I. Introduction
Has any EU Treaty provision ever undergone a more astounding metamorphosis than Article 2 of the Treaty on European Union (TEU)? If the scholarly analyses of the Lisbon Treaty are a good indication, there was little reason to think that Article 2 TEU introduced something radically new, let alone made the values set out in the provision justiciable against Member States.Footnote 1 These days, however, Article 2 TEU is often placed at the pinnacle of the EU constitution,Footnote 2 and if the academic literature again offers a good indication, it now seems widely accepted that Article 2 TEU should be independently enforceable against Member States.Footnote 3 A similar transformation has taken place in the mindset of the Court of Justice of the European Union (CJEU). In the first decade after the Lisbon Treaty, Article 2 TEU ‘played only a marginal role before the Court’.Footnote 4 Moreover, as recently as 2020, Advocates General asserted that it did not ‘figure among provisions under which the compatibility of national legislation with EU law should be assessed’.Footnote 5 However, Article 2 TEU no longer plays an ‘ancillary function’.Footnote 6 In 2022, the CJEU declared that it defines ‘the very identity of the European Union as a common legal order’Footnote 7—an identity which, moreover, trumps the older, more established identities of the Member States.Footnote 8 Since then, it seemed almost inevitable that the views taken by the Advocates General would one day be disregarded, and in 2026, the inevitable became reality when the CJEU licensed Article 2 TEU’s self-standing application in Commission v Hungary.Footnote 9
These developments raise pertinent questions about the proper place of Article 2 TEU in the EU’s constitutional order, as well as the appropriate role of the EU judiciary in enforcing the values set out in this provision. The fact that Article 2 TEU now plays a once unthinkable role makes finding a compelling answer to these questions all the more difficult. Perhaps this is why some have tried to dodge these questions by invoking the wishes of ‘the authors of the Treaties’,Footnote 10 implying that Article 2 TEU marked the beginning of something entirely new.Footnote 11 What better way to justify the Court’s reasoning than to claim that it merely articulates the intentions of the Treaty drafters? Allow me, as I think we can, to swiftly dispel such ideas. If the fact that Article 2 TEU lay dormant for at least a decade is not enough reason to dismiss such claims, then the fact that it is an outgrowth of Article 6(1) of the EU–Nice Treaty should. Article 6(1) EU–Nice listed liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law as the principles on which the European Union is founded and which are common to the Member States. Article 2 TEU bears many resemblances:
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail’.
Of course, Article 2 TEU has elevated human dignity and equality to foundational values, and its second sentence lists values not included in Article 6(1) EU–Nice. Nevertheless, there are clear similarities between the two provisions. Not only do the stipulated values serve as the benchmark for triggering the suspension clause, which was formerly set out in Article 7 EU–Nice and is now laid down in Article 7 TEU, but there is also considerable overlap between the values listed in the two articles. While Article 2 TEU formally lists 12 values, in substance it lists around 7: the values of justice and solidarity are similar; pluralism, tolerance, and respect for minority rights are hard to distinguish; and equality and non-discrimination are interchangeable. Seen this way, the number of values listed in Article 2 TEU is almost the same as in Article 6(1) EU–Nice. Therefore, any suggestion that the Treaty drafters intended to introduce something radically new with Article 2 TEU—namely, a value core that takes precedence over ‘ordinary’ primary law—can be safely dismissed.Footnote 12
Advocates of the judicial enforcement of EU values should, of course, not have to justify their position by invoking the original intentions of the Treaty drafters. Fortunately, European constitutional scholarship generally has little sympathy for ‘originalism’, and advocates do not help their case by pursuing this line of argument.Footnote 13 Nevertheless, a plausible perspective on the proper place of Article 2 TEU and the EU judiciary’s role in enforcing the values set out therein is yet to be found. One of the central theses of the article is that, while most of the scholarship on Article 2 TEU—from both proponents and opponents of a more expansive role for EU values—is more down to earth than that of those who invoke original intentions, it rarely offers compelling answers to the pertinent questions raised by Article 2 TEU’s growing importance. The reason is the constitutionally orthodox perspective of EU law scholars, according to which EU constitutional law must be dealt with in the same way as ordinary law, that is, using ordinary methods of legal interpretation. As Jock Gardiner has put it, ‘the problem with such orthodoxy is that … its employment can lead to the misdiagnosis of issues and the misidentification of the most effective antidotes and their risks. This is because the EU constitutional order is political and legal in nature’.Footnote 14 European Union lawyers tend to overlook the fact that EU constitutional law is also political, and some are even averse to this idea. This is why they have misdiagnosed the kind of considerations that bear on the judicialisation of Article 2 TEU.
The central claim of this article is that a different method and, indeed, a different frame of thought are needed for the study of EU constitutional law, including Article 2 TEU. Established approaches to studying and applying ordinary law are often of little use when it comes to EU constitutional law. That is, the application of constitutional law is not simply a matter of identifying the relevant rule by analysing the text, context, and purpose of the relevant provision. Instead, as Martin Loughlin has perceptively, albeit perhaps cryptically, said, the method of constitutional law is ‘the method of prudence’.Footnote 15 A more detailed description of this method will follow later, but essentially it can be summed up with the adage that less may be more. The authority of courts may be strengthened through the prudent exercise of their powers and weakened by acting without restraint. Constitutional courts have a mandate and sometimes even an obligation to develop the law, but in doing so they must be mindful of their own, often precarious authority and, even more so, the conditions that enable constitutional rule.
From this perspective, it quickly becomes apparent that the discourse concerning Article 2 TEU has been off the mark. This is so, firstly, for the academic debate, which has been highly orthodox in its attempts to deduce the meaning of Article 2 TEU from the text, context, and history of the Treaties. The problem is not so much that these attempts have not led to satisfactory conclusions but rather that they are methodologically flawed and thus incapable of doing so. Secondly, the academic discourse has influenced the Court’s reasoning, particularly in its ruling in Commission v Hungary. Using an improper method, the reasoning on Article 2 TEU was not just unconvincing but far removed from what is required in constitutional disputes of this kind (Section II). Having provided an outline of a more appropriate constitutional method (Section III), the article shows that the problems in Commission v Hungary are merely symptomatic of a deeper-rooted problem. The Court’s approach to EU values is characterised by a lack of constitutional prudence. Its rhetoric surrounding Article 2 TEU has continued to escalate, often without this being needed for the resolution of the disputes before it. However, the problem is not only that Article 2 TEU has been burdened with unnecessary meaning but that this leaves the Court with almost no path but that of further escalation (Section IV). This is a path fraught with risks. The Court has loaded the law with expectations that it cannot possibly fulfil and may have expanded its own powers at the expense of its already fragile authority (Sections V and VI). This is not a path that prudent judges would be eager to take.
