‘Concretised’, ‘Flanked’, or ‘Standalone’? Some Reflections on the Application of Article 2 TEU

Table of Contents: 1. The pending case Commission v Hungary (C-769/22) – 2. Respect for Article 2 TEU as a duty inherent to the EU membership – 3. A system of interconnected values and principles – 4. The relationships between Article 2 TEU and the Charter of Fundamental Rights – 5. The Hungarian overall challenge to Article 2 TEU – 6. Applying Article 2 TEU: ‘concretised’, ‘flanked’, or ‘standalone’?.

Abstract: The present article aims to assess some delicate constitutional issues raised by the pending case Commission v Hungary (C-769/22). It first explains the general duty for Member States to respect the values of Article 2 TEU as an essential requirement of their EU Membership, within the meaning of the judgment Repubblika. Then, it dwells upon the model provided by Article 2 TEU, the interconnection among its values and principles, and the connections of those values with other principles affirmed by the Treaties and analyses the extraordinarily comprehensive violation of that model by the Hungarian legislation. Finally, it argues that there are three different potential dimensions for applying Article 2 TEU.

Keywords: Article 2 TEU – self-standing application – non-regression – model of EU values – Hungary – infringement action.

1.   The pending case Commission v Hungary (C-769/22)

The pending case Commission v Hungary,[1] whose hearing was broadcast on 19 November 2024,[2] provides an opportunity to elaborate more general reflections on the use of Article 2 TEU. This case concerns a challenge to the values of Article 2 TEU so new and unparalleled in gravity that it required the Court to sit in full session. The Commission brought an infringement action against Hungary for issuing in 2021 Law LXXIX, adopting stricter measures supposedly against paedophilia and amending certain laws for the protection of children.

According to the Commission, Hungary has failed to fulfil its obligations under EU law by prohibiting children from accessing content portraying gender identities that do not correspond to the sex assigned at birth, sex reassignment or homosexuality; by imposing on media service providers an obligation to classify under a particular category and between 22.00 and 05.00, all programmes the essential element of which is the promotion or portrayal of gender identities that do not correspond to the sex assigned at birth, sex reassignment or homosexuality, and by excluding such programmes from classification as public interest media or as socially beneficial advertising; by imposing on the Media Council an obligation to request that the Member State having jurisdiction over the media service provider take effective measures and take action to put an end to infringements detected by the Media Council; by prohibiting professions related to sexual culture, sexual life, sexual orientation and sexual development from being aimed at the promotion of gender identities that do not correspond to the sex assigned at birth, sex reassignment or homosexuality and by imposing on the body with direct access to the registered data an obligation to make available, to persons entitled to access them, the registered data of persons who have committed, against children, offences against sexual freedom and sexual morality.

The Hungarian legislation applies to different subjects: all children or young adults on the Hungarian territory, their parents, churches, schools, media services and electronic commerce providers. Claiming to fight paedophilia, the new legislation imposes on those subjects different restrictions or obligations, with the declared objective to prevent children and young adults from accessing any content that is pornographic, pictures sexuality, represents or promotes gender identities not corresponding to sex at birth, sex reassignment, or homosexuality. That legislation received very critical opinions from the Venice Commission[3] and at the EU institutional level.[4]

The Commission’s action is based on several pleas concerning the violation of different sources of EU law. Some alleged violations regard internal market rules, notably the freedom to provide services, such as Article 56 TFEU, the Audiovisual Media Services Directive,[5] the E-Commerce Directive[6] and the general Service Directive.[7] Others concern fundamental rights, as protected by the General Data Protection Regulation (GDPR)[8] and the Charter of Fundamental Rights (notably by Articles 1, 7, 8, 11 and 21). Moreover, the Commission also charges Hungary of violating Article 2 TEU, not in combination with other EU rules, but as an autonomous plea. While the other pleas, as serious as they can be, are ‘classical’, the one concerning the use in an infringement action of Article 2 TEU as a self-standing provision is new. It is precisely on that plea that the parties intervening at the hearing were requested to focus and to concert their pleadings (‘concentration et concertation des plaidoiries’).

The present article aims to assess some delicate constitutional issues raised by that plea, whose importance stretches far beyond the pending case, arguing that there are three different potential dimensions for applying Article 2 TEU. It will first explain the general duty for Member States to respect the values of Article 2 TEU as an essential requirement of their EU membership, within the meaning of the judgment Repubblika (section 2); it will then dwell upon the model provided by Article 2 TEU, the interconnection among its values and principles, and the connections of those values with other principles affirmed by the Treaties (section 3) and with the Charter of Fundamental Rights (section 4); it will subsequently analyse the extraordinarily comprehensive violation of that model by the Hungarian legislation (section 5). Finally, the article will try to answer three important questions concerning the different uses of Article 2 TEU in relation to the powers of the Union (section 6).

