Abstract
Introduction
The publication on the Official Journal of the European Union of the text of an infringement procedure pending before the Court of Justice is rarely – if ever - a moment that triggers the attention of the EU law scholars’ community. Case C-769/22 Commission v Hungary is however the exception to the rule. The published text of the action reveals that, for the first time, the Commission has directly relied on Article 2 TEU, the provision proclaiming democracy, the rule of law and human rights as the ‘founding values’ of the European Union, in an infringement procedure before the Court. To be more precise, the claim of the Commission is that the Court should declare that ‘by adopting the legislation cited in the first paragraph, Hungary has infringed Article 2 TEU’. 1 The piece of legislation in question is the 2021 Hungarian law ‘adopting stricter measures against persons convicted of pedophilia and amending certain law for the protection of children’.
The Commission’s framing of the infringement procedure has already captured the attention of many commentators, 2 and rightly so. This could indeed be a landmark case: the question of the direct and autonomous enforceability of Article 2 TEU in infringement actions is one of the still unresolved issues of the EU values protection’s toolkit, and the Court is for the first time given an explicit opportunity to address it. In doing so, it has a chance to continue shaping the constitutional evolution of the Union, as it has done in several values-related cases in the last years, from Portuguese Judges 3 to Repubblika 4 and the ‘Conditionality Regulation’ 5 decisions. This is potentially a transformative case, as it could fundamentally expand the Union’s oversight over national law and policies, and the stakes thus are extremely high. The relevance of the pending action is also highlighted by the decision of fifteen Member States’ governments to intervene, together with the European Parliament, in support of the Commission. 6
While recognizing the importance of the Commission’s efforts to uphold EU values and in particular to protect the rights of the LGBITQ + community in Hungary (and beyond), this Editorial raises a few questions on the Commission’s choice to rely on Article 2 TEU as a separate claim in this infringement action. Some of our doubts relate to the particular case under discussion: Article 2 TEU seems to bring limited added value to the infringement action against Hungary, at least in legal terms; and the complex and heated political context in which the infringement procedure is pursued make it arguably not the most appropriate ‘test case’ for developing a new approach to the justiciability of Article 2 TEU. Other doubts are more structural: even if recent developments in the case law of the Court might point in that direction, the autonomous enforceability of Article 2 TEU remains a controversial legal construction, one that, if accepted by the Court, could put its legitimacy and authority under strain; and a full judicialization of questions of ‘values’ does not seem to us the most promising and effective response to the challenges that constitutional backsliding processes create.
The background
In June 2021, the Hungarian Parliament adopted a new piece of legislation that was presented as a way to strengthen the protection of children against pedophilia. In practice, however, the law introduced a series of measures that directly target the LGBTIQ + community. The law limits minors’ access to content that is deemed to promote ‘divergence from self-identity corresponding to sex at birth, sex change or homosexuality’, bans or limits media content that portrays homosexuality or transsexuality, and puts in place a system of penalties for organizations breaching those rules.