II. EU constitutional orthodoxy in the Article 2 TEU discourse
The fundamental premise underlying my argument is that constitutional law is inherently political in nature. As they often fail to recognise that this domain of law ‘blends political reason with legal reason in ways that make it difficult to differentiate politics from law’,Footnote 16 EU lawyers are ill-equipped to satisfactorily appraise and address constitutional issues. As their attitude towards Article 2 TEU demonstrates, EU constitutional orthodoxy holds the community of EU lawyers in a suffocating grip.Footnote 17 As a result, they are not in a position to address the most fundamental questions concerning Article 2 TEU’s justiciability.
A. The futility of textualism
Many have tried to deduce meaning from Article 2 TEU in the most orthodox way possible: by examining its wording. Given its ambiguous nature, it is no surprise that this exercise has been unsuccessful. There may be almost as many interpretations of Article 2 TEU as there have been attempts to interpret it. Some lawyers emphasise that it is divided into two clauses, arguing that only the foundational values in the first clause constitute legal obligations, as opposed to the political aspirations in the second.Footnote 18 Others claim that both clauses have normative force but that only the values in the first clause, on which the EU is ‘founded’, characterise ‘the very identity of the EU legal order’.Footnote 19 A third group of lawyers claims that both clauses should be read conjointly, without agreeing on what a conjoint reading requires. Some suggest that Article 2 TEU speaks of values rather than principles, and that neither clause is justiciable because ‘values create no obligations’.Footnote 20 Others, in contrast, claim that values serve the same role as principles, or that the values in the second clause inform those in the first, and that either clause is thus justiciable.Footnote 21 As this outline of academic views on Article 2 TEU shows, textual readings of Article 2 TEU lead to wildly divergent conclusions, suggesting that this method leads nowhere. The only plausible conclusion ‘from a literal reading of Article 2 TEU[] [is that] it is not clear that the internal constitutional affairs are brought within the scope of EU law’.Footnote 22
Some textualists are unfazed by this concern. For them, the issue is not whether the text supports a particular interpretation but that it does not expressly exclude any. According to Christophe Hillion, ‘the Treaties neither restrain nor exclude the European Court of Justice’s jurisdiction over Article 2 TEU. Had such restriction been intended, the primary lawmakers would have made it explicit’.Footnote 23 He therefore claims that ‘the EU should also be able to enforce the provisions of Article 2 TEU through the classic infraction mechanism’,Footnote 24 and not just in exceptional situations involving grave breaches of these values, as foreseen by Article 7 TEU, but in the event of ‘any failure’ to respect them.Footnote 25 Hillion is right that the Treaties do not expressly preclude this. But is this truly a sufficient justification for (strict) judicial enforcement of Article 2 TEU, as a surprising number of EU lawyers seem to believe?Footnote 26
One could argue, firstly, that these EU lawyers selectively cite textual passages to support their position. One might, for instance, expect textualists to care for the fact that, unlike Article 19 TEU, Article 2 TEU does not set out a fairly precise obligation for Member States; or that, unlike Article 10(3) TEU, it grants no specific rights to citizens. Yet those who base their view that Article 2 TEU is justiciable on its text are conspicuously silent on this point. More importantly, the Treaty text contains various passages about the limits of EU powers, which the proposal that ‘any failure’ of Article 2 TEU values can be remedied by the EU judiciary flagrantly disregards. For example, it seems evident that the proposal that Article 2 TEU precludes ‘any failure’ to respect these values is incompatible with the scope limitations that are set out in Article 51 of the Charter of Fundamental Rights of the European Union. Likewise, it is plausible to argue that national tax policies that undermine the tax base of other Member States fail to respect the value of solidarity, but the CJEU would clearly encroach on an area that is mostly a national competence if it were to strike down such policies based on Article 2 TEU. The point is: committed textualists should be more wary of Article 2 TEU’s potential than they are when they say that anything not expressly prohibited by its text is permissible.Footnote 27
However, the real issue is different. A workable approach to Article 2 TEU should be decidedly less legalistic than the above-mentioned textualist exercises. This is due not only to the many ambiguities of Article 2 TEU, which are ‘reflective of the debates and reworkings that it was subject to during the drafting process’.Footnote 28 More importantly, Article 2 TEU takes us into a realm of law where ordinary tools of legal interpretation cannot serve their purpose. Since constitutional law fuses political and legal considerations, many of its provisions cannot be understood based on their text, structure, and purpose alone. For this reason, efforts to deduce meaning from Article 2 TEU using orthodox legal methods mistakenly apply ‘formal legal arguments in deeply delicate political contexts’.Footnote 29
For example, Hillion and those with similar views make a massive leap from the domain of legality to that of legitimacy. Just because a court has been empowered to do something, or is not expressly prohibited from doing it, does not mean that it is justified in exercising the authority it has been provided with. Establishing that an actor has the authority to do X is one thing; whether that actor is justified in doing X is quite another. To illustrate this, consider the CJEU’s authority to review the legality of legal acts adopted by other EU institutions under Article 263 of the Treaty on the Functioning of the European Union (TFEU). Just because it has this authority does not mean that it should use it. It would be lawful to annul legal acts, but not necessarily legitimate.Footnote 30 Likewise, the mere fact that the Court may have the authority under Article 2 TEU to render value judgments (or is not expressly precluded from doing so) does not provide any conclusions about whether and how it should invoke this provision to address restrictions of the values laid down therein. These are not legal questions that can be addressed using orthodox doctrinal thinking but political questions concerning the appropriate role of the EU judiciary in enforcing the values set out in this provision.Footnote 31 Doctrinal thinking actively obscures these political questions.
B. EU constitutional orthodoxy in Commission v Hungary
The conviction that constitutional issues are purely legal matters, separate from any kind of political considerations, is evident in both the Court’s judgment and Advocate General Ćapeta’s Opinion in Commission v Hungary. The weak argumentation of both is directly related to this belief. In fairness, midway through her analysis of the justiciability of Article 2 TEU, the Advocate General appears to acknowledge that constitutional law is also political. She states that ‘basic constitutional principles are often, at the same time, political and legal’.Footnote 32 Unfortunately, however, she immediately closes the door on the political aspects of the issues involved in the same paragraph, saying that ‘the Court of Justice’s defence of those values is not its political choice, but its constitutional task’.Footnote 33 This is a missed opportunity because the manner in which this constitutional task is exercised involves important political choices.
