Added value(s)?

During the hearing in the infringement proceedings against Hungary’s ‘anti- LGBTIQ+ Law’, the Commission placed the values of the EU at the heart of its pleas. In doing so, it banked the support of 16 Member States. Both are welcome developments. These proceedings, however, are also a reminder of the inherent limitations of the Union’s legal system, where (supra)national politics has failed.

The focus of this infringement action is a Hungarian law which seeks to prevent children from accessing any media representation of homosexuality, sex reassignment, and of people who identify with a gender different to the sex they were given at birth.

Following its publication in the Official Journal, some expected (while others feared) that the Commission’s infringement action would rely on Article 2 TEU (which set out the values of the EU) as a self-standing ground. Instead, during the hearing, the Commission’s representatives were adamant that Article 2 may only be invoked in connection with other EU law provisions. That is a welcome clarification. Grounding an infringement action solely on Article 2 would be unwise. Yet, the inclusion of these values among the pleas is legally, politically, and morally significant.

The dangers of relying on values as self-standing grounds

It is axiomatic that values have legal significance. This much is clear from their inclusion in Article 2 TEU. Yet, they do not wear their meaning on their sleeve – their content emerges from a process of gradual specification, driven by fundamental political choices, which are in turn influenced by deeper social forces. At EU level, these choices are expressed in primary and secondary legislation. To rely on the values of Article 2 TEU as stand-alone ground would therefore not only amount to judicial overreach into political territory; it would also be unwarranted, given the existence of numerous provisions that can be drawn upon in conjunction with Article 2. Even more worryingly, it would risk dragging the Court into the culture warriors’ home turf, a space where different values, or conceptions of values, could be pitted against one another in zero-sum juxtaposition. Any sensible court would steer clear of this possibility.

It is true that the Court relies on fundamental values to shape its interpretation of Union law. Take, for instance, the Court’s decision almost two decades ago to the effect that discrimination on grounds of sex includes gender reassignment. That interpretation drew on the values of dignity and freedom. Yet, it was firmly grounded in primary and secondary legislation. Values, in other words, justify interpretive choices, but are not per se actionable.

A matter of law…and morality

Once it is understood that Article 258 TFEU actions based on Article 2 TEU have to be fastened on to other legal provisions, it becomes clearer that the role of Article 2 is not just legally but also morally salient. As the Commission argued, reliance on Article 2 TEU serves to highlight the severity of the infringement, a matter which may be taken into consideration in the context of determining the fine should Article 260 TFEU come into play. However, there is also a moral dimension to invoking Article 2. The lack of coercive powers to secure the implementation of EU law means that compliance by the Member States is ultimately voluntary, and – crucially – it is underpinned by their ongoing commitment to a shared morality. By stating that Hungary has committed a serious, persistent, and systematic infringement of the values of Article 2 TEU, the Commission is effectively pointing to the moral duplicity of the Hungarian Government’s position – benefiting from membership of an organization whose values it claims to share but no longer respects.

A distinct moral dimension is also at play in relation to the essence of fundamental rights, a notion which was alluded to at various points during the hearing. As argued elsewhere, reliance on the essence of a fundamental right enables the Court to set the boundaries of legitimate constitutional argument. Arguments that seek to justify a breach of the essence of a fundamental right are per se illegitimate. This is illustrated by the Hungarian law’s breach of Article 21 of the Charter, the right not to be discriminated against. As the Commission noted, since the impugned legislation singles out LGBTIQ+ persons and stigmatises them for who they are, it seems obvious that the essence of that right is compromised. Once this is established, any justification is debarred, thus pre-empting the airing of morally repugnant justificatory arguments.

