EU values, liberal dialogue and the concept of a pluralistic European society

Oliver Gerstenberg
Professor of EU Law and Legal Theory, Faculty of Laws, University College London
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Abstract Liberal values have become prominent in the recent case law of the Court of Justice of the European Union (CJEU) and are becoming the driving force behind the EU’s legal and political discourse. The CJEU insists that these values do not merely function in the sphere of politics. As an integral part of the very identity of the European Union as a common legal order, they also find concrete expression in principles containing legally binding obligations for the Member States. This raises the question of the CJEU’s role. Yet behind this institutional concern lies the further question of how to understand these values themselves. The applied meaning of these values will have to be not too thick, but also not too thin. While the CJEU must not pre-empt reasoned debate over the concretisation of those values where EU citizens (often reasonably) divide (‘not too thick’), it must also rule out ethnocentric prejudice and draw red lines (‘not too thin’), since value-negation in one part of the EU is felt everywhere in the EU. The article, accordingly, explores the institutional and normative conditions of liberal dialogue in the EU, including by parsing some of the CJEU’s current case law.
Cite as: Oliver Gerstenberg, 'EU values, liberal dialogue and the concept of a pluralistic European society' (2026) 79 Current Legal Problems.
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1. Introduction

The EU is at a crossroads today – legally as well as politically. The US administration’s 2025 National Security Strategy document[1] subjected Europe to outright subversion. The document denigrated the European Union as ‘undermin[ing] political liberty and sovereignty’, while explicitly contemplating Europe’s right-wing nativist parties as instruments for ‘cultivating resistance to Europe’s current trajectory’. The document presumed to tell Europe that it risked ‘regulatory suffocation’ and ‘civilizational erasure’. It is, of course, tempting to take the longer view.[2] But the very distinct possibility exists that the idea of ‘the West’ (as in ‘Western liberal democracy’ and ‘transatlantic community’), of which the EU saw itself as an integral and proud part, may have altogether become a thing of the past. In this article, I focus on a second and related challenge, coming from within the EU. As the EU has morphed from a primarily economic to a political community, the role, the self-understanding and the legitimacy conditions of EU law are changing. To an ever-increasing extent, questions of a distinctly moral nature are reaching the Court of Justice of the EU (CJEU). Controversy arises not just over specific (but highly symbolic and morally defining) issues, like the protection of vulnerable LGBT+ people or dubious citizenship-by-investment schemes or judicial independence, but also over the sort of grounds on which cases involving these issues are to be decided. These controversies involve ‘the very identity of the Union as a common legal order of a society in which pluralism prevails’. This is how the Full Court of the CJEU put it, referring to Article 2 of the Treaty on European Union (TEU), in the landmark judgment of 2026 (the ‘Hungarian case’) that is at the centre of this article.[3] It prompts certain questions. Does the EU have a liberal constitutional identity that can constitute a fighting faith? Is there today an EU-wide liberal dialogue that defines European society? And what does European liberalism mean?

Liberal values have become prominent in the recent case law of the CJEU and are becoming the driving force behind the EU’s legal and political discourse. The CJEU insists that the values enshrined in Article 2 TEU[4] do not merely function in the sphere of politics but also find, as ‘an integral part of the very identity of the European Union as a common legal order, … concrete expression in principles containing legally binding obligations for the Member States’.[5] And recently in a much-noted, striking Opinion in the Hungarian case, referring to the ‘constitutional identity of the EU’, Advocate General Tamara Ćapeta suggested that Article 2 TEU – which speaks of a European ‘society in which pluralism … prevail[s]’ – expresses a foundational ‘choice … as to the type of society that the Member States have pledged to create together’ – and, indeed, ‘a vision of what a good society is in the EU constitution’.[6]

The fact that questions of moral magnitude reach the Court raises the question of the CJEU’s role in deciding them. Yet behind this institutional question lies the further question of how to understand the values enshrined in Article 2 TEU themselves. Where do these values come from? What does it mean to apply and concretise them? Article 2 TEU is, of course (as I will elaborate), the expression of a deliberate and voluntary commitment of the Member States. Hence, a persistent concern is raised by the Court’s insistence on the legal bindingness of the exceedingly abstract Article 2 TEU values: namely, the more the CJEU reads into the Treaty (by way of a ‘moral reading’ in a Dworkinian sense)[7] as a result of an interpretation of Article 2, potentially the more the CJEU may stray away from the (perhaps also reasonable) views of the Member States – as political communities themselves – on the meaning of the values of Article 2.

In response to this concern about reasonable interpretive disagreement, which is key to understanding the current case law of the CJEU on Article 2 TEU, I will in this article argue that the Article 2 TEU values that the Court concretises are not drawn out of thin air as a matter of a door-closing, dictatorial judicial imposition ‘from above’, in ways inconsistent with democratic principles, but instead originate in an ongoing dynamic process ‘from below’ – from European society. Article 2 TEU serves a crucial normative role as the EU’s fundamental principle of political legitimacy. The foundational values listed in this provision are very great political values which are implicit in the public political culture of a pluralistic European (civil) society. The Member States, over various Treaty amendments, have made a deliberate choice to incorporate, as legally binding, these values, alongside the concept of a pluralistic European society, in Article 2 TEU (2009 version). And the public political culture of European civil society today is also characterised by settled convictions of a more specific nature – such as, for example, acceptance of LGBT+ people as not posing the threat to society that was at issue in the Hungarian case. The concept of a pluralistic European society serves, as I will argue, as an organising concept in a dynamic process of liberal dialogue about the meaning of the EU’s foundational values – dialogue which defines EU membership and which connects abstract values and their specific concretisations. Because of their moral urgency and foundational nature, these values exert – as I will also argue – a ‘radiating effect’, meaning that value concretisation must extend from treaty evolution to case-by-case judicial interpretation and law-applicative concretisation of those values by the CJEU.

Accordingly, in a first step (Section 2), this article will parse the Full Court’s ruling in the Hungarian case to explain why these values cannot be merely political aspirations but per se must be legally binding on the Member States. EU membership, as I will show, is defined by the idea of moral reciprocity in the sense that the Member States, who are bound by these values as a result of their voluntary belonging to the Union, are required qua mutual EU membership to mutually undertake to, as the Court puts it, ‘respect, maintain and promote’ these values. This explains, as I will elaborate, the ‘radiating effect’ of these values on all aspects of European society.

However, in a second step (Section 3), I will argue that, for liberal dialogue to succeed and for Article 2 TEU to serve as the EU’s principle of political legitimacy, the applied meaning of these values will have to be not too thick, but also not too thin. While, on the one hand, the CJEU must not pre-empt reasoned debate over the concretisation of those values where EU citizens (often reasonably) divide (‘not too thick’), it must also rule out ethnocentric prejudice and draw red lines (‘not too thin’), on the other, since value-negation in one part of the EU is felt everywhere in the EU. A crucial question arises of how this distinction can be drawn. The section, accordingly, explores the institutional and normative conditions of liberal dialogue in the EU.

In a final and third step (Section 4), by returning to the Hungarian case and parsing some of the CJEU’s other case law, and in response to the question of distinguishing between thick and thin understandings of Article 2 TEU, I suggest that the CJEU’s role can (and should) be understood as deliberative-democracy-enhancing. As moral questions reach the Court, its role and legitimacy lie in instigating and sustaining liberal dialogue in the European society.

By way of conclusion, I point out that, if values and liberal dialogue were to collapse, the EU would no longer be worthy of continued moral support from all Union citizens. An explicitly European dimension is added to the ongoing global debate about democratic constitutionalism.

