Rethinking Article 2 TEU

The recent Opinion of Advocate General (AG) Ćapeta in Case C‑769/22 European Commission v Hungary marks a key moment in the evolving case law on Article 2 TEU. The case concerns Hungary’s controversial 2021 legislation restricting access to content portraying or promoting LGBTI identities. Ćapeta argues that Article 2 TEU can serve as a stand-alone legal basis to challenge national measures.

Although the Opinion’s legal reasoning has faced criticism, I find it convincing and welcome its clear stance that Member States cannot use national identity to justify discriminatory measures violating common Union values. While Ćapeta’s position on Article 2 TEU is unprecedented, I believe it reflects a broader shift in the Court’s jurisprudence. Building upon previous contributions on Verfassungsblog (here and here), this post situates the Opinion within that development and assesses its implications for future value-based interventions.

Overview

AG Ćapeta’s opinion addresses Hungary’s 2021 “Amending Law,” (para. 20 of the Opinion) which imposed restrictions on content portraying or promoting LGBTI identities under the guise of protecting minors, by restricting access to such content that portrays or promotes gender identities that do not correspond to the sex assigned at birth, sex reassignment or homosexuality (para. 2). Following an extensive analysis, the AG concludes that Hungary’s legislation breaches EU law on three fronts: fundamental rights, internal market freedoms, and core EU values under Article 2 TEU.

In particular, AG Ćapeta supports the Commission’s pioneering argument that Hungary’s law violates Article 2 TEU, which safeguards the core EU values (para. 247). The AG further asserts that Article 2 TEU is justiciable as a stand-alone basis (paras 189-197). Hungary’s legislation, she argues, institutionalizes discrimination against LGBTI communities (paras 257-264), thereby “negating” EU values and posing a systemic threat to the EU’s constitutional identity, crossing a “red line” for EU membership (paras 155-158 and 212).

National identity and EU values: red lines in constitutional dialogue

At the centre of AG Ćapeta’s Opinion lies the interpretation of Article 2 TEU, which enumerates the EU’s foundational values. The novelty of this case is that it marks the first instance where the ECJ is asked to rule on a self-standing infringement of Article 2 TEU, independent of breaches of specific Charter rights or secondary legislation. The AG’s Opinion sheds light on the ongoing discourse regarding the limitations of national identity argumentation as well as the justiciability of the normative core of EU’s constitutional identity, meaning Article 2 TEU values.

A key point in the Opinion is that while Member States may interpret how to apply EU values, they cannot negate the values themselves (paras 237-238). In this sense, the AG argues that Hungary’s legislation crosses this boundary by institutionalizing the unequal treatment of LGBTI individuals, contravening the EU’s commitment to equality and human dignity under Article 2 TEU (paras 268-269 and 271). This conclusion aligns with broader scholarly discourse (see here, here and here) on European identity, which suggests that national and EU identities can coexist only if Member States affirm these shared core values, rather than contradict them.

The AG also draws on two recent key ECJ judgments, establishing a connection between the concept of mutual trust, which is fundamental to European cooperation, and the adherence to these shared values (C-156/21 Hungary v Parliament and Council and C-157/21 Poland v Parliament and Council). In these cases, the Court linked the concept of mutual trust to Member States’ adherence to the rule of law under Article 2 TEU. More specifically, the Court asserted that mutual trust is not merely assumed but is contingent upon compliance with Article 2 TEU, which defines the EU’s identity as a legal system. The Court noted that while Member States maintain the protection of their national identities, they also share and must uphold the rule of law, as a shared EU value enshrined in Article 2 TEU, constituting the normative core of EU constitutionalism.

Thus, further endorsing the AG’s argumentation at hand regarding the direct justiciability of this provision, the ECJ concluded that it authorised to intervene when EU values are jeopardized under the guise of national identity, thereby balancing national sovereignty with the principle of absolute primacy of EU law. Expanding on this claim, the AG proposes given that upholding EU values is essential for the EU legal order, that these values can be applied directly and irrespectively of other violations of EU treaties’ provisions, according to Article 258 TFEU that enables the Court to safeguard the upholding of EU law by the Member States (paras 191-194).

In an analogous manner, in the recent golden passport judgment, the ECJ further clarified that the EU citizenship is a fundamental component in the progress of EU integration, embodying solidarity and trust among Member States. In this sense, citizenship extends beyond mere national affiliation, encompassing adherence to the shared values outlined in Article 2 TEU (para. 95). Consequently, Member States are required to confer nationality in a manner consistent with EU citizenship and these shared values. These judgments thus reveal an increasing judicial reliance on Article 2 TEU, raising the question of why it should not function as an independent legal basis. In essence, the central prominence of EU values within the EU’s constitutional framework as well as the recent case law of the Court, seem to favor the AG’s argumentation, thereby positioning Article 2 TEU at the apex of the Union’s constitutional hierarchy.

