Gonçalo Martins de Matos (PhD candidate in Public Legal Sciences at the School of Law of the University of Minho | Junior Researcher at JusGov | Member of the Editorial Support of this blog)
As the Hungarian legislative elections approach, we are reminded of what is at stake for the whole of the European Union (EU). Since 2010, the Hungarian State’s democratic and Rule of Law standards have backslid, turning this Eastern European State in a de facto illiberal democracy,[1] dominated by Viktor Órban and his Fidesz party. Órban’s rule has been generally uncontested, even with European institutions increasingly drawing attention to Hungary’s severe democratic decline.[2] However, his grip on the Hungarian State has been facing rising challenges, such as several infringement procedures[3] and the activation of the Rule of Law conditionality mechanism.[4] The 2024 European Parliament elections gave challenger Péter Magyar the upward momentum to hinder Órban’s illiberal agenda and shake the foundations of his firm grasp on Hungary’s legal political system.[5]
The possibility of halting or reversing Hungary’s democratic decline is exponentiated by an infringement procedure pending before the Court of Justice of the European Union (CJEU). Case C- 769/22 Commission v. Hungary[6] is currently awaiting the CJEU’s ruling. However, when the Advocate General’s Opinion was published in June 2025,[7] we soon realised that the implications may go beyond the Hungarian case and help found what has been referred to as the justiciability of Article 2 of the Treaty on European Union (TEU). In summary, the legal argument is that the values enshrined in Article 2 TEU create concrete legal obligations for the Member States. If Member States fail to fulfil those obligations, their non-compliance can be used as grounds for launching infringement procedures, well within the ordinary competences of the CJEU. If the upcoming judgment eventually adopts the justiciability argument, we may be looking at a whole new phase of the constitutionality control carried out by the CJEU, keeping alive the aspiration of a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
However, given that the CJEU’s contributions to EU law are built from each individual case to by its case-law, the basis of the qualitative leap to the justiciability of Article 2 TEU can be detected in a CJEU judgment from 18 December 2025. Case C-448/23 Commission v. Poland[8] concerned two 2021 rulings by the Polish Constitutional Court (PCC) that essentially intended to challenge the primacy of EU law. In the 14 July ruling, the PCC held that the CJEU interim measure of suspending the Disciplinary Chamber of the Polish Supreme Court imposed ultra vires obligations on the Polish Republic, thus breaching the principle of conferral. In the 7 October ruling, the PCC claimed that the interpretation of Articles 2 and 19 TEU made by the CJEU in another infringement ruling[9] was incompatible with the Polish Constitution, thus undermining Poland’s national constitutional identity.
Before we proceed to the findings of the CJEU’s judgment, we must contextualise these PCC rulings in the broader Rule of Law backsliding that has plagued some EU Member States since 2014. Rule of Law backsliding is defined by a gradual capture of a State’s legal and political systems by a party in power, provoking severe setbacks in areas that previously seemed protected, such as fundamental rights, legality or transparency, to name some. Since the rise to power of the illiberal party PiS in 2015, Poland has been immersed in a constitutional crisis, having merely slowed down in 2023, with the parliamentary defeat of the illiberal government. Through partisan appointments of judges to the Supreme and Constitutional Courts, the PiS-led government effectively weaponised judicial bodies to forward their illiberal agenda, with lasting impact to this day.
Against this backdrop, EU institutions have been tackling Rule of Law backsliding, and, despite an initially shaky and timid reaction, there have been significant advancements in enforcing the Rule of Law, especially through the reconfiguration of the infringement procedure to tackle systemic breaches of the fundamental values of the EU.[10] Especially since the 2019 Commission v. Poland judgment,[11] in which the CJEU “tackled the issue of principle at the heart of the matter: adherence to the Rule of Law via honouring judicial independence and irremovability”.[12] The CJEU judgment we are analysing is the latest in the sequence initiated with this 2019 landmark ruling.
