The ruling in the case of the Commission v. Hungary was eagerly awaited by many, but it will have come as a surprise to few. Public statements by prominent members of the EU Court of Justice indicated a clear desire to extend the applicability of Article 2 TEU. If any of the judges still had any doubts about allowing its independent application, Advocate General Ćapeta’s Opinion may have sealed the deal. In its judgment, the Court ruled that it follows from Article 2 TEU’s wording, context, and origins (para 528) that it is infringed when a Member State breaches the values common to the Member States in a “manifest and particularly serious” manner (para 551).

There is, of course, a sense of irony in the fact that the interpretation is presented as self-evident – a quasi-objective fact that logically follows the wording, context, and origins of the Treaties. If members of the Court had been asked fifteen years ago whether Article 2 TEU is justiciable, they would likely have answered, “Of course not – Article 2 TEU speaks of values, after all” (see the Opinions of AGs Tanchev and Pikamäe). Now, however, their answer to the same question is, “Of course Article 2 TEU is justiciable – it speaks of values, after all”. Indeed, an interpretation that was almost unthinkable not so long ago is now presented to us as beyond question.

The fact is that Commission v. Hungary is a political judgment. I do not necessarily mean this negatively. It is political not just in the sense that constitutional interpretation clearly evolved in response to societal change. It is political because it is constitutional.

Unfortunately, this fact is not sufficiently understood, and worse, often expressly denied by EU lawyers. EU constitutional discourse is plagued by what Jock Gardiner has termed “EU constitutional orthodoxy”. According to this orthodoxy, EU constitutional law is like ordinary law, and its meaning can therefore be ascertained using ordinary methods of legal interpretation. Gardiner rightly claims that “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”.

The Court’s findings regarding the Commission’s pleas concerning infringements of the various acts of secondary law strike me as generally well-motivated, but its reasoning on Article 2 TEU clearly demonstrates the suffocating grip of EU constitutional orthodoxy. I will therefore focus on this part of the reasoning to illustrate the consequences of not seeing or accepting the political nature of constitutional questions. A clear consequence is that the CJEU acts as a constitutional court without a constitutional compass.

The Futility of Textualism

The shortcomings in the Court’s reasoning cannot be viewed in isolation from the state of the academic debate. Many lawyers have tried to deduce meaning from Article 2 TEU in the most orthodox manner possible, i.e. by examining its wording. Given the ambiguous nature of this provision, it is no surprise that this exercise has been unsuccessful. There are almost as many interpretations of Article 2 TEU as there have been attempts to interpret it. Some argue that only the foundational values in the first clause contain legal obligations, as opposed to the political aspirations in the second clause. Others argue that because the EU is “founded” only on the values listed in the first clause, only these values characterize the “identity” of the EU legal order. A third group, instead, claims that both clauses should be read conjointly, without agreeing on what such a conjoint reading requires. Some take the view that, since Article 2 TEU speaks of values instead of principles, neither clause can be autonomously enforced. 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. Indeed, these disparities merely show that orthodox textual readings of Article 2 TEU are a dead end.

Some textualists are unfazed by this concern. For them, the relevant issue is not whether the text supports a certain reading, but that it does not expressly rule out any. According to Christophe Hillion, “the Treaties neither restrain nor exclude the European Court of Justice’s jurisdiction over Article 2 TEU. Had such a restriction been intended, the primary lawmakers would have made it explicit”. Therefore, he believes that the EU may enforce “any failure” to respect Article 2 TEU values through the infringement process. A surprising number of EU lawyers have adopted the same position (see here, here, and here), as has the Court, albeit with some moderation (para 540).

The problem with such reasoning is the huge leap from legality to legitimacy. The fact that a court has the authority to do something (or is not expressly prevented from doing it) does not justify it doing so (as I explain here). In other words, the mere fact that Article 2 TEU does not expressly rule out its independent application in the infringement process does not answer the questions of whether and how it should be invoked. 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. Textualism actively obscures these political questions.

