In EU law, Court judgments as much as Treaty reforms can be watershed moments that open possibilities of legal evolution unthought of or unexplored before. Less conspicuously, structural changes can unfold over a longer period of judicial development, and can only be considered as having such a significance with the benefit of hindsight. The breakthrough of the judgment in Associação Sindical dos Juízes Portugueses (ASJP) in unleashing the legal value of Article 2 TEU through its systematic connection with Article 19(1) TFEU seems to fall under the first category. It has certainly been likened early on to Van Gend en Loos and Costa/ENEL, at least by one of its crafters.Footnote ¹ The string of judgments that followed, and that, stemming from preliminary rulings and infringement actions, enabled the Court to weigh in on the organisation of the judiciaries of Member States that witnessed the unfolding of authoritarianism, seems to confirm that ASJP was, indeed, a turning point in EU law. This year, the opinions of different Advocates General in two high profile cases (still pending when this editorial goes to print) not only build on that line of cases but take a position or suggest paths that may lead to a further leap forward of EU law.Footnote ²

In Commission v Poland, the Commission charged Poland for its Constitutional Court’s rejection of the principle of primacy, the last episode of a clash over the authority to say the ‘last word’ on the alleged incompatibility between EU law and national constitutional law.Footnote ³ Given its object, this infringement action is the first of its kind: it places a national government in the position to instruct a constitutional court to terminate and remedy the infringement.Footnote ⁴ In a dispute triggered by the intention of the Polish Constitutional Court to escalate the conflict,Footnote ⁵ the angle that Advocate General Spielman took is telling of how far the Court may be willing to go in its use of formal legal arguments in deeply delicate political contexts. In his view, the ruling of the Polish Constitutional Court constitutes an ‘unprecedented revolt’ that, by rejecting the case law of the Court of Justice on the organisation of the judiciaries, and by precluding national bodies from applying that case law, ‘strikes to the heart of the principle of primacy, going so far as to call into question the hierarchy of norms in the EU legal order’ and, following fully the Commission’s pleas, the ‘autonomy, effectiveness and uniform application of EU law’.Footnote ⁶

In Commission v Hungary, the Commission claimed that Hungary’s 2021 Child Protection Act – heavily criticised, with good reason, for equating same-sex relations with paedophilia and stigmatising the LGBTQ+ community – breached Article 2 TEU because of the gravity of the breaches of EU law at stake (several EU directives and Charter rights). The case raised for the first time the question of whether and how Article 2 TEU can be invoked in an infringement action.Footnote ⁷ Of the 27 Member States, 16 joined this legal action against Hungary in what has been described as the largest human rights case in the history of the EU. In a much awaited and carefully drafted opinion, Advocate General Ćapeta considered that Article 2 TEU ‘expresses the choice of the founders of the European Union as to the type of society that the Member States have pledged to create together within the framework of the European Union’, ‘the vision of what a good society is in the EU constitution’, to which the new Member States also accede; as such, as previously held by the Court, Article 2 TEU ‘represents the very identity of the European Union’.Footnote ⁸ On this premise, and after considering the reasons for and against the justiciability of Article 2 TEU, she proposed that a self-standing finding of an infringement of Article 2 TEU can be admitted to police the ‘red lines’ that Member States may not cross,Footnote ⁹ ie, breaches whose root is the very denial of Article 2 TEU values and that, for this reason, ‘become both serious and systematic’.Footnote ¹⁰ Depending on how the Court will rule on this matter, we may be before a structural transformation of the EU legal order.

Instead of invoking the metaphor of ‘constitutional moments’,Footnote ¹¹ I propose to take a step back from current developments and compare this judicial development with another structural transformation, of longue durée: the development of general principles of EU law. In 2025, we are very far from the types of questions that reached the Court in the 1960s to the 1990s and that enabled the Court to progressively define those principles based on ‘the constitutional traditions common to the Member States’.Footnote ¹² Yet, they reflect the same ‘shared political morality’ that support the values outlined in Article 2 TEU,Footnote ¹³ and the path that the Court has been taking since the 2018 ASJP judgment would have not been possible without the degree of maturity that the EU legal order gained based on those general principles of law. They also share an ‘original sin’: just like values in the 2020s, general principles were built on the premise of commonality, without a systematic understanding of the differences across Member States legal cultures, of what they could tell us regarding the possible new contents that such principles could acquire in a new setting, and above all, of the legal implications of transposing those principles as ‘neutral technologies’ to EU law.Footnote ¹⁴ If the image of ‘neutral technologies’ may seem too far-fetched when it comes to the process of attaching legal consequences to values, that is not a reason to immediately dismiss it but rather to pause.

