There is an unmistakable common thread between the insightful contributions to this symposium so far. When discussing the relationship between Art. 2 TEU values and European society, several authors highlight, in one way or another, a tension between descriptive claims and normative aspirations (see also Gerstenberg, Piep, Zaleski and Höpner). This tension was perhaps most sharply captured by the late Jürgen Habermas as a dialectic between facts and norms.

For Habermas, the relationship between facts and norms is fundamentally about law’s democratic legitimacy: Valid law must be simultaneously a social fact (people follow it, institutions enforce it) and a normative claim (it is justifiable to those it binds, because it emerged from deliberative-democratic processes). The gap between the two – i.e., the fact that positive law claims normative authority it has not always earned through genuine, inclusive deliberation – is the permanent, productive dialectic that drives democratic legal orders. EU law makes no exception in this regard. This becomes particularly evident when looking at thejudgment in Commission v Hungary and the relationship the Court establishes between the EU legal order, its founding values, and European society.

Pluralism Between Facts and Norms

To evidence the dialectic between facts and norms in relation to Art. 2 TEU values, let’s look at pluralism – the Art. 2 TEU value which the Court most explicitly and repeatedly links to European society, invoking the phrase “a society in which pluralism prevails” four times in Commission v Hungary. On a descriptive level, European society – irrespective of whether one understands it as the sum of Member States and their peoples or something more than that – indeed harbours people with different beliefs, cultures, languages, political views, as well as different sexual orientations and gender identities. This “fact of pluralism”, to borrow from Rawls, seems uncontroversial. Not even the Orbán government denied that pluralism and diversity in relation to gender and sexual orientation exist. What the so-called Child Protection Law did evidence, however, is a conflict over the normative status of pluralism. Indeed, the very finding of an infringement in Commission v Hungary means that Art. 2 TEU values, like pluralism, do not unequivocally prevail in European society.

There is, in fact, deep disagreement within European society as to whether pluralism, including in relation to gender and sexual identity, ought to prevail – in other words, whether all views and forms of life should be treated equally. While 72 percent of Europeans are, according to a 2023 Eurobarometer, in favour of equal rights for LGBTQ+ people, these numbers are aggregate ones. The same study shows a significant difference among Member States. Most people in Bulgaria and Romania even oppose equal treatment, for instance when it comes to same-sex marriage. These fault lines regarding the normative status of pluralism in European society also exist internally within national societies, best illustrated by the case of Hungary itself. On the one hand, the Child Protection Law faced significant opposition domestically, with LGBTQ+ advocacy groups mobilising against a controversial referendum and acting as central legal entrepreneurs in the context of Commission v Hungary. On the other hand, several commentaries around the Hungarian elections (see here, here and here) noted that Peter Magyar deliberately did not campaign on LGBTQ+ rights, emphasising that this strategic choice was key for securing the support of conservative voters in more rural areas.

The assertion that pluralism “prevails” in European society is thus partly accurate and partly counterfactual. What does this mean for the legal normativity of Art. 2 TEU, which the Court has established with Commission v Hungary? The empirical accuracy regarding whether and which of the Art. 2 TEU values prevail, and whether they do so in the whole or only in parts of European society, may not matter for the provision’s legal authority, narrowly speaking. Yet, they may well matter for the broader legitimacy and effectiveness of EU values enforcement.

Habermas himself famously praised (early) EU law as an example for how legitimacy can sustain a legal order without coercion (see here). What mattered most to him, however, was whether the people subject to EU law can reasonably regard themselves as its co-authors. In this light, there is a possible reading of Art. 2 TEU and the Court’s interpretation of the latter, which approximates facts and norms. One could read the reference to “a society in which pluralism prevails” – be it in Commission v Hungary or in the second sentence of Art. 2 TEU itself – as effectively saying “A majority of people within European society have democratically established that pluralism ought to prevail”. Yet, is this a tenable understanding?

European Society and the Problem of Democratic Authority

To answer this question, let’s consider the “full” half sentence in Paragraph 551 of Commission v Hungary. When justifying the enforceability of Art. 2 TEU, the Court asserts that its values form part of  “the very identity of the EU as a legal order of a society in which pluralism prevails”. This effectively presents EU law as the institutional embodiment of European society and its founding values as the authoritative expression of that Society’s character, perhaps even its volonté générale. In other words, the Court casts Art. 2 TEU as the legal articulation of what European society fundamentally is, which, in turn, is meant to justify its enforcement. Here, the dialectic between facts and norms comes into focus again. For Habermas, what would be crucial for the legitimacy of this assertion is the possibility to, first, reconstruct that Art. 2 TEU values have been expressed in and by European society and, secondly, consolidated into law through an open and inclusive, deliberative process. However, precisely this question of democratic authority regarding EU values remains a difficult one – possibly one where the concept of European society reaches its limits.

