationships between unity and diversity in their local communities, the nation and the world’; ‘they should study the ways in which people in their community, nation and region are increasingly interdependent with others around the world’; ‘the teaching of human rights should underpin citizenship education in multicultural nation states’ and ‘students should be taught knowl- D Law in context—some caveats 167 democratic school culture,558 teacher training,559 and curriculum development.560 Citizenship education topics for the classroom also feature, edge about democracy and democratic institutions’, thus related in Osler and Starkey, ‘Education for democratic citizenship: a review of research, policy and practice 1995–2005’, 442. Further: A Osler and H Starkey, Changing citizenship : democracy and inclusion in education (A Osler and H Starkey eds, Open University Press and McGraw-Hill Education 2005); JA Banks, ‘Diversity, Group Identity, and Citizenship Education in a Global Age’ (2008) 37 Educational Researcher 129; JA Banks, ‘Educating citizens in diverse societies’ (2011) 22 Intercultural Education 243 (challenging assimilationist conceptions of citizenship education, pleading for citizenship education that enables students ‘to acquire the knowledge, skills, and commitments needed to become effective civic participants in their communities, nation-state, and the world.’). 558 N 571. 559 Osler, ‘European Citizenship and Study Abroad: student teachers’ experiences and identities’; A Osler and H Starkey, Teachers and Human Rights Education (Trentham 2010); P Dusi, M Steinbach and G Messetti, ‘Citizenship Education in Multicultural Society: Teachers’ Practices’ (2012) 69 Procedia - Social and Behavioral Sciences 1410; AJ Castro, ‘What Makes a Citizen? Critical and Multicultural Citizenship and Preservice Teachers' Understanding of Citizenship Skills’ (2013) 41 Theory & Research in Social Education 219; U Niens, U O'Connor and A Smith, ‘Citizenship education in divided societies: teachers' perspectives in Northern Ireland’ (2013) 17 Citizenship Studies 128; CL Hahn, ‘Teachers’ perceptions of education for democratic citizenship in schools with transnational youth: A comparative study in the UK and Denmark’ (2015) 10 Research in Comparative and International Education 95. 560 E.g. WC Parker, A Ninomiya and J Cogan, ‘Educating World Citizens: Toward Multinational Curriculum Development’ (1999) 36 American Educational Research Journal 117; W Parker, ‘Diversity, globalization and democratic education: Curriculum possibilities’ in JA Banks (ed), Diversity and citizenship education: Global perspectives (2004); D Kerr and others, Vision versus Pragmatism: Citizenship in the Secondary School Curriculum in England. Citizenship Education Longitudinal Study (5th Annual Report, National Foundation for Educational Research, 2007); A Ross, ‘Organizing a Curriculum for Active Citizenship Education’ in J Arthur, I Davies and C Hahn (eds), The SAGE Handbook of Education for Citizenship and Democracy (Sage 2008); H Starkey, ‘Diversity and citizenship in the curriculum’ (2008) 6 London Review of Education 5; T McCowan, Rethinking Citizenship Education: a Curriculum for Participatory Democracy (Continuum 2009); M Print and D Lange (eds), Schools, Curriculum and Civic Education for Building Democratic Citizens (Series Civic and Political Education 2, Sense 2012); Curriculum Development and Review for Democratic Citizenship and Human Rights Education (prepared by Felisa Tibbits for UNESCO/CoE/ Office for Democratic Institutions and Human Rights/Organization of American States, 2016). CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 168 such as peace, racism, extremism, feminism, sustainable development, or global citizenship.561 Many scholars emphasise the need for citizenship education, mirroring the Council of Europe EDC project. In his analysis of the aims of citizenship education throughout history, Wolfgang Sander, the educational scientist, finds three patterns: the aims of Legitimation, of Mission and of Mündigkeit (empowerment). He argues that in a democracy built on the premise of freedom for all citizens, Mündigkeit should be the central aim of education for democratic citizenship,562 which echoes the empowerment of citizens, the central aim of the Charter on EDC/HRE.563 James Arthur, Ian Davies and Carole Hahn (educationalists) conclude in a comparative perspective that international authors on citizenship education have this concept in common: citizenship education of young people aims to instil the knowledge, skills, attitudes, dispositions and values that will enable them to participate meaningfully in society, in the communities of which they are a part, locally, nationally, and globally (EDC components (b) and (c) appear).564 Empowerment for participation is a recurring central aim of citizenship education discussed by scholars (EDC component c-3). In 1989, renowned political scientist Robert Dahl described ‘enlightened understanding’ by citizens as one of the five criteria for democracy. If civic education did not exist, he claimed, it would have to be invented in order to enlighten citizens.565 Earlier, philosopher John Dewey had already argued for the crucial role of schools for democracy. He stated that the need for 561 M Nussbaum, ‘Education for Citizenship in an Era of Global Connection’ (2002) 21 Studies in Philosophy and Education 289; A Osler and H Starkey, ‘Education for Cosmopolitan Citizenship’ in VB Georgi (ed), The Making of Citizens in Europe: New Perspectives on Citizenship Education (Schriftenreihe Band 666, Bundeszentrale für politische Bildung 2008); N Hodgson, ‘Educational research, governmentality and the construction of the cosmopolitan citizen’ (2009) 4 Ethics and Education 177; W Sander and A Scheunpflug (eds), Politische Bildung in der Weltgeschellschaft. Herausforderungen, Positionen, Kontroversen. Perspektiven politischer Bildung (Schriftenreihe Band 1201, Bundeszentrale für politische Bildung 2011); A Keating, ‘Are cosmopolitan dispositions learned at home, at school, or through contact with others? Evidence from young people in Europe’ (2016) 19 Journal of Youth Studies 338. On specific themes, see also contributions in Richter, Politische Bildung von Anfang an. Demokratie-Lernen in der Grundschule 120–260. 562 Sander, Handbuch politische Bildung 13–17. 563 Central in the definitions of EDC and HRE. 564 Arthur, Davies and Hahn, ‘Introduction’ 5–6, 8–9. 565 RA Dahl, Democracy and its critics (Yale University Press 1989) 108–114; RA Dahl, On democracy (first edn 1998, Yale University 2000). D Law in context—some caveats 169 formal or intentional teaching and learning increases with the growing complexity of society’s structures and resources (it might be observed that this is all the more true today in the EU). An often-cited quotation from John Dewey is ‘Democracy has to be born anew every generation, and education is its midwife’.566 In 1992, Czech writer and former dissident Václav Havel wrote: A moral and intellectual state cannot be established through a constitution, or through law, or through directives, but only through complex, long-term, and never-ending work involving education and selfeducation.567 He emphasised that schools ‘must ... lead young people to become self-confident, participating citizens’, people capable of thinking.568 In the same vein, Chicago philosopher Martha Nussbaum writes that education is crucial to the health of democracy. Narrowly focusing on education in science and technology, or on internalising information, is dangerous for democracy’s future. Rather than concentrating on utilitarian, profit-orientated training, education should focus on human development and should aim at three key abilities: critical thinking (critical examination of oneself and one’s traditions), seeing oneself as a member of a heterogeneous nation and world, and ‘narrative imagination’ (empathy and understanding of others’ stories).569 Caveats for further reflection on EU citizenship education In addition to confirming EDC standards in general, scholarly work includes specific critical reflections which will complement the use of the Charter on EDC/HRE as a substantive source. Here I briefly draw attention to four caveats which must be borne in mind in the analysis which follows. They do not undermine the consensus on the EDC standards of the Charter on EDC/HRE, but they indicate that caution is needed. 73 566 J Dewey, Democracy and education: an introduction to the philosophy of education (Macmillan 1916), especially 9. 567 V Havel, Summer Meditations (P Wilson tr, Vintage Books 1992) 20. 568 Ibid, 117–118: ‘The most basic sphere of concern is schooling. Every else depends on that.’. 569 M Nussbaum, ‘Education for Profit, Education for Freedom’ (2009) 95 Liberal Education 6; M Nussbaum, ‘Education and Democratic Citizenship: Capabilities and Quality Education’ (2006) 7 Journal of Human Development 385. For the three abilities applied in legal education, see M Nussbaum, ‘Cultivating Humanity in Legal Education’ (2003) 70 University of Chicago Law Review 265. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 170 Scholars differ in the weight they attach to certain components of EDC/HRE and debate continues as to ways of proceeding. The Charter on EDC/HRE leaves the member states freedom and space to vary the emphasis. The first ongoing discussion concerns the role of formal education (school education). Some scholars advocate citizenship education outside school in a non-formal or informal setting, for instance in the context of community involvement and volunteering.570 One argument is that citizenship education should include the exercise of skills such as critical thinking, which can be problematic in an authoritative school climate.571 The general question as to which institutions should provide citizenship education is a lasting source of conflict.572 To what extent should the state, schools, civic society organisations, media, religious institutions, or the family, decide how to form the young citizen?573 The Charter on EDC/HRE clearly expects schools to play a part, provided that they are democratically governed. At the same time, the Charter leaves room for all the other actors (paragraphs 5(i), 6, and 8).574 This study will focus on schools (formal education), since the aim is to prepare all pupils for democratic participation, not only young people who engage in optional extra-curricular courses or occasional activities outside school.575 The second caveat concerns the role of citizenship education in forming identities. While acknowledging Council of Europe work on EDC/HRE, some scholars point to persisting ambivalence with regard to forms of citizenship education which instil national identities and (unconditional) loyalty to the nation.576 History provides many examples. The 1965 German ‘Gesetz über das einheitliche sozialistische Bildungswesen der DDR’ stated: 570 Concepts of formal, non-formal and informal education, see n 1041. See also Annex 5 to this study. 571 S Macedo, ‘Community, Diversity, and Civic Education: toward a Liberal Political Science of Group Life’ [1996] Social Philosophy and Policy Foundation 240, argues for less citizenship education via the school curriculum. See other authors referred to in Osler and Starkey, ‘Education for democratic citizenship: a review of research, policy and practice 1995–2005’, 445–446. 572 E Callan, ‘The Great Sphere: Education against Servility’ (1997) 31 Journal of Philosophy of Education 221. 573 See i.a. debates in Spain (n 462): Motos, ‘The Controversy over Civic Education in Spain’ (role of church and family versus state). 574 N 196. 575 § 152 . 576 Osler, ‘European Citizenship and Study Abroad: student teachers’ experiences and identities’; J Sprogøe and T Winther-Jensen (eds), Identity, education and citi- D Law in context—some caveats 171 Die Schüler, Lehrlinge und Studenten sind zur Liebe zur Deutschen Demokratischen Republik und zum Stolz auf die Errungenschaften des Sozialismus zu erziehen, um bereit zu sein, alle Kräfte der Gesellschaft zur Verfügung zu stellen, den sozialistischen Staat zu stärken und zu verteidigen.577 Today, instilling love for one’s country is present in school education in many countries.578 Martha Nussbaum pleads for patriotic education. She argues that patriotic political emotions are needed to give citizens a sense of duty vis-à-vis others and the common good even where that involves sacrificing self-interest. However, excesses must be prevented, given the unreliability of majority sentiment. Therefore, she continues, citizenship education should aim at critical thinking, and law and institutional structures are essential. One factor in obtaining ‘the good out of patriotic education without the bad’ is awareness of the constitutional rights of minorities.579 zenship - multiple interrelations (Comparative studies series 13 Peter Lang 2006); A Ross, ‘Multiple Identities and Education for Active Citizenship’ (2007) 55 British Journal of Educational Studies 286; S Freire and others, ‘Identity Construction through Schooling: listening to students’ voices’ (2009) 8 EERJ 80; A Ross, A European Education. Citizenship, identities and young people. European issues in Children's Identity and Citizenship (Trentham Books, CiCe 2009); J Zajda, H Daun and L L. Saha (eds), Nation-building, identity and citizenship education (Springer 2009); A Osler, ‘Teacher interpretations of citizenship education: national identity, cosmopolitan ideals, and political realities’ (2011) 43 Journal of Curriculum Studies 1; A Ross, ‘Controversies and Generational Differences: Young People’s Identities in Some European States’ (2012) 2 Education Sciences 91. See also work done in the ‘Children's Identity and Citizenship in Europe Thematic Network’ (CiCe). 577 In para 5(2). See Sander, ‘Theorie der politischen Bildung: Geschichte - didaktische Konzeptionen - aktuelle Tendenzen und Probleme’ 15. Other examples in 18th century French ‘catéchismes’, see AEX La Chabeaussière, Catéchisme français, ou Principes de philosophie, de morale et de politique républicaine, à l'usage des écoles primaires (L'An IV de la République, Chez Du Pont 1795). At present, softer forms, eg, preamble to Latvian Constitution: ‘Loyalty to Latvia, the Latvian language as the only official language, freedom, equality, solidarity, justice, honesty, work ethic and family are the foundations of a cohesive society.’. 578 See i.a. research in Keating, Ortloff and Philippou, ‘Citizenship Education Curricula: The Changes and Challenges Presented by Global and European Integration’. On identity and belonging, see i.a. text to n 1188. 579 M Nussbaum, ‘Teaching patriotism: love and critical freedom’ (2012) 79 University of Chicago Law Review 213, 227: ‘So, we turn many things over to institutions and laws. Nonetheless, these institutions and laws will not sustain themselves in the absence of love directed at one’s fellow citizens and the nation as a CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 172 This gives law additional importance within citizenship education, including in the EU dimension.580 The third caveat relates to the foundations and presuppositions of citizenship education. An important strand of literature highlights the significance of critical thinking in citizenship education, in line with normative instruments.581 There is consensus on the necessary non-consensus within citizenship education. But how far does non-consensus go—or the personal autonomy and freedom of (young) citizens to think what they like? A liberal model for citizenship only allows ‘thin’ citizenship education. No whole …, it isn’t sufficient to create good institutions and then run away and hide. We have to get our hands dirty by entering the feared emotional terrain’. However, ‘[l]aw and institutional structure are essential props to the good in patriotism’. See, further, M Nussbaum and J Cohen, For love of country: debating the limits of patriotism (Beacon 1996); M Nussbaum, ‘Political Soul‐Making and the Imminent Demise of Liberal Education’ (2006) 37 Journal of Social Philosophy 301; M Nussbaum, ‘Toward a globally sensitive patriotism’ (2008) 137 Daedalus 78; Nussbaum, Political Emotions: Why Love Matters for Justice. On the affective dimension, also A Osler and H Starkey, ‘Fundamental Issues in Teacher Education for Human Rights: a European perspective’ (1994) 23 Journal of Moral Education 349; T Zimenkova, ‘Citizenship Through Faith and Feelings: Defining Citizenship in Citizenship Education. An Exemplary Textbook Analysis’ (2008) 7 Journal of Social Science Education 81. On the irrational in the crowd, G Le Bon, The Crowd. A Study of the Popular Mind (tr 'La psychologie des foules' 1895, Dover 2002). 580 See i.a. §§ 258 259 . 581 For normative instruments, see i.a. n 1064. Numerous scholars emphasise critical thinking: i.a. Dewey, Democracy and education: an introduction to the philosophy of education; PJM Costello, ‘Education, citizenship and critical thinking’ (1995) 107 Early Child Development and Care 105; H Mintrop, ‘The Old and New Face of Civic Education: expert, teacher, and student views’ (2003) 2 EERJ 446; G Ten Dam and M Volman, ‘Critical thinking as a citizenship competence: Teaching strategies’ (2004) 14 Learning and Instruction 359; T Grammes, ‘Kontroversität’ in W Sander (ed), Handbuch politische Bildung (Reihe Politik und Bildung 32, Bundeszentrale für politische Bildung 2005); SE Cuypers and I Haji, ‘Education for Critical Thinking: Can it be non‐indoctrinative?’ (2006) 38 Educational Philosophy and Theory 723; SL Lamy, ‘Challenging Hegemonic Paradigms and Practices: Critical Thinking and Active Learning Strategies for International Relations’ (2007) 40 APSC Political Science Politics 112; DE Hess, Controversy in the Classroom: The Democratic Power of Discussion (Routledge 2009); Lösch and Thimmel, Kritische politische Bildung: Ein Handbuch; JW Mulnix, ‘Thinking Critically about Critical Thinking’ (2012) 44 Educational Philosophy and Theory 464; Widmaier and Overwien, Was heisst heute Kritische Politische Bildung?; G Biesta, The Beautiful Risk of Education (Paradigm 2014); M Davies and R Barnett (eds), The Palgrave handbook of critical thinking in higher education (Palgrave Macmillan 2015). Also authors in following notes. D Law in context—some caveats 173 prescriptive blueprint can be imposed by the state, no ‘good citizen’ mould for a predefined society. Scholars in the liberal tradition criticise the civic republican model, which aims to educate for the common good in the Aristotelian tradition.582 Ute Frevert, the historian from Yale University, does not flinch from defining the Good European Citizen (GEC): a person of unblemished democratic convictions and attitudes, with both national and European sentiments, actively participating, informed, and with strong views on solidarity. The GEC model serves as a visionary goal and is founded on ethical assumptions.583 Is Ute Frevert’s GEC a reprehensible mould, limiting personal freedom? How can liberal and civic republican views be balanced? The consensus on EDC standards formulated in Council of Europe legal instruments leaves room for both the ‘thin or ‘thick’ interpretations and implementations of citizenship education, in either a more liberal tradition or more civic republican tradition. Balancing the approaches, the following fundamental question for citizenship education emerges: how does one plan for citizenry with civic competences while respecting individual freedom?584 This question relates to the more general educational paradox exposed by Immanuel Kant: there is a ‘tension 582 E.g. P van der Ploeg and L Guérin, ‘Questioning Participation and Solidarity as Goals of Citizenship Education’ (2016) 28 Critical Review 248. On models of citizenship (liberal, communautarian, civic republican and critical) and implications for citizenship education, see Hoskins and others, Contextual Analysis Report: Participatory Citizenship in the European Union (Report 1) 9–17; and M Tarozzi, F Rapanà and L Ghirotto, ‘Ambiguities of Citizenship. Reframing the Notion of Citizenship Education’ (2013) 8 Ricerche di Pedagogia e Didattica - Journal of Theories and Research in Education 201. 583 U Frevert, ‘How to become a Good European Citizen: Present Challenges and Past Experiences’ in VB Georgi (ed), The Making of Citizens in Europe: New Perspectives on Citizenship Education (Schriftenreihe Band 666, Bundeszentrale für politische Bildung 2008) 41. See also F Galichet, ‘La citoyenneté comme pédagogie: réflexions sur l’éducation à la citoyenneté’ (2002) 28 Revue des sciences de l'éducation 105, i.a. 113 (liberal versus republican democracy, corresponding to human rights versus citizens’ rights; a minimal level of citizenship education centres on education of human rights; the author proposes a higher level of citizenship, promoting mutual interest and mutual responsibility between citizens). Contextual reading: RD Putnam, ‘Bowling Alone: America's Declining Social Capital’ (1995) 6 Journal of Democracy 65; TH Sander and RD Putnam, ‘Still Bowling Alone? The Post-9/11 Split’ (2010) 21 Journal of Democracy 9. 584 Callan, ‘Citizenship and Education’ 81. See also, i.a., Macedo, ‘Community, Diversity, and Civic Education: toward a Liberal Political Science of Group Life’, 242; Nussbaum, ‘Political Soul‐Making and the Imminent Demise of Liberal Education’; M Papastephanou, ‘Philosophical Presuppositions of Citizen- CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 174 between necessary educational influence and unacceptable restriction of the child’s individual development and freedom of education in liberal democratic societies’.585 On the one hand, liberalism demands respect for individual freedom and has thus to tolerate a diversity of views in order to preserve pluralism. In this context, it is easy to see citizenship education as ‘despotism over the mind’ (and quickly dismiss it as propaganda). Liberalism demands educational restraint. On the other hand, liberal democracy has to reproduce the civic virtues and skills necessary to sustain the liberal democratic society. This calls for citizenship education, planning for citizens with the necessary civic competences, with reasonable constraints on liberal ideas, for instance mitigating the personal views of (young) citizens who seek to propagate limits on democratic rights or on the freedom of minorities.586 Despotism over the mind can also be prevented by applying the principles of the ‘Beutelsbacher consensus’. As a result of debate in a party-political context and polarisation of views on citizenship education, German experts gathering in Beutelsbach (in the 1970s) reached a consensus on essential principles. The Beutelsbacher Konsens sets out three basic principles as the foundation of good political education: a prohibition on overwhelming the pupil (Indoktrinationsverbot), treating controversial subjects as controversial (Gebot der Kontroversität) and giving weight to the personal interests of pupils (Prinzip der Schülerorientierung).587 An interesting framework for guaranteeing ‘free citizenship education’ is, furthership Education and Political Liberalism’ in J Arthur, I Davies and C Hahn (eds), The SAGE Handbook of Education for Citizenship and Democracy (Sage 2008). Further reflections in § 325 . 585 See MH Redish and K Finnertyt, ‘What did you Learn in School Today? Free Speech, Values Inculcation, and the Democratic Educational Paradox’ (2002-2003) 88 Cornell Law Review 62; B Schaffar, ‘Changing the Definition of Education. On Kant’s Educational Paradox Between Freedom and Restraint’ (2014) 33 Studies in Philosophy and Education 5. 586 E Callan, ‘Beyond sentimental civic education’ (1994) 102 American Journal of Education 190; E Callan, ‘Liberal Legitimacy, Justice, and Civic Education’ (2001) 111 Ethics: an international journal of social, political, and legal philosophy 141. See also n 1180 (‘Actively promoting the values means challenging opinions or behaviours in school that are contrary to fundamental British values’) and n 1257 (Popper). 587 H-G Wehling, ‘Der Beutelsbacher Konsens: Entstehung und Wirkung’ Landeszentrale für politische Bildung Baden-Württemberg (1977) . See also Sander, ‘Theorie der politischen Bildung: Geschichte - didaktische Konzeptionen - aktuelle Tendenzen und Probleme’ 13, 18; Grammes, ‘Kontroversität’ 126, 128; S Reinhardt, ‘The Beutelsbach Consensus’ (2016) 15 Journal of Social Science Education 11 (at the D Law in context—some caveats 175 more, proposed by Bernard Crick, the English political theorist. He describes five presuppositions on which free citizenship education, as distinguished from education which indoctrinates, must be based: freedom, toleration, fairness, respect for truth, and respect for reasoning. Only when these five ‘procedural values’ are respected, can differences in substantive values be discussed and free critical thinking and (endless) debate be possible.588 Belgian philosopher Patrick Loobuyck argues in the same vein for the need for citizenship education to respect, and aim to realise, the values of freedom, equality and solidarity. These values form an overlapping consensus.589 It is philosopher John Rawls who describes the ‘Overlapping Consensus’ as one of the main ideas of political liberalism.590 However, freedom as a value in itself leads to the fourth caveat. How free is the— democratic—majority of the day to decide on the content of citizenship education? The fourth caveat concerns the dangers of the expression ‘education for democratic citizenship’. Bernard Crick warns that unduly stressing ‘democracy’ in citizenship education ‘can lead to definitional dogmatics about multiple meanings of the term’. Democracy is necessary, but not sufficient. Observing a risk of citizenship education which only accommodates the majorities, Audrey Osler and Hugh Starkey emphasise the essential role of human rights education.591 They note within scholarly work ‘a growing international consensus on human rights as the underpinning principles of EDC’.592 As already explained, Martha Nussbaum also adjusts her idea of 40th anniversary of the consensus, it still has a big importance). Also citizenship education in Austria applies these Beutelsbacher consensus principles; see . 588 B Crick, ‘The Presuppositions of Citizenship Education’ (1999) 33 Journal of Philosophy of Education 337. 589 P Loobuyck, Samenleven met gezond verstand (Polis 2017). On citizenship education, see P Loobuyck, Meer LEF in het onderwijs: levensbeschouwing, ethiek en filosofie voor iedereen (Paul Verbraeken Lezing, VUBPress 2014). 590 J Rawls, Political Liberalism (2005 edn, Columbia University Press 1993), Part II (IV) on the Overlapping Consensus. Applied to the EU: an overlapping consensus on values in Art 2 TEU, see §§ 170 251 . 591 Osler, ‘Human Rights Education: The Foundation of Education for Democratic Citizenship in our Global Age’; Osler and Leung, ‘Human rights education, politics and power’; A Osler, ‘Bringing Human Rights Back Home: Learning from “Superman” and Addressing Political Issues at School’ (2013) 104 The Social Studies 67. Also Osler and Starkey, ‘Fundamental Issues in Teacher Education for Human Rights: a European perspective’. 592 Osler and Starkey, ‘Education for democratic citizenship: a review of research, policy and practice 1995–2005’, 440. See text to nn 186 and 515. CHAPTER 2 Effects of the Charter on EDC/HRE in the Council of Europe legal order 176 patriotic citizenship education to include the constitutional rights of minorities. Bernard Crick aims at a form of democracy in which citizenship education concerns civic virtues and leads to participation (based on an underlying presupposition of civic republicanism).593 Citizenship education should not aim to create a merely law abiding citizen, versed in the constitution and respectful of the rule of law, the law made by the majority. Citizenship education should seek to form the active citizen. When he introduced citizenship education in the English National Curriculum, he wrote in 1998 this (later frequently recited) paragraph: We aim at no less than a change in the political culture of this country both nationally and locally: for people to think of themselves as active citizens, willing, able and equipped to have an influence in public life and with the critical capacities to weigh evidence before speaking and acting; to build on and to extend radically to young people the best in existing traditions of community involvement and public service, and to make them individually confident in finding new forms of involvement and action among themselves.594 Bernard Crick emphasises that ‘an education that creates a disposition to active citizenship is a necessary condition of free societies’. 595 Later UK governments took other approaches to citizenship education. These caveats and critical reflections advanced by scholars with regard to citizenship education in general form the background for further reflection on citizenship education of citizens as EU citizens.596 Section D has shown that taking the Charter on EDC/HRE as an anchor point leaves room for clarifications and caveats from other sources, such as the ICCS and scholarly work.597 These complementary sources on citizenship education display comparable elements to those of the Charter on 593 B Crick, ‘Citizenship: the political and the democratic’ (2007) 55 British Journal of Educational Studies 235, 243. See also text to n 1176. 594 Advisory Group on Citizenship, Education for citizenship and the teaching of democracy in schools: the Crick Report, para 1(5). 595 Crick, ‘The Presuppositions of Citizenship Education’, 343. See also B Crick, ‘Education for Citizenship: the Citizenship Order’ (2002) 55 Parliamentary Affairs 488; and G Biesta, Learning Democracy in School and Society: Education, Lifelong Learning, and the Politics of Citizenship (Sense 2011), on the promotion of democratic agency. 596 Especially when proposing a learning method (Chapter five). 597 Complementary EU sources, as the 2006 and 2018 Recommendation on key competences for lifelong learning and Eurydice 2017 are integrated in Parts two and three. D Law in context—some caveats 177 EDC/HRE, even if they do not always label, describe or categorise them in the same way. The Charter on EDC/HRE remains particularly attractive for my further analysis—as to the substance—because the consensual EDC standards include respect for the autonomy of member states, yet clearly and concisely set out the aims of citizenship education by isolating different components in the last part of the definition (c-1–2–3 in paragraph 2(a)). The Charter also defines the relationship between EDC and HRE. Conclusion to Part one The Charter on EDC/HRE is a reliable anchor point The first challenge when analysing the issue of ‘EU citizenship education’ was to find a neutral and commonly accepted concept of citizenship education in general. The EDC concept and principles of the Charter on EDC/HRE have responded well to this challenge and proven to be a reliable and neutral anchor point. The legal status of the Charter on EDC/HRE is that of a recommendation of the Committee of Ministers of the Council of Europe. While not legally binding, it has potential legal effects for member states within the Council of Europe legal order. It can fulfil an interpretative function as a common European standard of great weight and is an indication of a wide European consensus which may limit the member states’ margin of appreciation in line with ECtHR case law. While the weaknesses of the Charter on EDC/HRE as a formal source have been acknowledged, it also has many strengths. Several factors give it a high degree of normativity. It is legitimate to expect that member states acting in good faith will take EDC standards into account within their domestic legal order. As a substantive source, the Charter is attractive in various ways, and complementary sources have been designated as well. In this study, ‘EDC standards’ refer to the elements of the Charter on EDC/HRE which have been described, i.e. the definition of EDC closely interlinked with HRE, its objectives and principles (including respect for member states’ responsibilities, constitutions and priorities),598 as further developed in other instruments of the Council of Europe normative framework. 74 598 See § 27 . Conclusion to Part one 178 Proposal for recital Based on the conclusion of Part one, the following phrase is suggested as a recital in the preamble of a hypothetical EU legislative act: Whereas a European consensus exists on the need, the concept and principles of education for democratic citizenship and human rights, as expressed in the Council of Europe Charter on Education for Democratic Citizenship (EDC) and Human Rights Education (HRE). This is the first steppingstone in the reasoning of this study. The next step is to apply this common European standard to the situation of EU citizens in EU Member States. For sceptical readers Readers should not necessarily accept all the arguments I have advanced in Chapter two to develop the reasoning of this study (arguments on legal effects, evaluation of strengths, hardening of soft law, and good faith). As a premise for the analysis which follows, it is sufficient to take note of the legal realities described in the introduction and in Chapter one: provisions of the Treaties, the Statute, and the MOU; provisions of the Charter on EDC/HRE (form and substance), and the many Council of Europe instruments referred to in the normative context. Sceptical readers cannot deny their existence. The Recommendation on the Charter on EDC/HRE is part of the legal order of the Council of Europe, of which all EU Member States are members. The various Council of Europe instruments indicate there are commitments to EDC which it would, at least, be politically embarrassing to neglect.599 This is certainly true for EU Member States, which claim to be established democracies (as appears from their constitutional provisions), and for the EU, which seeks to advance democracy and human rights in the wider world and aims to set an example in its external action (Articles 3(5) and 21 TEU). Even if one ignores the legal effects of the Charter on EDC/HRE as discussed in Chapter two and just starts from the text as a neutral standard which is widely accepted in Europe, one cannot avoid asking what this commitment to EDC implies for citizens living in Member States and, ipso facto, in the EU. At the very least, looking at the citizens in the EU through the glasses of another international organisation, namely the Council of Europe, is an interesting exercise. Applying the parameters of the EDC concept to the situation of the EU 75 76 599 Text to n 320. Conclusion to Part one 179 citizen allows for an unprejudiced outsider’s look. If the EU is eager to defend democracy and human rights worldwide, it should be ready for this confrontation. Conclusion to Part one 180 Education for Democratic Citizenship and the European Union PART II Introduction: The schema of modes of reception of exogenic norms EDC standards meet EU law Part two brings together the first and the second anchor point of this study (the concepts of EDC and EU citizenship) from the perspective of EU law. It contains an analysis as to the form: what are the legal status and effects of Council of Europe standards on EDC in the EU legal order? Whereas Part one concerned the Council of Europe legal order, Parts two, three and four address the question of citizenship education of EU citizens within the EU legal order. EU citizenship and the associated rights are set out in the EU Treaties and the Charter of Fundamental Rights of the European Union (hereafter CFR). While the latter is a ‘Charter’ like the Charter on EDC/HRE, the difference between these legal sources is obvious: the CFR is EU primary law, a binding instrument in the EU legal order with the same legal value as the Treaties (highest-ranked norms); the Charter on EDC/HRE is a nonbinding instrument in the Council of Europe legal order. The analysis of the legal status and effects of EU citizenship within the EU legal order is a story which has been told many times. The added value of the study will lie in a combined reading, as to form and substance, of EU law on EU citizenship, democracy and education with Council of Europe standards on EDC. Is this combined reading legitimate from a legal point of view? Part one examined the legal status and potential legal effects of the Charter on EDC/HRE for the EU Member States as member states of the Council of Europe. Part two answers the question of the normative value of Council of Europe standards for the Member States as EU Member States. Should the Recommendation on the Charter on EDC/HRE be taken into account in the EU legal order? Readers with a particular interest in teaching content for EU learning at school could turn immediately to Part three. That Part will analyse the meaning of EDC for EU citizens as to the substance, starting with the Treaties which state that every national of an EU Member State is an EU citizen and that EU citizenship is additional to, and does not replace, national citizenship (Articles 9 TEU and 20(1) TFEU). 77 183 Council of Europe standards on EDC are exogenic to the EU From the viewpoint of the EU, the Charter on EDC/HRE contains norms which are ‘exogenic’ to the EU since this instrument originates in another normative system.600 Twins separated at birth, the EU and the Council of Europe have highly different legal orders.601 None of the legal instruments adopted by the Council of Europe Committee of Ministers, the Parliamentary Assembly, the European Heads of State and Government, or the Ministers of Education, which form the normative context of the Charter on EDC/HRE in Part one, are part of the EU legal order. They do not belong to ‘the law’ of which the ECJ ensures observance (Article 19 TEU). In Câmpean, the referring court asked questions involving the interpretation of recommendations of the Committee of Ministers and resolutions of the Parliamentary Assembly of the Council of Europe. The ECJ declined jurisdiction.602 This also applies to binding exogenic instruments. It is settled case law that ‘the Court has no jurisdiction under Article 267 TFEU to rule on the interpretation of provisions of international law which bind Member States outside the framework of EU law’, such as the European Social Charter.603 The ECHR, a prime example, is not EU law. A fortiori, the Council of Europe Recommendation on the Charter on EDC/HRE does not have this status either, irrespective of its hardened soft law place in le dégradé normatif (as argued in Part one). The ECHR is binding for member states which have ratified it as a matter of public international law but is (as such) not binding on EU Member States as a matter of EU law. In Kamberaj, an Italian court asked whether it should directly disapply domestic law in the case of conflict with the ECHR, without first asking the Italian Constitutional Court. The ECJ held that the fundamental rights guaranteed by the ECHR constitute general principles of EU law (Article 6(3) TEU), but that ‘Article 6(3) TEU does not govern the relationship between the ECHR and the legal orders of the Member States and nor does it lay down the consequences to be drawn by a national court in case of conflict 78 600 Exogenic norms defined in § 23 . 601 G Quinn, ‘The European Union and the Council of Europe on the Issue of Human Rights: Twins Separated at Birth?’ (2001) 46 McGill Law Journal 849. 602 Case C‑200/14 Câmpean ECLI:EU:C:2016:494, para 34, i.a. on CoE Rec 2003(16) of the Committee of Ministers. 603 Case C-117/14 Nisttahuz Poclava v Ariza Toledano ECLI:EU:C:2015:60, para 43, concerning ILO Convention No 158 on the Termination of Employment (Geneva, 22 June 1982) and the ESC (Turin, 18 October 1961); Case C-457/09 Chartry ECLI:EU:C:2011:101, para 21: ‘jurisdiction of the Court is confined to considering provisions of EU law only’. Introduction: The schema of modes of reception of exogenic norms 184 between the rights guaranteed by that convention and a provision of national law.’ Consequently, the national court was not required to directly apply the ECHR provisions, disapplying national law.604 It is settled case law that the ECHR does not constitute a legal instrument formally incorporated into EU law until the EU has acceded to it.605 This is not altered by the fact that two primary law provisions attach important effects to the ECHR in the EU legal order: fundamental rights recognised by the ECHR constitute general principles of EU law (Article 6(3) TEU) and the rights in the CFR which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by the ECHR (Article 52(3) CFR).606 These primary law provisions do not convert the ECHR into EU law, but they give the Convention legal effects in the EU legal order. They function as a pathway from one legal order to the other, allowing the reception of exogenic ECHR norms in the EU legal order. This Part will search for similar pathways in EU law permitting the reception of EDC standards of the Council of Europe and giving them legal effects in the EU legal order. There is no doubt about the starting point for this Part: the EDC standards adopted by the Council of Europe are not EU law. EU law consists of primary law (TEU, TFEU and CFR), international agreements concluded by the EU, secondary law, and ECJ case law. The legal acts of the Union take the form of regulations, directives, decisions, recommendations and opinions, adopted by EU institutions exercising Union competences. In addition to legislative acts (adopted by the legislative procedure), delegated and implementing acts may be adopted (Article 289–291 TFEU). A search for the Charter on EDC/HRE in legal acts in EUR-Lex produces the straightforward answer: ‘no results found’.607 However, that does not mean that EDC standards do not play any role in EU law. 604 Case C‑571/10 Kamberaj ECLI:EU:C:2012:233, paras 59–63. 605 Case C-617/10 REC Åkerberg Fransson ECLI:EU:C:2013:280, para 44. See also Case C-523/12 Dirextra Alta Formazione ECLI:EU:C:2013:831, para 20; EU Accession to the ECHR Opinion 2/13 ECLI:EU:C:2014:2454, para 179; Case C-398/13 P Inuit Tapiriit Kanatami and Others v Commission ECLI:EU:C:2015:535, para 45; Case C‑601/15 PPU N ECLI:EU:C:2016:85, para 45. 606 As the ECJ formulates it in the cited paras ‘whilst ...’. 607 Search for ‘Charter on Education for Democratic Citizenship and Human Rights education’ in legal acts on 15 October 2019. However, EUR-Lex found reference to the Charter in two other documents: the European Parliament Resolution of 13 December 2016 on the situation of fundamental rights in the European Union in 2015 (2018/C 238/01); Council Conclusions on the role of Introduction: The schema of modes of reception of exogenic norms 185 Effects of exogenic norms in the EU legal order: the schema of modes of reception The following analysis will explore the ways in which exogenic norms–– mainly of the Council of Europe––produce effects in the EU legal order. Based on searches in EUR-Lex and ECJ case law, the reception of exogenic norms in the EU legal order can be categorised in various ways. Advocates General quite regularly mention Council of Europe instruments, parties sometimes invoke Council of Europe instruments in observations submitted to the Court, and national judges occasionally ask preliminary questions on them (overlooking the fact that they are not part of EU law). The Court, however, seems reticent about relying on Council of Europe instruments in the grounds and operative parts of judgments. The effects of recommendations of the Committee of Ministers in ECJ case law have to be searched for with a magnifying glass. Yet, they do exist. The schema of modes of reception of exogenic norms in EU law displays a variety of forms and intensity of legal effect. I will argue that acknowledgment by the EU of Council of Europe standards (a commitment in the Memorandum of Understanding608) can occur in six modes of reception: three stronger modes (Chapter three) and three weaker ones (Chapter four). At one end of the spectrum, the EU accedes to Council of Europe conventions (mode 1). At the other end, inspiration is shared, and the two legal orders are linked by de facto cooperation (mode 5). In between, EU law draws on exogenic norms to construct its own general principles (mode 2), refers to the title of Council of Europe instruments (mode 3) or incorporates the substance of Council of Europe norms (mode 4). Judicial interpretation complements these modes of reception to differing extents (mode 6). The ECJ takes Council of Europe norms into account on a contextual, historical, or teleological interpretation of EU law. Yet, in addition to a converging line of case law (consistent interpretation), there is a diverging line where the ECJ’s interpretation differs from the exogenic norms in order to respect the specific objectives or characteristics of EU law. Visualising the modes of reception in a legal landscape, the connections between the legal order of the Council of Europe and that of the EU can take the form of highways but also of mapped secondary roads, tracks, narrow paths and boreens, and even of hidden lanes and underground pas- 79 young people in building a secure, cohesive and harmonious society in Europe [2018] OJ C195/13 (see n 779 and 781). See for the ECtHR n 321. 608 Text to n 140. Introduction: The schema of modes of reception of exogenic norms 186 sages. Through the landscape runs a red line which must not be crossed: the autonomy of the EU legal order. The EU has specific features and pursues specific objectives. What then are the implications for the reception of the Charter on EDC/HRE? Relevance of the schema The schema of modes of reception of exogenic norms in the EU legal order, introduced in Part two as a second step in the reasoning of the study, is important for several reasons. Firstly, in the analysis as to the form, the schema will clarify the effects of the Council of Europe EDC standards in the EU legal order de lege lata. Each mode of reception will first be explained in general terms (with examples in various fields) and thereafter analysed as to its specific relevance for EDC standards. The place of the Recommendation on the Charter on EDC/HRE in the schema will be examined. Since in the Memorandum of Understanding (MOU), the EU recognises that the ‘Council of Europe will remain the benchmark for human rights, the rule of law and democracy in Europe’, the question is what form this recognition takes in the EU legal order. If the EU and the Council of Europe have committed to ‘acknowledge each other’s experience and standard-setting work, as appropriate, in their respective activities’,609 what does the EU consider appropriate with regard to EDC standards? It is important to understand what legal form the ‘acknowledgment’ of EDC standards by the EU currently takes. Moreover, effectiveness calls for a strong mode of reception of EDC standards, since they are named among the shared priorities and focal area for cooperation.610 The reception of Council of Europe standards in other fields may provide precedents for EDC standards, uncover options for future EU action, and suggest which avenues can be taken de lege ferenda. Secondly, the schema proposed applies equally to exogenic norms originating at UN level, norms which are highly relevant for EU citizenship education, such as the international agreements including the right to education (third anchor point) and UN standards on education for democracy, and which are used in Parts three and four.611 The same normative reception mechanisms and effects in the interpretation apply to different types of exogenic norms. 80 609 MOU, para 12. 610 MOU, para 14. 611 Relevant for ‘quality education’ as a Treaty concept (§ 284 ). Introduction: The schema of modes of reception of exogenic norms 187 Thirdly, the schema paves the way for the analysis of competences in Part four. Given the limited competence of the EU with regard to education and the respect for Member State autonomy, many educational norms stem from outside the EU and take the form of non-binding legal instruments. The Recommendation on the Charter on EDC/HRE is just one of many examples. EU legislative acts in the field of education frequently express a general intention to cooperate with the Council of Europe yet leave the legal effect of norms resulting from this cooperation unexplained. The proposed reception schema provides an overview of possible effects. Some modes are not mutually exclusive but overlap. Yet, distinguishing them sheds light on the relationship between the Council of Europe and the EU legal order and, importantly, shows the differing impact on Member State educational autonomy. The discretionary power of Member States to regulate education is not unlimited. According to settled case law, ‘the fact that a matter falls within the competence of the Member States does not alter the fact that, in situations covered by European Union law, the national rules concerned must have due regard to the latter’.612 This settled case law applies with regard to national rules on personal names, on direct taxation, or in the sphere of criminal legislation and procedure.613 It is therefore legitimate to reason that it also applies to national rules on citizenship education. The schema of modes of reception will clarify which EU law Member States must have due regard to. Finally, the EU legal order is not a closed system operating in a vacuum, but part of a network of interacting legal orders. The schema will indicate that what matters for Member States is not the binding or non-binding character of exogenic norms on EDC in their original legal order, but rather their effects in the EU legal order. For these reasons, the schema of modes of reception of exogenic standards in the EU legal order remains relevant throughout the study. The schema may also be of interest as a general analysis of the way 612 Case C-135/08 Rottmann ECLI:EU:C:2010:104, para 41 (with cited case law in the sphere of criminal legislation and the rules of criminal procedure; law governing a person’s name; national rules relating to direct taxation; national rules determining the persons entitled to vote and to stand as candidates in elections to the European Parliament; para 45 for the field of nationality). Further i.a. n 2408. 613 See § 323 , Case C‑650/13 Delvigne ECLI:EU:C:2015:648 (§ 221 ); AG Poiares Maduro in Case C-135/08 Rottmann ECLI:EU:C:2010:104, para 20, with regard to nationality. Introduction: The schema of modes of reception of exogenic norms 188 exogenic standards are received in the EU legal order, taking EDC standards as a case study. Introduction: The schema of modes of reception of exogenic norms 189 Stronger modes of reception of exogenic norms in the EU legal order Accession of the EU to conventions (mode 1) General After EU accession, conventions are an integral part of EU law EU accession to conventions is the highway via which exogenic norms enter the EU legal order. International agreements which the EU concludes or to which the EU accedes, become binding upon the EU institutions and the Member States by virtue of Article 216(2) TFEU, and therefore are an integral part of EU law.614 The ECJ can answer preliminary questions on interpretation and on validity.615 In the hierarchy of norms, international agreements concluded by the EU rank below primary law and above secondary law. Pursuant to primary law, they must respect fundamental rights616 and ‘cannot affect the allocation of powers fixed by the Treaties or, consequently, the autonomy of the EU legal order, observance of which is ensured by the Court’.617 Even on the highway (and especially there), the red line is thus protected. International agreements concluded by the EU prevail over secondary law and may affect the validity of acts of the institutions, subject to certain conditions. As far as possible, consistent interpretation is sought. As is well-known, individuals can rely on the provisions CHAPTER 3 A 1. 81 614 EU Accession to the ECHR Opinion 2/13 ECLI:EU:C:2014:2454, paras 179–180, with case law. 615 See Art 218 TFEU (procedure for the conclusion of international agreements by the Council); and Case 181-73 Haegeman ECLI:EU:C:1974:41, para 5; Case C‑533/08 TNT Express Nederland ECLI:EU:C:2010:243, para 59. 616 Joined Cases C‑584/10 P, C‑593/10 P and C‑595/10 P Commission v Kadi ECLI: EU:C:2013:518, para 22. 617 EU Accession to the ECHR Opinion 2/13 ECLI:EU:C:2014:2454, para 201, see conditions in paras 160–162. Art 6(2) TEU (‘Such accession shall not affect the Union’s competences as defined in the Treaties’); Protocol (No 8) relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms [2012] OJ C326/273, Art 1 and 2. See also Joined Cases C-402/05 P and C-415/05 P Kadi ECLI:EU:C:2008:461, para 282. Further AG Kokott on Opinion 2/13, para 201. 191 of an international agreement concluded by the EU if those provisions have direct effect (clear, precise, and unconditional) and if this is compatible with the spirit and general scheme of the agreement.618 Few examples The highway is quite empty. To the disappointment of various authors, the EU has not been very active in pursuing accession to conventions drafted within the ambit of the Council of Europe.619 Even where the Treaty provides that the EU ‘shall accede’ to the ECHR (Article 6(2) TEU), the process appears to be complex, with clear concerns not to cross the red line.620 Two cases illustrate the legal effects of exogenic standards resulting from conventions. In 1978, the EEC acceded to 1976 European Convention on the Protection of Animals kept for Farming Purposes.621 In Compassion in World Farming, the ECJ confirmed that this Convention had become an integral part of the Community legal order and tested the validity of an EU directive for consistency with its provisions.622 It is interesting that in so doing the Court also took into account a recommendation adopted by a body 82 618 I.a. Joined Cases 21 to 24-72 International Fruit Company ECLI:EU:C:1972:115, para 20; Case 12/86 Demirel ECLI:EU:C:1987:400, para 14; Case C-280/93 Germany v Council ECLI:EU:C:1994:367, para 105; Case C‑354/13 FOA (Fag og Arbejde) ECLI:EU:C:2014:2463, para 53. Lenaerts and Van Nuffel, European Union Law, 864; J Klabbers, ‘Straddling the Fence: The EU and International Law’ in D Chalmers and A Arnull (eds), The Oxford Handbook of European Union Law (Oxford University Press 2015). 619 Joris and Vandenberghe, ‘The Council of Europe and the European Union: Natural Partners or Uneasy Bedfellows’, 31–33 (out of 46 conventions allowing for accession, 11 were ratified by the EC in 2008); see also Cornu, ‘The impact of Council of Europe Standards on the European Union’. On 15 October 2019, within the list of the 225 CoE treaties, 55 treaties allowed the EU to accede (source in n 121). Some were signed by the EU, i.a. the CoE Convention on preventing and combating violence against women and domestic violence (Istanbul); also treaties in the field of crime and terrorism, broadcasting by satellite, or animal protection (see ). 620 EU Accession to the ECHR Opinion 2/13 ECLI:EU:C:2014:2454, widely commented by scholars. 621 European Convention on the Protection of Animals kept for Farming Purposes (adopted on 10 March 1976 within the ambit of the CoE), approved by Council Decision 78/923/EEC of 19 June 1978 [1978] OJ L323/12. All Member States had become parties. 622 Case C-1/96 Compassion in World Farming ECLI:EU:C:1998:113, para 31 (about Directive 91/629). See also Case C-189/01 Jippes ECLI:EU:C:2001:420, on stan- CHAPTER 3 Stronger modes of reception of exogenic norms in the EU legal order 192 established under the Convention to ensure the implementation of the Convention principles.623 In the mode of EU accession to international agreements, non-binding instruments, such as the recommendations of specific bodies set up under these agreements, acquire legal status in EU law.624 In 1994, the EU ratified the 1964 Convention on the Elaboration of a European Pharmacopoeia.625 The European Pharmacopoeia is a reference work of pharmaceutical standards drawn up under the auspices of the Council of Europe. EU directives made the European Pharmacopoeia texts legally binding for the issuing of marketing authorisations, including in their regularly updated form (‘dynamic reference’, necessary for the quality control of medicines).626 In Novartis Pharmaceuticals, the ECJ used these standards in a preliminary ruling to interpret concepts.627 dards of the International Office of Epizootics (IOE) and the International Animal Health Code (ninth edition, 2000). 623 Case C-1/96 Compassion in World Farming ECLI:EU:C:1998:113, paras 6, 35–36, on recommendations of the Standing Committee. 624 Case C-188/91 Deutsche Schell ECLI:EU:C:1993:24, para 17: ‘Since measures emanating from bodies which have been established by an international agreement of that type, and which have been entrusted with responsibility for its implementation, are directly linked to the agreement which they implement, they form part of the Community legal order’; Opinion of AG Van Gerven, para 10: not the binding force of the act is decisive, but the direct connection between the act and the international agreement concluded by the Community. See also Opinion of AG Léger in Case C-1/96 Compassion in World Farming ECLI:EU:C:1998:113, para 128. 625 Convention on the Elaboration of a European Pharmacopoeia, ETS No 50 (22 July 1964) and Protocol ETS No 134; Council Decision of 16 June 1994 accepting, on behalf of the European Community, the Convention on the elaboration of a European Pharmacopoeia [1994] OJ L158/17. 626 9th edition in 2016. 627 Dir 2001/82–83/EC; Case C-106/01 Novartis Pharmaceuticals ECLI:EU:C:- 2004:245, paras 36–39. Before the EU in 1994 acceded to the 1964 Convention on the Elaboration of a European Pharmacopoeia, directives of the European Commission already referred to the European Pharmacopoeia by title (mode 3, below). The ECJ interpreted concepts in EU legislation accordingly. A Accession of the EU to conventions (mode 1) 193 Indirect relevance of accession to conventions for Education for Democratic Citizenship UN conventions The first mode of reception of exogenic norms into the EU legal order has limited direct relevance for EDC standards, which are––at present––not drawn up in conventions. However, some indirect effects may be deduced by analogy with convention effects. At UN level, international agreements containing important norms on education have been signed and ratified by all the EU Member States, but not by the EU: the 1960 Convention Against Discrimination in Education (CADE), the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), and the 1989 Convention on the Rights of the Child (CRC).628 The European Parliament has called on the Commission to explore ways for the EU to accede to the CRC.629 It is worth noting the conclusion by the European Community of the 2006 UN Convention on the Rights of Persons with Disabilities.630 In Article 24(1) of this Convention, States Parties recognise the right of persons with disabilities to education. With a view to realising this right without discrimination and based on equal opportunity, States ‘shall’ ensure an inclusive education system directed to … ‘[e]nabling persons with disabilities to participate effectively in a free society’ (Article 24(1)(c)). As a result of the conclusion of this convention, this provision has become an integral part of EU law. However restricted this provision may seem in terms of its scope, its meaning for education in general is important when seen in the broader context of international agreements binding on Member States. The wording of Article 24(1) of the Convention on the Rights of Persons 2. 83 628 See n 443. The new Member States which acceded in 2004, 2007 and 2013 are also bound by these conventions. State parties at . For for indirect legal effects, see Intertanko, § 100 . 629 European Parliament Resolution of 27 November 2014 on the 25th anniversary of the UN Convention on the Rights of the Child [2016] OJ C289/57, para 38. 630 Convention on the Rights of Persons with Disabilities (adopted 13 December 2006 A/RES/61/106, entry into force 3 May 2008); Council Decision of 26 November 2009 concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities [2010] OJ L23/35. To note, the EU has concluded some international agreements in the education field, but without specific consequences for citizenship education, e.g. Agreement between the European Community and the United States of America renewing a programme of cooperation in higher education and vocational education and training [2006] OJ L346/34. CHAPTER 3 Stronger modes of reception of exogenic norms in the EU legal order 194 with Disabilities on the right to education replicates the terms used with regard to the right to education in Article 13 of the 1966 ICESCR (Covenant ratified by all Member States, not by the EU). Both Article 24 of the Convention and Article 13 of the Covenant include an obligation for States Parties: they shall ensure an education system ‘directed to’ (i.a.) enabling ‘to participate effectively in a free society’. Given the similarity in the wording, it can be indirectly inferred from the EU’s conclusion of the Convention on the Rights of Persons with Disabilities that the EU adheres to the basic aims of education as expressed in the Article 13 of the ICESCR.631 If it is part of EU law that the right to education includes the right for children with disabilities to an education directed to enabling effective participation in a free society, this must also be true for children without disabilities. This confirms the importance of the third anchor point of the study. Recognising a right to education directed to effective participation in a free society will have consequences when applied to the situation of the EU citizen.632 European conventions At European level, several conventions laying down educational standards have not been acceded to by the EU. The 2005 Council of Europe Convention on the Prevention of Terrorism is indirectly relevant, as it contains an obligation for Member States to take ‘appropriate measures’ in the field of education to prevent terrorist offences. If this provision is interpreted by taking account of other Council of Europe instruments, EDC and HRE are a necessary part of such measures.633 However, while all EU Member States signed this Convention, not all ratified it. The EU signed the Convention, without ratifying it.634 Thus it is not a part of EU law which Member States have to respect. 84 631 The ‘programmatic’ nature of provisions in the Convention on the Rights of Persons with Disabilities (Case C‑363/12 Z ECLI:EU:C:2014:159, para 88) does not detract from this conclusion. 632 Parts three and four. 633 CoE Convention on the Prevention of Terrorism CETS No 196 (Warsaw, opened 16 May 2005, entered into force 1 June 2007), Art 3(1): ‘Each Party shall take appropriate measures, particularly in the field of training of law enforcement authorities and other bodies, and in the fields of education, culture, information, media and public awareness raising, with a view to preventing terrorist offences and their negative effects while respecting human rights obligations’; explanatory memorandum paras 58. CoE action to take into account, see § 37 . 634 No ratification by BE, EL, IA, UK. Signature by the EU on 22 October 2015; Council Decision (EU) 2015/1913 of 18 September 2015 on the signing, on A Accession of the EU to conventions (mode 1) 195 The European Social Charter (ESC) is the convention on economic and social rights complementing the ECHR (which provides for civil and political rights). It is acknowledged to be the social constitution for Europe.635 Neither the ESC (1961), nor the Revised ESC (1996) are open for signature by the EU. The Revised ESC was signed but not ratified by all Member States.636 The European Convention on the Exercise of Children's Rights was not signed or ratified by all Member States; it is open to the EU but has not been signed.637 The 1997 Convention on the Recognition of Qualifications concerning Higher Education in the European Region, concluded in the ambit of the Council of Europe and jointly drafted with UNESCO, was signed and ratified by all EU Member States, except for Greece. Although it is open for signature by the EU, the EU has not become a party to it.638 It can be concluded that the first mode of reception of Council of Europe norms into the EU legal order is not directly relevant to the EDC issue. Yet, in the future this may change. The opinion has been voiced within the Council of Europe that the Recommendation on the Charter behalf of the European Union, of the Council of Europe Convention on the Prevention of Terrorism (CETS No 196) [2015] OJ L280/22. 635 CoE Secretary General, State of democracy, human rights and the rule of law— a security imperative for Europe. Report 2016, 84. 636 European Social Charter ETS No 35 (Turin, opening 18 October 1961, entry into force 26 February 1965); European Social Charter (revised) ETS No 163 (Strasbourg, opening 3 May 1996, entry into force 1 July 1999), not ratified by CZ, DE, DK, ES, HR, LU, PL, and UK. See also Opinion of the Secretary General of the Council of Europe on the European Union initiative to establish a European Pillar of Social Rights (Strasbourg, 2 December 2016), 7: all EU Member States acceded to the treaty system of the CoE ESC, ratifying either the 1961 ESC or the 1996 revised ESC, yet with differing degrees of commitment. More in CoE European Committee of Social Rights, The relationship between European Union law and the European Social Charter (Working Document, 2014), appendix 1, for acceptance of specific provisions of the revised ESC by Member States (‘à la carte’ ratification system: States may choose the provisions they accept as binding international legal obligations). 637 European Convention on the Exercise of Children's Rights ETS No 160 (Strasbourg, opening 25 January 1996, entry into force 1 July 2000). 638 Convention on the Recognition of Qualifications concerning Higher Education in the European Region ETS No 165 (Lisbon, opening 11 April 1997, entry into force 1 February 1999), jointly drafted by the Coe and UNESCO, aiming replace six earlier conventions. Compare, e.g., European Agreement on the Instruction and Education of Nurses ETS No 59 (Strasbourg, opening 25 October 1967, entry into force 7 August 1969), not signed by all Member States, not open to the EU. CHAPTER 3 Stronger modes of reception of exogenic norms in the EU legal order 196 on EDC/HRE should become a convention. If this happens, the question which arises is whether the EU will be invited and willing to accede. However, it seems unlikely that any such steps will be taken soon, given the significance of education as an expression of Member State sovereignty. General principles of EU law (mode 2) General Genesis of general principles Another strong mode of reception of exogenic norms are the general principles of EU law. They provide an attractive expressway in the legal landscape but are only recommended in the absence of other roads and for courageous drivers. For a long time, the ECJ has fed the fundamental rights of the ECHR into the EU legal order as general principles of EU law, case law which is codified in Article 6(3) TEU.639 Occasionally, the ECJ has also drawn on other exogenic human rights instruments to find (construct) general principles, such as the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the (Revised) ESC, or International Labour Organisation Conventions.640 The question then arises as to what extent the ECJ is ready to draw inspiration from nonbinding exogenic instruments, such as recommendations of the Council of Europe. Case law reveals two formulae: the ECJ draws inspiration from the guidelines supplied ‘by international treaties for the protection of human rights’641 (first formula) or ‘by international instruments for the protection B 1. 85 639 Case 29-69 Erich Stauder v City of Ulm - Sozialamt ECLI:EU:C:1969:57, para 7; Case 11-70 Internationale Handelsgesellschaft ECLI:EU:C:1970:114, para 4; Case 4-73 Nold ECLI:EU:C:1974:51, para 13; Joined Cases C-402/05 P and C-415/05 P Kadi ECLI:EU:C:2008:461, para 283; EU Accession to the ECHR Opinion 2/13 ECLI:EU:C:2014:2454, para 37. 640 E.g. Case 149/77 Defrenne III ECLI:EU:C:1978:130, paras 26–28; Case C-540/03 Parliament v Council ECLI:EU:C:2006:429, paras 37, 57. Indirectly, Case C-144/04 Mangold ECLI:EU:C:2005:709, paras 74–75 (refers to the preamble of Dir 2000/78 establishing a general framework for equal treatment in employment and occupation, which itself refers in recital 4 to, i.a., the UDHR and the ICESCR. See Craig and de Búrca, EU Law: Text, Cases, and Materials 386. 