The protection of Article 2 TEU values in the EU

The European 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, as laid down in Article 2 of the Treaty on European Union (TEU). To ensure that these values are respected, Article 7 TEU provides for an EU mechanism to determine the existence of, and possibly sanction, serious and persistent breaches of EU values by a Member State. The EU is further bound by its Charter of Fundamental Rights and is committed to acceding to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Following the emergence of threats to EU values in some Member States, the EU institutions are strengthening their toolbox to counter democratic backsliding and protect democracy, the rule of law, fundamental rights, equality and minorities across the EU.

From judicial protection of fundamental rights to codification in the Treaties

The European Communities (EC) – now the European Union – were created as international organisations centred around economic cooperation. There was therefore no perceived need for explicit rules concerning respect for fundamental rights. These rights were considered as guaranteed by the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), to which the Member States were signatories.

The Court of Justice of the European Union (CJEU) had affirmed, in the late 1950s and 1960s, the principles of direct effect and of primacy of European law (Costa v E.N.E.L., case 6-64), while refusing to examine the compatibility of decisions with the national and constitutional law of Member States (Stork v European Coal and Steel Community (ECSC), case 1/58; Ruhrkohlen-Verkaufsgesellschaft v ECSC, joined cases 36, 37, 38-59 and 40-59). Following these decisions, certain national courts began to express concerns about the effects such case-law might have on the protection of constitutional values such as fundamental rights. Should European law prevail over domestic constitutional law, it would become possible for European law to breach fundamental rights protected in the Member States’ constitutions. To address this theoretical risk, in 1974 the German and Italian constitutional courts each adopted a judgment in which they asserted their power to review European law to ensure its consistency with constitutional rights (Solange I; Frontini). This led the CJEU to affirm, through its case-law, the principle of respect for fundamental rights, by stating that fundamental rights were enshrined in the general principles of Community law protected by the CJEU (Stauder v City of Ulm, case 29-69). These are inspired by the constitutional traditions common to the Member States (Internationale Handelsgesellschaft v Einfuhr- und Vorratsstelle für Getreide und Futtermittel, case 11-70) and by international treaties for the protection of human rights to which Member States are parties (Nold v Commission of the European Communities, case 4-73), one of which is the ECHR (Rutili v Ministry of the Interior, case 36-75).

With the expansion of EU competence to policies having a direct impact on fundamental rights - such as justice and home affairs, which then developed into a fully fledged area of freedom, security and justice - the Treaties were changed to firmly anchor the EU to the protection of fundamental rights. The Treaty of Maastricht included references to the ECHR and the common constitutional traditions of Member States as general principles of EU law. The Treaty of Amsterdam affirmed the European ‘principles’ on which the EU is founded and created a procedure to suspend the rights provided for by the Treaties in cases of serious and persistent violations of fundamental rights by a Member State. In the Treaty of Lisbon, these ‘principles’ became ‘values’, as listed in Article 2 TEU. The drafting of the Charter of Fundamental Rights and its entry into force, together with the Treaty of Lisbon, are the latest developments in this process of codification intended to ensure the protection of fundamental rights in the EU.

The EU’s accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms

The ECHR is the leading instrument for the protection of fundamental rights in Europe, to which all Member States have acceded. EC accession to the ECHR therefore appeared to be a logical solution to the need to link the EC to fundamental rights obligations. The Commission repeatedly proposed (in 1979, 1990 and 1993) the accession of the EC to the ECHR. Having been requested for an opinion on the matter, the CJEU found in 1996 (Opinion 2/94 of the CJEU) that the Treaty did not provide for any competence for the EC to enact rules on human rights or to conclude international conventions in this field, making accession legally impossible.

The Treaty of Lisbon remedied this situation by introducing Article 6(2) TEU, which made the EU’s accession to the ECHR mandatory. This meant that, as regards respect for fundamental rights, the EU would become subject to review by a legal body external to itself, namely the European Court of Human Rights. Following accession, EU citizens and nationals of non-EU countries present on EU territory would be able to challenge legal acts adopted by the EU directly before the European Court of Human Rights on the basis of the provisions of the ECHR, in the same way as they may challenge legal acts adopted by the EU Member States.

In 2010, after the entry into force of the Treaty of Lisbon, the EU opened negotiations with the Council of Europe on a draft Accession Agreement, which was finalised in April 2013. In July 2013, the Commission asked the CJEU to rule on the compatibility of this agreement with the Treaties. On 18 December 2014, the CJEU issued a negative opinion stating that the draft agreement was liable to adversely affect the specific characteristics and the autonomy of EU law (Opinion 2/13 of the CJEU). After a period of reflection and following discussions on how to overcome the issues raised by the CJEU, the EU and the Council of Europe resumed negotiations in 2019.