2. The CJEU’s constitutional constructivism: (also) a synopsis (with specific reference to Case C‑769/22 Commission v Hungary)

Where do the values on which the EU is founded come from? In its ruling in Commission v Hungary – on which this section will focus – the Full Court gave a both striking and compelling answer: the source of these foundational values is the pluralistic European society itself. The Court characterises EU law as ‘a common legal order of a society in which pluralism prevails’.[8]

So, these values are not invented, or drawn out of thin air, or imposed by the Court arbitrarily. Rather, as this section will spell out, these values, listed in Article 2 TEU, result from a deliberate choice by the Member States who inserted Article 2 into the Treaty; who agreed to be legally bound by them; and who thereby agreed to making themselves constitutionally transparent to each other on an ongoing reciprocal basis in a dynamic jurisgenerative process. The important step taken by the Full Court in the Hungarian case was this: because these are very great values (in terms of their moral importance and urgency), with radiating effect into European society, this dynamic must also extend from Treaty evolution to the judicial interpretation and law-applicative concretisation of those values by the CJEU. This means that EU membership is not merely a matter of international agreement but defined by the mutual commitment by Member States to promote these values; and also, the EU institutions themselves must promote them. The Court ties Article 2 values ultimately to a shared pluralistic European society as their source and makes clear that reciprocity is a moral idea. In this way, Article 2 TEU serves as the EU’s organising principle of political legitimacy. These values are both the precondition and result of liberal dialogue in the EU.

For sure, the point that EU membership also entails legal obligations for Member States, alongside rights and privileges, was already expressed through the Court’s long-standing insistence that the ‘essential characteristics of EU law have given rise to a structured network of principles, rules and mutually interdependent legal relations binding the European Union and its Member States reciprocally and binding its Member States to each other’ in an ongoing ‘process of creating an ever closer union among the peoples of Europe’.[9] But it is only in its landmark ruling in Commission v Hungary of April 2026 that the Full Court for the first time found that there could be, and indeed was, a separate infringement of Article 2 TEU.

At issue in that ruling was Hungarian legislation, which, according to Hungary, was introduced with the aim of protecting minors, by prohibiting or restricting public access in the media to content that portrayed or promoted ‘gender identities that do not correspond to the sex assigned at birth, sex reassignment or homosexuality’. In particular, the legislation associated non-cisgender or non-heterosexual persons with persons convicted of paedophilia. That association, as the Full Court ruled, entailed a minority group of persons forming an integral part of a society in which pluralism prevails being treated as a fundamental threat to society, resulting in their social invisibility and encouraging hateful conduct towards them, in breach of the guarantee of human dignity in Article 1 of the Charter of Fundamental Rights of the European Union (CFREU) and various other CFREU rights.

But the Full Court did not only rule that there was an infringement of several fundamental rights, including human dignity. In addition to and beyond that infringement, it also insisted that there was a separate violation of the EU’s founding Article 2 TEU values. What is the significance or added value of the finding that there was also a justiciable Article 2 violation? A long-standing concern was, and remains, that these – deliberately and necessarily abstract – values are simply far too indeterminate to create justiciable legal obligations, and that rendering them justiciable might adversely affect the Court’s legitimacy.[10]

Notice, first, by way of a preliminary observation, that it was not possible for the Court simply to remain silent on the question of an Article 2 TEU violation which the Commission had raised. For even if it had dismissed the Article 2 question, the Court would have given an answer of sorts, to the effect that: first, Article 2 is not legally binding, but only symbolic and essentially limited to the sphere of politics; and second, that the stigmatisation and marginalisation of a vulnerable group in society (the ‘rights of persons belonging to minorities’) are of no concern to ‘the very identity of the Union as a common legal order of a society in which pluralism prevails’.[11]

Second, the applied meaning of the Article 2 TEU values which the Full Court identified was not the result of a door-closing, top-down, judicially supremacist exercise (concocted, as it were, between the European Commission and the CJEU). Rather, it resulted from a wider deliberative process which gave meaning to the very idea of EU membership and linked European society to EU constitutionalism. The Court found these values to be implicit in the public political culture of ‘European society in which pluralism prevails’ where there is growing acceptance of non-cisgender or non-heterosexual persons and, in particular, a consensus that these persons do not pose a threat to European society.[12]

Consider the following steps of the CJEU’s constitutional constructivism confirming the legal bindingness of Article 2 values (my emphasis):

  1. ‘[T]he Union possesses a constitutional framework that is unique to it’ and which ‘encompasses the founding values set out in Article 2 TEU.’[13]
  2. By accepting and respecting these values, the Member States have made a voluntary choice (in the words of the Advocate General) ‘as to the type of society that the Member States have pledged to create together within the framework of the European Union’.[14] In accordance with Article 49 TEU, as the Court found, respect for those values being a prerequisite for the accession to the EU of any European State applying to become a member, the EU thereby ‘brings together States which have freely and voluntarily subscribed to those values (including the fundamental rights guaranteed by the Charter) and are continually committed to promoting them’.[15] Article 2 TEU, in this way, ‘delimits the founding values of the Union which the Member States, bound by those values as a result of their belonging to the Union, mutually undertake to [at all times] respect, maintain and promote’. And again:

It follows 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 as a common legal order, and which require the Member States to maintain and promote them. Those values are given concrete expression in principles and provisions comprising more specific legally binding obligations for the Member States.[16]

  1. The Member States have committed themselves to promoting these values on a basis of reciprocity. EU membership is defined by values-based reciprocity. Reciprocity is therefore understood as a both moral and legal idea. This is spelled out by the Court as follows:

Once a candidate State becomes a Member State, it joins a legal structure that is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, the common values contained in Article 2 TEU, on which the European Union is founded. That premiss is based on the specific and essential characteristics of EU law, which stem from the very nature of EU law and the autonomy it enjoys in relation to the laws of the Member States and to international law. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised and … respected.[17]

  1. The moral and legal reciprocity of EU membership entails the legal requirement of non-regression on values, which corresponds to the undertaking to respect, maintain and continually promote these values:

Compliance with Article 2 values – being the condition for the enjoyment of all rights deriving from the application of the Treaties to a Member State – cannot be reduced to an obligation which a candidate State must meet in order to accede to the European Union and which it may disregard after its accession … The Member States are thus required to ensure that, in the light of those values, any regression is prevented … Mutual trust between Member States is based on the recognition of the values enshrined in [Article 2], meaning that … none of those States is to exercise its powers in a way that would go against those values, which define the very identity of the Union as a common legal order, accepted by the Member States on a reciprocal basis.[18]

  1. Importantly, the legally binding nature of Article 2 vis-à-vis the Member States ‘follows … also from … the context surrounding Article 2 TEU’ and the travaux préparatoires of the (2003) European Constitutional Treaty on Article 2.[19] Not only the Member States but also the EU institutions must promote these values. As a matter of Treaty evolution, and referring to the Opinion by AG Ćapeta, the Court points out that ‘the preparatory work for Article 2 TEU confirms that interpretation … [T]he EU Treaty, in the version preceding the Lisbon Treaty, referred not to the “values” but to the “principles” listed in that article.’ The concept of ‘values’ was introduced by the Lisbon Treaty, reproducing the drafting used by the Convention on the Future of Europe, according to which the fundamental European values:

must have a clear non-controversial legal basis so that the Member States can discern the obligations resulting therefrom which are subject to sanction … 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.[20]

