The case against enforcing the Article 2 TEU values independently

On 19 December 2022, the European Fee launched infringement proceedings towards Hungary (Case C‑769/22), alleging, amongst different issues, a direct violation of Article 2 TEU. This sparked debate over whether or not the ECJ may develop its case legislation to permit Article 2 TEU to function an impartial authorized foundation, even with out a connection to particular EU legislation provisions. Nevertheless, the Fee’s Authorized Service has since dismissed this concept. Through the listening to on 19 November 2024, its Director Common, Daniel Calleja Crespo, emphasised that the case shouldn’t be interpreted as permitting Article 2 TEU to be invoked by itself, past the framework of EU legislation. Constructing on this attitude, this submit argues {that a} restrictive interpretation is essential to sustaining each the effectiveness and legitimacy of the ECJ’s case legislation on Article 2 TEU.

European Constitutional Legislation and the ECJ’s Case Legislation on Values

Some have described it as the largest human rights case within the historical past of the European Union. At its core is a Hungarian legislation (Act LXXIX of 2021) that restricts the portrayal of homosexuality and transgender identities in schooling, media, and promoting geared toward minors. The European Fee considers this a severe violation of EU legislation. In its first plea, it cites breaches of a number of secondary legislation provisions, together with the Audiovisual Media Companies Directive (2010/13/EU), the E-Commerce Directive (2000/31/EC), and the Companies Directive (2006/123/EC), in addition to restrictions on the liberty to offer companies underneath Article 56 TFEU and violations of elementary rights underneath Articles 1, 7, 11, and 21 of the EU Constitution. Nevertheless, the case takes on broader significance within the Fee’s second plea, the place it alleges—for the primary time—an impartial violation of Article 2 TEU, which enshrines the EU’s core values. If upheld by the ECJ, this argument may mark a turning level within the authorized enforcement of elementary EU ideas.

How far can the EU’s elementary values, enshrined in Article 2 TEU, be legally enforced? That is the central constitutional query raised by the case towards Hungary. The ECJ is extensively anticipated to rule towards Hungary’s legislation—16 Member States have joined the Fee’s case, signalling robust opposition to discrimination and a dedication to human rights enforcement. However the greater challenge is how the Courtroom’s case legislation on values may evolve.

A key precedent was set in ASJP (C-64/16), the place the ECJ dominated that Article 19(1), second subparagraph, TEU provides concrete authorized impact to the rule of legislation precept in Article 2 TEU. This allowed the Courtroom to carry Member States accountable for upholding judicial independence, arguing that mutual belief amongst courts is important for efficient authorized safety (para 30). Since then, the ECJ has repeatedly emphasised that Article 2 TEU is not only a political declaration however a binding authorized normal, bolstered by Article 19(1), second subparagraph, TEU (e.g., Fee v Poland I (C-619/18), Fee v Poland II (C-192/18), A.Ok. (C-585/18, C-624/18 et al.), A.B. (C-824/18), Fee v Poland III (C-791/19), Fee v Poland IV (C-204/21), Euro Field Promotion (C-357/19 et al.), RS (C-430/21), Poland v Parliament and Council (C-157/21), Hungary v Parliament and Council (C-156/21), Forumul Judecătorilor din România (C-83/19 et al.), Getin Noble Financial institution (C-132/20), Hann-Make investments (C-554/21, C-622/21, C-727/21)).

This method has formed a sequence of landmark rulings. In LM (C-216/18 PPU), the ECJ dominated that nationwide courts should assess whether or not deficiencies within the rule of legislation justify refusing extradition underneath the European Arrest Warrant. In AK (C-585/18 and others), the Courtroom struck down Polish judicial reforms that compromised judicial independence, corresponding to politically managed disciplinary chambers. A serious step got here in Repubblika(C-896/19), the place the ECJ launched the precept of non-regression: as soon as a Member State has achieved a sure degree of rule-of-law safety, it can not roll it again (para 64). This ruling bolstered the concept that respect for the rule of legislation is a steady obligation, not only a situation for EU accession. This reveals, step-by-step, that the ECJ has regularly prolonged its jurisdiction over nationwide establishments just like the judiciary—no less than, within the context of preliminary rulings and infringement proceedings—when judicial independence is in danger.

Article 2 TEU as an Impartial Authorized Foundation?