2.   Respect for Article 2 TEU as a duty inherent to the EU membership

In Achmea, the Court of Justice affirmed that EU law 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’.[9]

According to the Court,

‘Member States are obliged, by reason inter alia of the principle of sincere cooperation set out in the first subparagraph of Article 4(3) TEU, to ensure in their respective territories the application of and respect for EU law, and to take for those purposes any appropriate measure, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the EU’.[10]

Respecting the values and principles of Article 2 TEU is an essential requirement of the EU membership, as it results from a joint reading of Article 2 TEU and Article 49 TEU.[11]

The inherent connection between Article 2 TEU and the EU membership emerged for the first time in Wightman,[12] with reference to the values of liberty and democracy. The Court noted that:

‘[a]s is apparent from Article 49 TEU, which provides the possibility for any European State to apply to become a member of the European Union […] the European Union is composed of States which have freely and voluntarily committed themselves to those values, and EU law is thus based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that those Member States share with it, those same values’.[13]

In Repubblika[14] the Court made a step forward.[15] First, it noted that the European Union is composed of states that, according to Article 49, have freely and voluntarily committed themselves to respect the common values referred to in Article 2 TEU and to ‘undertake to promote them’.[16] Then the Court added that ‘compliance by a Member State with the values enshrined in Article 2 TEU is a condition for the enjoyment of all of the rights deriving from the application of the Treaties to that Member State’.[17] On these grounds the Court affirmed the so-called ‘principle of non-regression’:[18]

‘A Member State cannot therefore amend its legislation in such a way as to bring about a reduction in the protection of the value of the rule of law. […] The Member States are thus required to ensure that, in the light of that value, any regression of their laws on the organisation of justice is prevented, by refraining from adopting rules which would undermine the independence of the judiciary’.[19]

The line of reasoning developed in Repubblika was confirmed by Asociaţia Forumul Judecătorilor,[20] Eurobox,[21] and by the twin judgments on conditionality Hungary v European Parliament and Council[22] and Poland v European Parliament and Council[23] (insofar as they are coincident, only the former will be quoted hereinafter). Reference to a regression in the legislation of Member States can also be found in the Opinions of some Advocates General.[24]

Moreover, after this judgment, the old ‘Copenhagen Criteria’[25] and their assessment[26] should be read in the light of Article 2 TEU and the relevant case law of the CJEU, requiring the European Commission to watch, with particular attention in the pre-accession negotiations and in post-accession, the respect for the values of Article 2 TEU.[27] That induced the Commission to include also the candidate countries in its annual report on the rule of law situation in the EU.[28]

Regression is a litmus test that EU institutions can use as a warning sign to detect and a tool to assess the gravity of a violation of the values contained in Article 2 TEU. In this regard, it can be said that the rule applies to all the values enshrined therein, independently of the fact that the case law of the Court has so far dealt solely with the rule of law element.

However, considering some doubts raised in legal literature,[29] certain aspects must be clarified. First, there can be no automatism: non-regression does not mean that national legislation can never change. Not every regression should be relevant, but only serious, persistent, and systemic ones.[30] In other words, only regressions having a significant negative impact on the values of Article 2 TEU may be relevant. Non-regression means no ‘backsliding’, which is a systemic concept.[31] Second, a regression in the legislation or administrative practices in the concerned Member State should be evaluated, not in abstract terms but by carrying out an overarching analysis of the broader context and by taking into account its actual impact on society.

Third, even if in Repubblika the comparison of the Maltese legal situation pre- and post-accession was crucial for the Court to adjudicate the matter,[32] the condition of compliance with the values of Article 2 TEU, in light of Article 49 TEU, can be confined neither in time nor in space.

On the one hand, respect for these values is not limited to the time of accession, as, according to Article 49 TEU, the Member State must not only respect – at the time of accession – the values referred to in Article 2 TEU but must also be ‘committed to promoting’ those values.[33] This general commitment pertains to post-accession periods and mirrors the parallel obligation imposed on the Union by Article 3(1) TEU to promote its values. The Court clarified that ‘compliance with those values cannot be reduced to an obligation which a candidate State must meet to accede to the European Union and which it may disregard after its accession’.[34] It is precisely this commitment to promoting EU values that reinforces non-regression in relation to the principles of classic standstill[35] and a fortiori of the rebus sic stantibus rule under international law.[36] Moreover, this commitment implies that if, during the initial period of accession, some flexibility could be tolerated for new members in adjusting their systems, different levels of compliance with the values of Article 2 TEU at the time of accession cannot justify ongoing asymmetries among the Member States regarding those values.

On the other hand, the condition of respecting those values cannot be limited only to acceding States but concerns all Member States, including the founding ones. That necessarily stems from the general principles of EU law, notably from Article 4 TEU, which establishes the equality of Member States before the Treaties (paragraph 2)[37] and the principle of sincere cooperation (paragraph 3), which requires the Member States to refrain from any measure that could jeopardise attaining the Union's objectives.[38] Since, according to Article 3(1) TEU, the first of the Union's objectives is to promote its values, the interdiction of significative regression can also be seen as a qualified specification of the latter principle.

