EU INTEGRATION & ETHICS · THE ENTREPRENEURIAL SCHOOL® 6020 Innsbruck / Austria jeanmonnet.mci.edu...

THE ENTREPRENEURIAL SCHOOL® 6020 Innsbruck / Austria jeanmonnet.mci.edu

MCI MANAGEMENT CENTER INNSBRUCK Universitätsstraße 15 [email protected] 1

EU INTEGRATION & ETHICS

General introduction (1st session)

N.B. Please note that whenever appropriate, screenshots are linked to the relevant website.

http://jeanmonnet.mci.edu/

https://ec.europa.eu/programmes/erasmus-plus/node_en



Kick-off question

“Suppose you are the driver of a trolley carhurtling down the track at sixty miles an hour. Up ahead you see workers standing on the track, tolls in hand. You try to stop, but you can’t. The brakes don’t work. You feel desperate, because you know that if you crash into these five workers, they will die. (Let’s assume you know that for sure.)Suddenly, you notice a side track, off to the right. There is one worker on that track, too, but only one. You realize that you can turn the trolley car onto the side track, killing the one worker, but sparing the five. What should you do?” To keep the trolley car going straight ahead? Turn the trolley car on to the side track?

Source: Sandel, 2010, p. 21

Picture credit: https://en.wikipedia.org/wiki/Trolley_problem

https://en.wikipedia.org/wiki/Trolley_problem



Further questions

Limits to Utilitarianism (the greatest good for the greatest number)?

- Is it just to shoot an airplane kidnapped by terrorists? (BVerfG 15.02.2006, 1 BvR 357/05)

- Is it ok to use the organs of one patient, in order to save the lives of others?

- Is it just to throw Christians to the lions in the Colosseum for the sake of overall excitement and amusement of the Romans? (Justice Harvard Episode 02, 32:50 min.; Sandel, 2010, pp. 37f)

- Should driverless cars rather either save two passengers or three pedestrians? (CNN, 23 June 2016 Link)

http://edition.cnn.com/2016/06/23/health/driverless-cars-safety-public-opinion/index.html




Further questions

Limits to Utilitarianism (the greatest good for the greatest number)?

- Is it just to shoot an airplane kidnapped by terrorists? (BVerfG 15.02.2006, 1 BvR 357/05)

- Is it ok to use the organs of one patient, in order to save the lives of others?

- Is it just to throw Christians to the lions in the Colosseum for the sake of overall excitement and amusement of the Romans? (Justice Harvard Episode 02, 32:50 min.; Sandel, 2010, pp. 37f)

- Should driverless cars rather either save two passengers or three pedestrians? (CNN, 23 June 2016 Link)

Picture source: http://moralmachine.mit.edu




Agenda – 1st session

1st session: Kick-off | face-to-face | 09:00 - 16:45h Introduction to the course Introduction lecturer and participants Code of conduct for eLearning

Content related introduction Kick-off question Law: Examples, definition, separation of powers, hierarchy EU law: Hierarchy, decision-making, competences, history Discrimination: Examples, definition, criteria Fairness | justice Law and morality Ethics | philosophy EU law and ethics (and religion)

N.B. Will be recorded and posted for external participants



Kick-off question – “law”

• Which of the following examples would you qualify as “law“?

Treaty on European Union

E-Commerce Act

Law on air pollution (Immissionsschutzgesetz-Luft)

A national provision that allows euthanasia

A national provision that motivates women to have abortion

EU Directive on electronic commerce

Possibility of sending State Secretaries (and not only Minsters) to the Council of the EU

Codes of conduct

Ethical Principles for Medical Research Involving Human Subjects

MCI’s General Terms and Conditions of Business

MCI’s House rules



Pingo

URL: pingo.upb.de

anonymous

Code: 969375



Law

“Let the term ‘law’ refer to positive law (as opposed to natural law), i.e. to existing systems of social rules that require and (in many cases) enforce compliance and punishnon-compliance.”

- “rules for the regulation of human conduct that is backed up by sanctions”

- “the existence of a legal system requires that compliance with its […] rules will be generally enforced, but not necessarily compliance with every single rule”

- “[…] the rule of recognition. This rule specifies the criteria of legal validity that any rule, be it primary or secondary, has to meet in order to be valid law in the respective legal system”, “typically embodied in the written constitution”

- “In principle, even grossly unjust norms may be valid law in a given legal system if the established rule of recognition does not contain any provisions to the contrary.”

Source: Hinsch, 2013, pp. 18-19

• Treaty on European Union (EU Member States [MS])• E-Commerce Act (Austrian Parliament)• Law on air pollution (Tyrolean Parliament)• Fictitious example (might be law, but unmoral?)• Fictitious example (might be law, but unmoral?)• Directive on electronic commerce (European

Parliament and Council of the EU)• Possibility of sending State Secretaries to the Council

of the EU (Customary law)• Codes of conduct (soft law)• Ethical Principles for Medical Research Involving

Human Subjects (World Medical Association)• General Terms and Conditions of Business (MCI)• House rules (MCI)



Who can “make” law?

