The Autonomous Role of Article 2 TEU:
Constitutionalising the EU Values

1. Market, rights, values. A crescendo of reasoning

On 21 April 2026 the Court of Justice of the European Union added another brick—actually a cornerstone—to the edifice of the EU constitutional system.

This move has been eagerly awaited at a time when, in some Member States, the founding values enshrined in Article 2 TEU are facing growing and dangerous challenges. The Court clarified the status and scope of that Article, thereby further elevating its importance within the Union’s constitutional framework.

Only eight years have elapsed since the judgment in Case C–64/16, Associação Sindical dos Juízes Portugueses1 (hereafter ASJP), in which, for the first time, the Court addressed Article 2 TEU, considering it to be ‘concretised’ by Article 19 TEU. During this period, the interpretation of Article 2 TEU has evolved very significantly, and the Article has become the Grundnorm of the Union Treaties, expressing ‘the very identity’2 of the European Union.

The judgment in Case C–769/22, Commission v Hungary (Valeurs de l’Union)3 (hereinafter ‘the judgment’), delivered by the Court of Justice in full session, resumes the interpretative development of this provision and marks a new stage in the progressive constitutionalisation of the European legal order.4

For the first time, Article 2 TEU was recognised as an autonomous ground of infringement, without the need for reliance on other provisions of the Treaties.

The Court also clarified several key aspects of Article 2 TEU, including the threshold required to trigger it in infringement proceedings, its relationship with the Charter of Fundamental Rights, and its position vis-à-vis Articles 7 and 4(2) TEU. A clear picture thus emerges of a provision endowed with full legal—and constitutional—value, imposing legal obligations upon the EU Member States.

Upholding the Commission’s pleas and the Opinion of Advocate General Tamara Ćapeta,5 the Court found that Hungary had failed to fulfil its obligations by adopting, in 2021, a comprehensive legislative reform introducing ‘stricter measures in respect of persons convicted of paedophilia’. This body of legislation prohibits the diffusion of content concerning deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, and homosexuality. In reality, under the pretext of protecting children from paedophilia and pornography, it stigmatises and ostracises individuals who are not heterosexual or who do not identify with the sex assigned to them at birth.

The Hungarian reform affects a wide segment of society: all children and young adults in Hungary and their parents, churches, schools, media service providers, and electronic commerce operators. This legislation has been the subject of strongly critical opinions by both the Venice Commission and the European Parliament.6

This legislative framework is clearly the result of a coordinated and deliberate strategy. It is precisely the existence of such a comprehensive approach, combined with the wide-ranging societal impact, that led the Court to find that there had been not only breaches of Article 56 TFEU, several pieces of EU secondary legislation, and multiple fundamental rights enshrined in the Charter, but also an autonomous violation of Article 2 TEU.

The reasoning in the judgment follows a sort of Rossinian crescendo, moving from internal market freedoms (the overture) to fundamental rights (rising action) and, finally, to the Union’s founding values (climax), each step reinforcing the previous one. It could be suggested that this crescendo mirrors the historical evolution of the EU legal order, characterised by the progressive inclusion of additional dimensions—market, freedoms, fundamental rights, and values—in an increasingly constitutional direction and towards an ever-closer Union.

Moreover, this logical sequence makes it possible to overcome certain limits inherent in the Charter and to distinguish between fundamental rights and fundamental values. First, secondary legislation opens the door to the application of the Charter, pursuant to Article 51 thereof.7 Subsequently, since some of the rights violated—such as the rights to equality and dignity—also embody foundational values, Article 2 TEU comes into play in the light of the scale and seriousness of the violations.

Somewhat surprisingly, however, the examination of the grounds of infringement concerning the (blatant) breach of the GDPR8 was not carried out alongside the other aspects of secondary law but was instead addressed at the very end of the judgment, creating a certain sense of anticlimax. The Hungarian Law on the Criminal Records System required that personal data relating to individuals convicted of offences against the sexual freedom or morality of minors be made electronically accessible to any authorised person, based merely on a self-declaration. The Court found this to be a manifest breach of Article 10 GDPR, as well as of Article 8(2) of the Charter. The Court’s decision to deal with this issue only at the end of the judgment may reflect the intention not to disrupt the aforementioned crescendo, insofar as the GDPR breach, although infringing Article 8 of the Charter, was not considered capable of simultaneously violating one of the values enshrined in Article 2 TEU.9 Such a conclusion may, however, be open to debate. One might argue that the GDPR violations are so serious as to also affect the value of individual freedom, affirmed by Article 2 TEU, whose legal content has yet to be articulated by the Court. Although this would have gone beyond the grounds raised by the Commission, the present case could have provided an opportunity to initiate a reflection on that value.

The structure of our analysis is as follows. First, we will analyse the structure of the reasoning followed by the Court. Then, following that structure, we will analyse the various breaches of EU law by the Hungarian legislation. Moving from market to rights to values, we will highlight the axiological and constitutional aspects that run like a common thread through the entire reasoning of the judgment. Then we will analyse a particularly important aspect of the judgment, explaining the relationships between the European identity, as enshrined in Article 2 TEU, and the national identities of the Member States. Finally, some conclusive remarks will be submitted concerning the constitutional significance of this judgment, as well as the questions it leaves open.

2. Reading internal market legislation in the light of Article 21 of the Charter

The Commission’s pleas concerned breaches of the Audiovisual Media Services Directive,10 the Information Society Services Directive,11 and the Services Directive,12 as well as Article 56 TFEU. However, the judgment does not just contain reasoning about the internal market Directives. The interplay between these provisions and the Charter is already crucial at this stage.

