In its judgment of 21 April 2026 in Commission v. Hungary (C-769/22), the Court of Justice of the European Union took the decisive step: its “value turn”. The Court for the first time applied Article 2 TEU as an autonomous and standalone review standard. This, while unprecedented in its doctrinal construction, came as no surprise to those who had followed the Court’s incremental constitutionalisation of EU values over the past decade (see here, here, and here).

The judgment thus deploys what might be called heavy artillery. Yet, as this article will argue, the firepower of the instrument stands in uneasy tension with the lightness of the reasoning marshalled to justify its use.

Nonetheless, the critical observations advanced by Riedl ultimately underestimate both the structural logic of the EU legal order and the functional mandate of the Court. While the judgment’s reasoning is not without deficit, in particular the lack of methodological rigor that such a doctrinal innovation clearly demands, the overall picture is more complex and more balanced than some critics allow.

The Parallel Procedures Debate

The question of whether Article 7 TEU and Article 258 TFEU may operate in parallel to enforce EU values is far from novel, yet it continues to generate scholarly controversy. The argument made by Riedl here – without mapping the full scope of a debate well-documented in the literature – reduces a complex and multilayered discussion to an overly schematic account that obscures its inherent tension. The argument that Article 7 TEU intentionally assigns enforcement of EU values exclusively to the European Council is not self-evident from the text of the Treaty and cannot simply be assumed without rigorous justification.

My response applies first and foremost to the question of legal consequences. Article 7 TEU and Article 258 TFEU are not simply parallel procedures – rather they are structurally distinct mechanisms that operate at different levels of the legal order and produce fundamentally different legal effects. On the one hand, Article 7 TEU may result in the suspension of a Member State’s rights under the Treaties – one of the most severe sanctions available in the EU legal order, On the other hand, Article 258 TFEU ultimately operates through a judgement of confirming a specific failure to fulfil a Treaty obligation, which may in turn trigger financial penalties under Article 260 TFEU. This fundamental difference in legal consequences already militates against treating Article 7 TEU as a lex specialis that categorically forecloses recourse to infringement proceedings.

This conclusion is reinforced by further arguments. At its core, Article 7 TEU is a political procedure, subject to high consensus thresholds and demonstrably vulnerable to political blockage – as the proceedings against Hungary and Poland have shown. Therefore, treating this provision as the exclusive mechanism for values enforcement would render enforcement structurally ineffective – a construction that cannot be presumed to reflect the Treaty drafters’ intent. It is true that the explanatory notes to the draft Convention on the Future of Europe – cited by the Court – refer to Article 7 TEU as the mechanism for sanctioning breaches of what is now Article 2 TEU (see also here). Yet a text that never entered into force can neither establish nor foreclose the coexistence of enforcement instruments. If anything, the silence of the Lisbon Treaty drafters on any exclusivity clause tends to support the opposite reading: had the contracting parties intended to confine enforcement to Article 7 TEU, they could have said so expressly. The deliberate omission of such a carve-out in the Treaties that otherwise employs lex specialis clauses with considerable precision is at least indicative that the parallel applicability of Article 258 TFEU was not meant to be excluded. What’s more, the two instruments differ significantly in their ratione materia: Article 258 TFEU targets a concrete, justiciable breach of a specific obligation, while Article 7 TEU responds to systemic risk at a broader level. They address different dimensions of the same problem and are designed to complement, not displace, one another.

Finally, the argument that the possibility of divergent outcomes between the Council and the Court of Justice militates in favor of the exclusivity of Article 7 TEU conflates two structural levels of review. The Council’s determination under Article 7 TEU is a political assessment of systemic risk, while the Court’s finding under Article 258 TFEU is a legally binding, judicially constrained determination of a concrete breach of a Treaty obligation. It thus seems permissible that these two distinct organs, operating under distinct procedural logics, may reach different conclusions on different questions. Accepting divergence as a ground for exclusion would effectively vest the Council with a blocking effect over judicial review. That outcome is difficult to reconcile with the principle of effective judicial protection and with the rule of law as constitutional principles of the Union. Divergent outcomes are therefore a structural feature of a multilevel legal order that assigns distinct functions to distinct institutions. Henceforth, the claim of exclusivity is anything but obvious.

