Hungary v Slovak Republic [Court of Justice of the European Union (Grand Chamber)]

• Jurisdiction: European Union
• Judge: Safjian,Skouris,Malenovský,Ilešič,Bot,Bonichot,LõHmus,Lenaerts,Borg Barthet,Kasel,Tizzano,Toader
• Date: 16 October 2012
• Docket Number: (Case C-364/10)
• Court: Court of Justice of the European Union

Court of Justice of the European Union (Grand Chamber)

(Skouris, President; Lenaerts, Vice-President; Tizzano (Rapporteur), Ilešič and Malenovský, Presidents of Chambers; Borg Barthet, LõHmus, Bonichot, Toader, Kasel and Safjian, Judges; Bot, Advocate General)

(Case C-364/10)

Hungary

and

Slovak Republic1

States — Head of State — Privileges and immunities — Status when visiting territory of another State — Obligations of the host State — Member States of the European Union — Citizenship of the European Union — Free movement of EU citizens — Whether applicable to Head of State — Head of State of one EU Member State barred from entering the territory of another EU Member State — Whether compatible with EU law

Relationship of international law and municipal law — Effect of international law in the law of the European Union — International law forming part of the EU legal order — International law regarding Heads of State — The law of the European Union

Summary: The facts: — An association based in Slovakia had invited the President of Hungary to attend a ceremony to be held on 21 August 2009 in the Slovak town of Komaárno at which a statue of Saint Stephen was to be inaugurated. Following several diplomatic exchanges between the foreign ministries of Hungary and the Slovak Republic, on 21 August 2009 the Ministry of Foreign Affairs of the Slovak Republic sent a note verbale to the Embassy of Hungary in which it stated that the President of Hungary was prohibited from entering the territory of the Slovak Republic. The President of Hungary then turned back and did not enter Slovak territory.

Article 21 of the Treaty on the Functioning of the European Union (‘TFEU’) laid down the principle that nationals of a Member State enjoyed freedom of movement within the EU. Article 5(1) of EU Directive 2004/382 provided that EUMember States should permit nationals of other EU Member

States to enter their territory on presentation of a valid identity card or passport. However, Article 27 of the Directive3 provided for exceptions to be made where necessary on grounds of public policy. The note verbale of 21 August 2009 referred to these provisions. Hungary brought proceedings against the Slovak Republic arguing that the Slovak Republic had violated European Union law when it prohibited the President of Hungary from entering its territory.

Opinion of the Advocate General

Held: — (1) The Court had jurisdiction to adjudicate upon Hungary's claim. The claim raised an important question of EU law, namely whether the law relating to free movement of EU citizens was applicable to the Head of State of an EU Member State travelling in his public capacity (paras. 47–9).

(2) Article 21 TFEU and Directive 2004/38 were not applicable to visits to a Member State by the Head of State of another Member State. The conduct of diplomatic relations between Member States was a matter for each Member State and not for the EU, although there was a duty not to behave in such a way as to lead to a complete rupture in diplomatic relations. Under international law a Head of State enjoyed a privileged status and, when visiting another State, was entitled to protection and special treatment. Such a visit could not be assimilated to the ordinary exercise of the right of free movement by private citizens (paras. 50–65).

Judgment of the Court of Justice

Held: — The action was dismissed.

(1) The Court had jurisdiction. Hungary's action required the Court to rule upon the scope of EU law and compliance therewith by a Member State (paras. 24–6).

(2) Citizenship of the EU was intended to be the fundamental status of nationals of the Member States. Since the President of Hungary was a Hungarian citizen, he unquestionably had the status of EU citizen. Citizenship of the EU carried with it the right of free movement within the EU, as that right was defined in EU law (paras. 40–3).

(3) EU law had to be interpreted in the light of the relevant rules of international law, since international law was part of the EU legal order and binding upon the institutions of the EU. Under international law, a Head of State enjoyed a particular status which entailed privileges and immunities. The presence upon its territory of a foreign Head of State entailed important obligations for the receiving State under international law. The specific character thus accorded to a Head of State under international law was capable of distinguishing that person from all other EU citizens, with the result that the access of the Head of State of a Member State to the territory of another Member State was not governed by the same conditions as those applicable to

other citizens. Accordingly, the fact that an EU citizen performed the duties of a Head of State justified the imposition of a limitation, based on international law, on the exercise of the right of free movement accorded to that person by Article 21 TFEU. Slovakia had not, therefore, been in breach of Article 21 TFEU in denying the President of Hungary access to its territory (paras. 44–52).