The Hungarian law was immediately criticized by numerous human rights groups for its discriminatory content and the implicit connection it draws between pedophilia and the LGBTIQ + community. 7 In a critical opinion delivered in December 2021, the Venice Commission of the Council of Europe questioned the compatibility of several elements of the law with the standards of the European Convention of Human Rights and other international human rights documents, in particular with the rights to family life, freedom of expression and education, and the prohibition of discrimination. 8
EU institutions promptly reacted to the adoption of the law as well. Immediately after the adoption of the law, Commission President von der Leyen called the new piece of legislation a ‘shame’ and announced that the Commission would take legal action. 9 Commissioners Reynders and Breton sent a first informal letter to Hungarian authorities presenting the Commission’s concerns with the new law. 10 In parallel to a heated European Council meeting in which several Heads of State and Government harshly criticized Hungarian Prime Minister Viktor Orban, seventeen leaders of EU Member States sent a letter in response to the law and supported the Commission’s action. 11 In early July 2021, the European Parliament also weighed in by adopting a critical resolution on the new law. 12 The Commission then formally announced the opening of the infringement action on 15 July 2021, 13 issued its reasoned opinion in December 2021, 14 and decided to refer Hungary to the Court in July 2022. 15
The infringement action and the role of Article 2 TEU
In its infringement action, the Commission makes three core arguments. 16 First, it claims that the Hungarian law is in breach of several provisions of EU primary and secondary law related to the internal market. The Commission refers to Article 56 TFEU on the freedom to provide services, the Audiovisual Media Services Directive, 17 the e-Commerce Directive, 18 and the Services Directive. 19 With this first claim, the Commission shows that the Hungarian legislation fall within the scope of EU law. This, in turn, triggers the applicability of the Charter of Fundamental Rights, following Article 51 of the Charter, thus allowing the Commission to make its second key claim: the Commission argues that the new law breaches Articles 1 (human dignity), 7 (right for private and family life), 11 (freedom of expression and information) and 21 (non-discrimination) of the Charter. The use of the Charter in infringement actions is a relatively recent development, 20 but is well-established by now. 21 Whenever the Commission is able to find a ‘hook’ in EU substantive law, a ‘triggering norm’, 22 it can add a claim based on the Charter. The Court can then assess the claim autonomously.
The third claim – the violation of Article 2 TEU, of EU values – is the true novelty in this case. This was already announced in the first press release on the letter of formal notice, where the Commission argued that ‘[b]ecause of the gravity of these violations [i.e., of the Charter], the contested provisions also violate the values laid down in Article 2 TEU’. 23 While the December 2021 press release on the Commission’s decision to issue a reasoned opinion did not make reference to it, 24 the argument based on Article 2 TEU returned in the July 2022 decision to refer Hungary to the Court of Justice, with a nearly identical formulation to the first one: ‘[d]ue to the gravity of these violations, the contested provisions also violate the common values laid down in Article 2 TEU’. 25 In these two statements, the Commission firmly linked Article 2 TEU to the Charter: as far as we can understand, 26 the breach of Article 2 TEU would be the result of a particular grave or severe breach of several Charter provisions.
The concrete formulation of the argument based on Article 2 TEU in the referral to the Court suggests a more autonomous claim, and no longer mentions the gravity of the violations. As noted above, the second plea of the Commission is that ‘by adopting the legislation cited in the first paragraph, Hungary has infringed Article 2 TEU’. 27 As the preparatory documents in infringement actions are not made public, we will have to wait for the Court’s hearing to fully grasp the argument developed by the Commission. For the time being, it is sufficient to point out that the two formulations, taken at face value, seem to go in two slightly different directions: one where a violation of Article 2 TEU would result from a serious breach of several Charter rights; and one where the alleged infringement of the values of Article 2 TEU would constitute the actual alleged violation.
In any event, regardless of the more or less autonomous nature of the ‘values’ argument, the very fact that the Commission explicitly mentions Article 2 TEU in the infringement action is remarkable and unprecedented. While it is true that, after a first round of ‘indirect’ actions to protect EU values addressing technical issues without even mentioning the underlying values aspect, 28 the Commission has started bringing more direct actions to fight backsliding in the Member States, so far it has never based its arguments directly on Article 2 TEU. 29 Rather, the Commission based its claim on Article 19 TEU in several infringement actions related to the independence of the judiciary in Poland, 30 or on different provisions of the Charter of Fundamental Rights in a series of cases against Hungary. 31 In these cases, Article 2 TEU played at best an ‘ancillary’ function, 32 for example to support the broad interpretation of Article 19 TEU and the principle of judicial independence as an expression of the rule of law. 33
More fundamentally, doubts remain whether Article 2 TEU is at all enforceable in infringement actions, whether it can be used as a stand-alone provision and ground of infringement in these cases, and whether it could even be used to capture breaches of EU values that would not otherwise fall within the scope of EU law. That is indeed what an independent and autonomous claim based on Article 2 TEU would imply: that the Commission and the Court could define and enforce EU values in all circumstances, including outside the scope of EU law. Despite the increasing operationalization of Article 2 TEU by the Court of Justice in recent times, 34 these questions have not been addressed explicitly in the Court’s case law, and the academic debate is divided on these issues. We see at least three different positions in the discussion: first, some have strongly argued in favour of an autonomous use of Article 2 TEU in infringement actions, also outside the scope of EU law as traditionally intended; 35 others have argued against the autonomous enforceability of Article 2; 36 a third group of scholars has then taken a middle ground, accepting the direct enforceability of Article 2 TEU in infringement actions only in exceptional situations or in connection with other EU law provisions. 37
The pending case could help providing more clarity on at least some of these questions, and it has been described in this sense as a ‘test case’ for the direct and possibly autonomous enforceability of Article 2 TEU in infringement actions. 38 But is this really a good test case? Has the Commission chosen the best setting for testing this new, potentially groundbreaking approach? More fundamentally: is the construction advanced by the Commission legally sound and normatively desirable?