Respecting the values of Article 2 TEU is, therefore, the condition not only for becoming a ‘Member of the Club’, but also for fully ‘staying in the Club’. That is confirmed by the procedures of Article 7 TEU and, more recently, by the adoption of the Regulation on Conditionality,[39] linking solidarity to the respect of the values of Article 2 TEU.[40] EU membership could also be seen as an ‘inclusive package’, where the costs in terms of sovereignty and the benefits of being part of a common system go hand in hand.

Furthermore, respecting the values of Article 2 TEU is a duty of each Member State towards both the Union and the other Members. The Court of Justice has constantly affirmed that respect for the values of Article 2 TEU is also the foundation of the mutual trust between the Member States.[41]

It is important to point out that the values and principles contained in Article 2 TEU do not come out of the blue with the Treaty of Lisbon, nor have they been ‘invented’ by the Court of Justice. They are the result of a slow and cautious process of constitutionalisation at the level of primary law of the European Union. This process started with the Treaty of Maastricht (that created the Union), notably with its Preamble,[42] passing through the introduction by the Treaty of Amsterdam of a new first paragraph in Article F TEU[43] and a new Article F1, later transformed into Article 7 TEU by the Treaty of Nice, until Article I.2 of the Constitutional Treaty, whose text has been transferred into what is currently Article 2 TEU.

This evolution confirms that the choice of the values on whom the European Union is founded has been pondered and deliberated. As the Court noted, the values contained in Article 2 TEU ‘have been identified by the Member States’.[44] The duty of respecting the values of Article 2 TEU has undoubtedly not been imposed on Member States against their will since, by ratifying the Treaty of Lisbon (or successive accession Treaties), they accepted Articles 2 and 49, thus freely and voluntarily committing themselves to respect and promote those values. Consequently, similarly to what happens for the concept of ‘common constitutional traditions’,[45] once those values have been identified and accepted by the Member States, they become ‘common’, so that they cannot be unilaterally waved by a single State.

3.   A system of interconnected values and principles

According to Koen Lenaerts, the values of Article 2 TEU ‘are embedded in the very DNA of the European integration project. Those values are the soul of the EU that enables the Member States to grow together whilst preserving their national identity’.[46] They are part of the European ‘constitutional framework’ that the Court explicitly mentioned in Opinion 1/17.[47] As the Court of Justice clarified in the twin judgments on conditionality, Article 2 TEU enshrines the founding values and principles that ‘define the very identity of the European Union as a common legal order’, an identity that the European Union ‘must be able to defend’. According to those judgments, ‘Article 2 TEU is not merely a statement of guidelines or intentions, but contains values, […] which are given concrete expression in principles containing legally binding obligations for the Member States’.[48]

Moreover, Article 2 TEU is not just a list of disconnected values and principles but, as the Court stated in Opinion 2/13, ‘a set of common values on which the Union is founded’:[49] in other words, a system of interconnected values that provides a model for EU membership. That model entails a wide margin of appreciation for each Member State in deciding the national ‘value-mix’ and its practical implementation in society in the light of its Constitution. Although in academic literature there are many different takes on this point,[50] RS[51] indicates that Article 2 TEU could neither ‘harmonise’ national constitutions nor confer new competence to the Union. Still, Article 2 TEU expresses the essential features of the European identity ‘as a common legal order’ and, at the same time, the essence of the EU membership, and, as has been highlighted above, no unilateral derogation to this model could be accepted.

In RS the Court struck the delicate balance between national identity and European identity, in respect to Articles 2 and 19 TEU. On the one hand,

‘neither Article 2 TEU nor the second subparagraph of Article 19(1) TEU, nor any other provision of EU law, requires Member States to adopt a particular constitutional model governing the relationships and interaction between the various branches of the State, in particular as regards the definition and delimitation of their competences. Indeed, under Article 4(2) TEU, the European Union must respect the national identities of the Member States, inherent in their fundamental political and constitutional structures’.[52]

On the other hand, the same judgment affirms that: ‘in choosing their respective constitutional model, the Member States are required to comply, inter alia, with the requirement that the courts be independent stemming from the abovementioned provisions of EU law’.[53] If Article 4(2) TEU recognises that the Union must respect the national identities of the Member States, the same Article also affirms the principle of equality of those States before the Treaties. The formula ‘United in diversity’ resumes the balance between national constitutional identities and a European identity[54] based on the essential requirements inherent to membership, which, as affirmed in Repubblika, are grounded on Articles 2 and 49 TEU.