The possibilities to develop EU law from its own axiological foundations seem to be confined only by the techniques of legal interpretation, now that the Court of Justice is no longer compelled to rely on the rather cryptic ‘constitutional traditions of the Member States’. These are now incorporated in positive law, notably through Article 2 TEU and a binding catalogue of fundamental rights.Footnote ¹⁵ The common axiological foundations of general principles of law and of Article 2 TEU values may make it even tempting to treat the judicial elaboration of the legal implications of EU values as a linear evolution stemming from a common substratum.Footnote ¹⁶ And yet, it is urgent to take a step back from the sense of urgency to react against the Trojan horses of authoritarianism within the Union. As much as this sense is justified, it risks making us, lawyers, lose sight of what can be achieved through legal leaps forward that, as firm as they may appear, are being taken on very thin ice. It may be useful, then, to contrast the functions, processes and challenges posed by the development of general principles of law in the formative years of 1970s to 1990s and the functions, processes and challenges posed by the development of values in current formative years of a new development of EU law.

General principles of law enabled a new stage of normative development of the EU legal order. They aided in the interpretation of written rules and allowed for filling in the lacunae in the law: they completed the ‘unscheduled incompleteness of the Treaties’, of which respect for fundamental rights is a powerful example, and thereby supported the creation of a general part of EU law.Footnote ¹⁷ They were tools of argumentation to solve legal conflicts within a legal system, mostly limited, initially, to internal market issues.Footnote ¹⁸ In this sense, they narrowed down the distance between, on the one hand, a technical, sector-specific, and competence-bound body of law – so closely tied to the economic reality it governed that it amounted mostly to a form of administrative regulation – and, on the other, a legal order (or system) with traits that constitutional lawyers could easily identify with.Footnote ¹⁹ They had also a polity-building function, in a double sense. Functional comparison allowed lawyers to identify in EU law the problem of a one-sized public power with the ability to limit the rights of legal and natural persons, similar to the relationships that state authorities established with their citizens. Just like in state settings, these relationships should be governed by general principles that prevent arbitrary power and excessive limitations of rights and legally protected interests.Footnote ²⁰ Principles gave rise to rights and duties which constrained the power of the institutions, and, mostly in view of the objectives of market integration, those of the Member States.Footnote ²¹ At the same time, they were a legitimacy asset: they ‘[improved] the legitimacy of the Community in the eyes of the citizens and [in this way, they] politically [promoted] integration to a significant extent’.Footnote ²² These functions made general principles foundational. But, overall, they contributed to solidify integration happening elsewhere; they were not, themselves, the drivers of new powers granted to the EU institutions.

The function of EU values is rather distinct. They are said to be foundational, because of Articles 2 and 49 TEU. Yet, their function in the current legal development is hardly foundational, or, at least, it has been so only in a contingent way, invoked as foundational against the rise and (in some cases) consolidation of authoritarianism in Member States. EU values are being mobilised as a shield of EU constitutionalism to fend-off illiberal developments in the Member States, not as a steppingstone for a normative evolution that places the legal system on a presumably stronger constitutional foundation.Footnote ²³ This is what underlines the Court’s ‘axiological turn’.Footnote ²⁴ In that process, unlike the role of general principles, values have been the justification for creating new competences that allowed the Court of Justice to enter in areas that had been clearly outside of its remit (the organisation of the national judiciaries), based on structural principles of EU law (mutual trust and primacy) and to generate new understandings of EU law that, applied in infringement actions, enable the Commission and the Court to protect the EU against structural changes in the Member States’ political systems that counter the characteristics they had at the time of accession.

The processes through which EU values are being developed, and the challenges that they pose, are also different from those that underlined the elaboration of general principles. In the formative periods of EU law, the main (never answered) question was how to translate commonalities among the Member States legal orders into contents that were in tune with the specificities of EU law. They stemmed from a bottom-up process of ‘discovery’, taking as a reference the common constitutional traditions of the Member States and following functional comparison. That process has remained largely a mystery, but the opinions of the Advocates General could give the expert reader a hint on the comparative law considerations that underpinned judicial reasoning. Even if not reflected in the judgment, those origins could at least presumably be deduced therefrom, or give rise to legal discussions on different possible interpretations.Footnote ²⁵ At crucial turning points, the elaboration of those general principles relied on the collaboration of national courts. By contrast, EU values are written in the Treaty and, hence, ratified primary law. They are in no need of being ‘discovered’ and are being developed top-down through teleological and systematic interpretation, ie, from within the logic of the EU legal system. Comparison is absent, likely purposefully avoided and, if so, for good reason: the abstract level of values is such that comparing their possible legal meaning in different Member States, in the EU tradition of functionalism, would not only be a daunting task, but also likely bound to lead nowhere.