  1. The Court – which according to Article 19(1) TEU is required to ensure that in the interpretation and application of the Treaties the law is observed – assumes and confirms, in order to guarantee the fundamental premiss on which the EU legal order is based, its jurisdiction to ensure compliance with these values.[21]
  2. But in order not to deprive of all effectiveness the limits imposed on the scope of the provisions of the CFREU – Article 51(1) CFREU renders the CFREU applicable only to situations where Member States are actually ‘implementing EU law’, but Article 2 imposes no such limit – the Court emphasises 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, such breaches being incompatible with the very identity of the Union as a common legal order of a society in which pluralism prevails.[22]

  1. The Court disallows exemptions from Article 2 based on claims of national constitutional identity. Article 4(2) TEU – according to which the EU is required to respect the national constitutional identities of the Member States, with the result that Member States enjoy a certain margin of assessment in implementing the values referred to in Article 2 TEU – ‘cannot exempt Member States from the obligation to comply with [Article 2]’ and ‘protects only a view of the national identities referred to therein which is consistent with the values enshrined in Article 2 TEU’.[23] As, albeit in a different context, AG Dean Spielmann in one of his Opinions has elaborated, ‘Article 4(2) TEU is not an obstacle but invites fruitful dialogue between the EU legal order and the national legal orders’; dialogue which ‘makes it possible to build a European project which is not a fixed, monolithic structure, but a subtle, dynamic network in which recognition of specific national characteristics strengthens the cohesion of the whole’.[24]
  2. Finally, and this is something to which I will return in Section 4, the Court points towards a democracy-enhancing role for itself in a European society; a role on which, however, it could have been more explicit. The Court refers to ‘rights of persons belonging to minorities’[25] – a concept explicitly enshrined in Article 2 TEU, which points beyond fundamental rights. This concept was not yet present in the 2003 European Convention document but was later agreed by the Member States in the 2009 Treaty of Lisbon. By referring to that concept, and by concentrating on the effects of marginalisation and stigmatisation, which are tantamount to the ‘establishing, maintaining, and reinforcing of the social invisibility’ of a vulnerable group in society, the Court aims at enhancing political equality, voice, and equal citizenship as constitutional essentials of deliberative democracy.

To summarise: the source of the values on which the EU is founded is EU law understood as ‘a common legal order of a society in which pluralism prevails’.[26] Within a pluralistic European society, and even as part of its definition, there is a growing consensus that non-cisgender or non-heterosexual persons are not a threat and do not differ from others in any morally relevant aspect. Article 2 results from a deliberate choice by the Member States themselves, on a basis of moral reciprocity; and this foundational choice extends to, and influences, the CJEU’s interpretation and concretisation of these legally binding values given their moral importance and urgency. Indeed, as AG Ćapeta in her Opinion had observed, ‘without those values, the European Union would cease to be the Union as envisaged by the Treaties’.[27] This foundational choice transforms the Member States, Union citizens and also the EU institutions into participants – co-interpreters, if you will – in a dynamic process of pursuing and promoting these values. Article 2 TEU in this way serves as the EU’s organising principle of political legitimacy.

Observe that the legitimacy-conferring values listed in that provision are values which can never exclusively be owned and upheld by the Member States on their own, in polemic isolation from the others or in ‘paradoxical solipsism’ (to use Kelsen’s term[28]) or in a monological way as a ‘private language’ (to use Wittgenstein’s term[29]). EU membership excludes national value-exceptionalism. No EU Member State can credibly (and intelligibly) claim to commit itself to these values, unless mutatis mutandis it dialogically opens itself to ongoing reasoned criticism from all the other Member States, from EU institutions, and from Union citizens (including deliberative publics), as regards the compliance with their Article 2 TEU commitment, in a non-hierarchical liberal dialogue. Article 2 TEU entails the idea of EU Member States and their citizens gradually, in fits and starts, making themselves reciprocally constitutionally transparent to one another. We might say: the Article 2 TEU values must be mutually shared and collaboratively interpreted or else they collapse.[30] In this sense, within liberal dialogue, European ‘society’, in Article 2 (2) TEU, becomes an organising normative concept, which serves as both a precondition and an idealising (but fallible) anticipation of common moral ground.

3. Liberal constitutional values, the radiating effect of Article 2 TEU, and European society as organising idea

How far can judicial interpretation of Article 2 TEU’s values by the CJEU reach? Are all of the values listed in Article 2 justiciable – not only rule of law, democracy and human rights but also solidarity, pluralism, justice?[31] On a range from constitutional ‘thickness’ to ‘thinness’, where is the Court’s finding that EU law is ‘a common legal order of a society in which pluralism prevails’ located? The Court, as I have indicated in the previous section, referred to the (2003) travaux préparatoires of the European Constitutional Treaty on Article 2. According to this document, Article 2 ‘concentrates on the essentials – a short list of fundamental European values’ (my emphasis). Speaking, strikingly, also of ‘elements which are part of the Union’s “ethic”’, it further elaborates that Article 2

can thus only contain a hard core of values meeting two criteria at once: on the one hand, they must be so fundamental that they lie at the very heart of a peaceful society practising tolerance, justice and solidarity; on the other hand, they must have a clear non-controversial legal basis so that the Member States can discern the obligations resulting therefrom which are subject to sanction. [my emphasis]

This is the language of constitutional thinness, the guiding criteria for value incorporation being the moral urgency and constitutional transparency of the values. What are the implications of these two criteria for the judicial interpretation of these values by the CJEU? Are there tensions between moral urgency and transparency that need worry us?

To elaborate, on the one hand, we might say that Article 2 TEU – because of the moral urgency of the values listed therein – exerts a standard-setting ‘radiating effect’[32] for all legal spheres and domains of European society, since the Member States and EU institutions have undertaken to at all times ‘respect, maintain and promote’ Article 2 values. But on the other hand, the concern arises that the more the CJEU reads into the Treaty as a result of an interpretation of Article 2 TEU – or, if you will, of a ‘moral reading’, which (as Ronald Dworkin explained) ‘demands that judges make contemporary judgments of political morality’[33] – potentially the more the CJEU may stray away from the (perhaps also reasonable) views of the Member States – as political communities themselves – on the meaning of the values of Article 2 TEU. Value dissensus would jeopardise the transparency (and bindingness) of these values. The question is how the distinction between ‘red lines’, on the one hand, and the sphere of reasonable interpretive disagreement, on the other, can be drawn.

Begin with some background. There is an important division between ‘internationalist’ and ‘constitutionalist’ readings of EU law. First, recall that, according to the (modern) ordoliberal reading, the function of the EU legal order simply lay in ‘the implementation of an economic order based on open markets and undistorted competition’[34] which entailed a dethronement of the ‘political dominance of Member States’ over the EU as internal market as its intended corollary.[35] The contrasting reading of the EU as an ‘international organisation’[36] – a sophisticated and thoughtful exponent of which is Steven Weatherill – rejected ordoliberalism and aimed at restoring the primacy of Member States over markets as social states – but under conditions of mutual interdependence. The point of the EU legal order, on the internationalist account, was seen to lie in the management of externalities between Member States, given their ‘historically notorious capacity to cause harm to each other’.[37] Accordingly, EU legal rules on free movement serve to ‘correct … democratic failure at state level’, because those rules ‘give citizens of one Member State a voice of sorts in the choices made by other Member States’.[38] But while Article 2 TEU is to provide value alignment between the EU and the Member States and to overcome economic bias,[39] according to Weatherill, ‘[t]he absence of a single European public space … is a strong reason for excluding the EU from acting in politically contested areas, especially where distributional consequences stretching across borders are at stake’ and where decisions are ‘culturally sensitive’.[40] So, Article 2 TEU is understood as requiring deference by EU law towards the domestic value decisions by the Member States.