The pending case C‑769/22 goes past the ECJ’s present case legislation on judicial independence and the rule of legislation. It isn’t about mutual belief between courts or efficient authorized safety underneath Article 19 TEU. As a substitute, it issues elementary rights—particularly, the prohibition of discrimination towards LGBTIQ+ people and the safety of human dignity. These rights are safeguarded on the EU degree by each the Constitution of Elementary Rights (Articles 1 and 21(1)) and the final ideas of Union legislation. Nevertheless, Article 51(1) of the Constitution limits its applicability to conditions the place EU legislation is being carried out. Whereas the ECJ has interpreted this broadly since Åkerberg Fransson (C-617/10), a concrete hyperlink to EU legislation stays vital. On this case towards Hungary, that hyperlink probably exists by way of the interior market, which might activate the Constitution’s protections.

Towards this backdrop, the European Fee’s resolution to allege a standalone violation of Article 2 TEU in its infringement motion is hanging. Some have interpreted this as signalling that, within the Fee’s view, Article 2 TEU may function an impartial authorized foundation for enforcement—indifferent from violations of particular EU provisions and even from the scope of the Constitution. If accepted, this could be a authorized first: Article 2 TEU would itself outline the attain of EU legislation, with out requiring a direct hyperlink to secondary or major legislation.

Nevertheless, the Fee itself has since rejected such a broad interpretation of Article 2 TEU. Whereas its authentic utility in Case C-769/22 listed an impartial infringement of Article 2 TEU, Daniel Calleja Crespo, the Director Common of the Fee’s Authorized Service, clarified in the course of the listening to that Article 2 TEU can solely be invoked alongside different EU legislation provisions and inside the materials scope of EU legislation. Decide Jan Passer pressed him for a transparent reply on whether or not Article 2 TEU may apply independently of different EU legislation provisions. The response from the consultant for the Fee was unequivocal: no, it can not. Moreover, Calleja Crespo confirmed that if the Fee’s first plea (based mostly on secondary EU legislation) failed, the second plea based mostly on Article 2 TEU would additionally should fail, as Article 2 TEU itself can not increase the scope of EU legislation. In brief, in response to the Fee, Article 2 TEU can solely be enforced when a case already falls inside EU legislation for different causes.

It’s unclear whether or not the ECJ will undertake this restrictive interpretation. President Koen Lenaerts, particularly, appeared sceptical. Through the listening to, he questioned the Fee’s stance, arguing that Article 2 TEU will be related outdoors the quick scope of EU legislation, as seen in Article 7 TEU proceedings and within the accession framework underneath Article 49 TEU. He pressured that the limitation arises from the infringement process’s authorized construction, not from Article 2 TEU itself. This limitation stems from Articles 258(1) and 259(1) TFEU, which explicitly restrict infringement actions to violations of “an obligation underneath the Treaties.”

Lenaerts’ place aligns with broader tendencies in EU legislation. His personal writings place Article 2 TEU inside the context of EU competences, and up to date developments—such because the European Media Freedom Act—show how elementary rights are more and more used to justify EU-level motion. A strict interpretation of Article 2 TEU, as now urged by the Fee, may complicate additional growth of this case legislation.

The Dogmatic Flaws of Reinterpreting Article 2 TEU as a Common Worth Clause

The case towards Hungary highlights that the controversy over the ECJ’s case legislation on EU values stays removed from resolved. Supporters of a broad interpretation of Article 2 TEU could also be disenchanted by the Fee’s restrictive stance, however they hope the ECJ will proceed to uphold its ASJP case legislation. President Lenaerts himself has referred to as the ASJP judgment a “constitutional second” for the EU, evaluating its significance to Costa/ENEL(C-6/64)and Van Gend & Loos (C-26/62).

Towards this background, the next argument units out a extra restrained understanding:  the enforcement of the Union’s values by infringement proceedings earlier than the Courtroom of Justice must be topic to 2 cumulative circumstances:

The case should fall inside the materials scope of the EU Treaties; and

There have to be a selected provision of Union legislation that applies—one that may be interpreted in gentle of Article 2 TEU however not broadened by it.

Concerning the primary situation, it’s usually argued that Article 2 TEU imposes binding obligations on Member States no matter any particular area of Union legislation, deriving its autonomous power from Article 49 TEU and making use of all through the period of EU membership as a basic normal of conduct. The Republikkajudgment is cited as proof that the Courtroom of Justice has accepted such an unconditional, cross-sectoral utility of Article 2, significantly by the precept of non-regression. Nevertheless, this studying fails to align with the construction of major legislation. Article 2 TEU doesn’t, by itself, create an impartial authorized foundation for evaluation. It operates solely inside the limits of the precept of conferral underneath Article 5(2) TEU, which requires a concrete switch of competence or a selected obligation in EU legislation. That is confirmed by the Courtroom’s case legislation: in N.S. (C-411/10), Aranyosi (C-404/15), L.M. (C-216/18 PPU), and Dereci (C-256/11), value-based scrutiny was all the time tied to particular authorized norms—whether or not major or secondary EU legislation—to not Article 2 in isolation. Even in Republikka, the non-regression responsibility was not utilized autonomously however anchored in Article 19(1) TEU. This method is in line with Article 51(1) of the Constitution, which limits the Constitution’s scope to conditions ruled by Union legislation. Article 2 TEU could information interpretation but it surely can not, by itself, prolong the attain of EU legislation or generate obligations in areas the place no underlying competence, obligation or authorized foundation exists. The Fee’s method within the pending Hungary case confirms this: though invoking Article 2, it explicitly averted counting on it as a stand-alone declare. In brief, Article 2 TEU has interpretive and systemic relevance, however its enforceability all the time will depend on a substantive authorized hyperlink to Union legislation—it can not independently activate the scope of EU legislation.