(4) The Slovak Republic had erred in referring, in its note verbale, to Directive 2004/38, as its right to bar the entry of the President of Hungary had not been derived from that instrument but from international law. The evidence did not, however, disclose the existence of an abusive practice within the meaning of EU law (paras. 56–61).

(5) Hungary's action had to be dismissed in its entirety. Hungary should bear the costs of both Parties (paras. 72–4).

The text of the judgment of the Court of Justice commences at p. 107. The following is the text of the Opinion of Advocate General Bot:

OPINION OF ADVOCATE GENERAL BOT1

I FACTUAL AND LEGAL BACKGROUND TO THE ACTION

1. This infringement action was brought by Hungary on 8 July 2010 under Article 259 TFEU. That Member State claims that the Court should:

• — find that the Slovak Republic failed to fulfil its obligations under Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC,2 and Article 21(1) TFEU in that, on 21 August 2009, relying on Directive 2004/38, but failing to respect its provisions, it did not allow the President of Hungary, Mr Sólyom, to enter its territory;

• — declare that the position of the Slovak Republic, which it still maintained at the time of bringing the action, namely, that it

  is entitled under Directive 2004/38 to prohibit the entry to the territory of the Slovak Republic of a representative of Hungary, such as the President of that Member State, thereby confirming that such an unlawful attitude may recur, conflicts with the law of the European Union, in particular Article 3(2) TEU and Article 21(1) TFEU;

• — declare that the Slovak Republic applied European Union (‘EU’) law wrongfully in that its authorities did not allow President Sólyom access to its territory; and

• — in the event that a specific provision of international law may limit the personal scope of Directive 2004/38, define the extent and scope of such derogations.

2. The facts underlying the dispute between Hungary and the Slovak Republic can be summarised as follows.

3. On the invitation of an association based in Slovakia, the President of Hungary, Mr Sólyom, had planned to go to the town of Komárno (Slovakia) on 21 August 2009 to take part in the ceremony inaugurating a statue of Saint Stephen of Hungary.

4. To understand the circumstances of this visit, it should be noted, in particular, that, first, 20 August is a national holiday in Hungary, commemorating Saint Stephen, the founder and first king of the Hungarian State. Secondly, 21 August is a sensitive date in Slovakia, since 21 August 1968 was the date on which the Warsaw Pact troops, which included Hungarian troops, invaded Czechoslovakia.

5. After several diplomatic exchanges between the embassies of the two Member States regarding President Sólyom's planned visit, the three highest representatives of the Slovak Republic, namely, the President of the Republic, Mr Gašparovič, the Prime Minister, Mr Fico, and the President of the Parliament, Mr Paška, adopted a joint declaration in which they indicated that President Sólyom's visit was considered inappropriate, having regard in particular to the fact that he had not expressed any desire to meet Slovak dignitaries and that the date of 21 August was particularly sensitive.

6. Following further diplomatic contact, President Sólyom stated that he wished the visit to go ahead.

7. By note verbale of 21 August 2009, the Ministry of Foreign Affairs of the Slovak Republic informed the Ambassador of Hungary in Bratislava (Slovakia) that the Slovak authorities had decided to refuse President Sólyom entry into the territory of the Slovak Republic on that date for security reasons, on the basis of Directive 2004/38 and of provisions of domestic law on the stay of foreign nationals and on the national police.

8. President Sólyom was informed of the terms of that note while en route to Slovakia; he acknowledged receipt at the border and refrained from entering Slovak territory.

9. By note of 24 August 2009, the Hungarian authorities argued, in particular, that Directive 2004/38 could not form a valid legal basis justifying the refusal of the Slovak Republic to allow President Sólyom to enter its territory. They also found that insufficient reasons were given for the decision to refuse access. For those reasons, they considered that the Slovak Republic had adopted that measure in breach of EU law.

10. At a meeting held on 10 September 2009 in Szécsény (Hungary) the Hungarian and Slovak Prime Ministers adopted a joint declaration maintaining their respective...