Constitutional Awakening of Values

On 5 June 2025, AG Ćapeta delivered her opinion in case C-769/22, raising a pivotal question for the EU’s constitutional future: Can Article 2 TEU serve as a standalone provision in infringement proceedings?

While the issue has sparked debate – including on this blog (here and here), this post defends the Opinion as a constitutionally coherent and necessary step to safeguard the Union’s foundational values (against Kaiser). It argues that AG Ćapeta’s approach is firmly rooted in existing case law (agreeing with Athanasiou) and offers a compelling legal framework to address democratic backsliding. The post focuses on her use of the “good society” concept and the proposed “negation of values” test, examining their normative grounding and practical significance within EU law.

Justiciability of Article 2 TEU and the dimension of a “good society”

“Article 2 TEU expresses the choice of the founders of the European Union as to the type of society that the Member States have pledged to create together (…) a good society (…) expressed in Article 2 TEU.”

With these words, AG Ćapeta began her discussion on the justiciability of Article 2 TEU, emphasizing the fundamental role this provision plays within the EU legal order (paras. 155–157). She underlines that without respect for Article 2 TEU, the EU would cease to be the Union as envisaged by the Treaties (paras. 156–163).

Kaiser has expressed concern that invoking the concept of a “good society” may introduce elements of moral subjectivity into legal reasoning. But this critique risks missing the point of Ćapeta’s argument. She does not propose to turn legal discourse into ethical prescription. Instead, she recalls that the EU rests on a shared moral and political vision – one built on dignity, equality and freedom.

The term “good society” does not obscure the clarity of EU law; it reflects the purpose-driven nature of Article 2 TEU. This orientation is deeply embedded in the Union’s constitutional DNA. Already in the Schuman declaration, the Union’s founding vision implicitly referred to the shared ideals of peace, solidarity, and cooperation, which laid the moral and political foundations for a value-based Union. Later, the Treaty of Maastricht, the Constitutional Treaty and the Treaty of Lisbon endorsed this idea by explicitly incorporating values into the EU’s constitutional framework. The notion that such values are both endogenous to the EU and serve as the cohesive force of European society has long been supported by a significant part of the legal scholarship (see, e.g., Hohlmeier Monika or ex Judge Rossi’s remarks).

Furthermore, this idea finds its strongest legal basis in Article 49 TEU, which governs the accession procedure (see, e.g., . Lenaerts, Hillion, and here). As AG Ćapeta rightly notes, only states committed to the values enshrined in Article 2 TEU can join the Union – and that commitment must continue after accession (paras. 182–185). Accession thus entails not only rights and benefits, but a lasting obligation to remain part of the EU’s constitutional value-based society. In the face of targeted discrimination – as in the present case – referring to shared constitutional foundations is not abstract; it is legally necessary.

Building on this foundation and more than a decade of the Court’s jurisprudence (ASJP, L.M., Conditionality judgment against Hungary, Conditionality judgment against Poland, Repubblika but also see most recent judgement Commission v. Malta and Real Madrid), the AG briefly dismissed the main objections to the justiciability of Article 2 TEU (paras. 199 – 224). In doing so, she elevated Article 2 TEU to a constitutional cornerstone that holds the EU legal order together. The AG then turned to address what may be the Opinion’s most intriguing question: how should the Court assess whether the “red line has been crossed”, i.e. whether the breach of Article 2 TEU has occurred (para. 234).

The duck test

One of the Opinion’s most provocative contributions is what could be called AG Ćapeta’s “negation of values” theory. She argues that breaches of fundamental rights do not in themselves violate Article 2 TEU. Rather, these breaches become serious and systematic when they stem from a rejection of the values enshrined in Article 2 (para. 241). In determining such breaches, AG proposes a case-by-case analysis (paras. 243 – 244).

It has been argued that this approach lacks precision and risks judicial overreach. However, quite the contrary: AG Ćapeta’s test does not abandon legal standards but rather rejects rigid formulas in favor of a more contextual interpretation – one that aligns with the Court’s most recent approach. Ćapeta’s formulation is both prudent and principled: not every breach of fundamental rights amounts to a violation of Article 2 TEU, but when such violations are rooted in the intentional dismantling of the Union’s value order judicial intervention becomes both legitimate and necessary.

This approach resembles the path the Court ultimately took in KS and KD. There, the Court introduced the “Political question doctrine “ but gave little guidance on how to distinguish political choices from legal violations. While this vagueness can be subject to criticism (see, e.g., here or here) it also pushes back against long-standing accusations of judicial activism (see, e.g., here or here), indicating a shift toward judicial minimalism. Rather than defining rigid criteria for untested cases, the AG and the Court focus on the dispute at hand. In doing so, they respect the constitutional boundary, remaining faithful to their role as interpreters, not architects, of the Treaties

Some argue that Ćapeta’s test relies on vague notions of “constitutional morality.” Yet the concept of “negation” can be practically assessed. Legislative intent, political discourse, and structural reforms all indicate whether a Member State is deliberately abandoning EU values.

“Red line” v. “Constitutional dialogue”

AG Ćapeta accepts that differing interpretations and balancing of fundamental rights may fall within the bounds of constitutional dialogue and therefore not necessarily breach Article 2 TEU (paras. 248 – 253). This view aligns with the Charter’s pluralistic order. But it raises a key question: how can we distinguish between value-negation and constitutional dialogue?

As Ćapeta emphasizes, Article 2 TEU establishes “a red line” (para. 212). Breaching Article 2 TEU requires more than disagreement; it requires undermining the entire value framework. Such breaches are, by nature, exceptional and obvious. While the assessment may appear to be in the eye of a beholder, the breach will be identifiable. Meaning, a breach will arise in cases like the one at hand — where the metaphorical duck test applies: If it looks, swims, and quacks like a duck, the situation must be addressed for what it is: a violation of the EU’s value structure. It is no longer a matter of constitutional dialogue.

Not just a systematic deficiency: A deliberate negation

The “negation of values” test proposed by AG Ćapeta marks a paradigm shift in how constitutional violations under Article 2 TEU are identified. The traditional “systemic deficiency” framework often focuses on the effects of a state’s conduct: persistent breaches of secondary legislation, violations of fundamental rights, or patterns of non-compliance. This is a consequentialist approach, which asks: What damage has been done to Union law? How widespread or persistent are the breaches?

In contrast, Ćapeta’s “negation of values” test calls for an etiological or symptomatic analysis. She proposes a symptomatic analysis that looks beyond legal infractions to the constitutional mindset of the Member State. Is the state rejecting the shared value system it once endorsed? Is the breach rooted in a principled refusal to uphold the Union’s core commitments?

This approach carries several positive implications for the future of the Union’s legal order. It considers “the bigger picture”. It asks the deeper question: Is the Member State still participating in the common constitutional project of the EU? If not, even limited breaches may justify intervention under Article 2 TEU. Such an approach guards against superficial or strategic compliance. Ćapeta’s model avoids treating violations as merely “a matter of numbers.” Backsliding is not always gradual or procedural; it can be abrupt and immediate. By focusing on negation rather than deficiency, her test is better equipped to capture those moments when a Member State crosses a foundational line, regardless of how many Treaty articles or directives happen to be breached along the way.

Conclusion

AG Ćapeta’s opinion is a culminating point of the Court’s value-driven jurisprudence. A bold articulation of what the EU aspires to be. It offers a compelling doctrinal path toward the direct justiciability of Article 2 TEU, one that reinforces the Union’s self-conception as a community where values are not merely declared but judicially protected. Whether the Court will follow her path remains uncertain, but the Union’s future may well depend on it.