The European Commission applied to the Court of Justice of the European Union (CJEU) to issue a declaration that Hungary was in violation of Article 6 of Directive 2013/32/EU on common procedures for granting and withdrawing international protection (‘Procedures Directive’). This violation was alleged on the basis of a Hungarian law which required third-country nationals or stateless persons who wished to apply for international protection to apply from a Hungarian embassy in a third country. The CJEU issued a declaration that Hungary failed to fulfil its obligations under Article 6 of the Procedures Directive.
European Union law:
- Articles 3(1); 3(2); 6 and 9(1) of the Directive 2013/32/EU
- Articles 13, 17(2) and 19(1) of the Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) (‘Recast Reception Conditions Directive’)
- Article 18 of the Charter of Fundamental Rights of the European Union (‘Charter’)
Hungarian law:
- Articles 268, 269, 270, 271, 274, 275 of the Law No. LVIII of 2020 on the transitional rules relating to the end of the state of emergency and on the pandemic crisis
In October 2020, the Commission sent Hungary a formal letter concerning the compatibility of the national Law No. LVIII of 2020 on the transitional rules relating to the end of the state of emergency and on the pandemic crisis (‘2020 law’) with Article 6 of the Procedures Directive, read in light of Article 18 of the Charter.
In December 2020, Hungary insisted that the 2020 law was compatible with the Procedures Directive. In February 2021, the Commission issued a reasoned opinion where they called on Hungary to adopt the necessary measures to comply with EU law. Hungary further insisted that the legislation conformed to EU law and so the Commission sought a declaration from the CJEU that the Hungarian legislation violated Article 6 of the Procedures Directive.
The European Commission alleged that Hungary failed to fulfil its obligations under Article 6 of the Procedures Directive by imposing the condition that third-country nationals or stateless persons present in the territory of Hungary (including at the borders of Hungary) must have undergone a preliminary procedure at a Hungarian embassy in a third country to access the international protection procedure and make an application for international protection.
Firstly, the Commission noted that the 2020 law means that if third-country nationals present in Hungary or its borders express their intention to apply for international protection, that declaration is not regarded as the making of an application for international protection within the meaning of Article 6 of the Directive. On the contrary, those individuals are further required to leave Hungary to submit a declaration of intent in person at a Hungarian embassy in a third country. The Commission submitted that this is inconsistent with the rights of those applicants to remain in the Member State under Article 9 of the Directive. The national law is also inconsistent with the principle of non-refoulement.
Secondly, the Commission acknowledged that the COVID-19 pandemic required the adoption of measures to limit the spread of the virus. However, Member States could only take necessary and proportionate measures to protect public health. Such measures cannot have the effect of preventing access to the international protection procedure.
Thirdly, the national law cannot be justified on the basis of Article 72 of the Treaty on the Functioning of the European Union (TFEU). A Member State seeking to invoke the derogation set out in Article 72 TFEU must prove that such derogation is necessary for its responsibilities of maintaining public policy and safeguarding internal security. Since Hungary had not provided such evidence, the 2020 law cannot be justified by Article 72 TFEU.
Firstly, Hungary contended that it adopted the 2020 law to protect both the Hungarian and EU population. The respondent party also emphasised that the 2020 law allows certain categories of persons to make their application for international protection directly in Hungary. That is the case for persons who have been residents for a long time in Hungary, who clearly do not present any epidemiological risk.
Secondly, Hungary submitted that under international law every State has the right to authorise or refuse entry since no international law requires foreign nationals residing in a State to be automatically admitted to that State. In any case, Hungary stated that the 2020 law does not fall within the scope of the Procedures Directive.
Thirdly, Hungary added that during the pandemic, the epidemiological situation had greatly deteriorated, and the EU rules were incapable of providing adequate protection for EU citizens.
Fourthly, Hungary added that the 2020 law ensured territorial sovereignty as required by their constitutional law. Finally, Hungary said there was no risk of refoulement. This was because the declaration of intent could be made at the Hungarian Embassy in Serbia, and that Serbia was a contracting party to the UN Convention relating to the Status of Refugees.
The Court held that, where a third-country national or stateless person is: (1) a beneficiary of subsidiary protection and resides in Hungary, (2) a family member of a refugee or beneficiary of subsidiary protection and was in Hungary at the time when his or her application for international protection was lodged, or (3) the subject of a coercive measure or a measure or conviction restricting his or her individual freedom, he or she is not required to submit a declaration of intent at a Hungarian embassy unless he or she irregularly crossed Hungarian borders.
According to Article 6, any third-country national or stateless person has the right to make an application for international protection by expressing the wish to benefit from international protection to one of the authorities referred to in Article 6, without that expression being subject to any administrative formality. That right must be recognised, irrespective of whether that person is on the territory lawfully and of the claim’s prospects of success.
Moreover, as soon as a third-country national or stateless person makes an application for international protection, he or she becomes a person seeking international protection within the meaning of the Directive and must be allowed to remain in the territory of that Member State, in accordance with Article 9.
Articles 268 to 270 of the 2020 law applies to third-country nationals and stateless persons who are present in Hungary or at its borders and who wish to express their intention to receive international protection in that Member State. Thus, those persons fall fully within the scope of the Procedures Directive, as defined in Article 3(1) of the Directive.
Further, the effect of the 2020 law is to deprive third-country nationals or stateless persons staying in Hungary or presenting themselves at Hungary’s borders (apart from those referred to in Article 271(1)), without having undergone the prior procedure imposed by that act, of the effective enjoyment of their right to seek asylum from that Member State, as guaranteed by Article 18 of the Charter.
Regarding the pandemic, Article 6 of the Procedures Directive does not preclude Member States from making an application for international protection subject to special arrangements to limit the spread of a contagious disease on their territory, provided that those detailed rules are appropriate and not disproportionate for securing such an objective.
Finally, the Court held that Hungary merely invoked, in a general manner, the risk of threats to public policy and internal security in order to justify the compatibility of the Act with EU law, without demonstrating that it was necessary for it to derogate specifically from the requirements arising from Article 6 of the Procedures Directive in view of the situation prevailing in its territory on the expiry of the period laid down in the reasoned opinion.
The Court (Fourth Chamber) issued a declaration that Hungary failed to fulfil its obligations under Article 6 of the Procedures Directive. The Court also ordered Hungary to bear its own costs and to pay those incurred by the European Commission.
- Commission v Hungary (Reception of applicants for international protection), 17 December 2020, C‑808/18, EU:C:2020:1029.
- Commission v Hungary (Criminalisation of assistance to asylum seekers), 16 November 2021, C‑821/19, EU:C:2021:930.
- Agenzia delle dogane e dei monopoli and Ministero dell’Economia e delle Finanze, 24 February 2022, C‑452/20, EU:C:2022:111.
- Valstybės sienos apsaugos tarnyba and Others, 30 June 2022, C‑72/22 PPU, EU:C:2022:505, paragraph 70.