Legislature

(parliament)

Judiciary

(courts)

Executive

(administration)

Picture credit: https://en.wikipedia.org/wiki/Montesquieu

Against arbitrariness (absolutism)

Limitation of power

Guaranteeing freedom Picture credit: http://www.wienbilder.at/category/ballhausplatz/

© Parlamentsdirektion/Mike Ranz

Picture credit: http://www.rechtsfreund.at/begriff_rechtsfreund.htm



Is there a hierarchy of law?

Structural principles

Constitution

Ordinary legislation

Administrative regulations

Judgements of courts, administrative rulings

Enforcement

EU law

CJEU judgment inInternationale Handelsgesellschaft, 11/70, EU:C:1970:114, para. 3, Link

http://eur-lex.europa.eu/legal-content/DE/TXT/?qid=1441622248494&uri=CELEX:61970CJ0011



The hierarchy of EU law

• Primary law

– TEU, TFEU, Link

– Modifications by Treaty revisions (Maastricht, Amsterdam, Nice, Lisbon [Link], etc.) and Accession treaties (e.g. Croatia, Link), protocols etc.

– Charter of Fundamental Rights of the European Union (Link)– Treaty establishing the European Atomic Energy Community (Link)

• Secondary law

– Regulations: general application, binding in its entirety and directly applicable in the MS

– Directives: binding, as to the result to be achieved; leaves choice of form and methods of implementation

– Decision: binding for addressee

– Recommendations and opinions: no binding force

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:C:2016:202:TOC

http://eur-lex.europa.eu/JOHtml.do?uri=OJ:C:2007:306:SOM:EN:HTML

http://eur-lex.europa.eu/JOHtml.do?uri=OJ:L:2012:112:SOM:EN:HTML

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:C:2016:202:TOC

eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:C:2016:203:TOC



Who can “make” EU law?

• Primary law | all 28 Member States

– TEU, TFEU, Link



• Secondary law | European Parliament and Council of Ministers (based on Commission proposal)







Who can “make” EU law?

• Primary law | all 28 Member States

– TEU, TFEU, Link



• Secondary law | European Parliament and Council of Ministers (based on Commission proposal)





http://ec.europa.eu/commission/2014-2019_en



Decision-making

Source: EU in slides (2015)

Citizens, interests groups, experts: discuss, consult

Commission: makes formal proposal

Parliament and Council of Ministers: decide jointly

Commission and Court of Justice: monitor implementation

National or local authorities: implement





Decision-making

What was mentioned in the two videos, you

had to prepare?

Picture credits: http://www.geocaching.com/seek/cache_details.aspx?wp=GC30GNP

Council video (Link):• Three main institutions• Composition• Interests represented• Ordinary legislative procedure (co-decision)• Different readings (and statistics)• Other procedures• Implementation into national law• Preparation of Council work

EP video (Link):• Right of initiative• Process before a proposal is presented• Process once a proposal has been presented• Ordinary legislative procedure• Distribution of competences• Different readings• Implementation (Commission and CJEU role)

http://www.consilium.europa.eu/en/council-eu/decision-making/

https://www.youtube.com/watch?list=PLHQxK2YVsFVtJrQMoj1NQ-WYmfu7GOQK8&v=clmSKbV5Z9w



When can the EU issue Secondary law?



… i.e. vertical distribution of competences



But how did it all start?

Source: EU in slides (2015)

Konrad Adenauer

Robert Schuman

Winston Churchill

Alcide De Gasperi

Jean Monnet



But how did it all start?

Robert Schuman Jean Monnet



Some more questions

• What is your answer on these following questions?

Should women earn as much as men?

Should women pay equally less at the hairdressers, such as men?

Should Germans pay the same price for skiing in Austria, and Austrians the same price for swimming in Germany?

Should homosexuals be treated in the same way as heterosexuals (e.g. also have access to Assisted Reproductive technologies, such as IVF, surrogacy)?

Should young workers earn as much as older ones?

Should Italians be treated like French people (i.e. they get cheaper tickets) in Disneyland Paris?

Source: Kroet, C. (2015, July 29). Commission questions Disneyland's ticket prices. Politico.

http://www.politico.eu/article/commission-questions-disneylands-ticket-prices-amazon-competition-eu-member/



Equal treatment / no discrimination

“In that respect, it should be noted that, according to settled case-law, discrimination can arise only through the application of different rules to comparable situations or the application of the same rule to different situations[…].”

CJEU judgment in Commission v the Netherlands (three out of six years’ rule), C-542/09, EU:C:2012:346, para. 41

“It should be recalled that the requirement relating to the comparability of the situations for the purpose of determining whether there is a breach of the principle of equal treatment must be assessed in the light of all the elements which characterise them […].”