On the one hand, although in principle all these instruments allow for certain derogations, the Court relied on its settled case law according to which all derogations must comply with the Charter.13 In the present case, the Hungarian legislation, entailing direct discrimination based on gender identity, breaches Article 21 of the Charter, which prohibits all discrimination grounded on sex or sexual orientation.14 The Court, consequently, rejected the justifications invoked by Hungary. On the other hand, the application of substantive EU law triggers the application of many provisions of the Charter under Article 51 thereof.

As requested by the Commission, the Court found that the Hungarian laws breached each of the three Directives in relation to different aspects of the freedom to provide services.

1) As regards the Audiovisual Media Services Directive, which requires Member States to ensure freedom of reception and retransmission, within their territory, of audiovisual media services originating from other Member States, the Court pointed out that the Hungarian Law on Media Services restricts the broadcasting of content portraying gender identities or sexual orientations departing from the sex assigned at birth.

Hungary’s defence relied on the best interests of the child and on parental rights under Articles 24(2) and 14(3) of the Charter. While acknowledging that the Directive allows only minimum harmonisation, the Court found that the Hungarian measures were neither necessary nor proportionate considering the principle of the best interests of the child.

The Court affirmed that EU law must be interpreted in the light of Article 21 of the Charter, which prohibits discrimination based on sex and sexual orientation, including gender identity. Under Article 52(1) of the Charter, any limitation of fundamental rights must respect the essence of these rights. The Hungarian legislation, by favouring certain identities and stigmatising others, clearly violates that essence and is, according to the Court, ‘manifestly contrary to the requirements flowing, in a society in which pluralism prevails’.15

As regards the right of parents to ensure the education of their children in conformity with their convictions, the Court observed that a general broadcasting restriction imposed by a state would, on the contrary, deprive parents of their freedom of choice concerning the education and teaching of their children.

Additional violations of the same Directive arise from the Hungarian Law on Commercial Advertising, which restricts the freedom to provide commercial services by prohibiting the dissemination of advertising, to persons under the age of 18, that depicts sexuality as an end in itself, or that promotes or portrays a divergence from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality.

In the absence of valid justification for the Hungarian legislation, the Court affirmed that it is incompatible with the Directive.

2) With regard to the Information Society Services Directive, the Court adopted a notably broad interpretation.

The Directive is founded on the principles of mutual recognition and home-country control. In the present case, the restrictions on the freedom to provide cross-border information society services not only appear to be merely potential restrictions,16 but it is uncertain whether all the activities concerned are of an economic nature, as required by the Directive. However, as the Court observed, given the broad range of persons to whom the Law on the Protection of Children may apply, ‘it cannot be excluded’ that some of those persons provide ‘information society services’ within the meaning of the Directive.

Following this line of reasoning, the concept of information society services is broadened to the extent that it encompasses any service that could, even only potentially, be provided by electronic means. This approach could raise questions and establish critical precedents, particularly in relation to public education.

The Court recalled that, while EU law does not affect the competence of the Member States as regards the content of teaching and the organisation of education systems and their cultural and linguistic diversity, in exercising that competence, Member States must comply with EU law, in particular with the law on the freedom to provide services. Moreover, although a state typically provides most educational services without remuneration, the Court merely noted that Hungary had failed to establish that ‘those services cannot in any circumstances be provided by electronic means’.17

In this context, the balance drawn by the Court between Member States’ competences in the field of education and the freedom to provide information society services may raise some doubts. Any national rule about education could be regarded as rendering the provision of information society services in another Member State ‘less attractive’ (to use the Court’s wording).

The Court also considered the rights of advertisers, and held that the Hungarian legislation, by prohibiting the making available of certain content to minors, renders the freedom to provide advertising services within the framework of the information society less attractive, even though it does not lay down a specific prohibition on advertising as such.

3) The third plea put forward by the Commission concerned the breach of the freedom to provide services under the General Services Directive 2006/123 and Article 56 TFEU, both of which apply in situations not covered by the two aforementioned Directives if neither media services nor information society services are involved.

According to the Court, service providers established in another Member State who wished to offer childcare-related services in Hungary, such as daycare, nursery education, private tutoring, au pairing, or training courses, would be prevented from doing so. Although these services can be provided by, or on behalf of, the state, Hungary did not demonstrate that all such services are provided by public means.18

The restriction would also extend to advertising services accompanying the provision of other (non-advertising) services. The Hungarian legislation is thus considered capable of affecting private external service providers indirectly connected with public institutions, such as third parties organising training courses, conferences, or artistic performances for remuneration.

Finally, as to Article 56 TFEU, the Court held that the Hungarian measures could be justified neither on the grounds of public policy, public security or public health, nor on the grounds of mandatory requirements, because they are discriminatory and infringe the essence of Article 21 of the Charter.

It can be observed that in many parts of this judgment, the proportionality test is often summary, or even entirely absent. That might be explained by several factors: (a) as a rule, direct discrimination does not allow for justification; (b) the essence of the right enshrined in Article 21 is compromised; and (c) in any event, the first step of the proportionality test, namely the identification of legitimate objectives, would not be satisfied by the Hungarian legislation, in the light not of its declared aims (the protection of children) but of its underlying purposes (the stigmatisation and marginalisation of a segment of society). Nevertheless, a clearer explanation of the reasons why the Hungarian measures are disproportionate would have been appropriate in certain parts of the judgment.

3. The multiple violations of the Charter and their impact on society

As explained above, the Charter—particularly Article 21—was used by the Court as an interpretative tool to guide the application of internal market legislation, thereby narrowing the scope for exceptions. Moreover, the Charter plays a pivotal role in this judgment, acting as a bridge between market freedoms and fundamental values. Furthermore, the Commission had submitted several specific grounds on which it argued that the Hungarian legislation infringed the Charter itself.

