Introduction

When the Full Court judgment in Case C-769/22 Commission v Hungary¹ was belatedly added to the April 2026 schedule of the Court of Justice of the European Union (“CJEU’’, “the Court’’), the verdict was eagerly anticipated. This landmark case involved an Article 258 TFEU infringement action, initiated by the Commission on 19 December 2022, challenging Hungary’s introduction of widespread anti-LGBTQI+ legislation. The ruling afforded the CJEU the opportunity to adjudicate – for the first time – on the justiciability of Article 2 TEU as a self-standing legal plea in infringement litigation. Existing as the EU’s core values provision, Article 2 TEU stipulates that the EU “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’’. Irrespective of the outcome, the judgment was positioned to serve as a defining moment in EU values jurisprudence, and EU constitutional law more broadly.

 In its ruling delivered on 21 April 2026, which will constitute one of the seminal ‘constitutional moments’ of the CJEU’s jurisprudence, the Court affirmed for the first time that Article 2 TEU can be invoked as a self-standing plea in law in this context². Thus, paving the way for an entirely new body of values-related jurisprudence. The Luxembourg court definitively found that the offending Hungarian laws were in violation of the values enshrined in Article 2 TEU, along with a host of primary and secondary Union law including numerous rights in the EU Charter of Fundamental Rights (“the Charter’’). Ultimately, the Court concluded inter alia that the laws at issue constituted a “breach of the values of respect for human dignity, equality and respect for human rights, including the rights of persons belonging to minorities, as referred to in Article 2 TEU’’³.

While a bold and emblematic move, such Article 2 TEU invocation is perhaps a logical next-step in the evolution of values-based CJEU jurisprudence over approximately the last fifteen years⁴. However, notwithstanding any questions of inevitability, this deployment is both unprecedented and potentially game-changing; therefore generating several questions as to the justiciability of this core provision and the exact conditions for its application. Therefore, this judgment will undoubtedly be subject to much scrutiny in the weeks ahead⁵. In contributing to the early-stage analysis, this annotation will provide a brief examination of the novel element of the judgment; Article 2 TEU invocation, and the procedural aspects therein.

Background

The judgment of the Court in C-769/22 Commission v Hungary comes nearly 5 years after the entry into force of the offending legislation at hand, 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’’)⁶. This legislative framework saw the introduction of range of amendments to Hungarian domestic legislation with the aim of severely restricting and prohibiting the sharing of content and information surrounding “gender identities that do not correspond to the sex assigned at birth, sex reassignment or homosexuality’’⁷. Upon the entry into force of these statutory amendments, the Commission did not hesitate to commence Article 258 TFEU infringement actions against the Hungarian state; issuing its letter of formal notice approximately one week later.

Within its submission to the Court – in addition to its historic Article 2 TEU invocation – the Commission asserted that Hungary was in violation of numerous rights enshrined in the Charter⁸, along with various provisions of primary and secondary EU law related to e-commerce⁹, audiovisual media¹⁰, the free movement of services¹¹, and the GDPR¹².  A detailed analysis of the entirety of the Court’s judgment will fall outside the scope of this paper. What is important to note, however, is that with each plea in law examined, the Court found Hungary in violation, without exception. However, notwithstanding the wide range of pleas in law invoked, ‘‘the present case is, at its core, about values’’¹³ – as was highlighted by AG Ćapeta in her Opinion in this case, which laid the groundwork for the CJEU’s advancement of Article 2 TEU-based litigation¹⁴.

The Court’s decision to sit in Full Chamber is likely primarily a result of the legal complexity of such Article 2 TEU invocation. Indeed, over the years, there have been diverging opinions on the possible justiciability and self-standing application of Article 2 TEU; and the extent thereof¹⁵. Moreover, questions surrounding the potential lex specialis status of Article 7 TEU in the enforcement of EU values, have also previously permeated this field. This comes in particular in light of the narrow and limited power of review held by the CJEU within the Article 7 TEU process. Notably, the Court has confirmed in recent years that the values of Article 2 TEU may indeed be enforced via methods and instruments other than Article 7 TEU¹⁶. However, the extent to which Article 7 TEU retains any exclusivity (i.e. in the direct enforcement of Article 2 TEU; or in areas outside the scope of EU law), remained a live issue leading up to this judgment. Therefore, this case gave the CJEU an opportunity to clarify the infringement action’s role within the field of values enforcement.

A valid legal Basis

In commencing its analysis on Article 2 TEU, the Court firstly reiterated what is currently known – thanks to seminal rulings of the CJEU – as to the concrete obligations stemming from Article 2 TEU¹⁷. Most notably, the Court heavily relied on its verdict in the seminal twin Conditionality rulings, to re-emphasise that “Article 2 TEU is not a mere statement of policy guidelines or intentions, but contains values which are an integral part of the very identity of the Union…’’ and which are “…given concrete expression in principles and provisions comprising more specific legally binding obligations for the Member States’’¹⁸.