The Principle of Conferral and the Functional Mandate of the CJEU

The often-cited argument (by Riedl on this specific case, see here; see also here, pp. 13, and here, pp. 162) of applying the principal of conferral under Article 5(2) TEU to the Court of Justice risks projecting a legislative-competence logic onto the EU legal order that is more at home in German constitutional doctrine than in the supranational framework. While Articles 5(1) and 5(2) TEU cannot be entirely disregarded with respect to the CJEU, the functional mandate of the Court of Justice is structurally more complex than the legislative competences of the Union’s political institutions.

Unlike the other Union institutions that have legislative functions, the CJEU as a judicial body operates under specific constraints of deriving from its adjudicative role. Article 19(1)(2) TEU provides that the Court “shall ensure that in the interpretation and application of the Treaties the law is observed”, while Article 263 TFEU tasks it with “reviewing the legality” of Union acts. These provisions demarcate the Court’s activity as operating within the existing legal framework – it may not expand that framework unilaterally. The judicial mandate is an autonomous, functional mandate that remains intra the tasks conferred upon the Court and is subject to methodological and substantive – not strictly competence-based – constraints (see here).

Crucially, the Court’s adjudicative function is fundamentally different from legislative action: It decides only upon request, is bound by the subject matter of the dispute, and possesses no right of initiative or regulatory power. These functional distinctions justify not subjecting the CJEU to the same competence limitations applicable to the Union legislature – but they equally mean that the Court remains procedurally and methodologically bound and cannot freely pursue legal policy objectives (see also here). Reducing the analysis to competence norms alone leads to an oversimplification, as it fails to give adequate weight to these functional differentiations.

Article 4(2) TEU: National Identity Without Carte Blanche

The CJEU’s case law on Article 4(2) TEU is – contrary to how it has been presented by Riedl – not a novelty. Its contours have been progressively clarified. This was, e.g. already explicitly addressed in AG Kokott’s Opinion in the Pancharevo case (para. 73), where she stated that the starting point for interpreting Article 4(2) TEU must rather be the information provided by the referring court and the Member State concerned, which enjoys a wide margin of appreciation in this regard. However, AG Kokott argues that national identity argument finds its limit in the obligation of sincere cooperation enshrined in paragraph 3 of that Article. Furthermore, under Article 4(2) TEU, only a conception of national identity that is consistent with the fundamental values of the Union laid down in Article 2 TEU can be protected, she states. Also in 2022, in Hungary v. Parliament and Council (C-156/21, paras. 233–234), and most recently in Commission v. Poland (C-448/23, para. 180) in 2025, the Court established that while the Union respects the national identity of Member States as reflected in their fundamental political and constitutional structures – affording them a degree of discretion in implementing rule-of-law principles – this does not mean that the substantive obligation may vary from one Member State to another. Member States share a common understanding of “the rule of law” as a value embedded in their own constitutional traditions, to which they have committed themselves. Put differently: with accession a “floor” is set, protected and enforced by the principal of non-regression (see C-769/22, para. 524).

This development is doctrinally coherent: if national identity could be invoked to derogate from the values of Article 2 TEU, the provision would risk becoming entirely devoid of substance. Article 4(2) TEU would be transformed into a carte blanche permitting systematic constitutional dismantlement as a shield against EU values enforcement, thus upsetting the constitutional balance between integration and retention of national identity. Nevertheless, Article 4(2) TEU retains substantive content – Member States remain free to determine the constitutional model governing the organization and interaction of the branches of government (see e.g. C-208/09, para. 92). The Union is obliged, in accordance with Article 4(2) TEU, to respect the fundamental constitutional structures of its Member States, provided these structures do not undermine the common minimum standard embodied in Article 2 TEU.

The Autonomous Content of Article 2 TEU

The second sentence of Article 2 states that the values listed in the first sentence of that provision are “common to the Member States”. This formulation is descriptive and historical in character, not a methodological directive mandating systematic comparative analysis of Member State constitutional traditions. While Article 2 TEU may legitimately draw on those traditions, its interpretive task is also to identify autonomous European standards, a minimum consensus that is stable and not rendered volatile by the divergent evolution of individual Member State constitutions. While the common constitutional traditions of the Member States collectively inform the interpretation of Article 2 TEU, the values enshrined therein are not merely derived from national legal orders. The content of Article 2 TEU is, in the apt words of Voßkuhle, a “system of communicating vessels” (p. 110).