With all of this context, and taking into account the findings of the PCC rulings, the CJEU rose to the task and reinforced basic principles of EU law, while simultaneously furthering the innovative aspects inaugurated with the 2019 Commission v. Poland judgment. In this 2025 judgment, the CJEU has ruled that the binding force of EU law or its own judgments cannot be undermined by either the principle of conferral or national identity, expressly rejecting national constitutional identity as a justification for disapplying CJEU case law. The CJEU argued that, since the values enshrined in Article 2 TEU form part of the constitutional identity of the Union as a common legal order, to which the Member States have adhered, their legal concretisation cannot be regarded as an intrusion upon national identity.[13] Furthermore, the CJEU also reinforces the principle of non-regression, reminding that a Member State “cannot, therefore, amend its legislation, or indeed its case-law, in such a way as to bring about a reduction in the protection”[14] of fundamental values, with particular emphasis on the Rule of Law.
Recalling that the principle of conferral demands that each EU institution act only within the limits of the competences conferred upon it by the Member States, the CJEU emphasised that the authority to determine whether those limits have been exceeded or not belongs only to the CJEU itself.[15] If a national court considers that a provision of EU law is invalid on the grounds that it exceeds the Union’s competences, or that it encroaches national identity, it must refer a question to the CJEU for a preliminary ruling, according to Article 267 of the Treaty on the Functioning of the European Union (TFEU), “the [CJEU] alone having jurisdiction to declare an EU act invalid”.[16]
With the judgment sub judice, the CJEU, by reinforcing the supremacy of its authority on the interpretation of EU law, consequently reaffirms the principle of the primacy of EU law. However, it goes further than that. By asserting that the values enshrined in Article 2 TEU are not merely a statement of policy guidelines or intentions but “are given concrete expression in principles containing legally binding obligations for the Member States”,[17] the CJEU is paving the way to enable the justiciability of the values contained in Article 2 TEU.[18] In addition, by asseverating that the only authority with the competence of knowing of the interpretation or validity of EU law is the Court itself, through the reference for a preliminary ruling procedure, the CJEU once again strengthens the principle of effective judicial protection.
From what we have just analysed, the CJEU, by reinvigorating fundamental aspects of legality within the EU, is laying the groundwork for the effective judicial protection of the very values that define the EU as a Union of Law. In addition to this, if the CJEU adopts, in the impending ruling on Case C-769/22 Commission v. Hungary, some of the basic arguments provided by the above-mentioned Advocate General’s Opinion, in theory, the CJEU will have the ordinary competence of declaring the infringement of the fundamental values of the EU. The legal ramifications of both developments in the infringement procedure are examined in greater detail in an article written by us to be published in the next issue of UNIO – EU Law Journal.
[1] On rule of law backsliding, see, among others, Carlos Closa and Dimitry Kochenov, “Part I. The case for EU reinforced oversight in four questions” in Carlos Closa, Dimitry Kochenov and JHH Weiler, EUI Working Paper RSCAS 2014/25: Reinforcing Rule of Law Oversight in the European Union, no. 3 (2014): 7, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2404260, Laurent Pech and Kim Lane Scheppele, “Illiberalism within: rule of law backsliding in the EU”, Cambridge Yearbook of European Legal Studies, vol. 19 (2017): 7, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3009280, and Gonçalo Martins de Matos, “Defending the Rule of Law in the European Union: legal and political approaches”, UNIO – EU Law Journal, vol. 11, no. 2 (2025): 102-104, https://doi.org/10.21814/unio.11.2.7018.
[2] From the well-known “Tavares” Report (European Parliament, Report A7-0229/2013, https://www.europarl.europa.eu/doceo/document/A-7-2013-0229_EN.html) to the successive Rule of Law Reports (European Commission Reports on the situation of the Rule of Law in the EU, available at https://commission.europa.eu/strategy-and-policy/policies/justice-and-fundamental-rights/upholding-rule-law/rule-law/annual-rule-law-cycle_en#:~:text=The%20European%20Rule%20of%20Law%20Mechanism%20provides%20a,institutions%20to%20contribute%20in%20accordance%20with%20their%20).