However, the CJEU proceeded to clarify that while Article 2 TEU values are given such concrete expression within other provisions of Union law, this “cannot call into question the legally binding nature of those values for the Member States’’¹⁹. The Court’s reasoning is sound in this regard. The prominent positioning of Article 2 TEU within the Treaties themselves (not annexed, for example), highlights its firm legal grounding. As a result, the Court opened the door to Article 2 TEU-based litigation; rather than placing sole reliance upon these concretising provisions (e.g. – provisions of the Charter).

Indicating Factors

Moving to its substantive analysis, the Court dedicated exactly 20 paragraphs to determining the existence of an Article 2 TEU infringement by the Amending Law. Therefore, it is within these paragraphs (544-564) that the conditions required for finding such a breach are laid out. Firstly, the Court was eager to emphasise that a finding of an infringement of Article 2 TEU itself does not automatically occur in all proceedings where provisions giving expression to Union values are at play; noting in paragraph 547 that:

…it does not follow from the legally binding nature of Article 2 TEU that any infringement of a provision of EU law which, directly or indirectly, gives concrete expression to those values necessarily means that there has been infringement of that article.

This limitation makes sense from a procedural perspective for the Court, and from a proportionality standpoint in law. Indeed, such a position presumably falls in line with a common understanding of the hierarchies of norms of EU values (whether based in law or in practice)²⁰. The ’last resort’ nature of Article 2 TEU reliance is reasonable, given a) the range of primary and secondary legislation giving expression to Union values; and b) the existential threat to mutual trust implicit by virtue of an Article 2 TEU infringement.

However, notwithstanding this caveat, the Court proceeded to acknowledge that where there are numerous Charter breaches present, this can indeed play a significant role in determining the existence of an Article 2 TEU infringement, noting:

It is true 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 values²¹.

The Court’s decision to derive Article 2 TEU infringements from the existence of Charter breaches is a reasonable one; given the unlikelihood for a values-related infringement to be completely devoid of a human-rights element. However, the language of ‘indication’ (or “indice’’ in the French version) appears to signify that such Charter violations are not an exclusive precondition. As a result, the door has been left open for additional ways to reach the threshold of Article 2 TEU activation. Whether a significant breach of, for example Article 19(1) as regards the rule of law, could trigger an Article 2 TEU activation remains to be established. 

Defining Scope

In her Opinion for this case, AG Ćapeta made an explicit distinction between what she termed the deployment of Article 2 TEU as a self-standing ground of infringement, versus its invocation as an autonomous ground. Under these classifications, a self-standing invocation occurs within the scope of EU law; while an autonomous invocation occurs “outside of the scope of application of EU law or independently of other breaches of EU law’’²². In its judgment, the Court categorically rejected the notion of autonomous application, at least for now; instead limiting the infringement to the scope of EU law. Whilst refraining from directly adopting AG Ćapeta’s terminology of autonomous or self-standing, the Court noted that:

…an interpretation of…[Article 2 TEU] going beyond what is reflected in paragraph 547 [(see above)]…would be liable to deprive the limits imposed on the scope of other provisions of EU law, and, in particular, the provisions of the Charter, which, pursuant to Article 51(1) thereof, are addressed to the Member States only when they are implementing Union law, of all effectiveness²³.

This is an interesting development, in particular given that certain aspects of EU values – notably Article 19(1) TEU and EU general principles – are not governed by Article 51(1) of the Charter. However, as of now, the invocation of Article 2 TEU in infringement actions appears explicitly interlinked with this limitation. Article 258 TFEU will therefore not emerge as a de-facto replacement of Article 7 TEU (which may target values breaches which go beyond the scope of EU law).

Threshold required

As noted above, the Court has affirmed that not every violation of EU law provisions which give expression to Article 2 TEU values will reach the threshold for activating an Article 2 TEU infringement. Therefore there is a need for an element of refinement. As a result, the CJEU offered 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 TEU²⁴

While the creation of this threshold of manifest and particularly serious is a novel development, parallels can be drawn to existing related standards within the EU legal framework. In particular, a ‘serious and persistent’ breach of EU values is required in order to hold a Member State accountable under the Article 7(2) TEU sanctioning mechanism. The Court’s decision to adopt a test of a similar nature therefore facilitates linkage/continuity within the EU rule of law toolbox. Similar thresholds can also be identified within other realms of EU law. As regards EU damages liability, the CJEU speaks of a “manifest and serious breach of the limits on…[an institution’s] discretion’’²⁵.  Moreover, in relation to Member State damages liability, the CJEU refers to a ‘sufficiently serious’ breach of Union law occurring where the Member State “manifestly and gravely disregarded the limits on its discretion”²⁶. These similarities facilitate consistency in EU law, and may aid transitions towards follow-up action.

