European Commission v Hungary.

JurisdictionEuropean Union
CourtCourt of Justice (European Union)
ECLIECLI:EU:C:2020:1029
Docket NumberC-808/18
Celex Number62018CJ0808
Date17 December 2020

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

17 December 2020 (*)


Table of contents


Legal context

European Union law

Directive 2008/115

Directive 2013/32

Directive 2013/33

Hungarian law

The Law on the right to asylum

The Law on State borders

The Code of Administrative Procedure

Government Decree 301/2007

Pre-litigation procedure

The action

Preliminary observations

The first complaint, relating to access to the international protection procedure

Arguments of the parties

Findings of the Court

The second and third complaints, relating to the detention of applicants for international protection

Arguments of the parties

– The second complaint

– The third complaint

Findings of the Court

– Existence of detention in the transit zones of Röszke and Tompa

– Compatibility of detention in the transit zones of Röszke and Tompa with the requirements laid down in Directives 2013/32 and 2013/33

– Article 72 TFEU

The fourth complaint, relating to the removal of illegally staying third-country nationals

Arguments of the parties

Findings of the Court

The fifth complaint, relating to the right to remain in the territory of the Member State concerned

Arguments of the parties

Findings of the Court

– The first part of the fifth complaint, relating to Article 46(5) of Directive 2013/32

– The second part of the fifth complaint, relating to Article 46(6) of Directive 2013/32

– The third part of the fifth complaint, relating to Article 46(6)(a) and (b) of Directive 2013/32

Costs


(Failure of a Member State to fulfil obligations – Area of freedom, security and justice – Policies on border checks, asylum and immigration – Directives 2008/115/EC, 2013/32/EU and 2013/33/EU – Procedure for granting international protection – Effective access – Border procedure – Procedural safeguards – Compulsory placement in transit zones – Detention – Return of illegally staying third-country nationals – Appeals brought against administrative decisions rejecting the application for international protection – Right to remain in the territory)

In Case C‑808/18,

ACTION for failure to fulfil obligations under Article 258 TFEU, brought on 21 December 2018,

European Commission, represented by M. Condou-Durande and by A. Tokár and J. Tomkin, acting as Agents,

applicant,

v

Hungary, represented by M.Z. Fehér and by M.M. Tátrai, acting as Agents,

defendant,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.‑C. Bonichot, A. Arabadjiev, E. Regan, M. Ilešič and N. Wahl, Presidents of Chambers, E. Juhász, D. Šváby, S. Rodin, F. Biltgen, K. Jürimäe, C. Lycourgos (Rapporteur), P.G. Xuereb and I. Jarukaitis, Judges,

Advocate General: P. Pikamäe,

Registrar: R. Șereș, Administrator,

having regard to the written procedure and further to the hearing on 10 February 2020,

after hearing the Opinion of the Advocate General at the sitting on 25 June 2020,

gives the following

Judgment

1 By its application, the European Commission requests the Court to find that Hungary has failed to fulfil its obligations under Articles 3 and 6, Article 24(3), Article 43 and Article 46(5) and (6) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60), Article 2(h) and Articles 8, 9 and 11 of 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 (OJ 2013 L 180, p. 96), and Article 5, Article 6(1) and Article 12(1) and Article 13(1) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98), read in combination with Articles 6, 18 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’):

– in requiring that asylum applications be lodged in person with the competent authority, and exclusively in transit zones, which it allows only a small number of persons to enter;

– in applying a special procedure as a general rule, during which the safeguards laid down in Directive 2013/32 are not observed;

– in requiring that a procedure be applied to all asylum applicants, with the exception of unaccompanied minors under 14 years of age, the result of which is that they must remain in detention throughout the duration of the asylum procedure in the facilities of transit zones which they may only leave in the direction of Serbia, and in not coupling that detention with the safeguards laid down in Directive 2013/33;

– in moving, to the other side of the border fence, third-country nationals staying illegally in Hungarian territory, without observing the procedures and safeguards laid down in Article 5, Article 6(1), Article 12(1) and Article 13(1) of Directive 2008/115;

– in failing to transpose, into its national law, Article 46(5) of Directive 2013/32 and in adopting provisions which derogate from the general rule of automatic suspensory effect of appeals by applicants for international protection in situations not covered by Article 46(6) of that directive.

Legal context

European Union law

Directive 2008/115

2 Article 2 of Directive 2008/115 provides:

‘1. This Directive applies to third-country nationals staying illegally on the territory of a Member State.

2. Member States may decide not to apply this Directive to third-country nationals who:

(a) are subject to a refusal of entry in accordance with Article 13 of [Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, p. 1)] or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State;

…’

3 According to Article 3 of that directive:

‘For the purpose of this Directive the following definitions shall apply:

2. “illegal stay” means the presence on the territory of a Member State, of a third-country national who does not fulfil, or no longer fulfils the conditions of entry as set out in Article 5 of the Schengen Borders Code or other conditions for entry, stay or residence in that Member State;

…’

4 Article 5 of that directive provides:

‘When implementing this Directive, Member States shall take due account of:

(a) the best interests of the child;

(b) family life;

(c) the state of health of the third-country national concerned,

and respect the principle of non-refoulement.’

5 Article 6(1) and (2) of the same directive provides:

‘1. Member States shall issue a return decision to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5.

