—Fruela Río Santos, Professor of Constitutional Law, University of Oviedo
On 21 April 2026 the Court of Justice, sitting as a Full Court, ruled against Hungary in Commission v Hungary (Case C‑769/22), the case the Court itself labels Values of the Union. At first glance the operative part looks like an ordinary internal‑market condemnation. The measure under attack was Law LXXIX of 2021, which Budapest had presented to its own public, and would later defend in Luxembourg, as a shield for children against paedophilia, although its real content forbade any material that promotes or portrays homosexuality or non‑cisgender identities, and it did so across advertising, audiovisual media, online services and the school curriculum alike. The Court struck it down under the e‑commerce, services and audiovisual media directives, under Articles 1, 7, 11 and 21 of the Charter of Fundamental Rights of the European Union, and under Article 10 General Data Protection Regulation (GDPR). Anyone who had read the Commission’s application would have expected as much.
The judgment becomes genuinely interesting only at its sixth plea, which is where the Court did something it had never done before, holding a Member State in breach of Article 2 TEU on the provision’s own footing rather than as a backdrop to some more concrete duty. For two decades Article 2 TEU had been treated as a solemn preamble to the Union’s constitutional order, a clause one cited in argument or invoked in the political arena but never, by itself, the ground of a judgment. The judgment now treats it as a litigable standard. That the institutions sensed what was at stake is plain from the company the Commission kept, since sixteen Member States and the European Parliament arranged themselves behind this institution, the largest field of supporters an infringement action has ever drawn. This post argues that the judgment’s true significance lies not in the fall of the Hungarian law but in the transformation of Article 2 TEU into an enforceable standard. For the first time the Court gives the Union a judicial brake against democratic backsliding, even as a deliberately high threshold leaves the reach of that new ground uncertain.
The contested law
The 2021 Hungarian statute did its work in four places at once, amending the child‑protection act, the advertising act, the media act (which pushed the affected programmes into the 22:00–05:00 slot) and the public‑education act, and the European Court saw the design behind the repetition, since a single premise ran through every sector and produced what it called a coordinated set of discriminatory measures. The title mattered too. By gathering rules against homosexuality and gender transition under a statute supposedly aimed at paedophile offenders, the legislature had written the insinuation into the law itself, and the Court was prepared to call the effect both stigmatising and capable of inciting hatred.
Anyone who had been following the file in the years before the hearing was unlikely to be caught off guard. The Venice Commission had said much the same in December 2021, condemning the implied link between LGBTI lives and harm to children as degrading and recommending that the title of the law itself be changed; and before the parliamentary vote the Council of Europe’s Commissioner for Human Rights had warned that the amendments could silence any public mention of these identities. The European Parliament condemned the law that July. What the Court of Justice adds is not a fresh diagnosis but the one thing those earlier voices could never supply on their own: a binding finding, with consequences attached.
The Advocate General’s reading
Much of the ground had already been prepared by Advocate General Ćapeta, whose Opinion of 5 June 2025 set out, in essence, the analysis the Court would adopt, and it ran along two lines. The first was empirical. Hungary could produce no evidence that exposure to the prohibited content harmed a child’s development, so the prohibition rested on a value judgment, which she called a prejudice, taking her cue from the language used by the European Parliament. The second line was the bolder one, because it was here that she urged the Court to recognise a free‑standing breach of Article 2 TEU. She also addressed the issues in an unusual sequence, settling the factual question — whether the prohibited content actually harms a child’s development — before turning to the constitutional one, an order more familiar in the common-law world than in Luxembourg, and the Court followed her there as well.
Directives and Charter
On the directives the reasoning is almost routine, because, although Member States may decide what audiovisual content is unsuitable for minors, they have to act within the limits identified by the Charter of Fundamental Rights, and the Hungarian law failed at the very first step. Its provisions assume that any depiction of these identities, whatever it actually shows, harms the child, and that assumption draws a line at sex and sexual orientation. The Court held that this line “reveals a preference for certain identities and sexual orientations to the detriment of others” and that it cuts into the essence of Article 21(1) of the Charter, a core that on settled case‑law no justification can reach, neither the best interests of the child under Article 24(2) nor the rights of parents under Article 14(3). On that last point it leaned on the case law of the Strasbourg Court, whose standard is that in a subject as contested as sex education the authorities owe pupils objectivity, pluralism and scientific accuracy rather than one approved line of thinking.
One part of the case tends to get lost in the discrimination analysis. Hungary had also reworked access to its register of sex offenders, and the Court accepted both the aim, protecting children, and the premise that Article 10 GDPR allows conviction data to be disclosed where the safeguards are real. Hungary’s were not real. The category of people who could request the data had been drawn far too widely, and a requester’s bare claim that he needed it did nothing to keep the intrusion in check. So part of the judgment is not about discrimination at all. It is about bad drafting.
