Commission v. Hungary fulfils a function in EU law analogous to that which Judgement No. 1/1956 of the Italian Constitutional Court fulfilled in the Italian constitutional order: it transforms the axiological dimension of the founding text (the Treaty on European Union and the Italian Constitution), which until then had been regarded primarily as programmatic rather than legally operative, into an autonomous criterion for legal assessment. Judgement No. 1/1956 was the first decision of the Italian Constitutional Court and is considered the turning point through which constitutional principles became directly enforceable standards of constitutional review.

While Judgement No. 1/1956 overcame the distinction between prescriptive and programmatic provisions, Commission v. Hungary overcame the distinction between values and legal norms (para. 508), arguing that it follows from the preamble to the TEU that Article 2 is not purely programmatic. It is in this context that the Court held that the provision is not merely a statement of policy guidelines or intentions but contains values which are an integral part of the very identity of the Union as a common legal order (para 549 and 551).

Judgement No. 1/1956 and Commission v. Hungary are similar not only because they render the axiological aspect of the fundamental text justiciable (“the insertion of that article into the very body of the EU Treaty … tends to support the finding that that provision is binding” (para 532)), but also because, in both cases, the judicialisation of constitutional values transformed the relationship between law and society. In this contribution, I argue that Commission v. Hungary should not be interpreted as constitutionalising European society itself. Rather, its constitutional significance lies in rendering legally relevant the form of social coexistence embodied in the values enshrined in Article 2 TEU.

Constitutional Values, Law, and Society

Commission v. Hungary is set to occupy a prominent place in the constitutional development of the European Union. The main novelty of Commission v. Hungary has generally been identified as the recognition, for the first time, of the possibility of bringing infringement proceedings based solely on Article 2 TEU. In my view, however, the judgement goes further. By rendering the axiological dimension of the Treaties justiciable, it confers legal relevance on the form of social coexistence embodied in Article 2 TEU, thereby creating the conditions under which the notion of European society may acquire constitutional significance.

In post-Second World War constitutional states, in fact, the enshrinement of values in the constitution has profoundly altered the relationship between law and society. The so-called post-totalitarian constitutions have not merely regulated a pre-existing social reality, nor have they simply reflected existing social relations. Through the codification of fundamental values, they have progressively helped to define the form of coexistence within a political community. At the same time, however, those values exist only in their ongoing relationship with society itself, from which they derive their historical significance and within which they are called upon to be realised, in a continuous process of mutual reinforcement. This reciprocal relationship between law and society also resonates with recent methodological reflections in EU legal scholarship, which emphasise the co-constitution of legal rationality and social reality. As Antonio Baldassarre has observed:

“The law and, in particular, the constitution have two dimensions: ‘legitimacy’ (in that the values and principles underpinning the legal system, representing the reasons for ‘living together’, must ‘thrive’ by drawing continually on the generation of meaning and general consensus within society) and ‘legality’ (in that those values and normative principles are the supreme measure of the validity of acts carried out in the exercise of powers and rights).” (translation by author)

In short, constitutional values serve both as criteria for the validity of the legal system and as constitutive elements of the legal community’s collective identity. Once the form of social coexistence embodied in Article 2 TEU becomes legally relevant, the notion of European society can no longer be understood merely as a descriptive or sociological concept. Rather, it acquires potential constitutional significance.

The 1956 Italian Precedent

In many respects, this constitutionalisation of the axiological dimension of the Treaties echoes a trend already seen in post-Second World War constitutional systems. Indeed, the Italian Constitution, too, was not immediately interpreted as a charter of values. In the early years of the Italian Republic, a view continued to prevail which drew a strict distinction between prescriptive and programmatic provisions, relegating most constitutional principles to the role of mere programmatic guidelines addressed to the legislature.