Second, the internationalist reading is further motivated by a concern that a constitutionalist reading by the CJEU of Article 2 poses a threat to the integrity of domestic constitutional law by denaturing it. Dieter Grimm – whose thoughts are ‘animated by the deep conviction that European integration is a necessity’[41] – has argued that constitutionalism, by its very nature, ‘puts an upper bound on the sources of law: we cannot find its equivalent at the EU level’.[42] Hence, there is the danger of ‘over-constitutionalising’ the EU, if CJEU judges were to engage in a ‘moral reading’ which inevitably proceeds from the interpreters’ own law-applicative reasons and moral convictions. In order for constitutionalism to be possible, ‘the people who live under a certain constitution’ must be able to share ‘the conviction that [the constitution] constitutes altogether a good order under which it is worth living, so that the majority of citizens can identify themselves with it’.[43] A constitution’s role is ‘to unify the society that it has constituted as a polity, regardless of the difference of opinions and conflicting interests that exist in all societies’ and to provide ‘the fundamental consensus that is necessary for social cohesion’.[44] But the EU is not ‘an object capable of being constitutionalised’,[45] for it is not perceived by its citizens as a community of fate (Grimm uses the historically laden German term ‘Schicksalsgemeinschaft’), based on common identification in the way that state constitutions are. By contrast with states, the EU owes its existence to the will of states by way of contractual agreement only and, for this reason, is ‘not self-determined, but hetero-determined’.[46]

However, as a matter of institutional fact and as illustrated by the Hungarian case, ‘culturally sensitive’ moral questions – which touch the identity of the EU legal order – are increasingly reaching the Court. Whereas the internationalist account’s crucial reference was to the societies of the Member States taken severally, the crucial reference in the Hungarian case was to a pluralistic European society.

Notice, third, that those scholars who are prepared to endorse the Full Court’s ruling in the Hungarian case insist that the specific yardsticks under Article 2 TEU remain thin – they should be understood as drawing limits, not as prescribing models for the Member States’ legal orders.[47] This is, as von Bogdandy and Spieker have written, in the interest of safeguarding the Member States’ pluralism; of openness to diverse concretisations which are often contested; and of not unduly shrinking the space for reasonable disagreement and constructive conflict as one of the forces through which European society emerges. On von Bogdandy’s account, the concept of ‘European society substantiates the EU’s new principled constitutionalism that goes against excesses of the “will-of-the-people” approach’ and expresses ‘a collective singular’,[48] insofar as conflicts ‘no longer appear only as conflicts between Member States, but also as conflicts within one society’. As von Bogdandy writes, the ‘process of European societal integration has reached a density that leads the Member States to speak of a single “society”’.[49] Consequently, ‘all fields [of European society] must respond to the standards of Article 2 TEU’.[50] In a similar vein, AG Ćapeta has pointed out (in her academic writing) that many EU rights have been developing on a case-by-case basis, but so far without ‘a general and comprehensive explanation that they form part of a liberal and tolerant democratic society’. The ‘values of liberalism’ – as the opposite of ‘autocracy’ – need to be explained.[51]

Indeed, notions such as constitutional thinness and reasonable interpretive disagreement are central to contemporary debates in the political-liberal tradition. Whereas Ronald Dworkin’s moral-reading thesis was focused on integrity in law,[52] Frank Michelman takes the problem of reasonable disagreement in constitutional law radically seriously – and as foundational.[53] Michelman argues that a constitution’s role in a modern liberal democracy is not just to regulate power but to provide a basis for ‘justification-by-constitution’. The constitution serves as a shared proceduralist and justificatory framework designed to maintain political legitimacy in morally deeply divided contemporary democratic societies, where nearly all citizens can be expected to regard some coercive political and legal outcomes as misguided, wrong, unjust and even repulsive. In order for proceduralisation to work, the constitutional framework has to be seen to be (reasonably) fair by all (or by enough); and fairness occurs if, but only if, the procedure protects all the rights, but only those rights, that will make the constitutional pact acceptable to all democratically responsible citizens considered as free and equal. If the constitution meets this substantive condition of moral excellence, then it can serve as a public standard of appraisal for a democratic regime’s continued deservingness of wide moral acceptability in advanced democracies so that citizens will be justified in demanding of each other a general disposition of compliance with all constitutionally compliant laws regardless of their own, independent judgements of the moral and other merits of these laws.

Proceduralisation in this sense may, of course, fail – as Michelman points out. But proceduralisation – if the constitution is good enough – may also transform political society into a constitutional community,[54] where it enables citizens who radically disagree about politics to see their continuing disagreements also as controversies about the best interpretation of a constitution’s principles and values (which they do share), rather than simply as friend/foe confrontations between different world views, none of which is comprehensible to the other. In order for proceduralisation to succeed, the constitution’s terms must, on the one hand, be ‘sufficiently abstract to remain open to a range of differing contentions over concrete applications (else some fraction of the populace will find ground for refusal at the start)’. Dissenters would otherwise feel ostracised from the proceduralist framework of justification. But at the same time those terms must also be ‘still sufficiently concrete to assure closure against flatly unacceptable deviations (else, again, some fraction will find ground for refusal)’. So, constitutional thinness may entail a moral cost, too.

In the EU context, with the radiating effect in mind, we may (inspired by Michelman) speak of ‘justification-by-Article-2’. The Hungarian case was arguably not a hard case at all, since the moral wrongness of associating LGBT+ people with paedophilia counts among the settled convictions within the political culture of a pluralistic European society. The Court was able to use the concept of a pluralistic European society that is defined by Article 2 values as an organising moral idea in order to reach its conclusions by, to use Rawls’s concept, a process of reflective equilibrium, in which the interpreters’ judgments, at multiple levels of generality, are brought into alignment with one another and in which the concept of society – as a fair system of social cooperation between free and equal persons – serves as organising idea.[55] (Yet we can easily imagine also hard cases where the conclusion is not as obvious and where, to use John Rawls’s formulation, political culture may be ‘of two minds at a very deep level.’[56])

4. Is there a democracy-enhancing role for the CJEU?

At issue, then, is the question of how case by case a distinction can be drawn by the Court and its interlocutors between what are (perhaps) reasonable differences between Member State conceptions of how common values should be concretised, on the one hand, and outright negation of Article 2 TEU values, on the other. The former differences should even perhaps be celebrated, because they may enable openness to the future and mutual learning from different living domestic constitutional experiments. The latter, however, would be incompatible with EU membership on a basis of moral reciprocity, because Article 2 TEU red lines have been crossed. Too (prematurely) ambitious an understanding of EU values may, by way of unintended consequence and backlash, weaken the CJEU’s otherwise desirable role where non-negotiable essentials of EU membership are at stake. It may thus amount to self-defeating overreach, escalate conflict and throw into doubt the legitimacy-conferring role of Article 2 TEU as a shared EU-wide legitimacy-conferring procedural-justificational framework. At the opposite end lies the risk of a deflationary strategy which eliminates the dimension of moral principle entirely, out of concern for the risk of backlash. The fact that this dilemma remains an open one, and does not paralyse discussion but becomes reflexive, is what is important here. As I will argue in this section, the Court’s role can best be understood by insistence on deliberative democracy.