In its fifth plea, the Commission added to the alleged breach of Article 21 a violation of Articles 1, 7, and 11 of the Charter. The Court, proceeding in crescendo, addressed dignity—the most fundamental of rights—only at the final stage.

With regard to Article 7 of the Charter, the Court recalled that it protects gender identity and sexual orientation as essential components of the protection of private life.19 It also referred, in accordance with Article 52(3) of the Charter, to Article 8 ECHR and the notion of ‘private social life’, which encompasses the individual’s ability to develop their social identity20 and the protection of both the personal and the social sphere. The judgment specifies21 that Article 7 imposes on the Member States positive obligations to protect non-cisgender persons, leaving them very limited discretion in this area.

The Hungarian legislation promotes a model of society based on a preference for certain personal identities, gender identities, relationships, and families. The judgment underlines the negative social effects of that legislation, which restricts minors’ access in respect of content or commercial communications promoting or portraying deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality. Such a restriction is offensive and stigmatising in respect of those members of society who are affected by those provisions. It not only marginalises those persons but also reinforces their stigmatisation within the public sphere.

The very title of the reform contributes to this effect, indirectly associating such individuals with paedophilia and thereby fostering hostility, or even hateful conduct towards them, ‘given that such persons could thereby be associated with persons convicted of paedophilia’.22

As regards Article 11, the Court highlighted that the Hungarian legislation, by being broadly and vaguely formulated, leaves a wide discretion—and legal uncertainty—over what type of content or advertising constitutes such a promotion. As a consequence, the legislation hampers freedom of expression, both for the providers and media broadcasters and for the recipients.

The Court affirmed that ‘freedom of expression is one of the basic conditions for progress in a democratic society and for each individual’s self-fulfilment; it protects not only “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”’.23

Consequently, the Court found that the Hungarian legislation, affecting both providers and recipients of information, constitutes a particularly serious interference with the freedoms of expression (Article 11(1) Charter) and information (Article 11(2) Charter). More generally, the legislation also affects the right of all individuals—regardless of their sexual orientation—to diffuse and receive such content.

Finally, the Court assessed the infringement of Article 1 of the Charter, restating the fact that human dignity is inviolable. According to the Explanations relating to the Charter, human dignity is not only a fundamental right in itself but constitutes the very basis of fundamental rights. It follows from this, the Court affirmed, ‘that none of the rights laid down in the Charter may be used to harm the dignity of another person and that the dignity of the human person is part of the substance of the rights laid down therein’.24

The potential impact of the Hungarian legislation on society is central to establishing a violation of Article 1 of the Charter.

The Court found that the legislation infringes human dignity by producing effects of stigmatisation and marginalisation of a minority group, solely based on the gender identity or sexual orientation of the members of that group. The Court reiterated that the combination of the title of the amending law—associating non-cisgender or non-heterosexual persons with paedophilia—and those effects is liable to encourage hostile or hateful conduct towards such individuals. According to the Court, the stigmatisation of ‘a group of persons forming an integral part of a society in which pluralism prevails […] results in such persons’ social “invisibility”’.25

This judgment is not the first to highlight the detrimental societal effects of national measures affecting fundamental rights, particularly stigmatisation, as a violation of EU law.26 However, the assessment of the Hungarian legislation and its societal impact reveals that all the fundamental rights at issue have been infringed as the result of a single, coordinated strategy aimed at ostracising and marginalising a segment of society portrayed as ‘wrong’.

4. The autonomous breach of Article 2 TEU: A matter of scale

In ASJP27 and subsequent case law, certain provisions of the Treaties (such as Article 19 TEU) assumed a particular constitutional importance insofar as they were an expression of Article 2 TEU. While those cases concerned breaches of individual values enshrined in Article 2 TEU, the present case involves a coherent strategy by the Hungarian government that calls into question Article 2 TEU in its entirety.

The most innovative and constitutionally significant part of the judgment relates to the sixth plea, which concerns the breach of Article 2 TEU per se, in addition to the aforementioned breaches of EU law. The Court did not limit itself to affirming the binding and autonomous nature of Article 2 TEU with respect to other provisions of the Treaties. It also provided, for the first time, a clear distinction between the role of Article 2 TEU and that of the Charter of Fundamental Rights.

The Court affirmed the binding nature of Article 2 TEU and its autonomous role—that is, the possibility that it can be used as an autonomous plea in infringement procedures, without needing to be given concrete expression through other Treaty provisions. It then proceeded to clarify the threshold required for the autonomous application of Article 2 TEU.

The Court reiterated that ‘Article 2 TEU is not a mere 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, and which require the Member States to maintain and promote them’.28

‘It must therefore be found’, the Court stated, that Article 2 TEU ‘delimits the founding values of the Union which the Member States, bound by those values as a result of their belonging to the Union, mutually undertake to respect, maintain and promote’.29 Respect for the values enshrined in Article 2 TEU is a prerequisite for any European state to join the European Union under Article 49 TEU, as well as a condition for it to enjoy all the rights deriving from the application of the Treaties. After accession, a Member State must ensure that any regression is prevented, and it cannot amend its legislation in a way that reduces the protection of those values.30

According to the Court, Article 2 TEU is legally binding on the Member States because of its wording, context and ‘preparatory works’. On the one hand, the same values affirmed by Article 2 are mentioned in the Preamble of the TEU, which, by contrast, has no binding value. On the other hand, other binding provisions of the Treaties refer more specifically to individual values.31 With regard to the preparatory works for Article 2 TEU, as pointed out by AG Ćapeta,32 the Lisbon Treaty transformed the previous reference to ‘principles’ to a reference to ‘values’, thus mirroring the drafting of the Convention on the Future of Europe.