CJEU judgment in CHEZ Razpredelenie Bulgaria, C-83/14, EU:C:2015:480, para. 89

A = B => treat A like B

A = B => don`t treat A like B

Should women earn as much as men? Should women pay equally less at the hairdressers,

such as men? Should Germans pay the same price for skiing in

Austria, and Austrians the same price for swimming in Germany?

Should homosexuals be treated in the same way as heterosexuals (e.g. also have access to Assisted Reproductive technologies, such as IVF, surrogacy)?

Should young workers earn as much as older ones? Should Italians be treated like French people

(i.e. they get cheaper tickets) in Disneyland Paris?



Affirmative action (see 2nd session)

affirmative action



• EU citizenship & fundamental freedoms (negative integration)

Article 18 TFEU (EU citizenship): Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.

Article 45 para. 2 TFEU (freedom of workers):Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

• Harmonization of national law (positive integration)

– Article 19 para. 1 TFEU: “[…] combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”

Discrimination: criteria



Discrimination: criteria


Article 19 para. 1 TFEU: “[…] combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”

Source: SEC(2008) 2181 final 2.7.2008, p. 3

2004/113/EC

2006/54/EC2000/78/EC

20

00

/43

/EC

Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, COM(2008) 426 final 2.7.2008

2006/54/EC

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52008SC2181&from=EN

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52008PC0426&qid=1405414002046



Discrimination: criteria – try to categorize

Should women earn as much as men? Should women pay equally less at the

hairdressers, such as men? Should Germans pay the same price for skiing in

Austria, and Austrians the same price for swimming in Germany?

Should homosexuals be treated in the same way as heterosexuals (e.g. also have access to Assisted Reproductive technologies (IVF, surrogacy)?

Should young workers earn as much as older ones?

Should Italians be treated like French people (i.e. they get cheaper tickets) in Disneyland Paris?

• Sex | Employment• Sex | Goods and services

• Nationality | Services

• Sexual orientation | Services ?

• Age | Employment

• Nationality | Services

Grounds |criteria | Field




Content related introduction Kick-off question Law: Examples, definition, separation of powers, hierarchy EU law: Hierarchy, decision-making, competences, history Discrimination: Examples, definition, criteria Fairness | justice Law and morality Ethics | philosophy EU law and ethics (and religion)



Equal justice under law

US Supreme Court, Washington D.C. (Picture credit: Frischhut)



Pingo

URL: pingo.upb.de

anonymous

Code: 969375

Consider the following example: There are three children and suppose, you only have one (!) flute to give to one of them. Which child should receive the one and only flute?

Anne, because she knows how to play the flute Bob, because he is the only child who has no toy on his own yet Carla, because she has produced the flute




Example of one flute that should be given to one of three children:

- Anne (she knows how to play the flute): acc. to Aristotle she should be given the flute, because “the flute would presumably contribute most to the further development and exercise of human faculties“ (see also Sandel, 2010, p. 188; Justice Harvard

Episode 09 at 43:40 min.)

- Utilitarians would in this case agree, because Anne’s “beautiful play will increase overall happiness”

- Bob (only one who has no toy): egalitarian approach

- Carla (she has produced the flute): can claim the instrument “either as a just desert or else in the name of a libertarianconception of just acquisition and possession”


Equal justice under law

US Supreme Court, Washington D.C.(Picture credit: Frischhut)



How to define fairness | justice: philosophically

http://www.hup.harvard.edu/catalog.php?isbn=9780674000780

http://www.justiceharvard.org/



Is there a legal | an EU legal approach?

• EU values

Article 2 TEUThe 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.

• Are they defined?

• What do you understand by these values?

• In which fields, would you say, are they important?




Content related introduction Kick-off question Law: Examples, definition, separation of powers, hierarchy EU law: Hierarchy, decision-making, competences, history Discrimination: Examples, definition, criteria Fairness | justice: Example(s), philosophical, legal, EU values Law and morality Ethics | philosophy EU law and ethics (and religion)



Law ≠ Morality?

Do you know this case?

How do you judge this relationship between a 40 year old man and a 16 year old girl from a) a legal and b) a moral perspective?

The Austrian legal situation ...

Source: Der Spiegel No. 34 / 22.8.2011, page 44f

• § 206 Austrian Criminal Code (StGB): up to 10 years of imprisonment for sexual relationship with minors (14 years)

• § 207b StGB: up to 1 year for sexual relations with persones under the age of 16 years

• etc

Law ≠ Morality



Law and its functions

• Order (Ordnung)

– E.g. road traffic – doesn’t matter whether left-hand or right-hand driving

• Fairness (Gerechtigkeit)

– Law has a function of morality and also a social function

• Power (Herrschaft)

– Law also has a function to maintain leadership

– E.g. Constitutional law

• Control of power (Herrschaftskontrolle)

– Constitutional review

– Checks and balances

– Separation of powers

Cf.: Wesel, 1997, p. 49

Law



Law and morality (and time)

Source: Wesel, 1997, p. 48 Law ≠ Morality (& time)



Source: Frischhut, 2015, p. 544

Cf. also CJEU judgment in Liga Portuguesa de Futebol Profissional and Bwin International, C-42/07, EU:C:2009:519, para. 57: “In that context, as most of the Member States which submitted observations to the Court have noted, the legislation on games of chance is one of the areas in which there are significant moral, religious and cultural differences between the Member States. In the absence of Community harmonisation in the field, it is for each Member State to determine in those areas, in accordance with its own scale of values, what is required in order to ensure that the interests in question are protected […].”