Instead of reflecting on these political choices, the Advocate General establishes the justiciability of Article 2 TEU through a doctrinal analysis focusing on the text, context, and history of the Treaties.Footnote 34 The Court takes the same approach, examining the wording, context, and origins of the Treaties.Footnote 35 This approach lies at the heart of the problem I wish to analyse. Consequently, neither the question of whether Article 2 TEU is judicially enforceable nor the question of what value restrictions amount to a violation of Article 2 TEU is convincingly addressed. As the Court largely follows the Opinion, I will only refer to the latter when it provides reasoning beyond that offered by the Court.
Before addressing the question of whether EU values are judicially enforceable,Footnote 36 the Court first examines whether Article 2 TEU imposes legal obligations.Footnote 37 Unfortunately, however, the Court assumed that the first issue is directly settled by the second: that is, that legally binding provisions automatically fall within its jurisdiction under Article 19 TEU and must therefore be enforced by the Court. In his analysis of the judgment, Lindeboom was certainly right to say that ‘not everything that is written down is judicially enforceable, or appropriate for a court to apply’.Footnote 38 The legally binding nature of Article 2 TEU was never in doubt. The question was rather whether the Court could and should invoke Article 2 TEU outside the established procedures that confer binding legal force on this provision. Even if Article 19 TEU establishes that it can do so, the question remains whether it should enforce Article 2 TEU. Would this constitute prudent judicial behaviour? Partly due to the structure of the analysis, this crucial political question went unaddressed.
Instead, the Court tried to resolve the case by analysing the wording, context, and origins of the Treaties. These formal legal arguments proved not only unconvincing but also largely beside the point. They rightly paid little attention to the wording of Article 2 TEU, which is highly ambiguous. Instead, from Article 2 TEU’s context, the Court infers that ‘the insertion of that article into the very body of the EU Treaty … tends to support the finding that that provision is binding’.Footnote 39 While this is correct, it proves very little. Article 3 TEU is also part of the body of the EU Treaty, yet we know from the Court’s own case law that this provision cannot be relied upon before a court.Footnote 40 Second, the Court cites Article 49 TEU, which makes respect for the values listed in Article 2 TEU a condition for EU membership, together with other provisions that refer to EU values—including Article 7 TEU—as proof of ‘the legally binding nature of Article 2 TEU’. While this argument is also correct, the most fundamental question was whether Article 2 TEU imposes obligations on Member States outside the Article 7 TEU procedure and, if so, whether the Court should enforce this provision. The finding that EU values can be enforced under the accession and Article 7 TEU procedures does not answer the question of whether the Court is empowered to enforce these values outside of these procedures.
Least convincing is the Court’s reasoning regarding the origins of Article 2 TEU. It first observes that Article 6 of the EU–Nice Treaty, the predecessor of Article 2 TEU, ‘referred not to the “values” but to the “principles” listed in that article’.Footnote 41 If this change from ‘principles’ to ‘values’ shows anything, it shows precisely the opposite of what the Court implies, since values are less evidently binding than principles. More problematic, however, is that the Court cites the explanatory notes to the draft Convention on the Future of Europe.Footnote 42 These notes justified the introduction of Article 2 TEU on the basis that it would allow Member States to ‘discern the obligations resulting therefrom which are subject to sanction’.Footnote 43 Not only is it questionable judicial practice to invoke the explanatory notes of a Treaty that is not being interpreted and has never entered into force but invoking these notes selectively makes matters considerably worse. The notes explicitly justify the need for a list of obligations in Article 2 TEU by reference to Article 7 TEU. So, if anything, these notes support the conclusion that Article 7 TEU was meant to be the exclusive vehicle for enforcing Article 2 TEU.
The Court’s orthodox legal attitude not only fails to address the crucial question of whether Article 2 TEU should be justiciable but also does not allow it to determine by which criteria a violation of Article 2 TEU can be established. It recognises that a separate analysis is required to establish these criteria, but it adopts two incommensurable standards. Initially, it derives a ‘non-regression’ obligation from Article 49 TEU, according to which ‘a Member State cannot amend its legislation in such a way as to bring about a reduction in the protection of the values enshrined in Article 2 TEU’.Footnote 44 Later, it adopts a ‘red-lines’ test.Footnote 45 Only ‘manifest and particularly serious breaches of one or more values common to the Member States may give rise to a finding … that there has been a failure by a Member State to fulfil legally binding obligations under Article 2 TEU’.Footnote 46 Not only is a red-lines test incompatible with a non-regression obligation but it would also render non-regression irrelevant. As Julian Scholtes has explained, ‘if all that matters is whether a constitutional or legislative arrangement crosses the “red lines” posed by Article 2 TEU, there is no need to compare two sets of rules. It simply needs to be established whether or not the red line has been crossed’.Footnote 47
The establishment of a benchmark for identifying violations of Article 2 TEU is also a political question that cannot be answered by examining the wording, context, and origins of the Treaties. Apparently unaware of this, the Court pulls the standard ‘manifest and particularly serious breaches of one or more values’ in Article 2 TEU out of nowhere, offering no reasons as to why this is the appropriate benchmark. For different reasons, the Advocate General Opinion also demonstrates that establishing the proper criteria is a political exercise. Her embrace of ‘non-regression’ is based on legal considerations, but her adoption of ‘red lines’ follows political considerations. If we accept that Article 2 TEU can lead to the imposition of legal obligations due to Article 49 TEU, then non-regression is the logical standard. Article 49 TEU requires acceding Member States to respect the values in Article 2 TEU. Article 2 TEU should therefore be used to ensure that Member States remain committed to these values and do not regress on them. However, the Advocate General ultimately proposes a ‘red-lines’ test as she considers it to be more politically appealing. First, using red lines can address an inherent issue with a non-regression requirement: it underestimates the trade-offs involved in resolving disagreements over values and risks unduly curtailing the space for the democratic process to settle such disagreements.Footnote 48 As the Advocate General says, red lines ‘do not preclude constitutional diversity’,Footnote 49 but establish a limit that ‘national constitutional choices cannot trespass’.Footnote 50 Second, according to the Advocate General, a ‘red-lines’ test addresses the concern that Article 2 TEU enumerates a set of values whose content is so vague that they are ill-suited for adjudication. If the Court were to limit itself to merely concluding ‘whether a Member State has crossed “red lines” …, the Court does not need to fill in the content of the values involved any further’.Footnote 51
We do not have to find these reasons convincing, nor do we have to believe that these are the only reasons for or against a certain standardFootnote 52 to understand that these are political, not legal, justifications for this standard. This shows that the political choices involved in enforcing Article 2 TEU run deeper than the mere question of its justiciability. Even if Article 2 TEU should be applied independently, concrete legal benchmarks must still be established, and these cannot be deduced from the Treaties through formal legal reasoning. Indeed, the enforcement of Article 2 TEU is political all the way down.
