Introduction

On 5 June 2025, Advocate General (‘AG’) Tamara Ćapeta delivered her long-awaited opinion in the case C-769/22, Commission v. Hungary¹, which addresses inter alia questions of «primary importance»² surrounding the invocation of Article 2 TEU as a self-standing plea in law within Article 258 TFEU infringement actions.

Ćapeta’s opinion comes in advance of what could potentially act as a breakthrough judgment by the Court of Justice of the European Union (‘the Court’), as regards the enforcement of EU values and the constitutional development of the Union as a whole. This action, initiated by the Commission against the Orbán regime’s prohibition and restriction of access to LGBTI content, provides the Court with its first opportunity to adjudicate upon the justiciability and operability of Article 2 TEU within infringement actions. Article 2 TEU – the Treaty provision outlining that the Union is founded upon inter alia «the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights…» – has long-been given expression through various provisions of primary and secondary Union law³. The recent opinion of AG Ćapeta, however, provides us with a seminal insight into the approach that Luxembourg might take, in regards the use of Article 2 TEU as an independent ground of action within infringement proceedings, and the issues which may arise therein.

Within her analysis, the depth and breadth of Ćapeta’s examinaton of Article 2 TEU is rich and extensive; and will warrant careful and gradual unpacking. Accordingly, this piece will firstly provide an overview of the AG’s opinion, before turning to examine some of the key aspects of Ćapeta’s verdict as regards the role of Article 2 TEU within infringement litigation.

Background

Hungary’s “Law LXXIX of 2021 adopting stricter measures against persons convicted of paedophilia and amending certain laws for the protection of children” (‘the Amending Law’)⁴, saw the enactment of a variety of amendments to relevant domestic legislation in areas such as education, advertising, electronic commerce and media services. Such amendments, which entered into force on 8 July 2021, introduced severe restrictions and prohibitions on the sharing of content and information surrounding «gender identities that do not correspond to the sex assigned at birth, sex reassignment or homosexuality»⁵. While Hungary’s stated justification for introducing such legislation is the protection of minors’ physical, mental and moral development, the Commission commenced infringement proceedings against Hungary on the basis that these amendments are in breach of Union law.

Indeed, the Commission’s concerns surrounding the nature of these amendments is evidenced by the fact that it issued its letter of formal notice to Hungary on 15 July 2021 – no later than one week following the Amending Laws’ entry into force. Within its subsequent submission to the Court, the Commission requested the Court find a violation of a variety of provisions of Union law. This includes the freedom to provide services, as per Article 56 TFEU, along with various sources of secondary legislation; namely the electronic commerce directive⁶, the services directive⁷, the audiovisual media services directive⁸ and the GDPR⁹. The Commission also submitted that the Amending Law interfered with a host of fundamental rights enshrined in the Charter of Fundamental Rights of the EU (‘the Charter’). However, the most groundbreaking aspect of the Commission’s submission to the Court lies in its invocation –  for the first time – of Article 2 TEU as a self-standing plea in law. The unprecedented nature of the case is further compounded by the sweeping intervention of sixteen Member States, along with the European Parliament, who each made oral submissions before the Court on 19 November 2024 – unanimously arguing in favour of a finding of a violation of Article 2 TEU, in one form or another¹⁰. Ćapeta is correct when she states that, ultimately, «the present case is, at its core, about values»¹¹.

In her opinion, Ćapeta concludes that Hungary is in violation of all provisions of primary and secondary law invoked by the Commission within its submission. This includes all Charter rights invoked, namely the prohibition of discrimination on grounds of sex and sexual orientation¹², the respect for private and family life¹³, the freedom of expression and information¹⁴ and the right to human dignity¹⁵. Significantly, she also concludes that Hungary has breached Article 2 TEU as a self-standing plea in law, on the grounds that the relevant legislation «negates the values enshrined in Article 2 TEU»¹⁶. Ćapeta further emphasises that the «value judgement» upon which the Amending Laws are predicated acts «in stark discrepancy with the values of human dignity, equality, and respect for human rights»¹⁷. Understandably, a significant portion of her analysis is dedicated to the topic of the enforcement of EU values, and in particular, the invocation of Article 2 TEU. Aspects of this analysis will be examined below.