The perspectives of morality

Territorial (regional) and cultural Temporal component (evolutionary character) Value based (remember Article 2 TEU)

Law ≠ Morality (& time)



Law and progress

Jefferson Memorial, Washington D.C. (3rd president of the USA; co-author of the "Declaration of Independence")(Picture credit: Frischhut)

Law ≠ Morality (& time)

https://www.youtube.com/watch?v=S3AVcCggRnU



Law and progress

Source: The Economist (2015, July 9). Change is gonna come: The Supreme Court.

“The Supreme Court rarely likes to get very far ahead of public opinion. Before issuing rulings giving rise to a major social change like the desegregation of public schools (Brown v Board of Education in 1954), the legalisation of interracial marriage (Loving v Virginia in 1967), or abortion (Roe v Wade in 1973) the justices seem to like at least half of Americans to be on board. In this light, the justices’ tones in the Obergefell opinions owe much to the environment into which they were released.” Law ≠ Morality (& time)

http://www.economist.com/news/united-states/21656667-nine-judges-are-being-asked-compensate-political-stalemate-both-troubling




Content related introduction Kick-off question Law: Examples, definition, separation of powers, hierarchy EU law: Hierarchy, decision-making, competences, history Discrimination: Examples, definition, criteria Fairness | justice: Example(s), philosophical, legal, EU values Law and morality: Example, functions, time, morality Ethics | philosophy EU law and ethics (and religion)



Ethics and morality

"In its most familiar sense, the word morality […] refers to norms about right and wrong human conduct that are so widely shared that they form a stable social compact. As a social institution, morality encompasses many standards of conduct, including moral principles, rules, ideals, rights, and virtues. We learn about morality as we grow up, and we learn to distinguish the part of morality that holds for everyone from moral norms that bind only members of specific communities or special groups such as physicians, nurses, or public health officials." (no emphases added)

Source: Beauchamp & Childress, 2013, pp. 2-3

Source: Frischhut, 2015, pp. 536f



Ethics and philosophy (excerpt)

Picture credit: https://en.wikipedia.org/wiki/Aristotle

Charles-Louis de Secondat, Baron de La Brède et de Montesquieu (1689-1755)


Immanuel Kant (1724-1804)

Picture credit: https://en.wikipedia.org/wiki/Immanuel_Kant

John Rawls (1921-2002): A Theory of Justice (1999)

Picture credit: https://en.wikipedia.org/wiki/John_Rawls

Michael Sandel (1953- ) Picture credit: http://www.justiceharvard.org/

about/michael-sandel/

Jeremy Bentham (1748-1832)

Picture credit: https://en.wikipedia.org/wiki/Jeremy_Bentham

Aristotle (384-322 B.C.)



Philosophers

Aristotle (384-322 B.C.)- Nicomachean Ethics: one of the most important historical philosophical works

- Humans striving to live in a political community (“zoón politikón”) (Luf, 2014, p. 9)

- This society needs some kind of order by law (Luf, 2014, p. 10), as the objective (telos; see infra) of this political community is the ‘good life’

- Virtue ethics; virtue: golden mean between conflicting parameters

- “Aristotle taught that virtue is something we cultivate with practice: ‘we become just by doing just acts, temperate by doing temperate acts, brave by doing brave acts’” (Sandel, 2012, p. 128)

- Teleological (telos = goal, purpose) reasoning, not deontological (Justice Harvard Episode 09, part 2)-> for questions of distribution, we have to consider the goal, the purpose of what should be distributed (cf. flute example)

Picture credit: https://en.wikipedia.org/wiki/Aristotle

Picture credit: https://videographyinwords.wordpress.com/tag/goldenmean/



Philosophers

Charles-Louis de Secondat, Baron de La Brède et de Montesquieu (1689-1755)- Theory of the separation of powers

- Influence on the French revolution and the US Constitution

- The Spirit of the Laws (1748)


https://en.wikipedia.org/wiki/The_Spirit_of_the_Laws



Philosophers

Immanuel Kant (1724-1804)- Categorical imperative: “Act only according to that maxim whereby you can, at the same time,

will that it should become a universal law.” (Link)

- “Act in such a way that you treat humanity, whether in your own person or in the person of any other, never merely as a means to an end, but always at the same time as an end.” (Link)

- “Basing morality on interests and preferences destroys its dignity.” (Sandel, 2010, p. 107)

- “For Kant, respecting human dignity means treating persons as ends in themselves.” (Sandel, 2010, p. 110)

- “Persons are rational beings. They don’t just have a relative value, but if anything has, they have an absolutevalue, an intrinsic value. That is, rational beings have dignity.” (Sandel, 2010, p. 122)

