European Society Strikes Back

“This is a frontal and deep attack against the … European society.” With this remarkable statement the Commission’s representative Klára Talabér-Ritz opened her pleading in what has been described as “largest human rights battle in EU history”: the infringement proceedings against the Hungarian anti-LGBTIQ* law. The Commission claims that this law breaches several provisions of the internal market, a set of Charter rights and – at the action’s centre – the Union’s common values enshrined in Article 2 TEU. The long-awaited “mega hearing”, which took place on 19 November 2024, stands thus at the summit of a development that started with the Portuguese Judges case and that is now facing its ultimate test: can the Member States’ compliance with Article 2 TEU be reviewed before the Court of Justice?

This would be a crucial step to remedy actions affecting the very fabric of European society. And indeed, looking across the cramped Grande Salle on 19 November one could not escape the impression that the vast majority of this European society was assembled behind the Commission’s plea – represented by the unprecedented interventions of 16 Member State governments, the European Parliament and civil society organizations. As such, Hungary stood trial not only before the Luxembourg judges, but before European society at large. Several Member States stressed that the Hungarian actions were not confined to that single state. As the Dutch representative put it: “This affects all of us in the European society”. In this spirit, European society seems to strike back by taking an unprecedented path: embracing Article 2 TEU.

United in diversity?

Since the Portuguese Judges case the justiciable character of Article 2 TEU was controversial. With the rule of law conditionality judgments, the Court affirmed that Article 2 TEU in fact contains legally binding obligations (see here para 232). This case law was embraced by all intervening Member States in the present hearing. Thus, the question seems to be no longer whether but how the provision can be invoked before the Court.

At first glance, the Member States appear as a united front behind the Commission’s claim. When it comes to the nitty gritty, however, the individual pleadings revealed many different views. In this sense, the hearing gave the Member States the opportunity to step out the Commission’s shadow and articulate their own views, aspirations, concerns, and fears. These concerned in particular how to invoke Article 2 TEU (“justiciability”), how to assess a breach (“what test?”) and how to delimit its potentially far-reaching effects (“what limits?”).

Justiciability

Even though the notions employed by the Commission, Parliament, and intervening Member States varied to a considerable extent, they can be grouped in two different camps. On the one hand, the Commission, supported by Belgium, Estonia, Germany, Luxembourg, Malta, and Sweden seemed to expressly consider the possibility of applying Article 2 TEU as a freestanding provision (or in the words of the Member States’ representatives: “self-standing”, “stand-alone”, “autonomous”, “independent”, “separate”). The Commission brought Article 2 TEU as a self-standing ground. Moreover, the Belgian representative suggested “une utilisation de l’Article 2 TEU comme possible fondement unique”. Ralf Kanitz, representing Germany, pleaded that Article 2 TEU could be invoked “separat, also in einem eigenen Klagegrund”. Further, Daniel Sarmiento argued for the Maltese government that Article 2 TEU can be invoked as an “autonomous ground of review” in infringement proceedings.

However, it should be stressed that most of these pleas were made subject to certain conditions (see below). From the outset, the Commission did not base the infringement procedure solely on Article 2 TEU but on a “cascade” of provisions, ranging from specific rules in the internal market context, over Charter rights to the values in Article 2 TEU. Similarly, Luxembourg’s representative emphasised that the approach in this procedure resembled “une échelle d’escalade” from specific to general obligations, while both Luxembourg and Germany stressed that Article 2 TEU can – only? – be invoked as “moyen additionnel” or “zusätzlich” and thus in addition to other violations of EU law.

On the other hand, Denmark, Ireland, Greece, the Netherlands, Finland, Spain, and the Parliament pleaded for a combined approach. Andras Tamás, representing the latter, underlined that Article 2 TEU cannot be invoked in a “fully distinct manner” but only “in connection with other provisions”. Similarly, the Netherlands emphasized that Article 2 TEU “cannot be invoked in isolation” but presupposes one or more provisions of EU law that give concrete expression to one of its values. Ireland stressed in this context, that it sees no reason to depart from the Court’s already established, combined approach, which it considered “entirely adequate”. The Greek representative advanced a slightly different proposal suggesting an interpretation of specific provisions of EU law “in the light of Article 2 TEU”.

What test?

Accepting Article 2 TEU’s justiciability – freestanding or combined – raises the question of when these values are breached. The Commission departs from the drafter’s will to include in Article 2 TEU only those principles that are “so fundamental that they lie at the very heart of a peaceful society practising tolerance, justice and solidarity”. As such, not any kind of breach can reach the threshold of Article 2 TEU. Against this backdrop, the Commission proposes a twofold test. The two cumulative conditions for establishing a breach of Article 2 TEU consist of qualitative and quantitative elements revolving around the “serious” and “systemic” nature of the breach.

