The European Commission initiated enforcement proceedings against Hungary due to alleged non-compliance with the CJEU’s 2020 Commission v Hungary judgment. The Court had to rule on whether the case was admissible, whether Hungary had violated Directive 2008/115/EC and Directive 2013/32/EU and, if so, what penalty was appropriate. The CJEU found Hungary in violation of its obligations under Article 260(1) TFEU.
- Articles 5, 6(1), 12(1) and 13(1) of Directive 2008/115/EC on common standards and procedures in Member states for returning illegally staying third-country nationals (‘Returns Directive’)
- Articles 6, 24(3), 43 and 46(5) and (6) of Directive 2013/32/EU on common procedures for granting and withdrawing international protection (‘Procedures Directive’)
- Hungarian law:
- Paragraph 5(1) of Law No LXXX of 2007 on the right to asylum
- Paragraph 5 of the Law No LXXXIX on State Borders
This case concerns enforcement proceedings initiated by the Commission due to Hungary’s alleged non-compliance with a 2020 CJEU judgement (C-808/18). In 2020, the CJEU ruled that Hungary’s asylum policy violated provisions of the Returns Directive, as well as the Procedures Directive. This ruling was based on four grounds.
Firstly, the Court ruled that there was ineffective access to the international protection procedure contrary to Article 6 of the Procedures Directive. Hungarian legislation provided that third country nationals or stateless persons arriving from Serbia who wished to access the international protection procedure could only apply from the transit zones of Röszke and Tompa. However, the Hungarian authorities’ administrative practices also drastically limited the number of applicants authorised to enter those transit zones daily.
Secondly, the Court in 2020 found that Hungary systematically detained applicants for international protection in the transit zones of Röszke and Tompa. This was done without observing the guarantees provided for in Articles 24(3) and 43 of the Procedures Directive and Articles 8, 9 and 11 of Directive 2013/33/EU (Recast Reception Conditions Directive).
Thirdly, Hungary allowed for the removal of all third-country nationals staying unlawfully in its territory, with the exception of those suspected of having committed a criminal offence. This was also done without observing the procedures and safeguards in Articles 5, 6(1), 12(1) and 13(1) of the Returns Directive.
The final ground for violation was that the right to remain in the territory of Hungary for applicants of international protection was made subject to conditions contrary to EU law.
Regarding the first ground, the Commission argued that Hungary must take measures to ensure that third-country nationals and stateless persons can effectively exercise their right to make an application for international protection in its territory. The current issue is that Hungarian law on the right to asylum provides that in a crisis situation caused by mass immigration, applications for international protection can only be lodged in transit zones. However, since the zones have been closed, the Commission alleges that it is impossible to make such applications in Hungary.
Additionally, the Commission submitted that regarding the Hungarian 2020 Law, this law cannot be considered a measure of compliance with the 2020 judgment since the measure was adopted before the judgment was delivered. Therefore, the fact that this law was previously subject to infringement proceedings – due to the complexity of Hungarian law - does not impact Hungary’s right to defence.
The Commission’s complaint does not include the second ground concerning detention as the Hungarian government closed the transit zones of Röszke and Tampa.
Regarding the third ground, the Commission challenged Article 5 of the Hungarian Law on State Borders. This legislation provides (1) that a 60-metre strip of territory from the line of the external border can be used to carry out tasks relating to border surveillance and migration policing; (2) the police may apprehend foreign nationals staying unlawfully in Hungarian territory within an 8km strip from the line of the external border and escort them away; (3) in a mass migration crisis, the police are empowered to apprehend nationals staying unlawfully in Hungarian territory and escort them away unless they are suspected of having committed an offence.
The Commission contends that since this provision has not been amended or repealed, Hungarian legislation has not ended the unlawful removal of third country nationals.
Fourthly, the Commission submitted that Hungary has not amended Article 5(1)(a) of the Law on the Right to Asylum which applies in a situation other than a crisis situation caused by mass immigration. The Commission argued that the provision recognises the applicant’s right to stay but makes this right subject to additional conditions which are not specifically laid out. The Commission submitted that the conditions remain unclear, contrary to the 2020 judgment, and that there is still inadequate transposition of EU law into Hungarian law.
The Commission argued for a minimum lump sum of €1,044,000 and a penalty payment of €16,393 per day from the date of judgment until the date of compliance. First, the Commission argued that the EU rules which were subject to the infringements were of particular importance. For example, Article 6 and 46 of the Procedures Directive were essential to ensure the effectiveness of rights guaranteed by the Convention relating to the Status of Refugees. Secondly, there are aggravating circumstances i.e. Hungary did not cooperate with the Commission during the pre-litigation procedure and Hungary has repeatedly infringed EU migration and asylum law.