The Charter of Fundamental Rights of the EU

In parallel to the ‘external’ scrutiny mechanism which would be provided for by EU accession to the ECHR to ensure the conformity of legislation and policies with fundamental rights, an ‘internal’ scrutiny mechanism was needed at EU level to allow for a preliminary and autonomous judicial check by the CJEU. For this to happen, the existence of a bill of rights specific to the EU was necessary, and at the 1999 European Council in Cologne it was decided to convoke a Convention to draft a Charter of Fundamental Rights.

The Charter was solemnly proclaimed by Parliament, the Council and the Commission in Nice in 2000. After being amended, it was proclaimed again in 2007. However, only with the adoption of the Treaty of Lisbon on 1 December 2009 did the Charter of Fundamental Rights come into direct effect, as provided for by Article 6(1) TEU, thereby becoming a binding source of primary law.

The Charter, while based on the ECHR and other European and international instruments, covers rights and freedoms under six chapters:

1. Dignity,
2. Freedoms,
3. Equality,
4. Solidarity,
5. Citizens’ rights,
6. Justice.

The Charter covers, among other issues, disability, age and sexual orientation as prohibited grounds of discrimination, and enshrines access to documents, data protection and good administration among the fundamental rights it affirms.

While the scope of application of the Charter is very broad, as most of the rights it recognises are granted to ‘everyone’ regardless of nationality or status, Article 51 limits its application to the EU institutions and bodies and, when they act to implement EU law, to the Member States.

Article 7 TEU, the Commission rule of law framework and mechanism

The Treaty of Amsterdam led to the creation of a new sanction mechanism to ensure that fundamental rights, as well as other European principles and values such as democracy, the rule of law, equality and the protection of minorities are respected by the Member States beyond the legal limits posed by EU competence. This meant giving the EU the power to intervene in areas otherwise left to Member States, in situations of ‘serious and persistent breach’ of these values. A similar mechanism had been proposed by Parliament for the first time in its 1984 draft Treaty establishing the European Union. The Treaty of Nice added a preventive phase, in cases of ‘clear risk of a serious breach’ of EU values in a Member State. This procedure was aimed at ensuring that the protection of fundamental rights, as well as of democracy, the rule of law and of minorities’ rights, as included among the Copenhagen criteria for the accession of new Member States, remains effective after accession, and for all Member States in the same way.

Paragraph 1 of Article 7 TEU provides for a ‘preventive phase’, empowering one third of Member States, Parliament and the Commission to initiate a procedure whereby the Council can determine by a four-fifths majority the existence of a ‘clear risk of a serious breach’ in a Member State of the Article 2 TEU values, which include respect for human rights, human dignity, freedom and equality and the rights of persons belonging to minorities. Before proceeding to such a determination, a hearing of the Member State in question must take place and recommendations may be made to it, while Parliament must give its consent by a two-thirds majority of the votes cast and an absolute majority of its component members (Article 354(4) TFEU).

This preventive procedure was activated for the first time on 20 December 2017 by the Commission in relation to Poland, and on 12 September 2018 by Parliament in relation to Hungary, but remains blocked in Council, where several hearings took place but no recommendations - let alone determinations - were adopted. Parliament was furthermore denied the right to present its position at the Council hearings, including on Hungary, notwithstanding its role as initiator of the procedure. The Commission proposed on 6 May 2024 to close the Article 7(1) procedure against Poland.

Articles 7(2) and 7(3) TEU provide, in the case of the ‘existence of a serious and persistent breach’ of EU values, for a ‘sanctioning mechanism’ that can be triggered by the Commission or by one third of Member States, after the Member State in question has been invited to submit its observations. Parliament cannot trigger this mechanism. The European Council determines the existence of the breach by unanimity, after obtaining Parliament’s consent by the same majority as for the preventive mechanism. The Council can decide to suspend certain membership rights of the Member State in question, including voting rights in the Council, this time acting by qualified majority. The Council can decide to modify or revoke the sanctions, again by qualified majority. The Member State concerned does not take part in the votes in the Council or the European Council. The determination and adoption of sanctions remain difficult to achieve, due to the unanimity requirement, as demonstrated by the fact that the Governments of Hungary and Poland announced that they would veto any such decisions concerning the other Member State.