Competence and democracy

At several points during the hearing, the question was raised whether Article 2 TEU, specifically the value of democracy, could be relied on to address a situation that fell outside the EU’s exclusive/shared competences. Judge Ziemele asked whether the Commission should frame its action along the lines of a “self-defending democracy”, while the President of the Court conjured up the scenario of a military coup. Anxious not to be seen to advocate trespassing into the territory of Member State competence, the Commission batted these suggestions away, sticking instead to the line that there is a clear distinction between the political mechanism of Article 7 TEU, which is capable of addressing breaches of Article 2 TEU values in areas of Member State competence, and the legal mechanism of Article 258 TFEU, which is confined to breaches within areas of EU competence. That view deserves a qualified welcome.

Competence is both a legal concept and a snapshot of the current political consensus. To extend the reach of Article 2 TEU values beyond the competences of the Union would be to extend that political consensus by judicial fiat, ignoring the general import of Article 5 TEU (in the absence of explicit conferral to the EU, competences remain with the Member States). However, questions of competence are not always hard-edged and binary. This is certainly the case when it comes to Article 2 TEU. Since that provision does not expressly delimit its application to areas of EU competence, it is not unthinkable that the Member States may, in the future, support the Court in an expansive interpretation of Article 2 in conjunction with other provisions.

Given the symbiosis between EU institutions and national institutions, it is arguable that Article 10 TEU may play a similar role in relation to democracy to that played by Article 19(1) TEU in relation to the rule of law after Portuguese Judges. This development, however, would be qualitatively different and far more controversial than relying on Article 19 TEU. While, to put it crudely, the upshot of the Portuguese Judges approach was that the Court took it upon itself to protect the integrity of the EU’s legal system, if the Court was to go down the equivalent route in relation to Article 10 TEU, the upshot would be that a judicial body would take it upon itself to defend the integrity of the EU’s political system. For the here and now, as was confirmed during the hearing, the consensus for such a radical move does not exist.

What is more, an Article 258 TFEU action would be rather futile in an extreme scenario such as the one adumbrated by President Lenaerts. One would, instead, hope that a military coup in a Member State would prompt all other Member States to coalesce around a more drastic solution, such as suspension under Article 7 TEU, or even expulsion by virtue of Article 60 of the Vienna Convention on the Law of Treaties. Nonetheless, in this or in less extreme scenarios, the EU would not intervene to save national democracy, but to protect itself from its failings.

Shutting the stable door after the horse has bolted

All of this leads to some sombre considerations. The Hungarian law entered into force in 2021. Whatever the Court decides, its ruling will come four years after that. As every EU lawyer knows, centralised enforcement is not a tool for enforcing individual rights. It is designed to operate at the macro level. Yet, as every EU lawyer also knows, it is also supposed to be complemented by enforcement at the decentralised, micro, level (though, of course, the rule of law crisis has put paid to this form of enforcement). Important though it will be, the ruling will come as meagre consolation to all those affected. The horse bolted long ago.

Lessons learnt?

Whether the Commission’s actions will dissuade other Member States from drawing on the Hungarian playbook remains to be seen. For now, the signs are not encouraging. Take, for instance, the decision of the Italian Government not to propose that Judge Rossi’s mandate at the Court of Justice be renewed, in breach of a long-standing practice among Italian Governments to renew judges at the end of their mandate even if – as often happened – they had been proposed by a government of a different political persuasion. The trouble with this decision is that it may be perceived (see here and here) as being due to a judge’s lack of alignment (whatever that may mean) with the current Government’s political orientation. This may seem like an insignificant episode, but it speaks to the kind of disregard for constitutional propriety which is one of the hallmarks of incipient democratic backsliding. It is also a reminder of the vulnerability of the EU’s institutional system to the constitutional culture and practices of national executives. If governments regularly approached the renewal of the mandate of a judge as a party-political matter, the legitimacy of the Court would undoubtedly suffer.

This is to say that while commentators (and the Commission) focus on the bigger picture, and on the dramatic vistas opened up by the case discussed here, they should not lose sight of the cumulative and incremental impact of developments at a more granular level. Of course, the EU cannot (and should not) enforce constitutional propriety at national level. However, the Commission should watch these episodes very closely . After all, the kind of developments targeted by Article 7 TEU do not come as a bolt from the blue.