III. Constitutional prudence
As we have seen, the Court is approaching Article 2 TEU with the wrong mindset, applying an improper legal method. Its decision in Commission v Hungary suggests that it operates on the assumption that its task falls within the realm of ordinary law. This would explain why it tried to answer the question before analysing the text, context, and origins of the Treaties, and why it failed to address the central question of whether the legal normativity of Article 2 TEU would justify its justiciability.Footnote 53 Article 2 TEU provides a legally binding rule, and it is therefore for the judiciary to apply that rule—in essence, this sums up the reasoning in Commission v Hungary. Perhaps that would have sufficed had the question been one of ordinary law. However, its tasks fell within a very different realm: that of constitutional law.
If I am not mistaken, many assume that all norms of EU constitutional law are the same kind and are subject to the same principles of interpretation. This view is mistaken. Broadly speaking, a distinction can be drawn between two types of constitutional norms: constitutional rights on the one hand, and constitutional provisions concerning the EU’s frame of government on the other.Footnote 54 The latter include provisions laying down decision-making procedures and rules on the limits of EU authority. Many of these provisions set out clear and detailed restrictions and requirements.Footnote 55 Due to their textual specificity, the plain meaning of these provisions should prevail.Footnote 56
By contrast, the meaning of other constitutional norms, including constitutional rights, is not clearly defined by their text. The constitutional method and required judicial attitude for such norms differs from those appropriate for ordinary legal disputes. As I said in Section I, the method of constitutional law can aptly be called ‘the method of prudence’. As Loughlin explains, it is political in nature and, like politics generally, it arises out of ‘the need to manage conflicts and enmities because there is no authoritative morality through which these issues can be resolved’.Footnote 57 The prudential method can be understood as the ‘juristic interpretation’ of the political ideal. Prudence must, hence, ‘be distinguished from rule-governed action or from following the precepts of conventional morality’. It denotes an ‘ability to assess the situation and adopt the most appropriate course of action’.Footnote 58 This method is conscious of the interests of the governing authority, but recognises that such ‘authority is strengthened through the imposition of restraints on its actions’.Footnote 59 In a nutshell, the prudential method implies that less may often be more.
Although Loughlin developed his ideas in relation to state authority, his insights are relevant to EU constitutional law. The prudential method bears striking similarities to the concept of ‘constitutional tolerance’, described by Weiler as ‘the normative hallmark of’ European integration.Footnote 60 Constitutional tolerance is not a one-way street: it applies not only to constitutional behaviour at the Member State level but also to such behaviour at the Union level. With respect to the Member States, Weiler has argued that their highest expression of constitutional tolerance lies, firstly, in their voluntary subordination to the EU’s constitutional authority and, secondly, in their acceptance of the ‘other’, despite their distinct identities.Footnote 61 In recent years, both of these expressions have come under strain, such that we can indeed say that we have witnessed ‘erosion of constitutional tolerance’ within some Member States.Footnote 62 While EU institutions, including the Court, have rightly taken a wide range of measures to curb the damaging effects of these Member States’ actions, the risk by now is that EU practices are also at odds with the principle of constitutional tolerance. At the Union level, this principle can be said to be guaranteed if EU institutions understand that their decisions
will take effect only if obeyed by national courts and if executed faithfully by a national public official both of whom belong to a national administration which claims from them a particularly strong form of loyalty and habit. This, too, will instil a measure of caution and tolerance.Footnote 63
We can easily replace ‘caution’ and ‘tolerance’ with ‘prudence’ and say that the demise of prudence causes the erosion of constitutional tolerance at the Union level.
Those who believe that such non-doctrinal, political choices have no place in EU constitutional law have a poor understanding of this legal domain. The CJEU makes such political choices all the time, often displaying a great measure of caution and restraint. It allows EU institutions ‘broad discretion in areas … in which it is called upon to undertake complex assessments and evaluations’,Footnote 64 and is generally very deferential to the choices made by these institutions.Footnote 65 Somewhat similarly, the CJEU has cited ‘significant moral, religious and cultural differences between the Member States’ to leave them ‘a wide measure of discretion’,Footnote 66 even though its approach to contentious moral, religious, and cultural issues is by no means consistent.Footnote 67 In such cases, the essential question is one of institutional choice.Footnote 68 Which issues should be decided by the legislature and which by the judiciary? Which matters are for the Member States to settle and which for the EU? Answers to these questions cannot be found using traditional doctrinal reasoning. They require political judgement.Footnote 69
Multiple reasons may justify judicial caution or restraint vis-à-vis the choices of other institutions, such as their greater democratic legitimacy,Footnote 70 expertise, or their ability to enable the EU to exercise its authority more effectively.Footnote 71 Sometimes, the political or moral sensitivity of an issue may in itself be reason for the Court to refrain from interfering with domestic policy, mindful of the backlash that might otherwise ensue. But prudence does not necessarily mean restraint. It may also be in the EU’s interest for the Court to assert its authority, even to develop constitutional provisions in ways entirely unforeseen, also when this proves controversial. A perfect example is its instrumentalisation of Article 19 TEU in efforts to curb and countenance challenges to the independence of domestic judiciaries. Fifteen years ago, hardly anyone could have anticipated the central position that this provision now plays in protecting the rule of law. The evolution of Article 19 TEU was political: constitutional interpretation evolved in response to societal change. But it was political in a good sense: the Court developed the law as it had few other means of protecting the EU’s authority against rule-of-law backsliding in authoritarian Member States.