In the Hungarian case, the Court assumed a role that can be characterised as democracy-enhancing. The Hungarian legislation intended to silence a vulnerable minority in society and to expose them to hateful conduct. The Court’s intervention, by elaborating the concept of ‘rights of persons belonging to minorities’ in Article 2 TEU (through judicial emphasis on marginalisation and stigmatisation), was aimed at giving voice to that minority and promoting equal democratic citizenship. Although the Full Court did not dwell on this, there is an echo of the US Supreme Court’s famous Footnote four in Caroline Products, which suggested that ‘legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation’ should ‘be subjected to more exacting judicial scrutiny’, and that ‘prejudice against discrete and insular minorities … which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities … may call for a … more searching judicial inquiry’.[57] The single most compelling reason for courts generally to have the power of judicial review is to prevent distortions of the deliberative political process – and the CJEU, as the Hungarian ruling may illustrate, is no exception. The ruling appears to give a role to the CJEU that is consistent with a commitment to democratic politics, by insisting that democracy must operate in a fair and inclusive manner and place a high premium on reflection and reason-giving. EU membership and belonging to European society are becoming – to modify Ernest Renan – une appartenance de tous les jours.

Observe that the Hungarian case forms part of an ever-growing list of judicial pronouncements on Article 2 TEU that may be seen as motivated by this democracy-enhancing rationale. This section explores four lines of case law.

First, in its recent case law on judicial independence,[58] the CJEU, predictably, found that the Polish institution that referred to itself as ‘Constitutional Tribunal’ could not be characterised as ‘an independent and impartial tribunal established by law’ as required by Article 19(1) second subparagraph TEU and Article 47 CFREU. This was due to the irregular appointment of three judges in 2015 (and their successors) and to the irregular appointment of its president in 2016. These combined irregularities, along with the absence of three properly elected judges on the bench since 2015, have – as Wojciech Sadurski has explained – ‘contaminated’[59] the entire court since then and, one might add, the EU legal order as a whole by implication. The CJEU pointed out that a Member State’s compliance with the values enshrined in Article 2 TEU ‘is a condition for the enjoyment of all of the rights derived from the application of the Treaties to that Member State’. A Member State therefore must not ‘amend its legislation, or indeed its case-law, in such a way as to bring about a reduction in the protection of the value of the rule of law, a value which is given concrete expression by … Article 19 TEU’.[60] The path of national courts to the preliminary reference procedure under Article 267 of the Treaty on the Functioning of the European Union (TFEU) must remain open.

Recall that in its long-standing jurisprudence on judicial independence, the CJEU has creatively derived the Member States’ legally binding and judicially enforceable obligation under EU law to protect the independence of their courts from Article 19(1) TEU. This provision, in its ‘perhaps understated’[61] wording, instructs the CJEU to ‘ensure that in the interpretation and application of the Treaties the law is observed’. Article 19 TEU – as the CJEU in its much-commented Associação Sindical dos Juízes Portugueses (‘Portuguese Judges’) ruling held – ‘[f]or its part, … gives concrete expression to the value of the rule of law stated in Article 2 TEU … [in] the fields covered by EU law’.[62] The CJEU assumed a responsibility and also competence for ensuring that the rule of law is also observed in the Member States themselves although, initially, this competence was anything but self-evident, since the organisation of the judiciary remains a domestic affair. For sure, Article 47 CFREU refers to access to an ‘independent’ tribunal as one of the requirements linked to the fundamental right to an effective remedy.[63] However, according to Article 51(1) CFREU, the CFREU applies ‘to the Member States only when they are implementing Union law’, which was clearly not the case here. But the CJEU held that Article 19 TEU, second subparagraph – which requires Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law – applies ‘irrespective of whether the Member States are implementing EU law within the meaning of Article 51(1) CFREU’.[64] As Takis Tridimas has summarised the point, the ‘commitment to [Article 2 TEU] creates governance expectations that permeate the national legal system and apply beyond the material scope of the Charter’.[65] In this way, Article 2 and 19(1) TEU have come to provide the foundations for the CJEU’s jurisdiction in protecting judicial independence in the national legal orders of the Member States themselves.[66]

The CJEU’s president, Koen Lenaerts, explained the rulings in terms that resonate with traditional market-based and internationalist approaches: since ‘free movers’ do not, in principle, enjoy political representation in the host Member State, upholding their rights may require access to a court of law that must be able to provide effective remedies. But from the perspective of a more democratic reading, independent courts figure among the presuppositions of liberal dialogue in the EU, which is channelled through the preliminary reference procedure and the integrity of which must be preserved in the EU as a common legal order.

Consider, second, the General Court’s ruling in RT France.[67] By a decision and regulation of 1 March 2022, the Council of the European Union adopted restrictive measures intended to prohibit, until 31 July 2022, the propaganda activities of Russian state-controlled and state-funded media, including by RT [Russia Today] France, on EU territory. The Council justified this action by ‘public interests which aim to protect European society’.[68] RT France brought an action for annulment before the General Court against the acts of the Council. The General Court in its response emphasised that, under Article 11(1) of the Charter, everyone has the right to freedom of expression, including freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers, and that Article 11(2) CFREU provides that the freedom and pluralism of the media are to be respected.[69] The General Court closely aligned its reasoning with the European Court of Human Right’s (ECtHR’s) free speech jurisprudence and noted that, unlike expression on matters of public interest, which is entitled to strong protection, ‘expression that promotes or justifies violence, hatred, xenophobia or another form of intolerance cannot normally claim protection’.[70] The limitation of free speech had to be proportionate. The Council ‘could validly take the view that the restrictive measures at issue … were capable of protecting the Union’s public order and security and preserving the integrity of democratic debate within European society, peace and international security’.[71] Hence, the Council regulation was upheld, since ‘the foundations of democratic societies’ would otherwise be at risk of being undermined.[72] The General Court in this way aimed to protect democratic political life in civil society from disinformation and falsehoods and, at the same time, insisted that any restrictions on the freedom of expression must be strictly proportionate.

Thirdly, the CJEU [GC] issued its much-debated ruling on the ‘citizenship for investment’ scheme that Malta had operated for some years, pursuant to which Maltese citizenship could be obtained relatively quickly upon meeting certain financial requirements.[73] The scheme was widely advertised by Malta as having regard to the advantages stemming from acquiring European Union citizenship. A condition of legal residence stipulated in the Maltese 2020 investor citizenship scheme did not amount to a requirement of actual residence in the territory.[74] So, EU membership was openly being turned into a commodity.

The Commission, which brought the case, emphasised that Union citizenship, apart from its free movement component, had a strong civic component and included political rights that are fundamental for participation in the democratic life of the European Union. The Commission focused on ‘the essence, value and integrity of Union citizenship’ and the ‘mutual trust [between Member States] that underpins that status’.[75] It argued that the 2020 investor citizenship scheme amounted to commoditising EU citizenship in ways that run counter to the principle of loyal cooperation in Article 4(3) TEU. According to the Commission, EU citizenship – which flows from an agreement by each Member State to extend, automatically and unconditionally, certain rights to the nationals of all other Member States – is premised on the understanding that these other Member States only award nationality based on ‘a genuine link’ between them and the applicant concerned.

By contrast, AG Collins, in his Opinion, pointed out that EU law did not define, much less require, the existence of a ‘genuine link’ to acquire or to retain nationality[76] and nor did international law.[77] As he went on to argue,

[a] duty under EU law to recognise nationality granted by other Member States is a mutual recognition of, and respect for, the sovereignty of each Member State – not a means to undermine the exclusive competences that the Member States enjoy in this domain. To find otherwise would upset the carefully crafted balance between national and EU citizenship in the Treaties and constitute a wholly unlawful erosion of Member States’ competence in a highly sensitive field which they have clearly decided to retain under their exclusive control.