High risk, low gain: A few questions on the Commission’s approach
By relying on Article 2 TEU, the Commission raised the stakes of the pending action and made a ‘high risk’ choice, for several reasons. The first and most obvious is that the direct, and possibly autonomous, enforceability of Article 2 TEU in infringement actions is a novel and controversial legal construction. To be clear, the question is not whether or not Article 2 TEU produces legal effects: here the answer, based also on the case law of the Court, is a straightforward yes. The Court has referred to Article 2 TEU as one of the foundations of the principle of mutual trust; 39 in conjunction with Article 49 TEU, Article 2 TEU establishes the principle of non-regression according to which Member States cannot introduce provisions that lower the level of protection of the rule of law; 40 and in recent decisions on judicial independence in Romania, the Court has also operationalized Article 2 TEU next to Article 19 TEU to determine relevant independence standards for domestic courts. 41 The judgments of the Court on the validity of the Conditionality Regulation have then extensively relied on this line of case law 42 and confirmed the legal – and not merely political or symbolical – relevance of Article 2 TEU. 43
The question is however whether Article 2 TEU contains sufficiently precise legal obligations that can be autonomously enforced by the Commission and the Court in infringement actions. As noted above, the case law of the Court has not answered this question yet, though it has been considered by several Advocates General, with some expressing doubts over such use of Article 2 TEU. 44 A strictly textual reading of Article 2 TEU (‘These values are common to the Member States’) could play against its autonomous enforceability, as the provision does not explicitly impose any concrete obligation on the Member States. However, the more recent case law of the Court, most notably the Conditionality Regulation decisions, may lead to a different conclusion, with the Court saying for example that ‘Article 2 TEU is not merely a statement of policy guidelines or intentions, but contains values which (…) are an integral part of the very identity of the European Union as a common legal order, values which are given concrete expression in principles containing legally binding obligations for the Member States’. 45
Yet, does this mean the values of Article 2 TEU are enforceable as such, or do they need to be concretized in other provisions of EU law containing more precise principles and legal obligations, such as for example Article 19 TEU? The Court also maintains that ‘compliance by a Member State with the values contained in Article 2 TEU is a condition for the enjoyment of all the rights deriving from the application of the Treaties to that Member State’. 46 But does that imply that Article 258 TFEU could be used to enforce this obligation, or should this be done via the procedures of Article 7 TEU, which explicitly speaks of the suspension of ‘certain of the rights deriving from the application of the Treaties’? There is the additional problem that Article 2 TEU refers to rather abstract constitutional values (democracy, the rule of law, human rights) from which it is not always easy to distil precise legal obligations that can be enforced judicially. 47
The argument advanced by the Commission is thus legally debatable, and the Commission has decided to test it in a highly sensitive field – the protection of LGBTIQ + rights. This further raises the stakes of the pending case. Viktor Orbán and his government have often presented the conflict between Hungary and the EU in terms of ‘culture wars’, 48 a clash of different values, and the approach followed by the Commission may feed into that narrative, which perceives EU intervention as a power grab by ‘Brussels’ and the imposition of ‘foreign values’ over Hungary. This is not to say that the Hungarian government’s arguments are persuasive, or even less, that the Hungarian legislation is in line with EU law; but perhaps the novel interpretation of Article 2 TEU could have been tested in a different area of EU law where EU intervention is less controversial. To offer a comparison, had the Commission directly operationalized Article 2 TEU and the value of the rule of law in a judicial independence case, the Court of Justice could have at least relied on the growing European consensus on the concept of rule of law and on judicial independence standards. 