In determining the existence of a manifest and particularly serious breach of EU values in the case at hand, the CJEU highlighted inter alia the law’s ‘‘association between the fact of not being cisgender or not being heterosexual, on the one hand, and being convicted of paedophilia, on the other”²⁷. As a result, the Court proceeded to state that “s]uch stigmatisation and marginalisation…runs counter to the values…[enshrined] in Article 2 TEU”²⁸.

The Court therefore found a direct infringement, for the first time in its history, of Article 2 TEU as a standalone plea in law.

Case-by-case?

The Court does not apply any particular structured framework test, or multi-stage analysis, in finding the existence of a manifest and particularly serious breach of Union values in this case. Instead, the Court appeared to focus upon the overall detrimental nature of the offending laws, along with their harmful effects. Moving forward, how exactly do we determine when we have reached the threshold of a manifest and particularly serious breach of EU values? Perhaps through identifying some key procedural aspects of this current case, we can be afforded some insights. Firstly, the number of Charter breaches (five) in this instance, highlights the significant threat to the EU’s values framework²⁹. Secondly, the finding of a violation of the right to dignity under Article 1 of the Charter, which “constitutes the very basis of fundamental rights’’³⁰ also showcases the pervasive nature of the Amending Law. Additionally, Hungary was found to be in breach of the essence of the prohibition on discrimination³¹. However, it remains to be seen what role these factors would play in any future Article 2 TEU infringements.

Business as usual?

Now that the CJEU has declared the existence of an infringement of Article 2 TEU, the question remains; what happens next? One can only speculate, given the unchartered territory. Procedurally speaking, it is assumed that such a violation would be taken into consideration in the calculation of financial penalties under Article 260(2) TFEU if the Commission was to instigate this procedure. Moreover, it remains to be seen whether this judgment could affect/influence the operationalisation of EU values within Article 267 TFEU preliminary references, or how this judgment could influence the realm of liability for damages, or annulment actions against the Union for sustained inaction.

Politically speaking, this should come as an existential moment for the Union. An outright declaration by the CJEU that an EU Member State is no longer in compliance with the founding values should, in theory, prompt a swift and strong response from the Union institutions. The operation of mutual trust and the stability of the EU legal order is clearly at risk. The EU’s response could include, for example, further withholding of funds via conditionality; or the fast-track of the pending Article 7(2) TEU process against Hungary. Additionally, the Commission could robustly commence infringement litigation (with accompanying Article 279 TFEU interim measures) against any Member States who take ‘inspiration’ from Orbán’s playbook³².

However, in reality, one would be forgiven for lacking much faith in any ‘big bang’ moment in response to this landmark judgment. Since the outset of Hungary’s values backsliding in 2010, the EU’s response has been scattered and lacklustre. This is notwithstanding; the identification of a risk of a serious and persistent breach of the Union’s values under Article 7 TEU³³; and an endorsement by the European Parliament that Hungary is now “a hybrid regime of electoral autocracy’’³⁴.

As regards the future deployment of Article 2 TEU-based infringement actions, it remains up to the Commission’s discretion. However, this comes within a context whereby a pending infringement action against the Hungarian Sovereignty Protection Law has been sat idle for numerous years; owing to the Commission’s lack of request for interim measures³⁵. Moreover, the same Commission is currently subject to a Parliament-initiated annulment action for its premature release of funds worth EUR10bn to Hungary, notwithstanding mere cosmetic compliance with Union law³⁶.

The Court’s seminal judgment on the justiciability of Article 2 TEU is a breakthrough advancement – however the real effect of this verdict will only be felt if effective follow-up is pursued. Until then, this ruling’s true effects will be primarily felt in the EU constitutional law textbooks (and blogs…).

Conclusion

This verdict comes as a welcome advancement in the championing of minority rights in Hungary, and across the Union more broadly. Moreover, it acts as a key constitutional development; confirming the application of Article 2 TEU, in perhaps a well-overdue final chapter in the evolution of EU values-based jurisprudence. This is a ruling built on solidarity, with the CJEU condemning the marginalisation and stigmatisation of a “specific social group which is an integral part of Hungarian and European society’’³⁷. It is also a ruling built on values; and has allowed the Court to provide one of its most noteworthy cases on the advancement of EU constitutional law.

Uncertainty remains as to a) the concrete repercussions of such a ruling; and b) the exhaustive list of triggers for the application of Article 2 TEU. However, we now have a solid starting-ground; with the Charter and fundamental rights at the heart of this ruling.

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¹ Court of Justice, 21 April 2026, Case C-769/22, Commission v Hungary.

² Ibidem, paras 520 ff.

³ Ibidem, para. 563.

⁴ See L. D. Spieker, EU Values Before the Court of Justice, Oxford, 2023.