 The model of values of Article 2, albeit very broad, is clear. In connection with the two first paragraphs of Article 10 TEU, it describes representative and participative democracies,[55] where the rule of law and human rights traditionally connected to democratic societies are granted. As the Court recently affirmed, ‘under Article 10(1) TEU, the functioning of the European Union is to be founded on representative democracy, which gives concrete expression to democracy as a value. Democracy is, under Article 2 TEU, one of the values on which the European Union is founded’.[56]

This model, on the one hand, certainly draws on the constitutional traditions of the Member States[57] and international sources, notably the Council of Europe ecosystem, representing common constitutional choices and tracing the path for a common future. On the other hand, it is strongly anchored to the idea that a direct link exists between the Union and its citizens, creating rights that can be invoked against their States under the control of a strong, capillary and unitarian judicial system composed by the CJEU and the national judges. An idea that was born long before the introduction by the Treaty of Maastricht of the citizenship of the European Union, finding its first roots in the theory of direct effect, affirmed by Van Gend & Loos of 1963: in the logic of that judgment, the ‘newness’ of the EU legal order precisely consists in that direct link. From this perspective, the obligation to respect the values mentioned in Article 2 TEU is not only a duty of each Member State towards the Union and the other EU countries, it is also a duty towards the EU citizens and all other individuals falling in the scope of EU law.[58]

As Article 2 TEU is a system of interdependent values,[59] it is important to consider the interconnections among the different parts of this article and the connections between the latter and other primary law provisions. Article 2 TEU is composed of two paragraphs. The first paragraph enumerates the founding values: respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. The second paragraph mentions the principles[60] of pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men, referring to society. While the CJEU has already recognised the binding force of some of the values enshrined in the first paragraph, it seems more difficult to argue that each principle of the second paragraph has the same force and even more delicate would be the issue of their justiciability, if an analogy can be drawn with Article 52(5) of the Charter. However, being part of the same model, all the values and principles of Article 2 TEU are interconnected and operate in synergy.

The Court clarified the connection between the rule of law and other values and principles of Article 2 TEU:

‘While there is no hierarchy among Union values, respect for the rule of law is essential for the protection of the other fundamental values on which the Union is founded, such as freedom, democracy, equality and respect for human rights. Respect for the rule of law is intrinsically linked to respect for democracy and for fundamental rights. There can be no democracy and respect for fundamental rights without respect for the rule of law and vice versa’.[61]

Furthermore, the principle of pluralism is strictly related to the value of democracy, which in turn is connected to the fundamental right to freedom of expression.[62]

An interesting question arises about the meaning of the reference to ‘a society’ in the second paragraph of Article 2 TEU. Certainly, as highlighted in legal scholarship, Article 2 TEU establishes the values for the entire European society, which can be seen as a ‘singular collective’.[63] However, a Member State can only be found responsible for breaches of Article 2 in the national society, i.e. the part of the European society under its control. It can be argued that the second paragraph of Article 2 TEU indicates the principles to be implemented in society as a consequence of the duty to respect the values affirmed in the first paragraph both by the Member States and the European institutions. Therefore, the effects on society can be a benchmark for assessing the State’s breach of the principles and values of Article 2 TEU, notably the systemic dimension, seriousness and persistence of the violation, and a significant regression. The EU membership requires not only formal respect for the values of Article 2 TEU but also their concrete application in society. NGOs, and civil society can all contribute to monitoring the impact on society of the violations of Article 2 TEU.[64]

The fact that the effects on society can be regarded as a benchmark of the respect of the EU values is confirmed in the conditionality case Hungary v European Parliament and Council, where the Court affirmed that ‘a Member State whose society is characterised by discrimination cannot be regarded as ensuring respect for the rule of law, within the meaning of that common value’.[65] This statement also shows how the interconnection between values and principles in Article 2 TEU works: the violation in society of one of the principles of the second paragraph (discrimination) is symptomatic of the breach of one of the values affirmed in the first paragraph (the rule of law).

Besides the ‘internal’ connections among values and principles of Article 2, the model of this provision reflects – and is reflected by – other provisions of the Treaties and the Charter of Fundamental Rights. The Court has so far decided many cases relating to single values contained in Article 2 TEU, always in connection with other EU law provisions. It is interesting to consider the nature of such connections and their reach.

The Court started developing its case law on Article 2 TEU from the rule of law. Several judgments based on Articles 2 TEU, 19 TEU, and sometimes also Article 47 of the Charter, focused on the breaches of the rule of law, notably on the threats to judicial independence[66] or fair trial.[67] Such threats are particularly dangerous for the EU legal order. The judicial dialogue between the Court of Justice and the national judiciary is, in fact, essential to the functioning of the preliminary ruling mechanism, which allows the Court to grant uniform application of the EU law, as well as to guarantee the equality of the Member States and the citizens before that law.