[3] See, among others, Kim Lane Scheppele, Dimitry Kochenov and Barbara Grabowska-Moroz, “EU values are law, after all: enforcing EU values through systemic infringement actions by the European Commission and the Member States of the European Union”, Yearbook of European Law, vol. 39, no. 3 (2020): 42-44, https://academic.oup.com/yel/article/doi/10.1093/yel/yeaa012/6064852?login=true.
[4] We have written about this subject in Gonçalo Martins de Matos, “On the triggering of the EU’s conditionality mechanism: what has been done and what could follow”, The Official Blog of UNIO – Thinking and Debating Europe, 3 February 2023, https://officialblogofunio.com/2023/02/03/on-the-triggering-of-the-eus-conditionality-mechanism-what-has-been-done-and-what-could-follow/.
[5] Vincenzo Genovese and Sandor Zsiros, “MEPs rally behind Magyar in Hungarian elections despite ideological divides”, Euronews, 30 March 2026, https://www.euronews.com/my-europe/2026/03/30/meps-rally-behind-magyar-in-hungarian-elections-despite-ideological-divides.
[6] Court of Justice of the European Union, Case C-769/22, European Commission v. Hungary, available at https://curia.europa.eu/juris/liste.jsf?lgrec=fr&td=;ALL&language=en&num=C-769/22&jur=C.
[7] We have written about the Advocate General’s Opinion on this case, analysing its main arguments, in Gonçalo Martins de Matos, “Protecting fundamental rights through the infringement procedure: Advocate General’s Opinion in CJEU Case C-769/22 ‘Commission v. Hungary’”, The Official Blog of UNIO – Thinking and Debating Europe, 16 June 2025, https://officialblogofunio.com/2025/06/16/protecting-fundamental-rights-through-the-infringement-procedure-advocate-generals-opinion-in-cjeu-case-c-769-22-commission-v-hungary/.
[8] Judgment CJEU European Commission v. Republic of Poland, 18 December 2025, Case C‑448/23, ECLI:EU:C:2025:975.
[9] Judgment CJEU European Commission v. Republic of Poland, 15 July 2021, Case C‑791/19, ECLI:EU:C:2021:596.
[10] For a comprehensive explanation of the concept of systemic infringement procedure, see Kim Lane Scheppele, “What can the European Commission do when Member States violate basic principles of the European Union? The case for systemic infringement actions”, Verfassungsblog, November 2013, 1, https://verfassungsblog.de/wp-content/uploads/2013/11/scheppele-systemic-infringement-action-brussels-version.pdf.
[11] Judgment CJEU European Commission v. Republic of Poland, 24 June 2019, Case C-619/18, ECLI:EU:C:2019:531.
[12] Scheppele, Kochenov and Grabowska-Moroz, “EU values are law, after all”, 45.
[13] Emmanuel Renoud Delarque, “Ending constitutional resistance? The CJEU’s rejection of ultra vires review and national identity doctrines”, European Law Blog, 11 February 2026, https://www.europeanlawblog.eu/pub/kdmsojzk/release/1. See also recitals 177 to 195 of Judgment Commission v. Poland (C-448/23).
[14] Judgment Commission v. Poland (C-448/23), recital 179.
[15] Judgment Commission v. Poland (C-448/23), recital 213.
[16] Judgment Commission v. Poland (C-448/23), recital 230.
[17] Judgment Commission v. Poland (C-448/23), recital 177.
[18] For more on Judgment Commission v. Poland (C-448/23), see Mariusz Muszyński, “An error or ultra vires action. The CJEU’s judgement C-448/23 against Poland”, Central European Association for Comparative Law, 27 January 2026, https://www.ceaclaw.org/post/an-error-or-ultra-vires-action-the-cjeu-s-judgement-c-448-23-against-poland, Jakub Jaraczewski and Laurent Pech, “Kangaroo courts and EU law: on the Court of Justice’s judgment in Commission v. Poland”, Verfassungsblog, 7 January 2026, https://verfassungsblog.de/commission-v-poland/ (with some criticism) and 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)”, Verfassungsblog, 20 December 2025, https://verfassungsblog.de/the-cjeu-versus-the-constitutional-tribunal-in-poland/ (with some criticism).
Picture credit: by Son Tung Tran on pexels.com.
Official Blog of UNIO 