Can the EU Defend Its Own Values?

By Julia Nos

The passing of the Child Protection Act by the Hungarian Parliament in 2021, which bans the portrayal of homosexuality and gender transition to minors, sparked international uproar. It was not just another example of discriminatory policy, it was a direct violation of the very principles on which the European Union is built. In response, the European Commission launched a legal action unlike any before it. At its core? Article 2 of the Treaty on European Union. This article lists the Union’s founding values: human dignity, equality, democracy, rule of law, and human rights.

But: Article 2 TEU has never been used on its own as a legal basis in infringement proceedings. Until now, it has mainly been seen as a declaration, a kind of constitutional preamble. So the real question is: Can Article 2 TEU stand on its own? In other words, can the EU actually enforce the values it claims to be founded on?

This is the question I explored in my thesis. And what I found is both promising and urgent.

For years, the EU has struggled to respond effectively to democratic backsliding within its Member States. Legal mechanisms like Article 7 TEU, the so-called “nuclear option”, require unanimity among Member States, which is politically impossible when countries like Hungary and Poland shield one another. Other tools, like the Conditionality Regulation that links EU funding to rule of law standards, are limited in scope and tied primarily to financial concerns. As a result, systemic attacks on fundamental rights, for instance against LGBTIQ+ communities, often go unpunished.

That is why the Commission’s argument in Hungary v Commission marks a turning point. For the first time, Article 2 TEU is being relied upon on its own as the basis for legal action. The Commission argues that a violation of the EU’s values does not need to be linked to another provision like Article 19 TEU or the Charter of Fundamental Rights. Instead, those values are enforceable in themselves.

But is this bold move legally sound?

Traditionally, many have dismissed Article 2 TEU as too vague or political to be judicially enforced. It is a declaratory clause, not a clear rule - so the argument goes. Yet recent case law tells a different story. In judgments like Portuguese Judges and Hungary v Parliament and Council, the Court of Justice of the EU has clearly stated that the values in Article 2 TEU are not just symbolic, they are legally binding and Member States have a duty to uphold them.

If we accept that, then enforcement becomes a matter of how. There are three main pathways.

The first, and most transformative, is treating Article 2 TEU as a freestanding legal provision, something that can be invoked independently in legal proceedings. This would allow the EU to respond directly to systemic threats, even when those threats do not violate another specific law. For example, if a Member State rolls back judicial independence or vilifies an entire minority group through national legislation, that could be challenged under Article 2 TEU. To avoid judicial overreach, the Commission has proposed a twofold test: a violation must be both serious and systemic. Seriousness relates to how broadly and deeply rights are being violated. Systemic means it’s not an isolated incident, it reflects a pattern, a coordinated policy undermining democratic structures. This kind of principled threshold helps ensure that the EU is not policing minor infractions, it is stepping in when the rule of law itself is under attack.

The second approach is more cautious. It suggests that Article 2 TEU cannot be enforced on its own, but it can shape how other laws are interpreted. In this view, the values in Article 2 serve as a lens through which courts read other rules. This interpretative model is neat and avoids political friction, but it falls short in cases where no other law applies. Fundamental rights violations are not always connected to the breach of another EU law. Relying only on existing laws leaves wide gaps.

Then there is the third path: using Article 2 TEU in combination with other legal provisions. This is the EU’s usual strategy. It is safer and more predictable, but it does not solve the problem. What happens when a Member State passes an anti-LGBTIQ+ law that affects domestic education and culture but does not touch internal market rules? These threats can be profound, but under the combined approach, the EU may be powerless.

That is why I argue for the first option. It sends a message: This is not business as usual. This is a threat to the Union’s constitutional core.

Recognising Article 2 TEU as enforceable on its own gives the EU credibility. For years, critics have accused the EU of talking big about values while doing little to defend them. Turning Article 2 TEU into an enforceable legal weapon changes that. It transforms ideals into real obligations, and it ensures that membership in the Union still means something.

The future of the EU may well depend on whether it can live up to its own standards. If it continues to treat its foundational values as symbolic, they will remain open to erosion. But if it dares to defend them, clearly, legally, and boldly, then Article 2 TEU can become more than a mission statement. It can become a shield.

The Commission’s case against Hungary is a test. But it is also a chance: to prove that the European Union is not just a common market, but a community of values. One that is willing to act when those values are under attack.

Julia Nos

About Julia (Guest Contributor)

Julia is originally from Germany and recently graduated with an LL.B in International and European Law from the University of Groningen. Before studying law, she worked in the social sector, which sparked her interest in human rights law. Julia will shortly commence the MLaw at Queen’s University Belfast, and is involved with a research project regarding the protection of fundamental rights in the European Union.

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