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CJEU Case C-808/18 / Judgment

European Commission v Hungary
Policy area
Irregular migration and return
Deciding body type
Court of Justice of the European Union
Deciding body
Grand Chamber
Type
Decision
Decision date
17/12/2020
ECLI (European case law identifier)
ECLI:EU:C:2020:1029

Europos Sąjungos pagrindinių teisių chartija

Title II: Freedoms

Article 18 - Right to asylum

VIEW FULL CASE
  • CJEU Case C-808/18 / Judgment

    Key facts of the case:

    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.

    Outcome of the case:

    On those grounds, the Court (Grand Chamber) hereby:

    1. Declares that Hungary has failed to fulfil its obligations under Article 5, Article 6(1), 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, under Article 6, Article 24(3), Article 43 and Article 46(5) 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, and under 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:

    – in providing that applications for international protection from third-country nationals or stateless persons who, arriving from Serbia, wish to access, in its territory, the international protection procedure, may be made only in the transit zones of Röszke (Hungary) and Tompa (Hungary), while adopting a consistent and generalised administrative practice drastically limiting the number of applicants authorised to enter those transit zones daily;

    – in establishing a system of systematic detention of applicants for international protection in the transit zones of Röszke and Tompa, without observing the guarantees provided for in Article 24(3) and Article 43 of Directive 2013/32 and Articles 8, 9 and 11 of Directive 2013/33;

    – in allowing the removal of all third-country nationals staying illegally in its territory, with the exception of those of them who are suspected of having committed a criminal offence, 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 making the exercise by applicants for international protection who fall within the scope of Article 46(5) of Directive 2013/32 of their right to remain in its territory subject to conditions contrary to EU law;

    2. Dismisses the action as to the remainder;

    3. Orders Hungary to bear its own costs and to pay four fifths of the costs of the European Commission;

    4. Orders the European Commission to bear one fifth of its costs.

  • Paragraphs referring to EU Charter

    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.

    ...

    63) On 18 May 2017, the Commission therefore sent Hungary a supplementary letter of formal notice by which it alleged that that Member State had not complied with its obligations under Article 5, Article 6(1), Article 12(1) and Article 13(1) of Directive 2008/115, Articles 3, 6 and 7, Article 24(3), Article 31(8), Articles 33, 38, 43 and Article 46(1), (3), (5) and (6) of Directive 2013/32, Articles 2, 8, 9, 11 and Article 17(2) of Directive 2013/33 read in conjunction with Article 2(g) and Article 17(3) and (4) thereof, and, lastly, Articles 6, 18 and 47 of the Charter.

    ...

    65) On 8 December 2017, the Commission sent Hungary a reasoned opinion, which was notified to it on the same day, in which it declared that that Member State had failed to fulfil its obligations under Article 5, Article 6(1), Article 12(1) and Article 13(1) of Directive 2008/115, Articles 3 and 6, Article 24(3), Article 43 and Article 46(3), (5) and (6) of Directive 2013/32, and Article 2(h) and Articles 8, 9 and 11 of Directive 2013/33, read in conjunction with Articles 6, 18 and 47 of the Charter:

    • in limiting, in appeal proceedings against a decision rejecting an application for international protection, the examination referred to in Article 46(3) of Directive 2013/32 to the facts and points of law considered when the decision was adopted;
    • 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 the ‘automatic suspensory effect’ of appeals by applicants for international protection in situations not covered by Article 46(6) of that directive;
    • in forcibly moving, beyond 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 requiring that asylum applications be lodged with the competent authority in person, and exclusively in the transit zone;
    • 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 a transit zone which they may only leave in the direction of Serbia, and in not coupling that detention with the appropriate safeguards;
    • in reducing, from eight days to three, the deadline for applying for review of first-tier decisions rejecting an asylum application.

    ...

    102) The right to make such an application thus makes the effective observance of the applicant’s rights conditional on that application being registered and being able to be lodged and examined within the periods prescribed by Directive 2013/32 including, ultimately, the effectiveness of the right to asylum, as guaranteed by Article 18 of the Charter.