According to the Court, therefore, Article 2 TEU autonomously establishes ‘legally binding horizontal obligations within the Union and define the very identity of the Union as a common legal order’.33 Unlike the argument put forward by the Commission,34 which had pointed out the horizontal nature of the infringement resulting from the breaches of Articles 1, 7, 11 and 21 of the Charter, the concept of ‘horizontal’ obligations retained by the Court seems to refer to the fact that these values are binding for both EU institutions and Member States.35

In establishing the autonomous value of Article 2 TEU, the Court rejected Hungary’s argument that the sanction for a violation of the values affirmed by Article 2 TEU is found only under Article 7 TEU and not through an infringement action under Article 258 TFEU. The procedures set out in Article 7 TEU pursue different objectives and have different consequences from an infringement action, so that the one does not exclude the other.36

Although Article 2 TEU constitutes an autonomous ground of infringement, it can only be activated in exceptional circumstances. These will occur, notably, only when a Member State commits ‘manifest and particularly serious breaches of one or more values common to the Member States’.37

In this regard, the Courts established an important distinction between breaches of Article 2 TEU and violations of fundamental rights, including those—such as the values enshrined in Articles 1, 7, 11, and 21 of the Charter—that also reflect the values enshrined in Article 2 TEU.

Not every infringement of a provision of EU law that, directly or indirectly, gives concrete expression to those values necessarily entails a violation of Article 2 TEU.38 The interpretation of Article 2 TEU cannot go beyond the competences of the Union and, in particular, the limits of the Charter set out by Article 51 thereof, according to which the Charter applies to the Member States only when they are implementing Union law.

Accordingly, while ‘the breach of several fundamental rights guaranteed by the Charter which give concrete expression to the values enshrined in Article 2 TEU may be an indication [italics added] that there has been a failure to respect those values’,39 only manifest and particularly serious breaches of one or more values common to the Member States may constitute a failure by a Member State to fulfil its legally binding obligations under Article 2 TEU.40

While the Charter can be invoked in individual cases and also in the absence of systemic violations, the triggering of Article 2 TEU is a matter of scale.41 A single case of discrimination within the scope of EU law may breach secondary legislation and the Charter, but not Article 2 TEU itself.42 Only structural rules producing massive and systemic violations of fundamental rights reach the threshold of the respect for human rights established by Article 2 TEU. Therefore, what scholars have called ‘red lines’43 are not the single values themselves, but rather the trespassing of a threshold that is high, in both quantitative and qualitative terms.

To summarise, even though they often coincide, there is no biunivocal correspondence between violations of the fundamental rights in the Charter and violations of the values in Article 2 TEU, particularly the human rights mentioned therein. While it is easy to imagine cases of breaches of individual rights that do not involve large-scale violations of Article 2 TEU, the opposite case could be imagined—for example, when a Member State seriously and manifestly breaches other values, such as the rule of law and judicial independence, while most trials still respect Article 47 of the Charter. Although they can, in principle, work in synergy, Article 2 TEU and the Charter act on different scales.

In the present case, as the Advocate General pointed out,44 the Hungarian reform introduces coordinated discriminatory measures that result in the stigmatisation and marginalisation of non-cisgender or non-heterosexual persons. This is exacerbated by the idea that these persons pose a threat to Hungarian and European society, and the link made between such persons and paedophiles can encourage hateful behaviour towards them. Such stigmatisation and marginalisation aims to render some members of society invisible, and ‘runs counter to the values of respect for human dignity, equality, and respect for human rights, including the rights of persons belonging to minorities, as referred to in Article 2 TEU’.

The Court’s choice to maintain a high threshold for triggering the autonomous application of Article 2 TEU must be praised. On the one hand, this preserves the national sovereignty of the Member States and respect for the principle of conferral. As the Court affirmed in relation to the values contained in Article 2 TEU, the Union must be able to defend those values ‘within the limits of its powers’.45 On the other hand, this approach helps to prevent a trivialisation of Article 2 TEU, which is important for preserving its foundational meaning.46

Nevertheless, the exact definition of the threshold beyond which the autonomous application of Article 2 TEU can be triggered should be clarified in future decisions. Rather than following the idea of the ‘denial’ of values, proposed by AG Ćapeta, or the formulas, advanced by the Commission,47 of ‘a certain degree of seriousness’ or ‘the horizontal nature’ of the breach of Articles 1, 7, 11 and 21 of the Charter, the Court found its own path, the idea of the systemic scale of the violations.

However, it is unclear whether—and how—‘manifest and particularly serious breaches’ differ from the ‘serious’ or ‘serious and persistent’ breaches envisaged, respectively, by Articles 7(1) and 7(2) TEU. Even if the wording coincides, different institutions may assess things differently because their political perspectives may differ. Nevertheless, legal certainty requires clarity and predictability from the courts. We can therefore expect the Court to clarify the threshold in future judgments.

It is submitted that three conditions concerning the nature of the violations committed by a Member State should be met to trigger the autonomous application of Article 2 TEU.48 While this makes such an application quite exceptional, all these three conditions were met in the Hungarian case.

First, the violations should prove a clear regression in the protection of EU values, which was blatant in the Hungarian case.

Secondly, the violations must occur on a significant scale. On the one hand, the Hungarian legislation seriously breaches many values that could not have been subsumed in any other alleged breaches of EU primary or secondary law. On the other hand, it is only by referring to the comprehensive framework of Article 2 TEU that all the individual Hungarian measures that violate different EU norms can be seen as part of a single deliberate strategy against a vulnerable group.

