On 19 December 2022, the European Commission launched infringement proceedings against Hungary (Case C‑769/22), alleging, among other things, a direct violation of Article 2 TEU. This sparked debate over whether the ECJ might develop its case law to allow Article 2 TEU to serve as an independent legal basis, even without a connection to specific EU law provisions. However, the Commission’s Legal Service has since dismissed this idea. During the hearing on 19 November 2024, its Director General, Daniel Calleja Crespo, emphasized that the case should not be interpreted as allowing Article 2 TEU to be invoked on its own, beyond the framework of EU law. Building on this perspective, this post argues that a restrictive interpretation is crucial to maintaining both the effectiveness and legitimacy of the ECJ’s case law on Article 2 TEU.
European Constitutional Law and the ECJ’s Case Law on Values
Some have described it as the biggest human rights case in the history of the European Union. At its core is a Hungarian law (Act LXXIX of 2021) that restricts the portrayal of homosexuality and transgender identities in education, media, and advertising aimed at minors. The European Commission considers this a serious violation of EU law. In its first plea, it cites breaches of multiple secondary law provisions, including the Audiovisual Media Services Directive (2010/13/EU), the E-Commerce Directive (2000/31/EC), and the Services Directive (2006/123/EC), as well as restrictions on the freedom to provide services under Article 56 TFEU and violations of fundamental rights under Articles 1, 7, 11, and 21 of the EU Charter. However, the case takes on broader significance in the Commission’s second plea, where it alleges—for the first time—an independent violation of Article 2 TEU, which enshrines the EU’s core values. If upheld by the ECJ, this argument could mark a turning point in the legal enforcement of fundamental EU principles.
How far can the EU’s fundamental values, enshrined in Article 2 TEU, be legally enforced? This is the central constitutional question raised by the case against Hungary. The ECJ is widely expected to rule against Hungary’s law—16 Member States have joined the Commission’s case, signalling strong opposition to discrimination and a commitment to human rights enforcement. But the bigger issue is how the Court’s case law on values might evolve.
A key precedent was set in ASJP (C-64/16), where the ECJ ruled that Article 19(1), second subparagraph, TEU gives concrete legal effect to the rule of law principle in Article 2 TEU. This allowed the Court to hold Member States accountable for upholding judicial independence, arguing that mutual trust among courts is essential for effective legal protection (para 30). Since then, the ECJ has repeatedly emphasized that Article 2 TEU is not just a political declaration but a binding legal standard, reinforced by Article 19(1), second subparagraph, TEU (e.g., Commission v Poland I (C-619/18), Commission v Poland II (C-192/18), A.K. (C-585/18, C-624/18 et al.), A.B. (C-824/18), Commission v Poland III (C-791/19), Commission v Poland IV (C-204/21), Euro Box Promotion (C-357/19 et al.), RS (C-430/21), Poland v Parliament and Council (C-157/21), Hungary v Parliament and Council (C-156/21), Forumul Judecătorilor din România (C-83/19 et al.), Getin Noble Bank (C-132/20), Hann-Invest (C-554/21, C-622/21, C-727/21)).
This approach has shaped a series of landmark rulings. In LM (C-216/18 PPU), the ECJ ruled that national courts must assess whether deficiencies in the rule of law justify refusing extradition under the European Arrest Warrant. In AK (C-585/18 and others), the Court struck down Polish judicial reforms that compromised judicial independence, such as politically controlled disciplinary chambers. A major step came in Repubblika(C-896/19), where the ECJ introduced the principle of non-regression: once a Member State has achieved a certain level of rule-of-law protection, it cannot roll it back (para 64). This ruling reinforced the idea that respect for the rule of law is a continuous obligation, not just a condition for EU accession. This shows, step by step, that the ECJ has gradually extended its jurisdiction over national institutions like the judiciary—at least, in the context of preliminary rulings and infringement proceedings—when judicial independence is at risk.
Article 2 TEU as an Independent Legal Basis?