The Court has always underlined that Article 19 TEU[68] expressly refers to the ‘fields covered by Union law’, ‘irrespective of whether the Member States are implementing Union law within the meaning of Article 51 of the Charter’.[69] A new action against Poland is now pending before the Court, concerning the violation of Articles 2, 4(3) and 19 TEU.[70] As regards the nature of the connection between Articles 2 and 19 TEU, the Court, starting from Associação Sindical dos Juízes Portugueses, has often repeated that the latter ‘concretise’[71] (‘concrétise’ in the original French text), i.e. ‘gives concrete expression to the value of the rule of law affirmed in Article 2 TEU’.[72] Different wording (but in the French version, it is always ‘concrétiser’) has been used by the Court to define the relationship between Article 2 and Article 10 TEU: ‘Article 10(1) TEU provides that the functioning of the Union is to be founded on the principle of representative democracy, which gives concrete form to the value of democracy referred to in Article 2 TEU’.[73]

Even if other languages use different terms (in Italian is ‘incarna’, i.e. ‘embodies’), this formula seems to imply that Article 2 TEU need to be operationalised by other provisions of the Treaties, as it had no value per se. But what does this formula exactly mean? Article 19 TEU could have hardly been interpreted as in Associação Sindical dos Juízes Portugueses without the anchorage to the values of Article 2 TEU. In this case, the concrétisation is, at least, reciprocal and Article 2 TEU does not seem to be the ‘weak’ partner of the couple.[74] That is even more so regarding the relationship between Article 2 and the first paragraph of Article 10 TEU, which qualifies democracy as ‘representative’ when referring to the ‘functioning of the Union’: in this case, it is Article 2 TEU that calls Member States into play. The two provisions belong to the same model of EU values and work in synergy. As we will see in the last section of this article, Article 4(3) TEU could be added to this relationship in some cases.[75]

4.   The relationships between Article 2 TEU and the Charter of Fundamental Rights

As the breaches of human rights in Article 2 TEU and of the fundamental rights of the Charter can be conceptually different, also in light of variable intensity and potential justifications, it is correct to represent them distinctly. In fact, the Court sometimes refers to human rights in Article 2 without leaning on the Charter.[76] That being said, massive violations of the Charter can indeed strengthen the plea based on serious and systemic violations of Article 2 TEU.

However, Article 2 TEU often appears in the case law of the Court in connection with the Charter of Fundamental Rights. In those cases, the ‘concretisation’ is not mentioned, and the Charter seems to flank Article 2 TEU on an equal footing. Beyond the cases concerning judicial independence, where Article 2 TEU and Article 47 Charter are considered with Article 19 TEU, the Court has examined other values affirmed by Article 2 TEU through the lens of the Charter.

In Wightman, the Court underlined the importance of the values of liberty and democracy, as referred to ‘in the second and fourth recitals of the preamble to the TEU, which are among the common values referred to in Article 2 of that Treaty and in the preamble to the Charter of Fundamental Rights of the European Union, and which thus form part of the very foundations of the European Union legal order’.[77] In Patriciello, the Court affirmed that ‘freedom of expression, as an essential foundation of a pluralist, democratic society reflecting the values on which the Union, in accordance with Article 2 TEU, is based, constitutes a fundamental right guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union’.[78] Then, in Tele2Sverige the Court underlined the particular importance of the right to freedom of expression in any democratic society, specifying that ‘that fundamental right, guaranteed in Article 11 of the Charter, constitutes one of the essential foundations of a pluralist, democratic society, and is one of the values on which, under Article 2 TEU, the Union is founded’.[79] Recently, in Real Madrid, the Court recalled that Article 11 of the Charter constitutes one of the essential foundations of a pluralist, democratic society and is one of the values on which, under Article 2 TEU, the European Union is founded, and interferences with the rights and freedoms guaranteed by Article 11 must be limited to what is strictly necessary, particularly the interferences concerning journalists and also publishers and press organisations, given the importance of the press in a democratic society governed by the rule of law’.[80]

In the abundant case law on the European Arrest Warrant,[81] asylum, migration,[82] and judicial cooperation in criminal matters,[83] the Court underlined that systemic deficiencies in the rule of law can result in a lack of effective judicial protection or a real risk of inhuman or degrading treatment, which can undermine the mutual trust between the Member States, which is particularly indispensable in these fields.

However, it is important to clarify the peculiar relationship between Article 2 TEU and the Charter, which, according to Article 51, can only be applied when the situation is caught by a substantive provision of EU law to be activated.[84] As a consequence, the Charter cannot concretise Article 2 TEU alone.

But it also seems difficult to maintain that Article 2 TEU could, alone, bring the situation within the scope of EU law, activating the Charter.[85] As it will be seen in the last section of this article, Article 2 TEU can apply within the limits of the competence of the Union, not establishing itself any competence of the latter. In particular, it does not seem possible to extend to Article 2 TEU the reasoning that was developed by the Court in Max Planck[86] and Bauer[87] to bypass the lack of horizontal direct effect of directives, according to which the directive brings the case into the scope of the Charter under Article 51 of the latter, and it is the Charter itself (notably Article 31) that has direct effect also in horizontal situations.[88]

The idea of flanking Article 2 with the Charter presupposes, therefore, that the situation falls in the fields of competence of the EU law, not that the scope for the Charter is provided by Article 2 itself. In the pending Hungarian case, the possibility to apply both Article 2 and the Charter is abundantly provided for by the directives, the GDPR and the provision of free movement of services.