Thirdly, these violations must have a significant impact on society. Combining in the same assessment the concepts of the two paragraphs of Article 2 TEU, the Court referred to an incompatibility with ‘the very identity of the Union as a common legal order of a society in which pluralism prevails’.49 The potential impact on society is important for distinguishing isolated breaches from systemic or particularly serious ones. In the present case, the decisive factor in triggering the autonomous application of Article 2 TEU was the global stigmatising and ostracising impact, mentioned by the Commission, on ‘the Hungarian and the European society’, produced by an orchestrated strategy.50 That legislation was deeply divisive, feeding contempt, hatred and potential violence against the ‘wrong’ ones. That in itself constituted an infringement of Article 2 TEU, beyond any other violation of EU law.

In summary, the threshold for triggering the autonomous application of Article 2 is both quantitative and qualitative. Its determination is a complex and combined process involving civil society, national judges, the European Commission and, finally, the Court of Justice. This process is a means of defence of the founding values of the EU constitutional order, which is milder and less disruptive than the procedure under Article 7(2) TEU.

5. European identity versus national identity? Article 2 TEU as the common identity clause

The judgment raises important issues concerning the relationship between Articles 2 and 4(2) TEU, and consequently between national and European identities.

The first issue concerns whether a Member State can derogate from the EU’s common values in the name of national identity. Hungary invoked respect for its national identity under Article 4(2) TEU to justify derogating from respect for Article 2 TEU.

The Commission51 replied that a Member State cannot invoke Article 4(2) TEU unless it can demonstrate that its national identity is indeed being undermined, that its national legislation is based on objective considerations and is duly justified and proportionate, and that it respects the fundamental rights guaranteed by the Charter and the general principles of EU law. In other words, the Commission suggested that the Court should apply a classic test of proportionality. However, in this judgment, the Court followed an even stricter line.

In previous rulings, the Court of Justice had already affirmed that, ‘in choosing their respective constitutional model, the Member States are required to comply, inter alia, with the requirement that the courts be independent’ as set out in Article 2 and the second subparagraph of Article 19(1) TEU.52

In the present case, the Court reiterated that, under Article 4(2) TEU, the Union must ‘respect, inter alia, the equality of Member States before the Treaties as well as their national identities’.53 The Court acknowledged that Member States enjoy a margin of appreciation in protecting the fundamental interests of society with regard to issues closely connected to their national identities. However, although the Member States have separate national identities, they share common values that ‘they have undertaken to respect at all times’.

Building upon previous case law,54 the Court found that the obligations resulting from Article 2 TEU may ‘in no way’ vary from one Member State to another.55 Therefore, Article 4(2) cannot exempt Member States from the obligation to comply with the requirements arising from Article 2 TEU.

In parallel with Article 4(2) TEU, which provides for a national identity clause, the values enshrined in Article 2 TEU represent the European identity. However, this is not an estranged identity for the Member States, but rather a common identity. Not only are these values inspired by the national constitutional traditions, but they have also been chosen by all the Member States that ratified the Treaty of Lisbon, which gave the values a key role in the EU constitutional framework. Respect for these values is a condition for EU membership.

Although grounded in the Member States’ common constitutional traditions, the values affirmed by Article 2 TEU were elevated by the Treaty of Lisbon to become an integral part of primary law. However, this concept is not an expression of all the individual constitutional traditions of each Member State; rather, it represents an autonomous source of values of the European Union as a common legal order.

A second issue arises from paragraph 562 of the judgment, which states that Article 4(2) TEU ‘protects only a view of the national identities referred to therein which is consistent with the values enshrined in Article 2 TEU’.56 This statement vividly repeats what was previously clarified in the Court’s case law. However, it raises two questions. First, can the Court of Justice decide what constitutes a ‘right’ or a ‘wrong’ national identity?57 Secondly, does it intend to establish a hierarchy between European and national identities?

Despite the boldness of the statement, the answer to both these questions is negative.

With regard to the first question, the Court must respect the principles of conferral and sincere cooperation, as well as the limits of its own competences as an institution under Article 13 TEU. However, Article 2 TEU establishes obligations not only for the Member States, but also for the EU institutions, including the Court, which must defend it.

The Court is not in a position to define the national identities of the Member States. It has previously ruled that this responsibility lies with the constitutional courts of the Member States. However, only the Court of Justice can interpret the Treaty provisions, including Articles 2 TEU and 4(2) TEU, as well as the relationships between them.

Therefore, it is the Court’s responsibility to determine whether and to what extent a Member State may derogate from the common rules in the name of its national identity pursuant to Article 4(2). Consequently, constitutional courts cannot unilaterally derogate from Union law in the name of their own national identity and must engage in a dialogue with the Court of Justice through the preliminary ruling procedure.58

Regarding the second question, some scholars59 have suggested that the aforementioned statement renders Article 4(2) TEU subordinate to Article 2 TEU, transforming the former into a derivative clause of the latter.60

Article 2 TEU, which represents the founding values expressing the very identity of the Union and which establishes the essential requirement of EU membership, certainly enjoys a ‘moral’ superiority over all the other provisions of the EU Treaties.61 However, it seems not only difficult—these are, in fact, both provisions of primary law forming part of the EU constitutional framework—but also unnecessary to frame the relationships between Articles 2 and 4(2) TEU in terms of a formal hierarchy. As in prior rulings,62 the judgment describes the relationship between the two norms in terms of coexistence rather than hierarchy, affirming that Article 4(2) TEU ‘must be read in the light of provisions of the same rank, in particular Article 2 TEU’.63

Instead, the relationship between Articles 2 and 4(2) TEU must be considered in the light of the wording of the latter, which places respect for national identities immediately after the principle of the equality of Member States before the Treaties. Logically and legally, this structure shows a relationship between a general rule and its exceptions: the rule is that all Member States must comply with European law in the same way, and the exceptions are the restrictions to those values requested by Member States in the name of their national identity. In this respect, in accordance with general principles of law, exceptions and derogations should be interpreted narrowly.64

Therefore, when interpreting Article 2 TEU, the Court neither grants licences for ‘right’ national identities, nor affirms that European identity has a higher rank than national identities. However, the Court cannot accept any grounds of national identity as justification for manifest and particularly serious breaches of the values that are a condition of EU membership.