The pending case C‑769/22 goes beyond the ECJ’s existing case law on judicial independence and the rule of law. It is not about mutual trust between courts or effective legal protection under Article 19 TEU. Instead, it concerns fundamental rights—specifically, the prohibition of discrimination against LGBTIQ+ individuals and the protection of human dignity. These rights are safeguarded at the EU level through both the Charter of Fundamental Rights (Articles 1 and 21(1)) and the general principles of Union law. However, Article 51(1) of the Charter limits its applicability to situations where EU law is being implemented. While the ECJ has interpreted this broadly since Åkerberg Fransson (C-617/10), a concrete link to EU law remains necessary. In this case against Hungary, that link likely exists via the internal market, which would activate the Charter’s protections.
Against this backdrop, the European Commission’s decision to allege a standalone violation of Article 2 TEU in its infringement action is striking. Some have interpreted this as signalling that, in the Commission’s view, Article 2 TEU could serve as an independent legal basis for enforcement—detached from violations of specific EU provisions and even from the scope of the Charter. If accepted, this would be a legal first: Article 2 TEU would itself define the reach of EU law, without requiring a direct link to secondary or primary law.
However, the Commission itself has since rejected such a broad interpretation of Article 2 TEU. While its original application in Case C-769/22 listed an independent infringement of Article 2 TEU, Daniel Calleja Crespo, the Director General of the Commission’s Legal Service, clarified during the hearing that Article 2 TEU can only be invoked alongside other EU law provisions and within the material scope of EU law. Judge Jan Passer pressed him for a clear answer on whether Article 2 TEU could apply independently of other EU law provisions. The response from the representative for the Commission was unequivocal: no, it cannot. Furthermore, Calleja Crespo confirmed that if the Commission’s first plea (based on secondary EU law) failed, the second plea based on Article 2 TEU would also have to fail, as Article 2 TEU itself cannot expand the scope of EU law. In short, according to the Commission, Article 2 TEU can only be enforced when a case already falls within EU law for other reasons.
It is unclear whether the ECJ will adopt this restrictive interpretation. President Koen Lenaerts, in particular, appeared sceptical. During the hearing, he questioned the Commission’s stance, arguing that Article 2 TEU can be relevant outside the immediate scope of EU law, as seen in Article 7 TEU proceedings and in the accession framework under Article 49 TEU. He stressed that the limitation arises from the infringement procedure’s legal structure, not from Article 2 TEU itself. This limitation stems from Articles 258(1) and 259(1) TFEU, which explicitly limit infringement actions to violations of “an obligation under the Treaties.”
Lenaerts’ position aligns with broader trends in EU law. His own writings place Article 2 TEU within the context of EU competences, and recent developments—such as the European Media Freedom Act—demonstrate how fundamental rights are increasingly used to justify EU-level action. A strict interpretation of Article 2 TEU, as now suggested by the Commission, could complicate further expansion of this case law.
The Dogmatic Flaws of Reinterpreting Article 2 TEU as a General Value Clause
The case against Hungary highlights that the debate over the ECJ’s case law on EU values remains far from resolved. Supporters of a broad interpretation of Article 2 TEU may be disappointed by the Commission’s restrictive stance, but they hope the ECJ will continue to uphold its ASJP case law. President Lenaerts himself has called the ASJP judgment a “constitutional moment” for the EU, comparing its significance to Costa/ENEL(C-6/64)and Van Gend & Loos (C-26/62).
Against this background, the following argument sets out a more restrained understanding: the enforcement of the Union’s values through infringement proceedings before the Court of Justice should be subject to two cumulative conditions:
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The case must fall within the material scope of the EU Treaties; and
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There must be a specific provision of Union law that applies—one that can be interpreted in light of Article 2 TEU but not broadened by it.
Regarding the first condition, it is often argued that Article 2 TEU imposes binding obligations on Member States regardless of any specific field of Union law, deriving its autonomous force from Article 49 TEU and applying throughout the duration of EU membership as a general standard of conduct. The Republikkajudgment is cited as evidence that the Court of Justice has accepted such an unconditional, cross-sectoral application of Article 2, particularly through the principle of non-regression. However, this reading fails to align with the structure of primary law. Article 2 TEU does not, by itself, create an independent legal basis for review. It operates only within the limits of the principle of conferral under Article 5(2) TEU, which requires a concrete transfer of competence or a specific obligation in EU law. This is confirmed by the Court’s case law: in N.S. (C-411/10), Aranyosi (C-404/15), L.M. (C-216/18 PPU), and Dereci (C-256/11), value-based scrutiny was always tied to specific legal norms—whether primary or secondary EU law—not to Article 2 in isolation. Even in Republikka, the non-regression duty was not applied autonomously but anchored in Article 19(1) TEU. This approach is consistent with Article 51(1) of the Charter, which limits the Charter’s scope to situations governed by Union law. Article 2 TEU may guide interpretation but it cannot, by itself, extend the reach of EU law or generate obligations in areas where no underlying competence, obligation or legal basis exists. The Commission’s approach in the pending Hungary case confirms this: although invoking Article 2, it explicitly avoided relying on it as a stand-alone claim. In short, Article 2 TEU has interpretive and systemic relevance, but its enforceability always depends on a substantive legal link to Union law—it cannot independently activate the scope of EU law.