A prudent constitutional court is always careful, but not necessarily deferential or inclined to act with restraint. It tries to adopt the proper course of action depending on the situation. Sometimes this requires judicial assertiveness, and sometimes it does not. Consider the Court’s role in protecting fundamental rights. Fundamental rights inherently involve politically contested value choices, especially at the stage when they are weighed against competing public interests. There are times when it is proper for a court to weigh in on whether the right choice has been made, especially if fundamental rights have not received due consideration in the political process. The decision in Digital Rights Ireland to annul the Data Retention Directive is probably a good example of the CJEU asserting its authority appropriately.Footnote 72 National courts had expressed grave concerns about the Directive, which interfered with fundamental rights in a far-reaching way while providing few safeguards for the proper use of data. These factors justified the ruling.Footnote 73 At other times, however, it would be wise for a court to exercise restraint and respect the balance struck by other institutions. A court that is too assertive and does not understand the limits of its authority may upend legitimate policy choices and undermine important public interests. The decision in WM and Sovim to annul Article 1(15)(c) of the Fifth Anti-money Laundering Directive illustrates this.Footnote 74 The requirement to make information on the beneficial ownership of companies accessible to any member of the general public limited the right to privacy, but it did so in order to fight corruption and money laundering. This restriction had been carefully justified during the legislative process. Failing to engage properly with the justifications for having this provision, the CJEU dealt a blow to the fight against corruption.Footnote 75 A prudent court would have granted the legislature the margin of discretion required to take such policy choices.
A clear-cut answer as to how a prudent constitutional court should conduct itself is certainly not always available. Different considerations may pull in different directions, and sometimes the best possible judgement in a specific case may be known only with hindsight. However, a few important conclusions follow from the previous paragraphs. Most importantly, constitutional adjudication is a practical exercise requiring a measure of political acumen. The resolution of a typical constitutional dispute requires more than the straightforward application of clearly defined pre-existing rules to the facts of the case. As Martin Loughlin has said, such disputes ‘invariably entail claims about the relative authority of case law versus legislation, of legislative will versus constitutional principles, of constitutional principles versus judicial precedents’.Footnote 76 In the EU, they may also entail claims about the relative authority of EU law versus national law. And, indeed, such conflicts ‘cannot be resolved by legal method; they require the exercise of political judgment’.Footnote 77 In exercising these political judgements, a prudential court would be aware of the limits and precarity of its own authority. It would not assert its authority unnecessarily, for instance when other actors in a better position have already expressed their views on the matter. I would certainly not want to take unnecessary decisions that prove highly controversial. A prudent court also reserves the necessary room for manoeuvre for itself, so that the most appropriate approach can be chosen in every situation. Finally, of course, a prudent constitutional court would be mindful of the constitutional constraints on its own authority. These prudential standards are anything but unreasonable. Yet, as we will see, they have been largely abandoned in the value jurisprudence.
IV. The supposed inevitability of Commission v Hungary
It seems widely accepted that the reasoning in Commission v Hungary is of poor quality. It has been argued that the judgment poses more questions than it answers,Footnote 78 and that it ‘reads like an unsure student’s answer, just mentioning everything (s)he studied to err on the safe side’.Footnote 79 Perhaps equally indicative of the quality of the reasoning is that many supporters of the judgment do not mention it. The outcome is great, so let’s ignore the arguments—that seems to be their guiding principle. One analysis that differs from these is that by Justin Lindeboom. Adopting a supposedly legal realist position, he takes the view that the decision that Article 2 TEU is independently justiciable ‘was inevitable. It was the only right answer’.Footnote 80 The judgment was right not due to the quality of the reasoning, not even because the outcome was desirable, but because it was inevitable. Counter-intuitive as this may sound, it may well be the most compelling defence of Commission v Hungary. But once we grasp why, we can immediately see the constitutional problems with the Court’s value jurisprudence.
The strength of Lindeboom’s defence lies partly in what it does not do. His analysis is not the kind of legal analysis that pretends that the reasoning is entirely logical, the only possible or the most plausible reading of the Treaties. In fact, it is hard to imagine members of the Court using the same kind of arguments to defend the judgment. Lindeboom almost urges us to abandon legal reasoning entirely. Rather than appealing to reason, he appeals to emotion, and not in a negative sense of the term. In essence, he asks us to put ourselves in the judges’ shoes. What would you have done had you been responsible for delivering a decision on a law as abhorrent as the Hungarian one? Would you have dared to rule that Article 2 had not been violated? Imagine the criticism that this would have created.
However, what makes Lindeboom’s defence compelling is that he adds a rational dimension to his emotional appeal. The judgment was inevitable not just because of the despicable nature of the Hungarian law but also because of existing precedents. As he argues, ‘the Court has worked towards a legal status quo in which the justiciability of Article 2 TEU is no longer far-fetched, but logically compelling’. This strikes a chord, for, as we have already seen, it is settled precedent that Member States may not regress on their values and that Article 2 TEU ‘is an integral part of the very identity of the Union as a common legal order’. This argument again invites us to reflect on what we would have done if we had been in the judges’ position. If any regression on the values in Article 2 TEU must be prevented and if a violation of these values undermines the identity of the EU constitutional order, would you have ruled out the justiciability of Article 2 TEU? Imagine how unbelievable the Court would have appeared.
In other words, the strength of this argument lies in its conveying the sense of the inevitability of the judgment. Strictly speaking, of course, the result was never inevitable. An alternative path could have been taken, but, as Lindeboom essentially argues, viable alternatives were closed off by previous case law. Despite my criticism of the reasoning, part of me believes that he is right that allowing the independent application of Article 2 TEU had become inevitable. This is precisely where the problem lies. If any other outcome had become inconceivable, it was because the Court had behaved recklessly in earlier case law. Being unwilling to apply the brakes occasionally and unable to foresee the dangers ahead, it had manoeuvred itself into a position from which only one way forward remained. Or so I will argue next.
Points of departure matter. The starting point of one’s analysis can fundamentally shape the conclusions that one reaches. This is certainly the case for the claim that allowing the independent application of Article 2 TEU was inevitable: a foregone conclusion. This might be true if our point of departure is the law as it was on 20 April 2026, the day before Commission v Hungary was decided. In light of the judicial precedent as it existed on that day, it may seem that there was no alternative to the independent justiciability of Article 2 TEU. This is not an implausible conclusion. When evaluating a judgment, we often ask how it relates to the relevant case law. Is the ruling consistent with precedent? Does it logically follow from it? Is it perhaps even inevitable? However, accepting this logic in the present context would require a considerable leap of faith. The judicial precedents that may have left the Court with little choice but to make Article 2 judicially enforceable are, in fact, very weak.
