Since the seminal 2018 Portuguese Judges case, it has been established that violations of values enshrined in Article 2 of the Treaty on European Union (TEU) can be litigated before the Court of Justice of the European Union (CJEU). Currently, proceedings are ongoing in the European Commission’s infringement action against Hungary, the argument being that its anti-LGBTQI+ laws breach provisions of the internal market, several Charter rights, and, importantly, the common values enshrined in Article 2 TEU. The case, known as Valeurs de l’Union, has been hailed as the “largest human rights battle in EU history.”
In this RevDem Rule of Law podcast episode, our co-managing editor, Dr. Oliver Garner, discusses the enforcement of the Union’s values at the Member State level as well as at the Union’s institutional level with Dr. Luke Dimitrios Spieker.
Dr. Spieker is Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law and Postdoctoral Researcher at Humboldt University in Berlin. In his monograph, EU Values before the Court of Justice, published by Oxford University Press, he analyzes the foundations, potential, and risks of the mobilization of Article 2 TEU.
Valeurs de l’Union Case
In his recent article co-authored with Lena Kaiser and Andreas Knecht, Spieker notes that the Valeurs de l’Union case has attracted unprecedented interventions of 16 Member States, the European Parliament, and several civil society organizations. In this podcast, he argues that it is, in fact, the most important case in the recent history of the CJEU, with the potential to answer four inter-related, fundamental questions: 1) whether Article 2 TEU values can serve as “legal yardsticks” in infringement proceedings; 2) if so, how they can be invoked; 3) under what circumstances they can be invoked; and 4) what kind of tests can be applied when the values are breached. He also notes an evolution in jurisprudence concerning Article 2 TEU: Initially, the rule of law was the principal value being invoked. Spieker contends that it was a natural starting point, given the trigger by the illiberal capture of the judiciary in Poland, which raised questions about the independence of national courts – i.e., actors deeply embedded within the EU judicial system. However, Spieker observes, now, other values, such as democracy, respect for human dignity and human rights, as well as solidarity, are increasingly invoked, as evidenced by the Valeurs de l’Union proceedings.
Article 2 TEU as a Challenge to the Limits of CJEU’s Jurisdiction
While much attention has been paid to breaches of Article 2 values by Member States, a number of arguments have been raised recently about EU institutions themselves not being a paragon of virtue in that regard. A 2024 report by the CEU Democracy Institute Rule of Law Clinic, further discussed by two of its co-authors, Laurent Pech and Petra Bárd, in a recent RevDempodcast, draws attention to shortcomings such as inadequate self-assessment and independent review mechanisms, politicization of rule of law-related decisions, and a general lack of transparency at the level of EU institutions.
Spieker acknowledges these deficiencies, especially regarding the limited access of individuals to the CJEU under Article 263 of the Treaty on the Functioning of the European Union (TFEU) and the Court’s limited jurisdiction with respect to Common Foreign and Security Policy (CFSP) under Article 24(1) TEU and Article 275 TFEU. In theory, a reinterpretation of Article 263 TFEU is possible – the Court has already performed such an exercise in the 2021 case of Venezuela v Council. However, Spieker does not expect the CJEU to pursue that path specifically through the lens of Article 2 TEU values, as this would require departing from the Plaumann test – a step the Luxembourg court already declined to take in the 2002 case of Unión de Pequeños Agricultores.
Conversely, Spieker does recognize the potential of Article 2 TEU as a tool to reinterpret provisions delimiting the Court’s jurisdiction over CFSP in a way that conforms with values such as the rule of law. Spieker explains how the 2024 case of KS and KD v Council – and, in particular, the Opinion of Advocate General Ćapeta – raised the question of whether fidelity to the law requires the CJEU to strictly abide by its treaty constraints or instead prioritize the EU’s constitutional principles to establish jurisdiction over CFSP if necessary to protect fundamental rights. Another way to address this conflict would be for the EU to fulfill its treaty obligation to accede to the European Convention on Human Rights – thereby granting the European Court of Human Rights (ECtHR) jurisdiction over CSFP. However, Spieker invokes Opinion 2/13, in which the CJEU declared a draft accession agreement incompatible with EU law. One of the main arguments was that, if the ECtHR were to rule on CSFP matters, then the Strasbourg court would possess a broader competence on EU matters than the Court of Justice of the European Union itself. Despite this, Spieker argues that the Luxembourg court is striving to close this gap – as seen in KS and KD as well as in cases such as Rosneft – by relying on justifications based precisely on Article 2 values.
Is Treaty Reform the Answer?
Despite recognizing the potential pitfalls and shortcomings of that solution, one of RevDem’s previous guests – former judge of the German Federal Constitutional Court, Professor Dieter Grimm – proposed reforming the EU treaties to allow for the expulsion of Member States in cases of notorious breaches of Article 2 TEU values.
Spieker disagrees. In his recent article in the Heidelberg Journal of International Law, he labels treaty reform as “unrealistic,” “unproductive,” and “unnecessary.” He also challenges Grimm’s contention that the EU suffers from a democratic deficit, pointing to an understanding of democracy at the Union level not in traditional terms of self-determination but rather as a consociational “system of mediations,” as proposed by von Bogdandy. Finally, Spieker denies the necessity of creating an official avenue for submitting amicus curiae briefs to the CJEU, arguing that informal ways of drawing the Court’s attention to important developments and different perspectives already exist (see Our Rule of Law Foundation’s paper for a contrasting view, highlighting the downsides of the lack of an official amicus procedure).
Instead, Spieker argues, amendments through mechanisms already available under the current treaties should be the focus. For instance, that rule of law monitoring should be more directly connected to the infringement procedure, with automatic financial consequences following a finding of breach by the CJEU. Another issue to be addressed is the lack of efficiency: A striking example is the fact that it took the Commission six years to refer Poland to the Court on the basis of the controversial Constitutional Tribunal reform. Finally, Spieker draws attention to poor transparency of decision-making at the EU level, pointing to the difficulty of obtaining basic information such as the amount of EU funds frozen vis-à-vis Hungary – a matter not even followed by a press release, despite the monetary value amounting to a staggering 10% of the country’s GDP (see more on transparency and other problems of EU leadership style in RevDem’s interview with Martina Vass; and on the conditionality mechanism in an editorial by Oliver Garner and Teodora Miljojkovic). On that note, he contends that the EU Ombudsman should play a larger role in monitoring adherence to rule-of-law standards within EU institutions (in this regard, see Ombudsman O’Reilly’s accusation of the von der Leyen Commission being run by “powerful consiglieri”).
In essence, Spieker advocates for action à droit constant – that is, using the existing provisions of EU law, such as Article 2 TEU with its interpretative potential, and changing institutional practice rather than the treaties. On this point, the Valeurs de l’Union case should be followed closely.
Summary by Jan Młynarczyk. Alina Young edited the audio file.