⁵ See Symposium on the CJEU’s judgment in Commission v Hungary (C-769/22), in EU Law Live, 2026. E.g.  P. Bárd, Op-Ed: The CJEU’s Monomyth: Reaching Article 2 TEU, the Union’s Crown Jewel, in EU Law Live, 2026, available at the following link https://eulawlive.com/op-ed-the-cjeus-monomyth-reaching-article-2-teu-the-unions-crown-jewel/; B. Riedl, Who Guards the Values? The Court’s Article 2 TEU Turn, in European Law Blog, 2026, available at the following link https://www.europeanlawblog.eu/pub/mabhxuju/release/1.

⁶ A pedofil bűnelkövetőkkel szembeni szigorúbb fellépésről, valamint a gyermekek védelme érdekében egyes törvények módosításáról szóló 2021. évi LXXIX. Törvény.

⁷ Opinion of Advocate General Ćapeta, 5 June 2025, Case C-769/22, Commission v Hungary, point 2.

⁸ Right to human dignity (Article 1); right to respect for private and family life (Article 7); freedom of expression and information (Article 11); non-discrimination (Article 21); and the right to protection of personal data (Article 8).

⁹ 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 OJEC, L 178 of 17 July 2000.

¹⁰ 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 OJEU, L 95 of 15 April 2012, as amended by directive 2018/1808.

¹¹ Article 56 TFEU and directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, in OJEC, L 376 of  27 December 2006, p. 36.

¹² 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 OJEC, L 119.

¹³ Opinion of Advocate General Ćapeta, Case C-769/22, Commission v Hungary, cit., point 34.

¹⁴ S. FitzPatrick, Crossing ‘Red lines’: Invoking Article 2 TEU in Infringement Litigation, in Rivista del Contenzioso Europeo, 2025.

¹⁵ See L. D. Spieker, op. cit., p. 35. See e.g. Opinion of Advocate General Tanchev, 17 December 2020, Case C-824/18, A.B., point 35: Article 2 TEU “does not as such figure among provisions under which the compatibility of national legislation with EU law should be assessed”.

¹⁶ Court of Justice, 16 February 2022, Case C-156/21, Hungary v Parliament and Council, para. 127; Case C-157/21, Poland v Parliament and Council, para. 145.

¹⁷ Court of Justice, Case C-769/22, Commission v Hungary, cit., paras 520 ff. E.g. Court of Justice, 20 April 2021, Case C-896/19, Repubblika; 29 March 2022, Case C-132/20, Getin Noble Bank.

¹⁸ Court of Justice, Case C-769/22, Commission v Hungary, cit., para. 525; Case C-156/21, Hungary v Parliament and Council, cit., para. 232; Case C-157/21, Poland v Parliament and Council, cit., para. 264.

¹⁹ Court of Justice, Case C-769/22, Commission v Hungary, cit., para. 527.

²⁰ See L. D. Spieker, op. cit., p. 87 ff.

²¹ Court of Justice, Case C-769/22, Commission v Hungary, cit., para. 548.

²² Opinion of Advocate General Ćapeta, Case C-769/22, Commission v Hungary, cit., point 32.

²³ Court of Justice, Case C-769/22, Commission v Hungary, cit., para. 550.

²⁴ Ibidem, point 551.

²⁵ General Court, 8 December 2021, Case T-127/19, Dyson Ltd v European Commission, para. 82 and Court of Justice, 11 January 2024, Case C-122/22 P, Dyson Ltd v European Commission, para. 27.

²⁶ Court of Justice, 5 March 1996, Cases C-46/93 and C-48/93, Brasserie du Pêcheur, para. 4.

²⁷ Court of Justice, Case C-769/22, Commission v Hungary, cit., para. 554.

²⁸ Ibidem, para. 555.

²⁹ Ibidem, para. 83.

³⁰ Ibidem, para. 486.

³¹ Ibidem, para. 162.

³² K. Jochecová, E. Wax, S. Lau, Bulgaria’s new anti-LGBTQ+ law is official. Opponents beg EU to take action’ POLITICO, 2024, available at the following link: https://www.politico.eu/article/bulgaria-anti-lgbtq-law-ban-propaganda-school-ruman-rudev/.

³³ European Parliament resolution of 12 September 2018 (2017/2131(INL)).

³⁴ European Parliament resolution of 15 September 2022 (2018/0902R(NLE)), P9_TA (2022)0324, para 2.

³⁵ See Opinion of Advocate General Kokott, 12 February 2026, Case C-829/24, Commission v Hungary (Sovereignty Protection Law).

³⁶ See Opinion of Advocate General Ćapeta, 12 February 2026, Case C-225/24, Parliament v Commission.

³⁷ Court of Justice, Case C-769/22, Commission v Hungary, cit., para. 495.