Consider the principle that Member States may not regress on their values. It was first established in relation to judicial independence in Repubblika and extended to all values in Article 2 TEU in Commission v Hungary.Footnote 81 Since only states committed to these values may accede to the EU, the requirement that Member States may not regress on them may seem compelling. But what exactly does it mean? Not even the Court seems to know. Advocate General Ćapeta suggests that ‘Member States are prohibited from amending their legislation in such a way as to bring about a reduction in the protection of EU values’,Footnote 82 but this cannot be what she truly means. In the end, she holds that Member States may reduce the protection of EU values provided that they do not ‘negate’ them—a considerably less demanding standard, entirely distinct from non-regression. The Court does not really mean non-regression either. As we saw, it decided that Article 2 TEU is violated not by value regression but by ‘manifest and particularly serious’ value breaches. So why does it keep saying ‘non-regression’ if it does not mean that? Presumably because a slip of the tongue in Repubblika has now become an indisputable judicial precedent.
Or consider the Court’s claim that the common values in Article 2 TEU ‘define the very identity of the European Union as a common legal order’. Not only is it difficult to find support for this claim in the Treaties but, as Julian Scholtes explains, it is conceptually and normatively dubious to emulate national constitutional identity claims at the European level. The constitutional identity of, for instance, Germany rests on political foundations, not on the moral substance of the law.Footnote 83 Moreover, like the non-regression requirement, the identity claim is merely ornamental. Just as the non-regression obligation was fully irrelevant to the outcome in Repubblika, the identity claim ‘was entirely dispensable’ for the reasoning in Commission v Hungary.Footnote 84 The Court could easily have found a violation of Article 2 TEU without calling this provision the very identity of the EU legal order.
The same is true of the Court’s portrayal of the relationship between EU values and ‘the specific and essential characteristics of EU law’Footnote 85—namely primacy, direct effect, and autonomy—as being fully harmonious. Members of the Court claim that these principles give ‘concrete expression’ to EU values,Footnote 86 positing a mutually enabling dynamic between EU values and the essential characteristics of EU law. Of course, the Court’s jurisprudence often casts doubt on the idea that the essential characteristics of EU law are always ‘compatible with and complementary to the pursuit of the … values (ethos) of European integration’.Footnote 87 Moreover, just as with the non-regression requirement and the identity claim, the effort to forge a connection between EU values and the essential characteristics of EU law was non-essential. The Court could have addressed the value breaches in cases where it invoked these characteristics without pretending that these characteristics operate in full harmony with EU values.
This is the crux of the problem: the Court has established various precedents on Article 2 TEU that have weak legal foundations and were substantially irrelevant to the resolution of value disputes. They are ornamental statements, rhetorical flourishes that add nothing to the argument’s foundation or structure. At the same time, however, they provide the foundation for something new. The Court’s rhetoric around Article 2 TEU raises the stakes considerably and makes it increasingly difficult to imagine any other direction of travel than to plunge ahead at full speed. If, according to the Court, a serious breach of EU values violates not only the identity of the EU legal order but even its structural characteristics, what other choice does it give itself but to press ahead and double down? Perhaps unintentionally, it has manoeuvred itself into a position where there is one course of action left that is, or seems to be, inevitable.
However, the inevitable still had to be justified. While the answer to the question of whether Article 2 TEU could be applied independently may have become inevitable, no sound justification for this answer was found. Even Lindeboom is unimpressed by the Court’s argument that support for the independent application of Article 2 TEU can be found in the wording, context, and origins of the Treaties. He even goes as far as to claim that ‘there is no deductive argument towards justiciability of Article 2’.Footnote 88 In other words, he effectively contends that the inevitable outcome could not be justified.Footnote 89 Although this may appear counter-intuitive, the analysis so far suggests that he may well be correct, at least concerning the possibility of justifying the ruling in orthodox legal terms.
This is why points of departure matter. If we depart from the judicial precedent of the day before the next judgment, without critically reflecting on its merits or the directions that it takes us in, the outcome may appear inevitable and right. However, a different point of departure, one that allows for reflection on prior decisions and the path travelled so far, should make us resist the conclusion that the outcome was inevitable and therefore right.Footnote 90 If the judgment was inevitable, it was so in the sense of a car crash following a downhill drive without brakes on a road without off-ramps. Faced with a ditch on the left and a wall on the right, the driver decides to crash into the wall and then get out and say, ‘What would you have done? This was inevitable. It was the only right choice’. While judicial precedent may have compelled the Court to hit the constitutional wall to the right, we should question its past imprudent behaviour, especially since the ditch to the left was minor: denying Article 2 TEU’s justiciability or leaving the question open would not have changed the outcome of the case.
We can now begin to understand the problem. Not only did the Court deliver a controversial judgment that was not supported by sound argumentation; it may also have manoeuvred itself into a position from which it could hardly make a different decision. In other words, the problem is entirely of the Court’s own making. Parallels with previous occasions when the Treaties were interpreted in ways previously deemed unimaginable are therefore hard to draw. Consider Pringle or PSPP,Footnote 91 cases in which the Court was confronted with an impossible choice: upholding constitutional constraints at the risk of vast economic damage or preventing such damage at the expense of constitutional constraints. The Court wisely decided to sacrifice the latter. Some damage was done, but the Court could hardly be blamed for it, in part also because the alternatives would have been worse. The situation in Commission v Hungary is of a different kind. Not only would the alternative—not licensing the justiciability of Article 2 TEU—not have altered the finding that Hungary had flagrantly breached EU law but if the Court felt that there was no alternative, it was because of its own ill-considered judicial precedents. This time, the blame falls squarely on the Court.
V. The demise of constitutional prudence
This poses various difficult questions. Most importantly, it poses the question of whether the Court properly appraises the dangers posed by its ever-expanding case law and, relatedly, of the limits and fragility of its own authority. Commission v Hungary is both the result and the embodiment of the repudiation of constitutional prudence. At present, the Court seemingly seizes every opportunity offered by EU values with great eagerness and enthusiasm. Rather than an appreciation of the virtues of restraint, we are witnessing an eager display of power. All the while, it is uncertain whether it fully comprehends what it is saying and doing. This attitude is fraught with danger, and a perceptive constitutional actor would respond differently than the Court has so far.
Part of the damage done is a noticeable disenchantment with the Lenaerts Court among mainstream EU lawyers. Many of them are uncertain about the direction of the case law and frustrated by the Court’s inability to properly justify its most controversial constitutional choices. This is difficult to view in isolation from the fact that the Court has embraced a discourse that is detached from the European society it claims to serve. This discourse is passionately advocated by a small group of EU lawyers whose positions lack credibility and support within their own epistemic community.Footnote 92 What has emerged is an echo chamber consisting of a small group of established academics and judges who buttress each other’s positions, perhaps to deflect growing criticism. Consider the depiction of Article 2 TEU as ‘the very identity of the EU as a common legal order’,Footnote 93 the suggestion that EU values and ‘the essential characteristics of EU law’ operate symbiotically,Footnote 94 or the claim that Article 2 TEU trumps national identity claims brought under Article 4(2) TEU.Footnote 95 These are without a clear legal or political foundation, but they find their origins in entrenched ideas within the echo chamber. Judges can now cite the academics, and the academics can cite the Court to lend legitimacy to their own beliefs,Footnote 96 creating a self-reinforcing loop that gives the illusion that these beliefs are not entirely far-fetched.