It was constitutional scholarship that was quickest to recognise, even before case law, the novelty of so-called post-totalitarian constitutionalism. As early as the early 1950s, Nicola Matteucci identified the Republican Constitution not merely as a document setting out the organisation of powers but as a genuine charter of values, intended to express the fundamental principles underpinning political coexistence. Much later, Giuseppe De Vergottini would recognise Matteucci as the first author to have grasped this transformation, noting that the post-Second World War constitutions could no longer be understood in terms of the categories of the nineteenth-century liberal state but had to be interpreted as legal systems founded on the codification of shared values. This insight was enshrined in case law by Judgement No. 1/1956 of the Italian Constitutional Court. Although it did not yet employ the language of values, the Court took a decisive step: it moved beyond the traditional distinction between programmatic and prescriptive provisions, recognising that the Constitution as a whole – and not merely its immediately prescriptive provisions – could serve as the standard of constitutional review.

The axiological aspect of the Constitution thus ceased to be merely a political programme and became binding positive law. The Constitution is no longer merely the formal foundation of the legal system but the forum in which a political community enshrines the values that define its identity and the form of its social coexistence. Although Judgement No. 1/1956 did not yet describe the Constitution as a “charter of values”, it opened the way to an interpretation through which the Constitution gradually came to be understood in those terms (e.g. the recent judgement No. 136/2025).

From Doctrinal Reflection to Legal Recognition

Commission v. Hungary seems to me to come at a similar juncture in the constitutional development of the European Union. Indeed, in European law too, legal scholarship had already begun to examine the constitutional significance of Article 2 TEU and its capacity to express not merely a catalogue of values but the very foundation of a political community and a European society. The judgement appears to mark the transition from doctrinal reflection to legal recognition.

Even if, in my view, Commission v Hungary does not yet assert that the Treaties are to be understood as a constitutional order founded on shared values, nor does it enshrine European society as an autonomous constitutional category. Yet it seems to me that the Court has taken the step that makes such a future development possible.

In post-totalitarian constitutional states, the relationship between law and society does not follow a one-way pattern. The Constitution does not merely capture a snapshot of existing society but helps to shape it by embedding fundamental values within the legal order. At the same time, however, those values exist only in constant interaction with society, from which they derive their historical significance and within which they are meant to be realised. Constitutionalism is based precisely on this circular relationship between legality and legitimacy: constitutional values are, at the same time, the supreme criteria for the validity of the legal system and factors defining the identity of the legal community.

The Emerging Constitutional Significance of European Society

It is precisely this perspective which, in my view, enables us to grasp the most profound novelty of the judgement. Commission v. Hungary does not yet constitutionalise European society itself. Rather, by making Article 2 TEU justiciable, it gives constitutional relevance to the form of social coexistence embodied in the values enshrined in that provision. It is only through this intermediate step that the notion of European society may acquire constitutional significance because the judgement creates the constitutional conditions under which that concept can evolve from a merely sociological description into a potentially constitutional category.

It is in this light that the concept of European society used by the Court must be understood. When the Court states that LGBT people constitute “an integral part of European society” (para 495), it is not yet making a sociological observation. However, in my view, it is identifying an interest protected by Article 2 TEU. Hungarian legislation is not unlawful merely because it discriminates against a particular group of people; it is unlawful because it calls into question their full and equal participation in the form of social coexistence protected by Article 2 TEU. Yet, insofar as the form of social coexistence embodied in Article 2 TEU acquires legal relevance, European society begins to acquire constitutional significance.

The difference becomes clear if we distinguish between three levels. For Advocate General Ćapeta, European society essentially coincides with the community of values set out in Article 2 TEU. The Court, by contrast, stops short of articulating a theory of European society but uses the concept as a framework of belonging and inclusion. Von Bogdandy takes this insight a step further, interpreting European society as the social reality produced by the process of integration. The judgement lays the foundations for this interpretation, without yet developing it fully.

The question left open by the judgement is whether the justiciability of Article 2 TEU is set to alter the relationship between law and society, as has happened in the post-Second World War constitutional states. If this were the case, European society would gradually cease to be merely the social context in which those values are to be realised and could acquire autonomous constitutional significance. Not because the Court has already taken this step but because the constitutionalisation of the axiological dimension of the Treaties creates the conditions for such an evolution. European society does not acquire constitutional significance simply because a European society exists as a social reality; rather, that significance arises only because the justiciability of Article 2 TEU enables the form of social coexistence embodied in its values to become legally relevant.

Ultimately, whether this constitutional development should be welcomed remains a question for legal scholarship, whose task is not merely to accompany the Court’s jurisprudence but also to test its limits and expose its blind spots.