5.   The Hungarian overall challenge to the values of Article 2 TEU

As seen in the previous section, the Court has so far examined single values of Article 2 TEU. But what if a Member State rejects the entire model of values of that Article? The pending case Commission v Hungary raises precisely this question.[89] The new Hungarian legislation, which can be read in the context of the alarming rule of law backsliding in Hungary, reveals, under the pretext of fighting paedophilia, a deliberated strategy aiming to gain political consensus and strengthen national identity at the expense of vulnerable minority groups.

These strategies, as pointed out by Nadia Urbinati,[90] are typical of populist democracies, where the leader often establishes a direct and emotional relationship with those in society whom he/she defines as the ‘right’ (or good) people.[91] Once elected, the leader’s declared intent is to represent not ‘the People’, but only the ‘right’ people, i.e., his/her electoral majority. That may bring populists in power to adopt measures against the ‘wrong’ minorities, aimed at ‘purifying’ society. Such practice can also lead to a claim of declared anti-European identity: the leader affirms to protect the ‘pure’ national identity against the morally ‘impure’ Europe and its values. These measures, avowedly adopted to defend the national interest and often also the national identity,[92] may seriously jeopardise almost all the values of Article 2 TEU. In fact, on the one hand, those measures can affect the rule of law, notably, the traditional democratic checks, such as the judiciary, free media, and opposition, which are accused of hampering the plans of the leader, ergo ‘the will of the People’ (the ‘right’ people of course).

In the pending case against Hungary, even if the rule of law seems to remain in the background, the freedom of the press is questioned, as well as the elements that, according to the Court are integral parts of the rule of law, the Venice Commission Moreover, the challenge to the rule of law in that State is a general concern[93] that has already led to a suspension of the EU grants in the application of Regulation 2020/2092.[94] The Commission has recently referred Hungary[95] to the Court for its Sovereignty Protection Act, which established the Sovereignty Protection Office, whose task is to investigate activities carried out, supposedly in the interest of foreign bodies, by a wide range of entities, such as civil society organisations, media and journalists. As indicated in a report by five NGOs,[96] this legislation has a stigmatising and chilling effect on the concerned entities, creating an environment where even receiving EU funds can be considered a threat.

On the other hand, the need to strengthen the identity of the majority as ‘the right people’ – and therefore the emotional connection with the leader[97] – may drive the latter and his/her establishment to look for ‘wrong’ (or bad) people inside the domestic society, targeting and ostracising specific groups or minorities. Moral, religious, or simply ‘good old-fashioned’ considerations are usually used to legitimise the leader’s authority as the defender of the ‘right’ part of society against the ‘wrong’ one. That is the case with the new Hungarian legislation on paedophilia.

Unlike the cases decided by the Court so far, this legislation, composed of several measures of different gravity and intensity, seems to violate not one of the values or principles of Article 2 TEU, but almost all of them, overall challenging the very model of values – and the common identity – of the Union.

First of all, human dignity is being violated. This legislation stigmatises as ‘wrong’ children and teenagers in a delicate phase of their lives, when sexual identity is forming, humiliating them and exposing them to public contempt, with a particularly disruptive psychological effect. In addition, freedom is being violated: free access to objective and serene information on sexual and gender identities is denied, just when young adults desperately need to understand themselves and their place in the world. But, above all, what is violated is the fundamental freedom to be oneself.

Human rights are being violated, not only in the evolute meaning of the ‘modern’ individual rights protected by the Charter and by the ECHR, but also in the basic meaning of the 1942 UN Universal Declaration of Human Rights, which affirms the essential universal rights of each human being as such. The Hungarian legislation notably challenges Articles 19,[98] 22,[99] 26(2),[100] and 26(3)[101] of that Declaration. Most notably, the rights of people belonging to the LGTBIQ+ minority group are being violated by the Hungarian legislation that equates them to paedophiles, suggests that they are dangerous, and severely restricts the possibility of defending their ideas and identity.

Furthermore, all the principles of pluralism, non-discrimination, tolerance, justice and solidarity are being violated. Pluralism would require that all ideas can be expressed,[102] which is severely limited by the new Hungarian rules on the media. Moreover, there is no tolerance, justice, solidarity and equality in legislation that points to an ‘impure’ part of society to get rid of and that openly and directly discriminates against vulnerable individuals on grounds of sexual orientation and gender identity.

As to the effects on society, this legislation is deeply divisive; it feeds contempt, hatred and potential violence against the ‘wrong’ ones, and it creates inside European society a black spot, where the same essential rights and values aren’t granted to everyone as everywhere else. That is a very high price to pay as a tribute to the idol of the national identity. But, even admitting (quod non) that some of the reasons invoked by Hungary in this essentially ‘identarian’ dispute can be traced to national identity under Article 4(2) TEU, it is still true that such identity can prevail on the values of Article 2 TEU, as explained in RS, only if the related measures passed the proportionality test,[103] which doesn’t seem the case in this instance.

