Commission v Hungary must be understood in the context of the European rule of law saga and the ongoing struggle for true European solidarity. The CJEU confirmed the autonomous justiciability of Article 2 TEU even when the link to specific EU Charter provisions or secondary legislation would already suffice. The construction is bold and sophisticated, supported by an impressive scaffolding of both scholarly innovations and case law that Luxembourg has been developing since ASJP. From the perspective of a Eurozone Member State on the European periphery – where the EU rule of law has been mediated by the bailout era – the road there has been long and winding, and not all who walk it walk on the same ground. It is precisely ASJP that brings me here. A close look at this case and its antecedents discloses a European society selectively built – protecting some configurations while leaving others outside – with solidarity, as an operative legal category, consistently among the absences.

From Austerity to Rule of Law

To understand how we arrived at Commission v Hungary, we need to look at where the sequence began and what it has left out. ASJP, generally known as the Portuguese Judges’ case, has inaugurated a new line of case law aimed at the protection of the EU and individuals from rule of law backsliding. Never before had the CJEU claimed jurisdiction solely based on Article 19(1) TEU, without any further link – neither a breach of EU Charter rights nor legislation within the scope of EU law. This was not merely a procedural innovation. It established the doctrinal vehicle through which European society – as a juridical project – has since been cumulatively constructed; each subsequent ruling consolidating in the acquis what the previous one had opened. National judicial structures came under the direct supervision of the CJEU, and judicial independence became fully non-negotiable for Luxembourg.

This groundbreaking ruling provided the judicial bridge between the austerity crisis and the rule of law crisis and paved the way for an interventionist stance by the CJEU to uphold the EU rule of law fundamentals. But it provided no closure to the austerity crisis, nor to the acute accountability deficit that rescued countries had experienced during the bailout processes. A report commissioned by the European Parliament’s LIBE Committee noted, ironically, that “it would be interesting to be able to confront many of the austerity measures proposed by European institutions with the European Charter of Fundamental Rights and other fundamental norms of the Treaties.”

The doctrinal materials to extend EU protection to bailout-era social rights were available. The Court had already recognized in Ledra and Florescu that EU institutions are bound by the EU Charter when acting in the context of financial assistance and that national measures implementing conditionality may fall within the scope of EU law for EU Charter purposes. For the Portuguese case, however, this link was never acknowledged while the bailout or the excessive deficit procedure lasted: preliminary references asking precisely this question were rejected. The acknowledgment came only in BPC Lux 2 – an “unforgivable late admission”, as Martinho Lucas Pires named it – and only to consolidate that, when financial stability confronts fundamental rights, the weight must favor the former.

Let me clarify: ASJP was triggered as an austerity crisis case – wage cuts of judges because they belong to the broader category of “public workers” – and the framing was confirmed by the AG’s opinion, which concluded that judicial independence, as enshrined in Article 47 of the EU Charter, did not preclude the general salary-reduction measures adopted by Portuguese authorities to eliminate an excessive budget deficit. However, this link was ignored. An austerity crisis case was reframed as a pure rule of law issue connected with judicial independence at the national level. The fundamental rights problems heavily discussed during that period – right to work, right to education, right to healthcare, human rights impact assessment – were quietly set aside. And so were rule of law issues of a different kind: deficits at the supranational level of governance. The Portuguese assistance programme, like others, was marked by fundamental rule of law deficits that have been abundantly documented: lack of clarity, legal precision, uncertainty regarding the binding version, and discrepancies in versions. The reframing confined rule of law scrutiny to backsliding at the national level, leaving the rule of law deficits of supranational governance unaddressed. This left no room to read the social acquis as constitutive of European society. The subsequent case law, culminating in Commission v Hungary, inherits this configuration.

Who is Protected?

As a legal order, and the legal order of European society, EU law is incomplete, and at points insufficient. Some of its gaps, however, deserve scrutiny because they reveal something deeper than unfinished business – they indicate choices between different policy visions, raising the question of whose choices these are to make. Some of the insufficiencies relate to who is left out of the EU’s reach – and, therefore, its protection.

Who gets included in the EU law’s reach is itself part of the selectivity. Tommaso Pavone has described the exclusions as “deserts” of EU law: developed on the foundations of economic functional integration, the Union reaches people falling outside the market only with difficulty, if at all. Jan Komárek frames the same problem in terms of the winners and losers of EU integration: the latter being the ones “who do not benefit from integration and whose voice can be structurally undermined by it.” But this distinction does not map neatly – at least, not anymore – onto the mobile/immobile axis – i.e. between the Eurostars and the Eurostayers. What Commission v Hungary shows – as ASJP and the case law that followed had already signaled – is that one need not be mobile to be afforded direct EU protection. The judiciary had already learned this – though the protection of judicial independence, unlike most extensions of EU protection, is not only an individual matter but a collective and democratic one.

Commission v Hungary extends the umbrella of EU law protection to vulnerable minorities. What the CJEU has now done is what a functioning constitutional court does: it has protected a vulnerable minority that the national political majority has turned against. This is the function of constitutional courts when majoritarian channels fail to protect those who depend on them. But the umbrella has a pattern. EU law extends its protection to subjects defined by individual characteristics – mobile citizens, judges, sexual minorities – while leaving largely untouched the collective configurations – welfare, labour, social protections – that have historically sustained European democracies. Floris de Witte has shown that the Court no longer grounds cross-border solidarity in equal treatment but in fundamental rights presented as functional to the exercise of free movement. The logic of Commission v Hungary departs from this on one axis but not on another: the protection extends to immobile citizens belonging to stigmatized minorities – and so escapes the matrix of market-driven mobility – but it remains organized around individual rights rather than collective solidarity (understood here not as financial transfers but collective social protection).

Absolute Primacy Reinforced, Collective Solidarity Absent

The construction is also one-sided in a procedural sense. Operating under the doctrine of absolute primacy – which is rejected not only by rogue Member States – the CJEU seals European society through cumulative judicial moves that admit no substantive contestation by national constitutional courts. The constitutional traditions that historically articulated what collective social protection means in national contexts find limited doctrinal space within this architecture. They cannot easily contribute the content that European society lacks.

Moreover, solidarity as an operative legal category – solidarity not as rhetorical invocation, not as functional support for free movement, not as disciplinary solidarity between Member States enforcing values against backsliding, but as the configuration that integrates political democracy with collective social protection – has never entered the construction. This integration is what made 20^th century European democracy possible and stands as constitutive of the identity of most, if not all Member States. Understood in this way, European society, as it is being legally and juridically embedded through Article 2 TEU, falls short of the configurations that integrated political democracy with collective social protection after 1945.

Where Will the Court Go Next?

The Court has built a sophisticated doctrine to protect values it now considers non-negotiable. But the pattern of what enters that construction, and what does not, is not easy to read as an accident. Solidarity is textually juridified in EU law – in Article 2 TEU, in Articles 78(3) and 80 TFEU, in Title IV of the EU Charter. The Eurozone crisis produced a fundamental transformation of European solidarity into a conditioned form that reinforced existing asymmetries between North and South. Commission v Hungary is a forward leap in the protection of minorities, but the collective redistributive configuration that historically gave European democracy its substance remains untouched. To ask what European society is, after this judgment, is to ask what the Court will decide to include in the acquis and what it will decide to leave outside. These unilateral, non-contestable judicial choices will be defining for European society – whether it exists as a social reality or a juridical construction whose foundations remain to be tested.