But the CJEU did not follow the AG’s Opinion. In order to answer the highly symbolic question of whether the Maltese citizenship investor scheme was consistent with EU law, the Court had to identify the core values behind the provisions on EU citizenship, but also, in the light of this, the scope of the reservation of domestic constitutional identity through interpretation of Articles 2 and 4(2) TEU. The importance and novelty of the CJEU’s ruling lay in the observation that ‘Union citizenship is based on the common values contained in Article 2 TEU and on the mutual trust between the Member States’.[78] The exercise by the Member States of their sovereign domestic power to lay down the conditions for granting their nationality therefore had ‘consequences for the functioning of the European Union as a common legal order’.[79]

As the CJEU explained, Union citizenship ‘is thus one of the principal concrete expressions of the solidarity which forms the very basis of the process of integration [that is the raison d’être of the European Union itself and thus forms an integral part of its constitutional framework]’. Hence, none of the Member States ‘is to exercise that power in a way that is manifestly incompatible with the very nature of Union citizenship’.[80]

As the CJEU went on, the ‘bedrock of the bond of nationality of a Member State is formed by the special relationship of solidarity and good faith between that State and its nationals and the reciprocity of rights and duties’[81] and this ‘special relationship of solidarity and good faith between each Member State and its nationals also forms the basis of the rights and obligations reserved to Union citizens by the Treaties’, because the status of EU citizen derives automatically from the fact of being a national of a Member State.[82] The Union citizens have various political rights ‘which ensure their [direct] participation in the democratic life of the European Union’.[83] The EU’s ‘functioning is founded on representative democracy, which gives concrete expression to democracy as a value, which is, under Article 2 TEU, one of the values on which the European Union is founded’. The CJEU at this point introduced the moral value judgment that EU citizenship is not fungible:

A Member State manifestly disregards the requirement for such a special relationship of solidarity and good faith, characterised by the reciprocity of rights and duties between the Member State and its nationals, and thus breaks the mutual trust on which Union citizenship is based, in breach of Article 20 TFEU and the principle of sincere cooperation enshrined in Article 4(3) TEU, when it establishes and implements a naturalisation scheme based on a transactional procedure between that Member State and persons submitting an application under that programme, at the end of which the nationality of that Member State and, therefore, the status of Union citizen, is essentially granted in exchange for predetermined payments or investments.[84]

Hence, the commercialisation of EU citizenship ‘is incompatible with the conception of that fundamental status that stems from the Treaties’.[85] Koen Lenaerts (writing extra-judicially) has sought to explain the moral value judgment: ‘European integration is shaped not just for EU citizens, but also by them’ and ‘the “commercialisation” of EU citizenship would amount to buying one’s way into the EU democratic process, which is fundamentally at odds with what democracy is all about’.[86]

Consistent with the focus on liberal dialogue and deliberative democracy, one may say: Malta was trying to sell something – EU citizenship and its benefits – which Malta did not own.[87] For EU citizenship is a common – a shared, collective public good. Malta unilaterally tried to appropriate this public good. EU citizenship is a concept which the EU Member States and their populations can only collectively own, or otherwise it is no concept at all. It is based on ongoing mutual collaboration, and a Member State cannot unilaterally dispose of it without destroying the communicative meaning of that mutually shared concept in a deliberative democracy. In other words, the legal idea at work here is that no one can transfer to another more rights than one actually has. A normative shortfall by one Member State affects all. Unilateral disposition would therefore violate, if you will, the Kantian categorical imperative by allowing one Member State to treat other Member States and their populations merely as means to an end (Malta’s economic benefit) and thus cannot be, within the EU, a universally shared norm acceptable to all.

Finally, consider the recent CJEU ruling in the Danish Housing case.[88] While this is not an Article 2 TEU case (although it could have been), the ruling is nonetheless important from the perspective of European society and deliberative democracy.

The case arose from a number of disputes before the national courts in Denmark in relation to national legislation which required the adoption of development plans for public housing units in certain residential areas (‘transformation areas’) called ‘parallel societies’ (previously, ‘ghettos’), so named owing to those areas’ majority populations being ‘immigrants and their descendants from non-Western countries’. Residents of transformation areas faced an increased risk of early termination of their leases, whereas the residents of vulnerable residential areas, characterised by a problematic socioeconomic situation which was at least similar to that in transformation areas, were not exposed to such a risk. As AG Ćapeta made clear in her Opinion, the issue here with the Danish policy was the concept of ‘ethnicity’ as a division into ‘us’ and ‘them’ and as a ‘social construct’[89] and the perpetuation of stereotypes and prejudices against ‘immigrants and their descendants from non-Western countries’.[90] The question referred to the CJEU raised a more general, constitutional issue of whether the Directive 200/43 on Race or Ethnic Origin was applicable to such a policy without encroaching on national competences.[91]

In its ruling, the CJEU referred to Directive 2000/43, which states that ‘in the context of access to and provision of goods and services’ – the area concerned by this case – it was important ‘to respect … the fundamental right which includes protection of the home of a person and his or her family’,[92] protected by Article 7 CFREU. The CJEU emphasised that, as was apparent from the case law of the ECtHR on Article 8 of the European Convention of Human Rights (ECHR), ‘the loss of one’s home is a most extreme form of interference with the right to respect for the home. Indeed, such a loss places the person concerned and his or her family in a particularly vulnerable position.’[93] The CJEU then pointed out that ‘the objective of ensuring the successful integration of third-country nationals may’ – given the importance accorded, in Article 79(4) TFEU, to such integration measures – ‘constitute an overriding reason in the public interest’, since the integration of those nationals was also a key factor in promoting economic and social cohesion, a fundamental objective of the EU.[94] The prohibition, by Directive 2000/43, of any discrimination, such as based on racial or ethnic origin, ‘is intended … to ensure the development of democratic and tolerant societies which allow the participation of all persons irrespective of racial or ethnic origin’.[95] While Member States enjoy, in principle, broad discretion as regards the adoption of measures to ensure social cohesion and integration, including urban development measures,[96] the underlying objectives of general interest may not be pursued

without having regard to the fact that they must be reconciled with the fundamental rights and principles affected by that measure, as set out in the Treaties and the Charter, by properly balancing those objectives of general interest against the rights and principles at issue, in order to ensure that the disadvantages caused by that measure are not disproportionate to the objectives pursued.[97]

The CJEU then clarified the burdens of proof which Denmark must meet, depending on whether the national courts classified the Danish measure as direct or indirect discrimination. The discretion left to national authorities ‘will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of fundamental or “intimate” rights’. This was the case in particular for Article 8 ECHR rights, which ‘are … of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community’.[98] So, in essence, given the internal market context of access to and provision of goods and services, the CJEU deeply intervened in the space of domestic Danish constitutional law and policymaking by insisting on deliberative democracy and requiring attention to an EU-wide understanding of fair balance and proportionality.

We might then say that the incontrovertible fact that moral questions are increasingly reaching the Court enlarges, widens and deepens the sphere of communication and deliberation in the EU. At issue at all times is the question of the Union’s ‘ethic’. The Court’s jurisprudence illustrates not that EU values, at either the Treaty genesis or application of law levels, are expertocratically imposed through quasi-transcendental judicial deductions – like a new version of CF von Savigny’s Juristenrecht, representing a morally homogeneous nation’s popular belief (‘Volksglaube’[99]) – but rather that European society, of which Article 2 TEU speaks, is owned by the pluralistic EU citizens themselves.