49 In the field of LGBTIQ + rights, the political and public debate is even more polarized, and the existence of common standards is less evident. 50 Despite several progressive decisions of the European Courts, 51 the field is still marked by profound divisions between Member States, in particular, and, even if this is a rough approximation, 52 between the ‘West’ and the ‘East’ of the continent. In this sense, it is striking that of the fifteen states that intervened in support of the Commission, the vast majority comes from the ‘West’, and only two – Malta and Slovenia – are post-2004 Member States. 53 To summarize: the Commission has chosen a highly politically-sensitive case to put forward a fragile legal construction that is not universally supported.
At the same time, it is not very clear what Article 2 TEU adds to the claim in this particular case, or in other words, this might be a ‘low gain’ case. Take away the Article 2 TEU plea, and the case brought forward by the Commission still stands firmly: the reference to the internal market provisions is key to bring the case within the scope of EU law and triggers the applicability of the Charter; the Charter then brings to light the core concerns expressed by the Commission and many observers, that is to say the infringement of human dignity, freedom of expression, and non-discrimination. So, at least in legal terms, Article 2 TEU does not seem to add much to the Commission’s arguments. As regards the enforcement of a possible ruling of the Court declaring a breach of EU law, the reference to Article 2 TEU does not impose additional obligations on the Hungarian government were it to be asked to remedy the substantive breaches of EU law. Furthermore, a breach of several Charter rights (including the right to human dignity!) would already be reason for opting for the highest coefficient in case of imposition of pecuniary payments under Article 260 TFEU. Moreover, Article 2 TEU does not serve here to expand the reach of EU law, an option that has at times been suggested in the debate on how to strengthen EU oversight. 54 Given the alleged breach of free movement and internal market provisions, the Hungarian law falls squarely within the scope of EU law. Thus, also in this narrow sense, this is not a very good test case: the Court’s judgment would not be conducive to clarify the independent enforceability of Article 2 TEU and the possibility to rely on it outside the scope of EU law.
Admittedly, Article 2 TEU may perhaps provide some added value in more contextual and rhetorical terms. Increasing references to Article 2 TEU in the Commission’s practice and in the Court’s case law have allowed the institutions to articulate that what is at stake in rule of law and values cases are not technical provisions of EU law, but core foundations of the EU system. This has contributed for example to countering the criticism often expressed in the last decade that the Commission is too keen on compromising with backsliding governments, focusing only on technical infringements of EU law. References to Article 2 TEU and to EU values have also instigated further policy initiatives and legislative action, keeping the values on the political agenda, also in the context of the Article 7 TEU proceedings. In the case under discussion, framing the action from the very start as an infringement of ‘EU values’, both by the Commission and by the Heads of State and Government in the European Council, may have contributed to the unprecedented political mobilization, which has seen the European Parliament and fifteen Member States joining the Commission’s infringement action, also thanks to the lobbying of a group of human rights NGOs that has pushed national governments to intervene.