One final issue is the lack of a proportionality test in the Court’s assessment of the relationship between Articles 4(2) and 2 TEU, as pointed out by some scholars.65 This test is typical when balancing a rule with exceptions. The Court has previously interpreted the identity clause of Article 4(2) in relation to other EU legal provisions, applying the proportionality test. As a result, it has sometimes recognised the identity-related reasons of the Member State concerned,66 has sometimes accepted them in limited and conditional terms,67 and has at other times considered the national measures to be disproportionate.68

In this case, however, the Court did not apply such a test when assessing the relationship between Articles 2 and 4(2) TEU. This is likely to be due to the nature of Article 2 and the high threshold of violations necessary to trigger its application. Once this threshold has been crossed, no proportionality test could justify manifest and particularly serious breaches of the values that express the very identity of the Union and the very essence of EU membership.69

6. Conclusion

In conclusion, it is important to consider the constitutional significance of this ruling, as well as the questions it leaves open for the future development of ECJ case law.

The path that the Court has taken, beginning with ASJP and subsequent case law on the rule of law, is of great significance in defining the European constitutional order as a community of values, adherence to which is an essential condition for membership.

This judgment constitutes a fundamental milestone in this evolutionary process. The legal significance of Article 2 TEU stands out autonomously within this constitutional framework. The EU’s founding values are ultimately the fundamental pillar of this constitutional framework, and the relationship between European identity and the national identities of the Member States also hinges on these values. This ruling also clarifies the systemic role of Article 2 TEU. Unlike the Charter, it comes into play when the seriousness of a violation of values has a systemic dimension.

This judgment also raises three delicate questions whose answers have significant implications.

The first concerns the relationship between Article 2 and Article 7 TEU. Clearly, they provide separate remedies and operate at different levels, and, as we have seen, the Court’s legal evaluation could differ from the political assessment made by other institutions. However, once the Court has found the existence of ‘manifest and particularly serious breaches’ of one or more of the values affirmed by Article 2 TEU, what use is Article 7(1) TEU, which provides that the Commission, the European Parliament or four-fifths of the members of the Council may decide that there is ‘a clear risk of a serious breach’ of those values? Should the Commission not be obliged to propose a triggering of the first stage of Article 7 TEU? How could the other institutions deny the existence of such a risk in the face of a judgment by the Court? Then, of course, the usual difficulties of climbing the other steps of Article 7 TEU would remain, although the possibility of a ‘surgical’ use of Article 7(3) TEU70 could perhaps make it easier to reach a decision under Article 7(2) TEU.

A second question arises as to whether Article 2 TEU can be autonomously invoked in a preliminary ruling procedure.

It is argued that the answer to this question is affirmative, but subject to the same limitations clarified by the Court in the Hungarian infringement case. In particular, the threshold must remain high, and the use of Article 2 TEU must not circumvent the EU competences and Article 51 of the Charter.

In the recent case of Orbán,71 the Court reiterated that, if the substantive law cannot be applied—in that case ratione temporis—the application of Article 11 of the Charter to the dispute in question cannot be justified solely through the referring court’s reliance on the values enshrined in Article 2 TEU. This judgment, reported by the same judge who reported in Commission v Hungary, has interesting implications.

As the ‘shadow of the EU law’,72 the Charter can only be applied in combination with the substantive provisions of EU law, which define its scope. If this is true, the logical consequence of the new judgment is that, despite its autonomous and binding value, Article 2 TEU is not considered a substantive provision of EU law that must be implemented by Member States within the meaning of Article 51 of the Charter. This is not due to Article 52(5) of the Charter drawing a distinction, internal to the Charter, between rights and principles. Unlike principles, Article 2 TEU is justiciable; however, it does not confer substantive competences to the EU.

This also excludes, a contrario, the direct effect of Article 2 TEU per se, because, if there were such an effect, Article 2 would be able to provide the scope for the Charter itself, in contradiction of what has been affirmed by the Court.

Although the Court has specified the binding value of Article 2 TEU and its horizontal reach to the Member States and EU institutions, this does not seem sufficient to establish the direct effect of that provision. This is because the necessary clarity and precision are missing, with regard to some of the values it affirms (e.g. freedom).

However, Article 2 TEU can be used by the Court to interpret EU law, or in combination with other provisions that have direct effect, such as Article 19 TEU.

The final question is presently merely hypothetical: could Article 2 be used alone in infringement proceedings rather than in combination with other provisions?

Article 258 TFEU specifies that these actions can only cover ‘obligations under the Treaties’. Furthermore, the Court has repeatedly affirmed that the Union must be able to defend its values within the limits of its powers, as laid down by the Treaties. However, the Court’s qualification of Article 2 TEU as autonomous and binding must be taken into account.

The autonomous value of Article 2 TEU means that it does not need to be concretised by other provisions of the Treaties. As a binding provision, it is unlike the Charter in not being ‘the shadow’ of the Treaties; it is a Treaty provision itself, and its scope is limited only by the principle of conferral. If the application of Article 2 TEU cannot circumvent the limits of the Charter, this does not mean that Article 2 is per se subject to the same limitations as the Charter.