Picture credit: https://en.wikipedia.org/wiki/Immanuel_Kant

Picture credit: https://www.economist.com/news/business-and-finance/21720580-ugly-incident-provokes-social-media-storm-passenger-dragged-united-airlines

https://en.wikipedia.org/wiki/Categorical_imperative

https://en.wikipedia.org/wiki/Categorical_imperative

https://www.economist.com/news/business-and-finance/21720580-ugly-incident-provokes-social-media-storm-passenger-dragged-united-airlines



Philosophers

Jeremy Bentham (1748-1832)- Founder of modern utilitarianism: “it is the greatest happiness of the greatest number

that is the measure of right and wrong” (Link)

- Utility: “whatever produces pleasure or happiness, and whatever prevents pain or suffering”(Sandel, 2010, p. 34)

- Pain and pleasure are our “sovereign masters”; they govern us in everything we do and also determine what we ought to do (Sandel, 2010, p. 34)

- Has had a “powerful hold on the thinking of policy-makers, economists, businessexecutives, and ordinary citizens to this day” (Sandel, 2010, p. 34)

Picture credit: https://en.wikipedia.org/wiki/Jeremy_Bentham

Picture credit: https://en.wikipedia.org/wiki/Trolley_problem

https://en.wikipedia.org/wiki/Jeremy_Bentham

https://en.wikipedia.org/wiki/Trolley_problem



Philosophers

John Rawls (1921-2002): A Theory of Justice (1999)

- On distributive justice

- Rawls sees society as a system of collaboration, which shall foster the interests of every single member – not only of some of them (Luf, 2014, p. 90)

- In this system, justice shall be established by fairness; this can result in advantages ordisadvantages for the individual (Luf, 2014, p. 90)

- Important that there is consensus about the fundamental structure of a society (Luf, 2014, p. 91)

- Based on the classical social contract theories of Rousseau and Kant, he creates a thought experiment of a “original position”, where people forget about certain standpoints that support their actual situation; i.e. the hypothetical situation of the “veil of ignorance” (Luf, 2014, p. 92)

- This leads to two principles of Justice (to some extent egalitarian)

- “First: each person is to have an equal right to the most extensive scheme of equal basic libertiescompatible with a similar scheme of liberties of others. [= egalitarian liberalism]

- Second: social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all.”

Rawls, J. (1999). A theory of justice (Rev. ed.). Cambridge, Mass.: Belknap Press of Harvard University Press., p. 53

Picture credit: https://en.wikipedia.org/wiki/John_Rawls



Philosophers

Michael Sandel (1953- )- “I do not think that freedom of choice – even freedom of choice under fair conditions –

is an adequate basis for a just society. What’s more, the attempt to find neutral principles of justice seems to me misguided. It is not always possible to define our rights and duties without taking up substantive moral questions; and even when it’s possible it may not be desirable.” (Sandel, 2010, p. 220)

- “A just society can’t be achieved simply by maximizing utility or be securing freedom of choice. To achieve a just society we have to reason together about the meaning of the good life, and to create a public culture hospitable to the disagreements that will inevitably arise.” (Sandel, 2010, p. 261)

- “Justice is not only about the right way to distribute things. Its also about the right way to value things.” (Sandel, 2010, p. 261)

Picture credit: http://www.justiceharvard.org/




Philosophers

Michael Sandel (1953- )- 1. Citizenship, sacrifice, and service [communitarian]

- “If a just society requires a strong sense of community, it must find a way to cultivate in citizens a concern for the whole, a dedication to the common good.” (Sandel, 2010, p. 263)

- 2. The moral limits of markets [see our 4th meeting]

- “[…] we need a public debate about the moral limits of justice.” (Sandel, 2010, p. 265)

- 3. Inequality, solidarity, and civic virtue [‘skyboxification’]

- “Too great a gap between rich and poor undermines the solidarity that democratic citizenship requires.” (Sandel, 2010, p. 266)“[…] inequality can be corrosive to civic virtue.” (Sandel, 2010, p. 267)

- 4. A politics of moral engagement [importance of public discourse]

- “A more robust public engagement with our moral disagreements could provide a stronger, not a weaker, basis for mutual respect.” (Sandel, 2010, p. 268)

Picture credit: http://www.justiceharvard.org/





Content related introduction Kick-off question Law: Examples, definition, separation of powers, hierarchy EU law: Hierarchy, decision-making, competences, history Discrimination: Examples, definition, criteria Fairness | justice: Example(s), philosophical, legal, EU values Law and morality: Example, functions, time, morality Ethics | philosophy EU law and ethics (and religion)



EU law and ethics

CJEU judgment in Conegate, 121/85, EU:C:1986:114, Link

• Case about the seizure by the UK customs authorities of various consignments of goods imported from Germany by Conegate Limited.