First, there has to be a particularly serious breach of Union law, which can be assessed by considering the intensity of a violation, its breadth, and scope. Intensity means that a right is curtailed in a very intrusive and serious manner. In this context, a violation of a Charter right’s essence protected by Article 52 (1) of the Charter can be indicative but is not a necessary precondition. Instead, a lack of intensity can be compensated by the breadth and scope of a violation. A breach is broad, when several aspects of a right’s enjoyment are interfered with. Its scope refers to the number of instances and fundamental rights breached. Second, the Commission claims that the violation must have a systemic character. The breach must transcend individual violations and be the reflection of a widespread and coordinated policy that goes to the very fabric of society.

Finally, the Commission suggests a holistic approach, involving a comprehensive and context-sensitive assessment. Under such an assessment, even simple and isolated breaches of fundamental rights can, if taken together, indicate a systemic deficiency and point to a deeper, more profound violation of Union law reaching the threshold of Article 2 TEU.

All intervening Member States, along with the European Parliament, expressed support for the Commission’s holistic, twofold approach. Germany, for instance, stressed that it follows the Commission “Wort für Wort”. Differences between the positions were limited to nuances. For instance, the first condition is referred to as “seriousness” by the Commission, Spain, Luxembourg, and the Netherlands, as “gravité” by Belgium, or a “significant breach” by Malta. Similarly, the second condition is described as “systemic” by the Commission, Spain, Luxembourg, Malta, and the Netherlands or as a “structural” breach by Estonia and Finland, without changing the content of the test.

Only two interventions, from Belgium and Germany, merit particular attention as they sought to further refine the test. Belgium proposed drawing an analogy to Articles 17 (prohibition of abuse of rights) and 18 (limitations on the use of restrictions on rights) of the ECHR to assess the seriousness of a breach. This approach aims to restrict the application of Article 2 TEU as a “weapon” to extreme cases. Germany, on the other hand, suggested focusing on the “Kernbereich” or “Wertekern” of each value, meaning those essential elements of a value that warrant the highest level of protection. In this context, Germany expressly alluded to the Ruiz Zambrano case.

What limits?

The justiciability of Article 2 TEU might severely affect the Union’s federal balance to the detriment of the Member States’ autonomy and pluralism. The values’ impact on the Member States’ legal systems is potentially far-reaching and, due to their open and indeterminate nature, difficult to foresee. This was stressed by several Member States, especially Greece, Germany, and Malta. Daniel Sarmiento, for instance, noted that the values are so open that they could accommodate even “conflicting world-views”. Thus, the provision must be accompanied by further guarantees for the Member States. Also, the German government stressed the need to limit an “ausufernde Anwendung von Art. 2 EUV”. Put differently: “Die Mitgliedstaaten müssen wissen, woran sie sind”.

In this spirit, many judges, such as President Lenaerts or Stéphane Gervasoni, asked, whether violations of EU values beyond the scope of any other EU law could be brought before the Court of Justice. This might concern abuses of urgent legislative procedures or states of emergency in violation of the principle of democracy or even a military coup in a Member State.

During the hearing, two possible avenues to limit Article 2 TEU were discussed. To start with, several Member States suggested that the substantive obligations contained in Article 2 TEU should be limited either to the scope of other EU law or the Union’s competences. The German representative Ralf Kanitz, for example, argued that a direct infringement of Article 2 TEU can only be “invoked separately when the scope of EU law has already been opened”. The Maltese government argued that Article 2 TEU can only serve as yardstick for review, when the respective national acts are “directly connected” with an area of exercised Union competences or when they affect the proper functioning of the Union’s institutions and procedures. The Greek representative also stressed that Article 2 “cannot lead to an extension of the competences of the Union or the scope of Union law”.

Surprisingly, the Commission’s statements shifted somewhere between a limitation in scope and competences. While Daniel Calleja, Director General of the Legal Service, stated that the values “have to be linked to the provisions of the Treaties”, he further stressed that “there needs to be a link to the competences – always”.

What to make of these two limitations? With regard to the limitation from scope, Advocate General Capeta pointed out during the hearing that Article 2 TEU does not contain any restriction similar to Article 51(1) of the Charter or Article 19(1)(2) TEU, which only apply to the Member States once they act within the “scope” of or the “fields” covered by EU law. So why does a breach of Article 2 TEU need to be connected to the breach of another provision of EU law? Also, with regard to the limitations from competences, the Advocate General identified inconsistencies with the Court’s established case law. Confronted with the overhaul of the Polish judiciary, the Court decided that “although the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law”. This approach is not unique to the organisation of the national judiciary but can be found in practically all areas of sensitive Member State competences, including criminal law, extradition, direct taxation, nationality, surnames, and civil status. So, again, why should Article 2 TEU be any different? Further, both approaches seem to neglect, as President Lenaerts and Advocate General Capeta noted, that under both Article 7 TEU and 49 TEU the Union’s values can be applied to the Candidate or Member States’ legal systems in their entirety.