EU Constitutional Orthodoxy in Commission v Hungary

The political nature of these questions is clearly demonstrated by the reasoning in both the Advocate General’s Opinion and the Court’s judgment. For reasons of space, and also because the judgment largely follows the Opinion, I will not discuss the Opinion in detail. However, it is worth noting that, midway through her analysis of the justiciability of Article 2 TEU, the Advocate General seemingly demonstrates a refreshing awareness of what is at stake, stating that “basic constitutional principles are often, at the same time, political and legal”. Unfortunately, however, she immediately closes this door, saying in the same paragraph that “the Court of Justice’s defence of those values is not its political choice, but its constitutional task” (para. 215). This is a missed opportunity, because the manner in which this constitutional task is exercised involves important political choices.

Instead, the Advocate General mostly adopts a doctrinal approach to the issue of Article 2 TEU’s justiciability, involving an analysis of the text, context and history of the Treaties. The Court takes the same approach (para 528), which lies at the heart of the problem I wish to analyse. Consequently, neither the question of whether Article 2 TEU is judicially enforceable (paras 520-542), nor the question of what sort of restrictions give rise to a violation of Article 2 TEU (paras 544-564) is convincingly addressed by the Court.

Regarding the first question concerning Article 2 TEU’s judicial enforceability, the Court first considers whether Article 2 TEU establishes legally binding obligations (paras 520-536), before addressing the actual question of whether these obligations are judicially enforceable (paras 537-543). The Court assumes that the first issue essentially answers the second: i.e., that when a provision is legally binding, it automatically falls within the Court’s jurisdiction under Article 19 TEU to enforce these obligations. However, it was never in doubt that Article 2 TEU is legally binding. The question was rather whether the Court can invoke Article 2 TEU outside established procedures that confer binding legal force on this provision. Because of how the Court structures its analysis, it largely evades this crucial question.

Because the Court devotes considerable energy to proving the legally binding nature of Article 2 TEU, its arguments are, if not unconvincing, beside the point. It rightly does not pay too much attention to the wording of Article 2 TEU, which, as we saw above, does not tell us much. Instead, focusing on the context surrounding Article 2 TEU, the Court first observes that “the insertion of that article into the very body of the EU Treaty … tends to support the finding that that provision is binding” (para 532). 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. 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”. However, it simply begs the question to state that EU values can be enforced under the accession and Article 7 TEU procedures and that therefore the Court is empowered to enforce these values outside of these procedures.

Least convincing is the Court’s reasoning in paragraph 535 regarding the origins of Article 2 TEU. First, the Court observes that the predecessor of Article 2 TEU (Article 6 of the EU-Nice Treaty) “referred not to the ‘values’ but to the ‘principles’ listed in that article”. If this change from “principles” to values “shows” anything, it shows precisely the opposite of the conclusion reached by the Court, 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. 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’” Invoking the explanatory notes of a Treaty that is not being interpreted and never entered into force is bad enough; 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 is the exclusive vehicle for enforcing Article 2 TEU.

Not only does the Court’s orthodox approach offer little support for its decision on whether Article 2 TEU is justiciable, but the wording, context, and origins of the provision also fail to support its conclusion on how it must be enforced. While the Court recognises that a separate analysis is needed to establish the criteria for establishing a violation of Article 2 TEU, it adopts two benchmarks that are incommensurable. Initially, it derives a “non-regression” obligation from Article 49 TEU. Accordingly, “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” (para 524). Later, however, it takes the view, similar to the “red-lines” test proposed by the Advocate General, that “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” (para 551). This is incompatible with the non-regression principle. As Julian Scholtes has argued, a “red-lines” test would render “non-regression” irrelevant: “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”.

This illustrates that establishing the benchmark by which violations of Article 2 TEU can be identified is also a deeply political matter. Indeed, there are good reasons to think that a red line test is more politically palatable than a non-regression test (which should be abandoned as soon as possible). The Advocate General – who, unfortunately, adopted the same two incommensurable standards too, thereby paving the way for the Court’s mistake – offers two such political reasons. First, a requirement that Member States may not regress on their values unduly curtails the space for the democratic process to resolve value disagreements. Red lines may avoid this problem. As the AG observes, under this benchmark, “the values of Article 2 TEU do not preclude constitutional diversity”, but only establish a minimum that “national constitutional choices cannot trespass” (paras 220-221). Second, the AG believes that a red line may address the objection that the values in Article 2 TEU are too vague to be suitable for adjudication. If the Court would merely “conclude whether a Member State has crossed ‘red lines’ …, it does not need to fill in the content of the values involved any further” (para 212).