2. Third-country nationals staying illegally on the territory of a Member State and holding a valid residence permit or other authorisation offering a right to stay issued by another Member State shall be required to go to the territory of that other Member State immediately. In the event of non-compliance by the third-country national concerned with this requirement, or where the third-country national’s immediate departure is required for reasons of public order or national security, paragraph 1 shall apply.’

6 Article 12(1) of Directive 2008/115 states:

‘Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies.

The information on reasons in fact may be limited where national law allows for the right to information to be restricted, in particular in order to safeguard national security, defence, public security and for the prevention, investigation, detection and prosecution of criminal offences.’

7 According to Article 13(1) of that directive:

‘The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence.’

8 According to Article 18 of that directive:

‘1. In situations where an exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden on the capacity of the detention facilities of a Member State or on its administrative or judicial staff, such a Member State may, as long as the exceptional situation persists, decide to allow for periods for judicial review longer than those provided for under the third subparagraph of Article 15(2) and to take urgent measures in respect of the conditions of detention derogating from those set out in Articles 16(1) and 17(2).

2. When resorting to such exceptional measures, the Member State concerned shall inform the Commission. It shall also inform the Commission as soon as the reasons for applying these exceptional measures have ceased to exist.

3. Nothing in this Article shall be interpreted as allowing Member States to derogate from their general obligation to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under this Directive.’

Directive 2013/32

9 Recital 29 of Directive 2013/32 is worded as follows:

‘Certain applicants may be in need of special procedural guarantees due, inter alia, to their age, gender, sexual orientation, gender identity, disability, serious illness, mental disorders or as a consequence of torture, rape or other serious forms of psychological, physical or sexual violence. Member States should endeavour to identify...

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23 practice notes
  • European Commission v Hungary.
    • European Union
    • Court of Justice (European Union)
    • June 22, 2023
    ...interna vigente in tale data [sentenza del 17 dicembre 2020, Commissione/Ungheria (Accoglienza dei richiedenti protezione internazionale), C‑808/18, EU:C:2020:1029, punto 68 e giurisprudenza ivi 41 Ne consegue che, nell’ambito dell’esame della compatibilità della legge del 2020 con le dispo......
  • BU v Bundesrepublik Deutschland.
    • European Union
    • Court of Justice (European Union)
    • December 1, 2022
    ...41 to 49 and the case-law cited, and of 17 December 2020, Commission v Hungary (Reception of applicants for international protection), C‑808/18, EU:C:2020:1029, paragraphs 204 to 207 and 251), implies only that that decision is in the form of graphic signs with meaning, irrespective of whet......
  • M.A. contre Valstybės sienos apsaugos tarnyba.
    • European Union
    • Court of Justice (European Union)
    • June 30, 2022
    ...la «Carta») [v., in tal senso, sentenza del 17 dicembre 2020, Commissione/Ungheria (Accoglienza dei richiedenti protezione internazionale), C‑808/18, EU:C:2020:1029, punto 102]. 62 Pertanto, sebbene la presentazione e l’inoltro di una domanda di protezione internazionale costituiscano fasi ......
  • UN v Subdelegación del Gobierno en Pontevedra.
    • European Union
    • Court of Justice (European Union)
    • March 3, 2022
    ...last resort (see, to that effect, judgment of 17 December 2020, Commission v Hungary (Reception of applicants for international protection), C‑808/18, EU:C:2020:1029, paragraph 51 Although it follows from the definition of the concept of ‘voluntary departure’ in Article 3(8) of Directive 20......
  • Request a trial to view additional results
23 cases
  • European Commission v Hungary.
    • European Union
    • Court of Justice (European Union)
    • June 22, 2023
    ...interna vigente in tale data [sentenza del 17 dicembre 2020, Commissione/Ungheria (Accoglienza dei richiedenti protezione internazionale), C‑808/18, EU:C:2020:1029, punto 68 e giurisprudenza ivi 41 Ne consegue che, nell’ambito dell’esame della compatibilità della legge del 2020 con le dispo......
  • BU v Bundesrepublik Deutschland.
    • European Union
    • Court of Justice (European Union)
    • December 1, 2022
    ...41 to 49 and the case-law cited, and of 17 December 2020, Commission v Hungary (Reception of applicants for international protection), C‑808/18, EU:C:2020:1029, paragraphs 204 to 207 and 251), implies only that that decision is in the form of graphic signs with meaning, irrespective of whet......
  • M.A. contre Valstybės sienos apsaugos tarnyba.
    • European Union
    • Court of Justice (European Union)
    • June 30, 2022
    ...la «Carta») [v., in tal senso, sentenza del 17 dicembre 2020, Commissione/Ungheria (Accoglienza dei richiedenti protezione internazionale), C‑808/18, EU:C:2020:1029, punto 102]. 62 Pertanto, sebbene la presentazione e l’inoltro di una domanda di protezione internazionale costituiscano fasi ......
  • UN v Subdelegación del Gobierno en Pontevedra.
    • European Union
    • Court of Justice (European Union)
    • March 3, 2022
    ...last resort (see, to that effect, judgment of 17 December 2020, Commission v Hungary (Reception of applicants for international protection), C‑808/18, EU:C:2020:1029, paragraph 51 Although it follows from the definition of the concept of ‘voluntary departure’ in Article 3(8) of Directive 20......
  • Request a trial to view additional results

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