However, the main damage caused by the chosen course of action may be to the EU’s authority at the national level. Some of the divisions were evident in the run-up to the judgment. The majority of Central and Eastern European Member States chose not to intervene in the case, and their apparent unease or disagreement with at least part of the Commission’s actions against Hungary must be taken seriously. Merely mentioning that 16 Member States supported the actions is unhelpful. It is important to reflect on why a considerable group of states could not agree with the Commission’s actions. If they feel unease with the growing role of EU values and the Court’s willingness to articulate their meaning, perhaps this is not simply because they are opposed to these values. Perhaps the reason is also that, in their perception, they are, at times, subject to different standards than other Member States,Footnote 97 and therefore fear that they will most likely be on the receiving end of an expansive interpretation of EU values.
Among the 16 states that supported the case against Hungary, the judgment might prove divisive, too. Not only did these states not adopt the same position on Article 2 TEU’s justiciabilityFootnote 98 but influential voices within at least some of these states will no doubt be critical of the value jurisprudence. The intervention of 16 states means that their national governments supported the action against Hungary, not their national parliaments, national citizens, or national constitutional courts.Footnote 99 While Court rulings do not require consent from any of these actors, the claim that ‘European society at large’ supported the case because it was backed by 16 Member States is both divisive—it excludes most of Central and Eastern Europe from European society—and misleading: European society does not consist merely of national governments.Footnote 100 More importantly, however, national actors with little faith in the Court’s ability to guard the limits of EU authority will be wary of the value jurisprudence and its expansionary force. As long as values are invoked against Hungary, Poland, or Malta, credible challenges to its authority may not materialise, but constitutional courts with greater authority in more influential Member States may call into question the Court’s reasoning on Article 2 TEU should they be confronted with a value decision one day. The Court’s position on the relationship between Articles 2 and 4(2) TEU is diametrically opposed to that of the Bundesverfassunsgericht (BverfG), which stated in its Lisbon judgment that ‘the values codified in Article 2 TEU [may] not claim primacy over the constitutional identity of the Member States’.Footnote 101 Imagine if the BverfG were to be confronted with a ruling of the same quality as that in the Commission v Malta case concerning the sale of citizenship.Footnote 102 Understandably, it could feel that it has little choice but to rule that the Court’s ‘interpretation of the Treaties is manifestly utterly incomprehensible and thus objectively arbitrary’,Footnote 103 and therefore ultra vires.
The Court may be aware of these risks and be reluctant to apply EU values when this may backfire—as an act of prudence—but this highlights another risk: double standards in EU value enforcement. In view of the controversies that the application and oversight of EU values will provoke, EU institutions have a major responsibility to ensure that EU values are applied equally to all. As Síofra O’Leary has observed, ‘a selective approach by the Commission or the CJEU regarding which values and which societal groups to protect or which bit of whose history to accommodate would be a source of great difficulties’.Footnote 104 Unfortunately, however, already at present the perception exists that values are being applied selectively. For example, why did the Commission rely on Article 2 TEU to combat the stigmatisation of LGBT+ people in Hungary but not in infringement cases concerning the stigmatisation and segregation of ethnic minorities in the educational or housing system in Slovakia and Denmark?Footnote 105 Why does the Court apply Article 2 TEU to condemn the stigmatisation of LGBT+ people in Hungary yet refuse to trigger ordinary EU anti-discrimination law when asked to sanction the stigmatisation of Muslims in France and Belgium?Footnote 106 The Hungarian anti-LGBT+ laws are clearly more evil than the average neutrality policy under which Muslim headscarves are banned in the workplace, but the Court’s narrow approach in cases concerning the Muslim headscarf is in striking contrast to its approach in cases concerning the rights of LGBT+ people. Moreover, the persistent and systematic exclusion of Roma people from Slovakian society (and that of other EU states) appears at least as problematic as the Hungarian laws. Yet Article 2 TEU has not been invoked against Slovakia.
Of course, Slovakia is not Hungary, and this explains something. Commission v Hungary was not just a case concerning the marginalisation of the LGBT+ community but also one against the Orban regime. I have some sympathy for this, but it raises hard questions. Do values apply equally to all or do they weigh more in cases concerning states and practices that EU actors tend to dislike? How much weight will EU institutions attach to values when these contradict their interests and preferences? No matter how important issues like rule of law and the protection of LGBT+ people are, the litmus test of EU values will likely be migration and the treatment of ‘less desirable’ social groups. We should perhaps not judge yet, but currently there are not many reasons to believe that the EU will pass this test.
The danger of values being applied selectively originates in their indeterminacy but is amplified by the political nature of EU law enforcement.Footnote 107 Values can become political pawns, moved forwards, backwards, or off the board entirely, depending on the interests of more powerful actors. Judging by the Opinion of Advocate General Ćapeta, these dangers are not well understood by the Court. In response to the argument that the malleability of the values in Article 2 TEU makes them ill-suited for adjudication, she said that ‘the interpretation of indeterminate notions is an ordinary activity for courts, and, given the indeterminacy often present in norms of a constitutional nature, it is one of the core tasks of constitutional courts’.Footnote 108 Of course, she is right that applying indeterminate norms is the bread-and-butter task of constitutional courts. However, this is not a reason to jump on every chance to apply such norms. A prudent court would be aware of the risks involved and proceed with caution. It would reflect on whether to get involved or leave the decision for another time or institution. A prudent court would probably refrain from taking a controversial, expansive approach when a minimalist attitude would suffice.
Of course, Commission v Hungary is rather minimalist in one respect. One could claim that the Court demonstrated prudence in deciding that only ‘manifest and particularly serious’ value breaches violate Article 2 TEU. It could have adopted a more expansive approach, such as that proposed by Hillion (Section II), whereby any breach of values would be reviewable under Article 2 TEU. It hinted at such a test in Commission v Malta, when it said that its review of the exercise of national competences cannot be limited to ‘serious breaches of the values and objectives of the European Union’.Footnote 109 Fortunately, the Court was prudent enough to not go down that road.