We do not have to accept these reasons as fully convincing to see that these are political and not legal justifications for a certain standard. The Court, instead, seemingly unaware of this, arrives empty handed and has no reasons to offer for why the applicable standard should be “manifest and particularly serious breaches of one or more values” in Article 2 TEU.

What would have been the alternative?

What might a constitutionally more sound argument have looked like? There are glimpses of something more credible in the part of the Court’s reasoning where it stresses that, in accordance with Article 49 TEU, respect for the values in Article 2 TEU “is a prerequisite for the accession to the European Union of any European State” (para 521). It is, indeed, a sound argument that Member States are part of “a legal structure that is based on the fundamental premiss that each Member State shares with all the other Member States … the common values contained in Article 2 TEU” (para 522). Of course, it is nonsense that this premise finds support in “the specific and essential characteristics of EU law” such as supremacy and autonomy (para 522), but the premise as such seems sound.

Rather than resorting to dubious legalistic rhetoric, it would be more credible and honest to deliberately politicise this issue when necessary. As a constitutional court, there may be a moment to step in to remedy the possible asymmetry between the importance of the values in Article 2 TEU and the EU’s powers to protect values. It indeed has a role to play in protecting what the Advocate General rightly called the vision of a “good society” as expressed by Article 2 TEU. After all, it is this vision that informs what type of society may partake in European integration.

It would be dishonest to pretend that this conclusion logically follows from the wording, context, and origins of the Treaties. Rather, it is a politically informed choice pertaining to the EU judiciary’s role in safeguarding the EU’s foundational values, but it is not thereby an unconstitutional choice. Constitutional law requires precisely such political choices.

Of course, the Court must still derive some kind of legal authority for its political choices, and these choices must respect the textual limits that the Treaties provide. The question is whether Article 2 TEU provides this legal authority. It might, even if it does not do so as evidently as, for example, Article 19(1) TEU. In my view, however, the more vital question is whether the Court should use its legal authority, if it has any. Enforcing Article 2 TEU was not inevitable; the Court’s hands were not tied by the provision’s wording, context, and origins. In other words, even if legal authority can be derived from Article 2 TEU, the justification for exercising it in Commission v Hungary remains an open question. We need to appreciate this political question to allow for careful and critical reflection on what kind of judicial behaviour is astute in such cases.

The choice to enforce Article 2 TEU was, it seems to me, an entirely unwise one. As Bonelli and Claes warned a few years ago, the case was “high risk, low gain”. It was low gain because there was no need to invoke Article 2 TEU to prove that the Hungarian law violated EU law. It was high risk because, as Mendes recently warned, invoking 2 TEU risks “overburdening the law with expectations and hopes that, alone, or virtually so, it can hardly fulfil”. This alone means that the judgment represents a net loss for EU law. The situation is made worse by the Court’s failure to grasp what is required to adequately address claims of such constitutional magnitude. Under the spell of EU constitutional orthodoxy, it made not only an unnecessary move, but also a controversial one unsupported by adequate motivation.

Seeing the political in EU constitutional law

Some of my claims are likely to make EU lawyers feel uneasy. The belief that the Court’s legitimacy is affected when it makes political choices is so ingrained that lawyers will often go to great lengths to deny that constitutional adjudication is political too. The extrajudicial writings of EU judges are symptomatic of this, as are the positions of some of the leading academic voices in EU value debate. While they often advocate strong normative visions of how Article 2 TEU should be employed, they jump through every possible hoop to cloak these visions in doctrinal terms. Because the impression that the “measures to enforce Article 2 TEU are ideological” (here, p. 88) must be avoided at all costs. Such claims are easily dismissed as misleading and uninformed (see my critique here). However, the ruling in Commission v Hungary illustrates the damage that is done when such ideas become orthodoxy. Without a sound constitutional compass, the Court is sailing blind in uncharted waters. Lawyers who fail to recognise or admit the inherently political nature of EU constitutional law seemingly want the Court to sail blind. This will not save the Court’s legitimacy, but only make it vulnerable to legitimate criticism. After all, as the saying goes, in the land of the blind, the one-eyed man is king.

I would like to thank Julian Scholtes for feedback on an earlier draft.

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