At a fundamental level, then, the constitutional reading proposed in my account here of the application-of-law Article 2 TEU process brings out the idea that Union citizens are not only addressees but also democratically responsible co-authors of the EU integration project. It is not only the Member States but also Union citizens who are masters of the treaties (which includes their application). This is the radically democratic implication of the CJEU’s familiar concept of Union citizenship being ‘intended to be the fundamental status of nationals of the Member States’.[100] As Ingolf Pernice presciently wrote (in response to Dieter Grimm), ‘[t]he constitutional framework of the EU, thus, is not established by a third party, it is not imposed by forces foreign to the citizens but relies on some kind of general agreement and broad consensus among the citizens concerned’.[101]

Article 2 TEU serves a justificational role as a framework for legitimacy-conferring liberal dialogue and deliberation. The constitutional reading understands democracy in the EU as essentially deliberative. The Court aims at establishing provisional ‘fixed points’ – judgments that seem both clear and firm – in an ongoing process of reflective equilibrium. As the case law illustrates, Article 2 TEU provides a non-hierarchical contestatory jurisgenerative procedure. This procedure invites, and indeed requires, participants – the Member States, the EU Commission and the European Parliament as parties and as intervenors, third parties and stakeholders in EU public and civil society generally, either as proponents or dissenters – to consider and rethink their initial Article 2-interpretive commitments. They do this by way of mutual perspective-taking, internalising elements of their opponents’ antagonistic views thereby transforming their own. In this way, a new, truly European dimension is added to the old idea of democratic constitutionalism.

5. Conclusion

As a consequence of the transformation of the EU from a primarily economic into an ‘ever closer’ political Union, due to ongoing shocks of historical experience and crisis, the EU legal order is confronted with questions of constitutional morality. The question of the principled ‘identity of the EU and its legal order in a society where pluralism prevails’ has come to the fore and become imperative. Article 2 TEU values are not merely political aspirations and intentions but give rise to legally binding obligations for the Member States. The constitutional concept of European society points beyond the positivist-internationalist will-of-the-states approach of the past. The irrefutable – crisis-driven – demand for a ‘thickening’ of the understanding of Article 2 TEU values raises the question of the scope of these legally binding obligations, given persistent concerns about over-intrusiveness into national constitutional and political prerogatives (‘over-constitutionalisation’). At issue is how the distinction between what are different, often reasonable plural domestic visions about how common values should be concretised, on the one hand, and outright negation of Article 2 TEU values (‘red lines’), on the other, can be drawn.

This article has argued that the dilemma between thickness and thinness of EU constitutional meaning need not be a paralysing dilemma. Taking inspiration from contemporary constitutional theory in the broadly political-liberal tradition, Article 2 TEU can be seen as providing moral grounding for a proceduralisation strategy to address precisely this dilemma. Gradually, through its jurisprudence, the CJEU is turning political decisions – expressed in primary and secondary law – into principles and understandings of shared values, by (often belated) insight into their importance. In a changing geopolitical context, and with the idea of a transatlantic community in doubt, these principles of deliberative democracy, which have their origin in the political experience of the diverse European nation states – in the struggle for recognition between diverse social groups and the effort to mutually reconcile liberal and (social-) democratic values over continuous political time – today perhaps can only be effectively defended and kept alive and vibrant not at the national but at the European level. Article 2 TEU adds a truly European dimension to the idea of democratic constitutionalism by serving as the EU’s principle of political legitimacy in (as the Court observed) a society where pluralism prevails.

  1. ‘National Security Strategy of the United Stats of America’ (November 2025) <https://www.whitehouse.gov/wp-content/uploads/2025/12/2025-National-Security-Strategy.pdf> accessed 20 June 2026. ↑
  2. But see, among others, Jean Pisani-Ferry, ‘Les Etats-Unis ont durablement perdu leur magistère moral’ Le Monde (2 May 2026) <https://www.lemonde.fr/idees/article/2026/05/02/jean-pisani-ferry-les-etats-unis-ont-durablement-perdu-leur-magistere-moral_6684825_3232.html> accessed 20 June 2026. ↑
  3. Case C‑769/22 Commission v Hungary ECLI:EU:C:2026:326. ↑
  4. Article 2 TEU says:

