The Binding Power of European Values in Commission v Hungary

By Anastasiia Sheremok

Article 2 of the Treaty on European Union (TEU) defines the Union’s twelve founding values, such as human dignity, equality, and respect for human rights. In Commission v Hungary (C-769/22), the Court discovered a self-standing violation of Article 2 TEU, stating that these values are legally binding horizontal obligations for Member States.

Such obligations form a part of the Union’s ‘constitutional framework’ (para 520), and define the identity of the Union as a common legal order and apply across all areas of EU law (para 546). The Court clarified that while Article 7 TEU provides a political procedure for addressing ‘serious and persistent’ breaches of values, the Court itself retains jurisdiction to find a failure to fulfil obligations under Article 258 of the Treaty on the Functioning of the European Union (TFEU) if a Member State breaches Article 2 (paras 540-541). 

The judgment should not have come as a surprise. The Court started to form a position that Article 2 TEU is no longer merely a symbolic clause in Repubblika (C-896/19), and later in Hungary v Parliament and Council (C-156/21) and Poland v Parliament and Council (C-157/21). In the latter, the Court stated that as Member States have defined and share the values of Article 2 TEU, they ‘define the very identity of the European Union as a common legal order’. The EU must, therefore, be able to defend them (para 127). The Court cites point 169 of the Opinion of AG Ćapeta to note that the transition from using the term ‘principles’ to ‘values’ in the Lisbon Treaty was a deliberate choice to provide a ‘clear non-controversial legal basis so that the Member States can discern the obligations resulting therefrom which are subject to sanction’. 

When can a State be considered to have breached the obligations imposed on it by Article 2 TEU?

The Court applied a highly specific standard for these violations, creating its own threshold (‘manifest and particularly serious’) and its own boundaries. The Court held that while not every infringement of EU law constitutes a breach of Article 2, ‘only manifest and particularly serious breaches of one or more values’ may give rise to such a violation of the ‘very identity of the Union’ in a ‘society in which pluralism prevails’ (para 551). To assess such a breach of values, violations of various fundamental rights guaranteed by the Charter (para 548) may be used as an indication or, more indirectly, whether the contested state actions constitute a coordinated set of measures (para 553).

The Court uses the AG's Opinion to trace that the violations must be manifest and serious. The central argument of AG Ćapeta is that a breach of Article 2 TEU is not determined primarily by the number or seriousness of violations of EU law or fundamental rights. Instead, the decisive criterion is whether the conduct of the Member State amounts to a negation of the values enshrined in Article 2 TEU, such as democracy, the rule of law, equality, human dignity, and respect for human rights. (paras 237-247). A Member State may commit serious breaches of EU law without necessarily violating Article 2 TEU. States can incorrectly implement directives, breach internal market rules, or even violate Charter rights without rejecting the constitutional foundations of the Union. The relevant question is therefore not simply whether violations are severe, but whether they reveal a rejection of the values underlying the EU constitutional order. Regrettably, the Court has not clarified in this judgment what is to be understood by a ‘manifest violation’ of the values in the abstract, merely noting that Hungary’s actions fell within this category. 

In this case, the Court reviewed the Hungarian Act LXXIX of 2021 on ‘tougher action against paedophile offenders and amending certain laws to protect children’ (the ‘Child Protection Act’). This anti-LBGTI law prohibited minors from accessing any content about LGBTI people and LGBTI rights. The Court found that the law met the threshold because it:

• Stigmatised and marginalised non-cisgender and non-heterosexual persons solely based on their identity.

• Associated LGBTQ+ identities with paedophilia in a binding legal act, which the Court found violated the value of human dignity.

• Undermined the social visibility of a specific minority group, running counter to the values of equality and respect for human rights (paras 554-556).

What about national identity?

Hungary argued that it had a margin of assessment under Article 4(2) TEU regarding its national identity and the protection of children. In response, the Court ruled that Article 4(2) TEU protects only a view of the national identities that is consistent with the values enshrined in Article 2 TEU (para 562). Because the Hungarian legislation was found to be ‘manifestly and particularly serious’ in its breach of human dignity and equality, the state could not validly rely on its national identity as a justification.

The judgment has already faced criticism. Georgios Athanasiou argues the Court should have reached the same result through balancing and proportionality, rather than collapsing the national identity clause into a residual defence that always loses to Union values. In his view, both provisions are equally part of EU primary law, and the Treaties do not claim that one is superior to the other. Therefore, the Court should have balanced EU values against national identity rather than immediately dismissing Hungary’s Article 4(2) TEU argument upon finding a breach of Article 2 TEU. His real concern is the precedent: future cases may involve more difficult conflicts between EU values and national constitutional identity, and the Court’s approach leaves almost no real role for Article 4(2) TEU.

Conclusion

With this ruling, the Court opened Pandora's box, after which EU constitutional law will likely no longer be the same. Now, actions of the Member States may be reviewed specifically on the basis of the common values defined in Article 2 TEU. Although it is still difficult to fully understand the consequences of this landmark judgment, it will undoubtedly have a big influence on how EU law develops in the future.