641 Case C-260/89 ERT ECLI:EU:C:1991:254, para 41; Case C-274/99 P Connolly ECLI:EU:C:2001:127, paras 37–38; Case C-94/00 Roquette Frères ECLI:EU:C: 2002:603, para 23; Case C-112/00 Schmidberger ECLI:EU:C:2003:333, para 71; B General principles of EU law (mode 2) 197 of human rights on which the Member States have collaborated or to which they are signatories’642 (second formula). The ECJ did, for example, rely on the CFR before it became binding on 1 December 2009.643 The ECJ also draws inspiration from the constitutional traditions common to the Member States in order to establish general principles. Significant legal effects The legal effects of general principles of EU law are significant. In the hierarchy of norms, they are generally recognised as having constitutional status.644 They are part of ‘the law’ of which the ECJ ensures observance (Article 19 TEU). EU law and national law falling within the scope of EU law are to be interpreted consistently with general principles. The infringement of general principles may result in the annulment or invalidity of EU measures. Within the substantive scope of EU law, Member State measures which fail to respect general principles must be set aside, as national courts must ensure the full effectiveness of EU law. Liability in damages may arise in some cases.645 86 Case C-36/02 Omega Spielhallen ECLI:EU:C:2004:614, para 33; EU Accession to the ECHR Opinion 2/13 ECLI:EU:C:2014:2454, para 37. 642 Case C-540/03 Parliament v Council ECLI:EU:C:2006:429, paras 35–7 (the Court confirms that the ICESCR and the CRC are ‘international instruments for the protection of human rights of which it takes account in applying the general principles of Community law’); Case C-244/06 Dynamic Medien ECLI:EU:C: 2008:85, paras 39–40 (on CRC); Case C-305/05 Ordre des barreaux francophones et germanophone et autres ECLI:EU:C:2007:383, para 29 (on ECHR); Case C-229/05 P PPK and KNK ECLI:EU:C:2007:32, para 76 (on ECHR); Joined Cases C-402/05 P and C-415/05 P Kadi ECLI:EU:C:2008:461, para 283 (referring to UN Charter and Resolutions). 643 Case C-244/06 Dynamic Medien ECLI:EU:C:2008:85, para 41. Further HCH Hofmann and BC Mihaescu, ‘The Relation between the Charter's Fundamental Rights and the Unwritten General Principles of EU Law: Good Administration as the Test Case’ (2013) 9 European Constitutional Law Review 73. 644 T Tridimas, The General Principles of EU Law (Oxford University Press 2006), 6; Lenaerts and Van Nuffel, European Union Law 853 (on Treaty principles as sincere cooperation, conferral, subsidiarity, proportionality, or non-discrimination); Case C-282/10 Dominguez ECLI:EU:C:2012:33, Opinion of AG Trstenjak, para 95. 645 Arts 263 and 267 TFEU. For legal effects, see i.a. Case C-144/04 Mangold ECLI: EU:C:2005:709, paras 77–78; Case C-555/07 Kücükdeveci ECLI:EU:C:2010:21, paras 51–54, with cited case law. Further Tridimas, The General Principles of EU Law 29 ff; K Lenaerts and JA Gutiérrez-Fons, ‘The constitutional allocation of powers and general principles of EU law’ (2010) 47 CMLRev 1629, 1636 (consistent interpretation), 1650 (damages); Lenaerts and Van Nuffel, European CHAPTER 3 Stronger modes of reception of exogenic norms in the EU legal order 198 The bold proposition of a general principle on Education for Democratic Citizenship Arguments in favour Common fundamental principles To consider EDC standards to be general principles of EU law is a bold proposition.646 Several arguments militate in favour of this proposition and will first be explained (a). However, because there are strong counterarguments, to be explained afterwards, the proposition will not be adopted (b). EDC standards do not satisfy the definition of general principles as ‘unwritten principles, recognised by the European Court of Justice, that have the status of higher law by the fact that they may be invoked as a standard for the review of Community acts’.647 Neither ‘education for democratic citizenship’ nor ‘citizenship education’ appear in ECJ case law.648 Yet, EDC standards could be labelled ‘general principles’ defined as ‘the fundamental provisions of unwritten primary EU law which are inherent in the legal order of the European Union itself or are common to the legal orders of the Member States’.649 EDC standards display several of the attributes which Tridimas describes as necessary for the elevation of a standard to the status of ‘a general principle’, inter alia ‘to enjoy a degree of wide acceptance, i.e. represent “conventional morality”’.650 The broad European consensus on EDC standards—standards moreover of great weight linked with the values of democracy, rule of law and human rights —is demonstrated in Part one. Throughout the four phases of the EDC project, instruments in the Council of Europe legal order show that EDC 2. 87 Union Law 851; C Semmelmann, ‘General Principles in EU Law between a Compensatory Role and an Intrinsic Value’ (2013) 19 ELJ 457, 459: ‘the wellknown trouble with general principles as creatures intra ius yet extra legem’. 646 Cf Opinion of AG Mazák in Case C-411/05 Palacios de la Villa ECLI:EU:C:2007: 604, para 89: considering the principle of non-discrimination on grounds of age as a general principle of EU law is ‘a bold proposition’. 647 B de Witte, ‘Institutional Principles: A Special Category of General Principles of EC Law’ in U Bernitz and J Nergelius (eds), General Principles of European Community Law (Kluwer Law International 2000) 143. 648 Search on 15 October 2019. 649 M Schweitzer, W Hummer and W Obwexer, Europarecht: das Recht der Europäischen Union (Manz 2007) 65. 650 Tridimas, The General Principles of EU Law 26. B General principles of EU law (mode 2) 199 standards are accepted by member states as general principles with applications in diverse fields.651 Guidelines supplied by international treaties and instruments for the protection of human rights Inspiration can be drawn from the guidelines supplied by international treaties for the protection of human rights (first formula in ECJ case law) and certainly from international instruments for the protection of human rights (second formula).652 As to the first formula, several treaties are relevant. Inspiration for a general principle of EDC can be found in the International Covenant on Economic, Social and Cultural Rights (ICESCR) and in the Convention on the Rights of the Child (CRC). Based on the UDHR (Article 26(2)), the provisions on the right to education in the ICESCR (Article 13(1)) and the CRC (Article 29(1)) stipulate that education ‘shall be directed to’ internationally agreed aims.653 Education shall, i.a., enable all persons to participate effectively in a free society, develop respect for human rights and fundamental freedoms, and prepare for responsible life in a free society. EDC and HRE are direct responses to these compulsory educational aims. This is also evidenced by their expression and their development in UN instruments on education for democracy and human rights education.654 EDC and HRE are crucial, in one form or another (in accordance with State priorities and constitutions), to the achievement of these educational aims. At the core of a general principle on EDC would be the need for EDC and HRE to reflect the compulsory educational aims of the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child, and the core components of EDC and HRE which, by consensus, develop these aims (such as in paragraph 2 of the Charter on EDC/HRE). It is to this core of EDC standards that I am referring when I use the expression ‘a general principle of EDC’. As explained 88 651 Text to n 222 ff, 228 ff, 247 ff, 266 ff, 278 ff. 652 Formulas in text to nn 641-642. 653 See n 81-82. The 1996 Revised European Social Charter echoes some of them in Art 17: ‘the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities’; further Art 7 and 10. See also the aims in the UN Convention on the Rights of Persons with Disabilities, text to n 630. 654 §§ 285 294 . CHAPTER 3 Stronger modes of reception of exogenic norms in the EU legal order 200 above, the use in this study of the term ‘EDC’ automatically implies HRE as well.655 As to the second case law formula on general principles, inspiration can be drawn from ‘the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories’, in this case the Recommendation on the Charter on EDC/HRE.656 One of the requirements established in case law for general principles is their fundamental importance.657 Against the backdrop of the dramatic consequences of education under totalitarian regimes and two World Wars, the authors of the provisions in international agreements on the right to education adopted compulsory educational aims which they considered pivotal for all human rights and society at large. Given their fundamental importance, the international (UN) and regional (Council of Europe) instruments which develop these aims further to include education for democracy and human rights education, arguably supply guidelines for a general principle of EDC/HRE in the EU legal order. In addition to the Charter on EDC/HRE—used as a reference instrument—the many other legal instruments described in the normative context in Part one provide further support. Constitutional traditions common to the Member States Alongside international guidelines, the common constitutional traditions of the Member States (Article 6(3) TEU) arguably also constitute a source for a general principle of EDC. An exhaustive analysis of constitutional law in all the Member States (including historical understanding, constitutional practice and case law) is impossible in the framework of this study. However, for the purposes of this study, sufficient indications can be drawn from the text of the constitutions.658 89 655 Text to n 181 ff. 656 See normative context (§ 85 ff) and participation in all organs (§ 162). 657 Case C-282/10 Dominguez ECLI:EU:C:2012:33, Opinion of AG Trstenjak, para 99. 658 More in P Häberle, Verfassungslehre als Kulturwissenschaft (2nd edn, Duncker und Humblot 1998); A Tschentscher, ‘Comparing Constitutions and International Constitutional Law: A Primer’ (10 February 2011) ; LFM Besselink and others (eds), Constitutional Law of the EU Member States (Kluwer 2014). B General principles of EU law (mode 2) 201 Provisions on democracy are to be found in all Member State constitutions, expressed in various terms.659 They should be interlinked with standards on democracy, including the EDC standards to which all Member States are committed in the international context. A common constitu- 659 Some fragments of Member State constitutions (non-exhaustive; English translations as provided in database or ): Austria Art 1 ‘Austria is a democratic republic. Its law emanates from the people’; Czech Republic Art. 1(1) ‘The Czech Republic is a sovereign, unitary and democratic, law-abiding State, based on respect for the rights and freedoms of man and citizen’; Art 2(1) ‘The people are the source of all power in the State; they exercise it through bodies of legislative, executive and judiciary powers.’; CZ Charter of Fundamental Rights and Basic Freedoms (part of the constitutional system, see Art 112 Constitution) Art 2(1) ‘Democratic values constitute the foundation of the state, so that it may not be bound either to an exclusive ideology or to a particular religious faith’; Finland Section 2 Democracy and the rule of law: ‘The powers of the State in Finland are vested in the people, who are represented by the Parliament. Democracy entails the right of the individual to participate in and influence the development of society and his or her living conditions’; France Art 1 ‘La France est une République indivisible, laïque, démocratique et sociale’; Art 2 ‘La devise de la République est « Liberté, Égalité, Fraternité ». Son principe est : gouvernement du peuple, par le peuple et pour le peuple’; Art 3 ‘La souveraineté nationale appartient au peuple qui l’exerce par ses représentants et par la voie du référendum’; Germany Art 20 ‘(1) The Federal Republic of Germany is a democratic and social federal state. (2) All state authority is derived from the people.); Greece Art 1 ‘2. Popular sovereignty is the foundation of government. 3. All powers derive from the People and exist for the People and the Nation’; Art 120(2) ‘Respect towards the Constitution and the law concurrent thereto, and devotion to the Fatherland and to Democracy constitute a fundamental duty of all Greeks’; Hungary Article B (1) ‘Hungary shall be an independent, democratic rule-of-law State’; (3) ‘The source of public power shall be the people.’ (4) ‘The power shall be exercised by the people through elected representatives or, in exceptional cases, directly’; Latvia Art 1 ‘Latvia is an independent democratic republic’; Art 2 ‘The sovereign power of the State of Latvia is vested in the people of Latvia’; Poland Art 2 ‘The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice’; Romania Art 1 (3) ‘Romania is a democratic and social State governed by the rule of law, in which human dignity, the citizens’ rights and freedoms, the free development of human personality, justice and political pluralism represent supreme values and shall be guaranteed’; Art 2(1) ‘National sovereignty resides with the Romanian people, who shall exercise it through its representative bodies and by referendum’; Sweden Instrument of Government Art 1 ‘All public power in Sweden proceeds from the people. Swedish democracy is founded on the free formation of opinion and on universal and equal suffrage. It is realised through a representative and parliamentary form of government and through local self-government’. CHAPTER 3 Stronger modes of reception of exogenic norms in the EU legal order 202 tional tradition in respect of education can be deduced from a comparative analysis of provisions on the right to education in national constitutions, displaying ‘a great uniformity’.660 Several elements of the right to education in international agreements (ICESCR and CRC) recur, such as a right dimension and a freedom dimension; equal access for all, free of charge and compulsory up to a certain level; guarantees for the rights of parents; or some state supervision.661 Importantly, several national constitutions encompass and develop the aims of education provided for in international agreements, and here direct congruency can be observed with EDC standards. The Portuguese Constitution adds with regard to the right to education that ‘[t]he state shall promote the democratisation of education … to contribute to … the development of the personality and the spirit of tolerance, mutual understanding, solidarity and responsibility, to social progress and to democratic participation in collective life.’662 The Spanish Constitution specifies that ‘[e]ducation shall aim at the full development of human personality with due respect for the democratic principles of coexistence and for basic rights and freedoms’.663 The Greek Constitution states that ‘[e]ducation constitutes a basic mission for the State and shall aim at …their formation as free and responsible citizens’.664 The Latvian Constitution provides in the chapter on ‘fundamental human rights’ that 660 G Gori, Towards an EU Right to Education (European Monographs 28, Kluwer Law International 2001) 321. See also G Gori, ‘Article 14: Right to Education’ in S Peers and others (eds), The EU Charter of Fundamental Rights: a Commentary (Hart 2014) 413. 661 See elements of the right to education i.a. in Constitution of Bulgaria Arts 23 and 53; Croatia Arts 64, 66–68; Cyprus Art 20; CZ Charter of Fundamental Rights and Basic Freedoms Art 33; Denmark § 76; Estonia § 37–38; Finland Section 16; Germany Art 7, also Art 5; Hungary Arts X-XI (i.a. X(3) ‘Higher education institutions shall be autonomous in terms of the content and the methods of research and teaching’); Italy Art 33–34; Lithuania Arts 40–42; Luxembourg Art 23 (Constitution under revision); Malta Art 9–11; Poland Arts 33 and 70; Romania Art 32; Slovakia Art 42; Sweden Art 18. See also constitutions mentioned in other footnotes. 662 Art 73(2). See also Art 70 (1) and (2) on the aim ‘to ensure the effective fulfilment of their economic, social and cultural rights’ and ‘effective integration into the active life, ... and a sense of community service’, and Art 77(1) on democratic participation in education. 663 Art 27(2); see also (5) on partipation of all parties (as in Charter on EDC/HRE). 664 Art 16(2): ‘Education constitutes a basic mission for the State and shall aim at the moral, intellectual, professional and physical training of Greeks, the development of national and religious consciousness and at their formation as free and responsible citizens.’. B General principles of EU law (mode 2) 203 ‘[e]veryone has the right to know about his or her rights’665, which is like HRE and the concept of EDC in component (c-3). In the Austrian constitution ‘[d]emocracy, humanity, solidarity, peace and justice as well as openness and tolerance towards people are the elementary values of the school’. In addition to values, the aim is to develop independent judgement, social understanding, and attitudes of openness, as well as ensuring citizens are ‘capable to participate in the cultural and economic life of Austria, Europe and the world and participate in the common tasks of mankind, in love for freedom and peace’666, all of which is comparable to the EDC aim of empowering citizens to value diversity and to participate (parameters c-2–3). None of the constitutions which contain provisions directly related to citizenship education, deviate from EDC standards. The constitutional provisions on the promotion of the ideals of democracy667, 665 Latvian Constitution Arts 112 and 90. 666 Constitution of Austria Art 14(5a) ‘Democracy, humanity, solidarity, peace and justice as well as openness and tolerance towards people are the elementary values of the school (…) let them become healthy, self-confident, happy, performance-oriented, dutiful, talented and creative humans capable to take over responsibility for themselves, fellow human beings, environment and following generations, oriented in social, religious and moral values. Any juvenile shall in accordance with his development and educational course be led to independent judgement and social understanding, be open to political, religious and ideological thinking of others and become capable to participate in the cultural and economic life of Austria, Europe and the world and participate in the common tasks of mankind, in love for freedom and peace’; also Art 14(6). On values, see Belgium Art 24 (3–4) on moral education and equality; Romania, new Art 32 on access to culture (2) ‘A person’s freedom to develop his/her spirituality and to get access to the values of national and universal culture shall not be limited’; and Luxembourg proposal for new constitution (tr) Art 33 (1) Every person has the right to education, (3) Freedom of education shall be exercised respecting the values of democratic society founded on fundamental rights and public freedoms. 667 Sweden Instrument of Government Art 2 ‘the public institutions shall secure the right to employment, housing and education (…) The public institutions shall promote the ideals of democracy as guidelines in all sectors of society … The public institutions shall promote the opportunity for all to attain participation and equality in society and for the rights of the child to be safeguarded’. See also France, preamble to the Constitution of 1946 (actual constitutional value), para 18: Faithful to its traditional mission, France desires to guide the peoples under its responsibility towards the freedom to administer themselves and to manage their own affairs democratically. CHAPTER 3 Stronger modes of reception of exogenic norms in the EU legal order 204 the common good668, or quality education669 are indirectly congruent with EDC standards. In general, the implementation of EDC standards by Member States is closely linked to their constitutions, as constitutions provide for learning content (basic values, organisation of the State’s institutions, fundamental rights, etc.)670 and frame the way in which this learning is provided, for instance, the relationship between the right to education and State control, on the one hand, and the freedom of education and freedom of expression, on the other hand. According to the German and the Greek constitutions, freedom of education shall not release any person from the duty of allegiance to the constitution.671 The requirement that freedom of education must respect constitutional provisions will have consequences with regard to EU primary law, interconnected with national constitutions.672 To sum up, common constitutional traditions exist with regard to education for democracy. Moreover, the trend for national practices implementing EDC is growing, as evidenced in the second review cycle of the Charter on EDC/HRE and in the 2017 Eurydice report on citizenship edu- 668 Constitution of Ireland Art 42(3- 2) ‘The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social); see also Article 40 (6–1-i). 669 Cyprus Art 20(1); the Netherlands Art 23 (‘eisen van deugdelijkheid’), Portugal Art 76(2); Slovakia Art 57 (‘a proper education’). 670 E.g. Beschluss der Kultusministerkonferenz vom 06.03.2009 'Stärkung der Demokratieerziehung', 4 (‘erstärkte Vermittlung von Kenntnissen des Grundgesetzes und der Länderverfassungen’ (‘improving knowledge of the Basic Law and Land Constitutions’); Beschluss der Kultusministerkonferenz vom 06.03.2009 i. d. F. vom 11.10.2018, 'Demokratie als Ziel, Gegenstand und Praxis —historisch-politischer Bildung und Erziehung in der Schule' (‘Das pädagogische Handeln in Schulen ist von demokratischen Werten und Haltungen getragen, die sich aus den Grundrechten des Grundgesetzes und aus den Menschenrechten ableiten lassen’). See for Austria . Further § 165 . 671 Germany Art 5(3) Basic law ‘[t]he freedom of teaching shall not release any person from allegiance to the constitution’; see also Art 7(1) ‘The entire school system shall be under the supervision of the state’; Greece Art 16(1) ‘Academic freedom and freedom of teaching shall not exempt anyone from his duty of allegiance to the Constitution’; Cyprus Art 20(1) ‘respect for the constitutional order’; see also Lithuania Art 28 (for all rights and freedoms). 672 See i.a. § 167. A constitutional core is to be respected, with room for balancing; see § 251 and text to n 2453. B General principles of EU law (mode 2) 205 cation.673 In this respect constitutional traditions are converging. The greater the degree of convergence in national legal orders, the more inclined the ECJ will be to follow the national legal orders.674 Besides, the ECJ rarely carries out a mathematical analysis to identify the lowest common denominator in national constitutional traditions, but adopts ‘an evaluative approach’, incorporating ‘the solution provided for by the national legal orders that fits better or is in line with the objectives and structure of the Treaty’.675 EDC standards fully fit in with this approach: they are in line with the objectives and structure of the Treaties (as will be argued below).676 Responding to the absence of clear majority support in the national legal (and constitutional) systems for a principle of non-discrimination on grounds of age, Advocate General Kokott pointed to consistency with a specific task incumbent on the EU, to specific expression by the EU legislator, and to the mirroring of a more recent trend in the protection of fundamental rights.677 A hypothetical general principle of EDC satisfies each of these terms. As abstract programmatic norms, EDC standards have been given specific expression by EU law (in modes 4 and 5, as will be analysed) and are thus codified to some extent.678 Recognising a general principle of EDC would mirror a trend towards increased protection of democratic and human rights values in response to societal changes (radicalisation). 673 See n 478; CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe; Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2017), 10 (several Member States recently have put citizenship education in the spotlight). 674 K Lenaerts and JA Gutiérrez-Fons, ‘The Role of General Principles of EU Law’ in A Arnull and others (eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Hart 2011) 181. 675 Ibid, 183. 676 Analysis in text to n 934 ff. 677 Case C‑550/07 P Akzo Nobel Chemicals ECLI:EU:C:2010:512, Opinion of AG Kokott, para 96. See also approach of AG Léger in Hautala (text to n 708); further Lenaerts and Gutiérrez-Fons, ‘The Role of General Principles of EU Law’, 183 (only the Finnish and the Portuguese constitutions); K Lenaerts and JA Gutiérrez-Fons, ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’ (2014) 20 Columbia Journal of European Law 3, 51. 678 Just as Dir 2000/78 gave specific expression to the underlying general principle of non-discrimination on the grounds of nationality. See Case C-555/07 Kücükdeveci ECLI:EU:C:2010:21, para 21; Case C-144/04 Mangold ECLI:EU:C: 2005:709, para 75; by analogy with Case 43/75 Defrenne II ECLI:EU:C:1976:56, para 54. CHAPTER 3 Stronger modes of reception of exogenic norms in the EU legal order 206 It is true that a general principle of EDC would put flesh on the bones of the Treaties and exercise a gap-filling function.679 Counterarguments A precarious path However, on a closer analysis, the arguments against considering EDC standards to be general principles of EU law in this study are strong. Firstly, in general, giving effects to exogenic norms via general principles is a precarious path to take, prone to barriers and resistance. General principles are controversial, their genesis the subject of critical comment in legal literature, and so are, to an even greater degree, their wide-reaching legal effects.680 Advocate General Mazák writes: ‘it lies in the nature of general principles of law, which are to be sought rather in the Platonic heaven of law than in the law books, that both their existence and their substantive content are marked by uncertainty’.681 The interface of general principles with provisions at constitutional and legislative level is the subject of debate.682 Non-discrimination on grounds of age is an example of a general 90 679 On general principles putting flesh on the bones of the Treaties: Lenaerts and Gutiérrez-Fons, ‘The constitutional allocation of powers and general principles of EU law’, 1667; Case C-411/05 Palacios de la Villa ECLI:EU:C:2007:604, Opinion of AG Mazak, para 85. On the gap-filling function: Tridimas, The General Principles of EU Law 17. 680 Numerous comments on Mangold, i.a. D Martin, ‘L'arrêt Mangold: Vers une hiérarchie inversée du droit à l'égalité en droit communautaire?’ [2006] Journal des tribunaux du travail 941 (‘motivation discutable’); J Mazák and M Moser, ‘Adjudication by reference to general principles of EU law: a second look at the Mangold case law’ in M Adams and others (eds), Judging Europe's judges: The Legitimacy of the Case Law of the European Court of Justice (Hart 2013); and Case C-411/05 Palacios de la Villa ECLI:EU:C:2007:604, Opinion of AG Mazák, paras 83, 88–89. For caution on general principles, see, i.a. M Herdegen, ‘General Principles of EU Law: The Methodological Challenge’ in U Bernitz and J Nergelius (eds), General Principles of European Community Law (European Monographs 25, Kluwer 2000); Lenaerts and Gutiérrez-Fons, ‘The Role of General Principles of EU Law’; S Prechal, ‘Competence creep and general principles of law’ (2010) 3 Review of European administrative law 1. 681 Case C-411/05 Palacios de la Villa ECLI:EU:C:2007:604, Opinion of AG Mazák, para 86. 682 See three options in Semmelmann, ‘General Principles in EU Law between a Compensatory Role and an Intrinsic Value’, 464. B General principles of EU law (mode 2) 207 principle which has been criticised.683 Recently, the ECJ has been reluctant to recognise or to use general principles. I think EDC standards are too important to jeopardise by taking a precarious path. Doubts about genesis Secondly, in particular with regard to a hypothetical general principle of EDC, the arguments relating to both the genesis and the legal effects are weak and problematic. The doubts about the genesis of the principle concern the inspiration drawn from the ECHR (first formula in ECJ case law), from international instruments (second formula) and from common constitutional traditions. Doubts about the ECHR providing guidelines for EDC Can inspiration be drawn from the guidelines supplied by the ECHR, a treaty with ‘special significance’ to establish a general principle according to ECJ case law (first formula), treaty now mentioned as a direct source in Article 6(3) TEU? The answer is not straightforward. While the right to education in the ECHR does not militate against a potential EDC general principle, it does not, either, directly supply guidelines to conclude to the existence of a general principle of EDC. Article 2 of Protocol 1 to the ECHR essentially provides that ‘[n]o person shall be denied the right to education’ (first and main sentence). Grafted onto this right to education are the rights of parents: in the exercise of the functions it assumes related to education and teaching, the State shall respect the rights of parents to education for their children in conformity with their religious and philosophical convictions (second sentence). If guidance is found, it is indirectly, based on settled case law in which the ECtHR interprets the right to education in a range of major principles.684 Applying these interpretative principles to the EDC question provides some inspiration. At first sight, the right to education does not give any indications as to EDC. The ECHR right to education primarily aims to guarantee a right of 91 92 683 Mangold, see text to n 680 ff. 684 I.a. Kjeldsen, Busk Madsen and Pedersen v Denmark no 5095/71 (ECtHR 7 December 1976), paras 50–54; Campbell and Cosans v UK no 7511/76 et al (ECtHR 23 March 1983), paras 36–37; Valsamis v Greece no 21787/93 (ECtHR 18 December 1996), paras 25–28; Folgerø and Others v Norway no 15472/02 (ECtHR 29 June 2007), para 84; Hasan and Eylem Zengin v Turkey no 1448/04 (ECtHR 9 October 2007), paras 47–55; Lautsi and Others v Italy no 30814/06 (ECtHR 18 March 2011), paras 59–62; Catan and Others v Moldova and Russia no 43370/04 et al (ECtHR 19 October 2012), paras 136–140; short referral in Mansur Yalçin and Others v Turkey no 21163/11 (ECtHR 16 September 2014), para 63. CHAPTER 3 Stronger modes of reception of exogenic norms in the EU legal order 208 equal access to the existing educational facilities.685 It does not require States to establish any particular type or level of education at their own expense or to subsidise it.686 The ECtHR repeatedly states that the setting and planning of the school curriculum in principle falls within the competence of the Contracting States and that it is not for the Court to rule on the questions of expediency, whose solution may legitimately vary according to the country and the era.687 States enjoy a wide margin of appreciation with regard to the organisation and contents of their education systems. This is, by the way, consistent with Article 165 TFEU, which requires that the responsibility of Member States for the content of teaching be fully respected. Upon a closer look, however, the ECHR right to education involves several aspects relevant to EDC. First, it includes more than a right of equal access.688 A right to education would be illusory without a minimum degree of educational provision by the State. Positive obligations arise from ECtHR case law.689The right to education would, for instance, be meaningless if it did not imply the right to be educated in the national language or in one of the national languages.690 The right to education ‘by its 685 Emphasis added. See Belgian Linguistic Cases no 1474/62 et al (ECtHR 23 July 1968), para 4; Kjeldsen, Busk Madsen and Pedersen v Denmark no 5095/71 (ECtHR 7 December 1976), para 52; Folgerø and Others v Norway no 15472/02 (ECtHR 29 June 2007), para 84 (d); Mehmet Reşit Arslan and Orhan Bingöl v Turkey no 47121/06 et al (ECtHR 18 June 2019), para 51. See also L Veny, Rechtsbescherming in het onderwijs (Die Keure 1990) 30; B Vermeulen, ‘The right to education (Article 2 of Protocol No. 1)’ in P Van Dijk and others (eds), Theory and practice of the European Convention on human rights (4th edn, Intersentia 2006) 896; L Veny, Onderwijsrecht 1: Dragende beginselen van het onderwijsbestel (Die Keure 2010) § 191; LM Veny, ‘The right to education according to the case‐ law of the European court of human rights’ in EM Fodor (ed), Education and law : interferences (Pro Universitaria 2016). 686 Belgian Linguistic Cases no 1474/62 et al (ECtHR 23 July 1968), para 3; Lautsi and Others v Italy no 30814/06 (ECtHR 18 March 2011), para 61; Vermeulen, ‘The right to education (Article 2 of Protocol No. 1)’ 899. 687 Valsamis v Greece no 21787/93 (ECtHR 18 December 1996), para 28; Folgerø and Others v Norway no 15472/02 (ECtHR 29 June 2007), para 84 (g). 688 Belgian Linguistic Cases no 1474/62 et al (ECtHR 23 July 1968), para 4. 689 Campbell and Cosans v UK no 7511/76 et al (ECtHR 23 March 1983), para 37; Valsamis v Greece no 21787/93 (ECtHR 18 December 1996), para 27; Mansur Yalçin and Others v Turkey no 21163/11 (ECtHR 16 September 2014), para 72. 690 Belgian Linguistic Cases no 1474/62 et al (ECtHR 23 July 1968), para 3; Catan and Others v Moldova and Russia no 43370/04 et al (ECtHR 19 October 2012), para 137. On positive obligations, see Grabenwarter, European Convention on Human B General principles of EU law (mode 2) 209 very nature calls for regulation by the State’.691 In Campbell, the ECtHR considered that ‘the education of children is the whole process whereby, in any society, adults endeavour to transmit their beliefs, culture and other values to the young, whereas teaching or instruction refers in particular to the transmission of knowledge and to intellectual development.’692 To that end, the State has the right to establish compulsory schooling and to verify and enforce educational standards. The State is responsible for the quality of education.693 The ECtHR considers that in a democratic society, the right to education is indispensable to the furtherance of human rights and plays a fundamental role.694 A second inspirational element in case law is that the margin of discretion of States is limited by the obligation to respect parents’ religious and philosophical convictions with the explicit aim of safeguarding the possibility of pluralism in education. This is essential for the preservation of the ‘democratic society’ as conceived by the Convention. This aim must primordially be achieved by means of State teaching.695 An interpretative principle of crucial importance for EDC is that: the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions.696 Rights: Commentary 394, especially in the knowledge-based society, 398; Vermeulen, ‘The right to education (Article 2 of Protocol No. 1)’ 901. 691 Belgian Linguistic Cases no 1474/62 et al (ECtHR 23 July 1968), para 5. 692 Para 33. 693 Family H v UK no 10233/83 (Commission, 6 march 1984) 37 DR 105; Vermeulen, ‘The right to education (Article 2 of Protocol No. 1)’ 901. 694 Leyla Şahin v Turkey no 44774/98 (ECtHR 10 November 2005), para 137 (also text to n 201); Ponomaryovi v Bulgaria no 5335/05 (ECtHR 21 June 2011), para 55; Velyo Velev v Bulgaria no 16032/07 (ECtHR 27 May 2014), para 33. 695 Folgerø, para 84(b); Kjeldsen, para 50. 696 Folgerø and Others v Norway no 15472/02 (ECtHR 29 June 2007) para 84 (h); emphasis added. Principle repeated in settled case law: see also Kjeldsen, Busk Madsen and Pedersen v Denmark no 5095/71 (ECtHR 7 December 1976), para 53; Lautsi and Others v Italy no 30814/06 (ECtHR 18 March 2011), para 62; Osmanoglu and Kocabas v Switzerland no 29086/12 (ECtHR 10 January 2017), para 91. On ‘a certain margin of appreciation’ and final decision resting with the ECtHR, see Cölgeçen and Others v Turkey no 50124/07 et al (ECtHR 12 Decem- CHAPTER 3 Stronger modes of reception of exogenic norms in the EU legal order 210 This constraint on the State must be understood in the historical context of the adoption of the ECHR: freedom of education is stressed throughout the preparatory works as a reaction to the education system enforced by the Nazi regime and with the aim of protecting the individual against State interference.697 Competing interests are at work: the State must guarantee a right to education for all and at the same time preserve freedom in education. A necessary balance is to be struck between the general interests of the community and individual rights and freedoms.698 In Valsamis, parents brought a case on non-formal citizenship education in Greece before the ECtHR. Their daughter Victoria (in the first years of secondary school) had refused to take part in the school parade on the Greek National Day (28 October)699 and had been punished with one day’s suspension from school. Her parents, Jehovah’s Witnesses, were opposed to extolling patriotic ideals in a school parade (with a military presence) and alleged a breach of their parental right to respect for their religious convictions. The ECtHR, without ruling on the State’s school curriculum decisions, was ‘surprised’ about the compulsory attendance precincts on a holiday on pain of suspension from school. However, the Court discerned no offence to the parents’ pacifist convictions: ‘such commemoration of national events serve, in their way, both pacifist objectives and the public interest.’ The parents were, moreover, not deprived of the right to enlighten their ber 2017), para 48, Leyla Şahin v Turkey no 44774/98 (ECtHR 10 November 2005), para 154. 697 ‘We must not forget that Europe, at the time when the Convention was adopted, had just gone through years of suppression of the freedom of the peoples, where governments used all sorts of means and pressure to nazify the youth, especially through the schools and youth organisations. It was an important aim of the Convention that this should not be repeated and that the freedom of education should be protected’, in partly dissenting opinion of Judge Terje Wold, in Kjeldsen, Busk Madsen and Pedersen v Denmark no 5095/71 (ECtHR 7 December 1976), arguing against positive claims against the State. See Preparatory work on Article 2 of the Protocol to the Convention (Strasbourg 9 May 1967), . 698 Belgian Linguistic Cases no 1474/62 et al (ECtHR 23 July 1968), para 13; Folgerø, paras 84(f), and 96; and Valsamis, para 27; Lautsi and Others v Italy no 30814/06 (ECtHR 18 March 2011), para 61; Vermeulen, ‘The right to education (Article 2 of Protocol No. 1)’ 897. 699 School and military parades in nearly all towns and villages commemorate the outbreak of war between Greece and Fascist Italy on 28 October1940. B General principles of EU law (mode 2) 211 children as educators and the imposed sanction was of limited duration.700 The ECtHR concluded that there was no breach of Article 2 of Protocol 1. The State is ‘the ultimate guarantor of pluralism’.701 The interpretative principles of the ECtHR on the right to education are consistent with the two sentences of Article 2 Protocol 1, with the Convention as a whole and ‘with the general spirit of the Convention itself, an instrument designed to maintain and promote the ideals and values of a democratic society.’702 It can be concluded that the aims expressed in ECtHR case law with regard to the right to education match the EDC paradigm.703 True, the Convention right to education does not directly imply an obligation to organise EDC, nor does the text contain indications as to content or aims of education, contrary to the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. Yet, ECHR provisions must be interpreted in the light of these international agreements and international human rights standards, in line with Article 53 ECHR and case law. Even if Article 2 of Protocol 1 itself does not set out educational aims, when it is interpreted in the light of Article 13 of the ICESCR and Article 29 of the CRC, it does not countenance just any form of education. The ECtHR frequently restates that in interpreting and applying Article 2 of Protocol 1, ‘account must also be taken of any relevant rules and principles of international law applicable in relations between the Contracting Parties and that the Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part’.704 Moreover, as argued in Part one, the Charter on EDC/HRE must also be taken into account in the interpretation of Article 2 (in line with Demir, Tănase, Mosley and others) as a standard of great weight or considerable importance.705 Furthermore, ‘the Court emphasises that the object and purpose of the Convention, as an instrument for the 700 Valsamis, para 31. 701 Mansur Yalçin and Others v Turkey no 21163/11 (ECtHR 16 September 2014), para 70. 702 Kjeldsen, para 53. As a whole: Folgerø, para 84(a), Lautsi, para 54. I.a. in the light of Art 10 on the right to freedom of expression (including freedom to hold opinions and to receive and impart information and ideas without interference by public authority). 703 Also to value diversity, see Folgerø, para 84(f). 704 E.g. Çam v Turkey no 51500/08 (ECtHR 23 February 2016), para 53; Catan and Others v Moldova and Russia no 43370/04 et al (ECtHR 19 October 2012), para 136. 705 § 43. CHAPTER 3 Stronger modes of reception of exogenic norms in the EU legal order 212 protection of individual human beings, requires that its provisions be interpreted and applied so as to make its safeguards practical and effective’.706 The conclusion must thus be nuanced. Taking all aspects of the analysis together, the right to education in Article 2 of Protocol 1 to the ECHR supplies guidelines, to a certain extent, for acknowledgement of a general principle of EDC in EU law. Admittedly, it is not the text itself of Article 2 Protocol 1 ECHR on the right to education which supplies guidelines, but rather––as opponents might argue––a broad interpretation based on ECtHR case law. At the very least, the Convention right to education as interpreted by the ECtHR matches the EDC paradigm. To say that it inevitably leads to the recognition of EDC standards as general principles of EU law would be a bold step. Doubts about international instruments As to genesis based on international instruments for the protection of human rights, as in the second formula, the ECJ does not seem very interested in recommendations of the Committee of Ministers of the Council of Europe. In Hautala, advocating a general principle of access to documents and a right to information, Advocate General Léger drew attention to various recommendations of the Committee of Ministers.707 They were part of the ‘numerous unambiguous declarations’ indicating the trend even before binding legislation was drafted. He found that ‘[i]t may suffice that Member States have a common approach to the right in question demonstrating the same desire to provide protection, even where the level of that protection and the procedure for affording it are provided for differently in the various Member States.’708 The ECJ did not pursue this idea. In Parliament v Council, the European Parliament sought the annulment of provisions regarding third country nationals in a Directive on the right to family reunification.709 The Parliament contended that the provisions did 93 706 Leyla Şahin v Turkey no 44774/98 (ECtHR 10 November 2005), para 136. Also text to n 357. 707 Case C-353/99 P Hautala ECLI:EU:C:2001:661, Opinion of AG Léger, para 59. 708 Ibid, para 62, reference i.a. to recommendations of the Committee of Ministers of the Council of Europe: No R (81) 19 on the access to information held by public authorities and No R (91) 10 on the communication to third parties of personal data held by public bodies. 709 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification [2003] OJ L251/12, recital 2: measures of family reunification should be adopted in conformity with the obligation to respect the family and B General principles of EU law (mode 2) 213 not respect the right to family life, referring to the ECHR, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, as well as to some recommendations of the Committee of Ministers.710 The ECJ reasoned by reference to the ECHR and the Convention on the Rights of the Child, and considered that ‘the remaining international instruments invoked by the Parliament do not in any event appear to contain provisions affording greater protection of rights of the child than those contained in the instruments already referred to’.711 Case law on social rights also reveals the reticence of the ECJ. In Dominguez, Advocate General Trstenjak suggested to the Court that the entitlement of every worker to paid annual leave should be considered to be a general principle of EU law. This entitlement, she argued, has ‘long numbered amongst internationally recognised social fundamental rights’. Citing many provisions of international public law, including various conventions, she found it ‘unequivocally included among workers’ fundamental rights’. 712 The ECJ was unmoved. The Court stated that the entitlement of every worker to paid annual leave must be regarded as ‘a particularly important principle of European Union social law’, without using the expression ‘general principle of EU law’.713 The ECJ has been criticised for failing, in its interpretation of CFR provisions, to recognise the persuasive authority of international human rights instruments other than the ECHR.714 If even rights established in a panoply of conventions have not changed the mind of the Court, it can be presumed that EDC standards set out in recommendations will not be capable of doing so. Doubts about common constitutional traditions With regard to the genesis of a general principle on EDC based on the common constitutional traditions of the Member States,715 a counterargument is that only a minority of constitutions contain explicit provisions on citizenship education which are directly congruent with EDC standards. 94 family life enshrined in many instruments of international law (in particular the ECHR and CFR). 710 Para 33. 711 Para 39. 712 Case C-282/10 Dominguez ECLI:EU:C:2012:33, Opinion of AG Trstenjak, paras 103–105, 114. Also Joined Cases C-569/16 and C-570/16 Bauer ECLI:EU:C:2018: 871, para 38. 713 Case C-282/10 Dominguez ECLI:EU:C:2012:33, para 16. 714 Craig and de Búrca, EU Law: Text, Cases, and Materials 387. 715 Arguments in favour in § 89 . CHAPTER 3 Stronger modes of reception of exogenic norms in the EU legal order 214 Most constitutions provide for a right to education without reference to the content or educational aims.716 EDC may then be seen as part of constitutional practice. Doubts about legal effects The legal effects of a hypothetical general principle of EDC are even more problematic. While it is conceivable that doubts as to genesis might be overcome—an issue which anyway has been selectively considered in ECJ case law—the main concern is that such a principle could have far-reaching legal effects, which would probably be hard to reconcile with respect for the constitutional allocation of powers in the Treaties, horizontally and vertically.717 Construed as a general principle, EDC could become un enfant terrible, as described by Tridimas: the general principles of law are children of national law but, as brought up by the Court, they become enfants terribles: they are extended, narrowed, restated, transformed by a creative and eclectic judicial process.718 Horizontally, respect for the institutional balance and the separation of powers requires the ECJ not to encroach on the powers of the EU legislature. The establishment of general principles must respect legislative competence.719 If more precision is needed than inherently implied in a general principle and legislative choices have to be made, the ECJ holds back. In Audiolux, the ECJ did not recognise a general principle of equal treatment of minority shareholders, because the general principle of equality could not determine the choice between various conceivable means of protection for minority shareholders. The protection of their interests required an element of detail in measures of secondary law.720 A commonly accepted precondition for recognising a general principle is that it has ‘a minimum ascertainable legally binding substance’.721 Tridimas cites 95 716 E.g. Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Finland, Hungary, Italy, Malta, the Netherlands, Poland, Romania, Slovakia (cp n 661). 717 Lenaerts and Gutiérrez-Fons, ‘The constitutional allocation of powers and general principles of EU law’. 718 Tridimas, The General Principles of EU Law 6. 719 Lenaerts and Gutiérrez-Fons, ‘The constitutional allocation of powers and general principles of EU law’; Prechal, ‘Competence creep and general principles of law’. 720 Case C-101/08 Audiolux ECLI:EU:C:2009:626, paras 61–63. 721 Tridimas, The General Principles of EU Law 26. See also Case C-282/10 Dominguez ECLI:EU:C:2012:33, Opinion of AG Trstenjak, para 113. B General principles of EU law (mode 2) 215 the example of fairness, which is too vague to be a general principle. What is fair for one person, may appear unfair for the other. General principles must include an autonomous normative concept, an objective determination.722 In this respect, a general principle of EDC falls short. What is perceived as an ‘education for democratic citizenship’ by some, will not qualify as such in the view of others. A hypothetical general principle of EDC leaves open a number of choices, to be made by the legislator. As observed in Part one, one of the weaknesses of the Charter on EDC/HRE is that it does not excel in content precision, which diminishes its normative claims. EDC is a quite abstract principle, akin to the principle of democracy, which the ECJ did not call a general principle of EU law either, but simply ‘a principle’.723 By contrast, the general principle of non-discrimination on grounds of age has autonomous content as a negative norm excluding provisions leading to unequal treatment based on the forbidden ground. In Kücükdeveci, this general principle was sufficient in itself to confer rights on individuals.724 True, the components in the concept of EDC in paragraph 2 of the Charter on EDC/HRE contain quite precise elements, but the content of this paragraph is presumably more precise than that of a general principle of EDC. It is hard for a general principle of EDC to satisfy the criterion of self-sufficiency, for instance, for the ECJ to assess validity, or for national judges to give it full effectiveness as part of EU law. Vertically, in construing a general principle of EU law, the ECJ must respect the principle of conferral. Recognition of a general principle of EU law on EDC, with the significant legal effects linked to the constitutional status, could be perceived as EU competence creep, encroaching on Member States powers in the field of education. Article 165(1) TFEU unambiguously states that the Union shall fully respect the responsibility of the Member States for the content of teaching. Interpretative function If, as Tridimas writes, judicial recourse to a general principle of EU law is essentially justified by its function in the EU legal order, making it possible to develop a notion of the rule of law appropriate for the EU polity while ensuring continuity with Member States’ legal orders,725 then there 96 722 Tridimas, The General Principles of EU Law 28, on the example of fairness. 723 Text to nn 954 ff. 724 About Kücükdeveci, see Case C-176/12 Association de médiation sociale ECLI:EU: C:2014:2, paras 46–49. 725 Tridimas, The General Principles of EU Law 20. CHAPTER 3 Stronger modes of reception of exogenic norms in the EU legal order 216 is probably no need to qualify EDC as a general principle. Semmelman considers: the soundest interpretation assigns general principles the role of an entry point for morality and values in legal determinations that reflect societal consensus, may change over time and substantiate more straightforwardly drafted provisions.726 For this role, an adequate and more direct entry point for EDC standards is to be found, inter alia, in Articles 2, 3, and Title II TEU, and their normative implications in terms of EDC standards. Rather than construing EDC as a general principle of EU law, EDC standards may operate as a tool for the interpretation of the relevant provisions of EU law, as will be argued in mode 6. To conclude, weighing the arguments pro and contra, the second mode of reception is an unsafe path for the Charter on EDC/HRE. General principles of EU law are a complex option when other EU legal sources are silent.727 In the case of EDC standards, the other EU legal sources are not silent. Incorporation of the title of exogenic instruments in EU law (mode 3) General Reference to exogenic instruments In the legal landscape, a comfortable and safe secondary road bringing exogenic norms into the EU legal order is mentioning the title of an exogenic instrument in the corpus of EU law (not just in the preamble). This mode of direct entry can occur in both primary and secondary law and there are illustrations in many fields. The legal effects are not uniform but depend on the normative incorporation. The ECJ interprets EU law consistently with the incorporated exogenic norm but taking the autonomy of the EU legal order into account. C 1. 97 726 Semmelmann, ‘General Principles in EU Law between a Compensatory Role and an Intrinsic Value’, 487. 727 See, in general, ibid, 487. C Incorporation of the title of exogenic instruments in EU law (mode 3) 217 Primary law incorporation of the title of an exogenic instrument The ECHR and indirect effects of Council of Europe recommendations The Treaties mention various exogenic instruments expressly, with different legal effects. Articles 6(3) TEU and 52(3) CFR refer to the ECHR. The fact that fundamental rights as guaranteed by the ECHR constitute general principles of EU law (Article 6(3) TEU) indirectly secures a way for Council of Europe recommendations to enter the EU legal order, i.e. to the extent that the ECtHR takes these recommendations into account to interpret provisions of the ECHR (Tănase and Demir728). This may actually happen with the EDC standards of the Charter on EDC/HRE as standards of great weight or considerable importance. The Recommendation on the Charter on EDC/HRE may thus have a cascading normative influence if taken into account by the ECtHR with a view to interpreting the ECHR and that ECHR interpretation is then incorporated into the general principles of EU law. Since the CFR has become EU primary law, the reception of ECtHR case law mainly occurs via the obligation of consistent interpretation in Article 52(3) CFR.729 It is worth noting that the obligation of consistent interpretation ‘shall not prevent Union law providing more extensive protection’.730 Applying this last sentence of Article 52(3) CFR, the Recommendation on the Charter on EDC/HRE is therefore to be seen as a minimum, a starting point for a possibly further-reaching EU development. Another example of an exogenic instrument to which EU primary law expressly refers by title is the Geneva Convention relating to the status of refugees, made binding in EU asylum policy by Article 78 TFEU. Secondary law regularly refers to the Geneva Convention, i.a. to determine who qualifies for refugee status and for the implications of that status.731 The ECJ 98 728 See § 42 , i.a. Tănase v Moldova no 7/08 (ECtHR 24 April 2010), paras 176–77; Demir and Baykara v Turkey no 34503/97 (ECtHR 12 November 2008), paras 74– 76, 85–86. For such an indirect reception through application of Article 52(3) CFR with regard to the right to vote, see however text to n 2294 ff. 729 The ECJ regularly refers to ECtHR case law, e.g. Case C-274/99 P Connolly ECLI:EU:C:2001:127, para 39 (same interpretation of freedom of expression as in Handyside v UK no 5493/72 (ECtHR 7 Dec 1976), para 33). 730 For cases going beyond or diverging from the ECHR, see Craig and de Búrca, EU Law: Text, Cases, and Materials 386. 731 Convention Relating to the Status of Refugees (Geneva, signed 28 July 1951, UNGA resolution 429 (V) of 14 December 1950, entered into force 22 April 1954) UNTS, Vol 189, p 150, No 2545 (1954); Protocol Relating to the Status of CHAPTER 3 Stronger modes of reception of exogenic norms in the EU legal order 218 interprets provisions of such secondary law ‘in the light of its general scheme and purpose, while respecting the Geneva Convention’.732 The European Social Charter does not enjoy this binding status in primary law, but has ‘having in mind’ status: Article 151 TFEU lists the objectives of the social policy of the EU and the Member States, having in mind fundamental social rights such as those set out in the ESC.733 As to the United Nations Charter, several Treaty provisions require respect for its principles in the external action of the Union and in the common security and defence policy.734 Secondary law incorporation of the title of an exogenic instrument Exogenic standards incorporated into EU legislation in various fields In various fields the EU legislator chooses to incorporate standards originating outside the EU legal order. The intention is to avoid lagging behind and to adapt to evolving standards accepted in the international community. To this end, exogenic norms are often incorporated by a ‘dynamic reference’ to the title of the instrument, accepting future normative changes 99 Refugees (New York, 31 January 1967, entered into force 4 October 1967) (Geneva Convention). Secondary legislation, e.g. Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification [2003] OJ L251/12, Art 2(b); Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted [2011] OJ L337/9; Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) [2016] OJ L77/1, see Art 4, requiring full compliance. 732 Joined Cases C-443/14 and C-444/14 Alo and Osso ECLI:EU:C:2016:127, paras 28–37, 44, 51; Joined Cases C‑175/08, C‑176/08, C‑178/08 and C‑179/08 Salahadin Abdulla and Others ECLI:EU:C:2010:105, para 53 (preliminary ruling on interpretation). Also preliminary rulings on the validity of secondary legislation in the light of the Geneva Convention, e.g. Case C-180/99 Addou ECLI:EU:C: 2001:532. 733 See also preamble and Explanations to CFR. 734 Arts 3(5), 21(1), and 42 TEU; also Arts 208(2), 217(7) and 220 TFEU. See Case C-104/16 P Council v Front populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario) ECLI:EU:C:2016:973, paras 88, 90, 91, 93, referring to UN Charter and UN GA resolutions (concerning the Western Sahara). C Incorporation of the title of exogenic instruments in EU law (mode 3) 219 in advance.735 Some recommendations of the Committee of Ministers are also expressly mentioned in EU legal instruments. Case law amplifies the effect of normative reception by title. I will now briefly mention five examples. The purpose is to provide an insight into this mode of normative reception in order to assess to what extent the examples may serve as precedents for EDC standards (next section736). The first two examples, marine pollution and quality of wine, do not concern Council of Europe standards, yet they hint at the non-negligible effects of exogenic standards–– binding or non-binding––in the EU legal order.737 The last three examples highlight the effects of Council of Europe standards. Standards for the discharge of polluting substances from ships The International Convention for the Prevention of Pollution from Ships (Marpol 73/78) establishes standards to combat pollution of the marine environment.738 These standards were received into the EU legal order by Directive 2005/35 of the European Parliament and of the Council, which refers to the Marpol Convention by title in Article 2.739 In Intertanko, the ECJ held that the EU was not bound by the Marpol Convention and refused to assess the validity of the EU Directive in that light (even though the Directive had the objective of incorporating certain rules of the Marpol 100 735 Text to n 626. 736 Further §§ 105 106 . 737 Other example in Regulation (EC) No 1905/2006 of the European Parliament and of the Council of 18 December 2006 establishing a financing instrument for development cooperation [2006] OJ L378/41, e.g. Art 31: ‘Tenderers who have been awarded contracts shall respect internationally agreed core labour standards, e.g. the ILO core labour standards’. See also the Codex Alimentarius (updated) published by the WHO and the FAO, containing standards for food safety in the form of -non-binding- recommendations. Legislation in many member states is based on it. For the EU, see i.a. Regulation (EC) No 183/2005 of the European Parliament and of the Council of 12 January 2005 laying down requirements for feed hygiene [2005] OJ L35/1, referring to the title of the Codex Alimentarius, taking it into account, but with sufficient flexibility (recital 15, Arts 21–22). Legal effects, e.g. Case C-236/01 Monsanto Agricoltura Italia ECLI:EU:C:2003:43, para 79 (defining a concept by referring to the Codex Alimentarius). 738 International Convention for the Prevention of Pollution from Ships (London, signed 2 November 1973); Protocol (17 February 1978) (Marpol 73/78). 739 Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements [2005] OJ L255/11. CHAPTER 3 Stronger modes of reception of exogenic norms in the EU legal order 220 Convention into EU law).740 But the fact that the Marpol Convention was binding on all Member States had consequences for the interpretation of provisions of secondary law which are within the scope of application of the Marpol Convention. The Court took account of the standards in the Marpol Convention in the interpretation of EU law ‘in view of the customary principle of good faith, which forms part of general international law’ and of the principle of sincere cooperation (now Article 4(3) TEU).741 This Intertanko principle of ‘taking account of’ will be recalled in mode 6.742 It is highly relevant for various exogenic instruments in the field of education, such as the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. Like the Marpol Convention, these international agreements have been ratified by all the Member States, but not by the EU.743 Standards on quality of wine A notable instance of effects in EU law are wine standards. An EU common agricultural policy Regulation refers in its corpus to recommendations of the International Organisation of Vine and Wine (OIV). In Germany v Council, the ECJ considered these recommendations to have been incorporated into EU law and attributed legal effects to them for the purpose of Article 218(9) TFEU.744 In 2001, an Agreement to which many Member States are parties but not the EU, establishes the International Organisation of Vine and Wine (OIV), an intergovernmental organisation of a scientific and technical nature. To attain its objectives, the OIV draws up recommendations. In 2007, Council Regulation 1234/2007 refers in several specific provisions to OIV recommendations, e.g. stating that the methods of analysis concerning the composition of products in the wine sector and rules concerning authorised oenological practices ‘shall be those recommended and published by the OIV’.745 In an action for annul- 101 740 Case C-308/06 Intertanko ECLI:EU:C:2008:312, paras 49–52. 741 Para 52. 742 Text to n 981. 743 On the CRC, see further Teixeira Case C-480/08 ECLI:EU:C:2010:83. 744 Germany v Council Case C-399/12 ECLI:EU:C:2014:2258. 745 Art 120g of Council Reg 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) [2007] OJ 2007 L299/1 (as amended by Reg 1234/2010 of the European Parliament and of the Council of 15 December 2010 [2010] OJ 2010 L346/11). Several other references to OIV recommen- C Incorporation of the title of exogenic instruments in EU law (mode 3) 221 ment of a Council Decision, the ECJ has to ascertain whether the OIV recommendations constitute ‘acts having legal effects’ as provided in Article 218(9) TFEU.746 Germany claims that these acts only concern acts of international law binding on the EU.747 Having regard to several specific provisions in the EU Regulation, the Court states that ‘within the framework of the common organisation of the wine markets, the EU legislature incorporates those recommendations into the legislation adopted in that regard’.748 The recommendations are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature in the area of the common organisation of the wine markets’.749 The Court finds that the EU, while not a party to the OIV Agreement, was ‘entitled to establish a position to be adopted on its behalf with regard to those recommendations, in view of their direct impact on the European Union’s acquis in that area’.750 Council of Europe standards on data protection and standards on safety An example of EU legislation incorporating a Council of Europe recommendation by title is the Regulation of the European Parliament and the Council on Europol. It provides that Europol ‘shall take account of’ and ‘shall observe’ the principles of the 1981 Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (not acceded to by the EU) and of Recommendation No R (87)15 of the Committee of Ministers to the member states on regulating the use of personal data in the police sector.751 The preamble clarifies the aim that the data protection rules of Europol ‘should be autonomous 102 dations, e.g. in Arts 120f(a), 120g and 158a(1)(2) of Reg 1234/2007 and Art 9 of Reg 606/2009 (para 36). 746 Para 56. 747 Paras 35–36. 748 Para 61 (emphasis added), with regard to the cited articles (Arts 120f(a), 120g and 158a(1)(2) of Reg 1234/2007 and Art 9 of Reg 606/2009). 749 Paras 62–63. 750 Para 64. The common position was not annulled. Germany, which had voted against the proposal of the Commission on a common position, had to accept the position on behalf of the EU. 751 Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA [2016] OJ L135/53, Art 27. It concerns CoE Recommendation No R(87)15 of the Committee of Ministers to the member States 'on regulating the use of personal data in the police sector' (17 September 1987). See Convention for the Protection of CHAPTER 3 Stronger modes of reception of exogenic norms in the EU legal order 222 while at the same time consistent with other relevant data protection instruments applicable in the area of police cooperation in the Union’, including the two Council of Europe instruments cited.752 Another EU instrument directly referring to the title of Council of Europe recommendations is the Council Resolution concerning police cooperation to prevent violence at football matches. To minimise risks, a Council of Europe checklist can be used. The list includes 11 Council of Europe recommendations.753 Council of Europe language education standards The European reference standard for language education, the Common European Framework of Reference for Languages (CEFR), is a prominent example of a Council of Europe standard which has been received into the EU legal order in mode 3, i.e. by express reference to the title of the instrument. The Framework, use of which is recommended by the Committee of Ministers754,‘provides a common basis for the elaboration of language syl- 103 Individuals with regard to Automatic Processing of Personal Data ETS No 108 (Strasbourg, opened 28 January 1981, entered into force 1 October 1985), which has been ratified by all EU Member States, but is as such not open to the EU. For opening to the EU, see Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, regarding supervisory authorities and transborder data flows No 181 (Strasbourg, opened 8 November 2001, entered into force 1 July 2004). This last instrument is not ratified by BE, EL, IT, MT, nor UK, not signed by SI, nor by the EU. 752 Recital 40. 753 Council Resolution of 3 June 2010 concerning an updated handbook with recommendations for international police cooperation and measures to prevent and control violence and disturbances in connection with football matches with an international dimension, in which at least one Member State is involved [2010] OJ C165/1. See section 2 in chapter nine, i.a. Rec (2001) 6 of the Committee of Ministers to member states on the prevention of racism, xenophobia and racial intolerance in sport. To note, the EU intends to accede to the CoE Convention on the Manipulation of Sports Competitions CETS No 215 (Magglingen, 18 September 2014) (signed by several Member States, not yet the EU), see COM/2015/086 final and COM/2017/0387 final. 754 CoE Recommendation CM/Rec(2008)7 of the Committee of Ministers to member states on the use of the Council of Europe’s Common European Framework of Reference for Languages (CEFR) and the promotion of plurilingualism (2 July 2008): the Committee of Ministers recommends that governments of member states ‘use every available means in accordance with their constitution, their national, regional or local circumstances and their education system to implement the measures set out in appendix 1 to this recommendation with respect C Incorporation of the title of exogenic instruments in EU law (mode 3) 223 labuses, curriculum guidelines, examinations, textbooks, etc. across Europe.’755 It serves as a reference tool for member states to develop and to implement consistent and transparent language education policies, inviting them to fully include language instruction in core educational aims.756 Several EU secondary law instruments refer to the CEFR, e.g. in order to indicate required language levels.757 Moreover, the European Commission has used the CEFR as a reference instrument for the European Qualifications Framework, Europass and the European Indicator of Language Competence.758 Europass, the ‘single Community framework for the transparency of qualifications and competences’, has been set up, i.a. to include the European Language Portfolio, which the Council of Europe developed on the basis of the CEFR.759 The European Indicator of Language Competo the development of their language education policies’. The appendix details the ‘Measures to be implemented concerning the use of the Council of Europe’s Common European Framework of Reference for Languages (CEFR) and the promotion of plurilingualism’. See earlier CoE Recommendation R(98)6 of the Committee of Ministers to member states concerning modern languages (17 March 1998). Compare the less proactive action of the Committee of Ministers with regard to the RFCDC. 