Turning to the second condition, some argue that once a case falls within the scope of EU law, Article 2 TEU can be combined with a relatively broad range of Treaty provisions to create binding obligations—suggesting that Article 2 acts as a kind of general clause that strengthens the legal effect of other norms, even if those norms do not themselves impose specific duties on Member States. On this view, broad references to values like democracy or good governance—such as in Articles 10, 12, 197, or 298 TFEU—might be enough to trigger the application of Article 2. But this approach stretches both the structure and purpose of the Treaties. Article 2 TEU is not self-executing; it cannot generate obligations on its own. For it to have legal effect, it must be paired with a specific provision that applies directly to Member States and clearly reflects one of the values it lists. This is why the Court of Justice has consistently relied on Article 19(1) TEU in its value-related rulings: unlike Article 2, it contains a concrete obligation—Member States must ensure effective judicial protection. Other Treaty provisions, like Articles 10 or 298 TFEU, refer to values in general terms but do not create enforceable duties. They are meant to guide the EU institutions, not to bind Member States or justify legal action against them. Even Article 291 TFEU, which requires Member States to implement EU law, respects their procedural autonomy and cannot justify broad value enforcement. In short, Article 2 TEU may help interpret other rules, but it cannot be used to create new obligations unless it is combined with a specific, binding legal norm that already imposes a clear duty on Member States. That is the second key limitation: Article 2 TEU must always be tied to a concrete legal hook—it cannot stand alone or be combined with vague references to values.
Conclusion
From a strictly legal-dogmatic perspective, and setting political considerations aside, Article 2 TEU can be enforced independently only through the specific procedure set out in Article 7 TEU. This is not just because of the material limits of EU law, but because of how the Treaties are institutionally designed. Article 7 represents a conscious choice by the Member States to place the enforcement of Union values—where no specific legal act or EU competence or obligation is involved—in the hands of the Member States themselves, acting collectively through the Council and the European Council. It creates a high threshold, politically accountable process that operates outside the ordinary judicial framework. The role of the Court of Justice in this process is deliberately limited to procedural review under Article 269 TFEU.
This institutional restraint is grounded in the Treaties’ broader separation of powers. Article 19(1) TEU makes clear that the Court’s mandate is to ensure that the law is observed “in the interpretation and application of the Treaties,” and to guarantee judicial protection only “in the fields covered by Union law.” Granting the Court broader constitutional powers—allowing it to derive binding obligations directly from Article 2 TEU, without any connection to concrete provisions of primary or secondary law—would go beyond this mandate and risk altering the institutional balance of the Union without sufficient democratic legitimacy. It also highlights a key difference from national constitutional courts: those courts draw their authority directly from national constitutions and democratic systems; the ECJ, by contrast, derives its authority only from what the Member States have explicitly conferred.
If the Court aims to move closer to the role of a true constitutional court, the ASJP case law nonetheless offers a promising path. The values in Article 2 TEU unquestionably apply to the EU institutions themselves, where the principle of conferral does not stand in the way. Applying Article 2 TEU in that internal context would not only enhance institutional accountability but would also strengthen the legitimacy and acceptance of the Court’s value-based jurisprudence. It would reduce the perception of political selectivity and ground the Court’s authority more firmly within the logic of the Treaties themselves.
Benedikt Riedl, MJur (Oxford), is a postdoctoral researcher and academic assistant at the Chair of Public Law and Political Philosophy (Prof. Dr. Peter M. Huber, former Justice of the Federal Constitutional Court and former Minister) at Ludwig Maximilian University of Munich.