Having said this, it is difficult to imagine a case for using Article 2 TEU alone: this would require particularly serious breaches of the founding values to have no impact on any other provision of EU law.73 However, in theory, some values, such as the rule of law and democracy, could also be violated outside the scope of EU law in extreme situations in which a Member State regresses towards a non-democratic regime, such as a suspension or flagrant violation of electoral procedures or a coup d’état. In such situations, Article 2 TEU, not alone but jointly with Article 49 TEU,74 could potentially provide grounds for an infringement action, because, as mentioned above, a significant regression in the values enshrined in Article 2 TEU is relevant under both of these Articles.

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1 Associação Sindical dos Juízes Portugueses, C–64/16, EU:C:2018:117.

2 Hungary v Parliament and Council, C–156/21, EU:C:2022:97.

3 Commission v Hungary (Valeurs de l’Union), C–769/22, EU:C:2026:326.

4 Many comments have already been made on this judgment. See the EU Law Live Symposium Enforcing Article 2 TEU: The CJEU’s Judgment in Commission v. Hungary (C–769/22) with contributions by P. Bárd, The CJEU’s Monomyth: Reaching Article 2 TEU, the Union’s Crown Jewel; M. Bonelli, Solving One Question, Opening Many More: Valeurs de l’Union; W. Bruno, The Strongest Metals are Forged in the Crucible: Why are EU Values Binding?; P. Craig, Article 2, Values and Incremental Legal Reasoning; B. Grabowska-Moroz, An EU Constitutional Moment: Much-Awaited, Slightly Delayed?; D. Harvey, Commission v. Hungary and the Essence of Fundamental Rights: Proportionality in Disguise?; J. Hoeksma, Commission v. Hungary: A Vindication for the European Parliament; J. Lindeboom, The Amenable Court of Justice: A Legal Realist Take on the Justiciability of Article 2 TEU; J. Morijn, The Hamburger of EU Values Protection in Commission v. Hungary: A Riddle, Wrapped in a Mystery, Inside an Enigma; R. O’Neill, Citizenship, Values and Equal Treatment: The Union of Malta, Cupriak-Trojan and Hungary; L. Pech, Infringement of Article 2 TEU as a New Avenue to Overcome Article 7 TEU Paralysis; E. Renoud Delarque, The Court of Justice as Guardian—and Author—of EU Values? Reflections on Commission v Hungary (C–769/22); B. Riedl, Foundation, Standard, Legitimation: Reflections on Commission v. Hungary; L. S. Rossi, Commission v. Hungary: Why Article 4(2) TEU Protects Only a National Identity Which is Consistent with Article 2 TEU; R. Uitz, K. Alexandris Polomarkakis, Values at the Heart of the European Constitutional Acquis – And Beyond the Rule of Law Crisis? Commission v. Hungary (C–769/2). See also P. De Pasquale, Protezione dei minori e stigmatizzazione delle identità LGBTI+: brevi riflessioni a margine della sentenza Commissione/Ungheria (Valeurs de l’Union) Quaderni AISDUE, 2/26; L. Kaiser, Heavy Artillery, Light Reasoning. A Doctrinally Thin but Significant New Autonomous Standard of Review under Article 2 TEU, VBlog, 29 April 2026; P. Mori, La giustiziabilità dell’art. 2 TUE e la funzione costituzionale dei valori nella sentenza Commissione/Ungheria (Valeurs de l’Union), Unione Europea e Diritti, 2/26; M. Poiares Maduro, A. von Bogdandy, On Commission/Hungary (Art. 2 TEU) – A Conversation with Daniel Sarmiento, Podcast 27.4.2026; J. Scholtes, To Identity and Beyond?: Commission v Hungary and the Constitutional Identity Rationale, VBlog, 20 May 2026; M. Van den Brink, A Constitutional Court without a Constitutional Compass: Reflections on Commission v Hungary, VBlog, 24 April 2026; A. von Bogdandy, L. D. Spieker, The Red Lines of European Society: Article 2 TEU After Commission v Hungary, VBlog, 30 April 2026.

5 Opinion of Advocate General Ćapeta delivered on 5 June 2025. See, ex multis, the comments of G. Di Federico, M. Lanotte, Le conclusioni dell’AG Ćapeta in Commissione c. Ungheria e l’uso a sé stante dell’art. 2 TUE, EJ, 2, 2025, pp. 347 ff.; S. Fitzpatrick, Crossing ‘Red lines’: Invoking Article 2 TEU in Infringement Litigation. Opinion of Advocate General Ćapeta delivered on 5 June 2025, Case C–769/22, Commission v. Hungary, RCE, 2, 2025, pp. 649 ff.

6 See, for more detail, L. S. Rossi, “Concretised”, “Flanked”, or “Standalone”? Some Reflections on the Application of Article 2 TEU, European Papers 1, 2025, https://www.europeanpapers.eu/e-journal/concretised-flanked-standalone-reflections-application-article-2-teu

7 See para. 420 of the judgment.

8 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.

9 The judgment, para 13. The Court had already expressed this concept in Mousse, C-394/23, EU:C:2025:2.

10 Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services.

11 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market.

12 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market.

13 See, for instance, Robert Pfleger and Others, C–390/12, EU:C:2014:281; Google Spain and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, C–131/12, EU:C:2014:317, para. 68; Bank Melli Iran v Telekom Deutschland GmbH, C–124/20, EU:C:2021:1035, para. 70.

14 The Court had already discussed this concept in Mousse v Commission nationale de l’informatique et des libertés (CNIL) and SNCF Connect, C–394/23, EU:C:2025:2.