In order to fill the gap between the politically difficult activation of the Article 7 TEU procedures (used to address situations outside the remit of EU law) and infringement procedures with limited effect (used in specific situations falling within the scope of EU law), the Commission, in 2014, launched an EU framework to strengthen the rule of law. This framework was aimed at trying to ensure effective and coherent protection of the rule of law, as a prerequisite for ensuring respect for fundamental rights and democracy in situations of systemic threat to them. Intended to precede and complement Article 7 TEU, it provides for three stages: Commission assessment, i.e. a structured dialogue between the Commission and the Member State, followed, if need be, by a rule of law opinion; a Commission rule of law recommendation; and a follow-up by the Member State to the recommendation. This rule of law framework was applied to Poland in 2016 and was followed up, due to a lack of success, by the Commission decision to launch an Article 7 procedure on 20 December 2017.

In July 2019, the Commission made a further step forward in its communication entitled ‘Strengthening the rule of law within the Union: A blueprint for action’ and launched a rule of law mechanism, comprising an annual review cycle based on a rule of law report monitoring the situation in the Member States, which forms the basis of interinstitutional dialogue. The first such rule of law report was published in September 2020, accompanied by 27 country chapters, and covered:

• The justice system, notably its independence, quality and efficiency;
• The anti-corruption framework – legal and institutional set-up, prevention, repressive measures;
• Media pluralism, including the existence of regulatory bodies, transparency of ownership and governmental interference, protection of journalists; and
• Other institutional issues related to checks and balances, such as the legislative process, independent authorities, accessibility, judicial review, and civil society organisations.

The report substantially strengthens EU monitoring by encompassing, in comparison to the EU Justice Scoreboard and other monitoring and reporting instruments, not only civil but also criminal and administrative justice, addressing judicial independence, corruption, media pluralism, separation of powers and civil society space. A network of national contact points to gather information and ensure dialogue with Member States was set up, and dialogue was promoted with stakeholders, including Council of Europe bodies, the Organization for Security and Co-operation in Europe, the Organisation for Economic Co-operation and Development, judicial networks and non-governmental organisations.

The annual rule of law reports are part of the annual rule of law cycle. Since 2022, the annual rule of law reports have made recommendations to each Member State, and the implementation of the recommendations is then evaluated in the subsequent year’s report. For the first time, the 2024 report also included country chapters on four enlargement countries (Albania, Montenegro, North Macedonia, Serbia). Their inclusion will support these countries’ reform efforts to achieve irreversible progress on democracy and the rule of law ahead of accession, and to guarantee that high standards will continue after accession. In July 2025, the new Commission published its first rule of law report, the sixth report in the annual series. It confirmed the positive trajectory in many Member States with regard to the rule of law, noting important reforms that have been taken forward across the four key areas covered by the report.

Other instruments for the protection of EU values

The EU has other instruments at its disposal aimed at protecting EU values.

When proposing a new legislative initiative, the Commission addresses its compatibility with fundamental rights by means of an impact assessment, an aspect which is also subsequently examined by the Council and Parliament.

Furthermore, the Commission publishes an annual report on the application of the Charter, which is examined and debated by the Council, which adopts conclusions on it, and by Parliament, in the framework of its annual report on the situation of fundamental rights in the EU. In December 2020, the Commission launched a new strategy to strengthen the implementation of the Charter, including in relation to EU funds through the Charter-specific ‘enabling condition’ introduced in the 2021 Common Provisions Regulation. Initially, cohesion funds were withheld from Poland and Hungary because that enabling condition had not been fulfilled. On 13 December 2023, the Commission considered that Hungary had fulfilled the horizontal enabling conditions (that is, the general guiding principles by which EU funds are distributed based on the steps taken to implement the Charter effectively). This allowed Hungary to claim up to EUR 10.2 billion in funds which had been previously blocked. In February 2024, the Commission considered that Poland had also fulfilled its obligations, allowing it to request the release of up to EUR 76.5 billion in 2021-2027 cohesion funds.

Since 2014, the Council has also held an annual dialogue among all Member States within the Council to promote and safeguard the rule of law, focusing on a different subject each year. From the second half of 2020, the Council decided to focus on the examination of the situation of the rule of law in five Member States every six months, based on the Commission rule of law report.

In the context of the European Semester (the yearly exercise to coordinate EU economic, fiscal, employment and social policy), issues connected to EU values are monitored and can be the subject of country-specific recommendations. The areas concerned include justice systems (on the basis of the Justice Scoreboard), as well as disability, social rights and citizens’ rights (in relation to protection from organised crime and corruption).