Yet, an action based exclusively on the Charter of Fundamental Rights (along with the triggering provisions), and framed explicitly in fundamental rights’ language, could arguably have fostered a similar mobilization and offered similar signals with a stronger and less controversial legal construction. To be sure, the argument developed here is not that the Commission should have refrained from bringing this infringement action. On the contrary: that the Commission has forcefully – and fairly rapidly, especially in comparison to earlier actions that left much to be desired in terms of speed and timeliness of EU action 55 – intervened to protect the rights of the LGBITQ + community in Hungary is to be welcomed. In times of growing democratic, rule of law and human rights’ challenges, firm and timely action of the Commission as the ‘guardian of the Treaties’ is decisive. The argument is rather that the use of Article 2 TEU in this infringement action brings limited meaningful legal benefits, while being based on a questionable legal foundation and possibly conducive to a further escalation of the conflict between Hungary and the EU.
The use of the Charter of Fundamental Rights, in contrast, is legally robust – following Article 51 of the Charter, the Charter is applicable whenever a national measure falls within the scope of EU law – based on solid precedents, and already allows the Commission to bring before the Court the core issues that the national legislation in question creates, and not only possibly more indirect questions of technical infringements of EU law. 56 Those fundamental rights’ breaches must then be remedied if the Court finds a breach of the Charter, meaning that it becomes more difficult for the Member State in question to engage in forms of creative and symbolic compliance. 57 Of course, in the specific area of LGBTIQ + rights, an infringement action based on the Charter would still be politically controversial, but the legitimacy of the Court to decide on similar cases, on the basis of more specific legal rules established by the Charter, can hardly be put in question, given also the EU’s and the Court’s robust background in equality law. 58
The Commission chose a different course. There is undoubtedly great curiosity on what the Court of Justice will do: whether it will ‘cross the Rubicon’ of direct and autonomous enforceability of Article 2 TEU, or opt for a less radical approach. A Court that wants to use more caution, while not completely rejecting the argument advanced by the Commission, could for example opt to consider the Article 2 TEU argument in conjunction with the breaches of the Charter, as the Commission suggested in its earlier press releases. 59 According to this reading, a breach of Article 2 TEU could derive from a serious breach of (several?) Charter rights. This more prudent approach would confirm the limited added legal value of Article 2 TEU in the specific case, but highlight the importance EU institutions attach to equal treatment of the LGBTIQ + community. The Commission could then wait for new ‘test cases’ that could contribute to further shape the potential and the limits of Article 2 TEU as an autonomous ground of infringement. 60
However, it remains questionable whether such transformation of Article 2 TEU is desirable. A stronger and more effective intervention by the institutions to protect the foundations of the EU’s structure is undoubtedly necessary. However, as van den Brink has also reminded us in the context of the debate on postponing or cancelling the Hungarian presidency of the Council, it must be based on solid legal grounds. 61 This is even more important for the judicial enforcement of EU values. The Court of Justice has already used a lot of creativity in the past, most crucially with its broad interpretation of Article 19 TEU. Using Article 2 TEU as a source of autonomous obligations in infringement proceedings, possibly even beyond the scope of EU law, may be a step too far and put the legitimacy and authority of the Court of Justice, already highly contested in several Member States, 62 under strain. With it, the legitimacy ad authority of the EU as a whole risks being put into question. A Court that is perceived as ‘activist’, ‘too political’, going beyond its mandate, adjudicating on the basis of ‘political’ values rather than on clear legal rules may not adequately contribute to the protection of EU values. 63 Put differently: asking the Court of Justice to defend EU fundamental rights and sanction breaches of EU law obligations is a fundamental element of any values-protecting strategy; expecting that the Court alone can stop and revert processes of constitutional backsliding, which have deep political, societal and economic roots, 64 is misunderstanding the problems the EU and its Member States are facing.
Post scriptum: The infringement action on lex Tusk
Shortly before the publication of this Editorial, the Commission announced the launch of an infringement action against Poland on the so called lex Tusk, a new law adopted in Poland in May 2023 aiming to investigate alleged Russian influences on the Polish political system. 65 The law creates a State committee that may inter alia decide to deprive individuals of the right to hold public office and run for elections. In its press release on the start of the infringement action, the Commission crucially referred to violations of the ‘principle of democracy’ in Articles 2 and 10 TEU, the principles of legality and non-retroactivity of sanctions in Article 49 of the Charter, the right to effective judicial protection in Article 47 of the Charter and data protection provisions (the General Data Protection Regulation - GDPR - and Article 8 of the Charter).