755 Council of Europe (2001) Common European framework of reference for languages: learning, teaching, assessment (CEFR), 1. Definition of six levels of foreign language proficiency: A1-A2, B1-B2, C1-C2, and three ‘plus’ levels, A2+, B1+, B2+. 756 Appendix 1, B(4). 757 E.g. Regulation (EU) No 1214/2011 of the European Parliament and of the Council of 16 November 2011 on the professional cross-border transport of euro cash by road between euro-area Member States [2011] OJ L316/1, Art 1(r) and Annex; Commission Directive (EU) 2016/882 of 1 June 2016 amending Directive 2007/59/EC of the European Parliament and of the Council as regards language requirements C/2016/3213 [2016] OJ L146/22, Annex; Council Recommendation of 22 May 2019 on a comprehensive approach to the teaching and learning of languages [2019] OJ C189/15, Art 4(g), Art 9(a). 758 CoE Recommendation CM/Rec(2008)7 of the Committee of Ministers to member states on the use of the Council of Europe’s Common European Framework of Reference for Languages (CEFR) and the promotion of plurilingualism (2 July 2008), recital. 759 Decision 2241/2004 of the European Parliament and of the Council of 15 December 2004 on a single Community framework for the transparency of qualifications and competences (Europass) [2004] OJ L390/6, see recital 4, Art 8, and Annex V, with reference to the CoE (‘The Europass-Language Portfolio (LP), developed by the Council of Europe, is a document in which language learners can record their language learning and cultural experiences and competences’). Europass includes also the Europass-CV. CHAPTER 3 Stronger modes of reception of exogenic norms in the EU legal order 224 tence was established in cooperation with the Council of Europe.760 Various EU instruments recognise the CEFR and the European Language Portfolio as tools, i.a. to enhance the European dimension, or in the European strategy for multilingualism.761 Further action has been undertaken to create a Europass framework, modernised and adapted to the EU context, providing a strategy for the coordination of services offered in Member States.762 It is promising that the RFCDC, developing EDC/HRE further, took the CEFR as a source of inspiration. By the same token, it is possible that RFCDC standards will enter the EU legal order just as the CEFR did, once they are the subject of a recommendation from the Committee of Ministers. At present, the RFCDC is only a reference document.763 Council of Europe standards on the rule of law A crucial and thought-provoking example of exogenic norms received into the EU legal order in mode 3 are the rule of law standards of the Council of Europe. Initially, these standards were used as a foundation to fill a gap in the EU legal order, i.e. to address systemic threats to the rule of law without activating Article 7 TEU. Since December 2017, they constitute essential elements underpinning the grounds to activate Article 7 TEU for the first time in EU legal history—no mean legal effect for an exogenic 104 760 See, i.a., Commission Communication ‘The European Indicator of Language Competence’ COM(2005) 356 final; Commission staff working document, Language competences for employability, mobility and growth Accompanying the document Communication From the Commission Rethinking Education: Investing in skills for better socio-economic outcomes SWD(2010) 372 final. 761 I.a. Council Resolution of 19 December 2002 on the promotion of enhanced European cooperation in vocational education and training [2003] OJ C13/2; Council Resolution of 21 November 2008 on a European strategy for multilingualism [2008] OJ C320/1. On EU language policy: A Van Bossuyt, ‘Is there an effective European legal framework for the protection of minority languages? The European Union and the Council of Europe screened’ (2007) 32 ELRev 860; S van der Jeught, ‘Conflicting Language Policies in the European Union and its Member States’ (Proefschrift, Vrije Universiteit Brussel 2015). See also Commission/EACEA/Eurydice, The teaching of regional and minority languages in schools in Europe (2019). 762 Decision (EU) 2018/646 of the European Parliament and of the Council of 18 April 2018 on a common framework for the provision of better services for skills and qualifications (Europass) and repealing Decision No 2241/2004/EC [2018] OJ L112/42. 763 CoE Reference Framework of Competences for Democratic Culture, Vol 1: Context, concepts and model (2018), p 19. See on the RFCDC, § 106. C Incorporation of the title of exogenic instruments in EU law (mode 3) 225 standard in the EU legal order. Confronted with Polish rules indicating undesirable political interference with regard to the Polish Constitutional Tribunal, the Commission adopted the Framework to strengthen the Rule of Law. The Framework refers to principles defining the core meaning of the rule of law as a common value of the EU in accordance with Article 2 TEU based inter alia on Council of Europe standards and building on the expertise of the European Commission for Democracy through Law (Venice Commission).764 In two 2016 Recommendations (based on Article 292 TFEU), the Commission reiterated the reference to Council of Europe standards and recommended that the Polish authorities take the opinion of the Venice Commission fully into account.765 In a third and a fourth Recommendation in 2017, the Commission relied even more heavily on Council of Europe standards on the rule of law, referring to well established European standards, inter alia the 2010 Recommendation of the Committee of Ministers of the Council of Europe on judges: independence, efficiency and responsibilities.766 The Commission stated that the new Polish law conflicts with Council of Europe standards, in particular ‘the principle of irremovability of judges as a key element of the independence of judges as enshrined in the 2010 Council of Europe Recommendation’.767 The Polish authorities are recommended to ‘ensure that any jus- 764 Commission Communication 'A new EU Framework to strengthen the Rule of Law' COM(2014) 0158 final, 3, 4, 6, 9. 765 Commission Recommendation (EU) 2016/1374 of 27 July 2016 regarding the rule of law in Poland [2016] OJ L217/53, recital 5 and para 74(c); Commission Recommendation (EU) 2017/146 of 21 December 2016 regarding the rule of law in Poland complementary to Recommendation (EU) 2016/1374 [2017] OJ L22/65, recital 4 and para 65(c). 766 Commission Recommendation (EU) 2017/1520 of 26 July 2017 regarding the rule of law in Poland complementary to Recommendations (EU) 2016/1374 and (EU) 2017/146 [2017] OJ L228/19, para 25, and fnn 15, 21, 23, referring to CoE Recommendation CM/Rec(2010)12 of the Committee of Ministers of the Council of Europe on judges: independence, efficiency and responsibilities (17 November 2010), also to the CoE Plan of Action on Strengthening Judicial Independence and Impartiality (13 April 2016) (CM(2016)36 final), and various opinions of the Venice Commission. The same line is continued in Commission Recommendation of 20 December 2017 regarding the rule of law in Poland complementary to Commission Recommendations (EU) 2016/1374, (EU) 2017/146 and (EU) 2017/1520 [2018] OJ L17/50, see i.a. para 6 (‘independence of judges as enshrined in the case law of the Court of Justice and of the European Court of Human Rights, and in European standards’, referring to the 2010 CM Recommandation), and fnn 20, 25, 30, 34, 35, 36, 77. 767 Ibid, fn 34, also fn 23. CHAPTER 3 Stronger modes of reception of exogenic norms in the EU legal order 226 tice reform upholds the rule of law and complies with EU law and the European standards on judicial independence’.768 In December 2017, the Commission drafted a proposal for a ‘Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law’ in accordance with Article 7(1) TEU.769 The explanatory memorandum continued to rely on European standards and the Recommendation of the Committee of Ministers cited above.770 Several non-EU actors were cited, not only the Council of Europe Committee of Ministers, but also the Parliamentary Assembly, the Venice Commission, the Commissioner for Human Rights, and of course, the ECtHR,771 illustrating the impact of a wide European and international consensus at crucial moments of EU action to protect the rule of law. Other EU institutions also refer to the Council of Europe standards on the rule of law. The European Parliament urged the Polish Parliament and Government ‘to implement fully all recommendations of the Commission and the Venice Commission’.772 In Yanukovych, the EU General Court interpreted and applied the value of the rule of law in Article 2 TEU by 768 Commission Recommendation (EU) 2017/1520 of 26 July 2017 regarding the rule of law in Poland complementary to Recommendations (EU) 2016/1374 and (EU) 2017/146 [2017] OJ L228/19, para 53(e); Commission Recommendation of 20 December 2017 regarding the rule of law in Poland complementary to Commission Recommendations (EU) 2016/1374, (EU) 2017/146 and (EU) 2017/1520 [2018] OJ L17/50, para 47(g). Infringement procedures have been started (Art 258 TFEU). 769 Commission Proposal for a Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law COM(2017) 835 final (Reasoned proposal in accordance with Art 7(1) TEU). See recital 7, referring to CoE actors; and explanatory memorandum, referring to CoE instruments. 770 See e.g. paras 116 and 124, fn 54, 59, 64, 68, 69, 70, 111, 118, and 134. See also Commission Communication 'The 2019 EU Justice Scoreboard' COM(2019)198 final. 771 Proposal recital 7 and para 183. See CoE Parliamentary Assembly Resolution 2188(2017) 'New threats to the rule of law in Council of Europe member States: selected examples' (11 October 2017); Opinion 904/2017 CDL(2017)035 of the Venice Commission on the draft act amending the Act on the National Council of the Judiciary, on the draft act amending the Act on the Supreme Court proposed by the President of Poland, and on the Act on the Organisation of Ordinary Courts (CDL(2017)035), and Opinion 892/2017 CDL(2017)037 of the Venice Commission on the Act on the Public Prosecutor's Office as amended (CDL(2017)037). 772 European Parliament Resolution of 15 November 2017 on the situation of the rule of law and democracy in Poland (2017/2931(RSP)), para 7. C Incorporation of the title of exogenic instruments in EU law (mode 3) 227 reference to the rule of law checklist adopted by the Venice Commission on 11–12 March 2016.773 In Commission v Poland (2019), Advocate General Tanchev referred to various guidelines on judicial independence adopted by European and international bodies, inter alia the European Charter on the statute of judges. He noted that ‘such guidelines are so-called “soft law” or non-binding norms, yet they embody a “normative consensus” of rules and principles shared by the Member States (and other jurisdictions) which provide a useful reference for the Court’.774 In line with this finding, the ECJ referred in its judgment to an Opinion of the Venice Commission and gave effect to European and international standards on judicial independence and irremovability of judges. The Court held that Poland had failed to fulfil its obligations under the Article 19(1) TEU.775 In short, the title of exogenic Council of Europe standards on the rule of law—including the title of a recommendation of the Committee of Ministers—appears in several EU legal acts. Council of Europe standards, also referred to in ECJ case law, are essential elements for EU action protecting the rule of law in Member States. To what extent can the effects of the Council of Europe standards on the rule of law be seen as a precedent for Council of Europe standards on EDC? Occasional reception of EDC standards by incorporation of the title Reference to EDC standards So far the Charter on EDC/HRE has not been mentioned by title in EU legislation (legal acts adopted by legislative procedure, Art 289(3) TFEU).776 While EU legal acts in the education field repeatedly refer to 2. 105 773 Case T-348/14 Yanukovych ECLI:EU:T:2016:508, para 99 (Case C-599/16P ECLI: EU:C:2017:785, appeal dismissed). 774 Case C-619/18 Commission v Poland ECLI:EU:C:2019:531, Opinion of AG Tanchev, para 72. See also W Hoffmann-Riem, ‘The Venice Commission of the Council of Europe - Standards and Impact’ (2014) 25 European Journal of International Law 579. 775 Case C-619/18 Commission v Poland ECLI:EU:C:2019:531, para 82. See Case C-64/16 Juízes Portugueses ECLI:EU:C:2018:117, paras 30–32 (for judicial independence in a Member State, no reference to the CoE, yet reference to Art 2 and Art 19 TEU). For a critical assessment, see S O'Leary, ‘Europe and the Rule of Law’ (Keynote speech, ESCB Annual Legal Conference, Frankfurt 6 September 2018). Further Commission v Poland Case C-192/18 pending. 776 No results in EUR-Lex (15 October 2019). CHAPTER 3 Stronger modes of reception of exogenic norms in the EU legal order 228 cooperation with the Council of Europe, they generally do not mention Council of Europe instruments or EDC standards in particular.777 An exception is a 2018 Council recommendation on promoting common values, stating that Member States should ‘make effective use of existing tools to promote citizenship education, such as the Council of Europe’s Competences for Democratic Culture framework’778 (which is intended to operationalise the Charter on EDC/HRE). Some policy documents and EU preparatory acts refer to the titles of Council of Europe instruments on EDC. In a resolution of 2016, the European Parliament calls on Member States to draw up national action plans for fundamental rights education and to implement the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education.779 In the 2016 Council conclusions on developing media literacy and critical thinking through education and training, the Council expressly refers to the Council of Europe Framework of Competences of Democratic Culture. This can be categorised as a mode 3 reception of exogenic norms, albeit a watereddown version. The reference is not incorporated in a legislative act and the legal effects are minimal, as Member States are only invited to ‘consider using’ the Framework.780 In 2018 the Council referred to the Charter on EDC/HRE in its conclusions on ‘the role of young people in building a secure, cohesive and harmonious society in Europe’ and invites the Member States and the Commission to 777 In youth policy, some recommendations of the Committee of Ministers have been recalled with regard to information, see Conclusions of the Council and the Ministers for Youth meeting within the Council of 30 November 1994 on the promotion of voluntary service periods for young people [1994] OJ C348/2, or Council Resolution of 31 March 1995 on cooperation in the field of youth information and studies concerning youth [1995] OJ C207/5. For mentioning of EDC standards in the preamble, see i.a. n 858. 778 Council Recommendation of 22 May 2018 on promoting common values, inclusive education, and the European dimension of teaching [2018] OJ C195/1, para 3. 779 European Parliament Resolution of 13 December 2016 on the situation of fundamental rights in the European Union in 2015 (2018/C 238/01). See also European Parliament resolution of 12 June 2018 on modernisation of education in the EU (2017/2224(INI)), recital. 780 Council Conclusions of 30 May 2016 on developing media literacy and critical thinking through education and training [2016] OJ C212/5, para 3 (‘Invites the Member States’). See also Commission Communication supporting the prevention of radicalisation leading to violent extremism COM(2016) 379 final, 11. C Incorporation of the title of exogenic instruments in EU law (mode 3) 229 consider promoting and reinforcing, when and where relevant, the concept of ‘Education for democratic citizenship and human rights education’, which could be implemented in formal and non-formal learning environments and the peer-to-peer approach, respecting subsidiarity and freedom of education.781 Other instruments which expressly refer to the title of the Charter on EDC/HRE are joint programmes of the Council of Europe and the Commission. These programmes, though, only require that one EU Member State takes part besides other (non-EU) member states of the Council of Europe. They can thus hardly be seen as EU orientated.782 It should be noted that the Committee of the Regions and the EESC also refer to EDC standards in their Opinions.783 While the reference to the Council of Europe instruments on EDC in the examples given may have only minor legal effects, they nevertheless show that EDC standards have been received into the EU legal order in mode 3 and are not considered alien to that legal order. Attractive de lege ferenda If in various fields EU legislation refers to standards originating outside the EU legal order by their title, the same pathway could be followed for EDC standards. If it was possible to use the third mode of reception for recommendations of the Committee of Ministers on data protection, safety, language education, and the rule of law, comparable normative value might be attributed to the Recommendation on the Charter on EDC/HRE in the EU legal order. From the perspective of legislative technique, there is no obstacle to referring to the title of this Recommendation, provided that there is a legal basis in the Treaties (examined in Chapter nine). Moreover, from the perspective of the Memorandum of Understanding, the EU 106 781 Council Conclusions on the role of young people in building a secure, cohesive and harmonious society in Europe [2018] OJ C195/13, para 35 (emphasis added), see also paras 16 and 34 and fn 3. 782 See map on . Not involved in the Joint Programme ‘Human Rights and Democracy in Action’ (2013–2016) were, i.a., BE, DE, DK, IT, LU, NL, PT. See also text to n 898. 783 Opinion of the Committee of the Regions on the ‘EU Citizenship Report 2010’ [2011] OJ C166/3, para 12 (citing the 2002 Recommendation on EDC); Opinion of the European Economic and Social Committee on 'Education about the European Union' SOC/612 (21 March 2019), para 1.16 (referral to RFCDC). See also Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2005), p 17. Text to n 35. CHAPTER 3 Stronger modes of reception of exogenic norms in the EU legal order 230 would be honouring its commitment that ‘the relevant Council of Europe norms will be cited as a reference in European Union documents’.784 In the field of education, the Charter on EDC/HRE certainly belongs to the category of ‘relevant Council of Europe norms’. EDC is even considered to be a shared priority. De lege ferenda EDC standards could conceivably be received into the EU legal order in a comparable way to standards on language learning. The Committee of Ministers sees the CEFR as a flexible tool which does not offer ready-made solutions, but which ‘must always be adapted to the requirements of particular contexts’. This is true for EDC standards too. Moreover, language learning is not unrelated to citizenship objectives. The Committee of Ministers considers CEFR to be ‘a tool for coherent, transparent and effective plurilingual education in such a way as to promote democratic citizenship, social cohesion and intercultural dialogue’.785 The precedent created by incorporating rule of law standards in EU legal acts on the basis of their title is appealing (though preferably without having to wait for dramatic non-compliance by a Member State). If institutions like the Commission, Parliament, and the ECJ (General Court) can enhance the capacity of the EU to ensure effective and fair protection of the rule of law in Member States by referring to the title of Council of Europe standards, including a recommendation of the Committee of Ministers, they could, equally, enhance the capacity of the EU to ensure effective democracy and respect for human rights, the other main values mentioned in Article 2 TEU, in Member States by referring to Council of Europe standards on EDC/HRE by title. Member States enjoy wide discretion in organising their judicial systems just as they do in relation to their educational systems. However, in exercising that discretion, they must respect the values of Article 2 TEU, in relation to which the European stan- 784 Para 17. 785 CoE Recommendation CM/Rec(2008)7 of the Committee of Ministers to member states on the use of the Council of Europe’s Common European Framework of Reference for Languages (CEFR) and the promotion of plurilingualism (2 July 2008), appendix 1, A, 1. See also A Osler and H Starkey, Citizenship and Language Learning: international perspectives (Trentham Books 2005); and CoE Recommendation CM/Rec(2014)5 of the Committee of Ministers to member States on the importance of competences in the language(s) of schooling for equity and quality in education and for educational success (2 April 2014), appendix 6(d): ‘all languages are conducive to the success of school learning processes as much as to individual fulfilment and preparation for active life and the exercise of citizenship’. C Incorporation of the title of exogenic instruments in EU law (mode 3) 231 dards supported by a broad international consensus are relevant, as appears from the instruments of the EU institutions. The Commission underlines ‘that where a constitutional justice system has been established, its effectiveness is a key component of the rule of law’.786 There is an understanding that the principles of the rule of law include: legality, which implies a transparent, accountable, democratic and pluralistic process for enacting laws … Both the Court of Justice and the European Court of Human Rights confirmed that those principles are not purely formal and procedural requirements.787 Just like the rule of law, democracy is a value, expressed in terms of principles which ‘are not purely formal and procedural requirements’. Substantive democracy needs EDC.788 Compared to the quality of wine—important for the internal market—the quality of democracy and of respect for human rights is significantly more important, because it is the very foundation of life in society. Just as the EU cannot afford to lag behind internationally recognised standards on wine, it cannot––a fortiori––afford to fall behind internationally recognised standards on EDC/HRE, at least not in a Union which ‘places the individual at the heart of its activities’ (recital CFR), or a Union ‘in which decisions are taken as openly as possible and as closely as possible to the citizen’ (intention in Article 1 TEU). 786 Explanatory memorandum to Commission Proposal for a Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law COM(2017) 835 final, para 91. 787 Commission Communication 'A new EU Framework to strengthen the Rule of Law' COM(2014) 0158 final, p 4. 788 Text to n 1684. CHAPTER 3 Stronger modes of reception of exogenic norms in the EU legal order 232 Weaker modes of reception of exogenic norms in the EU legal order Incorporation of the substantive content of exogenic norms in EU law (mode 4) General Normative reception of substance In the legal landscape, in addition to a few highways and a number of marked secondary roads leading through various fields, the Council of Europe and the EU legal order are connected by well-functioning tracks and smaller paths. The fourth mode of reception does not involve incorporation of the title, but of the substantive content of the exogenic instrument, to a lesser or greater extent. With a high degree of incorporation, exogenic norms are copy-pasted into the corpus of the EU legal instrument. With a lesser degree, similarities in the substance appear, even if the wording of the norms differs. In the spectrum of modes of reception in the EU legal order, more nuanced forms thus come to the fore. Principles or definitions from Council of Europe norms may be incorporated, but the rules are adapted to the specific needs of the EU and its Member States. This mode can work openly, with a reference to the exogenic instrument in the preamble, or tacitly, the content of an exogenic norm being absorbed without any explicit reference thereto.789 In this mode, the legal source is not the copy-pasted exogenic norm, but the EU instrument, which may become the subject of preliminary rulings on validity or interpretation. In this latter process, interestingly, the exogenic norm often comes to life. Case law amplifies the fourth mode of normative reception by giving effect to the exogenic norms at the origin of EU law by interpret- CHAPTER 4 A 1. 107 789 E.g. Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time [2003] OJ L299/9. While the directive undoubtedly intends to comply with the rights enshrined in ESC, its preamble makes no reference to the ESC, as observed in CoE European Committee of Social Rights, The relationship between European Union law and the European Social Charter (Working Document, 2014), para 72. 233 ing EU law consistently with the exogenic norm, or taking it into account in a contextual, historic or teleological interpretation, or by giving effet utile to EU law provisions.790 The substantive content of Council of Europe conventions (a) as well as recommendations (b) has been incorporated—in whole or in part—in EU primary and secondary law. The following examples will raise a number of questions which fall to be answered in the following sections. Incorporation of the substance of Council of Europe conventions Transfrontier television: cases RTL and Commission v UK The 1989 European Convention on Transfrontier Television is the object of both converging and diverging case law.791 The EU was not party to this Convention, but adopted its own legal instrument in the same year, Council Directive 89/552, which constituted the legal framework for television broadcasting in the internal market. The Directive referred in its preamble to the Convention and had several quasi identical provisions.792 In RTL, a preliminary question was referred about the interpretation of a Directive provision which had the same wording as a Convention provision. In order to interpret the term ‘films made for television’, having considered the wording, the Court adopted a historical and teleological interpretation.793 To find the underlying aim, the Court referred to the explanatory report accompanying the European Convention.794 This example of converging case law contrasts with the earlier case Commission v UK. The UK 108 790 The sixth mode of reception (interpretation) thus complements the fourth. 791 European Convention on Transfrontier Television (5 May 1989). 792 Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities [1989] OJ L298/23, as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 [1997] OJ L202/60. Art 18(1) Dir is identical to Art 12(1) Convention; Arts 11(1), (3) and (4) Dir are quasi identical to Arts 14(1), (3) and (4) Convention. See also definition in Art 6(b). 793 Art 11(3) Dir and Art 14(3) Convention: ‘The transmission of audiovisual works such as feature films and films made for television (excluding series, serials, light entertainment programmes and documentaries), provided their scheduled duration is more than 45 minutes, may be interrupted once for each period of 45 minutes...’. 794 Case C-245/01 RTL Television ECLI:EU:C:2003:580, paras 61- 63, see also para 97. RTL claimed that ‘films made for television which provide, from their con- CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 234 had argued that Council Directive 89/552––which, according to the Commission, it had failed to implement correctly––was based on the European Convention on Transfrontier Television and that rules on intra-Community broadcasting could not differ radically from those of the Convention.795 The ECJ did not accept this argument. In the light of a comparative analysis of the wording, scheme and aims of the Directive and of the Convention,796 the Court underlined a substantive difference. The Directive was designed to establish the internal market in television services, while the Convention aimed to facilitate the transfrontier (re)transmission of television programme services.797 Because of the difference in purpose, the Directive rules followed a different path.798 It can be deduced from this case law that exogenic norms can be received into the EU legal order through incorporation of elements of their substantive content into an act of EU law. That does not, however, necessarily lead to consistent interpretation of such an act with the exogenic norms at its origin. The specific aims of the EU must be respected. Does the EU have its own agenda for democracy and human rights which would legitimise a different approach and interpretation which diverges from EDC/HRE standards? ception, for breaks for the insertion of advertising’ do not come within the meaning of ‘films made for television’ in Article 11(3)’. The ECJ did not accept this view. RTL’s claim did not fit with the purpose of Art 11, which was to establish ‘a balanced protection of the financial interests of the television broadcasters and advertisers, on the one hand, and the interests of the rights holders, namely the writers and producers, and of consumers as television viewers, on the other’. See for earlier cases with a comparable converging reasoning: Joined Cases C-320/94, C-328/94, C-329/94, C-337/94, C-338/94 and C-339/94 RTI and Others ECLI:EU:C:1996:486, para 33, and Opinion of AG Jacobs, paras 6 and 31. Also Case C-11/95 Commission v Belgium ECLI:EU:C:1996:316, paras 24–25 (Convention used to determine the scope of the Directive). 795 Case C-222/94 Commission v UK ECLI:EU:C:1996:314, paras 43–44, concerning Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities [1989] OJ L298/23, as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 [1997] OJ L202/60. 796 Para 45, i.a. comparing Art 2(1) Dir and Art 5(2) Convention. 797 Paras 49–50. 798 Paras 52–53. See also Case C‑601/14 Commission v Italy ECLI:EU:C:2016:759. A Incorporation of the substantive content of exogenic norms in EU law (mode 4) 235 Prisoners standards: case Ognyanov Ognyanov illustrates the autonomy of an EU legislative act vis-à-vis a Council of Europe Convention: the ECJ did not refer to the Council of Europe Convention at the origin, but interpreted by referral to a specific EU objective, namely, the principle of mutual recognition.799 The 1983 Council of Europe Convention on the Transfer of Sentenced persons, ratified by all Member States, aimed to further the social rehabilitation of foreign prisoners by allowing them to serve their sentence in their own country.800 In 2011, the Council of the EU adopted Framework Decision 2008/909/JHA, replacing corresponding provisions of the European Convention in the relations between the Member States.801 The Framework Decision copied Convention norms to a great extent (it contains some verbatim copy-pasted fragments and some adaptations in terminology802). The preamble of the Framework Decision referred to Council of Europe instruments and the need to further develop cooperation on the enforcement of criminal judgments. In addition to the aim of facilitating social rehabilitation, the EU had a further objective, considering that relations between the Member States are characterised by special mutual confidence in other Member States’ legal orders and thus justify recognition by the executing State of decisions taken by the issuing State.803 In the instant case a court in Den- 109 799 Case C-554/14 Ognyanov ECLI:EU:C:2016:835. See on mutual trust, essential characteristic of the EU: EU Accession to the ECHR Opinion 2/13 ECLI:EU:C: 2014:2454. 800 Convention on the Transfer of Sentenced Persons ETS No 112 (Strasbourg, opened 21 March 1983, entered into force 1 July 1985); Additional Protocol ETS 167 (Strasbourg, opened 18 December 1997, entered info force 1 June 2000), Art 3(1)(d) and Art 7. 801 Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union [2008] OJ L327/27, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 [2009] OJ L81/24, Art 26. 802 E.g. ‘issuing State’ and ‘executing State’ instead of ‘sentencing State’ and ‘administering State’ in the Convention. 803 Recitals 4–5. Cp Art 6 Dec to Art 3 Convention. See, in that line, later amending legislation: Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/ JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial [2009] OJ L81/24. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 236 mark (issuing State) had sentenced Mr Ognyanov to 15 years imprisonment. After spending some time in a Danish prison, Mr Ognyanov was transferred to Bulgaria (executing State). The Bulgarian judge had doubts as to whether the period during which Mr Ognyanov had worked in the Danish prison could be deducted from the length of the sentence still to be served in Bulgaria. While Bulgarian law provided for such a reduction, Danish law did not. The Framework Decision stated in Article 17 that ‘the enforcement of a sentence shall be governed by the law of the executing State’, but did not clarify whether enforcement began at the moment of delivery of the judgment or at the moment of transferral to the executing State.804 The ECJ decided in favour of the latter option; a reduction in the sentence by reason of work carried out before the transfer may only be granted on the basis of the law of the issuing State. Contrary to the Advocate General Bot,805 the Court did not refer to the original Council of Europe Convention, but interpreted Article 17 autonomously, on the basis of the place of that provision in the Framework Decision (internal context) and on the objective of respect for the principle of mutual recognition, which is the ‘cornerstone’ of judicial cooperation in criminal matters within the European Union.806 Education of nurses: case Commission v Germany The autonomy of the EU legal order vis-à-vis the Council of Europe also appears from case law establishing that the requirement to implement EU law cannot be replaced merely by respecting Council of Europe norms. In Commission v Germany, the Commission claimed that Germany had failed to implement i.a. Directive 77/452. Germany argued that its administrative practice was in conformity with the 1967 European Agreement on the instruction and education of nurses, the provisions of which were almost identical to those of Directive 77/452.807 The ECJ ruled that in the circumstances, the incorporation of the European Agreement into national law could not replace the proper implementation of the Directive.808 110 804 Para 32. 805 Case C-554/14 Ognyanov ECLI:EU:C:2016:835, Opinion of AG Bot, paras 96–98. 806 Para 34 and 46. 807 Case 29/84 Commission v Germany ECLI:EU:C:1985:229, para 34, concerning European Agreement on the Instruction and Education of Nurses ETS No 59 (Strasbourg, opening 25 October 1967, entry into force 7 August 1969). 808 Para 38. The ECJ concluded that Germany had failed to fulfil its obligations. See also Case C‑601/14 Commission v Italy ECLI:EU:C:2016:759: Italy failed to adopt the necessary measures under the Council Directive 2004/80/EC of 29 A Incorporation of the substantive content of exogenic norms in EU law (mode 4) 237 Social standards An example of converging case law in the field of social standards is Khalil and Others. The ECJ had to answer a preliminary question on whether a Regulation on social security schemes was valid in so far as it included stateless persons and refugees in its personal scope. In order to do so the ECJ situated the Regulation in its historical context, recalling i.a. the European convention on social security for migrant workers. The Court pointed to Regulation provisions which ‘replicated content’ or were ‘substantively identical’. No factors were found affecting the validity of the Regulation.809 In general, the standards set by the Council of Europe and the EU on social rights largely converge: the 98 paragraphs of the Revised European Social Charter can be matched with binding provisions of EU primary or secondary law.810 Many provisions of the CFR draw on articles of the European Social Charter, as appears from the CFR preamble and the Explanations.811 However, it is important to recognise significant inconsistencies, which make the red line appear.812 Due regard must be had to the 111 April 2004 relating to compensation to crime victims [2004] OJ L261/15. In the interpretation the Court took account ‘not only of the wording of that provision, but also of the objectives pursued by that directive, and the system established by that directive of which it is part.’ In the preamble, the Directive cited the European Convention of 24 November 1983 on the compensation of victims of violent crimes, but pursued its own objective of abolishing obstacle to free movement of persons and services. 809 Joined Cases C-95/99 to C-98/99 and C-180/99 Khalil and others ECLI:EU:C: 2001:532, see paras 31, 42–43, 52–53, 58, concerning Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 [1983] OJ L230/6, and specific context of (ia) European convention on social security for migrant workers (signed 9 December 1957). Question of compatibility with Art 51 EEC. 810 CoE European Committee of Social Rights, The relationship between European Union law and the European Social Charter (Working Document, 2014), para 19. 811 See CRF Explanations to Arts 14, 15, and 23, as well as Arts 25 till 35 CFR. 812 Opinion of the Secretary General of the Council of Europe on the European Union initiative to establish a European Pillar of Social Rights (Strasbourg, 2 December 2016), p 3, and appendix p 16, with table of provisions of the Revised ESC and corresponding guarantees in primary and secondary EU legislation where they exist. See also CoE European Committee of Social Rights, The relationship between European Union law and the European Social Charter (Working Document, 2014), para 27 ff, appendixes 2 and 3. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 238 powers and tasks of the Union and to the principle of subsidiarity (preamble CFR). The ECJ interprets CFR provisions in keeping with the European Social Charter, but differences in the finetuning require a nuanced approach.813 Mr Jagland, the Secretary General of the Council of Europe, asked the EU to formally incorporate provisions of the European Social Charter into the European Pillar of Social Rights, launched by the European Commission as a common benchmark.814 Given the uncertainties and reticence as to the reception of the social standards of the Council of Europe––even though they are laid down in a (binding) convention, the European Social Charter815––there can be no expectation of automatic reception in EU law of EDC standards, which are only set out in (nonbinding) recommendations. Can EDC standards be shared in principle, but with divergences in the finetuning, having due regard to the powers and tasks of the Union and to the principle of subsidiarity? Converging and diverging lines of case law In conclusion, European conventions whose substance is incorporated in EU law may have effects in a converging line of case law, where the ECJ interprets EU law consistently with the Council of Europe standards at its origin. However, this remains an autonomous interpretation of EU law in which the red line may emerge at any moment, as i.a. Ognyanov illustrated. Notwithstanding far-reaching reception of the substance of exogenic norms, EU law may pursue its own objectives or manifest specific features, and the interpretation of EU law provisions may consequently diverge from the original exogenic norms. This first reflection will provide food for thought in the section on the EDC standards. Do the Council of Europe recommendations on EDC fall under the converging or the diverging line of case law, or under both, depending on the particular subjectmatter considered?816 112 813 See CoE European Committee of Social Rights, The relationship between European Union law and the European Social Charter (Working Document, 2014), appendix 2, column 4. 814 Opinion of the Secretary General of the Council of Europe on the European Union initiative to establish a European Pillar of Social Rights (Strasbourg, 2 December 2016), 4, 13. Compare Commission Communication 'Establishing a European Pillar of Social Rights' COM(2017) 250 final. 815 See n 636. 816 Further §§ 142 144 155 . A Incorporation of the substantive content of exogenic norms in EU law (mode 4) 239 Incorporation of substance of Council of Europe recommendations Blood standards: case Humanplasma In addition to conventions, recommendations of the Committee of Ministers to the member states of the Council of Europe are received into the EU legal order by means of normative incorporation of their substance and judicial interpretation which takes them into account. A second reflection is that exogenic norms not only have effects in the interpretation of provisions incorporating their substance, but also in the broader context of EU law. Two cases will illustrate this. In Humanplasma, the ECJ cited an article in the appendix to a recommendation of the Committee of Ministers (the Charter on EDC/HRE also features in the appendix of a recommendation) and used this article in the interpretation and application of the Treaty provisions on free movement of goods and the justification for restrictions on grounds of protection of health (Article 34 juncto 36 TFEU).817 The Council of Europe standard provided additional support for the reasoning in the proportionality test. Austrian legislation only permits importation of blood or blood components from other Member States if blood donations have been made without any payment to the donors, even in terms of the coverage of costs. The ECJ holds this to be a measure of equivalent effect to a quantitative restriction on imports (Article 34 TFEU).818 A restriction can be justified on grounds of the protection of human health, if it is appropriate and does not go beyond what is necessary to attain the objective (Article 36 TFEU).819 The Court admits that the Member States have a discretion as to the level of protection of human health.820 Yet, the fact that a number of other Member States reimburse blood donors’ costs is relevant. Here, the Court refers to Council of Europe Recommendation (95)14 and an EU Directive in line with it (incorporating some substantive content).821 Recommendation (95)14 113 817 Case C-421/09 Humanplasma ECLI:EU:C:2010:760, para 7: Art 2 of appendix to CoE Recommendation No R (95) 14 of the Committee of Ministers to the Member States of the Council of Europe on the protection of health of donors and recipients in the area of blood transfusion (12 October 1995) (Legal context, International rules). Then Art 28 EC juncto Art 30 EC. 818 Para 30. 819 Paras 31–36. 820 Paras 39–40. 821 Para 41. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 240 of the Committee of Ministers to the member states of the Council of Europe ‘on the protection of health of donors and recipients in the area of blood transfusion’ stipulates in Article 2 of its appendix that ‘voluntary, non-remunerated donation’ of blood is compatible with small tokens, refreshments and reimbursements of direct travel costs.822 Directive 2002/98 of the European Parliament and of the Council setting standards of quality and safety for the collection, testing, processing, storage and distribution of human blood and blood components refers in its preamble to ‘relevant recommendations of the Council of Europe’, considers that the efforts of the Council of Europe in the area of voluntary and unpaid donations should be supported, and that ‘[t]he definition of voluntary and unpaid donation of the Council of Europe should be taken into account’.823 The Court recalls that both the Directive and Recommendation (95)14 aim to improve the health of donors or recipients of blood, but that they do not require that donations be completely unpaid.824 Austrian legislation goes beyond what is necessary to attain the objective of ensuring the quality and safety of the blood and of the blood components.825 Health, like education, is an area where Member States have discretionary powers. Even so, the ECJ took a consensus in a Council of Europe recommendation into account in the interpretation of EU law. Standards for the reception of applicants for international protection: case N In case N, the ECJ referred to a recommendation of the Committee of Ministers of the Council of Europe in its interpretation and application of EU primary law provisions on the right to liberty and on limitations to this right (Articles 6 juncto 52(1) and (3) CFR). The validity of a provision of the ‘Reception Directive’ (Directive 2013/33/EU of the European Parliament and of the Council laying down standards for the reception of appli- 114 822 CoE Recommendation No R (95) 14 of the Committee of Ministers to the Member States of the Council of Europe on the protection of health of donors and recipients in the area of blood transfusion (12 October 1995); Directive 2002/98/EC of the European Parliament and of the Council of 27 January 2003 setting standards of quality and safety for the collection, testing, processing, storage and distribution of human blood and blood components and amending Directive 2001/83/EC [2003] OJ L33/30. 823 Directive 2002/98/EC, recitals 4, 23, 27. 824 Para 44. 825 Para 45. A Incorporation of the substantive content of exogenic norms in EU law (mode 4) 241 cants for international protection) fell to be assessed in the light of the CFR Articles cited.826 The provision in issue stated that an applicant may be detained ‘when protection of national security or public order so requires’. As a limitation to the right to liberty protected by Article 6 CFR, it had to satisfy the criteria of Article 52(1) CFR, i.a. be ‘necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the right and freedom of others’.827 Moreover, limitations to the right to liberty must be ‘strictly necessary’, in view of its importance.828 To assess strict necessity, the ECJ interpreted the Directive on the basis of its wording, context and legislative history.829 It is at that point of the reasoning that the exogenic norm came in. Looking at the explanatory memorandum to the proposal for the Directive, the Court found that the grounds for detention were based on the 2003 Recommendation of the Committee of Ministers of the Council of Europe on measures of detention of asylum seekers and on detention standards in Guidelines of the UN High Commissioner for Refugees.830 Noting in these exogenic instruments the strictly circumscribed conditions for detention, making it an exceptional measure of last resort, the Court found no factors affecting the validity of the provision at issue. It is interesting in this case that, notwithstanding the fact that they were not mentioned in the preamble of the Directive, Council of Europe exogenic norms nevertheless were given legal effect in the EU legal order. The effects of the UN guidelines cited should be noted as well, since they are relevant for Chapter nine.831 In her View in the case N, Advocate General Sharpston also put the secondary law provisions in a historical context and pointed to similarities in the scope ratione personae of the Reception Directive and the Recommendation of the Committee of Ministers.832 In the earlier case El Dridi, the Court had already based its ruling on a historic and teleological interpreta- 826 Case C‑601/15 PPU N ECLI:EU:C:2016:85, concerning Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection [2013] OJ L180/96. The provision in litigation was Art 8(3)(e). 827 Para 50. 828 Para 56 (emphasis added). 829 Para 57. 830 Para 63. Repeated in Case C‑18/16 K ECLI:EU:C:2017:680, para 46. 831 Text to n 2203. 832 Case C‑601/15 PPU N ECLI:EU:C:2016:85, View of AG Sharpston, fn 48. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 242 tion of Directive 2008/115, the predecessor of the Reception Directive, and had referred to guidelines of the Committee of Ministers.833 To sum up, the reception of exogenic norms in mode 4 unmistakably has effects in the interpretation and application of EU law. In Humanplasma and N, the exogenic norms––recommendations of the Committee of Ministers––were taken into account in the broader context of EU law in the interpretation and application of provisions relating to the internal market (Article 34 juncto 36 TFEU) and to the fundamental right to liberty (Article 6 juncto 52 CFR). Can recommendations of the Committee of Ministers containing EDC standards be taken into account in the interpretation and application of EU law provisions on citizenship and democracy in a comparable way? The first question to be answered is: has the substantive content of EDC standards in Council of Europe instruments been received into the EU legal order? Fragmented incorporation of the substantive content of EDC standards Endogenic norms related to citizenship education are drawn up in the EDC paradigm For EDC standards, the connecting routes between the Council of Europe and the EU legal order are predominantly situated in modes 4 and 5. This section will analyse the norms related to citizenship education originating within the EU legal order itself, thus endogenic (by contrast to the exogenic EDC norms of the Council of Europe). The substance of exogenic EDC standards can be identified to a significant degree within EU law. Admittedly, there is no extensive copy-pasting of the provisions of the Charter on EDC/HRE, nor any reference in the preambular provisions of EU legislation. Yet, similarities in substance and quasi identical expressions do appear. The fact that the EU embraces the Council of Europe EDC paradigm will be demonstrated in (1) EU primary law and (2) EU secondary law. To what extent this normative incorporation can be supplemented by an interpretation of EU law taking the exogenic standards into account, will be explored in mode 6. 2. 115 833 Case C-61/11 PPU El Dridi ECLI:EU:C:2011:268, paras 43–44, and Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98, recital 3. A Incorporation of the substantive content of exogenic norms in EU law (mode 4) 243 EU primary law: linking democracy and citizenship with education A combined reading of Articles 10(3) TEU and 165(2) TFEU In EU primary law, a clear link can be seen between citizenship and democracy on the one hand and education on the other hand. The similar wording of provisions inserted by the Lisbon Treaty in 2009 is striking. In the new Title II ‘Provisions on democratic principles’ in the TEU, Article 10(3) TEU provides that ‘[e]very citizen shall have the right to participate in the democratic life of the Union’. At the same time, the Lisbon Treaty added an extra sentence to Article 165(2) TFEU (which is the legal basis for EU education policy), stating that in education matters, Union action shall be aimed at ‘encouraging the participation of young people in democratic life in Europe’ (last part of fifth indent).834 Admittedly, this extra sentence figures in an indent on youth policy, thus not on formal (school) education. Nevertheless, the comma preceding the phrase, added by the authors of the Lisbon Treaty, indicates its openness to education in general.835 The provision is to be read in the light of Article 165 on education as a whole. On the basis of a textual interpretation, participation of young people in democratic life in Europe is undeniably an objective of EU education policy. On a contextual interpretation, reading Articles 10(3) TEU and 165(2) TFEU together, the congruence with the EDC objectives of the Council of Europe stands out. The EU norm seeking to encourage participation of young people in democratic life in Europe by education, is in substance the same as the Council of Europe concept of EDC, empowering them ‘to play an active part in democratic life’ (EDC component c-3). 116 834 My emphasis. Also similarities in other language versions. Cp Art 10(3) TEU ‘Tout citoyen a le droit de participer à la vie démocratique de l'Union’, ‘Iedere burger heeft het recht aan het democratisch bestel van de Unie deel te nemen’, ‘Alle Bürgerinnen und Bürger haben das Recht, am demokratischen Leben der Union teilzunehmen’, with Art 165(2) TFEU: ‘encourager la participation des jeunes à la vie démocratique de l'Europe’, ‘deelneming van jongeren aan het democratisch leven van Europa aan te moedigen’, ‘verstärkte Beteiligung der Jugendlichen am demokratischen Leben in Europa’. See in context of Convention on the Future of Europe (2003) , ‘Document du Praesidium: project de titre VI du traité constitutionnel concernant la vie démocratique de l’Union (2 avril 2003)’. 835 No comma in the Treaty establishing a Constitution for Europe. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 244 Council of Europe context of drafting The drafting of Article 10(3) TEU and of the extra sentence in Article 165(2) TFEU dates from the 2004 Treaty establishing a Constitution for Europe.836 The context in which it was drafted was one of intense action on EDC at Council of Europe level (first and second phase of the EDC project). Concurrent action by Member States in the Council of Europe and at EU level, and the cooperation of the EU and the Council of Europe, show their effects in parallel norm-setting. In addition to an identical objective—empowerment for participation—the wording is also very similar. In 1999, the Committee of Ministers had stressed ‘the fundamental role of education in promoting the active participation of all individuals in democratic life’.837 Similar terms are used in the 2002 Recommendation on EDC, the forerunner of the 2010 Recommendation on the Charter on EDC/HRE.838 The Committee of Ministers recommended that the governments of member states make EDC a priority objective of educational policy-making and reforms.839 The fact that the authors of the EU Treaty reform included the encouragement of participation in democratic life as one of the objectives of education by inserting the extra sentence in the fifth indent, is fully in keeping with the 2002 Recommendation. EU secondary law: various aspects of EDC standards EU legislative acts, variable terminology, same paradigm In EU secondary law, much of the substantive of EDC standards is visible (mode 4) and certainly their inspiration (explained in mode 5). Even if the expressions ‘education for democratic citizenship’ or ‘citizenship educa- 117 118 836 Treaty establishing a Constitution for Europe [2004] OJ C310/1. In Title VI (‘The Democratic life of the Union’) Art I-46 on ‘The principle of representative democracy’, para (3) has the same wording as Art 10(3) TEU. Art III-282 (1)(e) has the same wording as Art 165(2), but without a comma before ‘encouraging’. Art 165 TFEU dates from the 1992 Maastricht Treaty (then Art 126 EC). The 1997 Amsterdam Treaty had no provision encouraging participation in democratic life. 837 CoE Committee of Ministers Declaration and programme on education for democratic citizenship, based on the rights and responsibilities of citizens (Budapest, 7 May 1999), para 7. See first and second phases. 838 CoE Recommendation Rec(2002)12 of the Committee of Ministers to member states on education for democratic citizenship (16 October 2002). 839 Para 3. A Incorporation of the substantive content of exogenic norms in EU law (mode 4) 245 tion’ are rarely used as such, components of the EDC concept, EDC objectives and underlying principles are present.840 Obviously, norms on citizenship education appear more laterally and sporadically in EU legislative acts than in Council of Europe instruments. The Council of Europe tackles the subject systematically, comprehensively, and as part of its core mission. In the EU legal order, ‘citizenship education’ is not a directly conferred Treaty competence. Yet, with the widening of the scope of EU competences beyond those of a mere economic project, action has been taken which can be situated in the field of citizenship education. Remarkably, where citizenship education is referred to in legal acts of the Union, the terms used are variable and often not defined, thus contrasting with the consistent use of ‘education for democratic citizenship’ in the normative framework of the Council of Europe, a well-defined concept embedded in standards developed over decades. In addition to ‘civic competences’ (used in the plural) and ‘citizenship competence’ (used in the singular),841 EU legal instruments occasionally use the expression ‘citizenship education’. Other expressions adopted are ‘civic education and intercultural understanding’, ‘civic education courses’, ‘civic orientation programmes’, ‘promotion of civic competences’, or ‘human rights and citizenship education’.842 However, regardless of the disparities in terminology, what matters is that the EU clearly embraces the EDC paradigm.843 The following examples highlight the EDC aspects in the content of EU instruments. 840 See already early, Resolution of the Council and the Representatives of the Governments of the Member States, meeting within the Council of 29 May 1990 on the fight against racism and xenophobia [1990] OJ C157/1 (role of education in developing ‘civic-mindedness and the values of pluralism and tolerance’); Resolution of the Council and the Representatives of Member States' Governments meeting within the Council of 23 October 1995 on the response of educational systems to the problems of racism and xenophobia [1995] OJ C312/1 (‘European educational systems should continue as well as enhance their efforts at promoting education in values which encourage attitudes of solidarity and tolerance, as well as respect for democracy and human rights’). Also Case C-379/87 Groener ECLI:EU:C:1989:599, para 20: ‘[t]eachers have an essential role to play’ in a policy of cultural and linguistic diversity. 841 Cp the 2006 and 2018 Recommendation on key competences for lifelong learning (below). 842 Instruments in next section. See also Commission Communication 'Improving and modernising education' COM(2016) 941 final (no citizenship education, but lateral mentioning of civic competences). 843 See § 40 (conclusion normative context). CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 246 Recommendations on key competences for lifelong learning In the 2006 Recommendation on key competences for lifelong learning, the European Parliament and the Council developed a Reference Framework of key competences.844 On 22 May 2018 this Recommendation was replaced by a Council Recommendation on key competences for lifelong learning.845 Because the 2006 Recommendation was, for a long time, the central text on key competences and was the basis for the 2018 Recommendation, the reception of exogenic EDC norms is here analysed on the basis of the 2006 instrument.846 The 2006 Recommendation did not refer to the title of Council of Europe instruments, nor did it duplicate any provisions thereof, but the development of the Framework occurred in cooperation with the Council of Europe, and similar substance and wording to the EDC standards were adopted.847 During the preparatory work explicit reference was made to the EDC project (working group on active citizenship and social cohesion): The contribution of education and training to the development of active citizenship promoting inclusion and social cohesion is acknowledged by everyone. The Council of Europe's project on education for democratic citizenship is, moreover, actively supported by the Member States and the European Commission. 848 119 844 Recommendation of the European Parliament and of the Council of 18 December 2006 on key competences for lifelong learning [2006] OJ L394/10 (Annex: Key Competencies for Lifelong Learning- A European Reference Framework). 845 Council Recommendation of 22 May 2018 on key competences for lifelong learning [2018] OJ C189/1. 846 The analysis as to the substance in Part three is based on the 2018 Recommendation. 847 Reference to cooperation with CoE in the work programme on the objectives of the education and training systems, see Commission Communication 'Education & Training 2010': The success of the Lisbon Strategy hinges on urgent reforms (Draft joint interim report on the implementation of the detailed work programme on the follow-up of the objectives of education and training systems in Europe) COM(2003) 0685 final, point 1.1.1. 848 Commission Report Implementation of the 'Education & Training 2010' programme - Supporting document for the draft joint interim report on the implementation of the detailed work programme on the follow-up of the objectives of education and training systems in Europe SEC(2003) 1250 final, heading 4 (Conclusion of the working groups), points 4.1.1 and 4.1.10 (Education and training for active citizenship). A Incorporation of the substantive content of exogenic norms in EU law (mode 4) 247 Civic competences were identified as one of the eight key competences (together with, i.a., language, mathematical, or science and technology competences). They should be acquired before compulsory schooling ends and serve as the platform for any further learning. Competences were defined as ‘a combination of knowledge, skills and attitudes appropriate to the context’. Key competences were ‘those which all individuals need for personal fulfilment and development, active citizenship, social inclusion and employment’.849 EDC components resonated in the description of social and civic competences: These include personal, interpersonal and intercultural competence and cover all forms of behaviour that equip individuals to participate in an effective and constructive way in social and working life, and particularly in increasingly diverse societies, and to resolve conflict where necessary. Civic competence equips individuals to fully participate in civic life, based on knowledge of social and political concepts and structures and a commitment to active and democratic participation.850 In a long paragraph the EU Recommendation describes the essential knowledge, skills and attitudes on which civic competences are based or which they include. ‘Civic competence is based on knowledge of the concepts of democracy, justice, equality, citizenship, and civil rights (...).’851 Skills include the ability to engage effectively with others in the public domain, to display solidarity and interest in solving problems, as well as critical and creative reflection and constructive participation in community activities and decision-making, in particular through voting. 849 Recommendation of the European Parliament and of the Council of 18 December 2006 on key competences for lifelong learning [2006] OJ L394/10 (Annex: Key Competencies for Lifelong Learning- A European Reference Framework). 850 Annex, heading 6. 851 Knowledge: ‘Civic competence is based on knowledge of the concepts of democracy, justice, equality, citizenship, and civil rights, including how they are expressed in the Charter of Fundamental Rights of the European Union and international declarations and how they are applied by various institutions at the local, regional, national, European and international levels. It includes knowledge of contemporary events, as well as the main events and trends in national, European and world history. In addition, an awareness of the aims, values and policies of social and political movements should be developed. Knowledge of European integration and of the EU's structures, main objectives and values is also essential, as well as an awareness of diversity and cultural identities in Europe.’. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 248 Attitudes include respect for human rights, including equality as a basis for democracy, understanding differences in value systems or religions, and demonstrating a sense of responsibility.852 The similarity of the Council of Europe concept of EDC and the EU concepts of civic and social competences is not surprising, given the recognition by the EU of the longstanding expertise of the Council of Europe in education and the involvement of all Member States in the genesis of the 2002 Council of Europe Recommendation on education for democratic citizenship adopted four years earlier.853 The mutual influence of the Council of Europe and the EU can also be detected in later instruments. True, the authors of the 2010 Charter on EDC/HRE preferred not to adopt the term ‘competences’ (a cluster of skills, knowledge and attitudes focusing on outcomes) and continued to refer to the ‘curriculum’ (generally understood as focusing on learning objectives).854 Yet the underlying principles remain the same. A comparison of the 2006 Recommendation with the 2010 Charter on EDC/HRE reveals the same central objective of the ‘empowerment’ of citizens and similar components. Component (c-2)— valuing diversity—appears expressis verbis as part of social competence in 852 Values, attitudes and participation: ‘Full respect for human rights including equality as a basis for democracy, appreciation and understanding of differences between value systems of different religious or ethnic groups lay the foundations for a positive attitude.’ Also ‘a willingness to participate in democratic decision-making at all levels’ and ‘demonstrating a sense of responsibility, as well as showing understanding of and respect for the shared values that are necessary to ensure community cohesion, such as respect for democratic principles. Constructive participation also involves civic activities, support for social diversity and cohesion and sustainable development, and a readiness to respect the values and privacy of others’. 853 CoE Recommendation Rec(2002)12 of the Committee of Ministers to member states on education for democratic citizenship (16 October 2002), see, i.a., paras 2 and 3: some identical terms (knowledge, attitudes and skills) and certainly the same ideas (e.g. critical approach). 854 Explanatory memorandum para 43. See also CoE Reference Framework of Competences for Democratic Culture, Vol 3: Guidance for implementation (2018), 14: in Europe, the three main curriculum approaches are the knowledgebased curriculum (traditional), the objectives-based curriculum and the competence-based curriculum. Each approach determines which central element structures the curriculum, the remaining curriculum components follow from the central one; the competence-based curriculum is a further development of the objectives-based curriculum. Most curricula combine the three approaches. See also Commission Communication ‘Empowering businesses and citizens in Europe’s single market: An Action Plan for boosting Your Europe in cooperation with the Member States’ COM(2013) 636 final. A Incorporation of the substantive content of exogenic norms in EU law (mode 4) 249 the EU Recommendation on key competences.855 Component (c-3)—playing an active part in democratic life—goes with equipping citizens ‘to fully participate in civic life’ and the ‘commitment to active and democratic participation’ in the EU Recommendation. In the public consultations to review the 2006 Recommendation, a broad acceptance of the provisions on civic competences could be observed. Several contributors proposed better alignment with the EDC standards. One observer found that the definition of civic competence in the 2006 Recommendation lagged behind the better EDC/HRE standards of the Council of Europe.856 The 2018 Recommendation defines ‘citizenship competence’ as follows: Citizenship competence is the ability to act as responsible citizens and to fully participate in civic and social life, based on understanding of social, economic, legal and political concepts and structures, as well as global developments and sustainability.857 Components similar to those in the EDC standards continue to appear in the 2018 Council Recommendation on key competences for lifelong learning. Moreover, in the preamble the Council explicitly refers to the Council of Europe RFCDC (which further implements the Charter on EDC/HRE) and confirms that it took this into account when updating the Reference Framework on key competences.858 855 ‘Individuals … should value diversity and respect others, and be prepared both to overcome prejudices and to compromise.’. 856 Support of the stakeholder consultation in the context of the Key Competences Review: Report on the results of the stakeholder consultation EAC/2017/0150, pp 27, 51, 58, 59, 64, 72 (i.a. referring to Council of Europe model for Competences for Democratic Culture’). 857 See Annex 4 to this study: EU Recommendation on key competences for lifelong learning (2018) for the description of essential knowledge, skills and attitudes related to the citizenship competence. 858 Council Recommendation of 22 May 2018 on key competences for lifelong learning, recital 15: ‘the Council of Europe’s Reference Framework of Competences for Democratic Culture presents a comprehensive set of values, skills and attitudes for an appropriate participation in democratic societies. All of these have been taken into due consideration when updating the Reference Framework.’. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 250 Other EU instruments There are other legal acts of the EU which are consistent with the EDC standards of the Council of Europe. While not necessarily referring to those standards, they encompass aspects of them. In the 2012 Decision on the European Year of Citizens (2013), Parliament and Council recognised the leading role of the Council of Europe and recalled that social and civic competences equip Union citizens to participate fully in civic life and ‘empower them to exercise their rights’ (words of the 2010 Council of Europe Charter on EDC/HRE). While the expressions ‘citizenship education’ and ‘education for democratic citizenship’ are absent, the three components (c-1–3) appear.859 In the 2013 Erasmus+ Regulation, Parliament and Council state that cooperation with the Council of Europe in the field of education should be strengthened.860 As to the substance (not the words), the definitions of formal, non-formal or informal education are similar to those in the Charter on EDC/HRE.861 The Regulation does not use the expressions ‘citizenship education’ or ‘education for democratic citizenship’ either, but it recognises the role of education in promoting active citizenship, participation in democratic life, and European values (comparable objectives to the EDC standards).862 In the 2013 Regulation establishing a Rights, Equality and Citizenship Programme for the period 2014 to 2020, the Parliament and the Council seek to improve the exercise of citizens’ rights and pursue this objective by ‘enhancing awareness and knowledge of Union law and policies as well as 120 859 Decision 1093/2012/EU of the European Parliament and of the Council of 21 November 2012 on the European Year of Citizens (2013) [2012] OJ L325/1, recitals 14 and 19 (‘equip them to fully participate in civic life and empower them to exercise their rights’), applying components (c-3) and (c-1) of the EDC concept, see also recital 19 (‘Education policy plays an important role in informing citizens, particularly young people’); and Art 2 Objectives, i.a. Art 2(1) on rights and responsibilities and (2)(c) on valuing diversity. 860 Regulation 1288/2013 of the European Parliament and of the Council of 11 December 2013 establishing 'Erasmus+': the Union programme for education, training, youth and sport and repealing Decisions 1719/2006, 1720/2006 and 1298/2008 [2013] OJ L347/50, recital 20. 861 Compare Erasmus+ Regulation 1288/2013, Art 2 and Charter on EDC/HRE, para 2. 862 Arts 4, 11(1)(a), 14(1)(a), recitals 16,19 and 20. See also Strategic objective 3: Promoting equity, social cohesion and active citizenship, in Council Conclusions on the role of education and training in the implementation of the ‘Europe 2020’ strategy [2011] C70/1. A Incorporation of the substantive content of exogenic norms in EU law (mode 4) 251 of the rights, values and principles underpinning the Union’. The types of actions envisaged include training and learning activities.863 Exercising its budgetary powers, the Parliament labels these actions ‘Ensuring the protection of rights and empowering citizens’.864 Even if the Regulation does not mention the Council of Europe, or use the same wording, EDC standards underlie its provisions, in particular component (c-1) on citizens’ rights. The 2014 Council Regulation establishing the ‘Europe for citizens’ programme for the period 2014–2020 is not directly targeted at education, but it includes awareness raising activities with similar objectives to EDC. Educational organisations do have access to the programme.865 The aims are to enable and encourage citizens to participate in democratic life, to contribute to their understanding of the EU, and its values, politics, and history.866 The expression ‘citizenship education’ is not used, nor was it in the previous instruments for the ‘Europe for Citizens’ programme.867 In the 2015 Action Plan on Human Rights and Democracy adopted by the Council in the external action field, ‘human rights and civic education’ are supported to invigorate civil society in third countries so as to strengthen the capacity to hold governments accountable.868 In a 2012 Resolution on EU external action (human rights in the world), the European Parliament 863 Regulation 1381/2013 of the European Parliament and of the Council of 17 December 2013 establishing a Rights, Equality and Citizenship Programme for the period 2014 to 2020 [2013] OJ L354/62, Arts 4(2)a and Art 5(1)(b)(c). 864 Definitive adoption (EU, Euratom) 2017/292 of the European Union’s general budget for the financial year 2017 [2017] OJ L51/1, Chapter 33 02 01 (my emphasis). 865 Listed in Art 6 among ‘all stakeholders promoting European citizenship and integration’. 866 Council Regulation (EU) No 390/2014 of 14 April 2014 establishing the ‘Europe for Citizens’ programme for the period 2014-2020 [2014] OJ L115/3, Arts 1–3, recitals 1, 3, 4, and 19. 867 Citizenship education is not mentioned in Decision 1904/2006 of the European Parliament and of the Council of 12 December 2006 establishing for the period 2007 to 2013 the programme ‘Europe for Citizens’ to promote active European citizenship [2006] OJ L378/32, amended by Decision 1358/2008 [2008] L350/58, nor in Council Regulation (EU) No 390/2014 of 14 April 2014 establishing the ‘Europe for Citizens’ programme for the period 2014-2020 [2014] OJ L115/3. 868 Council Conclusions on the Action Plan on Human Rights and Democracy 2015-2019 (20 July 2015), 9, para 7(b). Other institutions are involved, see para 5 for the role of the High Representative, Commission and European Parliament. See also Council, EU Strategic Framework and Action Plan on Human Rights and Democracy (Luxembourg, 25 June 2012) 11855/12, ‘Working with bilateral partners’. Furthermore, Joint Communication by the European Commission and the High Representative of the European Union for Foreign Affairs and CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 252 referred to the aim of ‘building a real culture of human rights and democracy, particularly through education for democratic citizenship and human rights’869 (an aim important in EU internal action as well870). This Resolution is one of the rare examples of an EU legal instrument using the expression ‘education for democratic citizenship’ verbatim.871 Another example is a 2007 Resolution where the Parliament ‘calls upon the Member States to develop policies of education for democratic citizenship based on citizens' rights and responsibilities’ (c-1).872 A 2015 Council resolution on encouraging political participation of young people in democratic life in Europe refers to ‘citizenship education’ without defining it but reflects the same objectives and principles as EDC.873 In the 2016 European Parliament resolution on Learning EU at school, all the components of the EDC concept are present, some of them literally.874 The Parliament does not refer to the Council of Europe. The expression ‘education for democratic citizenship’ does not appear, but ‘citizenship education’ does.875 The 2017 European Pillar of Social Rights, solemnly proclaimed by the European Parliament, the Council and the Commission, devotes its very first provision to education: ‘Everyone has the right to quality and inclusive Security Policy, Action Plan on Human Rights and Democracy (2015-2019) Keeping human rights at the heart of the EU agenda JOIN(2015) 16 final, para 41. 869 European Parliament Resolution of 18 April 2012 on the Annual Report on Human Rights in the World and the European Union’s policy on the matter, including implications for the EU’s strategic human rights policy [2013] OJ C258E/8, para 155 (emphasis added). 870 See also text to n 989. 871 See also reference in Opinion of the Committee of the Regions on the ‘EU Citizenship Report 2010’ [2011] OJ C166/3, para 12. 872 European Parliament Resolution of 13 December 2007 on combating the rise of extremism in Europe [2008] OJ C323E/494. Thus even before 2015, the Parliament was calling for citizenship education to combat extremism. 873 Council Resolution on encouraging political participation of young people in democratic life in Europe [2015] OJ C417/10, paras 18 and 34. Same underlying ideas in Council Resolution on the Structured Dialogue and the future development of the dialogue with young people in the context of policies for European cooperation in the youth field, post 2018 [2017] OJ C189/1 (education for active citizenship, values, and critical thinking). 874 European Parliament Resolution of 12 April 2016 on Learning EU at school [2018] OJ C58/57, para 15. 875 Para 10. See also European Parliament Resolution of 12 December 2017 on the EU Citizenship Report 2017: Strengthening Citizens’ Rights in a Union of Democratic Change (2017/2069(INI)), para 32. A Incorporation of the substantive content of exogenic norms in EU law (mode 4) 253 education, training and life-long learning in order to maintain and acquire skills that enable them to participate fully in society and manage successfully transitions in the labour market’.876 Enabling full participation in society is consistent with the EDC-aim of empowerment for participation (c-3) and, moreover, echoes the aim of education in Article 13 of the International Covenant on Economic, Social and Cultural Rights (‘education shall enable all persons to participate effectively in a free society’). In the 2018 Recommendation on promoting common values, inclusive education, and the European dimension of teaching, the Council states that Member States should make effective use of existing tools to promote citizenship education.877 It must be finally be noted that in various Opinions, the Committee of the Regions and the European Economic and Social Committee vigorously advocate citizenship education. The ‘role of education in promoting active citizenship among young people’ is emphasised.878 Among ‘the conditions for effectiveness of citizenship’, the need for measures ensuring ‘education and training in citizenship’ is highlighted.879 The Erasmus programme should support democratic citizenship and common European values.880 876 Commission Recommendation (EU) 2017/761 of 26 April 2017 on the European Pillar of Social Rights [2017] OJ L113/56, Chapter I ‘Equal opportunities and access to the labour market’, para 01 ‘Education, training and life-long learning’. See also Commission Communication 'Establishing a European Pillar of Social Rights' COM(2017) 250 final; Commission staff working document Report of the public consultation Accompanying the document Commission Communication Establishing a European Pillar of Social Rights SWD(2017) 206 final; Commission Staff working document Accompanying Commission Communication 'Establishing a European Pillar of Social Rights' SWD(2017) 201 final. 877 Council Recommendation of 22 May 2018 on promoting common values, inclusive education, and the European dimension of teaching [2018] OJ C195/1; see also recitals 10 and 13. 878 Opinion of the Committee of the Regions on ‘Strengthening EU citizenship: promotion of EU citizens’ electoral rights’ [2013] OJ C62/26, paras 38–42. See also Opinion of the Committee of the Regions ‘Strengthening European Identity through Education and Culture’ [2018] OJ C 361/19, Policy recommendations point 3. 879 Opinion of the Committee of the Regions on the ‘EU Citizenship Report 2010’ [2011] OJ C166/3, para 37 (emphasis added). 880 Opinion of the EESC on ‘Proposal for a regulation of the European Parliament and of the Council establishing “Erasmus”: the Union programme for education, training, youth and sport and repealing Regulation (EU) No 1288/2013’ [2019] OJ C 62/194, point 3.4. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 254 Inspiration and cooperation (mode 5) General Mutual influence, a shared paradigm In addition to directly providing substance for EU norms, the exogenic norms of Council of Europe conventions and recommendations have–– more generally––been a source of inspiration for the EU, as appears in primary and secondary law, in case law, in policies and in practice. Norm-setting does not occur in a vacuum. In the mode of reception based on inspiration, there is no incorporation of the title or of the actual substantive content of exogenic norms, but they can be recognised as a source of inspiration. Notwithstanding different wording and rules, similarities in the objectives and underlying principles is sometimes striking. Admittedly, the dividing line between modes 4 and 5 is not a sharp one, yet both modes have their place in the spectrum of mutual influence of normative systems. In particular, exogenic norms of high moral authority or expressing an international consensus may inspire the drafting of provisions in the home legal order. UN human rights instruments are at the origin of regional human rights instruments (compare the 1948 Universal Declaration of Human Rights and the 1950 ECHR). Member States’ constitutions show similarities in style and substance. Cross-fertilisation of legal orders occurs in the process of norm-setting as well as in the interpretation of the norms.881 The fact that EU law is also inspired by exogenic norms is thus perfectly natural. Moreover, the Treaties (Article 220 TFEU) and, quite regularly, secondary legislation emphasise the need for cooperation with international organisations.882 The fifth mode of reception is a transition zone which includes the many de facto pathways between the Council of Europe and the EU legal order, resulting from dialogue at conferences, formal and informal meetings of politicians, judges, civil servants, or net- B 1. 121 881 Delmas-Marty, Ordering Pluralism. A Conceptual Framework for Understanding the Transnational Legal World 23. See also examples in S Breyer, The Court and the World: American Law and the New Global Realities (Vintage Books 2016). 882 See i.a. Council Decision of 28 February 2008 relating to the conclusion of an Agreement between the European Community and the Council of Europe on cooperation between the European Union Agency for Fundamental Rights and the Council of Europe [2008] OJ L186/6; Memorandum of Understanding between the Council of Europe and the European Union (2007), para 25: ‘to the extent necessary the Council of Europe and the European Union will consult each other at an early stage in the process of elaborating standards’. B Inspiration and cooperation (mode 5) 255 works of experts accredited by international organisations. A wide array of policy documents bear witness to this mutual inspiration. In mode 4, the EU legislator incorporates the substance of previously existing exogenic instruments; in mode 5, the same inspiration may lead to simultaneous and parallel norm-setting. Cooperation in the implementation of the norms thus shared fits into this mode. It is based on the same paradigm. Cascades of norm-setting In many fields, the Council of Europe did pioneer work before the EU acquired the competence to act. Norm-setting started at Council of Europe level and subsequently found its way into the EU legal order through the described modes of reception (accession, general principles, incorporation of title, of substance, or of inspiration). Smaller paths have become secondary roads, and sometimes highways. The cascading normative effects can take various courses. Often, Council of Europe recommendations prepare the ground, influence Council of Europe conventions, which influence interpretations in ECJ case law, which influence the drafting of new provisions in primary or secondary EU law.883 Several provisions in the CFR (drafted in 2000) were inspired by earlier Council of Europe norms, such as the ECHR (1950) or the European Social Charter (1961, revised 1996). A good example is the right to data protection (Articles 8 CFR, 39 TEU and 16 TFEU), which was foreshadowed by recommendations of the Committee of Ministers (since 1970) and by the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (1981).884 The right to good administration (Article 41 CFR) is a codification (partly) of the general principle of good administration developed by the ECJ, which was preceded by Council of Europe norms dealing with 122 883 E.g. European Pharmacopoeia, see n 627. Other examples in Cornu, ‘The impact of Council of Europe Standards on the European Union’, i.a. p 126: ‘negotiations within the Council of Europe have often facilitated the setting up of a common legal basis, including common values, on which the EU has then been able to elaborate more specific rules.’ Analysis of the influence of the CoE on EU norms in various domains: Kolb, The European Union and the Council of Europe. See also Joris and Vandenberghe, ‘The Council of Europe and the European Union: Natural Partners or Uneasy Bedfellows’, 31: CoE conventions have been an important reference source for EU law in areas such as data protection, social policy and cooperation in justice and home affairs. 884 Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data ETS No 108 (Strasbourg, opened 28 January 1981, entered into force 1 October 1985), ratified by all the Member States and referred to in the Explanations to the CFR. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 256 underlying principles of good administration in a recommendation dating back to 1977.885 In the field of cooperation in criminal matters and the fight against terrorism, various EU norms have their origin in Council of Europe standards and were then developed further, both in terms of substance and procedures.886 In the area of freedom, security and justice, UN instruments setting out standards applying to detention (detention of refugees and asylum seekers) inspired Council of Europe recommendations of the Committee of Ministers, which in turn influenced EU directives, which partly copied the substantive content or used it as a source of inspiration.887 The N and El Didri cases cited above illustrate the cascade effect from the UN to the Council of Europe to the EU legal order.888 Where can EDC standards be situated in this ongoing cascade of norm-setting? 885 Hofmann, Rowe and Türk, Administrative law and policy of the European Union 191, referring to CoE Committee of Ministers Resolution 77 (31) On the Protection of the Individuals in Relation to the Acts of Administrative Authorities (28 September 1977) (this instrument does not use the term ‘good administration’ explicitly but laid down its fundamental principles, such as the right to be heard, access to information, etc.). See also Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration (20 June 2007). 886 Cornu, ‘The impact of Council of Europe Standards on the European Union’ 126, with the example of Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism [2008] OJ L330/21, which is closely linked to CoE Convention on the Prevention of Terrorism CETS No 196 (Warsaw, opened 16 May 2005, entered into force 1 June 2007) (see Decision recital 9, and compare its Art 3 with Arts 5, 6 and 7 of this Convention). See also examples in Delmas-Marty, Ordering Pluralism. A Conceptual Framework for Understanding the Transnational Legal World 21, and Kolb, The European Union and the Council of Europe, comparing CoE standards in the fight against terrorism and EU action. 887 See, i.a., Case C‑601/15 PPU N ECLI:EU:C:2016:85, View of AG Sharpston, para 69. 888 Other examples of EU norms influenced by CoE norms: Art 3 CFR, of which the principles were already included in the CoE Convention on Human Rights and Biomedicine (ETS 164) and additional protocol (ETS 168), as the Explanations specify; or the Community Charter of the Fundamental Social Rights of Workers (adopted by eleven of the Heads of State and Government at the European Council of Strasbourg on 8 and 9 December 1989), inspired by the ESC (but only as poor reflection of it). B Inspiration and cooperation (mode 5) 257 Shared inspiration and cooperation to implement EDC standards Ongoing cooperation within education policy Article 220 TFEU in general, and Article 165(3) TFEU in particular, require that the EU and the Member States ‘shall’ cooperate with the Council of Europe, which is referred to as the competent international organisation in the field of education. EU legal instruments repeatedly call for reinforced cooperation and the development of synergies.889 The cooperation of EU institutions with the Council of Europe in setting and implementing EDC standards in practice confirms the shared EDC paradigm. 2. 123 889 I.a. Decision 1093/2012/EU of the European Parliament and of the Council of 21 November 2012 on the European Year of Citizens (2013) [2012] OJ L325/1, Art 6 and recital 24; EU Education Ministers and the Commissioner for Education, Culture, Youth and Sport, Paris Declaration on Promoting citizenship and the common values of freedom, tolerance and non-discrimination through education (17 March 2015), last para; Erasmus+ Regulation 1288/2013, recital 20; Council Regulation (EU) No 390/2014 of 14 April 2014 establishing the ‘Europe for Citizens’ programme for the period 2014-2020 [2014] OJ L115/3, Art 7 (joint contributions may be supported by the programme). De facto cooperation takes place in the International Contact Group on citizenship and human rights education (set up in 2011), including the UN High Commissioner for Human Rights (OHCHR), UNESCO, the Council of Europe, the European Commission, and the European Union Agency for Fundamental Rights (FRA). On the relationship EU-CoE, see Quinn, ‘The European Union and the Council of Europe on the Issue of Human Rights: Twins Separated at Birth?’; O De Schutter, ‘The two Europes of human rights: the emerging division of tasks between the Council of Europe and the European Union in promoting human rights in Europe’ (2008) 14 Columbia Journal of European Law 509; Joris and Vandenberghe, ‘The Council of Europe and the European Union: Natural Partners or Uneasy Bedfellows’; Kolb, The European Union and the Council of Europe; T Streinz, ‘Fraternal twins: the European Union and the Council of Europe’ in H de Waele and J-J Kuipers (eds), The European Union's emerging international identity: Views from the Global Arena (Martinus Nijhoff 2013); Schmahl and Breuer, The Council of Europe: Its Law and Policies; and in general, Joint Declaration on co-operation and partnership between the Council of Europe and the European Commission (2001), CoE Compendium of Texts governing the relations between the Council of Europe and the European Union (2001); CoE iGuide, Committee of Ministers: Procedures and working methods (24 September 2018), IX, 5–1. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 258 EU support for the implementation of the Charter on EDC/HRE In 2012, the EU Commissioner responsible for Education, Culture, Multilingualism and Youth, Mrs. Androulla Vassiliou, wrote to ‘actively support the implementation of the Charter’ on EDC/HRE.890 That year, the Commission and the Council of Europe jointly organised a conference on the implementation of the Charter (first review cycle).891 Senior officials of the European Commission underscored its significance: Director General for Education and Culture, Mr. Jan Truszczynski, underlined that ‘[t]he importance of the Charter, in the EU context as well, is that it provides a solid basis for designing and implementing policies aimed at educating citizens to know, respect, and practice democratic values we cherish’.892 For the 2017 Conference (second review cycle), Mr. Tibor Navracsics, EU Commissioner for Education, Culture, Youth and Sport, stated in his key message that cooperation with the Council of Europe is stronger than ever: Our values are not a given. They must be learned, understood and owned by every citizen. Democracy is more than a process. Democracy is a mentality, an ethos, a reflex. … Considering that today’s education is tomorrow’s society, I firmly believe there is not a better place to pro- 124 890 Commission/EACEA/Eurydice, Citizenship Education in Europe (2012), 3 (Foreword). Earlier, Commission Report Implementation of the 'Education & Training 2010' programme - Supporting document for the draft joint interim report on the implementation of the detailed work programme on the followup of the objectives of education and training systems in Europe SEC(2003) 1250 final: ‘The Council of Europe's project on education for democratic citizenship is, moreover, actively supported by the Member States and the European Commission’. 891 Commission/EACEA/Eurydice, Citizenship Education in Europe (2012), 8; CoE Proceedings of the Conference on 'Human Rights and Democracy in Action - Looking Ahead: The Impact of the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education' (Strasbourg, 29-30 November 2012). 892 Mr Jan Truszczynski, Director General for Education and Culture in the European Commission, in CoE Proceedings of the Conference on 'Human Rights and Democracy in Action - Looking Ahead: The Impact of the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education' (Strasbourg, 29-30 November 2012), 20. See also Mr Pierre Mairesse, Director for Lifelong Learning in the Directorate General for Education and Culture: education for employment and education for citizenship are complementary, and both are necessary (ibid, 21). B Inspiration and cooperation (mode 5) 259 mote and pass on those values than families and schools—and no better vector than education to secure democracy.893 He cites as one of his responsibilities as Commissioner: ‘Empowering young people of all social and cultural backgrounds so that they can participate fully in civic and democratic life’.894 In reports, evidence is given of the connectedness of the Council of Europe and the EU in the implementation of the Charter on EDC/HRE.895 Cooperating in order to implement is a form of reception of exogenic Council of Europe standards on EDC in the EU legal order, proving through action that the EU adheres to the EDC standards. The question is whether this cooperation is enough for the EU.896 893 CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 39 (emphasis added); in the follow-up to the Paris Declaration there is Erasmus+ funding for more than 1200 projects, setting up of a network of role models, and extending e-Twinning as the largest teachers’ platform in the world to third countries. 894 (emphasis added). 895 For strong EU commitment and action, see CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 39, declaration of Mr Navracsics, EU Commissioner for Education. In 2016, a huge number of member states reported to cooperate with the CoE (93%) and with the EU (90%) for the implementation of the Charter on EDC/HRE (in line with its Section IV). Reporting on joint projects, see ibid, p 73–74. Same trend earlier, Kerr, Implementation of the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education: Final Report, p 44. On EU- CoE cooperation on citizenship education in the eighties and nineties, see Naval, Print and Veldhuis, ‘Education for Democratic Citizenship in the New Europe: context and reform’ (also on the European dimension in education); B Hoskins and others, Analytic Report: Participatory Citizenship in the European Union (Report 2) (2012), p 20 (reference to the Charter on EDC/HRE), p 41 (the same experts are active in EU as in CoE context, the same materials used). In the EU, many good practices on education for democracy rely on Council of Europe projects, see J Krek and others, Good Practices Report: Participatory Citizenship in the European Union (Report 3) (2012). 896 E.g. CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, p 22, Recommendation 7 to Support and encourage international co-operation: ‘Although co-operation among countries in the field of EDC/HRE has increased, opportunities for such cooperation are limited and do not meet the demand. Such co-operation ought to be further reinforced’. This is all the more true for the EU. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 260 Joint programmes Through several joint programmes of the Commission and the Council of Europe, EDC standards have become part of EU and Member States’ practice. Since it has more means, the EU often contributes the larger part of the funding of the joint projects.897 In the joint programme ‘Human Rights and Democracy in Action’, launched in 2013, the Charter on EDC/HRE provides a framework for this cooperation.898 The programme supports citizenship and human rights education in participating countries and, since 2016, has also been helping to pilot the Council of Europe RFCDC, designed to implement the Charter on EDC/HRE. Active citizenship: ACCI and CCCI indicators and Eurydice surveys Questioned by an MEP on steps taken by the EU in the field of citizenship education, the Commission pointed to civic competences being a priority in the ET 2020 strategic framework, to relevant indicators and to Eurydice reports on citizenship education.899 The Active Citizenship Composite Indicator (ACCI) and the Civic Competences Composite Indicator (CCCI) were developed in cooperation between the EU and the Council of Europe in order to measure active citi- 125 126 897 Kolb, The European Union and the Council of Europe 43 (comparing budgets and persons working for the EU and CoE). See Memorandum of Understanding between the Council of Europe and the European Union (2007), paras 7–8 (enhanced cooperation), also Regulation (EU) No 235/2014 of the European Parliament and of the Council of 11 March 2014 establishing a financing instrument for democracy and human rights worldwide [2014] OJ L77/85. 898 CoE/EU Joint Programme- Human Rights and Democracy in Action- Pilot Projects Scheme; also CoE Committee of Ministers, Council of Europe Strategy for the Rights of the Child (2016-2021): Children’s human rights (3 March 2016) CM(2015)175 final, para 40; CoE, Council of Europe Strategy for the Rights of the Child (2012-2015): Implementation report, p 17; CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 73. Most joint programs aim at the promotion of democracy, rule of law and respect for human rights, see Joris and Vandenberghe, ‘The Council of Europe and the European Union: Natural Partners or Uneasy Bedfellows’, 23–25. 899 Written questions by Members of the European Parliament and their answers given by a European Union institution [2014] OJ C208/1. Referral also to the Jean Monnet action ‘Learning EU at School’, the joint programme on EDC and HRE, the campaign of the European Year of Citizens 2013, and the Youth in Action programme (non of these comprehensively define citizenship education). B Inspiration and cooperation (mode 5) 261 zenship.900 The composite indicators confirm the complexity of citizenship and citizenship education. They add precise information to components of the EDC concept in the Charter on EDC/HRE. The concepts which Eurydice901 uses to study citizenship education are inspired by the EDC project of the Council of Europe. The 2005 survey refers to the 2002 Recommendation on education for democratic citizenship and defines citizenship education as: school education for young people, which seeks to ensure that they become active and responsible citizens capable of contributing to the development and well-being of the society in which they live. While its aims and content may be highly diversified, three key themes are of particular interest. Citizenship education is normally meant to guide pupils towards (a) political literacy, (b) critical thinking and the development of certain attitudes and values and (c) active participation.902 900 See, i.a., CoE Committee of Ministers, Terms of reference of the Ad hoc Advisory Group on Education for Democratic Citizenship and Human Rights (ED- EDCHR) (5 February 2007) CM/Del/Dec(2007)985/7.2; B Hoskins and R Deakin Crick, Learning to Learn and Civic Competences: different currencies or two sides of the same coin? (European Commission, JRC, CRELL, 2008); B Hoskins and M Mascherini, ‘Measuring Active Citizenship through the Development of a Composite Indicator’ (2009) 90 Social Indicators Research 459; M Mascherini, AR Manca and B Hoskins, The characterization of Active Citizenship in Europe (European Commission, JRC, CRELL, 2009); Hartley and Huddleston, Schoolcommunity-university partnerships for a sustainable democracy: Education for Democratic Citizenship in Europe and the United States of America 53; B Hoskins, M Saisana and C Harrison Villalba, The 2011 Civic Competence Composite Indicator (CCCI-2): Measuring Young People’s Civic Competence across Europe based on the IEA International Citizenship and Civic Education study (Publications Office of the European Union, 2012). See also 4 reports of the Institute of Education, University of London, commissioned by the European Commission, Europe for Citizens Programme, 2012: Hoskins and others, Contextual Analysis Report: Participatory Citizenship in the European Union (Report 1); Hoskins and others, Analytic Report: Participatory Citizenship in the European Union (Report 2), pp 47, 56, 58, 60 (reference to education for democratic citizenship and suggestion of closer collaboration with the CoE to face challenges); Krek and others, Good Practices Report: Participatory Citizenship in the European Union (Report 3); B Hoskins and D Kerr, Final Study Summary and Policy Recommendations: Participatory Citizenship in the European Union (Report 4) (2012). 901 Text to n 35. 902 Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2005), p 10 (with description of attitudes and values). Several references to the CoE, i.a. p 9 (with reference to K O'Shea, ‘A Glossary of terms for Education for Democratic Citizenship: Education for Democratic Citizenship 2001-2004, CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 262 The 2012 Eurydice report relies on the same conceptual framework.903 Citizenship education encompasses the narrower concept of ‘civic education’, which is restricted to 'knowledge and understanding of formal institutions and processes of civic life (such as voting in elections)'.904 Citizenship education ‘is a broad concept, which encompasses not only teaching and learning in the classroom but also practical experiences gained through school life and activities in wider society.’905 Interestingly, Eurydice observes that its 2012 report on citizenship education derives from an evolved concept of citizenship, ‘acknowledging the fact that it goes far beyond the simple legal relationship between people and the state’.906 The notion of ‘active citizenship’ is central, promoted at EU level by the Centre for Research on Education and Lifelong Learning.907 Hoskins emphasises that active citizenship depends on explained citizenship: ‘the evidence suggests that the main driver to enhance participatory forms of citizenship is learning’.908 I would add, if citizenship is learned citizenship, then EU citizenship should be learned as well. Active citizenship is defined as ‘partici- Developing a Shared Understanding’ CoE DGIV/EDU/CIT (2003)29; p 17 (referral to CoE Recommendation Rec(2002)12 of the Committee of Ministers to member states on education for democratic citizenship (16 October 2002)); p 69 (tables based on All-European Study on Education for Democratic Citizenship Policies (CoE 2005), 34–42). 903 Commission/EACEA/Eurydice, Citizenship Education in Europe (2012), p 8: ‘citizenship education refers to the aspects of education at school level intended to prepare students to become active citizens, by ensuring that they have the necessary knowledge, skills and attitudes to contribute to the development and well-being of the society in which they live.’. 904 Ibid, 9, with reference to W Schulz and others, ICCS 2009 International Report: Civic knowledge, attitudes, and engagement among lower-secondary school students in 38 countries (International Association for the Evaluation of Educational Achievement IEA, 2010), p 22. This last concept is not used as such in the ICCS 2016 framework. 905 Ibid, 9. Further Commission/EACEA/Eurydice, Promoting citizenship and the common values of freedom, tolerance and non-discrimination through education: Overview of education policy developments in Europe following the Paris Declaration of 17 March 2015 (2016); Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2017). 906 Ibid, 8. 907 Indicator-based evaluation and monitoring of education and training systems towards the Lisbon Agenda and the EU2020 objectives (). 908 Hoskins and others, Analytic Report: Participatory Citizenship in the European Union (Report 2), p 75. See also Hoskins and others, Contextual Analysis Report: Participatory Citizenship in the European Union (Report 1); Hoskins and Kerr, B Inspiration and cooperation (mode 5) 263 pation in civil society, community and/or political life, characterised by mutual respect and non-violence and in accordance with human rights and democracy’.909 It is regrettable if these (indeed crucial) aspects of citizenship education were considered to fall outside any legal relationship. An in-depth, well understood and well grounded, legal approach to citizenship includes more aspects of active citizenship than experts in the education field sometimes presume.910 The 2017 Eurydice report on citizenship education continues to draw on the work of the Council of Europe and refers to EDC standards within its conceptual framework: the Charter on EDC/HRE and the RFCDC.911 Citizenship education as a crisis measure The challenges of radicalisation leading to violent extremism have brought citizenship education to the fore. In the ensuing wave of intensified educational action by the EU, the similarities with the substance and objectives of EDC standards are even more striking than before. Several actors have adopted new instruments. 127 Final Study Summary and Policy Recommendations: Participatory Citizenship in the European Union (Report 4): citizenship is learnt citizenship. See comparable: Losito B and others, Young People's Perceptions of Europe in a Time of Change: IEA International Civic and Citizenship Education Study- 2016 European Report (2017). 909 B Hoskins and others, Measuring active citizenship in Europe (CRELL Research Paper 4, European Communities 2006), 10, developed by the research network on ‘Active Citizenship for Democracy’. Confirmed in ICCS 2016 (n 550). 910 E.g. § 170 ff on foundational values and participation (Arts 2, 3, 9–11 TEU); § 176 ff. See also Introduction (a Dworkinian approach to law includes underlying principles and values). 911 Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2017), 18, 23, 25, 48, 134. Citizenship education is understood ‘as the subject area that is promoted in schools with the aim of fostering the harmonious coexistence and mutually beneficial development of individuals and of the communities they are part of. In democratic societies citizenship education supports students in becoming active, informed and responsible citizens, who are willing and able to take responsibility for themselves and for their communities at the local, regional, national and international level.’ To reach these objectives, ‘citizenship education needs to help students develop knowledge, skills, attitudes and values in four broad competence areas: 1) interacting effectively and constructively with others; 2) thinking critically; 3) acting in a socially responsible manner; and 4) acting democratically.’ (p 9). See also Commission/EACEA/ Eurydice, Promoting citizenship and the common values of freedom, tolerance and non-discrimination through education: Overview of education policy developments in Europe following the Paris Declaration of 17 March 2015 (2016). CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 264 In March 2015, in response to terrorist attacks, the EU Ministers of Education and the Commissioner for Education adopted the Paris Declaration on Promoting citizenship and the common values of freedom, tolerance and non-discrimination through education.912 They pointed to synergies with ongoing work in the Council of Europe ‘in the area of civic education and intercultural understanding’. Inclusive education should aim to promote citizenship and critical thinking. Action for citizenship education can be supported under the Erasmus+ programme.913 In order to prevent radicalisation, the Council and the Commission added new priorities to the ET 2020 strategic framework, emphasising inclusive education, equality, equity, non-discrimination and the promotion of civic competences.914 The Council and the Representatives of the Governments agreed that human rights and citizenship education represent powerful means of promoting common values and invited the Member States to promote citizenship education and to enhance social and civic competences.915 In a 2016 Communication, the Commission stated that in the long run, ‘high-quality education 912 EU Education Ministers and the Commissioner for Education, Culture, Youth and Sport, Paris Declaration on Promoting citizenship and the common values of freedom, tolerance and non-discrimination through education (17 March 2015). 913 Critical thinking as a skill is emphasised in the citizenship and civic competences mentioned in Resolution of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, of 24 February 2016 on promoting socio-economic development and inclusiveness in the EU through education: the contribution of education and training to the European Semester 2016 [2016] OJ C105/1, and Council Conclusions of 30 May 2016 on developing media literacy and critical thinking through education and training [2016] OJ C212/5. See also Commission/EACEA/Eurydice, Promoting citizenship and the common values of freedom, tolerance and non-discrimination through education: Overview of education policy developments in Europe following the Paris Declaration of 17 March 2015 (2016). 914 Council Conclusions of 12 May 2009 on a strategic framework for European cooperation in education and training (ET 2020) [2009] OJ C119/2; Joint Report of the Council and the Commission on the implementation of the strategic framework for European cooperation in education and training (ET 2020) — New priorities for European cooperation in education and training [2015] OJ C 417/25 (see the Strategic Framework for European Cooperation on Education and Training (‘ET 2020’), the renewed framework for European cooperation in the youth field (2010–2018), the EU Work Plan for Sport (2014–2017) and the Culture Work Plan (2015–2018). 915 Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on the prevention of radicalisation leading to violent extremism [2016] OJ C467/3: Invitation to Member B Inspiration and cooperation (mode 5) 265 from pre-school onward remains the best safety net against social exclusion, which can be for some a factor in radicalisation’.916 Existing tools will be further implemented to support teachers, i.a. the RFCDC. The Commission proposed ‘a Council Recommendation to enhance social inclusion and promote Europe's fundamental values through education and non-formal learning’.917 The Commission asked for the possibility of establishing ‘civic education courses in secondary schools’ to be explored, in order to give third country nationals an understanding of the laws, culture and values of the receiving society. Member States are encouraged to ‘[o]rganise civic orientation programmes for all third country nationals as a way to foster integration into the host society and promote the understanding and respect of EU values’.918 By a Decision of 2017, the Commission set up an Expert Group on radicalisation and referred to Council conclusions on States to promote citizenship education. No definition, but call on Commission to work on a toolkit to develop democratic resilience, media literacy, tolerance, critical thinking, and conflict-resolution skills. Creation of a Working Group on Promoting citizenship and the common values of freedom, tolerance and nondiscrimination through education (scope of Paris Declaration), including experts of the Council of Europe, and development of online compendium of good practices. Further Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on Inclusion in Diversity to achieve a High Quality Education For All - Council Conclusions (17 February 2017). 916 Commission Communication supporting the prevention of radicalisation leading to violent extremism COM(2016) 379 final, p 9. 917 Ibid, p 11. See Council Recommendation of 22 May 2018 on promoting common values, inclusive education, and the European dimension of teaching [2018] OJ C195/1. Further on cooperation Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on the prevention of radicalisation leading to violent extremism [2016] OJ C467/3; Commission Communication 'Eight progress report towards an effective and genuine Security Union' COM(2017) 0354 final: ‘Education plays a key role in preventing radicalisation, and the Commission has taken a series of steps to implement the Paris Declaration’. 918 Commission Communication 'Action Plan on the integration of third country nationals' COM(2016) 377 final, point 4.1.5. Emphasis added. See already Commission Communication 'A Common Agenda for Integration - Framework for the Integration of Third-Country Nationals in the European Union' COM(2005) 389 final: ‘civic orientation in introduction programmes and other activities for newly arrived third-country nationals with the view of ensuring that immigrants understand, respect and benefit from common European and national values’. See also Case C‑579/13 P and S ECLI:EU:C:2015:369, paras 47– 48 on the usefulness of a civic integration examination for third country nationals; the ECJ ruled that Dir 2003/109, which aims at the integration of third- CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 266 media literacy and critical thinking.919 In these conclusions, the Council recalled Article 2 TEU and invited the Member States to ‘[e]ncourage sufficient attention to be paid to developing media literacy and critical thinking in education and training at all levels, including through citizenship and media education’.920 Social and civic competences ‘have a clear link to critical thinking, ensuring that people can value diversity and respect the views and values of others’.921 Thus, essential components of EDC standards appear (such as c-2 and critical thinking).922 That crises favour increased focus on citizenship education is a matter of sociological observation.923 Yet, this should not conceal the need to pursue citizenship education on a more permanent basis. Preparing citizens for life in a democratic society and in respect of fundamental rights should be a continuous and lasting objective. country nationals who are settled on a long-term basis in the Member States, does not preclude Dutch legislation imposing the obligation to pass a civic integration examination, testing language proficiency and knowledge of the Netherlands society. It was not contrary to the principle of equal treatment (nationals were not required to pass such an examination, but the situations were not comparable). See also Opinion of AG Spunar, paras 93–94: The Council adopted Common Basic Principles for Immigrant Integration Policy in 2004 (confirmed by the Stockholm Programme), stating that ‘basic knowledge of the host society’s language, history and institutions is indispensable to integration and enabling immigrants to acquire this basic knowledge is essential to successful integration’. Mutatis mutandis applicable to the EU citizen in the EU society? More in E Bribosia and S Ganty, ‘Arrêt Dogan: quelle légalité pour les tests d’intégration civique?’’ (2014) 22 Journal de droit européen 378. 919 Commission Decision of 27 July 2017 setting-up the High-Level Commission Expert Group on radicalisation [2017] OJ C252/3. 920 Council Conclusions of 30 May 2016 on developing media literacy and critical thinking through education and training [2016] OJ C212/5, paras 1 and 3. See alto text to n 780 (mode 3). Further Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on the role of the youth sector in an integrated and cross-sectoral approach to preventing and combating violent radicalisation of young people [2016] OJ C213/1. 921 ‘Against this background, also notes that’. My emphasis. 922 See i.a. CoE Recommendation Rec(2002)12 of the Committee of Ministers to member states on education for democratic citizenship (16 October 2002), appendix para 2. 923 See also questions raised in France after the Charlie Hebdo attacks (e.g. ). B Inspiration and cooperation (mode 5) 267 Intermediate conclusion: partial normative incorporation of EDC standards The analysis of endogenic norms related to citizenship education has shown that normative reception of EDC standards occurs essentially in modes 4 and 5. There is a link in EU primary law between democracy, citizenship and education and EU secondary law contains provisions corresponding to the essential substance of EDC standards (mode 4) or––more generally––drawing inspiration from them (mode 5). Moreover, EU education policy occurs in close cooperation with the Council of Europe, including as regards the implementation of the Charter on EDC/HRE. Finally, EDC objectives are even more prominent in more recent EU legal instruments in response to the challenges of radicalisation. To sum up, the normative reception of EDC standards in EU law is fragmented, but convincing. Endogenic provisions relating to citizenship education partially incorporate the substance of the EDC standards of the Council of Europe and are drawn up on the basis of the EDC paradigm. Before the sixth mode of reception––interpretation of EU law in the light of exogenic standards––is examined at close quarters, the reader may have a question which I will answer first. Why has no endogenic legal instrument on citizenship education been chosen as a prism through which to look at the position of EU citizens? If the EU has its own endogenic norms on citizenship education, such as the 2006 or 2018 Recommendation on key competences for lifelong learning, why have the EDC standards of the Council of Europe been chosen as a prism through which to look at the position of the EU citizen in this study? What value do they add? Firstly, the Council of Europe was established in 1949 with the core mission to promote human rights, democracy and the rule of law. EDC is an integral and central part of this mission. The Council of Europe thus has a longstanding tradition in this field (as shown by the genesis of the Charter on EDC/HRE described above) and has developed an impressive set of EDC standards and materials. In contrast, the EU was established in 1957 with a very different mission as the European Economic Community. Competences in education were only inserted into the Treaties in 1992. They are lateral and limited. As a result, EU action on citizenship education is more recent, fragmented, and peripheral.924 The EDC aspects highlighted in the EU legal instruments cited should not create the false 128 129 924 See Part four. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 268 impression that EU law includes a comprehensive set of instruments on citizenship education.925 In such an important field as democracy, the rule of law and human rights, it is wise for the EU to be guided by an organisation founded with those very goals in mind (in line with Articles 222 and 165(3) TFEU). Secondly, as set out in Part one, the Charter on EDC/HRE reflects a European consensus carrying great weight. It limits the margin of appreciation of member states and has important strengths, including the link with UN standards and the right to education in international agreements. Finally, the Council of Europe standards on EDC are neutral in the Eurosceptic/Europhile debate. A crucial argument in favour of using the Charter on EDC/HRE as a prism for academic analysis of EU citizenship is its objectivity as a Council of Europe standard.926 Because it does not originate in the EU institutions, it cannot be distrusted on account of a ‘pro EU’ bias.927 EU instruments do not focus on a neutral concept of citizenship education, but, as should be expected, tend to promote the EU aspects of it, such as closeness to the EU, or an EU identity.928 When describing knowledge, skills and attitudes relating to civic competences, the 2006 Recommendation on key competences adds at a stroke in several provisions that they are applicable to local, regional, national, European and international levels.929 The 2018 Recommendation, too, refers to ‘constructive 925 The paragraph on citizenship competence in the Annex to the 2018 Recommendation on key competences for lifelong learning is at present one of the most relevant provisions. 926 See also the ECtHR principle in n 696. 927 EU institutions promoting EU learning: see i.a. European Parliament Resolution of 12 April 2016 on Learning EU at school [2018] OJ C58/57; earlier European Parliament Resolution of 26 September 2006 on initiatives to complement school curricula providing appropriate support measures to include the European dimension [2006] OJ C306E/100, para 1: ‘Considers that all education systems should ensure that their pupils have by the end of their secondary education the knowledge and competences they need, as defined by their respective educational authorities, to prepare them for their roles as citizens and as members of the European Union’. 928 See i.a. Commission Communication on 'Strengthening European Identity through Education and Culture' COM(2017) 673 final; Commission Erasmus Proposal COM(2018) 367 final, Art 3(1): to the general objectives of the Erasmus Programme belongs the strengthening of European identity. Also Council Recommendation of 22 May 2018 on promoting common values, inclusive education, and the European dimension of teaching [2018] OJ C195/1. 929 Recommendation of the European Parliament and of the Council of 18 December 2006 on key competences for lifelong learning, Annex (6)(B). B Inspiration and cooperation (mode 5) 269 participation in community activities, as well as in decision-making at all levels, from local and national to the European and international level’.930 The placing of all these levels on an equal footing has been criticised for deflating the national level and inflating the European level.931 Comparing the Council of Europe and the EU approach to citizenship education, scholars observe that the Council of Europe concentrates on education content, while the EU focuses on clarifying the benefits of European citizenship and supportive acceptance of EU institutions.932 Because of its widespread international acceptance, the Council of Europe Charter on EDC/HRE constitutes an external and independent standard on citizenship education, which suits an academic analysis of the issue of citizenship education for the EU citizen. The components of the Charter are without bias and based on universal values. They will be applied as neutral parameters in Part three, to explore their significance for citizens in the EU (as to the substance). But first, to complete the analysis of the effects of the Charter on EDC/HRE in the EU legal order (as to the form), I will explore to what extent the Charter on EDC/HRE should be taken into account in the interpretation of EU law. Interpretation of EU law taking account of exogenic norms (mode 6) General Interpretation methods In the modes of reception described so far, case law illustrates that the ECJ gives effect to exogenic norms by using them in the interpretation and application of EU law. Interpretation of EU law thus operationalises the normative reception of exogenic norms in the EU legal order. This phe- C 1. 130 930 Council Recommendation of 22 May 2018 on key competences for lifelong learning, Annex (6), skills for citizenship competence. 931 Debate in workshop: K Grimonprez, ‘Conflicting ideas of Europe: the role of values in citizenship education’ (European Conference NECE, Networking European Citizenship Education, '1914-2014: Lessons from History? Citizenship Education and Conflict Management', Vienna, 16-18 October 2014). 932 P Schreiner (ed) 'Education for Democratic Citizenship' in the Context of Europe (CSC/CEC 2013) 24; see also HJ Abs und S Werth in R Hedtke and T Zimenkova (eds), Education for Civic and Political Participation: A Critical Approach (Routledge 2013). CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 270 nomenon will be examined with special emphasis on its relevance for the effects of EDC standards within the EU legal order. To ensure that ‘the law’ is observed (Article 19 TEU), the first step for the ECJ is a textual interpretation of EU law, including the endogenic norms incorporating the substance of, or drawing inspiration from, EDC standards. Next, where there is no clear and precise provision in all official languages, the ECJ may use contextual and teleological methods of interpretation (classic methods in line with the Vienna Convention on the Law of Treaties933). The ECJ stated in Cilfit: every provision of Community law must be placed in its context and interpreted in the light of the provisions of Community law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied.934 On a historical interpretation, the travaux préparatoires are increasingly important.935 They sometimes refer to exogenic norms. Exogenic norms may furthermore play a role in ensuring interpretation in good faith and in the spirit of sincere cooperation. In general, a consistent interpretation with international law is aimed at, yet only as far as possible (red line): the autonomy of the EU legal order must be respected. In addition to converging lines of case law, diverging lines of case law are 933 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, Arts 31–32. See text to n 790. 934 Case 283/81 Cilfit ECLI:EU:C:1982:335, para 20. See J Mertens de Wilmars, ‘Réflexions sur les méthodes d'interprétation de la Cour de justice des Communautés européennes’ (1986) 22 Cahiers de Droit européen 5; Lenaerts and Gutiérrez-Fons, ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’. 935 To the extent that the wording of EU law is unclear, the ECJ analyses the decision-making process leading to EU law. E.g. Case C-370/12 Pringle ECLI:EU:C: 2012:756, paras 135–136, 138–141; Case C‑583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council ECLI:EU:C:2013:625, paras 59, 66, 70. In line with the Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, Art 32. See Lenaerts and Gutiérrez-Fons, ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’, 14, 16, 22, 24–31. Earlier: S Schenberg and K Frick, ‘Finishing, Refining, Polishing: On the Use of Travaux Préparatoires as an Aid to the Interpretation of Community Legislation’ (2003) 28 ELRev 149. C Interpretation of EU law taking account of exogenic norms (mode 6) 271 apparent, where interpretation differs from exogenic norms due to the specific objectives or features of EU law.936 What are the implications for EDC standards of these general reflections on the interpretation of EU law in the light of exogenic norms? Taking account of the Charter on EDC/HRE in the interpretation of EU law Textual, contextual and teleological interpretation Interpretation in the light of Council of Europe EDC standards Can the second anchor point of the study––‘Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship’ (Article 20 TFEU)––be interpreted in the light of EDC standards, taking the Charter on EDC/HRE as a reference instrument? The partial normative incorporation of EDC standards into EU law could thus be reinforced by the interpretation-based mode. The two reflections expressed in the analysis of case law in mode 4 re-emerge.937 To what extent do Council of Europe recommendations on EDC fall under the converging or the diverging line of case law? How can EDC standards have effects in the broader context of EU law? Several Treaty provisions on citizenship, democracy, and education are broadly drafted and textual interpretation does not suffice to determine their content (traité cadre).938 Applying the ECJ’s statement of principle in Cilfit quoted above, placing EU law provisions on citizenship, democracy, and education in their context and interpreting them in the light of EU law as a whole, will amplify the effects of EDC standards incorporated in EU law. The objectives of EU law and its state of evolution also justify taking account of EDC standards in the interpretation of EU law. A closer look follows now at the first two elements of the Cilfit citation: context and objectives. The state of evolution has been considered in the previous sections: not only the growing impact of the EU in ever more policy fields 2. 131 936 See conclusion to §111 . 937 §§ 112 113 . 938 Lenaerts and Gutiérrez-Fons, ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’, 16 ‘traité cadre’, 20 ‘a systematic interpretation enables the EU law provision in question to be in harmony with the context in which it is placed’. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 272 and on the daily lives of citizens,939 but also the recent challenges of radicalisation support an interpretation in the light of EDC standards. Contextual interpretation A contextual or systematic interpretation is premised on the idea of a rational legislator who has established a consistent legal order.940 Each provision of EU law must be interpreted in harmony with the general scheme of the Treaties and with the context in which it is placed. The general scheme of the Treaties includes the referential role for the Council of Europe (Article 220(1) TFEU). Article 165(3) TFEU requires that in the field of education cooperation is fostered in particular with the Council of Europe, the competent international organisation. With Article 165(3) TFEU in mind, various Council of Europe instruments cited in the normative context will be pertinent, i.a. for the interpretation of EU Treaty concepts such as ‘quality education’ or ‘the European dimension in education’ (Article 165(1) and (2) TFEU). A contextual reading must also have regard to the general scheme of the Treaties embracing the EDC paradigm. This follows from a combined reading of Articles 10(3) TEU and 165(2) TFEU (linking democracy-citizenship-education). Other EU primary law provisions on democracy (Articles 9–12 TEU) and on citizenship (Articles 20–25 TFEU and 39–46 CFR) may be interpreted in the light of this paradigm. Next, from Article 24(1)(c) of the UN Convention on the Rights of Persons with Disabilities (an integral part of EU law after accession), it can be inferred that the EU accepts that education shall be directed to effective participation in a free society, which is precisely the aim of EDC standards.941 There must also be consistent interpretation with the above-mentioned secondary law which partially incorporates EDC standards. The endogenic norms drawn up in the EDC paradigm in modes 4 and 5 are part of the EU legal order and together form the context for consistent interpretation of provisions on EU citizenship and democracy. Furthermore, the interpretation of provisions on citizenship, democracy, and education in EU law in the light of EDC standards of the Coun- 132 939 Introduction and Part three. 940 Difference internal-external contextual interpretation, see Lenaerts and Gutiérrez-Fons, ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’, 16. See for internal consistency, Art 7 TFEU. Structure of the Treaties, as in Cilfit. 941 Text to n 630. C Interpretation of EU law taking account of exogenic norms (mode 6) 273 cil of Europe is consistent with the EU’s commitments in the Memorandum of Understanding recognising the Council of Europe as a benchmark for democracy. The Council of Europe and the EU will cooperate in building a democratic culture in Europe, in particular through promoting EDC and HRE.942 It is legitimate for the judge to take the Council of Europe origins of EU norms into account when analysing the decision-making process leading to the adoption of the norm.943 As in other fields, the Court may interpret EU law with regard to citizenship education historically, on the basis of preparatory instruments, thus taking account of EDC standards.944 The value of democracy The EU primary law context includes the provisions on foundational values (Articles 2 and 49 TEU), values shared with the Council of Europe. The fact that ‘democracy’ is one of the founding values of the EU (Article 2 TEU) has normative implications which are reflected in EDC standards. Article 2 TEU states that the values to which it refers are ‘common to the Member States’. Equally ‘common to the Member States’ is the association between democracy and education: democracy presupposes education for democracy. Democracy cannot be seen in isolation from the wide European consensus on EDC, as evidenced in the many Council of Europe instruments. The 2002 Recommendation on EDC affirmed that EDC is fundamental to defending the values of democracy, human rights, and the rule of law.945 If democracy and human rights belong to the core nucleus of shared values946, the EDC and HRE associated with them belong to the core nucleus as well. Article 49 TEU provides that only a European State which ‘respects’ the values of Article 2 TEU and ‘is committed to promoting them’, can apply to be a member of the EU. This respect for, and commitment to promoting, the values of democracy and human rights must be interpreted in the 133 942 Paras 10 and 36; CoE Third Summit of Heads of State and Government, The Declaration and the Action Plan (Warsaw, 16-17 May 2005), Action plan, III, 3. 943 Lenaerts and Gutiérrez-Fons, ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’, 16–17. 944 Text to n 848 and 957. See i.a. RTL (§ 108 ). To define for instance ‘food safety’, ‘public health’, ‘handicap’ or ‘public interest’, the ECJ wells in non-binding sources, i.a. text to n 737 (Codex Alimentarius). 945 CoE Recommendation Rec(2002)12 of the Committee of Ministers to member states on education for democratic citizenship (16 October 2002), para 1. 946 Lenaerts and Gutiérrez-Fons, ‘The Role of General Principles of EU Law’, 1663. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 274 light of EDC/HRE standards. Promoting the value of democracy makes no sense without providing for EDC, based on international standards. What is expected of new Member States must, logically, be expected of existing Member States. Just as the value of the rule of law in Article 2 TEU has been interpreted by the European Parliament, the Commission and the ECJ (General Court)in the light of Council of Europe standards, including a Recommendation of the Committee of Ministers on judges’ independence, efficiency and responsibilities, so too should the value of democracy in Article 2 be interpreted in the light of Council of Europe standards, including the Recommendation of the Committee of Ministers to member states on the Charter on EDC/HRE.947 The substance of the norms of the Recommendation CM/Rec(2010)12 on judges’ independence, efficiency and responsibilities is set out in the appendix, like those of the Charter on EDC/HRE. Admittedly, their content is in general more precise than that of the Charter on EDC/HRE. Nevertheless, there can be no doubt as to the essential principles, which are explained in a sufficiently clear way.948 The legal effects of the values in Article 2 TEU are increasingly important. Article 2 TEU was cited in an Order of the Court (Grand Chamber) imposing a periodic penalty payment on Poland in the context of interim measures in infringement proceedings concerning forest management (rule of law).949 The Commission started the procedure under Article 7 TEU for determination of a clear risk of a serious breach by the Republic of Poland of the rule of law, as well as infringement procedures.950 In Wightman, the ECJ underlined the importance of the values of liberty and democracy, part of the very foundations of the EU legal order. Not allowing a Member State (the UK) to reverse its decision to withdraw would be inconsistent with the aims and the values expressed in Article 1 and 2 TEU.951 Democratic principles pervading EU law Title II of the TEU refers to ‘democratic principles’ in the plural (‘Provisions on democratic principles’). In the EU legal order, these democratic principles are not limited to the codification in Articles 9–12 TEU and can- 134 947 Text to n 765 ff. 948 See § 64 (‘On the other hand’). 949 Case C-441/17 R Commission v Poland, Order of the Court ECLI:EU:C:2017:877, para 102. See also the crucial role of Art 2 in Case C-64/16 Juízes Portugueses ECLI:EU:C:2018:117; and in Case C-216/18 PPU LM ECLI:EU:C:2018:586. 950 Text to n 769. 951 Case C-621/18 Wightman and Others ECLI:EU:C:2018:999, paras 61–63. C Interpretation of EU law taking account of exogenic norms (mode 6) 275 not be interpreted narrowly.952 Democracy as a value is expressed in terms of democratic principles, which are further developed and codified in rules in secondary legislation. EDC standards are part of those democratic principles, giving substance to the value and contributing to its realisation. EDC standards contribute to making the democratic principles effective.953 The provisions of the Treaties and the CFR are to be interpreted in the light of their preambles. In the preamble to the TEU, the Member States confirm ‘their attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law’. In the preamble to the CFR, they proclaim that the Union ‘is based on the principles of democracy and the rule of law’ and that the Union ‘places the individual at the heart of its activities’. It would be contrary to the general scheme of the Treaties to leave the individual––at the heart of the activities––without EDC. ECJ case law repeatedly confirms the importance of the principle of democracy: ‘participation reflects a fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly’.954 In Commission v Germany, the ECJ stated that ‘the principle of democracy forms part of European Community law’, expressly enshrined in the Treaty as one of the foundations of the EU; ‘[a]s one of the principles common to the Member States, it must be taken into consideration when interpreting acts of secondary law’.955 In other case law, the ECJ uses the principle of democracy as a ground of 952 On the concept of ‘principles’, see Semmelmann, ‘General Principles in EU Law between a Compensatory Role and an Intrinsic Value’, 460: ‘A principle is a norm (understood in a broad sense) that shows a certain degree of inherent structural generality in the sense of an indeterminate, abstract, programmatic, non-conclusive or orientative character. Notwithstanding subsequent codification, principles are frequently unwritten’. See also Tridimas, The General Principles of EU Law, 1; A von Bogdandy, ‘Founding Principles’ in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law, vol 8 (2nd edn, Hart Beck Nomos 2010). 