The Court now embracing the concept of European society can be understood as a distinct legitimisation attempt; a normative anchor for the Court as it navigates the difficult terrain of values enforcement at the supranational level. Indeed, in his contribution to this debate, Armin von Bogdandy even raises the possibility that the concept of European society could, in time, provide a normative surrogate for the EU’s unresolved question of constituent power – while acknowledging that the normative foundations for such claim have yet to be laid. At the same time, his understanding of European society is decidedly not that of an actor – which means that it also cannot possess democratic agency.

European society is thus better perceived as a “normative referent” (see also the forthcoming contribution to this symposium by Piep) than as a distinct agent who can endow the Court’s interpretation of EU law and its founding values with democratic legitimacy. While correctly pronouncing the views held by (a majority of) European society may enhance the perceived legitimacy of the Court’s enforcement of Art. 2 TEU values within that society, it is, from a Habermasian perspective, decidedly insufficient on a structural level. Rather, Art. 2 TEU would have to be reasonably perceivable as co-authored through an open and inclusive, deliberative-democratic process, be it by European society or any other collective singular – a claim which is difficult to sustain. The provision emerged from elite political consensus at accession and Treaty revision moments, with limited popular participation. Accordingly, the concepts that ended up in the legal text of Art. 2 TEU – as representative as they may be of European society – remain the product of political bargaining and the contingencies that come with it. From a Habermasian perspective, this lack of procedural legitimacy matters. While the suggestion that European society (re)generates EU law and shapes Art. 2 TEU values through an array of different, dispersed processes and institutions is definitely tenable, this remains too diffuse for the reflexive criterion of democratic legitimacy, namely that the subjects of EU law must be reasonably able to perceive themselves as its co-authors.

Finally, a Habermasian reading of Paragraph 551 also puts the Court’s appeal to an EU (constitutional) identity in a critical light. If EU law is the legal order of European society, the Court’s identity claim ultimately extends to the whole of European society as well. This move might be the most problematic one, precisely on the value of pluralism, which the Court emphasises in this context. For Habermas, pluralism is first and foremost a procedural precondition for a genuinely democratic discourse; only a society that protects diverse voices can generate the deliberative processes through which legitimate law is produced. Pluralism, in this view, is better understood as a claim regarding “how we decide together” than as an assertion about “who we are”. Yet, if we perceive pluralism along Habermasian lines as primarily a procedural condition, then even those who reject it as a substantive value remain part of European society and its discourses.

This evidences a problem with the Court casting Art. 2 TEU values, including pluralism itself, as identity markers of EU law as the all-encompassing legal order of European society. Linking the EU’s identity to “a society in which pluralism prevails” implicitly prescribes a substantive, pro-pluralistic stance as a condition for identifying with European society and, consequently, as an entry barrier to its discourses. The Court’s frequent invocation of identity in relation to Art. 2 TEU thus threatens to narrow the deliberative space in which European society, including Hungarian society in this case, might work through its own disagreements.

Restoring Democracy, Preserving Contestation

I argued that Commission v Hungary illustrates a dialectic between facts and norms in the enforcement of Art. 2 TEU values. It has made this argument on the example of pluralism, the value which the Court most explicitly associates with European society in this case, illustrating how it oscillates between a legally binding norm and a (partly counterfactual) claim about European society and the attitudes that “prevail” within the latter. I further argued that a potential appeal to European society as an ultimate source of authority for the Court’s values jurisprudence, as well as its linking of pluralism to identity, are difficult to reconcile with Habermasian standards of democratic legitimacy.

At the same time, I doubt that Habermas would have disagreed with the substantive outcome of the case. Rather, he would probably have perceived Commission v Hungary as drawing legitimacy from its restorative intervention into a dysfunctional democratic process at the national level, which negatively affects European democracy as well. By stigmatising and marginalising LGBTQ+ persons, as the Court affirmed in its findings, the Hungarian Child Protection Law ultimately undermined their public status and ability to take part in democratic discourse on equal terms.

This becomes even more evident when putting the case in the broader contextual picture of advanced democratic regression and a hollowed-out public sphere in Hungary – conditions under which meaningful democratic deliberation, including about the meaning and status of pluralism itself, cannot take place to begin with. Also in this regard, Commission v Hungary arguably had a positive surrogate effect, given the high visibility of the proceedings and significant civil society mobilisation around them.

Yet, this should not obscure the lack of a structural, pan-European democratic deliberation on the role and meaning of Art. 2 TEU values. In this light, both the Commission and the Court ought to tread carefully as to when they choose to engage in values enforcement, and if they do so, commit to ensuring that the proceedings open more deliberative space than they foreclose.

I am grateful to Silvia Steininger, Jasper Siegert and Armin von Bogdandy for their helpful comments on an earlier draft. The usual disclaimer applies.