The Commission’s approach seems to be even bolder than in the LGBTIQ + case that we have discussed. In that case, the Commission invokes Article 2 TEU only after establishing that EU law is applicable to the case because of the alleged breaches of EU internal market law. One reading of the Commission’s argument is that the breach of Article 2 TEU is not a fully autonomous plea, but is linked to a severe breach of several Charter rights. In contrast, in the action against lex Tusk, Article 2 TEU is the very first provision mentioned in press release, together with Article 10 TEU containing key EU ‘democratic principles’, 66 and this is the main claim made by the Commission. The Charter then follows, and only as a final claim does the Commission add an argument based on EU substantive law, arguing that the Polish law also infringes the GDPR. The Commission therefore does not seek to show first, before making claims based on Articles 2 and 10 TEU and on the Charter, that the Polish measures fall within the scope of EU law as traditionally intended.
This new way of structuring the argument raises many questions. What exactly brings the matter within the scope of EU law and under the purview of the CJEU in infringement procedures? If it is the GDPR that still plays that function, it is odd to see it mentioned only as a final claim. Another possible reading is that a breach of the principle of democracy in Articles 2 and 10 TEU is in itself sufficient to trigger the use of the infringement procedure and the jurisdiction of the Court. Scholars have in recent times suggested that Article 10 TEU could play a similar role for ‘democracy’ as Article 19 TEU has done for ‘the rule of law’ and judicial independence, meaning that it determines the application of EU law and acts as a source of concrete obligations for the Member States enforceable in infringement actions. 67 The Commission’s claim could be seen as at least partially endorsing that suggestion, even if the press release also adds Article 2 TEU to the mix. This is a slightly different approach than the one used in judicial independence cases, where the Commission has only invoked Article 19 TEU and not Article 2 TEU, or in the LGBTIQ + action, and suggests a more central role for Article 2 TEU. There is an additional challenge here, namely the definition of common standards, especially when compared to the rule of law and judicial independence cases. In those cases, the Court of Justice could draw on its own case law on the preliminary reference procedure, on ECHR case law and common traditions. If the lex Tusk action should arrive at the Court of Justice, the Court would have much less to draw on to define European standards of representative democracy. 68
In any event, the press release of the Commission offers few explanations on the exact relationship between Article 2 and 10 TEU, and more generally on the precise legal grounds of the Commission’s claims. The Commission illustrates the substantive concerns with the new law, which is considered to interfere with the Polish democratic process, as the activities of the committee risk creating ‘grave reputational damage for candidates in elections’ and ‘could limit the effectiveness of the political rights of persons elected in democratic elections’, but it does not develop on the EU legal background. The novel and bold claims made by the Commission can be read as an attempt to intervene as forcefully as possible at an early stage, in order to force Poland to withdraw the new piece of legislation before the key parliamentary elections planned for the second part of 2023, avoiding that the electoral process be compromised by the new committee’s intervention. From this perspective, the references to Articles 2 and 10 TEU can be seen more as a robust political signal to Poland highlighting the concerns with the new piece of legislation, rather than a carefully designed legal construction for the enforcement of the values of Article 2 TEU.
At the very least, the launch of the new infringement action shows the urgency to continue to reflect on the legal and judicial relevance of Article 2 TEU and its direct enforceability. Once again, the aim pursued by the Commission – to protect democracy in a Member State, and to provide a robust response to a severe democratic threat, which risks compromising the forthcoming Polish elections – is of the essence. But the exact legal constructions developed by the Commission continue to raise many questions, and even if judicial intervention to protect access to, and the quality of, democratic processes may be legitimate and even necessary, 69 we remain hesitant on the growing judicialization of EU values’ oversight.