Regression within the meaning of Repubblika is blatant. The Hungarian legislation constitutes an extraordinarily serious and systemic violation of Article 2 TEU, not only because it severely affects a large number of individuals in many different fields of society but also because it does not just violate one single value of Article 2 TEU; it questions the entire model of values of the Union.

None of the twelve Member States that intervened, even if with different arguments, at the hearing[104] supported Hungary, while other traditional ‘friends’ of the latter just chose to stay away from the hearing.

6.   Applying Article 2 TEU: ‘concretised’, ‘flanked’, or ‘standalone’?

As the Court affirmed in relation to the values contained in Article 2 TEU, the Union must be able to defend those values ‘within the limits of its powers’.[105]

Three questions arise concerning the powers of the Union: 1) Does an action for breach of Article 2 TEU circumvent the procedures laid down in Articles 7 and 269 TFEU, by creating a parallel procedure not envisaged by the Treaties?; 2) Can Article 2 TEU stand alone as a plea in infringement actions, or should it always be concretised by other provisions?; 3) Could Article 2 be applied, neither as concretised nor flanked by other provisions, but just alone, i.e. in the absence of other violations of EU law?

As to the first question, it must be recalled that in the previous twin cases on conditionality Hungary and Poland argued that the regulation on conditionality circumvented both Article 7 TEU and Article 269 TFEU.[106] The Court answered that several provisions in the Treaty and the Charter embody the values of Article 2 TEU, which ‘grant the EU institutions the power to examine, determine the existence of and, where appropriate, to impose penalties for breaches of the values contained in Article 2 TEU committed in a Member State’.[107] Thus, Article 7 TEU is not the only way to protect those values.

The Court recognised that:

‘the EU legislature cannot establish, without infringing Article 7 TEU, a procedure parallel to that laid down by that provision, having, in essence, the same subject matter, pursuing the same objective and allowing the adoption of identical measures, while providing for the involvement of different institutions or for different material and procedural conditions from those laid down by that provision. However, it is permissible for the EU legislature, where it has a legal basis for doing so, to establish, by an act of secondary legislation, other procedures relating to the values contained in Article 2 TEU, which include the rule of law, provided that those procedures are different, in terms of both their aim and their subject matter, from the procedure laid down in Article 7 TEU’.[108]

Then, the Court explained that, indeed, those procedures are different in purpose, scope, conditions and nature.[109] It must be noted that this passage refers to a potential conflict between the procedures provided for by Article 7 and Article 269 TFEU with those established by EU secondary legislation (in that case, the regulation on conditionality). The pending case against Hungary raises a different question: does the use of Article 258 TFEU to promote an infringement action for breach of Article 2 TEU create a parallel procedure in conflict with Articles 7 TEU and 269 TFEU? The potential conflict would be among different norms of the same rank in the Treaties. The idea of Article 7 TEU as a lex specialis with respect to Article 258 TFEU precluding the use of the latter cannot be accepted. Those remedies indeed operate at different levels, political or legal. The object of an infringement action is to condemn a Member State for failure to fulfil whatever obligation under the Treaties, not to suspend that State from the rights deriving from the Treaties. Moreover, while the infringement action may only lead to economic sanctions, Article 7 can also entail political sanctions, such as the suspension of voting rights. The two procedures, therefore, are distinct and disconnected: if that based on Article 7 is more serious in consequences, it remains, however, merely hypothetical in practice. As to Article 269 TFEU, its difference from Article 258 TFEU is apparent and excludes any circumvention. The first is limited only to the procedural aspects of Article 7 and is conceived ‘in favour’ of the State accused of breaching Article 2 TEU: the latter procedure, instead, is ‘against’ the State accused of breaching the treaties.

The second question is whether Article 2 TEU; can act alone or, rather, as some Member States affirmed at the hearing, must it always be concretised by other provisions. Those States affirmed that adding Article 2 TEU as an autonomous ground for action would exceed the competence of the Union, and, moreover, would have no practical added value.[110] One can recognise that Hungary could be declared to have breached EU law, even without resorting to Article 2 TEU, for violating the EU legislation on the internal market, non-discrimination, and data protection. That legislation brings the Hungarian law within the scope of the Charter pursuant to Article 51. It would be simple to submit the abstractly legitimate objective of fighting paedophilia to the classic test of proportionality, finding that the Hungarian legislation is widely disproportionate both in respect of the EU legislation and the Charter. Moreover, in this case, referring to Article 2 TEU is not capable of triggering, the application of the Regulation on conditionality, as there are here no consequences on the EU budget stemming from breaches of the rule of law.[111] Nor would that reference allow to raise the amount of Article 260 TFEU penalties imposed in accordance with Article 260 TFEU: as the recent case Commission v Hungary on international protection[112] shows, even when Article 2 is not at stake, penalties can be very high; and, in any case, to the discretion of the Court, much higher than the Commission's request. Also, the amount of damage compensations in Francovich actions would not be affected by the addition of Article 2 TEU, since that amount is limited to the damage suffered in concreto as a consequence of the violation of a norm of the Union conferring individual rights.