The greatest challenge that values pose is their concretisation, not their process of discovery.Footnote ²⁶ What do they mean? At the level of generality of Article 2 TEU, neither values nor the normative postulate of their commonality raise much controversy. Yet, if they are to have legal consequences, one must know what their declinations are. The Court has been crystal clear: Article 2 TEU is not ‘merely a statement of policy guidelines or intentions’, the values it enshrines ‘are given concrete expression in principles containing legally binding obligations for the Member States’.Footnote ²⁷ But… how? This is at the core of the case Commission v Hungary, prompted by the plea of the Commission drawing on Article 2 TEU. AG Ćapeta argues that Article 2 TEU gives the Court the grounds to declare ‘what cannot be tolerated’ and suggests that ‘red-lines’ have been ‘crossed’ when the root of the breaches to EU law is the negation of Article 2 TEU values.Footnote ²⁸ But this position raises more questions than it answers.Footnote ²⁹ How to avoid that, in giving the EU institutions the capacity to defend the common moral-political substratum that is reflected in Article 2 TEU against Member States laws, a dominant or majoritarian conception of values is not imposed over dissidents?Footnote ³⁰ This is a particularly thorny issue, as universalistic claims of values are juxtaposed to ‘mental maps’ where commonality is anything but a given.Footnote ³¹ How to delineate instances of disagreement over the interpretation of values from instances of negation of values, in particular in conflicts that involve moral issues?Footnote ³² Dialogue already presupposes that the limits set by values have been defined.Footnote ³³ These questions are all the more important and delicate as EU values are supporting the definition of the identity of the EU legal order against Member States, even against ‘rebellious’ constitutional courts.

Giving legal meaning to EU values through teleological and systematic interpretation is an even more fragile process than the one that led to the development of general principles of law. It lacks anchors external to the EU legal order. It places the Court on thinner ground, as it develops the legal system in a self-referential way, as if law were at the core of the problem that the Court is called upon to address, and as if, through legal reasoning and development of the law, the Court could provide the remedy that helps contain the structural problems it is trying to address. The argument that Article 2 TEU is positive law and, as part of the Treaty, has been democratically ratified, serves little to provide the authority that the process of concretising the legal consequences of EU values would need. It overlooks the fact that the Treaty itself provides little by way of guidance on how such values could be concretised, even where some systematic links can be easily drawn.Footnote ³⁴ But above all, that argument minimises the deep political, historical, cultural and societal roots of the conflicts that have underlined the judgments where EU values were mobilised as tools of legal argument.

The judicial conviction may be that ‘the judgment of the Court is only part of the solution’,Footnote ³⁵ but the assumption arguably is that the political, cultural and societal transformation will eventually follow. Von Bogdandy sees a similar dynamic for the role of scholars: reality will follow theoretical constructions.Footnote ³⁶ For that, however, we, EU lawyers, would need a much sharper awareness of the ‘reflexive mechanisms of legal materialisation that act as conduits for the transmission of value into law, but which, at the same time, leave law the master of its own destiny’, lest law become simply a vehicle of instrumentalisation at the service of whichever interests happen to prevail.Footnote ³⁷ But age old habits are very hard to overcome, and the Court is an institution where the belief in the force of law as an agent of integration is likely as steadfast now as 50 years ago. At least, the declarations of its President indicate as much.Footnote ³⁸ Primacy may very well be ‘an “existential requirement”’, as Advocate General Spielman recalled by citing Pescatore, but the thinner the grounds to develop EU law, with the aim to give it the much-needed tools to counter the forces of disintegration, the more the claim for primacy risks being a bark with no bite. Without the understanding of those ‘reflexive mechanisms of legal materialisation’, lawyers and judges miss a fundamental element for the solidity of their doctrinal constructions: the knowledge of the limits of how far the mechanisms and tools that the law offers may go in addressing the unprecedented multifarious challenges that the EU now faces. In their absence, the claim that ‘the Court of Justice’s defence of [Article 2 TEU] values is not its political choice, but its constitutional task’ risks being hollow.Footnote ³⁹ Worse, it risks leaving the Court of Justice and the law it is developing helpless if, after having taken decisive leaps forward, the necessary non-legal alignments do not follow the Court’s path-breaking judgments. At this point, the Court could, with reason, reject eventual calls for action, arguing that to trigger such social, political and cultural alignments is outside of its purview. But that argument will hardly help the Court in restoring its authority in such a scenario.