953 Further Part three. 954 Case 138/79 Roquette Frères ECLI:EU:C:1980:249, para 33; Case 139/79 Maizena v Council ECLI:EU:C:1980:250, para 34; Case C 300/89 Commission v Council (Titanium dioxide) ECLI:EU:C:1991:244, para 20; Case C-155/07 Parliament v Council EU:C:2008:605, para 78. See also Joined Cases C-402/05 P and C-415/05 P Kadi ECLI:EU:C:2008:461, paras 303–304. Further K Lenaerts, ‘The principle of democracy in the case law of the European Court of Justice’ (2013) 62 International and Comparative Law Quarterly 271. 955 Case C-518/07 Commission v Germany ECLI:EU:C:2010:125, para 40, 51. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 276 legality control of the acts of the institutions.956 The principle of democracy pervades EU law. It should be interpreted in the light of EDC standards. Teleological interpretation of EU legislation on education EDC standards should be taken into account when interpreting EU law provisions on education teleologically, especially when they share objectives and the EU provisions were drafted in the period during which the Council of Europe was taking action in the same field, following the reasoning in RTL, Humanplasma and N in mode 4. On the basis of a teleological and historical interpretation, the provisions on social and civic competences in the 2006 Recommendation on key competences for lifelong learning, should be interpreted in the light of the 2002 Recommendation on education for democratic citizenship, i.a. having regard to the preparatory works.957 It must be admitted that uncertainty may arise as to how far the autonomy of the EU plays a role. Specific EU objectives deviating from Council of Europe objectives may lead to a divergent interpretation of––at first sight––comparable norms, as in Commission v UK on transfrontier television.958 Together with the general objectives shared with Council of Europe instruments on EDC, the Recommendation on key competences has its own specific objectives. It recognises education in its dual role, social and economic, but the economic objectives seem predominant: the first aim mentioned in the preamble of the Recommendation on key competences is to respond to globalisation and the shift to knowledge-based economies (Lisbon European Council of March 2000).959 Yet, I think that these economic objectives do not imply that the norms on civic and social competences should be interpreted as being at variance with EDC standards. On the contrary, durable economic prosperity can only be achieved in a society of mature citizens, aware of their rights and responsibilities, who value diversity and participate 135 956 See Case C-409/13 Council v Commission ECLI:EU:C:2015:217, paras 37, 96, 107: the ECJ dismissed the action for annulment of the Commission’s withdrawal of a proposal; the Commission had not infringed ‘the principle of democracy enshrined in Art 10(1) and (2) TEU’ (principle of democracy as a ground for review of legality under Art 263 TFEU). Other case law on democracy in Part three. 957 Text to n 848. 958 N 795. 959 Presidency Conclusions of the Lisbon European Council of 23 and 24 March 2000. C Interpretation of EU law taking account of exogenic norms (mode 6) 277 actively in democratic life at various levels. An interpretation which converges with Council of Europe norms is therefore appropriate. The objectives of the 2018 Recommendation on key competences for lifelong learning require an interpretation in the light of the 2010 Recommendation on the Charter on EDC/HRE. Moreover, the preamble of the 2018 Recommendation refers to the RFCDC. Nevertheless, the issue of autonomy will be kept in mind when applying the Charter on EDC/HRE to the EU citizen. EDC standards should also be taken into account when interpreting the Erasmus+ Regulation. Again, there may be doubts about a fully convergent interpretation because of the economic rationale. The general objective of the Erasmus+ Regulation is to contribute to the achievement of the Europe 2020 strategy for growth. The focus of the ET 2020 strategic objectives (European cooperation in education and training) is not citizenship education.960 However, in the 2015 response to radicalisation, new priorities were added which did relate to citizenship education.961 Mostly, the Erasmus+ Regulation shares the essential objectives of the Council of Europe’s norms on EDC, i.e. promoting active citizenship, participation in democratic life, and European values.962 Respect for the specific objectives of the EU should not therefore lead to a divergent interpretation, leaving EDC standards aside as some alien element. EDC standards contribute to realising several EU objectives EDC standards are fully consistent with several EU objectives. Accordingly, and in line with Cilfit, it is legitimate to take them into account 136 960 Art 4 (a) (b) and recital 5. Strategic objective 3 is not addressed to the population in general, but focuses on early school leavers, pre-primary education, migrants and learners with special needs. Strategic and specific objectives further developed in Part four. 961 Text to n 914. 962 Text to n 862. See also Strategic objective 3: Promoting equity, social cohesion and active citizenship, in Council Conclusions on the role of education and training in the implementation of the ‘Europe 2020’ strategy [2011] C70/ibid. Action in education combines an economic and social rationale, see, e.g., Council Conclusions on the role of youth work in supporting young people’s development of essential life skills that facilitate their successful transition to adulthood, active citizenship and working life [2017] OJ C189/30; Commission Communication 'School development and excellent teaching for a great start in life' COM(2017) 248 final. Further Part three, and Commission Erasmus Proposal COM(2018) 367 final. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 278 when interpreting EU law in a teleological way and giving effet utile to provisions.963 EDC standards are in harmony with the first aim of the EU, namely ‘to promote peace, its values [such as democracy] and the well-being of its peoples’ (Article 3 in conjunction with Article 2 TEU). They are congruent with Treaty objectives such as ensuring that the Union functions as a representative and participatory democracy (Articles 10–11 TEU), developing quality education (Article 165(1) TFEU), encouraging the participation of young people in democratic life in Europe through education (Article 165(2) TFEU), or protecting the rights of the child (Article 3(3) TEU). In its relations with the wider world, the EU aims to contribute to the protection of human rights, in particular the rights of the child (Article 3(5) TEU). Logically, it can be assumed that the EU accepts the standards on which there is a consensus in the international community, such as EDC standards.964 In its interconnection with human rights education, EDC is consistent with the objectives of the CFR. EDC standards also help to advance objectives pursued in secondary law, contributing to the effectiveness of essential rules, i.a. on transparency and openness.965 963 See Lenaerts and Gutiérrez-Fons, ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’, 16: ‘The Treaties are imbued with a “purpose-driven functionalism”-their provisions provide the link between the objectives pursued by the EU and the means to attain them’; 32: ‘teleological interpretation and systematic interpretation are often interlinked, since it is the latter that allows the ECJ to identify the objective pursued by the provision in question’; forms of teleological interpretation can be (1) functional, giving effet utile, (2) sensu stricto, interpreting an ambiguous provision in the light of its objectives, and (3) consequentialist, focusing on the consequences flowing from the interpretation advanced. See also M Ortino, ‘A reading of the EU constitutional legal system through the meta-principle of effectiveness’ [2016] Cahiers droit européen 91. On ‘primacy, unity and effectiveness of EU law’ see Case C-399/11 Melloni ECLI:EU:C:2013:107, para 60, and EU Accession to the ECHR Opinion 2/13 ECLI:EU:C:2014:2454, para 188. 964 CoE Committee of Ministers, Council of Europe Strategy for the Rights of the Child (2012-2015) (15 February 2012) CM(2011)171final, p 8. EDC appears among the standards set to protect the child, part of strategic objectives. See n 285. 965 Further § 242 , examples in § 256 ff. C Interpretation of EU law taking account of exogenic norms (mode 6) 279 Transparency and openness EDC standards can in the EU legal order be ranged under the umbrella principle of democracy, just like the principles of transparency and openness, with which they are closely interrelated. The principles of transparency and openness follow from several primary law provisions (i.a. Articles 1, 10, 11, 16 TEU; 15 TFEU; and 42 CFR).966 Secondary law and case law refer to them: Openness enables citizens to participate more closely in the decisionmaking process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Openness contributes to strengthening the principles of democracy and respect for fundamental rights as laid down in Article 6 of the EU Treaty and in the Charter of Fundamental Rights of the European Union.967 In this citation, the word ‘openness’ could be replaced by ‘EDC’ inasmuch as it serves the same purposes. Like the right of public access to documents, EDC standards relate to the democratic nature of the institutions. Both public access and EDC must be assured as widely as possible. EDC standards are in harmony with the EU objective of taking decisions ‘as openly and as closely as possible to the citizen’ (Article 10(3) TEU and preamble). Many EU law provisions corroborate the objective of informed citizenship. If the principles of transparency and openness point by their 137 966 Several components are codified, see i.a. Art 16(8) TEU on public meetings of the Council acting as a legislator; Art 42 CFR on the right of access to documents, Art 298(1) TFEU on an open European administration. 967 Recital 2 in the preamble to Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents [2001] OJ L145/43 (see also Proposal COM(2008) 229 final). The ‘right of public access to documents of the institutions is related to the democratic nature of those institutions’. See i.a. Case C-41/00 P Interporc ECLI:EU:C:2003:125, para 39; Joined Cases C‑39/05 P and C‑52/05 P Sweden and Turco ECLI:EU:C:2008:374, para 45; Case C-28/08 P Commission v Bavarian Lager ECLI:EU:C:2010:378, para 54; Joined Cases C-92/09 and C-93/09 Schecke and Eifert ECLI:EU:C:2010:662, para 68; Case C-506/08 P Sweden v MyTravel and Commission ECLI:EU:C:2011:496, para 72; Case C-280/11 P Council v Access Info Europe ECLI:EU:C:2013:671, paras 27–28; Case T‑540/15 De Capitani ECLI:EU:T:2018:167. See also Commission Report on the application in 2018 of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents COM(2019) 356 final. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 280 very nature to the ‘opposite of opaqueness, complexity or even secretiveness’968, the EDC standards do the same, only upstream, laying the foundations from the start for a basic understanding of the EU. The EDC standards are a corollary of the principles of openness and transparency (ontological assumptions). If democracy is a chain of legitimation from those governed to those governing,969 EDC in schools is the essential first link of this chain. EDC standards are a crucial prerequisite if democratic systems are to work. Citizens must be empowered to take action and to hold public institutions accountable. In Sweden and Turco, the ECJ held that the ‘possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights’.970 By the same token, EDC is a precondition for the effective exercise of democratic rights. With regard to the disclosure of an opinion of the legal service of the Council, the ECJ held that openness ‘contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confi- 968 S Prechal and ME de Leeuw, ‘Transparency: A General Principle of EU Law?’ in U Bernitz, J Nergelius and C Cardner (eds), General Principles of EC Law in a Process of Development (Kluwer 2008). On transparency, see i.a. Commission Communication Follow-up to the Green Paper 'European Transparency Initiative' COM(2007) 127 final, and scholars: D Curtin and AJ Meijer, ‘Does transparency strengthen legitimacy?’ (2006) 11 Information Polity 109; P Kostadinova, ‘Improving the Transparency and Accountability of EU Institutions: The Impact of the Office of the European Ombudsman’ (2015) 53 JCMS 1077. On the difference between the principles of openness and transparency: A Alemanno, ‘Unpacking the Principle of Openness in EU Law: Transparency, Participation and Democracy’ (2014) 1 ELRev 72 (openness includes transparency and participation). On the question whether transparency and openness are general principles of EU law, see K Lenaerts, ‘"In the Union we trust": trust-enhancing principles of Community law’ (2004) 41 CMLRev 317 (it can be hardly denied that the principle of transparency has evolved into a general principle of EU law); and Prechal and de Leeuw, ‘Transparency: A General Principle of EU Law?’ (authors scan manifold appearances of transparency in EU law, consider transparency too vague and uncertain to serve as an overarching a general principle, but find ‘sub-principles’; the function of transparency as a guiding principle for interpretation is well-established). 969 Hofmann, Rowe and Türk, Administrative law and policy of the European Union 146. See also J Ziller, ‘European models of government: Towards a patchwork with missing pieces’ (2001) 54 Parliamentary Affairs 102. 970 Joined Cases C‑39/05 P and C‑52/05 P Sweden and Turco ECLI:EU:C:2008:374, para 46 (emphasis added). See also Case C-280/11 P Council v Access Info Europe ECLI:EU:C:2013:671, para 33; and Case C-57/16 P ClientEarth ECLI:EU:C:2018: 660, para 84. C Interpretation of EU law taking account of exogenic norms (mode 6) 281 dence in them by allowing divergences between various points of view to be openly debated’.971 Access to information in documents is ‘intended to enable citizens to participate in public affairs’.972 These considerations apply equally to EDC, which has the same objective of empowering citizens. What is the real value of transparency and openness without prior citizenship education? If, in the interests of transparency, the IT man repairing a computer opens the main cover to show the customer what is inside, the customer will see the complex components, wires and chips, but be none the wiser. Without pre-knowledge and some education, transparency and openness may prove to be quasi empty principles. EDC standards coincide naturally with the aims of participation, legitimacy, and accountability. The academic writers referred to in Part one confirm this—for instance Sander, who considers that Mission (values), Legitimation and Mündigkeit are the essential aims of citizenship education.973 Lessig provocatively pleads against transparency.974 Public availability of all information on the Internet can add to alienation and cynicism. A requirement, he argues, is that citizens are able to use the information; so, transparency must be accompanied by other measures. Information must be incorporated into ‘complex chains of comprehension’, such as political campaigns. I think that EDC should be part of the chain of comprehension. Naked transparency is clearly not sufficient in itself. It can be concluded that a contextual and teleological interpretation of EU law provisions on citizenship, democracy and education should take account of EDC standards, as this interpretation corresponds to the structure of the Treaties and contributes to achieving the Treaties’ objectives.975 971 Joined Cases C‑39/05 P and C‑52/05 P Sweden and Turco ECLI:EU:C:2008:374, para 59. 972 Joined Cases C-92/09 and C-93/09 Schecke and Eifert ECLI:EU:C:2010:662, para 31. 973 See text to n 562. In the same line other scholars, e.g. Crick, Dahl, Dewey (see § 71 ff). 974 L Lessig, ‘Against transparency. The perils of openness in government’ (2009) 240 The New Republic 37 (Harvard Law School). 975 Text to n 727. Some analogy with the principle of transparency: even if it is not clearly a general principle as such, it has an interpretative function: see Prechal and de Leeuw in n 968. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 282 Interpretation in good faith and sincere cooperation Good faith, universal principle Th effects of the Charter on EDC/HRE in the EU legal order may also be felt through the principles of good faith and sincere cooperation.976 The universally recognised principle of good faith requires States to implement the international agreements they have concluded in good faith. Pursuant to Articles 26 and 31 of the Vienna Convention on the Law of Treaties, the EU Treaties must be performed and interpreted in good faith.977 When interpreting and applying provisions of the EU Treaties on democracy and citizens’ rights in good faith, Member States cannot deny the importance of EDC standards. Admittedly, good faith cannot function as a pathway for introducing non-binding norms into the EU legal order and conferring legally binding effect on them by means of interpretative incorporation. However, in the dégradé normatif, certain exogenic nonbinding norms, such as recommendations, may be hardened according to the criteria set out by academic writers (who base their arguments on case law).978 The consensus on which they rest may give them such a degree of legitimacy that good faith simply requires them to be taken into account. EDC standards are the reflection of an international consensus and have emerged as standards of great weight. The Charter on EDC/HRE represents the European acquis on EDC/HRE. The consistent nature of the commitments made over the course of 30 years work is too marked for Member States to be able to contest the relevance of EDC standards for EU citizens in any credible way. Member States cannot participate as members of the Council of Europe in the adoption of so many recommendations on EDC and then in good faith deny the implications of those standards for their citizens, who are––in addition to being national citizens––also EU citizens. A bona fide attitude means that the provisions on citizenship, democracy and education in EU law should be interpreted while taking account of Council of Europe commitments. Member States have a duty of good faith vis-à-vis one another and vis-à-vis their citizens, and citizens can legitimately expect Member States to adhere loyally to the rationale underlying EDC/HRE. If EDC standards inseparably link democracy, citizenship 138 976 §§ 160 and 162. 977 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, see also preamble. 978 Schermers and Blokker, Pinto de Albuquerque, and Tulkens (Part one, §§ 50 51 ). C Interpretation of EU law taking account of exogenic norms (mode 6) 283 and education, that link does not cease to exist because another level of governance is concerned.979 Democracy requires enlightened citizenship at any level of the exercise of public power. This must also apply in the EU context. Sincere cooperation, duty to cooperate in good faith in EU law Good faith acquires specific definition in EU law in the principle of sincere cooperation, also called the duty to cooperate in good faith (Article 4(3) TEU).980 In Intertanko, the ECJ interpreted EU law by taking an international agreement into account ‘in view of the customary principle of good faith, which forms part of general international law’ and of the principle of sincere cooperation.981 The Intertanko principle can be applied to EU law provisions on EU citizenship, democracy and education: in the light of the principles of good faith and sincere cooperation, these provisions must be interpreted taking into account international agreements, such as the ICESCR (Article 13) or the CRC (Article 29). Is the Intertanko principle only valid for (binding) international agreements? To what extent can the principle of sincere cooperation be an argument for interpreting EU law taking account of Council of Europe recommendations? One could argue that EU law should be interpreted by taking the Recommendation on the Charter on EDC/HRE into account ‘in view of the customary principle of good faith, which forms part of general international law’, and of the EU principle of sincere cooperation. The applicability of the principles of good faith and of sincere cooperation should not necessarily stand or fall on the basis of the black and white division binding/ non-binding. In accordance with le dégradé normatif, EU law could be 139 979 Council of Europe, UN and EU instruments refer to various levels, e.g. CoE Committee of Ministers Declaration and programme on education for democratic citizenship, based on the rights and responsibilities of citizens (Budapest, 7 May 1999), para 7; UNGA Res 71/8 'Education for democracy' (17 November 2016) UN Doc A/RES/71/8, para 6 (see n 2210); EU Recommendations on key competences for lifelong learning, civic and citizenship competence (nn 929, 930). 980 Principle of ‘federal good faith’, see Lenaerts and Van Nuffel, European Union Law 147; W van Gerven, ‘Gemeenschapstrouw: goede trouw in E.G.-verband’ [1989-90] Rechtskundig Weekblad 1158, 1159. See also J Temple Lang, ‘The Development by the Court of Justice of the Duties of Cooperation of National Authorities and Community Institutions under Article 10 EC’ (2007-2008) 31 Fordham International Law Journal 1483. 981 Case C-308/06 Intertanko ECLI:EU:C:2008:312, para 52. Moreover, Dir 2005/35 expressly referred to the Marpol 73/78 Convention. Text to n 742. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 284 interpreted as far as possible in a way consistent with commitments in international law, even if sensu stricto they are legally non-binding. The ECJ sees sincere cooperation as a general obligation the implications of which are to be determined in each individual case.982 As explained in Part one, the Recommendation on the Charter on EDC/HRE has a high degree of normativity in itself. When the EU selects à la carte, from the menu of Council of Europe norms, only whatever suits its own structure and purposes, can it afford to disregard the EDC standards—standards of considerable importance and possessing a high degree of normative intensity in the Council of Europe legal order, and relating to the common foundational values? The duty of sincere cooperation has effects in both directions, from the EU to the Member States and from the Member States to the EU. The Member States gave commitments in the Council of Europe; the EU (institutions) should loyally cooperate with Member States to help them honour these commitments. The EU legal order cannot be out of kilter with Member State commitments in the Council of Europe legal order. Interpreting ‘democracy’ in EU law as embracing EDC standards (under the denominator of the democratic principles of Title II TEU) brings EU law into line with the commitments of EU Member States as member states of the Council of Europe. Conversely, the EU aims to uphold democracy and has––in the Memorandum of Understanding––committed itself to recognising the Council of Europe benchmark on democracy, including the EDC standards; logically, the Member States should loyally cooperate to achieve these aims. Interpreting EU law in the light of EDC standards is therefore a form of mutual sincere cooperation: ‘Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties’ (Article 4(3) first subparagraph TEU). Respecting democratic principles is a task flowing from the Treaties (i.a. Articles 2, 3, 7, 49, Title II TEU, and other provisions read in the light of the preambles). The Union and the Member States must assist each other in the task of ensuring education for democracy. Interpreting provisions on citizenship, democracy 982 Case 78/70 Deutsche Grammophon ECLI:EU:C:1971:59, para 5. See also Case C-433/03 Commission v Germany ECLI:EU:C:2005:462, para 64. Further E Neframi, ‘Principe de coopération loyale et principe d'attribution dans le cadre de la mise en oeuvre du droit de l'Union’ (2016) 52 Cahiers droit européen 221. The human rights based approach in Part four will underscore the reasoning based on good faith and sincere cooperation by a reading in conjunction with with the ICESCR and the CRC. C Interpretation of EU law taking account of exogenic norms (mode 6) 285 and education in national and in EU law by taking EDC standards into account, is the first and most basic step. To refuse this combined reading could jeopardise the attainment of the Union’s objectives, in breach of Article 4(3) third subparagraph TEU. Article 4(3) second subparagraph TEU requires the Member States to take ‘any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union’. Can providing for EDC be seen as an ‘appropriate’ measure to ensure fulfilment of Treaty obligations such as the requirement to uphold ‘democratic’ values (Articles 2, 7 and 49 TEU)? The ECJ has progressively widened the interpretation of obligations arising under the principle of sincere cooperation.983 Member States are under ‘a general duty of care’. They must use their own powers, e.g. to grant nationality, in a spirit of sincere cooperation, having due regard to EU law (if they grant nationality, the person becomes an EU citizen and enjoys the associated rights throughout the EU).984 Equally, when exercising their competences in the field of education Member States must act in a spirit of sincere cooperation. They cannot just prepare their nationals for effective participation in the nation state. If they have a duty to adopt all the measures needed ‘to guarantee the full scope and effect of Union law’985, educating their nationals (who are also EU citizens) about the EU, and thus providing an EU dimension within EDC, must be part of that duty. Part three will analyse this on the basis of specific EU law provisions. The Treaties reiterate the principle of sincere cooperation in the area of common foreign and security policy: ‘The Member States shall support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and shall comply with the Union's action in this area’ (Article 24(3) TEU). In response to the challenges of radicalisation, EDC and HRE have become part of security policy in the Council of Europe as well as in the EU.986 To the extent that EDC and HRE concern the security of the Union, sincere cooperation is even more important. 983 Lenaerts and Van Nuffel, European Union Law 149. 984 Commission Report under Article 25 TFEU 'On progress towards effective EU citizenship 2013-2016' COM(2017) 32 final, p 4. 985 Lenaerts and Van Nuffel, European Union Law 150, 152; EU Accession to the ECHR Opinion 2/13 ECLI:EU:C:2014:2454, para 173. 986 For the CoE see § 37 . For the EU see i.a. Commission Communication 'Eight progress report towards an effective and genuine Security Union' COM(2017) 0354 final, and text to n 917 ff. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 286 Sincere cooperation is closely related to respect by the EU of international law. Consistent interpretation with international law, as far as possible Strict observance and development of international law EDC standards may produce effects in the EU legal order seen from the perspective of EU respect for international law. The Union aims at ‘the strict observance and the development of international law, including respect for the principles of the United Nations Charter’ (Article 3(5) TEU). The commitment to respect international law flows from the general scheme of the Treaty and the CFR (see, i.a., Articles 3(5), 21(1), and 42 TEU, Article 208(2) TFEU, Article 52(3) CFR). As far as possible, the ECJ interprets EU law in the light of and consistently with international law.987 The analysis of the substance of the specific rights of citizens in Part three will make it possible to develop this reasoning further. The Recommendation on the Charter on EDC/HRE is part of international law, in a soft law form, yet displaying several hardening factors. The EDC standards of the Council of Europe can be seen as a further development and manifestation of rights and principles in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child.988 Logically, EU law should be interpreted consistently with international law standards on education for democracy, to the extent possible. If the EU’s ambition is to contribute to ‘the development of international law’ (Article 3(5) TEU), it should––at the very least––itself respect standards widely accepted in the international community, such as the EDC standards. Since it aims to be an influential global player, the EU must take care to ensure consistency between its policies (Article 21(3) TEU).989 140 987 Lenaerts and Gutiérrez-Fons, ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’, 60. Klabbers, ‘Straddling the Fence: The EU and International Law’, 67. See, e.g., Case C-340/08 M and Others ECLI:EU:C:2010:232, paras 8, 11, 45, 49 (‘for the purpose of interpreting Regulation No 881/2002, account must also be taken of the wording and purpose of Resolution 1390 (2002) which that regulation, according to the fourth recital in the preamble thereto, is designed to implement’). This is also an example of mode 3: incorporation of substance and preamble reference. 988 See i.a. § 57 , § 292 . 989 Craig and de Búrca, EU Law: Text, Cases, and Materials 378–9. C Interpretation of EU law taking account of exogenic norms (mode 6) 287 In development cooperation, the Union and the Member States ‘shall comply with the commitments and take account of the objectives they have approved in the context of the United Nations and other competent international organisations’ (Article 208(2) TFEU). Citizenship and human rights education are part of the commitments and objectives (to invigorate civil society in third countries, to strengthen governments’ accountability990). If these commitments and objectives are an obligation (‘shall comply with’) in (external) development cooperation, they are a fortiori valid in the (internal) policies of the EU and the Member States. The principle of consistent interpretation may thus indirectly give effect to EDC standards. However, the red line means caution is necessary. Ambivalence—limits to consistent interpretation Even in the light of the ‘strict observance of international law’ to which the Union ‘shall contribute’ (Article 3(5) TEU), the principle of consistent interpretation has limits. The ECJ has to accommodate this principle with the constitutional autonomy of EU law and the ‘characteristic features’ of the EU.991 The relationship between EU law and international law is ambivalent.992 In the early landmark cases Van Gend & Loos and Costa v Enel, the ECJ established its position with regard to the relative autonomy of EU law vis-à-vis international law, and further developed this in cases such as Kadi and especially in Opinion 2/13.993 Vis-à-vis the Council of Europe, too, the EU demonstrates dependency and autonomy.994 The reluctance of the ECJ to cite Council of Europe recommendations or, occa- 141 990 Text to nn 868 and 868. 991 Case 283/81 Cilfit ECLI:EU:C:1982:335, para 17. Lenaerts and Gutiérrez-Fons, ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’, 7–8, 37 ff. 992 Klabbers, ‘Straddling the Fence: The EU and International Law’, 55, 61 (relationship ‘characterised by a high degree of complexity and ambivalence’; the approach of the ECJ can ‘hardly be qualified as völkerrechtsfreundlich’). See also P Eeckhout, ‘Human Rights and the Autonomy of EU Law: Pluralism or Integration?’ (2013) 66 Current Legal Problems 169. 993 Case 26-62 Van Gend & Loos ECLI:EU:C:1963:1; Case 6/64 Costa v ENEL ECLI: EU:C:1964:66; Joined Cases C-402/05 P and C-415/05 P Kadi ECLI:EU:C:2008: 461; EU Accession to the ECHR Opinion 2/13 ECLI:EU:C:2014:2454. 994 RA Wessel and S Blockmans, Between Autonomy and Dependence: The EU Legal Order Under the Influence of International Organisations (Asser Press 2013), 47. See also R McCrea, ‘Singing from the Same Hymn Sheet? What the Differences between the Strasbourg and Luxembourg Courts Tell Us about Religious Freedom, Non-Discrimination, and the Secular State’ (2016) 5 Oxford Journal of Law and Religion 183. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 288 sionally, other international instruments has been acknowledged.995 EU law is protected, adjusted or finetuned in its interpretation in order to respect the autonomy of the EU legal order. This is true where EU law incorporates the substance of binding exogenic norms (Commission v UK and Commission v Germany), and a fortiori of non-binding exogenic norms. Applying the Recommendation on the Charter on EDC/HRE to the situation of EU citizens in the next part will require constant prudence and care to respect the specificity of the EU legal order. Respect for the autonomy of the EU and its specific characteristics A closer look at the red line The ECJ operates in the five modes of normative reception and brings exogenic norms to life in case law. At the same time, however, the ECJ points to limits. In principle, unless there is a specific reason not to do so, EU law on citizenship, democracy and education should be interpreted in a way which takes account of EDC standards in general and of the Charter on EDC/HRE in particular. Yet, specific EU characteristics or objectives may lead to exceptions to the principle. What does the red line mean for the normative reception of EDC standards in the EU legal order and interpretation of EU law in their light? Opinion 2/13 In Opinion 2/13, in the context of the intended accession of the EU to the ECHR, the ECJ explained the autonomy of the EU. The High Contracting Parties had agreed in Protocol No 8 (which has the same legal value as the Treaties) that the agreement on EU accession to the ECHR ‘shall make provision for preserving the specific characteristics of the Union and Union law’ and must not affect the competences of the Union, the powers of its institutions, or the situation of the Member States in relation to the ECHR.996 A Declaration had clarified that the ‘specific features of EU law’ were to be preserved.997 Referring to these conditions, the ECJ briefly 142 143 995 I.a. nn 707, 773. 996 Protocol (No 8) relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms [2012] OJ C326/273, Arts 1 and 2; in line with Art 6(2) TEU. Emphasis added. 997 Declaration on Article 6(2) TEU by the Intergovernmental Conference (emphasis added); EU Accession to the ECHR Opinion 2/13 ECLI:EU:C:2014:2454, para 162. See para 159 for ‘compliance with various conditions’. C Interpretation of EU law taking account of exogenic norms (mode 6) 289 described what was meant by these specific characteristics998 and held that the ECHR accession agreement was ‘liable adversely to affect the specific characteristics of EU law and its autonomy’.999 The specific characteristics relate to the constitutional structure of the EU, i.e. the principle of conferral of powers (Arts 4(1) and 5(1)(2) TEU) and to the institutional framework (Articles 13–19 TEU). Moreover, specific characteristics arise from the very nature of EU law, stemming from the Treaties as an independent source of law, with primacy over the law of the Member States and many of its provisions having direct effect.1000 The legal structure of the EU is based on the fundamental premise of a shared set of common values (Article 2 TEU), recognised by the Member States, and justifying the mutual trust between the Member States.1001 At the heart of the legal structure are fundamental rights (CFR). The pursuit of the EU’s objectives (Article 3 TEU) is entrusted to a series of fundamental provisions, such as those on free movement of goods, services, capital and persons, EU citizenship, or the area of freedom, security and justice. They contribute to the process of integration that is the raison d’être of the EU itself.1002 Respect for constitutional principles when applying EDC standards Like the ECHR, the Recommendation on the Charter on EDC/HRE is directed to States and, as is well known, the EU is not a State.1003 Therefore, appropriate considerations are to be taken into account if these exogenic norms are nevertheless to enjoy a form of reception in the EU legal order (reception occurring in different modes and for different reasons). Applying the considerations in Opinion 2/13 mutatis mutandis to the reception and interpretation of EU law in the light of EDC standards, it must be ensured that the specific characteristics of EU law are preserved. Reception and interpretation require conformity with the ‘basic constitutional charter, the Treaties’.1004 The ‘constitutional principles’ of the Treaties cannot 144 998 See paras 165–176, 179 ff (about the ‘The specific characteristics and the autonomy of EU law’). See also Joined Cases C-402/05 P and C-415/05 P Kadi ECLI: EU:C:2008:461, para 285. 999 In several respects, see paras 200, 258 (not compatible with Art 6(2) TEU and Protocol No 8). 1000 Paras 165–166. 1001 Paras 168, 172, 191. 1002 Paras 170, 172. 1003 EU Accession to the ECHR Opinion 2/13 ECLI:EU:C:2014:2454, paras 156– 158, 193. 1004 Para 163. CHAPTER 4 Weaker modes of reception of exogenic norms in the EU legal order 290 be prejudiced.1005 When applying EDC standards as to their substance to the situation of the EU citizen in the next Part, this constitutional red line will be constantly borne in mind. The same obviously applies in relation to Member State constitutions. Moreover, not undermining constitutional principles is part of the EDC standards themselves, in line with the paragraph-4 principle of the Charter on EDC/HRE. This paragraph requires EDC/HRE objectives, principles and policies to be applied ‘with due respect for the constitutional structures of each member state, using means appropriate to those structures’ and ‘having regard to the priorities and needs of each member state’. If the Charter on EDC/HRE is applied to the EU citizen, the EU as structure must also benefit from the privilege of the paragraph-4 principle. Consequently, based on EU primary law, ECJ case law, as well as the EDC standards themselves, the analysis which follows will display caution with respect to the autonomy of the EU, the constitutional allocation of powers, both horizontally and vertically, and to Member States’ constitutions. As long as EU primary law and Member State constitutions are respected, there is no reason to deviate from the wide European consensus on EDC standards or classify the EDC standards in the diverging line of case law.1006 Conclusion to Part two Place of EDC standards in the schema of modes of reception To recapitulate, in the framework of the Council of Europe and the European Cultural Convention, 50 states adopted the 2010 Recommendation on the Charter on EDC/HRE, a reference instrument setting out EDC standards. Among the 50 states are all EU Member States. For them, the Charter on EDC/HRE acquires specific meaning seen from the perspective of EU law. The question addressed in Part two was: what are the legal status and effects of the Charter on EDC/HRE in the EU legal order? The answer is that the Charter on EDC/HRE is an exogenic norm, not part of EU law, but EU law gives it effects to a certain degree. To analyse the effects, this Part has formulated a schema of modes of reception of exogenic norms in the EU legal order, comprising three stronger modes of 145 1005 Joined Cases C-402/05 P and C-415/05 P Kadi ECLI:EU:C:2008:461, para 285 (‘the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights’). 1006 Criterion (ii) is meant to ensure this respect, see §§ 155 169 173 . Conclusion to Part two 291 reception and three weaker ones. The spectrum ranged from––the most significant mode in terms of legal effects—EU accession to conventions (mode 1), to reception via general principles of EU law (mode 2), reference to the title of exogenic instruments (mode 3), incorporation of the substance of exogenic norms (mode 4), to––least consequential mode of reception––sharing inspiration and de facto cooperation (mode 5). Judicial interpretation complements these modes of normative reception (mode 6). At all times, reception has to respect the autonomy of the EU legal order (the red line). Situating Council of Europe standards in the schema, the EU can thus ‘acknowledge’ them (Memorandum of Understanding) on the basis of six possible modes of reception, with varying legal effects. The reception of EDC standards mostly occurs in mode 4 via partial incorporation of the substance of the norms and in mode 5 on the basis of inspiration and cooperation in the field (working in the same paradigm). Occasionally, some references to the title of EDC instruments are to be found (mode 3). Overall, the normative reception of EDC standards in the EU legal order is fragmented but convincing. As a complement to their normative reception, EDC standards produce effects when taken into account in the interpretation of EU law (mode 6; contextual and teleological interpretation, interpretation in good faith and in sincere cooperation, and consistently with international law). EDC standards fit perfectly into the landscape of EU law, since they are inextricably linked to the EU’s values of democracy, respect for fundamental rights, and the rule of law, anchored in the Treaties. However, there is a red line which must not be crossed, as appears from ECJ case law: respect for the EU’s autonomy, the specific objectives and characteristics of the EU stemming from the Treaties, and constitutional principles. In a way, this reservation is inherent in the EDC standards themselves, pursuant to the paragraph-4 principle of the Charter on EDC/HRE. It can be concluded that a combined reading of EU law provisions on citizenship, democracy and education with EDC standards is legitimate. In Part three, the significance of EDC standards for democracy beyond the nation state will be explored. Again (just as at the end of Part one), for the sceptical reader it is not necessary to agree with all aspects of the preceding analysis. Independently of the effects which EU law assigns to EDC standards (as to form), the academic exercise of applying these widely accepted standards (as to substance) to the EU citizen, remains interesting per se. Conclusion to Part two 292 De lege ferenda Admittedly, the fact that ECJ case law shows both a converging and a diverging line of interpretation leaves the Council of Europe instruments on EDC in an uncomfortable position with regard to their effects in the EU legal order. This contrasts with the overriding importance of democracy and human rights as foundational values, and with the status of EDC as a shared priority and focal area for cooperation in the Memorandum of Understanding. In order to be effective, EDC requires a strong mode of reception.1007 ‘Acknowledging’ Council of Europe standards, the EU concluded a convention on animal protection (mode 1), developed a general principle on access to documents (mode 2), incorporated the title of language standards (mode 3), directly copy-pasted substantive rules on transfrontier television with a reference in the preamble (mode 4). There is no shortage of precedents, including on less important topics than EDC. EDC deserves to benefit from at least comparable efforts. Some joint programmes exist on EDC, which are valuable, but none the less very limited compared to the 500 million inhabitants of the EU.1008 Given the close interdependence of EU Member States on each others’ democracies, the fragmented normative reception of EDC standards and their interpretative value in the EU legal order (uncertain, given the red line) are not sufficient. EDC standards may enjoy ‘great weight’ or ‘considerable importance’ in the Council of Europe legal order, but their acceptance in the EU legal order is indirect and complicated. It has taken two chapters and many pages to explain the effects of EDC standards. EU action could remedy this within its sphere of competence. EDC standards should follow the course of other Council of Europe standards in a cascade of norm-setting.1009 In the area of EDC/HRE, the chain of ongoing normative interaction at present probably only reaches halfway. UN instruments containing educational standards, including on education for democracy1010, have influenced Council of Europe recommendations, such as the 2002 and 2010 Recommendations on EDC, which in turn have seen their substance and inspiration influence EU instruments on education, citizenship and democracy. Given the precedents, the further course of the cascade might imply ECJ interpretations taking the Charter on EDC/HRE into account and the adoption of specific EU instru- 146 1007 MOU, para 14. 1008 Text to n 898. 1009 Text to n 883 ff. 1010 UNGA resolutions on education for democracy, see n 2203. Conclusion to Part two 293 ments incorporating EDC substance while adapting EDC standards to the specific EU context (which, I will argue, is needed and possible, based on Article 165 TFEU). If democracy and human rights are to be taken seriously, one must expect the chain to be continued. Part two provides several arguments for the adoption of a comprehensive (non-fragmented) EU legislative act on EDC for the EU citizen, i.e. EDC adapted to the EU and its Member States.1011 Firstly, as to the form, it would provide a direct source on EDC in EU law. It would meet the concerns of the hesitant reader who prefers legal certainty in legal texts, rather than contextual, teleological, effet utile, or bona fide interpretations taking exogenic EDC standards into account. Secondly, as to the substance, an EU legislative act on EDC would be an opportunity to develop and adapt the Council of Europe norms specifically to the EU context, as has happened in many other fields.1012 An EU instrument could explain how specific features of the EU impact on EDC/HRE (further analysed in Part three). Thirdly, an EU instrument could remedy the weaknesses of the Recommendation on the Charter on EDC/HRE with regard to effectiveness, encouraging Member States to seek higher quality education (Article 165(1) TFEU). The latest review cycle of the Charter on EDC/HRE shows the persisting challenges to its implementation.1013 The adoption of an EU instrument would not prevent further cooperation with the Council of Europe. Proposal for recital Based on Part two, the following phrase could be added as a recital in the preamble of a hypothetical EU legislative act: Whereas EDC standards of the Council of Europe are not EU law and–as to their form–only have indirect effects in the EU legal order via partial normative reception and via an interpretation of EU law taking EDC standards into account while respecting the autonomy of the EU. 147 1011 Adaptation perspective in § 151 .The ‘civic competence’ described in the Recommendation on key competences for lifelong learning could be developed in an EU legal act, with adequate accompanying materials and evaluation as in the Council of Europe, respecting Member States competences (Part four). 1012 Examples in RTL and Ognyanov. 1013 CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, p 53. Conclusion to Part two 294 Content for the EU dimension in Education for Democratic Citizenship PART III Introduction: Criteria for determing content for the EU dimension Effects of a combined reading of EDC standards and EU law The central question for Part three is: what are the effects of a combined reading of EDC standards and EU law, as to the substance, for citizenship education of EU citizens? What are the implications for the content of EU learning at school? Provisions on EU citizenship, democracy, and education will be interpreted by taking account of EDC standards. An additional question is to be kept in mind, in preparation for Part four on legal competence to provide for quality education. When setting norms for national education curricula, Member States must respect the minimum standards included in the international right to education. EDC standards, as analysed in Part one, are the development of compulsory educational aims laid down in international agreements, binding for all Member States. The International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child list the aims to which education ‘shall be directed’. The aims include the preparation of the child for responsible life and effective participation in a free society, respect for human rights and fundamental freedoms, and promoting understanding, tolerance and friendship among all nations.1014 The corollary of the international right to education and to quality education, is the obligation for States to provide for available, accessible, acceptable and adaptable education (the 4 A scheme, explained in Part four).1015 What are the consequences of EU membership? To what extent does acceptable and adaptable education in EU Member States need an EU dimension? What is the impact of EU citizenship on the compulsory educational aims, the hallmark of quality education? Quality education is ‘adapted to the requirements of modern, complex societies’ and ensures that pupils’ ‘full potential 148 1014 Arts 13 ICESCR and 29 CRC. Core to all education is the full development of the human personality and the sense of its dignity. See n 81-82. 1015 See Part four text to nn 2149- 2150. 297 as citizens’ is developed’.1016 Part three will provide elements for the analysis in Part four of the EU’s competence to support quality education. How should learning content for ‘EU citizenship education’ be defined? The adjectives used by scholars in their reflections on EU citizenship paint a discouraging picture: thin, pale, uncertain, fragile, frail, Cinderella, pseudo, small c, unstable, muddy, debated, immature, contentious, loose, ...1017 These adjectives do not seem to support the need for genuine EU citizenship education; rather, they suggest that a thin, pale, uncertain, ... version of citizenship education will do. However, the full picture should be drawn, using EDC standards as a prism through which to look at EU law as a whole. What happens—as to the substance—when EDC standards meet EU law? 1016 CoE Recommendation CM/Rec(2012)13 of the Committee of Ministers to member States on ensuring quality education (12 December 2012), appendix paras 2 and 23. Definition of quality education in para 6. 1017 See i.a. S O'Leary, ‘The relationship between Community citizenship and the protection of fundamental rights in Community law’ (1995) 32 CMLRev 519 (p 537: ‘As it stands, citizenship could be regarded as a cosmetic exercise’); W Maas, ‘Unrespected, unequal, hollow? Contingent Citizenship and Reversible Rights in the European Union’ (2008-2009) 15 Columbia Journal of European Law 265 (the rights derived from EU citizenship are pale compared to national citizenship; author sketches three challenges: EU citizenship rights can be disrespected, contested, and fragile in their enforcement, ‘rights remain reversible, and citizenship remains contingent’); D Kochenov, ‘Ius tractum of many faces: European citizenship and the difficult relationship between status and rights’ (2009) 15 Columbia Journal of European Law 169 (p 234 ‘reform of European citizenship is needed to make sure that is it “not merely a hollow or symbolic concept”’); N Nic Shuibhne, ‘The Resilience of EU Market Citizenship’ (2010) 47 CMLRev 1597 (small c, pseudo); J Shaw, ‘Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism’ in P Craig and G de Búrca (eds), The evolution of EU law (Oxford University Press 2011) (text to fnn 41, 128, 152: a rather thin transnational concept); citizenship of the Union has—for most people—a Cinderella status (p 605); citizenship still has an uncertain ‘constitutional’ role in the EuropeanUnion); D Kochenov and R Plender, ‘EU Citizenship: From an Incipient Form to an Incipient Substance? The Discovery of the Treaty Text’ (2012) 37 ELRev 369 (quasi, thin, incipient); D Kochenov, ‘The Right to Have What Rights? EU Citizenship in Need of Clarification’ (2013) 19 ELJ 502; Craig and de Búrca, EU Law: Text, Cases, and Materials, 890 (reference to criticism of thinness); K Lenaerts, ‘EU citizenship and the European Court of Justice׳s "stone-by-stone" approach’ (2015) 1 International Comparative Jurisprudence 1. Introduction: Criteria for determing content for the EU dimension 298 Search for balanced ‘EU citizenship education’ In general, ‘citizenship education’ is meant to educate individuals to be informed, responsible and active citizens. Since the 1992 Maastricht Treaty introduced EU citizenship into the Treaties, it seems natural to extend the expression ‘citizenship education’ by adding the word ‘EU’, and to consider ‘EU citizenship education’ to be the education of individuals as informed, responsible and active EU citizens, thus taking citizenship of the Union and the rights attached to this status since the Maastricht Treaty as the substance. However, this approach is unsatisfactory seen from two sides. It is both reductive, seen from the EU perspective, and excessive, seen from the Member State perspective. This approach does not go far enough, inasmuch as the EU citizen is more than ‘citizenship of the Union’ and the rights usually attached to that status imply (Articles 20–24 TFEU).1018 At the same time, this approach goes too far, inasmuch as it may suggest that EU citizenship is a new citizenship to be forged by EU citizenship education in order to replace national citizenship. The aim of EU citizenship education should not be to create new citizens faithful to an EU super state in a huge social engineering exercise, neglecting national allegiances. Using the term ‘citizenship education’ in relation to the EU may create just such a false impression. For some, ‘EU citizenship education’ awakens high expectations of cultivating a sense of EU identity and feelings of belonging. For others, it leads to suspicion and fear that it will only further undermine national sovereignty and the nation state.1019 Citizenship education is traditionally associated with states (a statal concept) and as such cannot be transposed to the EU. It needs a translation adequate (acceptable and adaptable) for the EU.1020 EU citizenship education needs to find a balanced position. On the one hand, the sphere of the Member States must be safeguarded, national iden- 149 1018 See i. a. § 240. 1019 About fear of centralised ‘superstate’, see i.a. European Parliament Committee on Constitutional Affairs, Report on the Treaty of Lisbon (29 January 2008), Explanatory Statement to European Parliament resolution of 20 February 2008 on the Treaty of Lisbon, 1.4. 1020 See in general, N Walker, ‘Postnational constitutionalism and the problem of translation’ in JHH Weiler and M Wind (eds), European Constitutionalism Beyond the State (Cambridge University Press 2003); N Walker, ‘European Constitutionalism in the State Constitutional Tradition’ (2006) 59 Current Legal Problems 51, 51, on the question of ‘translatability’ of constitutionalism from the state tradition to the EU. See also GW Anderson, ‘Beyond "Constitutionalism Beyond the State"’ (2012) 39 Journal of Law and Society 359. Introduction: Criteria for determing content for the EU dimension 299 tities and the division of competences between the EU and the Member States must be respected (Articles 4 and 5 TEU). Ambitions with regard to EU citizenship and the realities of the nation state must be reconciled.1021 The Convention on the Rights of the Child includes among compulsory educational aims ‘development of respect for the own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate’ (Article 29(1)(c)). On the other hand, Member States must respect EU law. As ‘Masters of the Treaty’, they have chosen to transfer competences to the EU in the Treaties and the EU exercises public power together with them. This inevitably has consequences for citizenship education. It requires learning about the EU. ‘EU citizenship education’ should therefore not be under-stated, nor over-stated (nor over-Stated, modelled on the State). It must find a path along the edge of both abysses, a nuanced approach. The constitutions of the Member States and the EU Treaties and CFR offer trustworthy and objective guidance, a basis for developing a balanced form of ‘EU citizenship education’. Statal thinking Are EDC standards applicable to the EU as a polity?1022 Is postnational citizenship education possible? The classification of the EU within traditional concepts of political theory lead to contrasting views on EU citizenship 150 1021 P Kirchhof, ‘The European Union of States’ in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law, vol 8 (2nd edn, Hart Beck Nomos 2010) 738; E Spaventa, ‘Article 45: Freedom of Movement and of Residence’ in S Peers and others (eds), The EU Charter of Fundamental Rights: a Commentary (Hart 2014) 1169. 1022 Cf Shaw, ‘The many pasts and futures of citizenship in the European Union’, 563: ‘One insight to emerge from a discussion of citizenship as a background to the specific Union context has been that many of the concepts of nationality, national identity and nation which underlie the more “statist” approaches to the notion of citizenship are plastic in character’. See on the influence of globalisation on citizenship education in the nation state: Keating, ‘Educating Europe's citizens: moving from national to post-national models of educating for European citizenship’; Philippou, Keating and Hinderliter Ortloff, ‘Citizenship education curricula: comparing the multiple meanings of supranational citizenship in Europe and beyond’; KJ Kennedy, ‘Global Trends in Civic and Citizenship Education: What are the Lessons for Nation States?’ (2012) 2 Education Sciences 121, 125 (‘If the idea of citizenship is changing, it follows that ideas about civic and citizenship education should also be changing. Yet such changes are by no means simple. Civic and citizenship education Introduction: Criteria for determing content for the EU dimension 300 education. If qualified as an international (intergovernmental) organisation, the EU does not need ‘citizenship’ education.1023 Qualified as an emerging federal State, it does. Pure statal thinking causes much discomfort. In the context of statal thinking oriented towards the nation state, citizenship education aims at confirming the national identity and will perceive every form of EU citizenship education as a threat. In the context of statal thinking oriented towards the EU, EU citizenship education aims at creating the EU super state, nation-building for the United States of Europe. Neither forms of pure statal thinking can be reconciled with the Treaties: Member States have transferred competences to the EU level, on the one hand, but, on the other hand, the EU has no ‘Kompetenz-Kompetenz’ and must respect the national identity of the Member States.1024 Binary thinking must be left behind. Balanced EDC does not glorify the nation state, nor does it serve as a federalising device enlarging the sphere of influence of the EU, ‘humiliating the state’.1025 It is worth noting that the concept of EDC in the Charter on EDC/HRE is not defined by reference to a state. EDC is about empowering learners ‘to exercise and defend their democratic rights and responsibilities in society, to value diversity and to play an active part in democratic life, with a view to the promotion and protection of democracy and the rule of law’ (para 2). EDC ‘focuses primarily on democratic rights and responsibilities and active participation, in relation to the civic, political, social, economic, legal and cultural spheres of society’.1026 Instruments at UN level and scholars confirm that the perspective starts from the individual in society, not the State. Weiler writes: ‘Democracy is not about States. Democracy is about the exercise of public power––and the Union exercises a huge amount of public power’.1027 has been embedded in traditional theoretical frameworks that assume it is linked to the needs of individual nations.’). 1023 Text to n 74. 1024 Text to n 1029. 1025 Cp G Davies, ‘The humiliation of the state as a constitutional tactic’ in F Amtenbrink and PAJ van den Berg (eds), The Constitutional Integrity of the European Union (Asser Press 2010); K Lenaerts and JA Gutiérrez-Fons, ‘Epilogue on EU Citizenship: Hopes and Fears’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge University Press 2017). 1026 In the same sense, UN instruments, see i.a. n 979 and accompanying text. See also n 307, and text to n 2208 ff. 1027 JHH Weiler, ‘United in Fear: The Loss of Heimat and the Crises of Europe’ in L Papadopoulou, I Pernice and JHH Weiler (eds), Legitimacy issues of the Euro- Introduction: Criteria for determing content for the EU dimension 301 The adaptation perspective: adding an EU dimension to national EDC The issue of ‘EU citizenship education’ can be approached in four metatheoretical ways (by analogy to Walker’s four meta-theoretical perspectives on the relationship between State, constitution, and EU).1028 From the miscategorisation perspective, ‘EU citizenship education’ is impossible: citizenship education is part of the State tradition and does not apply to the EU, because the EU is not a State and not intended to become one.1029 From the continuity perspective, ‘EU citizenship education’ is a prolongation of national citizenship education, because the EU can be considered a form of federal State, or, at least, has sufficient state-like features.1030 Both the miscategorisation and the continuity perspective remain ‘under the shadow of the state’.1031 The nominalist perspective perceives the issue as a matter of ‘only semantics’.1032 Here ‘EU citizenship education’ is freestand- 151 pean Union in the face of crisis: Dimitris Tsatsos in memoriam (Nomos 2017) 366. Further text to nn 2208 ff. 1028 Walker, ‘European Constitutionalism in the State Constitutional Tradition’. The question of ‘EU citizenship education’ and the label ‘constitution’ for EU primary law have this point in common: the discomfort caused by the state paradigm. 1029 Art 4(2) TEU; EU Accession to the ECHR Opinion 2/13 ECLI:EU:C:2014:2454, i.a. paras 156 and 193. See also analysis in Kirchhof, ‘The European Union of States’, 754 (‘the EU lacks the essential characeristics of a modern state’); C Calliess, ‘EU-Vertrag (Lissabon) Art 1’ in C Calliess and M Ruffert (eds), EUV/ AEUV: das Verfassungsrecht der Europäischen Union mit Europäischer Grundrechtecharta : Kommentar (5th edn, Beck 2016), Rn 27 ff, Rechtsnatur der EU. 1030 GF Mancini, ‘Europe: The Case for Statehood’ (1998) 4 ELJ 29; GF Mancini, ‘The making of a constitution for Europe’ (1989) 26 CMLRev 595. On federalism and the EU: K Lenaerts, ‘Constitutionalism and the Many Faces of Federalism’ (1990) 38 The American Journal of Comparative Law 205; C Schönberger, ‘European Citizenship as Federal Citizenship: Some Citizenship Lessons of Comparative Federalism’ (2007) 19 European Review of Public Law 63; K Lenaerts, ‘EU Federalism in 3-D’ in E Cloots, G De Baere and S Sottiaux (eds), Federalism in the European Union (Hart 2012); Calliess, ‘EU-Vertrag (Lissabon) Art 1’, Rn 27 ff; D Kochenov (ed) EU Citizenship and Federalism: The Role of Rights (Cambridge University Press 2017); D Kochenov, ‘On Tiles and Pillars: EU Citizenship as a Federal Denominator’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge University Press 2017), i.a. p 17 fn 74. 1031 Walker, ‘European Constitutionalism in the State Constitutional Tradition’, 54. 1032 Ibid, 53 (‘constitutionalism can mean whatever we want it to mean within the very broad framework of whatever may be considered desirable by way of the regulation of political authority’). Introduction: Criteria for determing content for the EU dimension 302 ing, independent of the state tradition, and based on its own definition according to what is desirable, sui generis.1033 If the EU is a sui generis supranational organisation, sui generis citizenship education may be appropriate. I will not defend such a position, as Member States’ traditions are deeply rooted and are the basis for the current way of framing citizenship education. Statal thinking is in our genes and it forms the starting point. The preamble of many constitutions of Member States bear witness to the past suffering of the nation and affirm the sovereignty and independence of the State.1034 Respect for Member States’ histories, opinions and feelings of belonging, and for constitutional structures, however, does not exclude the incorporation of an EU dimension in national citizenship education. From the adaptation perspective, state citizenship education remains the key contemporary frame, but is flexible and open, acceptable and adaptable to the EU and EU citizenship through the addition of an EU dimension. It is ‘taking the state tradition seriously without being paralysed by its legacy’.1035 Acknowledging the many debates on the nature of EU citizenship and the EU (and on their contours for the future),1036 it is from the adaptation perspective that the following analysis will explore how to add an EU dimension to EDC which respects EU law and national constitutions. This 1033 For arguments against the sui generis qualification, see R Schütze, ‘On "federal" Ground: The European Union as an (Inter)national Phenomenon’ (2009) 46 CMLRev 1069, 1091–2. 1034 See i.a. preamble to the constitution of the Czech Republic, Croatia, Ireland, Italy, Lithuania, Poland, Slovenia. National identities are to a certain extent constructed, i.a. by recalling (or selectively remembering) common historic experiences. See E Hobsbawm and T Ranger (eds), The Invention of Tradition (first published 1983, Cambridge University Press 1992); Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism. 1035 Walker, ‘European Constitutionalism in the State Constitutional Tradition’, 55 (see p 56 ff). 1036 For further reflections on the nature and possible qualifications of the EU, see nn 1030, 1702 and text. Further i.a. K Lenaerts, ‘Interlocking Legal Orders in the European Union and Comparative Law’ (2003) 52 International and Comparative Law Quarterly 873; Schermers and Blokker, International Institutional Law: Unity within Diversity; C Timmermans, ‘How to Define the European Union?’ in F Goudappel and E Hirsch Ballin (eds), Democracy and Rule of Law in the European Union: Essays in Honour of Jaap W de Zwaan (Springer 2014); Klabbers, ‘Straddling the Fence: The EU and International Law’; N Walker, ‘The Philosophy of European Union Law’ in D Chalmers and A Arnull (eds), The Oxford Handbook of European Union Law (Oxford Handbooks Online 2015); Rosas and Armati, EU Constitutional Law: An Introduction 7 (an elephant that cannot be defined). Introduction: Criteria for determing content for the EU dimension 303 will adjust traditional citizenship education to the EU supranational system, a multilevel system of governance. The German Constitutional Court, for instance, has emphasised that the EU is not a State and that it should not be compared to one for its democratic legitimation. Participation of Germany in the EU does not mean that a federal State is coming into being, but is about ‘an extension of the constitutional federal model by a supranational cooperative dimension’.1037 Applying this reasoning to EDC, the national EDC model needs extending by a supranational dimension. At present, citizens experience the EU predominantly through the lens of their own Member State.1038 Education has to connect to this (statal) reality. In an adaptation perspective, I will explore how to extend existing national EDC with a view to including an EU dimension consistent with EU law. EDC in mainstream education How can relevant content for an EU dimension of EDC adapted to mainstream education be defined? Inside and outside school, there may be valuable EU learning projects, often provided ad hoc, or by enthusiastic teachers doing more than is required by the curriculum.1039 While they deserve due credit for this, the concern is that this EU learning only ever reaches small numbers of young EU citizens. EDC standards aim to educate all learners for democracy, not a group of voluntary learners, not a select group. Article 10(3) TEU provides that every citizen shall have the right to participate in the democratic life of the Union. The Charter on EDC/HRE states that member states should be guided by the ‘aim of providing every person within their territory with the opportunity of education for democratic citizenship and human rights education’.1040 In view of this aim, this analysis will explore what is relevant content for an EU dimension of EDC in mainstream education in schools. ‘Mainstream education’ refers to the 152 1037 BVerfG, 2 BvE 2/08 (Lissabon) 30 June 2009, Absatz-Nr (1-421), para 277 (‘Nicht nur aus der Sicht des Grundgesetzes handelt es sich bei der Beteiligung Deutschlands an der Europäischen Union indes nicht um die Übertragung eines Bundesstaatsmodells auf die europäische Ebene, sondern um die Erweiterung des verfassungsrechtlichen Föderalmodells um eine überstaatlich kooperative Dimension’). 