Following their accession to the EU in 2007, Bulgaria and Romania were subject to the cooperation and verification mechanism, which is used as a transitional measure to facilitate progress in the fields of judicial reform and anti-corruption. This mechanism was officially closed on 15 September 2023 and was substituted by the rule of law mechanism.

Infringement proceedings are an important instrument to sanction violations of EU values in the EU, and the CJEU is developing its case-law on the matter. Infringements can be launched in cases of non-compliance of a national law with EU law and EU values in individual and specific cases, and financial penalties can be imposed by the CJEU for failure to comply with orders or judgments.

The EU Agency for Fundamental Rights (FRA), established in 2007 in Vienna, plays an important role in monitoring the situation of fundamental rights in the EU. The FRA is tasked with the collection, analysis, dissemination and evaluation of information and data related to fundamental rights. It also conducts research and scientific surveys, and publishes annual and thematic reports on fundamental rights.

The Commission is also strengthening equality and the protection of minorities – two of the pillars of Article 2 TEU – through specific strategies, proposals and action to promote gender equality and to combat violence against women and domestic violence, racism, hate speech, hate crime and antisemitism and to protect the rights of LGBTIQ+ people, Roma, persons with disabilities, and children, under the overarching concept of ‘A Union of Equality’. The Commission, supported by Parliament and 15 Member States, referred Hungary to the CJEU over its anti-LGBTIQ law (European Commission v Hungary, case C-769/22) on grounds of violating Article 2 TEU, among other provisions. It also proposed directives to establish common standards for equality bodies, to strengthen the application of the principle of equal treatment. Two directives were adopted on 7 May 2024: a directive on standards relating to equal treatment between women and men and a directive relating to discrimination on grounds covered by Article 19 TFEU.

After a blockage caused by the vetoes of the Governments of Hungary and Poland, an agreement was finally reached at the European Council of 10-11 December 2020 on the Rule of Law Conditionality Regulation. This regulation makes it possible to protect the EU budget where it is established that breaches of the principles of the rule of law in a Member State affect, or seriously risk affecting, the sound financial management of the EU budget or the protection of the financial interests of the EU in a sufficiently direct way. An action brought by the Hungarian and Polish Governments against the regulation was dismissed in a CJEU judgment in February 2022, which opened the way for the Commission and the Council to trigger the mechanism against Hungary, leading to the suspension of EUR 6.3 billion in cohesion policy programmes. On 16 December 2024, the Commission deemed that Hungary had not sufficiently addressed breaches of the principles of the rule of law, and the measures to protect the EU budget would therefore be maintained.

In 2023, the Commission discussed the implementation of the Recovery and Resilience Facility national plans with several Member State governments and it is monitoring whether they are achieving agreed milestones and targets, which are a prerequisite for the disbursement of the funds. The discussions aimed at addressing the challenges identified in the European Semester and the country-specific recommendations adopted by the Council in 2023. The country-specific recommendations, moreover, addressed the challenges identified in the rule of law reports and related recommendations issued by the Commission, as well as in the Article 7 procedures against Poland and Hungary. On 13 December 2023, the Commission considered that Hungary had not fully implemented the 27 ‘super milestones’, notably those on judicial independence, so it had not fully addressed the breaches it had committed regarding the principles of the rule of law, and EUR 21 billion in funds, made up of cohesion and RRF funding, remain locked for Hungary. On 6 May 2024, the Commission also proposed to close the Article 7(1) TEU procedure against Poland.

Role of the European Parliament

Parliament has always supported the strengthening of respect for and protection of fundamental rights in the EU. As early as 1977, it adopted, together with the Council and the Commission, a Joint Declaration on Fundamental Rights, in which the three institutions committed to ensuring respect for fundamental rights in the exercise of their powers. In 1979, Parliament adopted a resolution advocating that the EC accede to the ECHR.

The draft Treaty establishing the European Union, proposed by Parliament in 1984, specified that the Union must protect the dignity of the individual and recognise for everyone falling within its jurisdiction the fundamental rights and freedoms derived from the common principles of the national constitutions and the ECHR. It also envisaged accession of the Union to the ECHR. In its resolution of 12 April 1989, Parliament adopted the Declaration of Fundamental Rights and Freedoms.

Every year since 1993, Parliament has held a debate and adopted a resolution on the situation of fundamental rights in the EU, on the basis of a report produced by its Committee on Civil Liberties, Justice and Home Affairs. In addition, it has adopted a growing number of resolutions addressing specific issues concerning the protection of Article 2 TEU values in the Member States.