The “crux” of the issue – invoking Article 2 TEU

Ćapeta commences her evaluation surrounding the invocation of Article 2 TEU by first carving a distinction between the deployment of this provision as a self-standing ground of infringement, versus its invocation as an autonomous ground within proceedings. Under these distinctions, Ćapeta views Article 2 TEU as being invoked as a self-standing ground whereby the plea is deployed within the scope of EU law (such as this case). On the other hand, she views an autonomous application of Article 2 TEU as involving an examination of Member State actions «outside of the scope of application of EU law or independently of other breaches of EU law»¹⁸. As a result, the AG does not examine the autonomous application of Article 2 TEU within her opinion, noting its irrelevance for the case at hand.

Whilst the AG does not discuss the concept of a so-called autonomous invocation in this instance, it is clear that questions remain as to its future potential use. Indeed, it is well-established that obligations stemming from Article 2 TEU exist beyond the scope of Union law, and as such can be addressed via Article 7 TEU proceedings. However, the infringement procedure is designed to confront national measures falling within the scope of Union law¹⁹. Whether an autonomous application of Article 2 TEU – covering national measures beyond the remit of EU-derived obligations – would fall beyond the ambit of the infringement procedure’s capabilities, is yet unconfirmed. The deployment of the infringement procedure as a repackaged alternative to the politically-deadlocked Article 7 TEU would indeed herald a new era of EU values enforcement. However, the practical realities of its use – procedurally, substantially and consequentially – warrant intense scrutiny and evaluation. In that light, perhaps the AG was right to successfully sidestep this issue within her opinion. However, her reference to such ‘autonomous’ use will undoubtedly provoke the questions she perhaps wished to avoid. 

The concept of “negation”

Possibly the most noteworthy aspect of the AG’s opinion relates to the criteria deduced by Ćapeta for determining the existence of a self-standing breach of Article 2 TEU. In her words, this requires the Court to determine whether the relevant Member State has crossed so-called «red lines»²⁰. According to the AG, it is «not the quantity or seriousness»²¹ of the breaches, of either EU fundamental rights or principles, which triggers the application of Article 2 TEU. Instead, she proposes that «[a] finding of an infringement of Article 2 TEU should be made only if the Court concludes that a Member State has breached a Charter right because it has negated the value which that right concretises»²². In this instance, Ćapeta concludes that Hungary did, in fact, negate the values enshrined in Article 2 TEU. She affirms that the respect of LGBTI persons is not open to contestation through dialogue, and that the «marginalisation of a group in a society are the ‘red lines’ imposed by the values of equality, human dignity and respect for human rights»²³.

The Commission’s suggested criteria for the invocation of Article 2 TEU referenced the «particularly serious, numerous and blatant» nature of the infringements; along with the fact that these infringements constituted «a generalised and coordinated violation of the fundamental rights in question»²⁴. This proposed threshold is not too dissimilar from the concept of systemic infringements, which has been long-been advocated for by Scheppele et al. in regards to tackling persistent rule of law and democratic backsliding²⁵. However, the Commission’s proposed criteria are ultimately rejected by the AG; opting instead for the criterion of ‘negation’. Ćapeta emphasises that the negation of a value is what in-turn causes a breach to be serious. Therefore, she asserts that, beyond ‘negation’, she does «not consider that a more precise formula can be developed in abstracto as a tool»²⁶ for identifying a breach of Article 2 TEU. Interestingly, the AG rejects the inclusion of a ‘seriousness’ criterion on the basis that inter alia the Court lacks the benchmarks required to determine ‘seriousness’²⁷. However, in the same vein, it could be argued that the Court lacks a coherent framework under which to determine when a right has been sufficiently ‘negated’ – given the relatively novel nature of this term in the Court’s jurisprudence. Moreover, the use of a systemic criterion would perhaps better allow for the contextualisation of an infringement within a broader pattern of defiant and repetitive non-compliance.