• “In the course of an inspection at the airport where the consignments arrived, customs officials discovered that the goods consisted essentially of inflatable dolls which were clearly of a sexual nature and other erotic articles. They considered these goods to be 'indecent or obscene' articles whose importation into the [UK] is prohibited […]“. (para. 2)

• Is it possible for an EU Member State (MS) to prohibit the import of these goods? Who is in charge of defining of what qualifies as 'indecent or obscene‘?

• Yes, such restrictions on the free movement of goods can be justified on grounds of ‘public morality’, as “in principle it is for each [MS] to determine in accordance with its own scale of valuesand in the form selected by it the requirements of public morality in its territory”. (para. 14)

• However, what about a situation, where “the same goods may be manufactured freely on [the MS’s] territory and marketed on its territory”? (para. 20)

• This would not be considered as morality, but as double morality, and consequently would not be accepted by the Court. (para. 20)

– (double) morality

http://curia.europa.eu/juris/liste.jsf?pro=&nat=or&oqp=&dates=&lg=&language=en&jur=C,T,F&cit=none,C,CJ,R,2008E,,,,,,,,,,true,false,false&td=;ALL&pcs=Oor&avg=&page=1&mat=or&parties=conegate&jge=&for=&cid=215684



Discrimination: criteria (repetition)


Article 19 para. 1 TFEU: “[…] combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”

Source: SEC(2008) 2181 final 2.7.2008, p. 3

2004/113/EC

2006/54/EC2000/78/EC

20

00

/43

/EC

Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, COM(2008) 426 final 2.7.2008

2006/54/EC

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52008SC2181&from=EN

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52008PC0426&qid=1405414002046



EU law and ethics – … and religion

Picture credit: http://www.spiegel.de/lebenundlernen/schule/gew-maedchen-mit-burka-nicht-von-schule-ausschliessen-a-1109007.html



• Judgment of 14 March 2017, G4S Secure Solutions, C-157/15, EU:C:2017:203 (Link)• Facts:

• When Ms Achbita started to work for G4S (Feb. 2003), there was an unwritten rule that workers could not wear visible signs of their political, philosophical or religious beliefs in the workplace.

• Three years later (i.e. in April 2006), Ms Achbita informed her line managers that she intended, in future, to wear an Islamic headscarf during working hours.

• On 29 May 2006, the G4S works council approved an amendment to the workplace regulations, which came into force on 13 June 2006, according to which ‘employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs’.

• On 12 June 2006: dismissal on account of her continuing insistence that she wished, as a Muslim, to wear the Islamic headscarf at work.


Picture credit: https://en.wikipedia.org/wiki/G4S

http://curia.europa.eu/juris/liste.jsf?language=en&jur=C,T,F&num=C-157/15&td=ALL




• Judgment of 14 March 2017, G4S Secure Solutions, C-157/15, EU:C:2017:203 (Link)

• Religion not defined in Directive 2000/78/EC (para. 25)

• EU approach similar to European Convention on Human Rights (ECHR) of the Council of Europe: forum internum (fact of having a belief), as well as forum externum (manifestation of religious faith in public) (para. 28)

• Applied without difference -> no open discrimination (para. 32)

• In case of disguised discrimination (which is up to the national court to assess), then possibility of justification (paras. 34-5)

• 1. “desire to display, in relations with both public and private sector customers, a policy of political, philosophical or religious neutrality” = legitimate aim (para. 37); Art 16 CFR (freedom to conduct a business) – “notably“ in case of contact with the employer’s customers (para. 38); reference to ECtHR case-law (para. 39)

• 2. Appropriateness: ok, “provided that that policy is genuinely pursued in a consistent and systematic manner” (para. 40)to be assessed by national court; “policy” -> can be unwritten or written

• 3. Necessity: if in case of workers who interact with customers -> “must be considered strictly necessary for the purpose of achieving the aim pursued” (para. 42)-> “backoffice“ activity (no contact with customers) as alternative to dismissal (para. 43)


http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0078



• Judgment of 14 March 2017, G4S Secure Solutions, C-157/15, EU:C:2017:203 (Link) andJudgment of 14 March 2017, Bougnaoui und ADDH, C-188/15, EU:C:2017:204 (Link)

• Both judgments: Grand Chamber• Clarification concerning: Private undertakings (what about public ones?)• No clarification: issues outside the employment field?