Parliament has always supported the idea that the EU should have its own bill of rights and has called for the Charter of Fundamental Rights to be binding. This was finally achieved in 2009 with the Lisbon Treaty.

More recently, Parliament has repeatedly expressed serious concerns about the gradual erosion of Article 2 TEU standards in some Member States. To address this problem, Parliament made several suggestions to strengthen the protection in the EU not only of fundamental rights, but also of democracy and the rule of law, and more widely all the EU values covered by Article 2 TEU, by proposing new mechanisms and procedures to fill the existing gaps. In various resolutions since 2012, Parliament has called for the creation of a ‘Copenhagen Commission’, as well as of a European fundamental rights policy cycle, an early warning mechanism, a freezing procedure and the strengthening of the FRA.

In 2016, Parliament consolidated its previous proposals in a landmark resolution on an EU mechanism on democracy, the rule of law and fundamental rights. In this resolution, Parliament requested that the Commission submit an interinstitutional agreement to establish that mechanism, based on a Union Pact with the Commission and the Council. The mechanism would include an annual policy cycle based on a report monitoring the respecting of EU values in the EU drafted by the Commission and an expert panel, followed by a parliamentary debate and accompanied by arrangements to address risks or breaches. The Commission took over many of Parliament’s suggestions in its 2019 communication launching a rule of law mechanism. They included the establishment of an interinstitutional cycle, with an annual report monitoring Member States on the rule of law and connected issues and issuing specific recommendations to them, but they did not include the recommendations that incorporated the whole of Article 2 TEU (that is, not only the rule of law, but also democracy, fundamental rights, equality and minorities). In addition, a committee of independent experts would be established, an interinstitutional agreement on the cycle concluded, and the publication of anti-corruption reports resumed. Other suggestions in Parliament’s 2016 resolution that were not taken over included a new draft agreement for EU accession to the ECHR, and for Treaty changes such as the elimination of Article 51 of the Charter of Fundamental Rights, its conversion into a Union Bill of Rights and the removal of the unanimity requirement for equality and non-discrimination.

In a 2020 resolution on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights, Parliament proposed the text for an interinstitutional agreement on reinforcing EU values, developing previous proposals and adding a possibility for urgent reports and the creation of an interinstitutional working group. In a 2021 resolution on the Commission’s rule of law report, Parliament also called on the Commission to broaden the annual report to cover all Article 2 TEU values and to include country-specific recommendations.

In 2018, Parliament adopted a resolution welcoming the Commission’s decision to activate Article 7(1) TEU in relation to Poland. Parliament also adopted a resolution on launching the Article 7(1) TEU procedure in relation to Hungary, submitting a reasoned proposal to the Council inviting it to determine whether there could be a clear risk of a serious breach of the Article 2 TEU values, and to address appropriate recommendations to Hungary in this regard[1].

In 2020, Parliament also adopted a resolution on Poland and in 2022 a resolution on Hungary, in both cases widening the scope of the concerns to be examined in the Article 7(1) TEU procedures. In a resolution on ongoing hearings under Article 7(1) TEU, it also called on the Commission to use all available tools, including the rule of law conditionality regulation, to address breaches of Article 2 TEU values by Hungary and Poland. On 29 February 2024, the Commission allowed Poland to access up to EUR 137 billion in EU funding, following the launch of an action plan to restore the rule of law with reforms to strengthen judicial independence. On 14 March 2024, Parliament filed a lawsuit against the Commission over its decision to release EUR 10.2 billion in frozen funds to Hungary, granted in exchange for the lifting of its veto on Ukraine. It adopted a resolution on Hungary’s Article 7(1) TEU hearings in the Council to strengthen the rule of law and its budgetary implications.

Following the murders of journalists Daphne Caruana Galizia in Malta in 2017 and Ján Kuciak and his fiancée in Slovakia in 2018, and in an effort to strengthen Parliament’s monitoring and action as regards Article 2 TEU values, the Committee on Civil Liberties, Justice and Home Affairs created a Monitoring Group on Democracy, Rule of Law and Fundamental Rights. The group is tasked with addressing threats to EU values that emerge across the EU and issuing proposals for action to the Committee on Civil Liberties, Justice and Home Affairs.

This fact sheet was prepared by the Policy Department for Justice, Civil Liberties and Institutional Affairs.

 

Alessandro ERMINI / Mariusz Maciejewski / Clemence Rogalski

11-2025