Article 2 TEU becomes a rule one can litigate
Article 2 TEU lists the Union’s founding values: human dignity, freedom, democracy, equality, the rule of law, and respect for human rights, including the rights of minorities. Whether a court could enforce those values, rather than merely cite them, had divided scholars for the best part of twenty years. The 2022 conditionality judgment went halfway, granting Article 2 a “legal value” without making it a stand‑alone ground of infringement. This ruling takes the step that was left. The values bind in themselves, the Court says; they are part of what the Union is as a legal order; and Article 2 is no longer treated as merely political language. After all that argument, it has become a provision the Court will enforce on its own, and the consequences are likely to be felt far beyond the Hungarian facts.
But only at the top of the scale
The Court saw the obvious objection coming, that every Charter breach might now turn into an Article 2 TEU breach, and it shut that off in advance. Breaching a piece of secondary law that gives effect to the values is not enough. Nor is breaching several Charter rights at once, which is at most a clue. Only violations that are manifest and particularly serious will cross the line, because only those are incompatible with the kind of legal order the Union claims to be. The qualifier is deliberate. Where the bar actually sits, the cases that follow will have to show.
In Hungary’s case the threshold was cleared without difficulty, and the Court identified three concerns that, taken together, carried the law over it: one discriminatory premise repeated across four sectors, no scientific basis for that premise, and the slur built into the title. How much of the combination one could remove before a future measure slipped under the line is left open, and that is one of the more intriguing gaps the judgment leaves behind.
National identity, and its limits
Hungary fell back on Article 4(2) TEU and the room it supposedly leaves the Member States in matters of education, public morality and the family. The Court rejected that argument. Its answer came in two moves: the obligations under Article 2 TEU do not change from one State capital to the next, and Article 4(2) TEU protects only a conception of national identity that already squares with Article 2 TEU. So the clause does not shield the law; it is measured against the values it was meant to outrank. Hungary, the Court held, could not use its national identity to defend the statute. The identity that EU law protects is one resting on human dignity, equality and the rights of minorities, and no other version is on offer.
“Social invisibility”
The most original move in the whole judgment turns on a single phrase, because the Court describes the contested law as one that works to establish, maintain or reinforce the social “invisibility” of non‑cisgender and non‑heterosexual people, which pushes past the old split between direct and indirect discrimination: wiping a group out of public view is a harm in itself. The Strasbourg Court got there first. The same idea runs through Bayev v Russia and the Grand Chamber’s Macatė v Lithuania, both of which threw out the claim that merely seeing LGBTI content harms children and read the real point of such laws as the imposition of silence. On this the two European Courts now agree.
Why it matters
For years the only weapon against backsliding of this kind was the procedure in Article 7 TEU, and its politics finished it off, since the proceedings opened against Hungary and Poland long ago never came near the impositions of sanctions. That paralysis is the backdrop against which the judgment should be read. An infringement action grounded in Article 2 TEU walks around the deadlock, and it carries a threat the old route never had, because non‑compliance can attract financial penalties under Article 260 TFEU. The bar is high. Even so, the tool now exists, it has been shown to work, and the gap that scholars spent a decade lamenting is at last partly closed.
It pays to read the Hungarian law next to its relatives elsewhere. Russia’s 2013 “gay propaganda” law, condemned in Bayev, did not stay put: it swelled into a blanket ban and then into the branding of an “international LGBT movement” as extremist. Lithuania’s version collapsed after Macatė and was struck down by its own Constitutional Court in 2024. Florida’s House Bill 1557 grew for a while, until a settlement reined it in. The comparison suggests a recurring pattern. Each law hides behind the language of child protection. Each is loose enough to chill far more speech than it openly bans. And each, when nobody pushes back, keeps growing. What this judgment adds, inside the Union, is a brake that can be pulled early and that binds those against whom it is used.
A good deal is still left unresolved by the ruling, since no one yet knows how high the Article 2 threshold really sits, or how the new ground will operate beside the Charter and Article 7, and it would be idle to pretend the judgment answers those questions. What it does answer is narrower and more lasting: a Member State may not legislate a whole group out of public existence, because doing so is incompatible with the very legal order it chose to join. The decision reaches a long way past the single Hungarian law that prompted it.
Suggested citation: Fruela Río Santos, Making Article 2 TEU Justiciable: The Court of Justice in Commission v Hungary (Values of the Union), Int’l J. Const. L. Blog, Jul. 17, 2026, at: http://www.iconnectblog.com/making-article-2-teu-justiciable-the-court-of-justice-in-commission-v-hungary/