If the values of Article 2 TEU were legally binding only to the extent that they found expression in all or a majority of national constitutions, a Member State that systematically dismantles its own constitutional standards would gain strategic leverage over the Union’s normative order. Hungary could have, through deliberate constitutional regression, effectively opt itself out of the common value canon. By contrast, the values of Article 2 TEU may develop through the dynamics of integration even where individual Member States fall below the common standard. This is not a decoupling from the provision’s legitimating basis, but a continuation of a standard jointly set at the moment of accession.

This reading is further supported by the nature of accession itself. When a State joins the Union, it accepts the values of Article 2 TEU as a condition of membership – not merely as a snapshot of its existing constitutional arrangements, but as a forward-looking commitment to uphold a common standard (see e.g. here, para. 126, and here). To allow subsequent constitutional regression to redefine the content of that commitment would be to permit unilateral modification of a foundational membership obligation, which is incompatible with the principle of sincere cooperation under Article 4(3) TEU. Lastly, this interpretation is also echoed by the non-regression principle (C-769/22, para. 524).

The CJEU’s Reasoning: Legitimacy Deficits and the New Frontier

The more fundamental and pressing critique regarding the Valeurs de l’Union judgement is methodological. The CJEU’s notoriously laconic reasoning style, and in particular its self-limitation to the criteria of “manifest” (“manifeste”, “offenkundig”) and “particularly serious” (“sériouse”, “schwer”) breach (C-769/22, para. 556), leaves critical questions unresolved. While these standards bear some resemblance to AG Ćapeta’s proposal of negation of values, a true analytical elaboration is lacking. The Court provides Member States with no substantive guidance as to how severity or manifest character are to be assessed. This does not mean that an exhaustive catalogue of breaches is required – the heterogeneity of national legal orders and the nature of the supranational order make such a catalogue neither feasible nor desirable. But it is not unreasonable to demand that the Court operate with transparent, foreseeable criteria. The rule of law, after all, is not only a standard the Court applies to Member States – it is equally a standard by which the Court’s own activity must be measured.

Transparency of reasoning and engagement with the arguments advanced – particularly those that the Court declines to follow – are hallmarks of methodologically sound judicial activity. This obligation becomes especially acute where the Court ventures into areas of particular sensitivity for Member States, as it unquestionably does here. Even where the Court’s activity is regarded as covered by its functional mandate, its case law remains in need of legitimation. The Court would be well advised to reinforce its reasoning, to provide broader argumentative underpinning, and especially to do so when, as here, it advances into new doctrinal territory by deploying Article 2 TEU as a standalone review standard.

It is therefore particularly regrettable that the submissions of the intervening Member States – their diverse approaches to, and thresholds for, the application of Article 2 TEU – find no reflection whatsoever in the Court’s reasoning. This is not to suggest that Member States are equal participants in the judicial discourse, nor to ignore the inherent power asymmetries vis-à-vis the Court itself. But engagement with those arguments, and with the competing thresholds of materiality they reflect, would have substantially strengthened the legitimacy and acceptance of this landmark ruling.

Structural Explanations and a New Chapter

Two structural factors may partially explain – though not justify – the Court’s sparse reasoning. First, the judgment was delivered by the Full Court, which must speak with a single voice and issues no dissenting opinions. The greater the number of judges involved, the more demanding the process of achieving consensus, likely at the cost of argumentative depth. Second, the violations at issue in this case – of human dignity, fundamental rights, and equality – were of such gravity and obviousness that the Court of Justice may have considered a more differentiated reasoning on the breach of Article 2 TEU dispensable. Yet even where violations are manifest, this cannot justify the absence of methodological explanation, particularly where the Court introduces such a procedural novum. The very gravity of the infringement makes it all the more important to articulate clearly the legal reasoning on which the finding rests. The Court deploys heavy artillery with very good cause.

Yet neither of these factors should obscure the broader constitutional significance of what has occurred. The very ease and clarity of the present case must not distract from the fact that, with Article 2 TEU functioning as a new and autonomous review standard, the Court started a new chapter – one in which it approaches the outer boundaries of its mandate. Precisely because the reasoning in the operative paragraphs is underdeveloped, this jurisprudence remains normatively legitimation-dependent. The simplicity of the present case cannot substitute the doctrinal rigor that this doctrinal innovation demands. What remains is a doctrinal framework of considerable ambition but insufficient precision, one that has either to be consolidated through methodological rigor in future rulings, or risk being perceived as the exercise of a political function dressed in the language of law.

I would like to thank Cian Kinsella and Jasper Kamradt for the constant exchanges and discussions on this topic, which have informed this contribution.