Wondering how to understand the suggested limitations then, President Lenaerts intervened providing a possible way forward. Rather than limiting the substantive obligations contained in Article 2 TEU itself, he understood the Commission as suggesting to restrict its procedural enforcement under the infringement procedure. It is hardly surprising that this corresponds exactly to the President’s previous writings (see here at p. 774). This direction présidentielle received immediate support not only from the Commission, but also from the German and Spanish representatives in their closing statements. Within the framework of Article 258 TFEU, a breach of Article 2 TEU can only be invoked within the scope of other EU law. Beyond the scope of EU law, only the procedure under Article 7 TEU remains available.

Yet, is this path any more convincing? Article 258 TFEU refers to the failure to fulfil “an obligation under the Treaties” – without any qualification. If Article 2 TEU contains a justiciable, legal obligation, then limiting its enforcement under Article 258 TFEU to the scope of other EU law seems difficult to square with that provision. A sound way to restrict Article 2 TEU to the scope of other EU law is by applying the combined approach mentioned before. If Article 2 TEU needs to be given more specific expression through other provisions of EU law, then it seems only logical that the values in Article 2 TEU are somewhat restricted to the scope of these provisions, even if their connection to a value might justify a broader interpretation (some call this a mutual amplification). If, however, the Court were to accept a truly freestanding application of Article 2 TEU, any limitation of its enforcement – either to the scope of other EU law or the competences of Union institutions – seems difficult to justify.

What added value?

Finally, the Commission was asked by the Advocate General: “What did you expect to gain from Article 2 TEU?” While Daniel Calleja rejected the need for any reasons beyond finding a failure to fulfil an obligation under the Treaties, the Commission’s closing statement clearly articulated the added value of invoking Article 2 TEU in infringement proceedings.

First, Article 2 TEU has a signaling function. It clearly demonstrates that we witness a violation beyond the ordinary acquis and its day-to-day application: the measures under review strike to the very fabric of European society. Second, Article 2 TEU can have an impact on sanctions. Establishing a violation of Article 2 TEU justifies higher fines under subsequent Article 260 TFEU procedures should the Member State in question not comply with the previous judgment. This impact has been recently demonstrated: the Court ordered Hungary to pay an unprecedented lump sum of 200 Mio EUR and a daily penalty payment of 1 Mio EUR until it complies with a previous decision on the treatment of refugees. The reference to the value of solidarity in Article 2 TEU justified this extraordinary fine. Third, an established breach of Article 2 TEU can facilitate subsequent state liability procedures brought by affected individuals before national courts. This requires a “manifest” disregard of EU law, which will especially be the case if a foundational provision, such as Article 2 TEU has been violated. And fourth, finding a violation of Article 2 TEU in infringement proceedings can have an effect on other procedures at the European level. It can not only impact an additional, distinct determination under Article 7 TEU, but also lead to the fulfilment of the conditions necessary to suspend mutual recognition regimes, such as the European Arrest Warrant. Further – and this was not mentioned during the hearing – judgments finding a breach of Article 2 TEU could be a point of reference for freezing EU funds under the conditionality regimes.

The Member States as legal entrepreneurs?

What to make of this unprecedented involvement of the Member States? The interventions indicate a twofold shift. On the one hand, they might herald a stronger involvement in countering illiberal developments throughout the Union. So far, the Member States were conspicuously absent in this respect. Especially, the Article 7 TEU procedure revealed to be a dead end. Instead, the Union’s strongest response emerged in Luxembourg.

On the other hand, the Member States’ involvement reverses their usual relationship with the Court of Justice. Invoking Article 2 TEU as a self-standing plea is an innovation advanced by the Commission’s legal service and prepared by an entire community of legal entrepreneurs. In the application’s aftermath, the Member States joined this community that works towards turning the Union’s common values into justiciable obligations. This comes as a surprise. Usually, when the Court makes a jurisprudential leap tightening its control, the Member States rather seek to shield their legal orders. The present case is different though. The Member States not only affirmed the Court’s jurisprudence rendered so far, especially the legally binding nature of EU values and their place at the very identity of the EU legal order, but made suggestions for its further development. The Member States thus venture into uncharted waters and actively participate in constructing the Union’s constitutional future.

Why is this important? As Alexander Hamilton noted, judges have “no power of purse or sword” (Federalist No. 78). In this spirit, the Luxembourg judges are in a more precarious situation than many of its critics realize, especially when controversial legal developments are at stake. Even if there is a general “habit of obedience”, the Court’s decisions depend on the Member States’ acceptance. Having the support of a large majority of the Member States lends legitimacy to the far-reaching legal developments that we are about to witness. Ultimately, however, the Member States’ involvement reflects what the challenged Article 2 TEU announces: a European society sharing common values – that is ready to strike back once its very fabric is in peril.