• N.B. Case-law ECtHR (Link) and Austrian Supreme Court (OGH) (Link)




http://hudoc.echr.coe.int/eng?i=001-115881

http://www.ris.bka.gv.at/Dokument.wxe?Abfrage=Justiz&Dokumentnummer=JJT_20160525_OGH0002_009OBA00117_15V0000_000&ResultFunctionToken=f19657f1-81f6-405a-9f05-c31927eaafa6&Position=1&Gericht=&Rechtssatznummer=&Rechtssatz=&Fundstelle=&AenderungenSeit=Undefined&SucheNachRechtssatz=True&SucheNachText=True&GZ=9+ObA+117/15v&VonDatum=&BisDatum=06.07.2016&Norm=&ImRisSeit=Undefined&ResultPageSize=100&Suchworte=

http://www.politico.eu/article/manuel-valls-burkini-not-compatible-with-french-values/

http://www.politico.eu/article/burkini-ban-is-legal-says-corsican-judge/



• Directive 2001/18/EC of 12 March 2001 on the deliberate release into the environment of genetically modified organisms [etc.], OJ 2001 L 106, p. 1

• The following text excludes later amendments, e.g. by Regulation (EC) No 1829/2003

• “Respect for ethical principles recognised in a Member State is particularly important. Member States may take into consideration ethical aspects when GMOs are deliberately released or placed on the market as or in products.” (9th recital)

• Consultation of the European Group on Ethics in Science and New Technologies (EGE) “with a view to obtaining advice on ethical issues of a general nature regarding the deliberate release or placing on the market of GMOs. Such consultations should be without prejudice to the competence of Member States as regards ethical issues” (57th recital)

• Member States able to consult national committee “with a view to obtaining advice on the ethical implications of biotechnology” (58th recital)

EU law and ethics – GMOs

Picture credits: https://www.flickr.com/photos/illuminating9_11/3553723626/in/photostream/

Role of ethics in general



• Poland accused of infringing EU Directive – issue of general public in Poland against GMOs

• “The Republic of Poland also referred to the fears expressed by the general public in Poland concerning the harm posed by GMOs to public health and the environment, and the fact that the Polish general public has shown itself to be strongly opposed to GMOs; additionally, it referred to the need to respect ethical principles, in accordance with recital 9 in the preamble to Directive 2001/18, claiming in that regard that the introduction into the Polish legal system of provisions to which most of the Polish people were opposed would be unethical.” (para. 19)

• “In the present case, the adoption of the contested national provisions was inspired by the Christianand Humanist ethical principles adhered to by the majority of the Polish people.” (para. 30)

• “In that connection, the Republic of Poland goes on to put forward a Christian conception of life which is opposed to the manipulation and transformation of living organisms created by God into material objects which are the subject of intellectual property rights; a Christian and Humanist conception of progress and development which urges respect for creation and a quest for harmony between Man and Nature; and, lastly, Christian and Humanist social principles, the reduction of living organisms tothe level of products for purely commercial ends being likely, inter alia, to undermine the foundations of society.” (para. 31)

• “The Republic of Poland also emphasises that it is well known that, at the time of the vote on the contested national provisions, most members of the Polish Parliament belonged to political parties for which the Roman Catholic faith is a fundamental value, so that it is not at all surprising that they were inspired by Christian and Humanist values, which are prevalent and are shared by the electorate, ratherthan by considerations relating to the environment or public health, which are scientifically complex and more difficult to understand.” (para. 41)


CJEU judgment in Commission v Poland, C-165/08, EU:C:2009:473, Link

Public opinion / ethics > EU Directive?

Ethics defined by one religion?

Citizens pluspoliticians views




• CJEU emphasizing that its judgment is not based on ethics

• “In that connection, however, the Court considers that, for the purposes of deciding the present case, it is not necessary to rule on the question whether – and, if so, to what extent and under which possible circumstances – the Member States retain an option to rely on ethical or religious arguments in order to justify the adoption of internal measures which, like the contested national provisions, derogate from the provisions of Directives 2001/18 or 2002/53.” (para. 51)

• If challenging (alleged unethical) EU law, the burden of proof lies upon Member States

• “In the present case, it is sufficient to hold that the Republic of Poland, upon which the burden of proof lies in such a case, has failed, in any event, to establish that the true purpose of the contested national provisions was in fact to pursue the religious and ethical objectives relied upon, which for the Commission is a matter of doubt.” (para. 52)

• “Secondly, and as regards the more specifically religious or ethical arguments put forward by the Republic of Poland for the first time in the defence and rejoinder submitted to the Court, it must be held that that Member State has failed to establish that the contested national provisions were in fact adopted on the basis of such considerations.” (para. 57)



Law, not ethics




• Public opinion vs. EU law

• “However, a Member State cannot rely in that manner on the views of a section of public opinion in order unilaterally to challenge a harmonising measure adopted by the [EU] institutions […]” (para. 56)

• “As regards, more specifically, the justification based on the protection of public morality relied on by the Republic of Poland in the present case, it must be held, first, that the relevant evidentiary burden is not discharged by statements as general as those put forward by that Member State during the pre-litigation procedure and consisting in references to fears regarding the environment and public health and to the strong opposition to GMOs manifested by the Polish people, or even to the fact that the administrative regional assemblies adopted resolutions declaring that the administrative regions are to be kept free of genetically modified cultures and GMOs.” (para. 54)

• “Clearly, in those circumstances, public morality is not really being invoked as a separate justification, but as an aspect of the justification relating to protection of human health and the environment, which is precisely the concern of Directive 2001/18 in the present context […].” (para. 55)