Turning to the second situation,  some argue that after a case falls inside the scope of EU legislation, Article 2 TEU will be mixed with a comparatively broad vary of Treaty provisions to create binding obligations—suggesting that Article 2 acts as a type of basic clause that strengthens the authorized impact of different norms, even when these norms don’t themselves impose particular duties on Member States. On this view, broad references to values like democracy or good governance—corresponding to in Articles 10, 12, 197, or 298 TFEU—is perhaps sufficient to set off the appliance of Article 2. However this method stretches each the construction and goal of the Treaties. Article 2 TEU just isn’t self-executing; it can not generate obligations by itself. For it to have authorized impact, it have to be paired with a selected provision that applies on to Member States and clearly displays one of many values it lists. This is the reason the Courtroom of Justice has constantly relied on Article 19(1) TEU in its value-related rulings: not like Article 2, it comprises a concrete obligation—Member States should guarantee efficient judicial safety. Different Treaty provisions, like Articles 10 or 298 TFEU, consult with values generally phrases however don’t create enforceable duties. They’re meant to information the EU establishments, to not bind Member States or justify authorized motion towards them. Even Article 291 TFEU, which requires Member States to implement EU legislation, respects their procedural autonomy and can’t justify broad worth enforcement. In brief, Article 2 TEU could assist interpret different guidelines, but it surely can’t be used to create new obligations until it’s mixed with a selected, binding authorized norm that already imposes a transparent responsibility on Member States. That’s the second key limitation: Article 2 TEU should all the time be tied to a concrete authorized hook—it can not stand alone or be mixed with imprecise references to values.

Conclusion

From a strictly legal-dogmatic perspective, and setting political issues apart, Article 2 TEU will be enforced independently solely by the particular process set out in Article 7 TEU. This isn’t simply due to the fabric limits of EU legislation, however due to how the Treaties are institutionally designed. Article 7 represents a aware selection by the Member States to put the enforcement of Union values—the place no particular authorized act or EU competence or obligation is concerned—within the palms of the Member States themselves, performing collectively by the Council and the European Council. It creates a excessive threshold, politically accountable course of that operates outdoors the abnormal judicial framework. The position of the Courtroom of Justice on this course of is intentionally restricted to procedural evaluation underneath Article 269 TFEU.

This institutional restraint is grounded within the Treaties’ broader separation of powers. Article 19(1) TEU makes clear that the Courtroom’s mandate is to make sure that the legislation is noticed “within the interpretation and utility of the Treaties,” and to ensure judicial safety solely “within the fields coated by Union legislation.” Granting the Courtroom broader constitutional powers—permitting it to derive binding obligations instantly from Article 2 TEU, with none connection to concrete provisions of major or secondary legislation—would transcend this mandate and danger altering the institutional stability of the Union with out ample democratic legitimacy. It additionally highlights a key distinction from nationwide constitutional courts: these courts draw their authority instantly from nationwide constitutions and democratic methods; the ECJ, in contrast, derives its authority solely from what the Member States have explicitly conferred.

If the Courtroom goals to maneuver nearer to the position of a real constitutional court docket, the ASJP case legislation nonetheless gives a promising path. The values in Article 2 TEU unquestionably apply to the EU establishments themselves, the place the precept of conferral doesn’t stand in the way in which. Making use of Article 2 TEU in that inner context wouldn’t solely improve institutional accountability however would additionally strengthen the legitimacy and acceptance of the Courtroom’s value-based jurisprudence. It will scale back the notion of political selectivity and floor the Courtroom’s authority extra firmly inside the logic of the Treaties themselves.

Benedikt Riedl, MJur (Oxford), is a postdoctoral researcher and educational assistant on the Chair of Public Legislation and Political Philosophy (Prof. Dr. Peter M. Huber, former Justice of the Federal Constitutional Courtroom and former Minister) at Ludwig Maximilian College of Munich.