    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. ↑

  5. Case C‑769/22 Commission v Hungary, Opinion of AG Ćapeta ECLI:EU:C:2025:408, recital 193; Case C-808/21 Commission v Czech Republic ECLI:EU:C:2024:962, 160; Case C-156/21 Hungary v Parliament and Council EU:C:2022:97, 232; Case C-157/21 Poland v Parliament and Council EU:C:2022:98, 234. ↑
  6. Opinion of AG Ćapeta (n 5) 193. ↑
  7. Ronald Dworkin, Freedom’s Law (Harvard UP 1996). ↑
  8. Commission v Hungary (n 3) 550ff. ↑
  9. C-448/23 European Commission v Republic of Poland ECLI:EU:C:2025:165, 167 and also Opinion 2/13 on accession to ECHR ECLI:EU:C:2014:2454, 167. ↑
  10. See the Opinion of AG Ćapeta (n 5) 214, who, however, argued in support of justiciability. ↑
  11. Commission v Hungary (n 3) 551. ↑
  12. Commission v Hungary (n 3) 489, 554. ↑
  13. ibid 520. ↑
  14. Opinion of AG Ćapeta (n 5) 155. ↑
  15. Commission v Hungary (n 3) 521, 533, 549. ↑
  16. ibid 530, 560, 525. ↑
  17. ibid 522, with further references to Case C‑156/21 Hungary v Parliament and Council EU:C:2022:97 [125] and Case C‑157/21 Poland v Parliament and Council EU:C:2022:98 [143]. ↑
  18. Commission v Hungary (n 3) 523, 549. ↑
  19. ibid 528, 531. ↑
  20. ibid 535–36. ↑
  21. ibid 538ff. ↑
  22. ibid 550–51. ↑
  23. ibid 561–62. ↑
  24. Case C-448/23 Commission v Poland, Opinion of AG Spielmann ECLI:EU:C:2025:165, 93. ↑
  25. Commission v Hungary (n 3) 555. ↑
  26. ibid 551. ↑
  27. Opinion of AG Ćapeta (n 5) 158. ↑
  28. Hans Kelsen, ‘Foundations of Democracy’ (1955) 66(1) Ethics 1, 17. ↑
  29. Ludwig Wittgenstein, Philosophical Investigations (Blackwell 1953) 243ff. ↑
  30. Notice that Brexit did not lead to collapse. ↑
  31. cf on this question, Armin von Bogdandy and Luke Dimitrios Spieker, ‘The Red Lines of European Society: Article 2 TEU after Commission v Hungary’ (VerfBlog, 30 April 2026) <https://verfassungsblog.de/the-red-lines-of-european-society/> accessed 20 June 2026. ↑
  32. This terminology is, of course, inspired by the German Federal Constitutional Court’s famous Lüth decision, BVerfGE 7, 198 (1958), translated in D Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University Press 1997) 363, according to which the value-system of the German Basic Law ‘accordingly also manifestly influences the civil law: no provision of civil law may be in contradiction with it; each one must be interpreted in its spirit’. On this, see Oliver Gerstenberg, ‘Horizontal Effect’ in Richard Bellamy and Jeff King (eds), Handbook of Constitutional Theory (CUP 2024). ↑
  33. Dworkin (n 7) 7ff, 37. ↑
  34. Ernst-Joachim Mestmäcker, ‘On the Legitimacy of European Law’ (1994) 58(4) Rabels Zeitschrift für ausländisches und internationales Privatrecht / The Rabel Journal of Comparative and International Private Law 615, 633. ↑
  35. Mestmäcker (n 34) 627. ↑
  36. Steven Weatherill, The Internal Market as a Legal Concept (OUP 2017) 402. ↑
  37. ibid. ↑
  38. ibid 397. ↑
  39. ibid 394. ↑
  40. ibid 403–04. ↑
  41. Dieter Grimm, The Constitution of European Democracy (OUP 2017) Preface. ↑
  42. Dieter Grimm, ‘Three Meanings of Constitutional Identity and Their Prospects in the European Union’ [2022] European Yearbook of Constitutional Law 13–24, 16. ↑
  43. Grimm (n 41) 13ff. ↑
  44. Dieter Grimm, Constitutionalism. Past, Present, and Future (OUP 2016) 144, with reference to Rudolf Smend. ↑
  45. Grimm (n 42) 366. ↑
  46. ibid 16. ↑
  47. von Bogdandy and Spieker (n 31). ↑
  48. Armin von Bogdandy, ‘On the Meaning and Promise of European Society’ (2025) 4(4) European Law Open 1, 6; Armin Von Bogdandy, ‘European Society and its Antagonists’ (2026) 63(1) Common Market Law Review 301. See also Armin von Bogdandy, The Emergence of European Society through Public Law. A Hegelian and Anti-Schmittian Approach (OUP 2024) esp ch 2. ↑
  49. von Bogdandy and Spieker (n 31). ↑
  50. ibid 10, 14. ↑
  51. Tamara Ćapeta, ‘Difference and Tolerance in the European Union: Case-law of the Court of Justice Relating to the Discrimination of LGBT Persons’ in Catherine Barnard and others (eds), Pursuit of Legal Harmony in a Turbulent Europe. Essays in Honour of Eleanor Sharpston (Hart 2024). ↑
  52. Dworkin (n 7). ↑
  53. For a summative statement, see Frank Michelman, Constitutional Essentials. On the Constitutional Theory of Political Liberalism (OUP 2024). See also Oliver Gerstenberg, ‘The Constitution as a Law of Lawmaking. Comments on Frank Michelman’s Constitutional Essentials’ (2024) 50(7) Philosophy and Social Criticism 1014. ↑
  54. Frank Michelman, ‘Political-Liberal Constitutional Community’ (MS 2026, on file with author). ↑
  55. John Rawls, Political Liberalism (Columbia UP 1993/2005) 8ff. ↑
  56. ibid. ↑
  57. I rely here on Geoffrey R Stone and David A Strauss, Democracy and Equality. The Enduring Constitutional Vision of the Warren Court (OUP 2020) 20. ↑
  58. Case C-448/23 Commission v Poland ECLI:EU:C:2025:975. ↑
  59. Wojciech Sadurski, ‘The CJEU Versus the Constitutional Tribunal in Poland: On the CJEU’s Judgment in Case C-448/23 (European Commission v. Republic of Poland)’ (VerfBlog, 20 December 2025). ↑
  60. Commission v Poland (n 58) 179. The CJEU also, in particular at 272, referred to the ECtHR judgment of 7 May 2021, Xero Flor w Polsce sp z oo v Poland (CE:ECHR:2021:0507JUD000490718, esp [290] and [291]). ↑
  61. On this formulation in Article 19 TEU being ‘perhaps understated’, cf Francis Jacobs, The Sovereignty of Law: The European Way (CUP 2006) 37. ↑
  62. Case C‑64/16 Associação Sindical dos Juízes Portugueses EU:C:2018:117, 69. ↑
  63. ibid 41. ↑
  64. ibid 29. See also, Case C‑896/19 Repubblika (Malta) v Il-Prim Ministru ECLI:EU:C:2021:311, 36. ↑
  65. Takis Tridimas, ‘Wreaking the Wrongs: Balancing Rights and the Public Interest the EU Way’ (2023) 29(2) Columbia Journal of European Law 185, 188. In addition, Tridimas highlights the ‘strong signalling and interpretational force’ of Article 2 TEU values (ibid). ↑
  66. Dean Spielmann, ‘The Rule of Law Principle in the Jurisprudence of the Court of Justice in the European Union’ in María Elósegui, Alina Miron and Julia Motoc (eds), The Rule of Law in Europe. Recent Challenges and Judicial Responses (Springer 2021) 6. ↑
  67. Case T-125/22 RT France v Council [Grand Chamber] EU:T:2022:483. ↑
  68. Decision 2022/351 of 1 March 2022 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine and Council Regulation 2022/350 of 1 March 2022 amending Regulation No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine. ↑
  69. RT France v Council (n 67) 132. ↑
  70. ibid 139. ↑
  71. ibid 193. ↑
  72. ibid 162. ↑
  73. Case C-181/23 Commission v Republic of Malta ECLI:EU:C:2025:283. ↑
  74. ibid 106. ↑
  75. ibid 42. ↑
  76. Commission v Republic of Malta (n 73), Opinion of AG Collins ECLI:EU:C:2024:849, 55. ↑
  77. ibid 57. ↑
  78. Commission v Republic of Malta (n 73) 95. ↑
  79. ibid 89. ↑
  80. ibid 91. ↑
  81. ibid 96. ↑
  82. ibid 97. ↑
  83. ibid 88. ↑
  84. ibid 99. ↑
  85. ibid 100. ↑
  86. Koen Lenaerts, ‘Upholding European Values: Democracy, Solidarity, and the Rule of Law’ (2025) <https://www.kuleuven.be/metaforum/publicaties-videos/opnames/20250606_koen-lenaerts_upholding-european-values.pdf> accessed 20 June 2026. For further discussion, with reference to the wide-ranging debate on this case, see Eleanor Spaventa, ‘A Very Valuable Citizenship? European Values and Citizenship after Commission v Malta’ (2025) 62 Common Market Law Review 1791. ↑
  87. I would like to thank my colleague Ingrid Boccardi for discussion of, and inspiration on, this point. ↑
  88. Case C‑417/23 Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge v MV ECLI:EU:C:2025:1017 (Danish Housing case). ↑
  89. Danish Housing case (n 88), Opinion of AG Ćapeta ECLI:EU:C:2025:98, 68ff. ↑
  90. ibid 152. ↑
  91. Council Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin; Opinion of AG Ćapeta (n 89) 46. ↑
  92. Danish Housing case (n 88) 167. ↑
  93. ibid 121ff. ↑
  94. ibid 149. ↑
  95. ibid 157. ↑
  96. ibid 150. ↑
  97. ibid 168. ↑
  98. ibid 171. ↑
  99. Carl Friedrich von Savigny, ‘On the Vocation of Our Age For Legislation And Jurisprudence’ [‘Vom Beruf unsrer Zeit für Gesetzgebung and Rechtswissenschaft’] (1814) reproduced in HS Reiss, Political Thought of the German Romantics (1955) 203ff. ↑
  100. C-184/99 Grzelczyk EU:C:2001:458, 31; C-200/02 Zhu and Chen EU:C:2004:639, 25; C-135/08 Rottmann EU:C:2010:104, 43; C-621/18, Wightman and others ECLI:EU:C:2018:999, 64. ↑
  101. Ingolf Pernice, ‘Multilevel Constitutionalism and the Crisis of Democracy in Europe’ (2015) 11 EuConst 552. ↑

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