This opinion therefore prompts the question as to what exactly constitutes a negation of values, and how such negation is determined. Ćapeta rightly notes that within the context of an infringement action, the Court must merely determine whether a Member State has crossed the so-called «red lines»²⁸, but need not positively delineate the substance of Article 2 TEU any further²⁹. Therefore, we are left to fill in the blanks on what negation means in practice. Significantly, the AG’s opinion speaks of the negation of a Charter right, in particular. However, the values and principles of Article 2 TEU are also given expression through a variety of EU primary and secondary legislation. Further clarity is needed in this regard, as to whether a negation of a non-Charter norm could trigger the activation of Article 2 TEU. For example, one could question whether a violation of the value of democracy – which is principally enshrined within Article 10 TEU – would fall within this rubric. 

It is also worth exploring the extent to which this test of ‘negation’ connects to the evolving Court jurisprudence on the ‘essence’ of a Charter right. Article 52(1) of the Charter outlines that any limitation on a right must not affect its essence. Indeed, the Court has gradually been increasing its deployment of the term since the 2015 case of Schrems³⁰. Notably in more recent years, AG Kokott has suggested that in regards to acts beyond the scope of EU law, an «examination under Article 2 TEU must be limited to observance of the essence of those principles and rights»³¹. Perhaps Ćapeta’s test of ‘negation’ seeks to build upon the concept of the essence of a Charter right. However, given the novel and developing nature of this line of jurisprudence, enhanced future clarity will be welcomed.

Rhetoric verus reality

Notably, Ćapeta makes various assertions within her opinion surrounding the importance of upholding a functioning constitutional democracy within the EU legal order. In particular, she notes that Article 2 TEU gives expression to the vision of a good society³² in the EU constitution, and that a breach of this provision indicates a «negation of the model of a constitutional democracy […]»³³. However, these statements arguably fall slightly flat, given their lack of contextualisation. In particular, Ćapeta’s opinion neglects to mention that another EU institution, namely the European Parliament, has already long-determined that Hungary should be classified as «a hybrid regime of electoral autocracy»³⁴, in light of a similar diagnosis of autocratisation by key democracy indexes for many years³⁵. Whether a judicial signing-off on such a diagnosis of constitutional decline, via infringement action, would accelerate collective EU action – which has otherwise been relatively minimal – is yet to be determined.

It is also worth highlighting that the Amending Law remains in force since its enactment in 2021 – resulting in the imposition of irreparable damage. This comes as a result of the Commission’s failure thus far to petition the Court for the imposition of interim measures under Article 279 TFEU, upon awaiting the Court’s final judgment. This occurs despite consistent appeals from civil society organisations, who have also highlighted that the suspension of the Amending Law would result in the parallel suspension of the legal basis for the recent banning of Budapest Pride³⁶. This ongoing protraction is compounded by the slow and lengthy nature of the infringement process post-referral to the Court. Such a state of affairs begs the question – if there truly is a negation of values to the extent of a violation of Article 2 TEU, how can this extended timeline of events be justified?

Reflection 

This invocation of Article 2 TEU comes as a welcome development in the Commission’s deployment of values-based infringement actions. It marks an act of initiative by the Guardian of the Treaties, against a backdrop where proactive mobilisation of EU values has often been pioneered by the Court³⁷. There are many clear benefits to Article 2 TEU application. Ćapeta highlights that the direct invocation of Article 2 TEU «would disclose the real cause of other infringements»³⁸ – thereby, calling a spade a spade. Moreover, the AG highlights that this invocation would influence the calculation of Article 260(2) TFEU financial penalties. However Ćapeta’s pivotal opinion also highlights to us that such a breakthrough ruling can often prompt more questions – procedural and substantive – than immediate answers. Therefore, the judgment of the Court is eagerly awaited.

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¹ Opinion of Advocate General Ćapeta, 5 June 2025, case C-769/22, Commission v. Hungary, ECLI:EU:C:2025:408.

² Ibid., point 29.

³ See, for example, Court of Justice, 27 February 2018, case C-64/16, Associação Sindical dos Juízes Portugueses, ECLI:EU:C:2018:117, para 32: «Article 19 TEU, which gives concrete expression to the value of the rule of law stated in Article 2 TEU…». For general analysis of judicial mobilisation of EU Values see L.D. Spieker, EU Values Before the Court of Justice, Oxford, 2023.

⁴ A pedofil bűnelkövetőkkel szembeni szigorúbb fellépésről, valamint a gyermekek védelme érdekében egyes törvények módosításáról szóló 2021. évi LXXIX. Törvény.