Yet the fact remains that the Court and the Commission adopted a ‘high risk, low gain’ attitude.Footnote 110 By invoking and applying Article 2 TEU, they chose a controversial path that they neither had to take nor could properly justify. In that light, the more prudent approach for the Court might have been to rule that, having regard to its findings on the other claims, there was no need to examine the remaining complaint on Article 2 TEU. To be clear, our real concern with Commission v Hungary should not be that Article 2 TEU was turned into a self-standing judicial provision. We should rather be concerned with the Court’s eagerness to expand the applicability of EU values despite the inherent risks. It has overburdened the law with expectations that it cannot fulfil.Footnote 111 Values are ‘hard taskmasters’,Footnote 112 and even a court enjoying undisputed authority would have difficulties handling the tasks the Court has placed on its own shoulders. Given the almost casual way in which the Court applies its disputed authority, the trajectory of the value jurisprudence bodes ill, and this illness could easily have been prevented through a more cautious and careful approach.
VI. What lies ahead?
With Commission v Hungary, we have reached a critical juncture. The Court may leave it there, pleased with having condemned the Hungarian legislation as severely as possible, but it may also decide to continue down the path it has taken. Perhaps the most critical question is whether the Court would consider applying EU values to attain results that are beyond its reach without the use of Article 2 TEU. Its ruling in Commission v Malta suggests that this possibility cannot be excluded. Exactly how the reasoning behind the ruling must be understood remains unclear, including in relation to the value of solidarity and the role that Article 2 TEU plays in this context. It is clear, however, that solidarity had to be applied loosely to achieve the desired outcome—namely, a restriction of nationality rules—for which no justification could otherwise be found in the Treaties.Footnote 113
That it would not be altogether surprising if the Court one day invoked EU values to circumvent the constitutional constraints on its authority is also shown by the fact that such constraints have been interpreted loosely before. Consider Article 51(1) of the Charter, which limits its scope of application. While it is debated whether the Court could invoke EU values to circumvent these scope limitations,Footnote 114 a more pertinent question is whether it would ever need to do so. Commission v Hungary indicates that the slightest connection with secondary law is sufficient for national law to fall within the scope of the Charter and for EU fundamental rights to apply. There will not be many cases in which national law has no connection to EU law and is not subject to EU fundamental rights, as per the current interpretation of the scope of the Charter. It therefore appears that the Court has effectively rendered the constraints set out in Article 51(1) of the Charter ineffective. One may find such a move surprising for a court that claims that EU primary law should be interpreted in accordance with its wording, context, and origins. The likely reason is that the Court’s reasoning is informed primarily by the outcome it seeks and not by a deeper vision on constitutional interpretation and the appropriate role of judges in this process.
A clear indication that members of the Court may be open to the idea of achieving desired outcomes almost exclusively on the basis of EU values is the Opinion of Advocate General Ćapeta in KS and others, a case concerning the limits of the Court’s jurisdiction within the Common Foreign and Security Policy. Outside of Article 40 TEU, it lacks ‘jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions’.Footnote 115 On this ground, the General Court declined jurisdiction in the case. The Advocate General, however, invoking Article 2 TEU, and specifically the values of the rule of law and human rights, proposed that the Court nonetheless exercise jurisdiction in CFSP cases involving alleged fundamental rights breaches.Footnote 116 She viewed Article 2 TEU as a way of overcoming clear constitutional rules on the powers assigned to institutions and the procedures established to regulate their behaviour, not unlike how some academics view the provision.Footnote 117
For some, such proposals sound fantastical,Footnote 118 akin to the construction of castles in the sky. However, the necessary foundations for their construction—namely, the legal precedents discussed earlier—are in place, and the Court has also already given itself the tools required to construct these castles if it so desires. On several occasions, it has said that ‘Article 4(2) TEU must be read in the light of provisions of the same rank, in particular Articles 2 …, and cannot exempt Member States from the obligation to comply with the requirements arising from those provisions’.Footnote 119 The argument that Article 2 TEU is of the same rank yet trumps other primary law may sound innocuous when applied against disagreeable national identity claims, but it can be employed at any time, against any Treaty provision the Court dislikes. This is not to say that this will happen, but if the Court so desires, it can easily circumvent a clear Treaty rule by saying that it must be read in the light of Article 2 TEU and therefore give way. In other words, within a relatively short period of time, Article 2 TEU has evolved from a mostly symbolic provision to a means by which the Court could challenge the EU’s own constitutional guardrails. This speaks volumes about the path that EU values have taken, but whether it also tells a positive story is questionable.
VII. Conclusion
The transformation of Article 2 TEU raises critical questions about the role of EU values in the EU constitutional order and the Court of Justice’s role in applying the values set out in Article 2 TEU. As I have argued, EU lawyers are ill-equipped to address these questions since they fail to appreciate what is unique about constitutional law and therefore apply the wrong approach to EU values. European Union constitutional law fuses law with politics in a way that renders traditional doctrinal methods of little use in this legal domain. The limits of EU constitutional orthodoxy have been made evident by the scholarly literature on Article 2 TEU, as well as by the ruling in the Commission v Hungary case. In the latter, the Court attempted, unconvincingly, to deduce the independent application of Article 2 TEU from the text, context, and origins of the Treaties.
This article has argued that the method of constitutional law can appropriately be understood as a method of prudence. From this perspective, the case law on EU values appears increasingly problematic. The Court has established various judicial precedents that were entirely dispensable in the context of the legal disputes that have been brought before it, but which may leave it with little choice but to continue to escalate its use of EU values. If it continues this path, several dangers lie ahead. For example, the case law has created expectations about the law that neither the law itself nor the Court can ever meet. There is a realistic possibility that EU values will be applied with double standards and prove more binding on weaker parties than on stronger ones. Regardless of this, the expansive approach to Article 2 TEU may ultimately weaken the Court’s own authority. The trajectory of this provision, as well as the Court’s failure to justify it adequately, has already created, and possibly enhanced, scepticism about the Lenaerts Court among EU lawyers. More importantly, however, it will do little to convince national courts that have little faith in the Court’s ability or desire to hold EU institutions accountable for breaches of EU law that it will be more committed to this task in the future. So far, the value case law has merely enabled and supported an expansion of EU authority. Moreover, due to the transformation of Article 2 TEU, it is not inconceivable that the Court may at some point use this provision to challenge the EU’s own constitutional guardrails. While we may have merely witnessed the demise of constitutional prudence so far, the question now seems to be whether we will see its dereliction in the future.
Open access