Does that mean that the Court should not react to challenges to the foundations of European integration? When faced with judicial cases that fulfill all the legal criteria to be the object of a judgment, non-liquet is not an option. But the Court certainly has judicial means to avoid forward leaps that stretch the limits of what can be achieved through legal interpretation, and generate meanings of EU law that may only be authoritatively accepted within the legal circles of the institutions and of some segments of legal academia.

In Commission v Poland, much as the position of the Polish Constitutional Court is significant in its challenge to the authority of the Court, its decision has arguably limited precedential value.Footnote ⁴⁰ It was pronounced by a captured court. To make the point of capture, one needs not even to rely on the case law of the Court of Justice that the Polish Constitutional Court contests, as the European Court of Human Rights has also ruled on the matter and considered that that Polish court did not fulfil the criteria of a ‘tribunal established by law’.Footnote ⁴¹ In addition, that captured court fabricated a non-existent conflict between the national constitution and the EU Treaty.Footnote ⁴² The Court of Justice lacks the competence to decide on the interpretation of a national constitution, but it can clarify the meaning of its understanding of judicial independence, further argue why it has competence to adjudicate on matters of organization of the national judiciary, and elaborate why ‘there is no ground for maintaining’ that its case law can affect the national identity,Footnote ⁴³ rather than digging in its heels over its authority to have the last word, by virtue of the hierarchy of norms.Footnote ⁴⁴

In Commission v Hungary, the added value of declaring an infringement of Article 2 TEU is doubtful, considering that the breach of several directives, one regulation, the freedom to provide services and various Charter rights were presumably sufficient to reach a condemnation of Hungary.Footnote ⁴⁵ The result that the Commission seeks is to signal the exceptional seriousness of those breaches.Footnote ⁴⁶ But, as the reasoning of the Advocate General confirms, that result is being achieved by drawing only on techniques of legal interpretation. Arguably, in the context of infringement procedures, the dialogue in the concretisation of values that the Advocate General defends is denied by the very procedural framing of infringement, even if the judicial stage counts with the intervention of 16 Member States.Footnote ⁴⁷ And even an impeccable deployment of legal technique could not do without the hyperbole of rhetorical devices that are, at the very least, problematic. Who gets to determine the content of the values that delimit ‘the vision of what a good society is’?Footnote ⁴⁸ The Member States at accession does not seem a convincing answer.Footnote ⁴⁹ The dialogue that AG Capeta justifiably invokes? But it is exactly the lack of conditions of dialogue that has led to the resort of Article 2 TEU in infringement actions to restore what the law developed in this way can hardly bring back. It does not take much to see that the Court is ready to step in, if the political mechanisms falter. And yet, judicial restraint would not be a matter of an institution not daring to take the steps that many would argue to be within its reach. It would, instead, be required to avoid overburdening the law with expectations and hopes that, alone, or virtually so, it can hardly fulfil.Footnote ⁵⁰

The tension between ‘the need to preserve the unity and effectiveness of EU law’ and ‘the desire to protect the uniqueness of various constitutional identities’, at the heart of developments that Advocate General Spielmann rightly considered ‘profound and very worrying’,Footnote ⁵¹ can hardly begin to be unraveled in the path chosen by the legal service of the Commission in infringement procedures, following the cue given by the Court. On the contrary, the unchanged reiteration of the concepts and techniques that are part of the EU legal order (as in Commission v Poland), or the opening of new paths of legal development using only those same concepts and techniques (as in Commission v Hungary) is likely to deepen such tension. The Commission and Court may be creating both a shield that is as unbreakable as it us porous, and a sword that is too weak to address the threats of illiberalism. The problem is not so much the politicisation of the Court,Footnote ⁵² as the extension of the law based only on the law itself. The stakes are too high for the EU lawyers to rely blindly on the power of the lawyerly magic wand (to paraphrase Michelle Everson),Footnote ⁵³ both in terms of the challenges that the Court is trying to react to, and in terms of the ability of the EU legal system to withstand the possible shocks. Those are the same stakes that are behind the rise of the invocation of European society in institutional discourses. As Azoulai argues sharply in his contribution in this issue, addressing them requires ‘enriching technical and conceptual repertoire of EU law’.Footnote ⁵⁴ It may even require revising it.

I conclude by recalling a crucial point made by Michelle Everson in a critique to the book ‘Principles of European Constitutional Law’ co-edited by Armin von Bogdandy and Jürgen Bast, and that is worth quoting in full:

In 2007, when she wrote, we were arguably much further away from that scenario than in 2025.