C-769/22: reinforcing EU law and its fundamental values

1.The binding nature of Article 2 TEU: a step further after Conditionality Regulation cases

In line with the dismissal of the 2022 Hungarian and Polish actions for annulment against the Conditionality Regulation, the Court of Justice of the EU (CJEU) first recalled the role of Article 2 TEU as a key aspect of EU identity by reiterating the statement that it “is not a merely a statement of policy guidelines or intentions.” Rather, its values “are an integral part of the very identity of the European Union as a common legal order” which are then “given concrete expression in principles containing legally binding obligations for the Member States”.

Then it went further. For the first time, the CJEU ruled on an independent infringement of Article 2 TEU by a law of a Member State. The case at hand, C-769/22 – Commission v Hungary, concerned a Hungarian law restricting access to content portraying or promoting gender identities that differ from the sex assigned at birth, sex reassignment, or homosexuality through various measures. The CJEU ruled that Article 2 TEU enshrines the cores values of the EU, in particular respect for human dignity, equality, and respect for human rights, including the rights of persons belonging to minorities. It specifically pointed out that the prohibition on showing such content and the association made with criminal behaviours such as paedophilia led to stigmatisation and marginalisation and violated the human dignity of a particular group, namely non-cisgender or non-heterosexual persons.

Prior to this point, Article 2 TEU had only gained its legal strength through derived EU law provisions or by being invoked alongside other norms. Now, it has to be considered a set of core values which are each justiciable by itself.

To assert the directly binding nature of Article 2 TEU, the CJEU referred notably to Article 49 TEU. Article 49 TEU was, contrary to the preamble, incorporated in the very body of the Treaty, and, as previously stated in other CJEU judgments, implies that respect for Article 2 TEU is a prerequisite for accession to the European Union and that the States which chose to join have freely and voluntarily committed to such values. Insofar as it contains the founding principles of the EU, Article 2 TEU binds Member States as an automatic consequence of their admission and obliges them thereof to mutually respect, maintain and promote its values.

Article 2 TEU can therefore be invoked as the sole legal ground in an action for failure to fulfil an obligation by virtue of Article 258 TFEU, without circumventing the specific provisions of Article 7 TEU, which is not the exclusive mechanism through which such a violation can be sanctioned so far. It seems also that Article 2 TEU could be sufficient grounds for an action for annulment of an act of an EU institution or body (see section 3 for further detail).

2.The “manifest and particularly serious” threshold

However, the judgment adds that only manifest and particularly serious breaches qualify as sanctionable, meaning that those failing to reach that threshold will not be considered in the case of an action for failure to fulfil obligations. The CJEU specifies that “the breach of several fundamental rights guaranteed by the Charter which give concrete expression to the values enshrined in Article 2 TEU may be an indication that there has been a failure to respect those values”.

It implies that the threshold which is to be met in such a case is higher that the “sufficiently serious breach” required for State liability under EU law. Not only does the violation need to be serious enough, it must also have a specific degree of intensity.

Accordingly, the wording of the text underlines the stringency of the test and suggests that only the most blatant and critical infringements against the Article 2 values will trigger a judicial response.

3.A wide scope: the applicability of Article 2 to Member States and EU institutions

When it comes to the extent of the values provided in Article 2 TEU, the judgment states that “it follows that the values enshrined in Article 2 TEU are, per se, legally binding, as a result of which there is an obligation, for the Member States and institutions of the Union, to respect, maintain and promote those values”.

As such, it can be seen that the binding nature of Article 2 TEU is not solely directed towards Member States but also encompasses EU institutions.

4.Potential effects

To conclude, this case could embody a turning point for the preservation of fundamental rights within the EU. Some outcomes of the judgment can indeed be perceived as reinforcing the role of the CJEU as the protector of the rule of law.

For instance, the autonomous, as well as direct, justiciability of Article 2 TEU materialises EU core values and could broaden their scope, therefore extending their enforcement in courts. Furthermore, opting for the applicability of Article 258 TFEU instead of the unique use of Article 7 TEU creates substantial leeway for tackling such issues, not to mention actions for annulment against acts of EU institutions and bodies.

Such a broadening of the process of enforceability shows the desire to operationalise these values and not restrict their implementation to the application of specific derived law provisions. Obviously, such statements will have to be confirmed by later judgments, but it is very possible that this new development could constitute a mechanism to efficiently address threats to the rule of law, namely in the field of the independence of justice, and perhaps finally tackle the existing crisis on that matter in some Member States.