15 The judgment, para. 141.

16 If this could be justified in a ‘Dassonville logic’ for the freedom to provide services, it could not automatically extend the scope of the Directive on Information Society Services.

17 Para. 279 of the judgment.

18 Ibidem, para. 345.

19 M.-A.A. v Direcţia de Evidenţă a Persoanelor Cluj and Others, C–4/23, ECLI EU:C:2024:845, para. 64.

20 ECtHR, 5 September 2017, Bărbulescu v Romania, CE:ECHR:2017:0905JUD006149608, § 70.

21 The judgment para. 436.

22 See paras 445 and 446 of the judgment.

23 Ibidem, para. 460.

24 Ibidem, para. 486.

25 Ibidem, para. 489.

26 See, for instance, Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge, C–417/23, EU:C:2025:1017, para. 126 and CHEZ Razpredelenie Bulgaria, C–83/14, EU:C:2015:480, para. 86.

27 Associação Sindical dos Juízes Portugueses, C–64/16, EU:C:2018:117.

28 The judgment, para. 525.

29 Ibidem, para. 530.

30 The principle of non-regression was established by the Court in Repubblika v Il-Prim Ministru, C–896/19, EU:C:2021:311, paras 63 and 64. See also Hungary v Parliament and Council, C–156/21, EU:C:2022:97, para. 126 and Poland v Parliament and Council, C–157/21, EU:C:2022:98, para. 144.

31 Notably Articles 3(1) and (5), Articles 7(1) and (2), Article 8(1), Article 13(1), Article 21(2)(a), the first para. of Article 32, and Article 42(5) TEU. See para. 534 of the judgment.

32 Para. 169 of the Opinion.

33 Para. 546 of the judgment.

34 Ibidem, para. 511.

35 This is because para. 546 refers to para. 536.

36 On these differences, see, in more detail, Rossi, Concretised, cit.

37 Para. 551 of the judgment.

38 Ibidem, para. 547.

39 Ibidem, para. 548.

40 Ibidem, para. 551.

41 The Court has recently followed a similar reasoning with regard to Articles 19 TEU and 47 of the Charter. See Sociedad Civil Catalana, Asociación Cívica y Cultural (SCC), C523/24, EU:C:2026:588, para 115.

42 See, for more detail, Rossi, Commission v. Hungary, cit.

43 von Bogdandy and Spieker, The Red Lines, cit.

44 Paras 79–83 of the Opinion.

45 Hungary v Parliament and Council, C–156/21, EU:C:2022:97, para. 127.

46 See Rossi, Concretised, cit.

47 Para. 511 of the judgment.

48 See Rossi, Commission v. Hungary, cit and Concretised, cit.

49 Para. 551 of the judgment.

50 Ibidem, para. 495.

51 Ibidem, para. 505.

52 See, for example, Commission v Poland, C–204/21, EU:C:2023:442, para. 74; RS (Effect of the decisions of a constitutional court), C–430/21, EU:C:2022:99, para. 43.

53 Para. 558 of the judgment.

54 Hungary v Parliament and Council, C–156/21, EU:C:2022:97, paras 233 and 234; Commission v Poland, C–204/21, EU:C:2023:442, para. 73.

55 Para. 559 of the judgment.

56 Para. 562 of the judgment.

57 Renoud Delarque, The Court of Justice, cit.

58 RS (Effect of the decisions of a constitutional court), C–430/21, EU:C:2022:99, paras. 69–71.

59 See Riedl, Foundation, Standard, Legitimation, cit; Athanasiou, When Values Eclipse Identity: Commission v Hungary (Values of the Union) and the Unfinished Balancing of Articles 2 and 4(2) TEU, EU Law Blog, 5 May 2026; Renoud Delarque, The Court of Justice, cit; Bonelli, Solving One Question, cit.

60 B. Riedl, Who Guards the Values? The Court’s Article 2 TEU Turn, EU Law Blog, 23 April 2026.

61 Rossi, Commission v. Hungary, cit.

62 European Commission v Republic of Poland, C–814/21, EU:C:2024:963, para. 155; Commission v Poland, C–448/23, EU:C:2025:975, para. 191.

63 Para. 561 of the judgment.

64 Rossi, Commission v. Hungary, cit.

65 G. Athanasiou, cit.

66 Boriss Cilevičs and Others, C–391/20, EU:C:2022:638.

67 B. K. v Republika Slovenija (Ministrstvo za obrambo), C–742/19, EU:C:2021:597.

68 Angelo Alberto Torresi v Consiglio dell’Ordine degli Avvocati di Macerata, C–58/13 EU:C:2014:2088, para. 58.

69 Cf Rossi, Commission v. Hungary, cit; P. Bárd, The CJEU’s Monomyth, cit.

70 See Rossi, A Legal Scalpel Instead of an Axe. How a Reinterpretation of Article 7 TEU Could Neutralize Hungary’s CSFP Veto Strategy, VBlog, 9 July 2025, pp. 1–6.

71 Orbán Viktor v 24.hu Szerkesztősége, C–843/24, EU:C:2026:426, paras 30–32.

72 See K. Lenaerts, J.A. Gutiérrez-Fons, ‘The Place of the Charter in the EU Constitutional Edifice’ in S. Peers et al. (eds), The EU Charter of Fundamental Rights (Hart Publishing 2014) 1567–68.

73 See, in this sense, T. Tridimas, Wreaking the Wrongs. Balancing Rights and the Public Interest the EU Way, Columbia Journal of European Law 29, 2023, 188.

74 See for more details Rossi, Concretised, cit, and the bibliography of that article.