• “However, such considerations [Polish society and Parliament attaching great importance to Christian values] are not sufficient to establish that the adoption of the contested national provisions was in fact inspired by the ethical and religious considerations described in the defence and the rejoinder, especially since the Republic of Poland had, in the pre-litigation procedure, based its defence mainly on the shortcomings allegedly affecting Directive 2001/18, regard being had to the precautionary principle and to the risks posed by that directive to both the environment and human health.” (paras. 58-59)



Public opinion not > EU law

Also not successful with reference to public morality

… nor when referring to values inspired by ethics and religion




EU law and ethics – lessons learned

• It is not for the EU but “for each Member State to determine, in accordance with its own scale of values [now: also EU values (Art 2 TEU)] and in the form selected by it, the requirements of public morality in its territory” (Conegate, para. 14) …

• … as long as this does not amount to double morality (Conegate, para. 20).

• In the headscarves cases, the CJEU accepted a policy of ‘political, philosophical or religious neutrality‘ in case of alleged discrimination at workplace, as long as this policy is genuinely pursued in a consistent and systematic manner, and if there are no less restrictive alternatives.

• At the time of drafting of the CFR: controversies whether there should be a reference to “God”:

• The headscarves cases concerned Islam, whereas the Polish GMO case was about Christian and Humanist conceptions.

• Similar as other courts, also the CJEU is reluctant to rely on ethical or religious arguments; therefore, the judgments are based on law.

• Ethical, religious arguments as well as those relating to ‘public opinion’ cannot be used to derogate from legal obligations.

Source: Frischhut, 2015, p. 567

Also here we can observe a kind of neutral approach



Next: applying this to the following situations

2nd – 5th sessions: online | 17:00 - 19:15h

2nd: affirmative action

3rd: surrogacy

4th: moral limits of markets

5th: migration and refugees

6th: Q&A session Online session (synchronous) will take place via Adobe Connect.

Picture source: http://www.biopoliticaltimes.org/article.php?id=5393

Picture source: Justice Harvard Episode 09 part 1 at 20:00 min.

Picture source: The Economist, February 6th–12th 2016 (cover)

Picture source: https://www.theodysseyonline.com/shortcomings-affirmative-action

Picture source: https://changefromwithin.org/2012/06/06/are-white-students-being-disadvantaged-by-affirmative-action/

http://mci.adobeconnect.com/euethics1718/

http://www.justiceharvard.org/2011/02/episode-two/#watch

https://www.theodysseyonline.com/shortcomings-affirmative-action

https://changefromwithin.org/2012/06/06/are-white-students-being-disadvantaged-by-affirmative-action/



Literature

N.B. Other sources than literature only mentioned on the relevant slide

Beauchamp, T. L., & Childress, J. F. (2013). Principles of biomedical ethics (7th ed). New York: Oxford University Press.

Frischhut, M. (2015). "EU": Short for "Ethical" Union?: The Role of Ethics in European Union Law. Heidelberg Journal of International Law (HJIL), 75(3), 531–577.

Hinsch, W. (2013). Legitimacy: Where Justice Meets the Law. In S. Vöneky, B. Beylage-Haarmann, A. Höfelmeier, & A.-K. Hübler (Eds.), Ethik und Recht. Die Ethisierung des Rechts/Ethics and Law - The Ethicalization of Law (pp. 17–40 [32-33]). Heidelberg [u.a.]: Springer.

Luf, G. (2014). Grundfragen der Rechtsphilosophie und Rechtsethik: Einführung in die Rechtswissenschaften und ihre Methoden - Teil III. Studienjahr 2014/15. Wien: Manz.

Rawls, J. (1971). A theory of justice. Cambridge, MA: Belknap Press of Harvard University Press. Rawls, J. (1999). A theory of justice (Rev. ed.). Cambridge, Mass.: Belknap Press of Harvard University Press. Sandel, M. J. (2010). Justice: What's the right thing to do? (1st ed). New York: Farrar, Straus and Giroux. Sandel, M. J. (2012). What money can't buy: The moral limits of markets (1st ed). New York: Farrar, Straus and

Giroux. Wesel, U. (1997). Geschichte des Rechts: Von den Frühformen bis zum Vertrag von Maastricht.

München: C.H. Beck.



Thank you for your attention!MCI MANAGEMENT CENTER INNSBRUCKTHE ENTREPRENEURIAL SCHOOL®

Dr. Markus Frischhut, LL.M.Jean Monnet Chair “European Integration & Ethics”Professor & Study Coordinator European Union Law

Management & Law (BA)Strategic Management & Law (MA)

Universitaetsstrasse 15, 6020 Innsbruck, AustriaPhone: +43 512 2070 -3632, Fax: -3699mailto:[email protected], www.mci.edu

http://jeanmonnet.mci.edu/

https://ec.europa.eu/programmes/erasmus-plus/node_en

mailto:[email protected]

http://www.mci.edu/

EU INTEGRATION & ETHICS · THE ENTREPRENEURIAL SCHOOL® 6020 Innsbruck / Austria jeanmonnet.mci.edu...

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