1038 See C Schönberger, ‘Foreword. European citizenship as federal citizenship: studying EU citizenship through the federal lens’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge University Press 2017) xxviii. 1039 See n 39. Also first caveat, text to n 570 ff. 1040 Charter on EDC/HRE, para 5 (a). See also § 241 . Introduction: Criteria for determing content for the EU dimension 304 compulsory levels of ‘formal education’, defined as ‘the structured education and training system that runs from pre-primary and primary through secondary school and onto university’.1041 Formal education is normally provided by general or vocational educational institutions. Schools are institutions providing formal education at primary and secondary level.1042 Formal learning is the foundation for lifelong learning and is important in qualitative and quantitative terms. Delors observes that it is very tempting to focus on the educational potential of the modern media, yet he warns that people will not be able to make good use of potential resources outside schools unless they have received a sound basic education, fostering intellectual curiosity: nothing can replace the formal education system, where each individual is introduced to the many forms of knowledge. There is no substitute for the teacher––pupil relationship, which is underpinned by authority and developed through dialogue. This has been argued time and time again by the great classical thinkers who have studied the question of education.1043 Moreover, at present, learning through and from the media has been undermined because of fake news or disinformation. More than half of the respondents in a 2018 European Barometer tend not to trust media.1044 The quantitative importance of formal learning is illustrated by the huge 1041 Charter on EDC/HRE, para 2 (leading to certification), also para 6. See further definitions in Art 2 Erasmus+ Regulation 1288/2013. See also para 5(c): all means of education have to play a part, also non-formal and informal. Overview in figure in Annex 5 to this study. 1042 Text to n 4. 1043 Delors, ‘Education: The Necessary Utopia’, 19. Additionally important: Resolution of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on the recognition of the value of non-formal and informal learning within the European youth field [2006] OJ C168/1. In several contexts, I will argue that information and awareness-raising do not suffice, education is needed (see i.a. text to n 1587). 1044 Standard Eurobarometer 89, Public Opinion in the European Union (June 2018): on average 56% of respondents in the EU tend not to trust the media (e.g. FI 23%, DK 36%, LU 42%, DE 47%, HU 60%, FR 66%, EL 77%), while 40% tend to do so. See also Flash Eurobarometer 464, Fake News and Disinformation Online (March 2018): traditional sources are more trusted, such as radio (70%), television (66%) and printed media (63%); online sources are trusted less, such as online newspapers and magazines (47%), video hosting websites and podcasts (27%) and online social networks and messaging apps (26%). Introduction: Criteria for determing content for the EU dimension 305 number of hours which pupils spend in classrooms. On average, 15 years of life are spent in schools. Instruction in classroom settings absorbs a large proportion of public investment, which is crucial to effective schooling.1045 Given its aim of not only preparing young people for employability, but also for life as responsible citizens in a democratic society, formal learning should reach as many young EU citizens as possible in a systematic way. To that effect, I propose that EU learning should be included in compulsory levels of mainstream education, in general curricula in primary and secondary schools, adapted for different levels of difficulty. The last years of secondary education are a particularly valuable time for exercising critical thinking with regard to the EU. Accordingly, higher education programmes for future teachers, multipliers of EU knowledge, need to be adapted (an EU dimension in the training of trainers).1046 A 2017 Eurobarometer reports: A large majority (89%) agree national governments should strengthen school education about rights and responsibilities as EU citizens. More than eight in ten also agree that learning about European matters, such as the functioning of the EU and its institutions, EU history or European culture, should be part of compulsory school education (83%).1047 In principle, mainstream education includes all curricula, not only specialised curricula with a special focus on the EU, such as economics, and not only curricula targeted at the more gifted pupils before they attend university. It also includes vocational training curricula. Given an observed ‘middle-class bias’ (higher representation of members of the middle class 1045 See overview in Commission/EACEA/Eurydice, Compulsory Education in Europe 2019/20—Facts and Figures, 6. Profiles in OECD, Education at a Glance 2017: OECD Indicators (OECD 2017), 61. ISCED levels in Commission/ EACEA/Eurydice, Citizenship Education in Europe (2012), 106 (ISCED 2: Lower secondary education; ISCED 3: Upper secondary education). 1046 See on teacher training, Charter on EDC/HRE, paras 7 and 9; CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, i.a. 53, 61, 69–70, 87 (EDC/HRE provision in teacher training is considered as insufficient). 1047 Flash Eurobarometer 455, European Youth (January 2018); interviewed respondents were aged 15–30 (survey conducted by TNS political & social at the request of the European Commission, DG Directorate-General for Education, Youth, Sport and Culture). See also Flash Eurobarometer 319b, Youth on the Move: Education and training, mobility, employment and entrepreneurship (May 2011), 9. Introduction: Criteria for determing content for the EU dimension 306 in participation forums),1048 the EU dimension should be inserted into technical and professional education programmes. Future doctors and future electricians, future white- and blue-collar workers are all future EU citizens whom the EU seeks to put at the centre of its project and who must be empowered to participate in the democracy aspired to. They all deserve an EU dimension in the various forms and levels of education they receive.1049 Therefore, by analogy with the mainstreaming of gender equality in education,1050 it is submitted that an EU dimension too should be mainstreamed in education, in application of EDC standards. Four criteria for determining relevant content for the EU dimension of EDC Possible content for the EU dimension in mainstream education will be explored. The EU is active in many policy fields influencing citizens’ lives. Manuals to introduce students in higher education to the EU and textbooks on EU law cover hundreds (thousands) of pages. What should be selected for pupils in schools? Obviously, not all pupils need to know about the right to deduct value added tax and the conditions for doing so pursuant to Directive 2006/112, nor about the obligation to respect milk quotas in the common agricultural policy. Schools can emphasise different aspects of the EU dimension of EDC in general or vocational training, depending on curriculum specialisations.1051 The purpose of this Part is to explore those aspects of EU law which may have particular relevance for an 153 1048 Opinion of the European Economic and Social Committee on ‘The transition towards a more sustainable European future— a strategy for 2050' [2018] OJ C81/44, paras 3.4.6 and 5.2.4. 1049 Facts in Education at a Glance 2017: OECD Indicators. See also Special Eurobarometer 471, Fairness, inequality and inter-generational mobility (December 2017): 41% of the respondents had completed secondary education, 16% had completed primary education. Working respondents are manual workers (41%), white collar workers (23%), managers (21%), 15% self-employed. 1050 CoE Recommendation CM/Rec(2007)13 of the Committee of Ministers to member states on gender mainstreaming in education (10 October 2007), para 37; Explanatory memorandum to the Charter on EDC/HRE, para 6. See also recital 5 in Decision 1093/2012/EU of the European Parliament and of the Council of 21 November 2012 on the European Year of Citizens (2013) [2012] OJ L325/1; and Struthers, ‘Human Rights: A Topic Too Controversial for Mainstream Education?’. 1051 Certain EU policies have more relevance depending on specific curricula (e.g. chemistry, finance, commerce, economy, culture, agriculture, joinery, electricity, or technology and environment). Examples in section on EU rights (i.a. text to n 2061). Introduction: Criteria for determing content for the EU dimension 307 EU dimension of EDC in mainstream education on the basis of four criteria. The criteria (i-iv) are based on a combined reading of EU primary law and EDC standards as explained in Part one. All four criteria (i-iv) are applied to the concept of EDC as defined in Chapter One, including its three empowerment aims (c-1 to c-3). This confirms the importance of having identified a commonly accepted concept of citizenship education in Part one and having analysed its effects in the EU legal order in Part two.1052 (i) Additional content In national EDC, pupils (supposedly) learn about the concepts of democracy, citizenship rights, values such as equality, justice, etc., based on Member State law and structures.1053 They exercise skills, such as critical thinking, and develop attitudes based on respect and tolerance. They are introduced to human rights, which are universal. What does the EU level of governance have to add to this? A combined reading of EU primary law defining EU citizenship (Articles 9 TEU and 20 TFEU) and the Charter on EDC/HRE (paragraph 2) leads to the first criterion for the EU dimension: does it provide additional content for national EDC? The 1992 Maastricht Treaty established the legal concept of ‘citizenship of the Union’. The 1997 Amsterdam Treaty added that Union citizenship ‘shall complement and not replace national citizenship’. The 2009 Lisbon Treaty replaced the word ‘complement’ by ‘additional’, reinforcing the idea that, in principle, EU citizenship does not detract from national citizenship rights, but adds further rights.1054 Reiterating article 9 TEU, Article 20(1) TFEU states that: 154 1052 § 129 . 1053 Council Recommendation of 22 May 2018 on key competences for lifelong learning, Annex: A European Reference Framework, 6: Citizenship competence (‘knowledge of basic concepts’). See concepts mentioned in Recommendation of the European Parliament and of the Council of 18 December 2006 on key competences for lifelong learning, Annex, Civic competences. 1054 Cp ex Art 8 of Treaty on European Union, signed at Maastricht on 7 February 1992 [1992] OJ C191/1; ex Art 17 of the Treaty on European Union; and Art 20(1) TFEU. See Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon on 13 December 2007 [2007] OJ C306, Art 2(34) amending Art 17 of the Treaty establising the European Community. Already in 1992, Closa wrote: ‘The distinctive element of the concept of citizenship of the Union is the enjoyment of rights and the subjection to the obligations granted by the Treaty (Article 8.2). This determines the first characteristic of citizenship: additionality’: C Closa, Introduction: Criteria for determing content for the EU dimension 308 Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.1055 The relationship between national citizenship and EU citizenship is not ‘either/or’ but ‘both/and’.1056 EU citizenship is not self-standing; nor is EU citizenship education. The legal status of EU citizenship is derived from national citizenship inasmuch as Member States define who are their nationals and these nationals automatically become EU citizens by virtue of the definition in the Treaties. This legal automatism is (unfortunately) not an educational automatism: education as an EU citizen does not automatically follow from education as a national citizen. Extra efforts are needed to transform national citizens, additionally, into empowered EU citizens. Because EU citizenship is additional to national citizenship, ‘EU citizenship education’ can be defined as national citizenship education with an additional EU dimension; in other words, as national EDC which incorporates an EU dimension. The expression ‘the EU dimension of EDC’ is to be preferred to ‘EU citizenship education’, as the latter may raise suspicions of an intention to replace national citizenship with EU citizenship, and national identities with an EU identity, which would be in breach of the Treaties. ‘The concept of citizenship in the Treaty on European Union’ (1992) 29 CML- Rev 1137, 1160. See also Shaw, ‘Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism’, text to fn 109 ff. 1055 My emphasis. Cp ‘La citoyenneté de l'Union s'ajoute à la citoyenneté nationale et ne la remplace pas’; ‘Die Unionsbürgerschaft tritt zur nationalen Staatsbürgerschaft hinzu, ersetzt diese aber nicht’; ‘Het burgerschap van de Unie komt naast het nationale burgerschap doch komt niet in de plaats daarvan’. See also Art 9 TEU. 1056 EDH Olsen, ‘European Citizenship: Mixing Nation State and Federal Features with a Cosmopolitan Twist’ (2013) 14 Perspectives on European Politics and Society 1, 4. See also European Parliament Resolution of 26 September 2006 on initiatives to complement school curricula providing appropriate support measures to include the European dimension [2006] OJ C306E/100, para 13 (‘Stresses that the European dimension complements national content, but neither replaces nor supplants it); M van den Brink, ‘The Court and the Legislators: who should define the scope of free movement in the EU?’ in F De Witte, R Bauböck and J Shaw (eds), Freedom of movement under attack: Is it worth defending as the core of EU citizenship? (EUI Working Papers RSCAS 2016/69, 2016), 25 (‘EU citizenship is not about the centralisation of rights and about replacing the democratically legitimated substance of national laws by uniform European ones’). Introduction: Criteria for determing content for the EU dimension 309 Part three aims to analyse the additional EU dimension of EDC based on EU law. EDC aims to empower citizens ‘to exercise and defend their democratic rights and responsibilities in society’ (c-1), ‘to value diversity’ (c-2), and ‘to play an active part in democratic life’ (c-3), with a view to the promotion and protection of democracy and the rule of law.1057 To achieve this empowerment, EDC equips learners with ‘knowledge, skills and understanding’ and develops ‘their attitudes and behaviour’ (b). In the context of Council of Europe standard- setting, the components of EDC standards have been chosen to be multi-purpose, flexible, and dynamic, in order ‘to allow member states to adapt them to suit their own needs and the distinct cultural contours of their own societies’.1058 They can thus be adapted to suit the needs of EU Member States. The intention in adopting an EDC common denominator was to allow for diversity of approach. In order to apply EDC standards to democracy beyond the State, and without going into theoretical reflections on democracy and postnational citizenship, I will—pragmatically—formulate content for the components of the EDC concept of the Charter on EDC/HRE on the basis of EU law, in interaction with national law.1059 This empirical approach, based on legal realities, ensures a stable (safe) start for EDC. It cannot be contested 1057 Definition of EDC in Charter on EDC/HRE, para 2. Components numbered in § 27 . 1058 See i.a. Thorbjørn Jagland, CoE Secretary General, Preface in Competences for democratic culture: Living together as equals in culturally diverse democratic societies (CoE 2016), 8, also 31. 1059 Literature on democracy and the EU is immense. See, i.a., E Stein, ‘International integration and democracy: no love at first sight’ (2001) 95 American Journal of International Law 489; Verhoeven, The European Union in Search of a Democratic and Constitutional Theory; W Durner, ‘Streitbare Demokratie’ (2003) 128 Archiv des oeffentlichen Rechts 340; A Peters, ‘European democracy after the 2003 Convention’ (2004) 41 CMLRev 37; D Halberstam, ‘The bride of Messina: constitutionalism and democracy in Europe’ (2005) 30 ELRev 775; JP McCormick, ‘Habermas, Supranational Democracy and the European Constitution’ (2006) 2 European Constitutional Law Review 398; G de Búrca, ‘Developing Democracy beyond the State’ (2007-2008) 46 Columbia Journal of Transnational Law 221; Habermas, Zur Verfassung Europas. Ein Essay; F de Witte, ‘Union Citizenship and Constrained Democracy’ in M De Visser and AP van der Mei (eds), The Treaty on European Union 1993-2013: Reflections from Maastricht (Intersentia 2013); J Habermas, ‘Democracy, Solidarity and the European Crisis’ (KU Leuven, 26 April 2013); Lenaerts, ‘The principle of democracy in the case law of the European Court of Justice’; Nicolaïdis, ‘European Demoicracy and Its Crisis’; S Rummens and S Sottiaux, ‘Democratic Legitimacy in the Bund or ‘Federation of States’: the Cases of Belgium and the EU’ (2014) 20 ELJ 568; L Van Middelaar and P Van Parijs (eds), After Introduction: Criteria for determing content for the EU dimension 310 that national EDC needs to be consistent with EU law.1060 EU law contributes to the content of the EU dimension of EDC since it inevitably impacts on the components of the EDC concept. Starting from the EDC concept as defined in the Charter on EDC/HRE, my purpose is to explore the effects of EU law on the component parts of EDC. To what extent does EU law, in interaction with Member State law, produce additional democratic rights and responsibilities for EU citizens in society (c-1), additional elements to value diversity (c-2) and additional elements enabling them to play an active part in democratic life (c-3)? To empower EU citizens, which additional knowledge, skills, attitudes and behaviour (b) are needed, adapting national EDC? As for HRE, what is the additional EU dimension needed (interconnected with EDC) in order to contribute to the building and defence of a universal culture of human rights in European society? (ii) Significant content, i.e. relating to foundational values, objectives and principles laid down in EU primary law Some of the additional content for EDC components, satisfying criterion (i), may be of marginal significance for the average pupil, e.g. rights or obligations relating to fisheries. Therefore, a second criterion for main- 155 the Storm: How to Save Democracy in Europe (Lannoo 2015); J Hoeksma, From Common Market to Common Democracy: A Theory of Democratic Integration (Wolf Legal Publishers 2016). See further mentioned scholars on constitutionalism and on citizenship. Also EF Isin and BS Turner, Handbook of Citizenship Studies (Sage 2002); D Kostakopoulou, ‘Ideas, Norms and European Citizenship: Explaining Institutional Change’ (2005) 68 The Modern Law Review 233; S Besson and A Utzinger, ‘Introduction: Future Challenges of European Citizenship - Facing a Wide-Open Pandora's Box’ (2007) 13 ELJ 573; D Kostakopoulou, ‘European Union Citizenship: Writing the Future’ (2007) 13 ELJ 623; M Aziz, ‘Implementation as the Test Case of European Citizenship’ (2009) 15 Columbia Journal of European Law 281; G Davies, ‘The entirely conventional supremacy of Union citizenship and rights’ in J Shaw (ed), Has the European Court of Justice Challenged the Member State Sovereignty in Nationality Law? (EUI Robert Schuman Centre for Advanced Studies Paper 62, 2011); A Iliopoulou-Penot, ‘The Transnational Character of Union Citizenship’ in M Dougan, NN Shuibhne and E Spaventa (eds), Empowerment and Disempowerment of the European Citizen (Hart 2012); EF Isin, ‘Citizens without Nations’ 30 Environment and Planning D: Society and Space 450; A Iliopoulou-Penot, ‘Citoyenneté de l'Union, mobilité et intégration dans l'espace européen’ (2014) 134 Revue de l'OFCE 29; D Kostakopoulou, ‘Scala Civium: Citizenship Templates Post-Brexit and the European Union's Duty to Protect EU Citizens’ (2018) 56 JCMS 1. 1060 On the solidity of EU primary law as a basis for EDC, see text to nn 1141-1086, and following section. Introduction: Criteria for determing content for the EU dimension 311 stream education is proposed: is the additional content significant in the sense of relating to foundational values, objectives and principles laid down in EU primary law? This second criterion guarantees, moreover, that EDC is connected to the specific characteristics of the EU. It responds to the need to guard the constitutional red line.1061 As is clear from Part two, applying the EDC standards of the Council of Europe in the EU legal order must at all times respect the specific characteristics of the EU. EU primary law and its foundational values, objectives and principles will constitute an essential pillar in the learning method proposed in Chapter five. The second criterion is also in line with EU secondary law on civic and citizenship competences, by reference to the foundational values, objectives or principles.1062 (iii) Inviting critical thinking A third criterion for examining the relevance of content for the EU dimension of EDC in mainstream education is: does it invite critical thinking? In order to empower the learner, EDC needs to do more than merely convey additional and significant knowledge.1063 EDC standards aim to educate learners for active and responsible citizenship. The purpose is not to imbue pupils with common EU orthodoxies without reflection, but to encourage 156 1061 See §§ 142 – 144 . 1062 See, i.a., Council Recommendation of 22 May 2018 on key competences for lifelong learning, para 2.7, Annex: A European Reference Framework, 6: Citizenship competence. Before: Recommendation of the European Parliament and of the Council of 18 December 2006 on key competences for lifelong learning. Within the description of civic competences, an EU dimension is present: reference to the CFR and application of the concepts mentioned by institutions at EU level; moreover, ‘[k]nowledge of European integration and of the EU's structures, main objectives and values is also essential, as well as an awareness of diversity and cultural identities in Europe.’ See further Regulation 1381/2013 of the European Parliament and of the Council of 17 December 2013 establishing a Rights, Equality and Citizenship Programme for the period 2014 to 2020 [2013] OJ L354/62, Art 4(2)(a) (aim at better exercise of the rights of citizens and pursue this objective by ‘enhancing awareness and knowledge of Union law and policies as well as of the rights, values and principles underpinning the Union’); Erasmus+ Regulation 288/2013, Art 4f (the promotion of European values in accordance with Art 2 TEU); Council Regulation (EU) No 390/2014 of 14 April 2014 establishing the ‘Europe for Citizens’ programme for the period 2014-2020 [2014] OJ L115/3, Art 2. 1063 Charter on EDC/HRE, para 5(g), explanatory memorandum para 35 (‘In both [EDR and HRE] there is an emphasis on the outcome of such education being not simply knowledge but empowerment, leading to appropriate action’). Introduction: Criteria for determing content for the EU dimension 312 them to think critically, which is an essential part of competences in a democratic culture. The importance of critical thinking is clear from Parts one and two and has been continuously stressed by all actors.1064 In line with the controversy principle in citizenship education,1065 uncertainties 1064 Critical thinking is part of EDC standards in the CoE and in the EU context. While not mentioned as such in the Charter on EDC/HRE, it is an essential in the Competences for democratic culture: Living together as equals in culturally diverse democratic societies (CoE 2016), p 10–11 (3 bodies of knowledge and critical understanding), p 13 (‘Analytical and critical thinking skills are the skills required to analyse, evaluate and make judgments about materials of any kind (e.g. texts, arguments, interpretations, issues, events, experiences, etc.) in a systematic and logical manner; see also p 44–46); also CoE Reference Framework of Competences for Democratic Culture, Vol 1: Context, concepts and model (2018), Glossary: critical understanding involves active reflection on and critical evaluation of that which is being understood and interpreted (as opposed to automatic, habitual and unreflective interpretation); ibid, p 15: aims of education: ‘The corresponding pedagogy is not only instrumental but also educational. It reflects a long education tradition, based on humanistic ideas and reflected in the concept of Bildung: the lifelong process enabling people to make independent choices for their own lives, to recognise others as equals and to interact with them in meaningful ways’. See CoE Reference Framework of Competences for Democratic Culture, Vol 2: Descriptors of competences for democratic culture (2018), i.a. key descriptors i.a. 120, 122, 124, 125, 127, 131, 134, also descriptors 2047- 2049. See earlier CoE Recommendation CM/Rec(2008)12 of the Committee of Ministers to member states on the dimension of religions and non-religious convictions within intercultural education (10 December 2008), appendix para 5. In the EU: Council Recommendation of 22 May 2018 on key competences for lifelong learning [2018] OJ C189/1, recitals 7 and 17, Annex ‘Key competences’ and ‘Citizenship competence’ (‘This involves critical thinking and integrated problem solving skills, as well as skills to develop arguments and constructive participation in community activities, as well as in decision-making at all levels, from local and national to the European and international level’); see also critical thinking as skill in literacy, digital, and entrepreneurship competence. Before: Recommendation of the European Parliament and of the Council of 18 December 2006 on key competences for lifelong learning (critical thinking present throughout the Reference Framework). See also Commission/EACEA/Eurydice, Citizenship Education in Europe (2012), 8. See in general the need for critical thinking in the caveats raised by scholars with regard to EDC or citizenship education, i.a. in text to n 581, with significant academic work. For Germany, see the controversy principle of the Beutelsbacher consensus. Further, the increased attention to critical thinking to prevent radicalisation in Part two (§§ 127 128 ), including the Paris declaration; and Council Conclusions of 30 May 2016 on developing media literacy and critical thinking through education and training [2016] OJ C212/5. See also n 1221. 1065 Text to nn 587 and 1243. Introduction: Criteria for determing content for the EU dimension 313 and the controversial aspects of the EU and EU citizenship must be acknowledged in the classroom. Because of its importance, the criterion of critical thinking is given special attention in the section on case teaching (second pillar of the learning method proposed in Chapter five). (iv) Affecting the large majority of EU citizens, including ‘static’ citizens Finally, some of the additional (i) and significant (ii) content of the EU dimension of EDC may seem irrelevant to mainstream education because it relates to limited categories of citizens or to very specific situations. This leads to a fourth criterion (leaving what is probably the most problematic question to the end): does the EU dimension content ‘affect’ the large majority of citizens, who are mainly ‘static’? Static citizens are citizens who live at home in the Member State of which they are a national and are EU citizens as a consequence of that State being an EU Member State (Article 9 TEU).1066 The word ‘affect’ is used here in a broad sense, not necessarily requiring a legal relationship of rights and duties, but in a social sense: is the content of the EU dimension relevant to more than a small fraction of the population? Should all pupils be given the opportunity of learning about it, in keeping with EDC standards? The EU is sometimes perceived as a market, of importance only for economic actors, or as a norm-setter for crossborder situations, important only for mobile citizens. The Commission defines ‘mobile citizens’ as EU citizens residing in another EU Member State.1067 Making this definition somewhat more specific, I propose to adopt the following working definition (commonly used for statistics): the mobile citizen is the citizen who lives for at least one year in another Member State.1068 Less than 4 per cent of EU citizens are mobile, 157 1066 Cp Special Eurobarometer 346, New Europeans (April 2011), 5. 1067 Commission, Press release ‘European Commission upholds free movement of people’ (2014); the Commission relates that ‘at the end of 2012, 14.1 million citizens were living in a Member State other than their own for one year or more’. The OECD Economic Survey of the EU 2012 reports that 0.29% of the EU citizens are mobile (annual cross-border mobility rate in the EU compared to the USA and Australia). 1068 J Salamońska and E Recchi, Europe between mobility and sedentarism: Patterns of cross-border practices and their consequences for European identification (EUI Working Paper RSCAS 2016/50, 2016), 2; Eurostat Glossary; see also Regulation (EC) No 862/2007 of the European Parliament and of the Council of 11 July 2007 on Community statistics on migration and international protection and repealing Council Regulation (EEC) No 311/76 on the compilation of statistics on foreign workers [2007] OJ L199/23, Art 2(1)(b). Working definition reconsidered in text to nn 1457 ff. Introduction: Criteria for determing content for the EU dimension 314 more than 96 per cent are static.1069 To what extent is an EU dimension of EDC relevant for the static citizen? In 2011, Shaw reflected: ‘Whether and how additionality might play out as Union citizenship gradually becomes more significant within rather than solely across the boundaries of the Member States is as yet unclear’.1070 I will explore the relevance of EU law for those who stay within the boundaries of their Member State and examine what it adds to the components of EDC. Simplicity is not a criterion To determine relevant content for the EU dimension of EDC in mainstream education, all four criteria should preferably be satisfied. Ideally, seen from the perspective of the learner, the additional content of the EU dimension should also be easy to understand. However, simplicity has not been chosen as a criterion for EDC content. Living together as 27 Member States in one space is not simple. Balancing various interests often requires complex rules. Awareness of complexity and learning how to handle it, is part of education for democracy and respect for pluralism. The complexity of the EU is sometimes used as a counterargument: the EU is too complex for learning at school. However, its complexity is precisely why EU learning is necessary. The essential elements of the EU must be explained and reflected on in schools to empower EU citizens. Adult citizens rarely use their leisure time to discover what an EU directive is. Education teaches us how to address complex issues. The Latin texts of Cicero and mathematical problems are not simple either. Teachers and pupils should not be underestimated. Challenges are an inherent part of all learning. Citizenship education and the EU are no exception. Democracy and the rule of law are not only required in simple situations, on the contrary. This does not mean that the (sometimes complex) rights and arguments in the following analysis are intended to serve as didactic material for schools. Rather, the analysis should function as legal fieldwork, a foundation for schools and for educational authorities who intend to add an EU dimension to EDC in mainstream education. These actors must develop adequate materials, simplifying EU law while keeping the fundamentals 158 1069 See : on 1 January 2017, 16.9 million persons lived in one EU Member State with the citizenship of another EU Member State (Romanian, Polish, Italian, Portuguese and German citizens were the five biggest groups of EU-citizens living in other EU Member States in 2017). 1070 Shaw, ‘Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism’, sub-heading D 1. Introduction: Criteria for determing content for the EU dimension 315 intact. This is a challenging but unavoidable task in a society based on democracy, fundamental rights and the rule of law.1071 Outlining the content for the EU dimension Applying the four relevance criteria, I will now use a combined reading of EU law and EDC standards as a basis for specific EU learning content. The aim is to analyse how EU law impacts on the components of EDC and to determine what additional content is needed to empower the citizens living in the EU: what is the EU dimension of the exercise of rights and responsibilities (c-1), the EU dimension of valuing diversity (c-2), and the EU dimension of playing an active part in democratic life (c-3), with a view to the promotion and protection of democracy and the rule of law?1072 Juxtaposing EU law and the empowerment aims of EDC standards automatically produces content for the EU dimension, as the simplified outline below shows. Content for the EU dimension in Education for Democratic Citizenship 159 1071 See in general on a hard core relevant for political education, different from positivist law: Oberreuter, ‘Rechtserziehung’. 1072 Charter on EDC/HRE, para 2; components numbered in § 27 . Introduction: Criteria for determing content for the EU dimension 316 To answer the question of content for the EU dimension, I will first look at the ‘classic’ citizenship rights, i.e. the rights listed in Articles 20–24 TFEU and usually associated with EU citizenship by EU lawyers (Chapter six). Their relevance for mainstream education is explored on the basis of the four criteria set out above1073: do they provide additional (i) and significant (ii) content for national EDC, invite critical thinking (iii) and affect the large majority of citizens, who are static (iv)? At first glance, classic citizenship rights at once provide the obvious content for the EU dimension of EDC components (c-1) and (c-3): they consist of rights and responsibilities and relate to playing an active part in democratic life. However, the exercise of formulating content for the EU dimension does not stop there. Secondly, in Chapter seven, the participation rights in Title II TEU are addressed. I will explain how EU citizenship rights––i.e. rights conferred by virtue of the status of citizen of the Union––extend beyond the classic list of citizenship rights. The (often forgotten) citizenship right to participate in the democratic life of the Union, laid down in Article 10(3) TEU, deserves particular attention. The various expressions of this right will be examined as to their relevance for the EU dimension. Thirdly, in Chapter eight, a still broader look on the legal position of EU citizens is taken. The many other rights which citizens derive from EU law, simply known as ‘EU rights’ and corresponding obligations, constitute an even more persuasive basis for the EU dimension of EDC according to the four criteria. These three categories of rights supply content for the core of an EU dimension of EDC, as they impact on the three empowerment aims of EDC (c-1–2–3), to greater and lesser extents. More than just narrow legal content The approach which explains rights and obligations is not only valuable per se, but it is the starting point for widening perspectives and for reflection. At first sight, the three following chapters may seem to limit the content for the EU dimension of EDC to rights and obligations. Yet, the narrow legal view must be transcended. The value of law for the field of citizenship education has already been explained.1074 In the following analysis of rights and obligations, ‘law’ is more than the technical rule in legal instruments. It includes the deeper layers of values, objectives and principles which EU law embraces, or aims to embrace, and thus opens the door for debate, essential in citizenship education. In each chapter, rights and 160 1073 §§152-157 . 1074 § 13 . Introduction: Criteria for determing content for the EU dimension 317 obligations are supported by the foundational values, objectives and principles of the EU and will provide significant content (ii). They pervade the society in which EU citizens live and are directly relevant for education in various key competences. In order to attain the deeper layers and to widen perspectives, Chapter five proposes an adapted learning method to bring this content in classrooms. Aide mémoire This schema restates the focus of this study in order to guide the reader through the further analysis. Letters will be used to refer to EDC components and to criteria for relevance for mainstream education. 161 Introduction: Criteria for determing content for the EU dimension 318 Effects of a combined reading of EDC standards and EU law Education for Democratic Citizenship (EDC) means: (a) education, training, awareness raising, information, practices and activities which aim (b) by equipping learners with knowledge, skills and understanding and developing their attitudes and behaviour (c) to empower the learners (c-1) to exercise and defend their democratic rights and responsibilities in society (c-2) to value diversity (c-3) to play an active part in democratic life (d) with a view to the promotion and protection of democracy and the rule of law.1075 Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.1076 Four criteria for determining relevant content for the EU dimension of EDC in mainstream education consistent with EU law: (i) additional content for national EDC (ii) significant content, i.e. relating to foundational (EU primary law) values, objectives and principles (iii) inviting critical thinking (iv) affecting the large majority of EU citizens, including ‘static’ citizens 1075 Para 2 Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education. 1076 Art 20(1) Treaty on the Functioning of the European Union, Art 9 Treaty on European Union (emphasis added). Introduction: Criteria for determing content for the EU dimension 319 Objective, critical and pluralistic EU learning Innovative learning method Analysing the effects of a combined reading of EDC standards and EU law as to the substance, I essentially want to demonstrate that an EU dimension should be included in EDC and give indications as to its content in mainstream education according to the four criteria (i-iv). In itself, this leaves open the question as to how to include this EU dimension in the classroom. Teachers enjoy educational freedom as to methods. They are academically trained, skilled in didactics, and experienced. Yet, the substance and methods of imparting citizenship education are closely interrelated.1077 Many interlocutors responded to my thesis that EDC standards require an EU dimension to national EDC, with the question: ‘yes, ... but how?’. Therefore, to prepare for the analysis of the content of EDC in the following Chapters, I will set out a personal proposal bearing on the ‘how’ question. The proposed learning method follows from the adaptation perspective and the criteria explained in the Introduction to Part three and will be illustrated in the analysis of the rights of EU citizens in Chapters six, seven and eight. Obviously, the method proposed is not the only possible one.1078 ‘Best practices’ for EDC exist in various formats and an EU dimension can be incorporated in all of them. However, this is a contribution for an innovative practice from a legal perspective.1079 CHAPTER 5 162 1077 Reinhardt, Teaching Civics: A Manual for Secondary Education Teachers. 1078 Other methods for EU learning, see i.a. ; ; ; ; . 1079 Without making any scientific claims, the proposed method is based on limited but positive experiences in classrooms. I was able to test the method with pupils in secondary education (17–18 years old, Heilig Hartinstituut Heverlee Belgium, and European School Luxembourg), as well as in university Teacher Training and workshops with students of various faculties (KU Leuven). The response was in general enthusiastic. In a simplified version, the method was also used in primary education (11 years old, European School Luxembourg). Method discussed in workshop: Grimonprez, ‘Conflicting ideas of Europe: the role of values in citizenship education’. See call for innovative practice in Council Recommendation of 22 May 2018 on key competences for lifelong 321 Providing the EU dimension in an objective, critical and pluralistic manner, with no aim of indoctrination As a balanced method for providing an EU dimension at school, the following package is proposed: on the one hand, a stable platform based on EU primary law, offering pupils an understanding of EU foundational values, objectives and principles, and on the other hand, room for dialogue and critical thinking, based on case teaching. This responds to EDC standards, as well as to the ECtHR requirement that the State, in fulfilling its educational functions, must take care to convey the information or knowledge included in the curriculum ‘in an objective, critical and pluralistic manner’, with no aim of indoctrination.1080 Teaching must occur in an ‘unbiased and objective way, respectful of the freedoms of opinion, conscience and expression’.1081 Teachers should not take advantage of their position to indoctrinate or exert improper influence in another way on pupils during lessons.1082 Objectivity is enhanced by an EU dimension in EDC based on EU primary law in conjunction with national constitutions (rather than based on the subjective views of educators). Educating in accordance with the tenets of EU primary law ensures respect for several interests and values, including Member State and EU interests. Law reflects the fundamental values and choices of society in an objective and neutral way. Law makes it possible to take emotion out of the debate.1083 At the same time, discussing case law leaves room for critical thinking and pluralism, in accordance with the right to freedom of expression (Article 10 ECHR, Article 11 CFR), and empowers citizens to exercise this right.1084 163 learning, Annex: A European Reference Framework, ‘Supporting the development of key competence, b(c); also Recommendation para 3: Member States should ‘facilitate the acquisition of key competences by making use of good practices to support the development of the key competences’. 1080 My emphasis. Settled case law: see n 696 and text to n 2449. 1081 CESCR General Comment No. 13, cited above, para 28. 1082 Vogt v Germany no 17851/91 (ECtHR 2 Sept 1996), para 60. Also n 696 and text to n 2449. 1083 See i.a. § 258 ; Nussbaum (nn 579-580). 1084 Education as an empowerment right (n 2167). CHAPTER 5 Objective, critical and pluralistic EU learning 322 EU primary law: objectivity A European constitutional space EU primary law constitutes an objective, consensus-based foundation for the EU dimension of EDC The incorporation of an EU dimension into EDC should be based on the Treaties and the CFR, which are interconnected with Member State constitutions. The fact that the Treaties and CFR have been agreed to by all Member States in accordance with their constitutional requirements, confirms their soundness as a pillar for EDC. The requirement of objectivity in education postulated by the ECtHR is satisfied. This approach also ensures respect for the principles of the Beutelsbacher consensus on citizenship education: using the texts of the Treaties and the CFR in classrooms cannot be seen as overwhelming pupils, nor as presenting controversial viewpoints.1085 Contesting the validity of the Treaties and the CFR as an objective and stable basis for an EU dimension of EDC would be tantamount to denying the very essence of EU membership. Now and again, civic educators and curriculum designers invoke uncertainties about the EU and EU citizenship as an argument for not including much EU learning. Scholars outside the legal field sometimes too easily dismiss the Treaties and the CFR (my experience at citizenship education conferences, the Treaties sometimes being considered to be ‘just a document’). For readers who are less familiar with EU law, the following brief summary serves to recall how the Treaties came into being, demonstrating the fundamental consensus on which they are based. The procedures for adoption, amendment, accession, and withdrawal, all reflect the same basic principle and reality: the agreement on the Treaties is anchored in each Member State’s own constitution.1086 The Treaties were adopted in accordance with the Vienna Convention on the Law of Treaties.1087 Each Member State voluntarily agreed to the text. To underscore the authoritative value of the Lisbon Treaty, it is recalled A 1. 164 1085 § 164 . The primary law texts as such are consensus-based, yet their application and balance may be controversial (see next section, case teaching). 1086 The formula ‘in accordance with their respective constitutional requirements’ appears all over the Treaties: Arts 42, 48, 49, 54 TEU (see also Art 50); Arts 25, 218, 223, 262, 311, 357 TFEU. 1087 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, Art 2, Art 9, Arts 11–15, Art 52. A EU primary law: objectivity 323 that, firstly, the representatives of the governments of the Member States adopted the Lisbon Treaty by common accord in an Intergovernmental Conference;1088 secondly, the Heads of State or Government of all the Member States signed it (Lisbon, 13 December 2007),1089 and thirdly, and crucial for democratic legitimacy, all the Member States ratified the Lisbon Treaty in accordance with their respective constitutional requirements (as stipulated in the amended EU and EC Treaties, and in the Lisbon Treaty1090). Most national constitutions required the approval of the national parliament, in some cases a referendum was necessary.1091 The Member States’ agreement to the Treaties is a matter of fact. The instruments of ratification by the High Contracting Parties are deposited with the Government of the Italian Republic in all official languages of the EU.1092 Several Member States adapted their constitutions to reflect EU membership and its implications.1093 The Lisbon Treaty was challenged before some national constitutional courts, but none decided that the 1088 Final Act (2007/C306/02), Conference of the Representatives of the governments of the Member States [2007] OJ C306/231. 1089 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon on 13 December 2007 [2007] OJ C306. The list of plenipotentiaries is not reproduced in the Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2016] OJ C202/1, but see—for evidence of the consensus—ten pages of signatures of the 2007 Final act (preceding note), p 239–248. See also preamble TEU: ‘His Majesty the King of the Belgians, her Majesty the Queen of Denmark, the President of the Federal Republic of Germany, the President of Ireland’ etc. (and new members since then). Comparable in TFEU. 1090 Art 6 Treaty of Lisbon; Art 54 TEU and Art 357 TFEU. 1091 After a first negative referendum in Ireland on 12 June 2008, a second referendum on 2 October 2009 was positive (after guarantees on some Irish concerns). 1092 Art 54 TEU and Art 357 TFEU (deposit), Art 55 TEU (languages). 1093 E.g. the Croatian constitution develops in Title VIII, ‘European Union’, the legal grounds for membership and transfer of constitutional powers (Art 143), participation in EU institutions (Art 144), EU law and the rights of EU citizens (Art 145–6). Exercise of EU rights equated with the exercise of rights under Croatian law, Croatian courts must protect subjective rights based on the EU acquis communautaire, and governmental agencies, bodies of local and regional self-government and legal persons vested with public authority must apply European Union law directly. Text to n 1319. See further on changes in national constitutional law resulting from EU accession: C Grabenwarter, ‘National Constitutional Law Relating to the European Union’ in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law (2nd edn, Hart Beck Nomos 2010). CHAPTER 5 Objective, critical and pluralistic EU learning 324 Treaty was incompatible with the national constitutional order.1094 The Lisbon Treaty entered into force on 1 December 2009,1095 creating a new legal order. The three foundational documents resulting from the Lisbon Treaty are the TEU, the TFEU and the CFR.1096 As is well known, the TEU sets out the fundamental principles governing the EU, while the TFEU organises the functioning of the Union and determines its competences (areas, delimitation and arrangements for exercise).1097 The CFR is not incorporated into the Treaties, but the TEU explicitly provides that the Union recognises the rights, freedoms and principles therein, and states that the CFR shall have the same legal value as the Treaties.1098 The adoption of Treaty amendments, just like the adoption of the Treaties themselves, requires the approval of each Member State (pursuant to both the ordinary and simplified revision procedure). The unanimity rule is striking (kept by the Treaty of Lisbon), as is also the anchoring of any revision in national constitutional requirements (Article 48 TEU).1099 1094 Czech Constitutional Court, 26 November 2008 (PL ÚS 19/08) and 3 November 2009 (Pl. ÚS 29/09); BVerfG, 2 BvE 2/08 (Lissabon) 30 June 2009, Absatz-Nr (1-421). For cases in Austria, Hungary and Poland, see D Edward and R Lane, Edward and Lane on European Union Law (Edward Elgar 2013) 26–28. 1095 Art 6(2) Treaty of Lisbon. More on the drafting history in Lenaerts and Van Nuffel, European Union Law 59–67. 1096 The Treaty on European Union, the Treaty on the Functioning of the European Union, the Charter of Fundamental Rights of the European Union; see Art 1(3) TEU, Art 1(2) TFEU, Art 6(1) TEU. The Protocols and Annexes form an integral part of the Treaties (Art 51 TEU). For Protocols and Declarations added to the Lisbon Treaty, see Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2016] OJ C202/1. 1097 Art 1(1) TFEU. 1098 Art 6(1) TEU. The Charter of Fundamental Rights of the European Union of 7 December 2000 was drafted by the Praesidium of the Convention. On 12 December 2007, the European Parliament, the Council and the Commission solemnly proclaimed an adapted text, replacing it from 1 December 2009 onwards (entry into force of the Treaty of Lisbon). See G de Búrca, ‘The Drafting of the EU Charter of Fundamental Rights’ (2001) 26 ELRev 126. 1099 See on the unanimity rule, F-X Priollaud and D Siritzky, Le traité de Lisbonne: Commentaire, article par article, des nouveaux traités européens (TUE et TFUE) (La documentation française 2008). For case law on amendment procedures, see Lenaerts and Van Nuffel, European Union Law 83. A EU primary law: objectivity 325 Accession of new Member States to the Union requires ‘ratification by all the contracting States in accordance with their respective constitutional requirements’.1100 Finally, Member States have the right to withdraw from the EU in accordance with their own constitutional requirements (Article 50 TEU).1101 Belonging to the Union is an ongoing deliberate and individual choice by each Member State (as Brexit illustrates).1102 Member States which have not withdrawn are presumed to agree to and are bound by EU primary law. It can be concluded that the TEU, TFEU and CFR provide a solid basis as a starting point for formulating content for the EU dimension of EDC. Negotiated, adopted, signed, and ratified by all Member States in accordance with their own constitutional requirements, EU primary law sources 1100 Art 49 TEU; Art 2(1) Treaty of Accession of the Republic of Bulgaria and Romania [2005] OJ L157; Art 3 Treaty of Accession of Croatia [2012] OJ L112. Consensus of all appears in full name, e.g. 'Treaty between the Kingdom of Belgium, the Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Republic of Croatia concerning the accession of the Republic of Croatia to the European Union', signed 9 December 2011, signatures pp 15–20. In accordance with Art 142 of the Croatian constitution, a referendum was held on 22 January 2012 (66% in favour of accession). The instruments of ratification were deposited with the Government of the Italian Republic by 30 June 2013. Croatia significantly adapted its constitution for EU membership (n 1093). 1101 Art 53 TEU, Art 356 TFEU (unlimited period). See J-V Louis, ‘Le droit de retrait de l’Union européene’ (2006) 42 Cahiers de Droit européen 293; Lenaerts and Van Nuffel, European Union Law, 69. 1102 See Case C-621/18 Wightman and Others ECLI:EU:C:2018:999 (a Member State can revoke unilaterally the notification of its intention to witdraw from the EU); European Council Decision (EU) 2019/584 taken in agreement with the United Kingdom of 11 April 2019 extending the period under Article 50(3) TEU [2019] OJ L 101/1. See also P Eeckhout and E Frantziou, ‘Brexit and Article 50: a constitutionalist reading’ (2017) 54 CMLRev 695 (reading of Art 50 informed by key constitutional features of the EU legal order); Gormley, ‘Brexit - Never Mind the Whys and Wherefores? Fog in the Channel, Continent Cut Off!’. CHAPTER 5 Objective, critical and pluralistic EU learning 326 were created by the Member States and their peoples.1103 Political philosopher Van Middelaar speaks of ‘the pact’ at the innermost sphere of the EU, legally defined, offering stability and order.1104 The first argument in favour of considering EU primary law as a pillar of the proposed learning method for the EU dimension of EDC is that EU primary law satisfies the criterion of objectivity, as it consists of texts on which there is a fundamental consensus. An important additional argument is based on the constitutional functions of EU primary law. The significance of constitutions for citizenship education in general is explained first. Then an analysis of the constitutional characteristics of the EU Treaties and CFR underscores their relevance for the EU dimension of EDC. Significance of constitutions for EDC/HRE The Member State constitutions are significant for citizenship education and the application of EDC standards in several respects.1105 Member States’ practices link citizenship education with their constitutions, aiming at constitutional literacy.1106 As the foundational texts on which public life and the organisation in a given society are based, constitutions clearly provide essential content for the components of EDC (c-1–2–3), i.e. exercising and defending democratic rights and responsibilities, valuing diversity and 165 1103 Further text to nn 1119, 1125. 1104 L van Middelaar, The passage to Europe: How a Continent became a Union (L Waters tr, Yale University Press 2013) 12–24. Confronted with conceptual unclarities and the ‘extremely tricky’ question as to whether Europe exists as a political entity, the author proposes a new paradigm. He explains Europe as a set of three spheres, concentric globes, each sphere with its own principles of dynamism and order. The outermost sphere of Europe is that of the sovereign states on the continent, driven by the pursuit of their own national interests, ordered by balance of power and territorial borders, delineated in geography and history. The innermost sphere is that of the EU as created by the founding Treaty, ‘a pact’ signed by States, offering stability and order in an expanding action area of participating Member States, inspired by the idea of the ‘European project’ and legally defined. (‘[t]he inner sphere derives its order and footing from the pact’; ‘the treaty offers solid ground’). The intermediate sphere refers to Member States functioning sometimes in the inner and sometimes in the outer sphere, driven by national interests and by a growing consciousness of common interests. 1105 See also §§ 13 29 89 ; the para 4- principle of the Charter on EDC/HRE. 1106 See i.a. § 89 . A EU primary law: objectivity 327 playing an active part in democratic life.1107 Constitutions define human rights, the subject of HRE. It is not only constitutional literacy in the cognitive sense which is the aim of EDC. Constitutions reflect ethical choices, the vision of the common good, and the blueprint for the society on which the constituents have agreed.1108 They are the highest legal expression of the value system.1109 As constitutions thus lay down the basic choices for society, it is not only legitimate, but also necessary to educate citizens in the spirit of their constitutions, as Aristotle proclaimed in Ancient Greece.1110 At present, some Member States’ constitutions even explicitly limit freedom of education by requiring allegiance to the constitution.1111 Yet, learning in respect for the constitution does not mean that citizens must be trained in uncritical obedience. Ensuring that the substance of EDC and HRE is in keeping with the constitution of the Member State does not exclude critical thinking.1112 Constitutions are living documents and may evolve in accordance with the evolution of civil society; preferably constituted by educated citizens prepared for responsible action. A basic understanding of constitutional norms enables informed participation by citizens at moments of constitutional change. The relationship 1107 See e.g. ‘Unsere Verfassung!’ in AT: and . 1108 Prescriptive or constructivist function of constitutions (also n 96). See i.a. MA Wilkinson, ‘Political Constitutionalism and the European Union’ (2013) 76 The Modern Law Review 191 (teleological aspect inherent in any constitutional discourse; ‘[t]he right question is not therefore “what sort of polity is the European Union?” but rather, “what sort of polity is it becoming?”’). 1109 B de Witte, ‘Community Law and National Constitutional Values’ (1991) 18 Legal Issues of Economic Integration 1. On the crystallization of common ends and values in constitutions and amplifying effects, Walker, ‘European Constitutionalism in the State Constitutional Tradition’, 65. Further VC Jackson, ‘Paradigms of public law: transnational constitutional values and democratic challenges’ (2011) 8 International journal of constitutional law 517; and Calliess in nn 1185 ff. 1110 Curren, ‘A neo-Aristotelian account of education, justice, and the human good’: ‘There is no profit in the best of laws … if the citizens themselves have not been attuned, by the force of habit and the influence of teaching, to the right constitutional temper’. Text to n 95. 1111 Germany Art 5(3) Basic law, Greece Art 16(1), Cyprus Art 20(1). See n 672 and text. 1112 Cf JW Müller, ‘A general theory of constitutional patriotism’ (2007) 6 International Journal of Constitutional Law 72: ‘The object of patriotic attachment is a specific constitutional culture that mediates between the universal and the particular, while the mode of attachment is one of critical judgment.’. CHAPTER 5 Objective, critical and pluralistic EU learning 328 between constitutions and education is dynamic and dialectical: the constitution influences education, and, in the long term, education may influence the constitution.1113 Beaumont writes that ‘the complex intersections between education and the Constitution have helped define the contours of American governance, citizenship, civil liberties, and civil society in every era’.1114 Constitutional features of EU primary law Are the EU Treaties and CFR the constitution of the EU? The significance of being called a constitution1115 reaches into the field of citizenship education. As citizenship education and constitutions are concepts traditionally associated with states, transposing them to the level of the EU raises questions pertinent for both. Recognising the constitutional nature of the Treaties and CFR may affect opinions on the need for citizenship education of EU citizens. While many scholars recognise the constitutional character of the EU Treaties and CFR, the persistence of debate must be acknowledged.1116 The EU treaties and CFR display constitutional features to a certain extent. To the extent that they fulfil a constitutional role, they are an essential basis for all EDC of citizens. Yet, lacking the full constitutional weight of a state constitution, their suitability as pillar for an EU dimension of EDC may be criticised. 166 1113 Cf evolutionary, deliberative constitutionalism, see i.a. M Vargova, ‘Democratic Deficits of a Dualist Deliberative Constitutionalism: Bruce Ackerman and Jürgen Habermas’ (2005) 18 Ratio Juris 365, on Habermas’ discursive constitution, open to new social and historical circumstances. 1114 E Beaumont, ‘Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship’ in M Tushnet, MA Graber and S Levinson (eds), The Oxford Handbook of the US Constitution (2015) 968. See also E Reilly, ‘Education and the Constitution: Shaping Each Other & the Next Century’ (2000-2001) 34 Akron Law Review 1; J Haubenreich, ‘Education and the Constitution’ (2012) 87 Peabody Journal of Education 436; FH Pina, ‘Constitution, Education and Research’ (2013) 12 EERJ 34. Cp Crick, ‘The Presuppositions of Citizenship Education’, 346 (sceptical as to constitution learning, because of focus on active citizenship); also Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2017). 1115 Cf M Poiares Maduro, ‘The importance of being called a constitution: Constitutional authority and the authority of constitutionalism’ (2005) 3 International Journal of Constitutional Law 332 (on functions of constitutionalism as a normative theory of power in the EU). 1116 See overview of the debate in Calliess, ‘EU-Vertrag (Lissabon) Art 1’, Rn 51 ff. A EU primary law: objectivity 329 The founding Treaties and CFR can be considered from two angles: the angle of the instrumentum—a treaty—and the angle of the negotium—the substance (this distinction appears clearly in the ‘Treaty establishing a Constitution for Europe’). There are no doubts about the instrumentum insofar as the Treaties have been ratified and pacta sunt servanda. This is the minimalist view. Some scholars plead in favour of viewing the founding Treaties and CFR as a contractual constitution as far as genesis is concerned (taking the form of treaties) and as a functional constitution as far as substance is concerned.1117 Calliess speaks of a ‘Verfassungsvertrag’.1118 The EU Treaties and CFR do not satisfy some of the traditional conditions for constitutionalism. The EU missed its ‘constitutional moment’ and has an uncertain ‘demos’. Whereas the constitutional moment is significant for a constitution's integrative and identity-building force, as emphasised by Ackerman,1119 the Treaty establishing a Constitution for Europe was rejected. After this failure, the Intergovernmental Conference omitted several too state-like provisions, dropping the terminology ‘constitution’, as well as ‘European law’, ‘European framework law’, or ‘Union Minister for Foreign Affairs’, and deleting references to the symbols of the Union (flag, anthem and Europe day).1120 As Kirchhof wrote, the Member States rejected the ‘constitutionalisation’ of EU law to the extent that the term ‘constitution’ suggests the emergence of statehood.1121 Pernice saw no need for an EU constitution if this implied the constitution of a European 1117 Functions in text to n 1127. 1118 Calliess, ‘EU-Vertrag (Lissabon) Art 1’, Rn 65. 1119 B Ackerman, ‘Revolution on a Human Scale (Moments of Change: Transformation in American Constitutionalism)’ (1999) 108 Yale Law Journal 2279, 2341. See further BA Ackerman, We the People, vol 2: Transformations (Harvard University Press 1998); N Walker, ‘The Legacy of Europe's Constitutional Moment’ (2004) 11 Constellations 368; D Grimm, ‘Integration by constitution’ (2005) 3 International Journal of Constitutional Law 193, 200–201; N Walker, ‘Europe's constitutional momentum and the search for polity legitimacy’ (2005) 3 International Journal of Constitutional Law 211. 1120 Presidency Conclusions of the Brussels European Council of 21-22 June 2007, Annex I: IGC Mandate: the European Council asked to amend the existing EU and EC treaties, instead of adopting one single Treaty text, and to drop the constitutional character. The amendments provide instead for ‘legislative acts’ (legislative procedure, now Art 289(3) TFEU) and a ‘High Representative of the Union for Foreign Affairs and Security Policy’ (now Art 18 TEU). 1121 Kirchhof, ‘The European Union of States’ 737. CHAPTER 5 Objective, critical and pluralistic EU learning 330 federal State.1122 Weiler emphasises that the content of a constitution and a treaty may be identical (a functional constitution), but suggests that the form of a ‘true’ constitution depends on two hallmarks: amendment by a (privileged) majority and approval by a (growing) demos.1123 A recurrent argument against a constitutional label for the EU Treaties is that there is not a ‘people’ of Europe sufficiently homogenous to form a democratic will.1124 The EU has no constitutional authority in the sense of a pouvoir constituant, the power of a polity to define its own destiny.1125 Several scholars see the rejection of the Constitution of Europe as the rejection of formal constitutionalism. The substantive constitution remains, a ‘functional constitution’.1126 The Treaties and CFR fulfil the constitutive function of constitutions, establishing the institutions of a 1122 I Pernice, ‘Does Europe need a Constitution?’ in Arnull A and others (eds), A Constitutional Order of States: Essays in EU Law in Honour of Alan Dashwood (Hart 2011) 77 (however, in another sense a constitution may be necessary). 1123 JHH Weiler, ‘A Constitution for Europe? Some hard choices’ (2002) 40 JCMS 563, 565–569: contrary to a constitutional treaty, a ‘true’ constitution (first) does not require unanimity for amendments (unanimity is typical for internationalism, majority is sign of a polity) and (second) is approved by the peoples of Europe not in their status as national communities, but as such (demos). Further JHH Weiler, The constitution of Europe: do the new clothes have an emperor? and other essays on European integration (reprint edn, Cambridge University Press 2004). 1124 D Grimm, ‘Does Europe Need a Constitution?’ (1995) 1 ELJ 282; P Craig, ‘Constitutions, Constitutionalism, and the European Union’ (2001) 7 ELJ 125, 136–139 (the no-demos thesis); Grimm, ‘Integration by constitution’, 208. Cp Calliess, ‘EU-Vertrag (Lissabon) Art 1’, Rn 43, considering the establishment of EU citizenship in the Maastricht Treaty as an important step (also seen Arts 22, 23 TFEU). 1125 Much commented, see i.a. Poiares Maduro, ‘The importance of being called a constitution: Constitutional authority and the authority of constitutionalism’, 356; Vargova, ‘Democratic Deficits of a Dualist Deliberative Constitutionalism: Bruce Ackerman and Jürgen Habermas’; C Möllers, ‘Pouvoir Constituant- Constitution-Constitutionalisation’ in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law, vol 8 (2 edn, Hart Beck Nomos 2010); Calliess, ‘EU-Vertrag (Lissabon) Art 1’, Rn 56–57. See also D Grimm, ‘The Democratic Costs of Constitutionalisation: The European Case’ (2015) 21 ELJ 460 (lack of public sphere, lack of legitimacy, overconstitutionalisation of the EU). 1126 Weiler, ‘A Constitution for Europe? Some hard choices’ (p 569: ‘Europe, of course, has a Constitution—in the same way that, say, the United Kingdom has one’); K Lenaerts, ‘A Community Based on a "Constitutional Charter": Community Law as a Complete and Coherent Constitutional System’ in MP Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart 2010) 298 (the A EU primary law: objectivity 331 political society; the attributive function, empowering these institutions; and the regulative function, regulating and limiting the exercise of public Treaty has ‘the classical functions of a constitution, in terms of the horizontal division of powers between the European institutions, the vertical division of powers between the Community and the Member States and the protection of fundamental rights’); Pernice, ‘Does Europe need a Constitution?’, 75–76, 92; Calliess, ‘EU-Vertrag (Lissabon) Art 1’, 64. See also C Reh, ‘The Lisbon Treaty: De-Constitutionalizing the European Union?’ (2009) 47 JCMS 625, 629. On EU constitutionalism or constitutional characteristics, see further: J Gerkrath, L'émergence d'un droit constitutionnel pour l'Europe (Ed de l'Université de Bruxelles 1997); P Eleftheriadis, ‘Begging the Constitutional Question’ (1998) 36 JCMS 255; Craig, ‘Constitutions, Constitutionalism, and the European Union’; J Habermas, ‘Why Europe needs a constitution’ (2001) New Left Review 5; Poiares Maduro, ‘The importance of being called a constitution: Constitutional authority and the authority of constitutionalism’; R Bellamy, ‘The European Constitution is Dead, Long Live European Constitutionalism’ (2006) 13 Constellations 181; K Lenaerts, ‘La constitutionnalisation de l’ordre juridique de l’Union européenne’ in Mélanges en l’honneur du Professeur Francis Delpérée: Itinéraires d’un constitutionnaliste (Bruylant 2007); J Shaw, ‘One or Many Constitutions: The Constitutional Future of the European Union in the 2000s from a Legal Perspective’ (2007) 52 Scandinavian Studies in Law 393; F Amtenbrink, ‘The multidimensional constitutional legal order of the European Union - A successful case of cosmopolitan constitution building?’ (2008) 39 Netherlands Yearbook of International Law 3; KH Ladeur, ‘"We, the European People..."- Relâche?’ (2008) 14 ELJ 147; N Walker, ‘Not the European Constitution’ (2008) 15 Maastricht journal of European and comparative law 135; T Christiansen and C Reh, Constitutionalizing the European Union (Palgrave MacMillan 2009); J Wouters, L Verhey and P Kiiver (eds), European Constitutionalism beyond Lisbon (Intersentia 2009); A Arnull and others (eds), A Constitutional Order of States: Essays in EU Law in Honour of Alan Dashwood (Hart 2011); Habermas, Zur Verfassung Europas. Ein Essay; TV Olsen, ‘The political constitution of the EU citizen rights regime’ (2011) 18 Journal of European Public Policy 35; P Cardonnel, A Rosas and N Wahl, Constitutionalising the EU judicial systems: essays in honour of Pernilla Lindh (Hart 2012); Habermas, ‘The Crisis of the European Union in the Light of a Constitutionalization of International Law’; P Berthelet, ‘Les fondements théoriques du droit européen à l'épreuve de la constitutionnalisation de l'ordre juridique de l'Union: Entre permanence et changement’ [2015] Revue du droit de l'Union européenne 529; P Craig, ‘The Financial Crisis, the European Union Institutional Order, and Constitutional Responsibility’ (2015) 22 Indiana Journal of Global Legal Studies 243; K Lenaerts, ‘Demoicracy, Constitutional Pluralism and the Court of Justice of the European Union’ in L Van Middelaar and P Van Parijs (eds), After the Storm: How to Save Democracy in Europe (Lannoo 2015); D Grimm, The Constitution of European Democracy (Oxford University Press 2017) (the Treaties function as a constitution; the EU is even over-constitutionalised). CHAPTER 5 Objective, critical and pluralistic EU learning 332 power.1127 The Treaties constitute the EU: Article 1 TEU states that ‘[b]y this Treaty, the High Contracting Parties establish among themselves a European Union...’. The constituent acts of the International Labour Organisation and the World Health Organisation are also named ‘constitutions’. The Treaties attribute public powers to the EU and, together with the CFR, they limit the use of this public power (vertically and horizontally). Like many constitutions, the Treaties and CFR define rights-based limitations on governmental power.1128 Such rights will provide the content of component (c-1) in EDC, i.e. exercising and defending democratic rights and responsibilities in society. Functioning as the Grundnorm in the EU legal order and protecting fundamental rights, the Treaties and CFR operate as a constitution. The ECJ repeatedly qualifies the Treaties as ‘the basic constitutional charter’.1129 All measures adopted by the EU institutions and by the Member States when implementing EU law, must be in conformity with the Treaties and the CFR. Review of legality by the ECJ is a constitutional principle. The adjective ‘constitutional’ appears frequently in ECJ case law, e.g. constitutional charter,—principles,—significance,— 1127 LFM Besselink, ‘The notion and nature of the European constitution after the Lisbon Treaty’ in J Wouters, L Verhey and P Kiiver (eds), European Constitutionalism beyond Lisbon (Intersentia 2009) 264. See also functions described in Calliess, ‘EU-Vertrag (Lissabon) Art 1’, Rn 64. Further European Parliament Committee on Constitutional Affairs, Report on the Treaty of Lisbon (29 January 2008), Explanatory Statement to European Parliament resolution of 20 February 2008 on the Treaty of Lisbon, paras 1.2—4, and 2.2 (a constitution can be defined as ‘a fundamental act governing the exercise of power in a political entity’); and European Parliament Resolution of 20 February 2008 on the Treaty of Lisbon [2009] OJ C184E/25. 1128 Craig, ‘Constitutions, Constitutionalism, and the European Union’, 141; essential constitutional feature, see Raz in n 1133. 1129 I.a. Case 294/83 Parti écologiste ‘Les Verts’ v Parliament ECLI:EU:C:1986:166, para 23; Case C-15/00 Commission v European Investment Bank ECLI:EU:C: 2003:396, para 75; Joined Cases C-402/05 P and C-415/05 P Kadi ECLI:EU:C: 2008:461, para 281 (‘the Community is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EC Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions’); EU Accession to the ECHR Opinion 2/13 ECLI:EU:C:2014:2454, para 163. A EU primary law: objectivity 333 status,—guarantee,—structure.1130 EU primary law expresses the ‘constitutional consensus’.1131 Constitution and constitutionalism have divergent meanings. Depending on the definition, the Treaties and CFR have some of the features of a constitution. Walker distinguishes ‘constitutional’ in juridical frame terms, in institutional terms, in authoritative terms, and in social terms.1132 The Treaties and CFR are, at least, a ‘thin’ constitution as defined by Raz, i.e. the law establishing and regulating ‘the main organs of government’.1133 According to some scholars, such as Pernice,1134 the Treaties and CFR also possess several features of Raz’ constitution in a ‘thick’ sense: in addition to being constitutive, defining the main organs of government and their powers,1135 the Treaties and CFR are intended to be stable, normally enshrined in written documents; they are superior law and justiciable;1136 they are entrenched, needing special amendment procedures, thus withdrawn from normal politics and ordinary legislation;1137 and they express a common ideology. Here, reference is made to norms on democracy, rule of law, and fundamental rights, which ‘express the common beliefs of the population 1130 Opinion 2/94 ECLI:EU:C:1996:140, para 35 (‘constitutional significance’); Joined Cases C-402/05 P and C-415/05 P Kadi ECLI:EU:C:2008:461, para 285 (‘the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights’), para 316 (‘a constitutional guarantee’); EU Accession to the ECHR Opinion 2/13 ECLI:EU:C:2014:2454, paras 158 and 177 (‘constitutional framework’), para 163 (‘basic constitutional charter’) para 165 (‘the constitutional structure of the EU, which is seen in the principle of conferral of powers referred to in Articles 4(1) TEU and 5(1) and (2) TEU, and in the institutional framework established in Articles 13 TEU to 19 TEU’) (emphasis added). 1131 K Lenaerts and JA Gutiérrez-Fons, ‘The Place of the Charter in the EU Constitutional Edifice’ in S Peers and others (eds), The EU Charter of Fundamental Rights: a Commentary (Hart 2014), 142 (by contrast to the legislative consensus). 1132 N Walker, ‘Opening or Closure? The Constitutional Intimations of the ECJ’ in MP Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart 2010) 335. 1133 J Raz, ‘On the Authority and Interpretations of Constitutions: Some Preliminaries’ in L Alexander (ed), Constitutionalism (Cambridge University Press 2001) 152–153. 1134 Pernice, ‘Does Europe need a Constitution?’ 88; see also Craig, ‘Constitutions, Constitutionalism, and the European Union’, 126–129. 1135 E.g. Arts 13–19 TEU, 223–309 TFEU. 1136 E.g. Arts 19 TEU; Arts 258, 260, 263, 265 TFEU; Case C-50/00 P Unión de Pequeños Agricultores v Council ECLI:EU:C:2002:462, paras 38–40. 1137 Art 48 TEU. CHAPTER 5 Objective, critical and pluralistic EU learning 334 about the way their society should be governed’.1138 It is worth noting the use of the word ‘society’, not ‘state’.1139 Whether the Treaties and CFR form a ‘thin’ or a ‘thick’ constitution is not decisive for the purposes of EDC. What matters is, firstly, that an undeniable consensus exists on the adopted texts (objectivity, as discussed in §164 ) and, secondly, that the texts adopted fulfil certain of the functions of a constitution. In an approach giving the Treaties a low degree of constitutional intensity, the Treaties nevertheless retain their status as agreements binding on the Member States, consent anchored in the national constitutions, and they establish and regulate some of the main organs of government at EU level. The instrumentum provides a stable pillar for an EU dimension of EDC, impacting on the content of EDC components (c-1–3), e.g. on the rights and obligations of citizens and on participation in democratic life. In an approach recognising a high degree of constitutionality as to the substance of the Treaties (negotium), the Treaties are an even more important basis for incorporating an EU dimension into EDC. Calliess describes the Treaties as a substantive constitution, with the essential functions and content of a constitution, supplementing Member State constitutions.1140 The function of the Treaties and CFR as Grundnorm, their status as EU primary law, at the top of the hierarchy of norms in the EU legal order, is relevant for citizens. EU primary law gives numerous EU rights and principles entrenched status.1141 If the EU primary law sources are the basis on which the legal order of the EU is constructed, shaping the society in which EU citizens live, a fortiori they must be sufficiently strong to have educational consequences for EU citizens. Functioning as the constitutional charter for the EU (ECJ), the Treaties and CFR provide guidance for the EU dimension of EDC, as national constitutions do for national EDC, in a comparable dialectical relationship between constitution and education.1142 That the Treaties and the CFR function as a constitution is underscored by their interconnectedness with Member State constitutions. 1138 Craig, ‘Constitutions, Constitutionalism, and the European Union’, 127. Craig adds that the EU Treaties and CFR ‘contain rights of a kind that would be found in many national constitutions’, such as provisions on citizenship rights (Arts 20–24 TFEU) and on prohibition of discrimination (Arts 18–19 TFEU). 1139 Further text to n 2208. 1140 Calliess, ‘EU-Vertrag (Lissabon) Art 1’, Rn 64–66. 1141 Entrenched, in the sense of not changeable through normal legislative processes. 1142 See nn 1113, 1114. A EU primary law: objectivity 335 Interconnection of EU primary law and Member State constitutions EU primary law and Member State constitutions are interconnected in various ways and cannot be adequately understood in isolation.1143 The Treaties and CFR refer to Member State constitutions at several points,1144 and most Member State constitutions contain provisions related to the EU Treaties. They refer to EU membership in diverse ways, to greater or lesser extents, for instance in structural guarantee clauses,1145 procedural conditions for the transfer of public authority,1146 norms on informing the national parliament on EU matters,1147 provisions on European Parliament elections,1148 or on rights of EU citizens (nationals of other Member States)1149. Some constitutions state that the EU Treaties and provisions of EU law form part of the internal legal order and are directly applicable; some refer to the supremacy of EU law over national law.1150 Other 167 1143 On the interdependency and reciprocal linking of constitutions, Grabenwarter, ‘National Constitutional Law Relating to the European Union’, 127; Calliess, ‘EU-Vertrag (Lissabon) Art 1’, i.a. Rn 46. See also H Bauer and C Calliess (eds), Constitutional principles in Europe (Bruylant 2008). 1144 Art 42 TEU (common Union defence policy), Arts 48, 49, 50, 54 TEU (amendment, accession, withdrawal, ratification of the TEU); Art 55 TEU (Treaty languages); Art 4 (2) TEU (national identities), Art 6 TEU and Art 52(4) CFR (fundamental rights and common constitutional traditions); Art 53 (level of protection); Art 25 TFEU (adding new citizenship rights to the list in Art 20(2) TFEU); Art 218(8) TFEU (accession to the ECHR), Art 223 (EP elections), Art 262 (ECJ jurisdiction and European intellectual property rights), Art 311 (categories of EU resources), Art 357 (ratification of the TFEU). 1145 E.g. Art 23(1) German Basic Law (tr ‘Germany shall participate in the development of the European Union that is committed to democratic, social and federal principles, to the rule of law, and to the principle of subsidiarity, and that guarantees a level of protection of basic rights essentially comparable to that afforded by this Basic Law’); Art 7(5)-(6) Portuguese constitution; Art 143 Croatian constitution. Further Kirchhof, ‘The European Union of States’, 742– 743. 1146 E.g. constitution of Belgium Art 168; and Sweden Ch 10 Art 6. 1147 E.g. constitution of Bulgaria, Art 105(3)-(4); Finland Section 97; France Art 88(4); Greece Art 70(8); Hungary Art 19; Sweden Ch 10 Art 10. 1148 E.g. constitution of Austria Art 23(a)(b); Belgium Art 168 bis; Sweden, Ch 8 Art 2. 1149 See nn 1318-1319. 1150 Constitutional Act on membership of the Republic of Lithuania of the EU, para 2 (‘The norms of the European Union law shall be a constituent part of the legal system of the Republic of Lithuania. Where it concerns the founding Treaties of the European Union, the norms of the European Union law shall be applied directly, while in the event of collision of legal norms, they shall have supremacy over the laws and other legal acts of the Republic of Lithua- CHAPTER 5 Objective, critical and pluralistic EU learning 336 national constitutions do not specifically refer to EU membership, but provide for compliance with international obligations1151, precedence over national law1152, or have concordant constitutional practices, which confirm the minimalist approach mentioned above. The interconnectedness of the EU Treaties and CFR with Member State constitutions is reflected in the concept of ‘a European constitutional area’ formed by the Member States’ constitutions and the partial or complementary constitution in EU law.1153 In a common area of constitutionalism, national and international constitutional guarantees interact to uphold common European constitutional values.1154 Scholars (Pernice, Besselink) refer to the European constitutional space as a composite constitutional area, a Verfassungsverbund, a true compound of the EU ‘constitution’, the Member States’ constitutions, and the ECHR.1155 Calliess qualifies the EU nia’); constitution of Portugal Art 8(3) and (4) (‘The provisions of the treaties that govern the European Union and the norms issued by its institutions in the exercise of their respective competences are applicable in Portuguese internal law in accordance with Union law and with respect for the fundamental principles of a democratic state based on the rule of law.’) For importance, see text to n 1828 (section). 1151 E.g. constitution of Slovenia Art 8; of Spain Art 96. Member States which do not mention EU membership in their constitution may have constitutional practices consistent with the Treaties (e.g. by means of judicial interpretation in Estonia). 1152 E.g. Art 25 German Basic Act. 1153 von Bogdandy, ‘Founding Principles’ 24. 1154 See in this context, A von Bogdandy and P Sonnevend (eds), Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania (Hart Beck 2015). 1155 I Pernice, ‘Bestandssicherung der Verfassungen: Verfassungsrechtliche Mechanismen zur Wahrung der Verfassungsordnung’ in R Bieber and P Widmer (eds), Der europäische Vefassungsraum (Schulthess Juristische Medien 1995) 261; Besselink, ‘The notion and nature of the European constitution after the Lisbon Treaty’ 262, 279. See also LFM Besselink, A Composite European Constitution (Europa Law 2007); A Voßkuhle, ‘Multilevel cooperation of the European Constitutional Courts: Der Europäische Verfassungsgerichtsverbund’ (2010) 6 European Constitutional Law Review 175, von Bogdandy, ‘Founding Principles’ 38; N Walker, J Shaw and S Tierney, Europe's Constitutional Mosaic (Hart 2011) (on the ‘constitutional mosaic’ methaphor, and the increasingly dense networks of constitutional authority within the European space); Lenaerts and Gutiérrez-Fons, ‘The Place of the Charter in the EU Constitutional Edifice’; A Voßkuhle, ‘European Integration Through Law: The Contribution of the Federal Constitutional Court’ (2017) 58 European Journal of Sociology 145. On the theme of constitutional pluralism, see i.a. N Walker, ‘The Idea of Constitu- A EU primary law: objectivity 337 as a ‘Staaten- und Verfassungsverbund’.1156 In this ‘Verbund’, citizens act in a dual capacity as national citizens and as EU citizens, subjects conferring legitimacy on the political system.1157 The fact that Member State constitutions and EU Treaties are inextricably interwoven, should be reflected in EDC. Education of citizens aiming at national constitutional literacy and national constitutional values should be interwoven with education for literacy with regard to the EU Treaties and the values they enshrine. In other words, national EDC needs an EU dimension. Calliess describes a paradigm shift which requires more transparency and more interest from EU citizens in EU objectives. He defines the EU as ‘a federal type of multi-level constitutionalism, in which state sovereignty is reduced and the constitutional orders of the EU and its Member States are mutually interlocked’.1158 Therefore, if in the Aristotelian tradition citizens are to be educated in the spirit of their constitution (‘to the right constitutional temper’1159) then that should apply with regard to Member State constitutions, the Treaties and the CFR. The ‘spirit of law’ (L’esprit des lois) is also central for Montesquieu, who argued that education must relate to the principle of government.1160 In a play on tional Pluralism’ (2002) 65 Modern Law Review 317; R Barents, ‘The Precedence of EU Law from the Perspective of Constitutional Pluralism’ (2009) 5 European Constitutional Law Review 421; Avbelj and Komárek, Constitutional Pluralism in the European Union and Beyond; K Lenaerts, ‘EU Values and Constitutional Pluralism: The EU System of Fundamental Rights Protection’ (2014) XXXIV Polish Yearbook of International Law 135; Lenaerts, ‘Demoicracy, Constitutional Pluralism and the Court of Justice of the European Union’. 1156 Calliess, ‘EU-Vertrag (Lissabon) Art 1’, Rn 44: Pernice’s ‘Verfassungsverbund’ is problematic to the extent that it unifies EU and Member State levels. Member States first allow the ‘Verfassungsverbund’ as ‘offene Verfassungsstaaten’. The ‘Staaten- und Verfassungsverbund’ is characterised by ‘das inhaltliche Zusammenwirken, das Aufeinander-Angewiesensein und die gegenseitige Verzahnung der Ebenen’. (The alliance of States and constitutions is characterised by cooperation as to substance, consideration for one another and interlocking of levels). 1157 Calliess and Hartmann, Zur Demokratie in Europa: Unionsbürgerschaft und europäische Öffentlichkeit 80, 149 (‘die geteilten Bürger’). 1158 C Calliess, ‘Europe as Transnational Law: The Transnationalization of Values by European Law’ (2009) 10 German Law Journal 1367, 1375. 1159 N 95. 1160 Montesquieu, De l'esprit des lois (digital JM Tremblay 2002 edn, Barillot 1748), Livre quatrième- Que les lois de l'éducation doivent être relatives aux principes du gouvernement. I Des lois de l’éducation (…) ‘Les lois de l'éducation seront CHAPTER 5 Objective, critical and pluralistic EU learning 338 words, the EU has been said not to be a state, but a state of mind.1161 Articles 1–6 TEU define the mind, the spirit.1162 They give substance to the attitudes of Member States and EU citizens and, as far as the latter are concerned, relate to affective-behavioural aspects of citizenship education.1163 Foundational values, objectives and principles of the EU The ground rules of play: constitutional norms as EDC content Citizens should understand the ground rules of play of the system in which they live. EU primary law, interconnected with Member State constitutions, provides the EU dimension in the ground rules of play in the European constitutional space. If the society in which EU citizens live is based on a composite constitution, then EDC seeking to ensure constitutional literacy should correspond to the interconnected constitutional sources.1164 National citizenship education linked solely with national con- 2. 168 donc différentes dans chaque espèce de gouvernement. Dans les monarchies, elles auront pour objet l'honneur; dans les républiques, la vertu; dans le despotisme, la crainte.’ (The laws on education must relate to the principles of government. The laws of education therefore will differ for each kind of government: in monarchies they will be concerned with honour, in republics with virtue, where there is despotism, they will aim at creating fear.) Haller refers to Montesquieu in his classic ‘Spirit of Laws 1748’: ‘it is not enough to devise ideal models of constitutions but one must also take into consideration the social conditions which make a constitution really “work”’; see M Haller, European Integration as an Elite Project: the Failure of a Dream? (Routledge 2008) Preface xxiv. 1161 See i.a. K Lenaerts and M Desomer, ‘Bricks for a Constitutional Treaty of the European Union: Values, Objectives and Means’ (2002) 27 ELRev 377; J Subotic, ‘Europe is a State of Mind: Identity and Europeanization in the Balkans’ (2011) 55 International Studies Quarterly 309. 1162 See also Schuman (Strasbourg, 16 May 1949), text to n 1890. Further n 1890. Cf the spirit of the Treaty, used in the interpretation in settled case law of the ECJ, e.g. Case 294/83 Parti écologiste ‘Les Verts’ v Parliament ECLI:EU:C:1986: 166, para 25. 1163 See in general CoE Recommendation CM/Rec(2010)7 of the Committee of Ministers to member states on the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education (11 May 2010), para 5(f). On belonging and identity formation, see i.a. text to nn 1187-1191, n 1191. 1164 The fourth meaning of constitutionalism as described by Craig is particularly appropriate in the context of linking constitutionalism with citizenship education: ‘[Constitutionalism] is used to connote not whether a legal system has A EU primary law: objectivity 339 stitutions, lacking an EU dimension, will increasingly prove to be insufficient and inadequate for preparing citizens for life in a society where public power is dispersed across several levels. If constitutionalism has become multilevel,1165 EDC should correspond, highlighting the interaction between constitutions at various levels. This is consistent with the paragraph-4 principle of the Charter on EDC/HRE (objectives, principles and policies on EDC/HRE are to be applied with due respect for the constitutional structures of each member state), as well as with the constitutional red line affecting the reception of exogenic standards in the EU.1166 Not educating citizens in the spirit of the composite constitutional system may backfire: in just a day a popular vote could wipe away the carefully constructed architecture of interlocking constitutional rules meticulously developed over decades. The DNA of the EU To understand the system governing the society in which they live, EU citizens need some understanding of the norms on which that system is based, especially those of Articles 1–6 TEU. These provisions set out the foundational values, objectives and principles of the EU. They are the DNA of the EU and should be central to all EU learning. EDC should—to the extent possible—relate to the ‘intrinsic nature of the EU’,1167 not to superficial 169 the features of a constitution, but also the extent to which it satisfies desirable precepts of good governance which go beyond those normally expressed within the constitution itself’, with issues as accountability, good administration and mainstreaming of human rights. See Craig, ‘Constitutions, Constitutionalism, and the European Union’, 127–128. 1165 Callies n 1158; I Pernice, ‘Multilevel constitutionalism in the European Union’ (2002) 27 ELRev 511. On multilevel governance, see further C Harlow and R Rawlings, ‘Promoting Accountability in Multilevel Governance: A Network Approach’ (2007) 13 ELJ 542; A Lansbergen and J Shaw, ‘National membership models in a multilevel Europe. Symposium: The Evolving Concept of Citizenship in Constitutional Law’ (2010) 8 International Journal of Constitutional Law 50; N Bolleyer and C Reh, ‘EU legitimacy revisited: the normative foundations of a multilevel polity’ (2012) 19 Journal of European Public Policy 472; R Bauböck, ‘The three levels of citizenship within the European Union’ (2014) 15 German Law Journal 751. 1166 Text to nn 1205 ff. 1167 On the ‘intrinsic nature’, see EU Accession to the ECHR Opinion 2/13 ECLI: EU:C:2014:2454, para 193. On the ‘DNA’ of the EU, also JHH Weiler, ‘Deciphering the Political and Legal DNA of European Integration’ in X Dickson and P Eleftheriadis (eds), Philosophical Foundations of European Union Law (Oxford University Press 2012). CHAPTER 5 Objective, critical and pluralistic EU learning 340 information, such as the number of Members of the European Parliament or the date of accession of Bulgaria, to be learnt by heart and then forgotten. To empower EU citizens to exercise their rights and responsibilities, to value diversity, and to participate in the democratic life of the Union, they need to understand the raison d’être of the EU and how their Member State participates in it. The self-perception of Member States, and of their nationals, is incomplete if it lacks an EU dimension. For the purposes of EDC, the terminology ‘values’, ‘objectives’ or ‘principles’ as used in EU primary law suffices.1168 The adjective ‘foundational’ indicates that they are drawn from EU primary law. Admittedly, to the extent that the Treaties and CFR constitute a functional or material constitution, the values, objectives and principles they lay down may very well be labelled EU ‘constitutional’ values, objectives and principles. Calliess argues that using the label ‘constitutional’ is not only legitimate but also necessary for transparency reasons and closeness to EU citizens as a matter of honest politics.1169 However, to ensure a safe start for an EU dimension 1168 Scholars consider values to be like ethical convictions, more indeterminate, while legal principles have a more defined structure, capable of producing legal effects. For legal theory, see i.a. R Alexy, ‘On the Structure of Legal Principles’ (2000) 13 Ratio Juris 294; von Bogdandy, ‘Founding Principles’ (p 14: ‘The relationship between the principles discourse in legal philosophy and that in legal doctrine is as blurred as it is complicated’). C Hilson, ‘Rights and principles in EU law: a distinction without foundation?’ (2008) 15 Maastricht journal of European and comparative law 193; S Besson and P Pichonnaz (eds), Les principes en droit européen/ Principles in European Law (Schultess 2011). Formerly the Treaties referred to principles instead of ‘values’ (Art 6(1) TEU ‘The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States’). See also L Pech, ‘A Union Founded on the Rule of Law': Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law’ (2010) 6 European Constitutional Law Review 359, 366– 367 (in the Lisbon Treaty ‘[a] distinction between the Union’s fundamental moral values (human dignity, freedom, etc.) on which the Union is founded, and the structural constitutional principles (democracy, the rule of law, etc.) on the basis of which the Union must function, would have been more appropriate’). On rights and principles in the CFR, see S Peers and S Prechal, ‘Article 52: Scope and Interpretation of Rights and Principles’ in S Peers and others (eds), The EU Charter of Fundamental Rights: a Commentary (Hart 2014); also M Van Roosmalen and others, Fundamental rights and principles: liber amicorum Pieter van Dijk (Intersentia 2012). See Rosas and Armati, EU Constitutional Law: An Introduction, for an introduction to the essential values, principles and objectives of EU integration. 1169 Calliess, ‘EU-Vertrag (Lissabon) Art 1’, Rn 63. A EU primary law: objectivity 341 in EDC at school, I consider that it is at present more appropriate to use the expression ‘foundational’ values, objectives and principles of the EU, in order not to encroach on political sensitivities in multidisciplinary contexts, and acknowledging the debate on the constitutional nature of the EU. Outside the legal field, the word ‘constitutional’ is less frequently used with regard to the EU and it could lead to reticence on the part of national curriculum designers and citizenship educators.1170 Citizenship educationalists tend to be highly sensitive to any hint of an intention to create an EU super state. The word ‘constitutional’ could––unfairly––suggest such an intention and is better avoided. The word ‘foundational’ is in line with expressions in the Treaties and ECJ case law. The TEU and TFEU are the Treaties on which the EU is ‘founded’ (Article 1 TEU, third sentence).1171 ECJ case law regularly refers to ‘the very foundations’ of the Union.1172 Alternative expressions to ‘foundational’ may be ‘founding’, ‘systemic’ or ‘core’ values, objectives and principles.1173 At a later stage, when citizens 1170 Searching in databases for ‘constitutional & EU’ mostly leads to law journals, legal conferences and books in the field of law. 1171 See Arts 1, 2, 10 TEU (the EU is ‘founded’ on the Treaties, on values, on representative democracy). See also earlier EEC Treaty, Part II ‘Foundations of the Community’; and ECJ case law related to it (n 1172). 1172 Joined Cases C-402/05 P and C-415/05 P Kadi ECLI:EU:C:2008:461, paras 282, 290, 304 (‘the principles that form part of the very foundations of the Community legal order, one of which is the protection of fundamental rights’). Earlier settled case law repeats that ‘form part of the (very) foundations of the Community’: the common market, the principle of free movement of goods, free movement of workers, free movement of persons, or equal pay. See i.a. Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri ECLI:EU:C:2004:262, para 62; Case C-215/03 Oulane ECLI:EU:C:2005:95, para 16; Case 43/75 Defrenne II ECLI:EU:C:1976:56, para 12. 1173 See e.g. choice of terms in A von Bogdandy, ‘Founding Principles of EU Law: A Theoretical and Doctrinal Sketch’ (2010) 16 ELJ 95 (p 7: founding principles defined as ‘those norms of primary law which, in view of the need to legitimise the exercise of public authority, determine the general legitimatory foundations of the Union’); A von Bogdandy, ‘The European Union as a Human Rights Organisation? Human Rights and the Core of the European Union’ (2000) 37 CMLRev 1307; Decision 1093/2012/EU of the European Parliament and of the Council of 21 November 2012 on the European Year of Citizens (2013) [2012] OJ L325/1 Art 2(2)(c) (‘the core values of the Union, as enshrined in the TEU and the TFEU and in the Charter of Fundamental Rights of the European Union’); Pech, ‘A Union Founded on the Rule of Law': Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law’, 362 (‘The rule of law as a foundational principle’). Further Case CHAPTER 5 Objective, critical and pluralistic EU learning 342 are more confident about the system, the label constitutional can be introduced and discussed. Foundational values There is a huge amount of literature on values and education.1174 From a legal perspective, it is legitimate to focus on the values expressed in EU primary law, in particular Article 2 TEU: 170 C-419/16 Simma Federspiel ECLI:EU:C:2017:997, Opinion of AG Wahl, para 57 (‘foundational principles of EU law, including, but not limited to, direct effect and State liability’; ‘principes fondamentaux du droit de l’Union’). The Oxford dictionaries define foundational as ‘[d]enoting an underlying basis or principle; fundamental’. The adjective ‘foundational’ is seldom used in EU law. 1174 See i.a. RM Gordon, ‘Freedom of expression and values inculcation in the public school curriculum’ (1984) 13 The Journal of Law and Education 523; TM Lorenz, ‘Value Training: Education or Indoctrination? A Constitutional Analysis’ (1992) 34 Arizona Law Review 593; H Starkey, ‘Back to Basic Values: Education for Justice and Peace in the World’ (1992) 21 Journal of Moral Education 185; RC Salomone, ‘Common Schools, Uncommon Values: Listening to the Voices of Dissent’ (1996) 14 Yale Law & Policy Review 169; T Winther- Jensen (ed) Challenges to European Education: Cultural Values, National identities, and Global Responsibilities (Comparative Studies Series 6, Peter Lang 1996); D Evans, H Grassler and J Pouwels (eds), Human Rights and Values Education in Europe: Research in educational law, curricula and textbooks (Fillibach Verlag 1997); D Rowe, ‘Value pluralism, democracy and education for citizenship’ in Values, Culture & Education (1999); Redish and Finnertyt, ‘What did you Learn in School Today? Free Speech, Values Inculcation, and the Democratic Educational Paradox’; S Macedo, ‘School Choice, Civic Values and Problems of Policy Comparison,’ in P Wolf and S Macedo (eds), Educating Citizens: International Perspectives on Civic Values and School Choice (Brookings Institution Press 2004); PJ Wolf and S Macedo (eds), Educating Citizens: International Perspectives on Civic Values and School Choice (Brookings Institution Press 2004); Halstead and Pike, Citizenship and Moral Education: Values in Action; K Sebart and J Krek, ‘Citizenship education in educational research: description of knowledge, skills and values and their explanation in school evaluation’ in B Kovzuh and others (eds), New paradigms and methods in educational and social research (University of California 2007); Clemitshaw, ‘Citizenship without history? Knowledge, skills and values in citizenship education’; K Orlenius, ‘Tolerance of intolerance: values and virtues at stake in education’ (2008) 37 Journal of Moral Education 467; JS Hendricks and DM Howerton, ‘Teaching values, teaching stereotypes: sex education and indoctrination in public schools’ (2011) 13 University of Pennsylvania Journal of Constitutional Law 587; CJ Russo and WE Thro, ‘Reflections on the Law and Curricular Values in American Schools’ (2012) 87 Peabody Journal of Education 402; J Sayer and L Erler (eds), Schools for the Future Europe: Values and Change beyond Lisbon (Continuum 2012); J Arthur and T Lovat, The Routledge international handbook of edu- A EU primary law: objectivity 343 The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.1175 cation, religion and values (Routledge 2013); L Blum, ‘Three educational values for a multicultural society: Difference recognition, national cohesion and equality’ (2014) 43 Journal of Moral Education 332. See also Grimonprez, ‘Conflicting ideas of Europe: the role of values in citizenship education’. 1175 See also CFR preamble: ‘Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law’. Fairness is another value appearing in EU primary law: it is given expression in various forms, as a horizontal aim, i.a. in CFR Arts 8, 17, 31, 41, or 47; TEU Art 3; TFEU Arts 39, 67, 79, 101, or 165. See categories of European values in C Calliess, ‘Europa als Wertegemeinschaft — Integration und Identität durch europäisches Verfassungsrecht?’ (2004) 59 JuristenZeitung 1033, 1369. Within the extensive literature on values in the EU, see further Lenaerts and Desomer, ‘Bricks for a Constitutional Treaty of the European Union: Values, Objectives and Means’; F Benoît-Rohmer, ‘Valeurs et droits fondamentaux dans la Constitution’ [2005] Revue trimestrielle de droit européen 261; B de Witte, ‘Non-market values in Internal Market Legislation’ in N Nic Schuibhne (ed), Regulating the Internal Market (Edward Elgar 2006); S Besson, F Cheneval and N Levrat, Des valeurs pour l'Europe? Values for Europe? (Bruylant Academia 2008); M Kuisma, ‘Rights or privileges? The challenge of globalization to the values of citizenship’ (2008) 12 Citizenship Studies 613; Calliess, ‘Europe as Transnational Law: The Transnationalization of Values by European Law’; P Leino and R Petrov, ‘Between "Common Values" and Competing Universals —The Promotion of the EU's Common Values through the European Neighbourhood Policy’ (2009) 15 ELJ 654; AT Williams, ‘Taking Values Seriously: Towards a Philosophy of EU Law’ (2009) 29 Oxford Journal of Legal Studies 549; A Freyberg-Inan, ‘Equity as the missing link: the values of the European Union’ (2010) 10 Romanian Journal of European Affairs 5; AT Williams, The Ethos of Europe: Values, Law and Justice in the EU (Cambridge University Press 2010); Lenaerts, ‘EU Values and Constitutional Pluralism: The EU System of Fundamental Rights Protection’; L Potvin-Solis (ed) Les valeurs communes dans l'Union européenne (Bruylant 2014); Editorial Comments, ‘Safeguarding EU values in the Member States—Is something finally happening?’ (2015) 52 CMLRev 619; P Ferreira da Cunha, Political Ethics and European Constitution (Springer 2015); D Kochenov, G de Búrca and A Williams (eds), Europe's Justice Deficit? (Hart 2015); L Azoulai, ‘Transfiguring European Citizenship: From Member State Territory to Union Territory’ in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights (Cambridge University Press 2017) (see 193 ff); Kochenov, ‘On Tiles and Pillars: EU Citizenship as a Federal Denomi- CHAPTER 5 Objective, critical and pluralistic EU learning 344 These values, also expressed in the CFR, are not the natural qualities of individuals or of nation states. If they are to reflect more than the pathos of a Treaty text, they presuppose education as well as the persistent diligence of enlightened citizens. Active citizenship is not an objective per se but must be value-based.1176 The EU and the Member States share a strong belief in the role of education to promote values.1177 The Charter on EDC/HRE recalls that EDC overlaps with value education.1178 nator’, 40. Also, among the many reflections on values in the context of citizenship rights and EU rights in the further analysis, see on equality i.a. §§ 258 259 , on solidarity questions i.a. text and n 1959. 1176 Values are an essential basis for participation of citizens: see Mascherini, Manca and Hoskins, The characterization of Active Citizenship in Europe (p 10: ‘action alone is not considered active citizenship, the examples of Nazi Germany or Communist Europe can show mass participation without necessarily democratic or beneficial consequences’); and Hoskins concept of (value based) active citizenship in text to n 909. See underlying presuppositions of civic republicanism (n 593). 1177 See i.a. Erasmus+ Regulation 1288/2013, Art 4(f); EU Education Ministers and the Commissioner for Education, Culture, Youth and Sport, Paris Declaration on Promoting citizenship and the common values of freedom, tolerance and non-discrimination through education (17 March 2015); European Parliament Resolution on Follow-up of the strategic framework for European cooperation in education and training (ET2020) [2018] OJ C91/6; European Parliament Resolution of 12 April 2016 on Learning EU at school [2018] OJ C58/57, paras 2, 3, 6, 9, 13, 14, 21, 41. See also Commission Staff working document on the Application of the EU Charter of Fundamental Rights in 2016 Accompanying the document Communication from the Commission on 2016 Report on the Application of the EU Charter of Fundamental Rights SWD(2017) 162 final, 41 ‘Education policies are instrumental in addressing inequalities, fostering inclusion and tolerance, and promoting the common values of democracy, fundamental rights and the rule of law’; Commission Citizenship Report 'Strengthening Citizens' Rights in a Union of Democratic Change EU Citizenship Report 2017' COM(2017) 030 final/2, p 12: ‘EU citizens expect more to be done to promote EU common values. They suggested that this should be done in particular through education, mobility of young people and cultural activities’); and earlier Commission Communication on Article 7 of the Treaty on European Union: Respect for and promotion of values on which the Union is based COM(2003) 606 final, 7. Further Commission/EACEA/Eurydice, Promoting citizenship and the common values of freedom, tolerance and non-discrimination through education: Overview of education policy developments in Europe following the Paris Declaration of 17 March 2015 (2016); JHH Weiler, ‘The European Union belongs to its citizens: three immodest proposals’ 22 ELRev 150, XIV, highlighting the need for education in the necessary virtues, which are a personal disposition to act to achieve values, the moral or ethical propositions; also JHH Weiler, ‘On the Distinction between Values and A EU primary law: objectivity 345 Applying the criterion of additionality for the EU dimension of EDC, the question arises as to whether the values in Article 2 TEU add content to national EDC. Admittedly, these so called ‘EU values’ have a universal vocation and national EDC already introduces pupils to them.1179 The UK Department of Education, for instance, gave all schools a duty to actively promote ‘Fundamental British Values’. These ‘British’ values included democracy, the rule of law, individual liberty, and mutual respect and tolerance.1180 However, even if national values are the same as the ‘EU values’ in Article 2 TEU, there are additional challenges in striving to ensure Virtues in the Process of European Integration’ (IILJ International Legal Theory Colloqium, The Turn to Governance: The Exercise of Power in the International Public Space, New York Law School, 3 March 2010, unpublished). 1178 CoE Recommendation CM/Rec(2010)7 of the Committee of Ministers to member states on the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education (11 May 2010), paras 5(e)(f)(j), also para 2(e) and explanatory memorandum. See also CoE Recommendation CM/ Rec(2019)9 of the Committee of Ministers to member States on fostering a culture of ethics in the teaching profession (16 October 2019). 1179 Member State constitutions express values, often in preambles. See, e.g., for the Czech Republik, preamble mostly written by Václav Havel: ‘resolute to build, protect and develop the Czech Republic in the spirit of the inalienable values of human dignity and freedom as the home of free citizens who are aware of their obligations towards others and of their responsibility to the community, as a free and democratic State founded on respect for human rights and on principles of civil society, as a member of the family of European and World democracies’- emphasis added); or for Latvia: ‘Loyalty to Latvia, the Latvian language as the only official language, freedom, equality, solidarity, justice, honesty, work ethic and family are the foundations of a cohesive society. Each individual takes care of oneself, one’s relatives and the common good of society by acting responsibly toward other people, future generations, the environment and nature.’ See also Germany in Government replies to questionnaire 2016 (n 386—387), Q14: ‘Educating the individual to respect human dignity and to communicate the basic values, as stipulated in the Basic Constitutional Law, represents a key task of higher education institutions in the Federal Republic of Germany. The aim is, in addition to communicating knowledge and information, to form an understanding of the free democratic basic order of the Federal Republic and to impart consideration, tolerance and respect for other cultures, as well as a fundamental responsibility towards society’. See also n 666, and text to n 670. 1180 The Education (Independent School Standards) (England) Regulations 2010 contain a standard for the spiritual, moral, social and cultural development of pupils (in Part 2, Schedule 1). This standard was amended in 2014 (Education (Independent School Standards) (England) (Amendment) Regulations 2014 (come into force on 29th September 2014)): all schools, both independent and state-maintained schools, ‘have a duty to “actively promote” the fundamental CHAPTER 5 Objective, critical and pluralistic EU learning 346 respect for these values in a single area without internal frontiers with 500 million citizens. In one space encompassing 27 Member States, 24 official languages, with great diversity of regions, cultures, traditions, religions, etc., additional EU content is needed to clarify and to understand the concrete significance of these values for EU citizens, and—importantly—to reflect on the balancing of values (value hierarchy) and objectives.1181 Moreover, some values (or principles) are specifically EU related, such as equality between Member States, or mutual trust and mutual respect.1182 Mutual trust between the Member States ‘is based on the fundamental premiss that Member States share a set of common values on which the European Union is founded, as stated in Article 2 TEU’.1183 In Wightman, the ECJ recalled that ‘the European Union is composed of States which have freely and voluntarily committed themselves to those values’.1184 Calliess British values of democracy, the rule of law, individual liberty, and mutual respect and tolerance of those with different faiths and beliefs’. This was designed to strengthen the barriers to extremism. See UK Department of Education, Promoting fundamental British values as part of SMSC [spiritual, moral, social and cultural development] in schools: Departmental advice for maintained schools (November 2014); UK, Department of Education, Improving the spiritual, moral, social and cultural (SMSC) development of pupils: supplementary information: Departmental advice for independent schools, academies and free schools (November 2014). No mention of ‘Europe’ or ‘European’. See, e.g., para 5(b)(ii) ‘enable pupils to distinguish right from wrong and to respect the civil and criminal law of England’; (b)(iv) ‘enable pupils to acquire a broad general knowledge of and respect for public institutions and services in England’. Critical reactions followed. Members of the National Union of Teachers voted to include ‘international rights’ (‘fundamental British values’ set a tone of ‘inherent cultural supremacism’); see also H Starkey, ‘Fundamental British Values and citizenship education: tensions between national and global perspectives’ (2018) 100 Geografiska Annaler: Series B, Human Geography 1: ‘the obligation on schools in England since 2014 to promote FBVs [Fundamental British Values] can be read as an attempt to reinstate the national’). Cp education in France for ‘les valeurs de la République’. 1181 Perceptions of Europeans on values in Special Eurobarometer 451, Future of Europe (December 2016): 45% say the EU best embodies peace and freedom of opinion, 43% social equality and solidarity, 41% tolerance and openness to others. 1182 Equality can be seen as a value and as a principle (see § 85 ff). The same can be argued for mutual trust; the ECJ formulates it as a principle. See text to nn 1203, 1207, 1208. 1183 Case C-64/16 Juízes Portugueses ECLI:EU:C:2018:117, para 30; also EU Accession to the ECHR Opinion 2/13 ECLI:EU:C:2014:2454, para 168. 1184 Case C-621/18 Wightman and Others ECLI:EU:C:2018:999, para 63. A EU primary law: objectivity 347 argues that even if EU values are common to the Member States, they have independent content. This content needs elaboration and concretisation. Value interaction leads to a ‘Union of values’ (‘Werteverbund’), the basis for the EU as a ‘Union of European States and constitutionalism’ (‘europäischer Staaten- und Verfassungsverbund’).1185 The establishment of common values in EU primary law is only the first step along the path to achieving a Union based on common values. For these values to have the power to effect integration, Calliess writes, the EU requires convincing institutions and effective procedures (functional and formal integration).1186 It should be added that the education of citizens is also required, in keeping with EDC standards. Education is one of the shared values recognised by the Member States since the Enlightenment as being of central importance. With shared values, a sense of a common EU identity may grow.1187 However, creating a feeling of belonging is not a central objective of EDC/HRE standards, and this theme has therefore not been developed in this study.1188 Words such as belonging, identity, feeling, or affective 1185 C Calliess, ‘EU-Vertrag (Lissabon) Art 2’ in C Calliess, M Ruffert and H-J Blanke (eds), EUV/AEUV: das Verfassungsrecht der Europäischen Union mit Europäischer Grundrechtecharta : Kommentar (Beck 2016), Rn 10, 14 (‘Europäische Werte haben einen selbständigen Gehalt, der im europäischen Verfassungsverbund jedoch eng mit den nationalen Werteinhalten der Mitgliedstaaten verknüpft ist’). 1186 Calliess, ‘Europe as Transnational Law: The Transnationalization of Values by European Law’, 1381. 1187 Calliess, ‘Europa als Wertegemeinschaft — Integration und Identität durch europäisches Verfassungsrecht?’, 1039; Peters, ‘European democracy after the 2003 Convention’, 77; Calliess, ‘Europe as Transnational Law: The Transnationalization of Values by European Law’, 1370: identity development through differentiation, not through discrimination of a common enemy. 1188 On belonging and EU identity, see furthermore S Dufeu, Valeurs et constitutions européennes. Une identité politique entre deux mythes: universalité et frontière (Questions contemporaines, L'Harmattan 2005); Ross, ‘Multiple Identities and Education for Active Citizenship’; Verhaegen, Hooghe and Meeusen, ‘Opportunities to learn about Europe at school. A comparative analysis among European adolescents in 21 European member states’; Calliess, ‘EU-Vertrag (Lissabon) Art 2’, Rn 4; A Somek, ‘Europe: Political, Not Cosmopolitan’ (2014) 20 ELJ 142; A Ross, Finding Political Identities: Young People in a Changing Europe (Springer 2018); JF Ziemes, K Hahn-Laudenberg and HJ Abs, ‘From Connectedness and Learning to European and National Identity: Results from Fourteen European Countries’ (2019) 18 Journal of Social Science Education (3: European Citizenship Education: Business as Usual or Time for Change?) 5 (teachers should foster identity complexity). CHAPTER 5 Objective, critical and pluralistic EU learning 348 dimension, do not feature in any central way in the Charter on EDC/HRE. In the 2006 Recommendation on key competences for lifelong learning, they are present, yet the broadly worded aspirations remain prudent: civic competences include ‘displaying both a sense of belonging to one's locality, country, the EU and Europe in general and to the world’. Still, social competences essentially include ‘[u]nderstanding the multi-cultural and socio-economic dimensions of European societies and how national cultural identity interacts with the European identity’.1189 The 2018 Council Recommendation on key competences for lifelong learning explicitly refers to a ‘vision towards a European Education Area that would be able “to harness the full potential of education and culture as drivers for jobs, social fairness, active citizenship as well as means to experience European identity in all its diversity”’.1190 This connects to component (c-2) of the EDC concept, i.e. valuing diversity (c-2).1191 Foundational objectives The Member States established a European Union on which they conferred competences to attain objectives they have in common (Article 1 TEU). The Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties ‘to attain the objectives set out therein’, objectives which they cannot sufficiently achieve alone (Article 5(2) and (3) TEU). The narrative in the Treaties is almost utopian. Among the foundational objectives are promoting peace and the wellbeing of the peoples, offering an area of freedom, security and justice without internal frontiers, ensuring free movement of persons, establishing an internal market, working for sustainable development, economic growth, full employment and social progress, protecting the environment, combating social exclusion and discrimination, promoting solidarity among Member States, and respecting cultural and linguistic diversity (Article 3 TEU). Together with Article 2 on Union values and the CFR, Article 3 171 1189 Recommendation of the European Parliament and of the Council of 18 December 2006 on key competences for lifelong learning. 1190 Council Recommendation of 22 May 2018 on key competences for lifelong learning, recital 1. See also Annex: A European Reference Framework, 6: Citizenship competence: ‘Knowledge of European integration as well as an awareness of diversity and cultural identities in Europe and the world is essential. This includes an understanding of the multi-cultural and socioeconomic dimensions of European societies, and how national cultural identity contributes to the European identity’. 1191 Charter on EDC/HRE, paras 2, 5(f), and 13. See also text to n 1878. A EU primary law: objectivity 349 paints the vision of a society where it is good to live. If democracy and EU citizenship are to be taken seriously, the foundational EU objectives should be part of compulsory learning outcomes in mainstream education. Quality education cannot stop at describing the EU as a peace project. Every achievement starts with a dream. There is wisdom in this metaphor: if you want people to build a ship, don’t give orders, don’t explain which tools to use, but tell them about the wide sea.1192 The EU is not a goal in itself,1193 but a way of attaining common objectives, reaching added value, the wide sea. In history classes, pupils may read the Schuman Declaration of 9 May 1950. It is time to put Articles 1–6 TEU next to this Declaration. As part of school curricula, the content of Articles 2 and 3 TEU should be discussed in classrooms, as a kick off for participation in an EU civil society, enhancing the growth of a European public space.1194 Only if they are made aware of the European ‘project’, can individuals guide the ‘process’ and the ‘product’ through democratic processes as responsible and active EU citizens. The EU is an objective driven polity and should be understood as such and monitored by Europeans.1195 Moreover, a shared sense of 1192 ‘If you want to build a ship, don't drum up the men to gather wood, divide the work and give orders. Instead, teach them to yearn for the vast and endless sea’: quote attributed to Antoine de Saint-Exupéry, Citadelle (1948). 1193 K Lenaerts, ‘De Europese Unie: doel of middel?’ (1998) 21 Rechtskundig Weekblad 689. 1194 On the process towards creating a European public space, see Calliess and Hartmann, Zur Demokratie in Europa: Unionsbürgerschaft und europäische Öffentlichkeit. 1195 Lenaerts and Desomer, ‘Bricks for a Constitutional Treaty of the European Union: Values, Objectives and Means’. Authors conclude that the real question does not concern the kind of ‘constitution’ we want, but what kind of Union, in terms of shared values, common objectives and means; clarifying these elements is essential to ensuring acceptance by EU citizens as a body politic. Further F Reimer, ‘Ziele und Zuständigkeiten: Die Funktionen der Unionszielbestimmungen’ (2003) 38 Europarecht 992; G Palombella, ‘Whose Europe? After the constitution: A goal-based citizenship’ (2005) 3 International Journal of Constitutional Law 357; J Schwarze, ‘Die Abwägung von Zielen der europäischen Integration und mitgliedstaatlichen Interessen in der Rechtsprechung des EuGH’ (2013) 48 Europarecht 253; J Larik, ‘From specialty to a constitutional sense of purpose: on the changing role of the objectives of the European Union’ (2014) 63 International and Comparative Law Quarterly 935 (a more far-reaching role than that related to the principle of conferral; ‘the EU stands for certain values and has been endowed with powers, the exercise of which is guided by promoting these various aspects of the “common good”’); Davies, ‘Social Legitimacy and Purposive Power: The End, the Means and the Consent CHAPTER 5 Objective, critical and pluralistic EU learning 350 purpose is needed to respond to multiple crises in the EU.1196 Education about the foundational values and objectives (the deep common interests) will enhance the social legitimacy of the EU.1197 Foundational principles The Treaties define various systemic principles (TEU Title I Common provisions TEU) which are the backbone of the EU construction. They are essential to understanding the EU as a system, and the place of one’s own Member State in it, and are thus essential to empowering EU citizens.1198 A central axis in the EU constitutional construction is the principle of conferral: the EU can only act within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out; competences not conferred upon the EU remain with the Member States (Article 4(1) TEU, 5(2) TEU).1199 Citizens are unaware of this principle.1200 The high expectations of citizens with regard to EU citizenship and the EU (and of legal writers commenting on ECJ case law) cannot always be reconciled with the principle of conferral.1201 When expecting the EU to ‘humanise’ or remedy certain 172 of the People’. See also Weiler, ‘Deciphering the Political and Legal DNA of European Integration’: ‘political messianism’ constitutes the political and legal (cultural) DNA of European integration. 1196 The response to the multiple crises of the EU ‘should be built on a common perspective, and on the shared conviction that by coming together, each of us will be better off’, see Commission White paper of 1 March 2017 on the future of Europe COM(2017) 2025 final. See also F Amtenbrink, ‘Europe in Times of Economic Crisis: Bringing Europe's Citizens Closer to One Another?’ in M Dougan, N Nic Schuibhne and E Spaventa (eds), Empowerment and Disempowerment of the European Citizen (Hart 2012) 187. 1197 Cf Curtin, Executive Power of the European Union. Law, Practices, and the Living Constitution 284. 1198 On the concept of ‘principles’, i.a. text to n 952, n 1168. Further Bauer and Calliess, Constitutional principles in Europe; constitutional principles also in Calliess, ‘EU-Vertrag (Lissabon) Art 1’, Rn 29 (integration); Rn 78 (closeness to citizens; transparency); Rn 90 (other, such as coherence and solidarity). 1199 I.a. Case C-589/15 P Anagnostakis ECLI:EU:C:2017:663, Opinion of AG Mengozzi, para 62. See E Neframi, Objectifs et compétences dans l’Union européenne (Droit de l'Union européenne Colloques, Bruylant 2013). 1200 See i.a. text to nn 1517, 1533 (e.g. citizens’ initiative proposals not infrequently concern matters outside the EU competence sphere). 1201 Perceptions in civil society: the EU should act in the Spain/Catalonia crisis, should grant social rights, etc. See Commission Report under Article 25 TFEU 'On progress towards effective EU citizenship 2013-2016' COM(2017) 32 final. See also academic writers in debates on wholly internal situations, reverse dis- A EU primary law: objectivity 351 situations,1202 citizens should keep the limits to EU action in mind. If citizens consider these limits as too constraining, they should be empowered to instigate change through democratic participation, even to ‘the pact’. The constitutional allocation of powers in the EU has either to be respected or to be adapted. If the EU is an autonomous legal order, the reverse side is that it is a limited field. Both aspects should be understood by citizens. This foundational principle should be explained in schools as a matter of elementary knowledge and is not so complicated in itself. It could reduce distrust and avoid misunderstandings and disappointment in civil society. Other systemic principles to explain in EDC are, inter alia, subsidiarity and proportionality (Article 5(3) and (4) TEU), respect for national (constitutional) identities (Article 4(2) TEU), loyal (or sincere) cooperation (Article 4(3) TEU), and respect for fundamental rights (Article 6 TEU, CFR). Foundational principles include democratic principles (Articles 9–12 TEU), the principle of non-discrimination on grounds of nationality (Article 18 TFEU), non-discrimination based on sex, race, religion, etc. (Article 19 TFEU), free movement of citizens (Article 21 TFEU), and fundamental freedoms in the internal market (Articles 28, 45, 49, 56, 63 TFEU). The ECJ refers to principles, such as primacy, unity and effectiveness, and—of fundamental importance—the principles of mutual trust and mutual recognition.1203 Educating about EU foundational values, objectives and principles is relevant for mainstream education, as it satisfies the four criteria. It provides crimination, citizenship linked to the material scope of EU law, or on fundamental rights protection, i.a. Kochenov, ‘On Tiles and Pillars: EU Citizenship as a Federal Denominator’, 4: ‘How to unlock the potential of EU citizenship to make it work fo the benefit of all Europeans, while strictly adhering to the principle of conferral, is the core question behind this volume.’. 1202 E.g. Kochenov, ‘On Tiles and Pillars: EU Citizenship as a Federal Denominator’, 51: ‘EU citizenship is bound to assume a structural role, should the ideals of dignity, equality, democracy and the Rule of Law prevail’. 1203 EU Accession to the ECHR Opinion 2/13 ECLI:EU:C:2014:2454, paras 188–189 (primacy, unity and effectiveness), para 191 (mutual trust). Further K Lenaerts, ‘La vie après l'avis: Exploring the principle of mutual (yet not blind) trust’ (2017) 54 CMLRev 805; also Lenaerts, ‘"In the Union we trust": trust-enhancing principles of Community law’, on general principles and the role of principles such as transparency, equality of arms, the precautionary principle, or sound administration. Mutual recognition in legislation, e.g. Regulation (EU) 2019/515 of the European Parliament and of the Council of 19 March 2019 on the mutual recognition of goods lawfully marketed in another Member State and repealing Regulation (EC) No 764/2008 [2019] OJ L 91/1. CHAPTER 5 Objective, critical and pluralistic EU learning 352 additional (i) and significant (ii) content to EDC (knowledge, understanding, and attitudes), and provides ample food for thought (iii), preparing citizens for active participation. Foundational values, objectives and principles furthermore concern all EU citizens, mobile and static, ‘founding’ the society in which they live (iv). This will be illustrated when the EU dimension of EDC components is given more concrete form on the basis of EU primary law. Educating about EU foundational values, objectives and principles is consistent with EDC standards, with EU endogenic norms on citizenship competences, and with scholarly writing on citizenship education.1204 Moreover, it respects the autonomy of the EU. Applying EDC standards respects, even upholds, the specific characteristics of the EU A limit to the reception of exogenic norms in the EU legal order—red line not to be crossed—was prejudice to the constitutional principles of the Treaties.1205 This is not a problem when in application of EDC standards, an EU dimension is incorporated into EDC, on the contrary. Full respect for the specific characteristics of the EU is more likely when citizens are educated about them. Adding an EU dimension to EDC based on EU primary law upholds those specific characteristics since it enlightens citizens about the specificity of the EU and empowers them to exercise their rights and responsibilities, to value diversity and to participate in this system, which is not a state, yet exercises public power in conformity with the Treaties and the CFR. The following analysis will provide various examples.1206 173 1204 Values of democracy, human rights and the rule of law were the essential motivating factors in the genesis of the Charter on EDC/HRE (Part one). See the EU Council Recommendation of 22 May 2018 on key competences for lifelong learning, Annex: A European Reference Framework, 6: Citizenship competence (‘involves an understanding of the European common values, as expressed in Article 2 of the Treaty on European Union and the Charter of Fundamental Rights of the European Union’). Before: Recommendation of the European Parliament and of the Council of 18 December 2006 on key competences for lifelong learning, Annex 6 B. See also Sander (Mission), text to n 562. 1205 EU Accession to the ECHR Opinion 2/13 ECLI:EU:C:2014:2454, i.a. paras 164– 177. 1206 E.g. learning about the principle of conferral and the right to a ECI (§ 209 ); about the right to vote for the EP and its specificity in the EU (§ 222 ); about respect for the rule of law and fundamental rights, internal market implications, concept of directives, etc. (§ 265 ). A EU primary law: objectivity 353 An EU dimension to EDC will also reinforce mutual trust. The ECJ has ruled that the principle of mutual trust between the Member States is ‘of fundamental importance in EU law, given that it allows an area without internal borders to be created and maintained’. 1207 The shared set of common values justifies mutual trust.1208 Mutual trust presupposes measures in each Member State to create a citizenship culture consistent with the fundamental values of the EU, including respect for the rule of law and fundamental rights. Mutual trust has to be deserved by public authorities and citizens.1209 Recognising the autonomy of the EU and its constitutional principles requires more EDC rather than less. The Council of Europe norms on EDC and HRE are a minimum. Specific EU features and the complexity of the EU—which nevertheless aims at democracy—call for even greater attention to be paid to EDC standards and more extensive circumspection than in a traditional nation state with a long-standing history. Making EU primary law a pillar of the EU dimension of EDC guarantees that the additional EU dimension respects the basic constitutional charter, the Treaties, and the CFR. The Union ‘acquis’ culture Before accession, candidate States have to accept the Union acquis. The acquis, referred to in the Treaties, Acts of Accession, and in some national constitutions, is the body of rights and obligations inherent in the system of the Union and its institutional framework. Future Member States are required to accept the provisions of the Treaties, the decisions taken by the 174 1207 Opinion 2/13, paras 191–192 (‘the principle of mutual trust requires, particularly with regard to the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law’; ‘Thus, when implementing EU law, the Member States may, under EU law, be required to presume that fundamental rights have been observed by the other Member States, so that not only may they not demand a higher level of national protection of fundamental rights from another Member State than that provided by EU law, but, save in exceptional cases, they may not check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU’ (emphasis added). 1208 Ibid, para 168: ‘This legal structure is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the EU that implements them will be respected’. 1209 Further in § 247 . CHAPTER 5 Objective, critical and pluralistic EU learning 354 institutions pursuant to the Treaties, and ECJ case law, and must adopt the measures necessary to satisfy these conditions.1210 It would conflict with good faith and acceptance of the Union acquis to reject an EU dimension of EDC based on the Treaties, or to consider such a dimension to be indoctrination.1211 It is not sufficient to incorporate the acquis into national legislation, it must also be fashioned into a Union ‘acquis culture’, to be fostered and, ideally, to be incorporated into all levels of education. Consistency between national EDC and the Union acquis can be expected of newly acceding States, and, hopefully leading by example, of the existing Member States. Certainly, the acquis goes far beyond what is relevant for mainstream education, but the notion shows that EU law has a hard core which must be accepted by its Member States. Citizens should be educated in a spirit corresponding to the Union acquis. Counterargument: EU primary law is too complex for schools True, the Treaties and the CFR are not written for the neophyte who wants an easy learning tool about the EU. Ideally, a simplified version the Treaties and CFR would be made available for the EU dimension of EDC, just as some Member State constitutions are presented in simplified form for national citizenship education.1212 Admittedly, nothing is more complicated than simplifying; however, there is no escape: all education starts with elementary steps, a route to more complexity later on. For teaching purposes, Homer, Shakespeare, and Balzac have been simplified, re-cast in readable booklets for pupils. The UN Convention on the Rights of the 175 1210 Art 20 TEU; Presidency Conclusions of the Copenhagen European Council of 21-22 June 1993, Bull EC 6-1993 (Copenhagen criteria); Commission, Europe and the challenge of enlargement (24 June 1992) Bull EC Suppl 3-92, 11: ‘Membership implies the acceptance of the rights and the obligations, actual and potential, of the community system and its institutional framework—the Community’s acquis, as it is known’. Referral to the acquis, e.g., in Arts 9, 133, 145, 146, 152 Croatian constitution. See generally D Chalmers, A Arnull and C Hillion, Accession and Withdrawal in the Law of the European Union (Oxford University Press 2015); also Lenaerts and Van Nuffel, European Union Law 93. 1211 See n 1080. 