Justiciability of Article 2 TEU: a new frontier in EU law

The ECJ’s evolving case law suggests broad acceptance of invoking Article 2 TEU. However, its justiciability as a standalone legal basis remains contested (see here and here). So far, the ECJ has not ruled on Article 2 TEU as a sole justiciable ground, while progressively embracing the justiciability of this provision. This perspective was evident in the Associação Sindical dos Juízes Portugueses judgment, where the Court invoked Article 2 TEU for the first time as a legal foundation. The Court asserted that Article 19(1) TEU embodies the rule of law as articulated in Article 2 TEU. Furthermore, the Court elucidated the relationship between Articles 2 and 10 TEU (here and here), stating that Article 10(1) TEU reflects the Union’s commitment to representative democracy, a value enshrined in Article 2 TEU. This interpretation implies that Article 2 TEU requires the support of other Treaty provisions for its application, as it lacks standalone normative value, since, in previous case law of the Court, Article 2 TEU has been invoked alongside breaches of specific Charter rights or EU legislation.

Contrary to that, AG Ćapeta’s Opinion breaks new ground by arguing the direct justiciability of Article 2 TEU as a standalone provision. AG Ćapeta, following the Commission’s line of reasoning (paras 26, 31–32), presents Hungary’s law as a rejection of LGBTI equality. Thereby she positions Article 2 TEU as a tool to address structural threats to the EU’s constitutional order. The AG distinguishes between permissible divergences in applying rights (e.g., through varying standards) and impermissible attacks on the values underpinning those rights.

Further, the AG draws a crucial distinction: occasional violations of specific rights do not suffice to invoke Article 2 TEU. What is required is the negation of EU values—a systemic level of breach (paras 248, 253). It is not the quantity, but the intensity of the violation that matters (for the opposite view see here). As for the exact level of deficit needed to be considered systemic, this requires widespread, fundamental flaws within a Member State’s legal system. Hence, it is for the Court to determine in concreto whether these prerequisites are fulfilled.

The ECJ, she argues, can determine on a case-by-case basis where that line lies (para.212). In doing so, the AG strengthens the ECJ’s role as the ultimate arbiter of what constitutes a breach of the EU’s “red lines,” the values in Article 2 TEU. These are not merely political guidelines but the foundational legal principles of the Union. In the words of the AG (para. 215):

“The Court of Justice is a constitutional court, and basic constitutional principles are often, at the same time, political and legal. Inasmuch as Article 2 TEU expresses the choice for a constitutional democracy which respects human rights, the Court of Justice’s defence of those values is not its political choice, but its constitutional task.”

Finally, I incline towards the opinion (contrary to Kaiser) that the AG’s use of the term “good society” (paras 157 and 177), though uncommon in legal reasoning, is not out of place. The Treaties were drafted with the vision of a European society based on these shared values. The selection of these values is primarily an ethical assessment of what constitutes a good society. Therefore, referencing the ethical foundation of the Union’s values does not diminish but rather substantiates their invocation as an independent legal basis.

Implications for national sovereignty and EU integration

The implication of AG Ćapeta’s Opinion for delineating the boundaries of national sovereignty within the EU legal framework of multilevel constitutionalism are far-reaching. Hungary defended its legislation as a legitimate exercise of its right to protect minors and uphold parental rights, which is a domain traditionally regulated by national law. AG Ćapeta, however, rejects this justification, noting that the law targets “ordinary lives of LGBTI people” rather than explicit or harmful content (paras 88-92 and 110-114). She underscores that Member States cannot implement measures undermining EU values, especially when such measures lack any empirical evidence of harm (paras 118, 283-284).

This reasoning, building upon previous case law of the ECJ (Case C-808/18, Commission v Hungary; Joined Cases C-715/17, C-718/17, C-719/17, Commission v Poland and others; Case C‑156/21, European Parliament and Council v Hungary; Case C‑157/21, European Parliament and Council v Poland), rejects the perception that national identity can be unrestrainedly invoked to circumvent EU obligations. While the principle of subsidiarity allows Member States to tailor policies to local contexts, AG Ćapeta clarifies that the erosion of the fundamental values of the Union is, in any case, not permitted. The Opinion thus reaffirms that EU membership entails an irrevocable commitment to upholding the EU’s constitutional identity, as enshrined primarily in Article 2 TEU, even in areas of shared competence (paras 180, 223).

AG Ćapeta’s Opinion also has far-reaching consequences for the EU’s evolving legal and political landscape. By embracing Article 2 TEU as a stand-alone, justiciable standard, the Opinion strengthens the Court’s ability to hold Member States accountable for systemic violations of democratic norms. This is particularly relevant in light of ongoing disputes with Poland and Hungary over judicial independence and media freedom (see here for Poland and Hungary), where Article 2 TEU could serve as a basis for future litigation. The Court’s emerging case law thus signals a shift from a primarily economic union to a Union of values.

Conclusion

AG Ćapeta’s Opinion in Commission v Hungary represents a pivotal moment in the discourse on EU values and constitutional identity. It advances a European identity that complements national identities, provided those identities operate within the framework of shared values.

Despite that, this approach raises questions about the limits of utilizing EU values’ legal armory in resolving cultural and political conflicts. As the EU grapples with illiberal trends, the ECJ’s willingness to enforce Article 2 TEU will test its constitutional order’s resilience. AG Ćapeta’s Opinion charts a path for the EU to assert its values as non-negotiable pillars of EU membership, ensuring pluralism does not compromise fundamental principles agreed upon by Member States. Thus, the upcoming ruling will determine whether this vision becomes a binding precedent.