However, in the case under consideration, vis-à-vis an attack on the very model of Union values, an autonomous reference to Article 2 appears necessary. On the one hand, the overall violation of Article 2 TEU in the pending case is clear and total and cannot be resumed – and reduced – to any of the other alleged breaches of EU primary and secondary law. On the other hand, it is only by referring to the comprehensive framework of Article 2 TEU that all the single Hungarian measures violating different EU norms are revealed as parts of a unique deliberate strategy against a vulnerable group. It is precisely because they belong to the same design, whose overall aim challenges the values of Article 2 TEU, that even apparently innocent or low-intensity measures[113] represent serious threats to those values.

It can be argued, therefore, that Article 2 TEU does not always need to be concretised by other provisions, following the scheme of Articles 2 and 19 TEU. In certain cases, such as the pending case against Hungary, Article 2 TEU can constitute, within the scope of the Treaties, an autonomous plea flanked by other provisions.

A different issue is whether Article 2 TEU can be concretised by Article 4(3) TEU. It can be argued that it would rather be the opposite. One could imagine solutions involving the duty of sincere cooperation, which could be seen as a sort of general ‘enhancer’ of the duty to respect every obligation stemming from the Treaties (and derived legislation). Accordingly, Hungary should be condemned for the joint breach of Articles 2 and 4(3) TEU, which requires Member States to refrain from any measure that could jeopardise attaining the Union’s objectives. In its turn, the principle of sincere cooperation is usually – even if not necessarily – ‘concretised’ by other provisions.[114] In the Hungarian case, the inclusion into this scheme of Article 3(3) TEU – on the need to combat social exclusion and discrimination – and Article 10 TFEU – requiring the Union to fight discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation – could be, in the abstract, envisaged. Accordingly, by violating Article 2 TEU, Hungary would also breach the duty of sincere cooperation in that it hampers the Union in pursuing the objectives set out in Articles 3(3) and 10 TEU.

However, one can doubt the usefulness of such a reasoning. Would it be so different, in terms of the competence of the Union, to rely on Article 2 plus Article 4(3) TEU instead of Article 2 TEU tout court? Indeed, summing Articles 2, 4(3), 3(3) and 10 TEU, and mixing State duties and EU objectives would probably increase – instead of solving – the problems in the interpretation of Article 2 TEU. Rather, it seems more straightforward, and less acrobatic, to recognise that in case of an overall challenge to the very model of Article 2 TEU, this Article can act alone, not in splendid isolation, but alongside other pleas concerning different breaches of EU law. That would not amount to a banalisation of Article 2 TEU – something that should be avoided for preserving its foundational meaning – on the contrary, it would entail a high political and symbolic value.

That leads us to the last question: could Article 2 be applied, neither ‘concretised’, nor ‘flanked’ by another provision of EU law, but just alone? Wouldn’t this mean applying Article 2 TEU beyond the scope of the Treaties and the powers of the Union? This question is at the moment merely hypothetical. Regarding the pending case, there are so many breaches of EU law that one could hardly doubt that it falls within the scope of that law. Moreover, considering the comprehensive strategies of populist democracies, it seems really difficult to imagine serious, persistent, and, above all, systemic violations of the values of Article 2 that have no impact on any other provision of EU law.[115]

However, generally speaking, some values, such as the rule of law and democracy, could also be violated outside the scope of EU law. Venturing into the domain of nightmares, one cannot exclude extreme situations of a Member State's regression towards a non-democratic regime, such as a suspension or flagrant violation of electoral procedures or a coup d’état, which would affect the essence of EU membership. On the one hand, if outside the scope of the Treaties, Article 7 would certainly still apply, infringement actions can only cover ‘obligations under the Treaties’ and, in principle, the Court, in the conditionality case, ruled out the idea of a parallel procedure circumventing Article 7 TEU.

On the other hand, however, as we have seen, Articles 49 TEU and 2 TEU impose obligations, albeit broad, on the Member States. The question that remains, therefore, open is whether these two provisions alone or, according to some authors,[116] in combination with – or in the light of – Article 4(3), could provide a sufficient legal basis for infringement actions in circumstances of persistent paralysis of the mechanisms of Article 7 TEU and serious and extreme challenge to democracy.

In such particular and extreme circumstances, it cannot perhaps be excluded that the Court, albeit facing serious conceptual challenges, could give an affirmative answer to that question. However, since that question is abstract at the moment, the Court does not need to answer it in the pending Hungarian case.

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European Papers, Vol. 10, 2025, No 1, pp. 1-24
ISSN 2499-8249 - doi: 10.15166/2499-8249/820

* Full Professor of EU Law at Alma Mater Studiorum, University of Bologna and former Judge at the CJEU (2018–2024), luciaserena.rossi@unibo.it. Many thanks to Giacomo Di Federico, Federico Casolari and Loïc Azoulai for their valuable comments.