⁵ Opinion of Advocate General Ćapeta, 5 June 2025, case C-769/22, Commission v. Hungary, cit., point 2.

⁶ Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, in OJ 2000 L 178, p. 1.

⁷ Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, in OJ 2006 L 376, p. 36.

⁸ Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services, in OJ 2010 L 95 p. 1, as amended by Directive 2018/1808.

⁹ Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, in OJ 2016 L 119, p. 1

¹⁰ See L. Kaiser, A. Knecht, L.D. Spieker, European Society Strikes Back. The Member States Embrace Article 2 TEU in Commission v Hungary, Verfassungsblog, 26 November 2024. Available at: https://verfassungsblog.de/european-society-strikes-back/ (Accessed 7 June 2025).

¹¹ Opinion of Advocate General Ćapeta, 5 June 2025, case C-769/22, Commission v. Hungary, cit., point 34.

¹² Charter of Fundamental Rights of the European Union, Article 21.

¹³ Ibid., Article 7.

¹⁴ Ibid., Article 11.

¹⁵ Ibid., Article 1.

¹⁶ Opinion of Advocate General Ćapeta, 5 June 2025, case C-769/22, Commission v. Hungary, cit., point 260.

¹⁷ Ibid., point 42.

¹⁸ Ibid., point 32.

¹⁹ Article 258 TFEU: «[…] failure to fulfil an obligation under the Treaties».

²⁰ Opinion of Advocate General Ćapeta, 5 June 2025, case C-769/22, Commission v. Hungary, cit., point 212.

²¹  Ibid., point 237.

²² Ibid., point 254.

²³ Ibid., point 262.

²⁴ Ibid., point 235. Also see para 247 of Commission’s submission.

²⁵ K.L. Scheppele, D. Kochenov, B. Grabowska-Moroz, EU Values Are Law, after All: Enforcing EU Values through Systemic Infringement Actions by the European Commission and the Member States of the European Union, in Yearbook of European Law, 2020, p. 20.

²⁶ Opinion of Advocate General Ćapeta, 5 June 2025, case C-769/22, Commission v. Hungary, cit., points 212 and 245.

²⁷ Ibid., point 241 (footnote 123).

²⁸ Ibid., point 212.

²⁹ Ibid., point 71: «In that respect, it is important to take into consideration that infringement proceedings are an exercise of abstract judicial review […]. The Court, just as national constitutional courts when they assess the constitutionality of legislation, does not decide on concrete violations of individual human rights, but rather makes a finding on the potential of such rules to breach the fundamental rights of individuals or groups».

³⁰ Court of Justice, 6 October 2015, case C-362/14, Maximillian Schrems v Data Protection Commissioner, ECLI:EU:C:2015:650, points 94-95.

³¹ Opinion of Advocate General Kokott, 15 April 2021, case C-490/20, Stolichna obshtina, rayon ‘Pancharevo’, EU:C:2021:296, point 118.

³² Opinion of Advocate General Ćapeta, 5 June 2025, case C-769/22, Commission v. Hungary, cit., point 157.

³³ Ibid., point 265.

³⁴ European Parliament Resolution of 15 September 2022 on the proposal for a Council decision determining, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded (2018/0902R(NLE)), P9_TA (2022)0324, para 2.

³⁵ In 2018, the V-Dem Institute classified Hungary as the EU’s first «electoral autocracy’», and since then it has continued to highlight the country’s autocratic decline. See V-Dem Institute, Autocratization Changing Nature?, 2022, Democracy Report, pp. 23-25. Available at https://www.v-dem.net/documents/19/dr_2022_ipyOpLP.pdf (Accessed 13 June 2025).

³⁶ See Urgent European Commission action needed to defend the Fundamental Right to Freedom of Assembly in Hungary, Brussels, 16 April 2026. Available at: https://helsinki.hu/wp-content/uploads/2025/04/HU-Pride-Ban_EC-action-needed-now_16042025.pdf (Accessed 8 June 2025).

³⁷ M. Mandujano Manriquez, T. Pavone, Follow the leader: the European Commission, the European Court of Justice, and the EU’s rule of law revolution, in Journal of European Public Policy, 1, 2024.

³⁸ Opinion of Advocate General Ćapeta, 5 June 2025, case C-769/22, Commission v. Hungary, cit., point 230.