Hungary argued that the action concerning the first ground was inadmissible. It submitted that all the findings made in the 2020 Commission v Hungary judgment relating to the transit zones were “devoid of purpose as a result of the closure of those transit zones”. Hungary also submitted that since the 2020 law was already subject to proceedings, the Commission could not initiate a parallel procedure concerning the same alleged infringement.
Regarding the removal of third country nationals, Hungary argued that the maintenance of Article 5 of the Hungarian Law on State Borders was justified by the increasing migratory pressure on the Western Balkans migration route and the large number of refugees from Ukraine.
The Hungarian government submitted that Hungarian legislation did not make the right to remain in its territory subject to conditions (contrary to the decision of the CJEU in the 2020 Commission v Hungary judgment). As such, there was no need to amend the legislation.
Finally, it argued that the Commission erred in its submissions on payments and penalties, citing an alleged failure by the Commission to consider important factors, such as the closure of transit zones and the effect of increasing pressure from irregular migration, including Ukrainian migrants due to conflict.
The Court considered the case admissible for two reasons. Firstly, Hungary’s right to defence is not in issue. The 2023 Commission v Hungary case gave rise to a judgment which has become final. Secondly, contrary to Hungary’s submission, the Commission’s application did set out the content of the Hungarian legal provisions in sufficient detail to enable the Court to come to a decision.
On the first ground, the Court held that despite the closure of the transit zones, Hungary has not taken the measures necessary to comply with the 2020 judgment and that there is an infringement of fundamental provisions, including Article 6 of the Procedures Directive. This “systematically prevents any access to the international protection procedure, making it impossible for the Member State concerned to apply that policy, as established in Article 78 TFEU, in its entirety”.
Regarding Hungary’s attempt to justify the national Law on State Borders due to migratory pressure, the Court stated that a Member State cannot plead “practical, administrative or financial difficulties or difficulties of a domestic nature to justify failure to observe obligations arising under EU law” (citing Commission v Slovakia (Right of termination without fees)).
Regarding the right to remain, the Court held that Hungary had not identified a provision within the national Law on the Right to Asylum which precisely provides the conditions to which the right to remain is subject. Secondly, the right to remain was also subject to other conditions within national law which were open to various interpretations. The Court concluded that national legislation must be amended in order for Hungary to comply with the 2020 Commission v Hungary judgment.
The CJEU ordered Hungary to pay a lump sum of €200,000,000 as “the deliberate evasion by a Member State of the application of a common policy as a whole constitutes an unprecedented and exceptionally serious infringement of EU law, which represents a significant threat to the unity of EU law and to the principle of equality of the Member States”.
Additionally, the Court held that Articles 5, 6, 12 and 13 of the Return Directive established fundamental guarantees pertaining to removal and expulsion. Yet by allowing the removal of all third-country nationals staying unlawfully on its territory with few exceptions, Hungary failed to have regard to these guarantees.
Furthermore, this deliberate conduct undermines the principle of solidarity and fair sharing of responsibility, which is at the heart of the EU legal order.
Regarding the penalty payment, the Court noted that they must consider “the seriousness of the infringements, their duration and the capacity of the Member State in question to pay”. In light of these considerations, the Court imposed a penalty payment of, in total, €1,000,000 a day from the date of delivery of the judgment until the date of compliance.
The CJEU found Hungary in violation of its obligations under Article 260(1) TFEU. Hungary was ordered to pay a lump sum of €200,000,000 and a penalty payment of €1,000,000 a day from the date of delivery of the judgement until the date of compliance.
- Commission v Hungary (Reception of applicants for international protection), C-808/18
- Commission v Denmark (Maximum parking time), C-167/22
- Commission v Romania (Closure of landfill sites), C-109/22
- YP and Others (Lifting of a judge’s immunity and his or her suspension from duties), C-615/20 and C-671/20
- Commission v Germany, C-95/12
- Commission v Slovakia (Right of termination without fees), C-540/21
- Commission v Spain, C-151/12
- Commission v Greece (Recovery of State aid), C-51/20
- Commission v Sweden, C-270/11
- Commission v Italy, C-196/13
- Commission v Poland, Hungary and Czech Republic (Temporary mechanism for the relocation of applicants for international protection), C-715/17, C-718/17 and C-719/17
- Hungary v Parliament and Council, C-156/21
- Commission v UK, C-128/78
- Commission v Hungary (Criminalisation of assistance to asylum seekers), C-821/19
- Commission v Poland (Independence and private life of judges), C-204/21
- Commission v Ireland (Derrybrien wind farm), C-261/18