1212 See, i.a., simplified version of the constitution in Germany: D Hesselberger, Das Grundgesetz: Kommentar für die politische Bildung (13 edn, Bundeszentrale für politische Bildung 2003); or brochure Das Grundgesetz Uber den Staat (einfach Politik, 2016, Bundeszentrale für politische Bildung); in Denmark My Constitutional Act, with explanations (Folketinget, 2014, 12th edn, Text Susannah Pedersen, Journalist; Adviser on legal aspects: Jens Peter Christensen, Supreme Court Judge, Professor, LLB); in Austria explanations per theme in . A EU primary law: objectivity 355 Child has been ‘translated’ into a child-friendly version for children and the ECHR exists in a simplified version for educational purposes.1213 At the very least, the founding tenets of the EU as agreed in the Treaties could be formulated in understandable versions for teachers (non-lawyers) and pupils. Could the European Parliament draft—or at least support—a school-friendly version of the essential provisions of EU primary law? Foundational values, objectives and principles must be placed in the spotlight. The counterargument that foundational values, objectives and principles are too complex for EDC in schools, must be rebutted. Teachers manage to explain numerous complex subjects in formats adapted to their students. In Member States with a federal system, national EDC has to tackle complex situations anyway. Democracy requires enlightened citizenship.1214 Democracy in the EU requires enlightened EU citizenship. Logically this must start at school. Case teaching: critical thinking and pluralism Case teaching supports a pluralist EU dimension The learning method proposed for an EU dimension of EDC in the classroom is founded on two pillars: texts and stories. In addition to EU primary law (texts), which enhances objectivity, case teaching (stories) invites independent, pluralist and critical thinking. EU primary law is a stable basis for EDC, yet it must not lead to uncritical acceptance of any norm. Education should not mould EU citizens to obey the general will as understood by Rousseau. Rousseau considered law to be the expression of the general will. He advocated patriotism as the most effective method of ensuring conformity with it.1215 In his view, the purpose of education (from a very early age) was to shape souls in patriotism, civic virtue, over- B 176 1213 See ; ; (simplified version of selected articles, prepared by the Directorate of Communication of the CoE). 1214 Dahl, On democracy (text to n 565). 1215 See in general J-J Rousseau, Emile ou de l'éducation (1762, Flammarion ed 2009), and in particular, for Rousseau’s ideas on the need and ends of citizenship education, Discours sur l'économie politique (1755) and Considérations sur le gouvernement de Pologne (1771). CHAPTER 5 Objective, critical and pluralistic EU learning 356 coming self-interest, and thus compliance with the general will.1216 In contrast to Rousseau, Condorcet argued that the end of instruction was not to instill pre-established opinions, but to submit all opinions to reason (Enlightenment).1217 Reason alone should guide citizens, not beliefs (moral principles should also be based on reason) or blind feelings of love for the fatherland.1218 According to Condorcet, we must embrace the law but also be capable of judging it (‘Il faut qu'en aimant les lois, on sache les juger’).1219 The purpose of instruction is to give citizens the means of achieving a more perfect constitution, better law, and more complete freedom.1220 Today, in the light of the experience of patriotic but totalitarian education and its disastrous consequences in two world wars, independent and critical thinking has become an essential component of EDC standards, a recurrent aim in normative instruments on education.1221 It is one of the compulsory aims of education, part of the development of the human per- 1216 To the Polish government, Rousseau gave the advice: ‘It is education that you must count on to shape the souls of the citizens in a national pattern and so to direct their opinions, their likes and dislikes that they shall be patriotic by inclination, passionately, of necessity’ (J-J Rousseau, The government of Poland (W Kendall tr, Bobbs-Merrill 1972) 19): see KW Clausen, ‘Alternative education versus the common will’ (2010) 45 Journal of Thought 95, 108 (fn 5). For influence of Rousseau’s ideas on education, see D Heater, A Brief History of Citizenship (New York University Press 2004) 67–72; Heater, Citizenship: the Civic Ideal in World History, Politics and Education, 40–41 (Robespierre attempted to apply his ideas during the French revolution). 1217 Condorcet, Cinq mémoires sur l’instruction publique , 36–37. 1218 Condorcet thus disagrees with philosophers who want citizens to become attached to the existing constitution and law of their fatherland through ‘a blind feeling’ and passion. See ibid, 44. 1219 (tr) For citizens to love the law without losing their freedom, for them to retain the power of independent thought without which the fervour for liberty is mere passion and not a virtue, they must be taught the principles of natural justice, these essential rights of man: in Condorcet, Rapport et project de décret relatifs à l'organisation générale de l'instruction publique, Présentation à l'Assemblée législative (20 et 21 avril 1792) (1792). 1220 ‘lui préparez, par une instruction générale, les moyens de parvenir à une constitution plus parfaite, de se donner de meilleures lois, et d'atteindre à une liberté plus entière’: ibid. 1221 In chronological order: CoE Recommendation Rec(2002)12 of the Committee of Ministers to member states on education for democratic citizenship (16 October 2002), appendix para 2: key competencies include the ability to ‘develop a critical approach to information, thought patterns and philosophical, religious, social, political and cultural concepts, at the same time remain- B Case teaching: critical thinking and pluralism 357 sonality in all its aspects.1222 As explained above, in accordance with ECtHR case law, the State is prohibited from pursuing an aim of indoctriing committed to fundamental values and principles of the Council of Europe’; Recommendation of the European Parliament and of the Council of 18 December 2006 on key competences for lifelong learning: critical thinking is part of the fifth key competence, i.e. learning to learn, and is a theme applied throughout the Reference Framework (p 394/14); CoE Recommendation CM/Rec(2010)7 of the Committee of Ministers to member states on the Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education (11 May 2010) (no explicit mentioning of critical thinking, yet, it is present in the skills and attitudes, which are part of the definition of EDC; as illustrated in other instruments); CoE Recommendation CM/Rec(2012)13 of the Committee of Ministers to member States on ensuring quality education (12 December 2012), appendix para 6: quality education is education which (e) ‘enables pupils and students to develop appropriate competences, self-confidence and critical thinking to help them become responsible citizens and improve their employability’; EU Education Ministers and the Commissioner for Education, Culture, Youth and Sport, Paris Declaration on Promoting citizenship and the common values of freedom, tolerance and nondiscrimination through education (17 March 2015); European Parliament Resolution of 12 April 2016 on Learning EU at school [2018] OJ C58/57, paras 6, 15; Council Conclusions of 30 May 2016 on developing media literacy and critical thinking through education and training [2016] OJ C212/5, paras 1 and 3; Competences for democratic culture: Living together as equals in culturally diverse democratic societies (CoE 2016), scheme p 11 (analytical and critical thinking skills, knowledge and critical understanding); Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on Inclusion in Diversity to achieve a High Quality Education For All - Council Conclusions (17 February 2017), p 5 para 2; Commission Staff working document on the Application of the EU Charter of Fundamental Rights in 2016 Accompanying the document Communication from the Commission on 2016 Report on the Application of the EU Charter of Fundamental Rights SWD(2017) 162 final, p 38 (action on media literacy and dissemination of critical thinking tools); Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2017), 9 (‘citizenship education needs to help students develop knowledge, skills, attitudes and values in four broad competence areas: 1) interacting effectively and constructively with others; 2) thinking critically; 3) acting in a socially responsible manner; and 4) acting democratically’), also 10, 11, 48, 52, 55, 61, 62; CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 29, 30, 33, 34, 40; Council Recommendation of 22 May 2018 on key competences for lifelong learning (see n 1064). 1222 Aims in UHDR, ICESCR, CRC (see nn 81-82, § 288). See also UNESCO Recommendation concerning Education for International Understanding, Cooperation and Peace and Education relating to Human Rights and Fundamental Freedoms (adopted 19 November 1974), paras 13–14; UN ComRC 'General CHAPTER 5 Objective, critical and pluralistic EU learning 358 nation and must take care that information or knowledge included in the curriculum is conveyed ‘in an objective, critical and pluralistic manner’ (interpreting Article 2 second sentence Protocol 1).1223 The ECtHR has ruled that ‘one of the principal characteristics of democracy is the possibility it offers of resolving a country's problems through dialogue, without recourse to violence, even when they are irksome. Democracy thrives on freedom of expression.’1224 During the European Convention, the Working Group on Simplification found that the ‘ability to criticise is a key factor for democracy, citizens must be able to understand the system so that they can identify problems, criticise it, and ultimately control it’.1225 Almost all Member States include critical thinking in their curricula to develop social and citizenship competence1226 and numerous scholars, as well as (young) citizens point to its importance.1227 Revelations of the hijacking of social media in order to influence voters point in an even Comment No 1 (2001)- Article 29(1): The Aims of Education' Doc CRC/GC/ 2001/1, paras 4 and 9; UNESCO-UNICEF, A Human Rights-Based Approach to Education for All: A framework for the realization of children’s right to education and rights within education (2007), p 68–69. 1223 See n 1080. My emphasis. 1224 Socialist Party and Others v Turkey no 20/1997/804/1007 (ECtHR 25 May 1998), para 45. See also ECJ case law on freedom of expression. 1225 European Convention, Final report of Working Group IX on Simplification (29 November 2002) CONV 424/02 , 1. 1226 Commission/EACEA/Eurydice, Citizenship Education at School in Europe (2017), i.a. 11, 62 (see ‘Thinking critically’ and ‘Exercising judgment’ in figure 1.15). 1227 For academic writers, see Part one, i.a. third caveat (§ 73 ). See also É Dacheux, ‘La communication publique de l’Union européenne ne rapproche pas l’Europe des citoyens’ (2017) 77 Hermès, La Revue 45: author contrasts persuasive communication (marketing) versus deliberative communication (‘faire émerger une culture commune’); this is what the EU needs: involving citizens in the discussions on the intended solutions. For young citizens, see i.a. Flash Eurobarometer 455, European Youth (January 2018) (Q4): One of the three ideas for the future of Europe that young people most agree with is the promotion of critical thinking and the ability to search for information in order to combat fake news and extremism (49% agree); also Commission, 12 Ideas for The Future of Europe: New narrative for Europe Communications campaign (2017), 7. For citizens, see Flash Eurobarometer 466, The European Education Area (May 2018), (Q7.5): Seven in ten respondents think increasing the teaching of creativity or of critical thinking in European schools or universities is useful for young people in the EU; Flash Eurobarometer 464, Fake News and Disinformation Online (March 2018): 85% think that the existence of fake news is a problem in their country, at least to some extent; 83% see this as a problem for democracy in general. B Case teaching: critical thinking and pluralism 359 more compelling way to the importance of learning how to exercise critical and independent thinking in schools. The response to fake news must be EDC/HRE with all its components, including the EU dimension, being fully developed.1228 If one applies the principle that EDC is more than teaching top down about constitutional structures, then the EU dimension must be more than an additional layer of theoretical knowledge about EU primary law. EU primary law is consensus-based, yet (like most constitutions) its application leaves room for discussion, as witnessed by ECJ case law and academic writing. Many provisions are programmatic (certainly in the CFR). The rights of EU citizens enshrined in EU law may, moreover, collide with each other. Foundational values, objectives, and principles may compete and require balancing.1229 Case teaching is used in various fields of study all over the world (economics, medicine, ethics, psychology, law, public policy, international relations, etc.), widely commented on as to its advantages and limits.1230 1228 L Jackson, ‘"The Best Education Ever": Trumpism, Brexit, and new social learning’ (2018) 50 Educational Philosophy and Theory 441; see also J Oelkers, ‘The European Crisis and Education for Democracy’ (2017) 22 The European Legacy 832. 1229 See on balancing, R Alexy, ‘The Construction of Constitutional Rights’ (2010) 4 Law and Ethics of Human Rights 21 (constitutional rights imply a debate on proportionality analysis; author argues that balancing of principles is not irrational; he develops a rational legal argument, the ‘Weight Formula’). 1230 On case teaching in the context of citizenship education, see i.a. Naylor, ‘Educating for citizenship with law‐related education’ (1981) 20 Theory into Practice 194; R Coles, The Call of Stories: Teaching and the Moral Imagination (1990); VL Golich, ‘The ABCs of Case Teaching’ (2000) 1 International Studies Perspectives 11; C Menkel-Meadow, ‘Telling Stories in School: Using Case Studies and Stories to Teach Legal Ethics’ (2000-2001) 69 Fordham Law Review 787; S Kenney, ‘Using the master's tools to dismantle the master's house: can we harness the virtues of case teaching?’ (2001) 20 Journal of policy analysis and management 346; Nussbaum, ‘Cultivating Humanity in Legal Education’; JS Lantis, ‘Ethics and Foreign Policy: Structured Debates for the International Studies Classroom’ (2004) 5 International Studies Perspectives 17; RJ Hardy, C Rackaway and LE Sonnier, ‘In the Supreme Court Justices Shoes: Critical Thinking Through the Use of Hypothetical Case Law Analyses and Interactive Simulations’ (2005) 38 Political Science and Politics 411; Massing, ‘Institutionenkundliches Lernen’; Oberreuter, ‘Rechtserziehung’; Halstead and Pike, Citizenship and Moral Education: Values in Action; G Biesta and R Lawy, ‘From teaching citizenship to learning democracy: Overcoming individualism in research, policy and practice’ (2006) 36 Cambridge Journal of Education 63; CHAPTER 5 Objective, critical and pluralistic EU learning 360 Ample empirical and other evidence underscores its effectiveness.1231 Cases are stories which, as precisely as possible, recount real events or problems, so that learners experience the ambiguities and uncertainties which the McCowan, ‘Approaching the political in citizenship education: The perspectives of Paulo Freire and Bernard Crick’; Nussbaum, ‘Education and Democratic Citizenship: Capabilities and Quality Education’; D Eichner, ‘Fallanalysen im Sachunterricht als Möglichkeit des Demokratie-Lernens’ in D Richter (ed), Politische Bildung von Anfang an: Demokratie-Lernen in der Grundschule (Schriftenreihe Band 570, Bundeszentrale für politische Bildung 2007); Lamy, ‘Challenging Hegemonic Paradigms and Practices: Critical Thinking and Active Learning Strategies for International Relations’; Zimenkova and Hedtke, ‘The Talk-and-Action Approach to Citizenship Education. An Outline of a Methodology of Critical Studies in Citizenship Education’; D Hess and PG Avery, ‘Discussion of Controversial Issues as a Form and Goal of Democratic Education’ in J Arthur, I Davies and C Hahn (eds), The SAGE Handbook of Education for Citizenship and Democracy (Sage 2008); Hess, Controversy in the Classroom: The Democratic Power of Discussion; Z Beutler and D Lange (eds), Schlüsselkompetenzen für aktive BürgerInnenschaft. Handbuch für die Sekundarstufe (Voice Agora Politische Bildung 2010); Gollob, Krapf and Weidinger, Educating for democracy: Background materials on democratic citizenship and human rights education for teachers; A Osler and J Zhu, ‘Narratives in teaching and research for justice and human rights’ (2011) 6 Education, Citizenship and Social Justice 223; DAJ Telman, ‘Langdellian limericks (case teaching method)’ (2011) 61 Journal of Legal Education 110; J Vandenabeele, E Vanassche and D Wildemeersch, ‘Stories of/on citizenship education: a case of participatory planning’ (2011) 30 International Journal of Lifelong Education 171; GE Fischman and E Haas, ‘Beyond Idealized Citizenship Education: Embodied Cognition, Metaphors, and Democracy’ (2012) 36 Review Of Research In Education 169; J Murdoch, Protecting the right to freedom of thought, conscience and religion under the European Convention on Human Rights (Council of Europe Human Rights Handbooks, 2012); G Weisseno and H Buchstein (eds), Politisch Handeln. Modelle, Möglichkeiten, Kompetenzen (Schriftenreihe Band 1191, Bundeszentrale für politische Bildung 2012); I Davies and others, ‘Young People’s Community Engagement: What Does Research-Based and Other Literature Tell us About Young People’s Perspectives and the Impact of Schools’ Contributions?’ (2013) 61 British Journal of Educational Studies 1; Osler, ‘Bringing Human Rights Back Home: Learning from “Superman” and Addressing Political Issues at School’; HPD Maurer and C Neuhold, ‘Problem-Based Learning in European Studies’ in S Baroncelli and others (eds), Teaching and Learning the European Union: Traditional and Innovative Methods (Springer 2014); DE Hess, Courting Democracy: Teaching about Constitutions, Cases, and Courts (Routledge 2016); D Duda, ‘Case Teaching in der politikwissenschaftlichen Lehre’ (2017) 27 Journal of Political Science 259. See in general also CR Christensen and AJ Hansen, Teaching and the Case Method (Harvard Business School 1987). 1231 Golich, ‘The ABCs of Case Teaching’, 11–12, 14 (long lists of references). B Case teaching: critical thinking and pluralism 361 original participants had to face.1232 Cases can be based on newspaper articles, films, literature, etc.1233 For active EU learning, I propose to base case teaching on well-chosen examples of ECJ case law, as the basis for telling an ‘it really happened story’ appealing to pupils, awakening their interest in the EU dimension in concrete situations. Depending on the educational level of pupils, the stories (Eurostories) can be told in accurate detail or in a simplified version to highlight the problem and the underlying (competing) principles. Introduced by Langdell as the core of legal education1234, the case method based on court cases is used by numerous law schools. At European universities and abroad, learning EU law is largely based on ECJ case law. At secondary school level, case-law-based teaching is less widespread, yet several models exist: it is used in several best practices in citizenship education in Member States1235, in human rights education with cases of the ECtHR (for learning about the ECHR)1236 and in US secondary schools with Supreme Court cases (for learning about the US constitu- 1232 Ibid, 12. 1233 For the importance and examples of stories based on literature, see Coles, The Call of Stories: Teaching and the Moral Imagination. 1234 Telman, ‘Langdellian limericks (case teaching method)’, 110–1. 1235 Human Rights Education in the School Systems of Europe, Central Asia and North America: A Compendium of Good Practice (CoE, OSCE/ODIHR, UNESCO, OHCHR, 2009), i.a. 54–5, 106–8, 119, 127, 133, 143. See also Oberreuter, ‘Rechtserziehung’ 333; Massing, ‘Institutionenkundliches Lernen’ 317– 323 (learning about institutions should not be limited to formal and abstract rules; the author describes four didactical principles and applies them to learning about the German Bundesverfassungsgericht and its case law: Erfahrungsorienterung, Problemorienterung, Binnenorienterung (including play-acting) and Handlungsorienterung; in dimensions of polity (institution), politics (processes) and policy (contents)); Naylor, ‘Educating for citizenship with law‐related education’. 1236 Attractive model in Freedom(s) - Learning activities for secondary schools on the case law of the European Court of Human Rights (edited by P Kirschschlaeger, G Peter, B Dumont and D Hayward, Council of Europe 2015), with Preface of Thorbjørn Jagland (these learning materials for HRE in schools were developed on the basis of cooperation between educational science and law (Glasgow Prof Jim Murdoch). See S Krüger, ‘Learning Human Rights through Landmark Decisions of the European Court of Human Rights’ (CoE Education Department, 2010). Also Compass, one of the most popular EDC/HRE materials provided by the CoE, working with stories, concrete experience, and taking inspiration in ECtHR cases: Compass - Manual on human rights education with young people (CoE, 2012). Further examples in new communication tool: . CHAPTER 5 Objective, critical and pluralistic EU learning 362 tion)1237. These models confirm that case teaching can be adapted to the needs of secondary schools, stimulating discussion, providing differing arguments, as well as tools for reasoning.1238 A comparable method should be developed for EU learning.1239 The importance of controversy in the classroom for exercising democracy Cases provide material for interesting debates in the classroom and developing competences for participation in democratic life. Learners are ‘moved to question, prepared to reason, and called to act’.1240 Diane Hess, an authoritative US scholar in the field of civic education, underlines the need to include controversy in the classroom to prepare pupils for democracy.1241 Her reasoning is applicable to citizens in the EU. Like US 177 1237 JB Raskin, We the Students: Supreme Court Cases for and about Students (4th edn, Sage 2015); JB Raskin, M Ahranjani and AG Ferguson, Youth Justice in America (2 edn, Sage 2015). Prof Jamin Raskin founded the ‘Marshall-Brennan Constitutional Literacy Project’, ‘designed to mobilize talented upper-level law students to teach courses on constitutional law and juvenile justice in public high schools’; headquartered in Washington College of Law (Washington, DC) and with chapters in some 20 law schools (). Can a comparable project be launched in the EU (an ‘EU constitutional literacy project’ or, more cautiously, an ‘EU Treaties literacy project’)? Similar practice of Prof Emily Buss in Chicago Law School; see further Supreme Court cases in ; Hardy, Rackaway and Sonnier, ‘In the Supreme Court Justices Shoes: Critical Thinking Through the Use of Hypothetical Case Law Analyses and Interactive Simulations’ (teachers simulate Supreme Court decision making; this equips them for later case teaching in classrooms); Hess, Controversy in the Classroom: The Democratic Power of Discussion (with examples). 1238 N 1265. 1239 The ‘Fonds Lenaerts-Grimonprez, voor een sterkere EU dimensie op school’ founded at KU Leuven (Belgium) works with this aim, in cooperation with the University’s Teachers training programmes . 1240 Expression repeatedly cited at the Harvard Law School Bicentennial (October 2017). 1241 Hess, Controversy in the Classroom: The Democratic Power of Discussion: ‘purposeful inclusion of controversial issues in the school curriculum, when done wisely and well, can communicate by example the essence of what makes communities democratic while simultaneously building the skills and dispositions that young people will need to live in and improve such communities’; controversial political issues are issues of public policy that spark significant disagreement among a group of people. See also Hess, Courting Democracy: Teaching about Constitutions, Cases, and Courts: ‘Courting Democracy encourages social B Case teaching: critical thinking and pluralism 363 Supreme Court cases, ECJ cases, too, have the potential to ‘communicate by example the essence of what makes communities democratic while simultaneously building the skills and dispositions that young people will need to live in and improve such communities’.1242 ECJ cases can be used to identify EU rights or principles about which there are varying degrees of debate or controversy, and to transparently examine them. They thus comply with the requirement of critical and pluralistic education established by the ECtHR, as well as the controversy principle of ‘the Beutelsbacher consensus’ (that which is a matter of controversy in science and politics must also be presented as controversial to students).1243 Case study is a means of delving into deeper layers of the EU legal order, reaching into principles and values. Dworkin analyses ‘hard cases’ and points to the principles and background morality underlying the—often complex and technical—rules.1244 Stories based on ECJ case law are tools giving pupils a good grasp of EU fundamentals (what do the foundational texts say?) as well as space to reflect (what do you think?).1245 Examples in ECJ case law which invite critical thinking are not hard to find. Law can be conceived as a constant set of studies educators to teach civic and democratic education by harnessing the pedagogical possibilities of the controversy that permeates the legal sphere’. 1242 Preceding note. 1243 See n 587. Cf Müller, ‘Politische Bildung (und Europa)’, about a trend to criticise ‘Educating for Europe’ (‘Erziehung zu Europa’) because incompatible with (1) The prohibition on overwhelming students with ideas (a pupil must not be pressurised to adopt a desired opinion and prevented from making his own independent judgement) and (2) The controversy principle (that which is a matter of controversy must be presented as controversial): ‘Education for Europe’ conflicts with both principles. Further Schulz and others, IEA International Civic and Citizenship Education Study 2016: Assessment Framework (case teaching relates to elements in various content domains, see i.a. p 21 negotiation/resolution, i.e. the concept that peaceful resolution of differences is essential to community well-being and that negotiation is the best way to attempt to reach resolutions; engagement, i.e. the ‘concept that citizens need to concern themselves with issues and information in their communities in order to participate effectively’; see p 27 empathy). 1244 R Dworkin, ‘Hard Cases’ (1975) 88 Harvard Law Review 1057 (author criticises positivist adjudication; resolution of hard cases should be based on arguments of principle, not of policy). See also Alexy, nn 1168 and 1229. 1245 In Raskin’s case book on citizenship education We, the Students (n 1237), a recurring section under each case (or sets of cases) is: ‘What do you Think?’ See also Youth project ‘Empowering through Storytelling’; and J Schuitema and others, ‘Guiding classroom discussions for democratic citizenship education’ (2017) 44 Educational Studies 377. CHAPTER 5 Objective, critical and pluralistic EU learning 364 questions.1246 Case teaching is constructed around questions, inciting pupils to think, to react, to analyse, to understand, to feel, to compare, to propose, to compromise, to evaluate.1247 By way of example, in the following analysis of EU rights, some questions for discussion will be raised. Questions should preferably be such as to bring EU foundational values, objectives and principles to the fore. EU primary law does not have all the answers but provides the rules of play which must be known by those who are playing and those who are watching the game (active and less active citizens). Should playing at killing be allowed in Germany because it is allowed in the UK (Omega Spielhallen)? Can Mr Schmidberger rely on the motorway to Italy being open or should a pro-environment demonstration be allowed to take place? Should Ms Jippes have the right to vaccinate her beloved sheep and goats, and what about EU rules on common agricultural policy and the internal market? Can a boat sail freely up and down between Helsinki and Tallin, just under another flag and with workers being paid less (Viking)? Should solidarity work to the advantage of Swedish workers or Latvian workers (Laval)? What do freedom, equality, or justice mean in the specific situation? Must Belgian universities accept all French students who are rejected under the numerus clausus in France (Bressol)?1248 1246 See i.a. Minow, ‘What the rule of law should mean in civics education: from the "Following Orders" defence to the classroom’: ‘The dilemma posed for the soldier who must learn both to obey orders and to resist illegal orders [leading to atrocities] offers a rich focal point for students in middle and high school settings.’ Law must be questioned. Civic instruction should deepen students’ abilities ‘to bring their conscience to bear in many settings where obedience and conformity jeopardize adherence to law and morality’. See also B de Witte, ‘Democratic Adjudication in Europe: How Can the European Court of Justice Be Responsive to the Citizens?’ in M Dougan, NN Shuibhne and E Spaventa (eds), Empowerment and Disempowerment of the European Citizen (Hart 2012). It is interesting for the ECJ to hear the opinion of citizens if the Court is to serve their interests (Art 13(1) TEU), not only to read opinions of academic writers. 1247 For the types of questions to guide the course of discussion, see Golich, ‘The ABCs of Case Teaching’, 19–20. 1248 Case C-36/02 Omega Spielhallen ECLI:EU:C:2004:614; Case C-112/00 Schmidberger ECLI:EU:C:2003:333; Case C-189/01 Jippes ECLI:EU:C:2001:420; Case C-438/05 Viking ECLI:EU:C:2007:772; Case C-341/05 Laval ECLI:EU:C:2007: 809; Case C-73/08 Bressol, Chaverot and Others ECLI:EU:C:2010:181. Some stories discussed further in Chapter eight. B Case teaching: critical thinking and pluralism 365 In my experience, such (provocative) questions awaken the class and guarantee dialogue and debate.1249 Stories and issues arising in them create an EU public sphere in the classroom and lay the foundations for deliberative democracy (just counting votes does not give true legitimacy to democratic decisions). They are the start of active EU citizenship.1250 Case teaching is in keeping with the EU’s constitutional culture, which ‘is about taming raw sovereignty, and establishing a politics of compromise, civilised confrontation and mutual learning.’1251 Multiperspectivity and coping with complexity The main strength of case teaching based on ECJ case law is its inherent multiperspectivity. A single story can be used to encourage pupils to look at the same problem from various angles: the opposing standpoints of the different parties, the submissions of Member States or EU institutions to the Court; the judgment of the ECJ. It is an application of structured academic controversy.1252 This multiperspectivity inspires open-mindedness. Case teaching strengthens attitudes such as tolerance and respect, equality, appreciation of diversity, a sense of justice, mutual trust, responsibility, empathy and solidarity.1253 Case teaching encourages a thoughtful 178 1249 Using green and red cards, e. g., pupils can indicate which party in court they would support, or which arguments they find compelling. 1250 In line with, i.a., Commission recommendations to engage with citizens on European issues and to encourage participation of citizens in EU policymaking. See Commission Recommendation (EU) 2018/234 of 14 February 2018 on enhancing the European nature and efficient conduct of the 2019 elections to the European Parliament [2018] OJ L45/40, recital 7; earlier Commission Communication ‘The Commission’s contribution to the period of reflection and beyond - Plan-D for Democracy, Dialogue and Debate’ COM(2005) 494. On deliberative democracy, see i.a. Verhoeven, The European Union in Search of a Democratic and Constitutional Theory; L Huyse, De democratie voorbij (Van Halewijck 2014). On the concept of public sphere, see n 1743. 1251 JW Müller, ‘A European Constitutional Patriotism? The Case Restated’ (2008) 14 ELJ 542, 552. 1252 Structured Academic Controversy (SAC): learning in small groups by considering a controversial subject from several perspectives. See i.a. Hess, Controversy in the Classroom: The Democratic Power of Discussion, 86. 1253 Menkel-Meadow, ‘Telling Stories in School: Using Case Studies and Stories to Teach Legal Ethics’, 815: ‘Stories and role enactments allow multiple levels of analysis to be explored at the same time and with the different points of view of those in role (the acting “lawyers” or “clients”) and those outside of role who watch, analyze, criticize and contribute to the ethical dialogue which follows’; Grammes, ‘Exemplarisches Lernen’ 99. Historic cases also require multiperspectivity, see CoE Education for democracy, Tackling today’s challenges CHAPTER 5 Objective, critical and pluralistic EU learning 366 response to the tensions inherent in daily life, in politics, within the Member State, the EU and a globalised world. ECJ case study increases pupils’ awareness of complexities in real life and teaches them ways of coping with complexity. Pupils realise that situations are not one-dimensional and that problems seldom have simple solutions. They learn to consider the positive and negative aspects of the options available and to balance rights, objectives and principles. In this way case teaching can deter and shield against populism expressed in one-liners.1254 Moreover, studying cases helps to understand the rationale behind EU legal frameworks. Case teaching permits a differentiated approach, learning in flexible pathways, learner centred. This is in keeping with the conclusions of the Council and the Representatives of the Governments of the Member States, who emphasised that ‘education systems must move away from the traditional “one -size -fits all” mentality’.1255 Case teaching thus assumes an important place in the pedagogical toolkit of EDC, a powerful teaching tool complementing other forms of teaching such as lecturing.1256 What is essential is to trigger interest and debate, not necessarily to achieve a consensus in the classroom. Even though trying to reach a consensus is an interesting exercise in taking on the role of the legislator, diverse opinions must be respected.1257 The flexibility of case teaching makes it possible to inform pupils step by step about the relevant norms (EU primary law), after having initially described the facts and the issues in the story and given pupils the opportunity of brainstorming ways of solving the problem. After class debate, the decision of the ECJ can be explained, at least in its essential lines (such as the rights or together: Biased history teaching. See in this context the historic background for Case C-364/10 Hungary v Slovakia EU:C:2012:630. 1254 Golich, ‘The ABCs of Case Teaching’, 12, 14 (‘Cases offer dramatic proof that realworld problems do not have simple, easily prescribed solutions. Working through cases gives students vital practice in confronting “messy” problems and formulating tools for analysis and resolution’). 1255 Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on Inclusion in Diversity to achieve a High Quality Education For All - Council Conclusions (17 February 2017) (‘Equal opportunities for all are crucial, but not sufficient: there is a need to pursue “equity” in the aims, content, teaching methods and forms of learning being provided for by education and training systems to achieve a high quality education for all’). 1256 Eichner, ‘Fallanalysen im Sachunterricht als Möglichkeit des Demokratie-Lernens’ 343–4. 1257 How far does freedom of expression extend? See also § 326 . B Case teaching: critical thinking and pluralism 367 responsibilities and foundational EU values, objectives or principles at stake). Pupils are free to discuss the ECJ’s ruling.1258 Finally, they can reflect on what they have learned from the case, draw possible conclusions for their own lives, and thus reinforce experiential learning.1259 Guidelines for case teaching There are many resources on case teaching as a general method.1260 They may be useful tools for developing teaching based on ECJ case law. Case teaching must be provided in a climate of respect for fundamental rights in education, such as respect for freedom of expression, freedom of thought, equality and non-discrimination, the participation rights of the child, privacy rights, best interests of the child, human dignity. Rights in the learning environment also include respect for identity, integrity, and the evolving capacities of the child.1261 Fundamental rights in education are often distinguished from the fundamental right to education and fundamental rights through education. Case teaching as a tool also reinforces the EU dimension of fundamental rights through education (HRE).1262 179 1258 In cases where pupils can grasp the decisive points of the judgment, they are free to disagree. In some cases, however, reservations must be expressed if the ECJ judgment cannot be explained in accurate legal terms in secondary schools. Pupils understand this. In my experience, they realise that cases are mostly an occasion to discuss and to experience the EU dimension at work. 1259 Last phase described by Kolb (renowned American educational theorist) in the process of experiential learning (concrete experience; reflection on that experience; formation of abstract concepts based on the reflection; application of the new abstract concepts): DA Kolb, Experiential Learning: Experience as the Source of Learning and Development (Prentice-Hall 1984). For didactic work methods, such as discussions (small groups or classroom), role playing, simulations, written work, or creative problem solving, see Telman, ‘Langdellian limericks (case teaching method)’, 112, 125; also broad palette of forms in Compass (n 255). 1260 I.a. Kolb (n 1259); Golich, ‘The ABCs of Case Teaching’; ‘procedural values’ of Crick (n 588); T Huddleston, Teaching about controversial issues: guidance for schools (Citizenship Foundation 2003); BP Shapiro, Hints for case teaching (Harvard Business 2014). 1261 Rights relevant within education: UDHR Arts 1, 2; ICCPR Arts 18, 19, 27; CRC Arts 2, 3, 5, 12–16, 19, 28, 29. See UN ComRC 'General Comment No 1 (2001)- Article 29(1): The Aims of Education' Doc CRC/GC/2001/1, paras 6 and 8; UNESCO-UNICEF, A Human Rights-Based Approach to Education for All: A framework for the realization of children’s right to education and rights within education (2007), vii, 35. 1262 Para 2 Charter on EDC/HRE. CHAPTER 5 Objective, critical and pluralistic EU learning 368 The Council of Europe recommends ‘safe spaces’ for handling controversial subjects in the classroom.1263 Using EU primary law as a basis, it is possible to develop safe spaces for an EU dimension of EDC while respecting rights in education. When political issues arise, teachers should not promote partisan political views.1264 Safe spaces can be created by linking the issues being debated to the foundational EU texts. Generally accepted reasoning techniques or schemes, such as the rule of reason or the principle of proportionality, can be suggested as tools to frame discussions and to balance principles or values.1265 But the open space must be protected. 1263 See T Huddleston and D Kerr, Managing controversy: developing a strategy for handling controversy and teaching controversial issues in schools (CoE 2017), 57 (a safe space is ‘an environment in which practitioners and participants can have rich and meaningful discussions about controversial issues, and in which young people feel safe discussing those issues’; all views can be expressed, no questions are ‘silly’ or ‘wrong’). See earlier CoE, Pilot project, Teaching controversial issues: developing effective training for teachers and school leaders (2014); and proposed action in CoE Secretary General, State of democracy, human rights and the rule of law—a security imperative for Europe. Report 2016, 104 (develop a ‘safe spaces’ project drawing up guidelines that allow teachers and pupils ‘to address difficult and controversial issues relating to faith, culture and foreign affairs, while respecting each other’s rights and upholding freedom of expression’). Such a project is applicable to EU matters to the extent that some EU matters are controversial (e.g. ‘benefit tourism’, refugee quotas, austerity measures) or are still considered to fall under ‘foreign affairs’. Guidance for lively yet respectful discussions, see DE Hess, ‘Discussions that drive democracy’ (2011) 69 Educational Leadership 69, 70; also Hess, Controversy in the Classroom: The Democratic Power of Discussion; Hess and Avery, ‘Discussion of Controversial Issues as a Form and Goal of Democratic Education’; A Heijltjes, T van Gog and F Paas, ‘Improving students' critical thinking: Empirical support for explicit instructions combined with practice’ (2014) 28 Applied Cognitive Psychology 518. Further Reinhardt, Teaching Civics: A Manual for Secondary Education Teachers; Compass with guideline for educators (n 1236): ‘The young people you are working with must feel free to explore and discover, and to interact and share with each other. Be genuine, friendly, encouraging and humorous’. Also Manifesto on critical thinking education (KU Leuven, CRITINKEDU, 2019: to model, to induce, to declare and to surveil). 1264 Cf guidance on the teaching of controversial issues in many states, see i.a. Standard in UK (Education (Independent School Standards) (England) (Amendment) Regulations 2014 (come into force on 29th September 2014), above n 1180), para 5(c). 1265 Many free movement cases which offer occasions for ‘balancing’ in the classroom, are in fact based on the same reasoning scheme, highly accessible for teachers. Simply put: which right is the case about? which measure has limited this right? was there a good reason for this limiting mesure (a legitimate objec- B Case teaching: critical thinking and pluralism 369 Learning outcomes of case teaching The learning outcomes of the proposed case teaching method relate to the EU dimension of component (b) of EDC: equipping learners with knowledge, skills and understanding and developing their attitudes and behaviour.1266 Critical thinking is connected with knowledge, skills and attitudes.1267 Discussion paths towards the learning objectives can be proposed while still respecting educational freedom. Triggered by a telling example in a story, chosen to advance the (EU) essentials, learning develops in an inductive way from the concrete to the abstract.1268 Teachers help pupils to identify foundational EU values, objectives and principles in concrete situations. Knowledge and understanding grow—bottom up— about what it means to be an EU citizen. Stories based on case law lead to representative ‘islands’ of EU knowledge, ‘rooted’ understanding.1269 Evidence shows that case teaching leads to knowledge ‘sticking’ more effectively than information given top down about rules or institutions. In addition to explicit knowledge, tacit understanding is gained from the experience of the stories and is more likely to be applied in later life.1270 From real cases, pupils learn to recognise the EU dimension in situations 180 tive)? was this measure a good way of achieving that objective (appropriate)? did it not do more than was necessary and was it not excessive (necessary and proportional)? The principle of proportionality can be understood on the basis of clear steps, e.g. in Schecke (§ 263 ). For case law on this principle, see Case C-413/99 Baumbast ECLI:EU:C:2002:493, paras 85–86, 91; Case C-200/02 Zhu and Chen ECLI:EU:C:2004:639, para 32; Joined Cases C-92/09 and C-93/09 Schecke and Eifert ECLI:EU:C:2010:662, para 74; Case C-165/14 Rendón Marín ECLI:EU:C:2016:675, para 45. See also Y Borgmann-Prebil, ‘The Rule of Reason in European Citizenship’ (2008) 14 ELJ 328. 1266 Charter on EDC/HRE, para 2; skills as explained in Competences for democratic culture: Living together as equals in culturally diverse democratic societies (CoE 2016), 13–14. See Council Recommendation of 22 May 2018 on key competences for lifelong learning, Annex: A European Reference Framework, i.a. concepts competence, key competence and learning to learn competence. 1267 Davies and Barnett, The Palgrave handbook of critical thinking in higher education. 1268 Preparation for case teaching means matching learning objectives with case facts and norms, see Golich, ‘The ABCs of Case Teaching’, 16; Grammes, ‘Exemplarisches Lernen’ 96, on ‘Elementaria und Fundamentalia’, key concepts, key problems, and learning to learn. 1269 Grammes, 95 (‘Inselbildung’, ‘Einwurzelung des Wissens’). 1270 Golich, ‘The ABCs of Case Teaching’, 15. See also D Gentner and LA Smith, ‘Analogical Learning and Reasoning’ in D Reisberg (ed), The Oxford Handbook of Cognitive Psychology (Oxford Handbooks Online, Oxford University Press 2013). CHAPTER 5 Objective, critical and pluralistic EU learning 370 where they would never expect to find it: they learn which EU rights are involved, which limitations apply, and why. They learn on types of EU rules (what is a directive, a regulation) and have a greater awareness of the EU rights of others (responsibilities). They see EU institutions at work in practice and experience the interaction of EU and Member State levels of governance in concrete situations. Case teaching sharpens several skills which empower pupils as future citizens: analysing complex problems; creative, nuanced and critical thinking; forming an independent opinion; communicating effectively; speaking clearly and persuasively; listening carefully to other arguments; interpreting; working collectively to solve problems; negotiating; evaluating solutions; summarising; compromising; building consensus and a sense of community.1271 Case teaching based on ECJ case law combines EU learning with problem solving, an essential component of EDC standards.1272 It corresponds to the Charter on EDC/HRE which states that member states should promote educational approaches and teaching methods which enable ‘learners to acquire the knowledge and skills to promote social cohesion, value diversity and equality, appreciate differences ... and settle disagreements and conflicts in a non-violent manner with respect for each other’s rights, as well as to combat all forms of discrimination and violence’.1273 Problem-based learning and conflict resolution are a form of peace education. Case teaching furthermore is in keeping with the 2018 Council Recommendation on key competences for lifelong learning, which states that: Skills for citizenship competence relate to the ability to engage effectively with others in common or public interest, including the sustain- 1271 Frequently mentioned skills. See in the same vein, i.a. CoE Recommendation Rec(2002)12 of the Committee of Ministers to member states on education for democratic citizenship (16 October 2002), appendix, 2; Council Recommendation of 22 May 2018 on key competences for lifelong learning, Annex: A European Reference Framework, 6: Citizenship competence. Also RFCDC, ICCS, and scholars in §§ 38 71 73 . 1272 On the need to exercise problem solving skills see i.a. UN ComRC 'General Comment No 1 (2001)- Article 29(1): The Aims of Education' Doc CRC/GC/ 2001/1, (9) ‘Basic skills include not only literacy and numeracy but also life skills such as the ability to make well-balanced decisions; to resolve conflicts in a non-violent manner’; Charter on EDC/HRE, para 13 (‘settle disagreements and conflicts in a non-violent manner with respect for each others’ rights’). 1273 Para 13 (emphasis added). For differences between faith and ethnic groups in particular, see e.g. text to n 1946. B Case teaching: critical thinking and pluralism 371 able development of society. This involves critical thinking and integrated problem solving skills, as well as skills to develop arguments and constructive participation in community activities, as well as in decision-making at all levels, from local and national to the European and international level.1274 Case teaching on the EU dimension of EDC can be seen as good practice consistent with a competence-oriented approach. It allows for cross-discipline learning and underlines the connectivity between different subjects. It develops knowledge, skills and positive attitudes in several key competences.1275 Beyond and interlinked with the cognitive dimension, case teaching reaches the affective and behavioural dimensions of citizenship and citizenship education.1276 Stories trigger feelings, which are an essential part of citizenship.1277 As Shaw wrote on social citizenship, ‘the affective dimension of the European project is critical to the Union’.1278 1274 Council Recommendation of 22 May 2018 on key competences for lifelong learning, Annex: A European Reference Framework, 6: Citizenship competence. 1275 Council Recommendation of 22 May 2018 on key competences for lifelong learning [2018] OJ C189/1, Annex: A European Reference Framework, ‘Supporting the development of key competences’, a.(a). See below Stories for case teaching, strengthening digital, social and citizenship key competences through cases on EU equality rights, privacy rights, rights in the digital single market, etc. 1276 See i.a. text to n 551 ff. See also in Germany the Resolution of the Standing Conference of the Ministers of Education and Cultural Affairs of 4 December 1980 in the version of 14 December 2000, Recommendation of the Standing Conference of the Ministers of Education and Cultural Affairs on the promotion of human rights in schools: human rights education cannot be limited to the transmission of knowledge; it must include emotional and behavioural components. 1277 See i.a. n 1215, 1216, Nussbaum (n 579). 1278 Shaw, ‘The many pasts and futures of citizenship in the European Union’, 555, 557 (on ‘social citizenship’). On the interaction of cognition and emotion, see text to n 1450. CHAPTER 5 Objective, critical and pluralistic EU learning 372 Experiential learning about values and EU citizenship Cases lead to imaginative experiencing of the EU within the classroom.1279 Cases and stories give contextual knowledge.1280 The extra-legal conditions for a functioning democracy include the cognitive and ethical capacities of citizens.1281 Democracy cannot be learned in books but has to be experienced in society. Cases bring society into the classroom. Pupils will sympathise with one party but must be encouraged to consider the opponent’s situation (e.g. through role playing or simulations). Many citizenship educators agree that the ‘most powerful way of learning is through participation and experience’.1282 Case teaching is a bridge between formal education in schools and the experience of informal learning.1283 Stories based on ECJ case law are a form of experiential learning, providing a path from the theory of EU primary law to practice, turning EU citizenship into ‘a tangible reality’.1284 Pupils recognise the relevance of the EU for their daily life. EU foundational values, objectives and principles do not remain vague, abstract academic truths, but acquire real significance and are often decisive in conflict resolution. Active learning prepares for active citizenship An important advantage of the case method is active learning. Cases make it possible to switch from a knowledge-based approach to a competencebased approach, and encourage teachers and pupils to take action.1285 The stories of individuals who have stood up for their rights create a disposi- 181 182 1279 ‘Tell me, and I will forget. Show me, and I may remember. Involve me, and I will understand.’ (Confucius); ‘A child is not a vase to be filled, but a fire to be lit.’ (Francois Rabelais, quoted in ). 1280 Menkel-Meadow, ‘Telling Stories in School: Using Case Studies and Stories to Teach Legal Ethics’, 793: perhaps the strongest argument for the use of stories and real cases is the value placed on contextual knowledge and decision-making, preferably in ‘thick descriptions’. Who did what, how, why, and what can be done? 1281 Peters, ‘European democracy after the 2003 Convention’, 77. 1282 CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 29 (yet, a lot remains to be done). 1283 Applying the model used by Kolb (n 1259). 1284 Cf the priority set by European Council, The Stockholm Programme — An open and secure Europe serving and protecting citizens [2010] OJ C115/1: ‘European citizenship must become a tangible reality.’. 1285 World Forum for Democracy 2016, Democracy & equality: does education matter? (Strasbourg, 7-9 November 2016), 4, Conclusions and recommendations. B Case teaching: critical thinking and pluralism 373 tion for active citizenship.1286 As a result of debate, simulation, or role playing, pupils feel more able to approach the relevant authorities in their later civic life. Beyond personal interest and the empowerment to exercise one’s own rights, cases also provide an understanding of the societal choices which must be made in accordance with the Treaties and CFR and national constitutions. Learning based on cases prepares for participation in democratic processes. To be fully effective, case teaching based on ECJ case law requires teachers to explain that the case is more than a story about two parties (a precedent, with incorporation of judicial interpretation in the meaning and scope of the rule1287). Starting from apparently insignificant stories, case teaching may thus demonstrate the power of the active citizen and amplify the political interest of pupils and teachers.1288 The (educated) citizen has the last word. As Lenaerts formulates it: cogito ergo civis europaeus sum.1289 Independent and critical thinking are an essential part of being an EU citizen. Choice of cases There is no shortage of books on ECJ case law.1290 Yet, appropriate cases for study in secondary schools will not necessarily be the classics of EU law 183 1286 See n 594, 595 (Crick report ‘We aim at no less than...’). 1287 Joined Cases C‑581/10 and C‑629/10 Nelson and TUI Travel ECLI:EU:C:2012: 657, para 88. 1288 As asked by Co-creating European Union Citizenship: A Policy review (European Commission, 2013), 46: ‘Professionals in the education sector should focus on amplifying the political interest of young people. Educational programmes in civic/citizenship education should be aimed primarily at enabling young people to acquire an interest in political and civic affairs; fostering their knowledge and understanding of political and civic matters; and supporting the development of the skills which they require to participate effectively in the political and civic life of their community and country.’. 1289 K Lenaerts, ‘Cogito ergo civis europaeus sum: Discours à l'occasion de l'attribution du titre de docteur honoris causa de l'Université de Poitiers’ (10 October 2016). For reflection with pupils. 1290 I.a. J Boulouis and R-M Chevallier, Grands arrêts de la Cour de justice des Communautés européennes (6 edn, Dalloz 1994); Het recht van de Europese Unie in 50 klassieke arresten (Juridische Uitgevers 2010); D Chalmers, G Davies and G Monti, European Union Law: cases and materials (2 edn, Cambridge University Press 2011); Craig and de Búrca, EU Law: Text, Cases, and Materials; J Meeusen, Recht van de Europese Unie: basisjurisprudentie (3 edn, Intersentia 2015); MQM Karpenschif and CQC Nourissat, Les grands arrêts de la jurisprudence de l'Union européenne (PUF 2016); F Nicola and B Davies (eds), EU Law Stories: Contextual and Critical Histories of European Jurisprudence (Cambridge University Press 2017). CHAPTER 5 Objective, critical and pluralistic EU learning 374 (Van Gend en Loos, Costa v Enel, and similar cases1291). To achieve the aims of EDC, cases should be chosen on a different basis. Firstly, in the concern for objectivity, the selection of cases should be guided by EU primary law. In the general debate on case teaching in classrooms, academic writers point to the risks of non-neutral selection of cases.1292 Admittedly, the choice of particular ECJ cases can influence pupils’ opinions. Yet, the same concern exists when choosing literature for schools (and literature is not excluded from the curriculum just for that reason). Cases for the EU dimension of education based on the Treaties and CFR have to illustrate foundational values, objectives and principles, and provide content to EDC components (c-1–3), e.g. entrenched EU rights.1293 Next, cases should preferably satisfy all the criteria for relevance to the EU dimension of EDC (additional content to that of national EDC, significant, inviting critical thinking and affecting the large majority of citizens).1294 Furthermore, because subjective involvement is an important factor for successful EDC,1295 it is best if cases relate to real life situations of pupils or to their field of interest. European dilemmas in concrete conflicts between 1291 M Poiares Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart 2010). 1292 Menkel-Meadow, ‘Telling Stories in School: Using Case Studies and Stories to Teach Legal Ethics’, 794, 796 (‘the on-going debate about the validation of stories, with the question of who decides whether a story is true/accurate/representative? Is the story valid on its own terms for teaching or some other reason?... Who decides which stories we teach from?’); Reinhardt, Teaching Civics: A Manual for Secondary Education Teachers 119. 1293 Condorcet entrusted enlightened learned societies, formed freely and independently of the State, to exercise final authority on citizenship education: see Condorcet, Rapport et project de décret relatifs à l'organisation générale de l'instruction publique, Présentation à l'Assemblée législative (20 et 21 avril 1792) (‘sociétés savantes librement formées’). 1294 Criteria i-iv in text to nn 1053 ff. 1295 Beutelsbacher consensus, third principle: giving weight the personal interests of pupils (text to n 587); CoE, Learning to live together: Council of Europe Report on the state of citizenship and human rights education in Europe, 18 (‘it is essential to demonstrate the relevance of democracy and human rights for everyday life’). B Case teaching: critical thinking and pluralism 375 citizens trigger interest, but conflicts between Member States, institutions, or even continents (EU versus US) also provoke lively debates.1296 Beyond their personal interest, young citizens also need to be made aware of the common good.1297 Confronted with societal issues, pupils are quick to react: ‘this is not fair’. These natural reactions can be used as a basis for further critical thinking, including on the EU dimension. Finally, the chosen cases should be amenable to simplification while keeping the essentials intact. The cases in the following analysis will not be analysed comprehensively, yet they serve to illustrate EU rights, foundational values, objectives and principles, often in challenging constellations. They are not intended for direct use in schools. I will explore to what extent they are appropriate for EDC. If appropriate, the legal analysis can be used to underpin stories in case teaching and provide a basis for developing didactic material for pupils and for teacher training. Rather than using the names of the parties, cases can be given more appealing titles: the story about playing at killing, the student versus Facebook, the angry farmers, the so-called princess, the lady with four sheep and two goats, the Hungarian President and the statute, the five lorries stranded on the Brenner motorway, the tourist in Paris, the Spanish businessman versus Google, the Swedish catechist on the internet, Liselotte and her vineyard, Dieter and his diploma, and (of course) the story of the stewardess. They are good (and fun) examples for incorporating the EU dimension into EDC.1298 1296 E.g. their interest in EU/US confrontations in cases such as Case C-366/10 Air Transport Association of America and Others ECLI:EU:C:2011:864, or Case C-362/14 Schrems ECLI:EU:C:2015:650 (§ 265 ); EU/UN in Joined Cases C-402/05 P and C-415/05 P Kadi ECLI:EU:C:2008:461; or EU/major economic actors such as Microsoft in Case T-167/08 Microsoft ECLI:EU:T:2012:323 (abuse of a dominant position, refusal of the dominant undertaking to supply and authorise the use of interoperability information, and a periodic penalty payment of EUR 860 million). 1297 Reinhardt, ‘The Beutelsbach Consensus’, 12 (the third principle of the Beutelsbacher consensus, focus on students’ interests, was an appropriate choice 40 years ago, seeking to avoid subordination, yet it should not lead to ruthless defence of own interests; it should be mitigated by consideration of the interests of others and notions of the common good). This certainly applies to the EU dimension of EDC. 1298 Corresponding to ECJ cases Case C-36/02 Omega Spielhallen ECLI:EU:C:2004: 614; Case C-362/14 Schrems ECLI:EU:C:2015:650; Joined Cases C-92/09 and C-93/09 Schecke and Eifert ECLI:EU:C:2010:662; Case C-208/09 Sayn-Wittgenstein ECLI:EU:C:2010:806; Case C-189/01 Jippes ECLI:EU:C:2001:420; Case CHAPTER 5 Objective, critical and pluralistic EU learning 376 SOLVIT cases, containing simpler problems than those in ECJ judgments, are also an interesting source of material.1299 In addition to real cases, hypothetical cases (inspired by real cases) or fictional stories can be developed.1300 In its EU citizenship reports, the Commission inserts small stories as examples of citizenship rights (e.g. ‘Frederico, a young cook from Portugal decided to go to Sweden to look for a new job...’1301). Challenges Awareness of the limits of the case teaching method is important.1302 In addition to the risk of tendentious choice of cases (answered above), there may be reticence because of the time and work involved. Compared to traditional lecturing, it demands greater intellectual and emotional energy from both pupils, who have to abandon their passive role, and teachers, who have to master the subject and direct class discussion on the basis of questions.1303 Some authors raise the risk of too much teacher direction.1304 184 C-364/10 Hungary v Slovakia ECLI:EU:C:2012:630; Case C-112/00 Schmidberger ECLI:EU:C:2003:333; Case 186/87 Cowan ECLI:EU:C:1989:47; Joined Cases C-154/15 and C-307/15 Gutiérrez Naranjo and Others ECLI:EU:C:2016:980; Case C-101/01 Lindqvist ECLI:EU:C:2003:596; Case 44/79 Liselotte Hauer ECLI: EU:C:1979:290; Case C-19/92 Dieter Kraus ECLI:EU:C:1993:125; Case 43/75 Defrenne II ECLI:EU:C:1976:56 (some examples are developed below). 1299 Commission Recommendation of 17 September 2013 on the principles governing SOLVIT [2013] OJ L249/10; Commission Communication 'Compliance Package- Action plan on the Reinforcement of SOLVIT: Bringing the benefits of the Single Market to citizens and businesses' COM(2017) 255 final. See ‘Problems solved’ in . SOLVIT is ‘a service provided by national administrations throughout the EU and the EEA. National SOLVIT centres take on board citizens’ complaints and cooperate via an online database to help citizens solve their problems out of court and free of charge.’ See also text to n 1904. 1300 As practised for HRE, see Compass - Manual on human rights education with young people (CoE, 2012). On the power of fictional stories, e.g. to educate for values, see Menkel-Meadow, ‘Telling Stories in School: Using Case Studies and Stories to Teach Legal Ethics’; Cole (n 1233). 1301 Commission EU Citizenship Report 2013: EU citizens: your rights, your future COM(2013) 269, 7. 1302 See n 1230. 1303 Golich, ‘The ABCs of Case Teaching’ 13–14 (role of the teacher as an orchestra conductor). 1304 Pleading for more freedom in education, fewer pre-established learning outcomes and results, accepting uncertainty and unpredictability, see Biesta, The Beautiful Risk of Education. Further Hess, Controversy in the Classroom: The B Case teaching: critical thinking and pluralism 377 Case teaching based on ECJ case law, in particular, is a challenging exercise. Teachers usually have no law degree, let alone a knowledge of EU law. Therefore, source materials should be developed to make their work possible (based on existing models in other fields, such as HRE1305). During their higher education and in continuing education, teachers should be taught about the fundamentals of the EU.1306 Best practices can be developed, for instance allowing university students to assist teachers in case teaching in secondary schools and to write academic papers on these training sessions.1307 The purpose, after all, is not to educate pupils as EU lawyers but as EU citizens. Osler and Zhu argue with regard to narratives in HRE that the advantages outweigh the challenges: they have a valuable part to play in teaching human rights and justice.1308 This applies, by analogy, to narratives for teaching EU rights and justice. The challenges are considerable, but the reward is even greater. Given concerns about the gap between the EU and the citizen (and the warning of the Brexit vote), case teaching can help to move into a higher gear and prepare EU citizens for the EU dimension of a society based on democracy, fundamental rights and the rule of law—based, of course, on an understanding of foundational EU values, objectives and principles. Conclusion The proposed learning method for an EU dimension of EDC at school is based on two pillars: EU primary law (objectivity) and case teaching (critical thinking and pluralism). Using EU texts and stories corresponds to EDC standards and to the ECtHR requirement to convey education in an objective, critical and pluralistic manner, with no aim of indoctrination. It respects the Treaties and the CFR, as well as Member State constitutions. It contributes to achieving the compulsory educational aims defined in the International Covenant on Economic, Social and Cultural Rights, the 185 Democratic Power of Discussion, p 53 ff (discussion of the extent of free speech by students, also with case law of the US Supreme Court). 1305 See i.a. n 1236. 1306 As they are also prepared for courses on chemistry, mathematics or literature. Training with regard to some ECJ cases can be included. 1307 E.g. experience discussed with Prof Emily Buss in October 2017 at the University of Chicago Law School (winwin situation for all parties, credits for students). See also J Murdoch, ‘Using self- and peer assessment at honours level: bridging the gap between law school and the workplace’ (2015) 49 The Law Teacher 73. 1308 Osler and Zhu, ‘Narratives in teaching and research for justice and human rights’, 233. CHAPTER 5 Objective, critical and pluralistic EU learning 378 Convention on the Rights of the Child, in particular the aim of preparing EU citizens for responsible life and effective participation in a free society. Cases give pupils the opportunity to observe, imitate and practice critical agency in classrooms.1309 They are the beginnings of a European public sphere. Classrooms are an obvious first forum in which EU citizens can make their voices heard and discuss issues together.1310 If ‘the source of legitimacy is not the predetermined will of individuals, but rather the process of its formation, that is deliberation itself’,1311 then such deliberation should be practised in education. It will enhance the social legitimacy of the Union. 1309 Ten Dam and Volman, ‘Critical thinking as a citizenship competence: Teaching strategies’, 375 (‘If education is to further the critical competence of students it must provide them with the opportunity at the level of the classroom and the school to “observe, imitate and practice” critical agency’). 1310 Response to Smith, who points to the inadequate development of a ‘European public sphere’ and a lack of an obvious forum for discussion, see Smith, ‘The European Citizens’ Initiative: A New Institution for Empowering Europe’s Citizens?’, 278. See also Commission White Paper of 1 February 2006 on a European Communication Policy COM(2006) 35. 1311 Smith, ‘The European Citizens’ Initiative: A New Institution for Empowering Europe’s Citizens?’, 287. On deliberative democracy, also n 1250. B Case teaching: critical thinking and pluralism 379 The EU dimension based on classic EU citizenship rights EU citizens as holders of citizenship rights attached to their status by Articles 20–24 TFEU Given the stated aim of objective, critical and pluralistic EU learning, content for the EU dimension of EDC can first be found in the citizenship rights traditionally associated with EU citizenship, read together with EDC standards. In EU primary law, ‘citizenship of the Union’ refers both to the legal status of all nationals of Member States (Articles 9 TEU, 20 TFEU) and to ‘the rights conferred by virtue of their status as citizens of the Union’ (‘rights attaching to the status of EU citizen’).1312 Since the entry into force of the 1992 Maastricht Treaty, ‘citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties’.1313 The rights of citizens of the Union are listed in sub-paragraphs (a) to (d) of (now) Article 20(2) TFEU and further elucidated in Articles 21 to 24 TFEU (hereafter: the classic citizenship provisions). The provisions are drafted in the following style: every citizen of the Union shall have the right to... The bundle of rights attached to the status of citizenship of the Union consists of the right to move and reside freely within the territory of the Member States; the right to vote and to stand as a candidate in European Parliament and municipal elections in the Member State of residence on the same conditions as nationals; the right to enjoy, in the territory of a third country in which one’s own Member State is not represented, diplomatic and consular protection by au