25) On 11 December 2015, the Commission sent Hungary a letter of formal notice concerning that Member State’s infringement of Article 46(1), (3), (5) and (6) of Directive 2013/32, construed in the light of Article 47 of the Charter of fundamental rights and freedoms of the European Union (the ‘Charter’), and Article 3(8) of Directive 2010/64/EU. ( 6 ) In that letter, the Commission expressed its concerns on: the effects of legal remedies in border procedures; the fact that appeals brought against unfavourable asylum decisions do not have automatic suspensory effect; the guarantee of a personal interview in the context of the judicial review of decisions rejecting applications as inadmissible and decisions taken at end of an accelerated procedure; the independent procedural jurisdiction of assistant judges in judicial review procedures; and, lastly, non-compliance with EU legal rules on the right to interpretation and translation in criminal proceedings.

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28) On 18 March 2017, the Commission sent a supplementary letter of formal notice to Hungary complaining that it 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.

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30) In consequence, on 8 December 2017, the Commission sent Hungary a reasoned opinion, notified to it on the same day, in which it declared that Hungary:

• by limiting, in appeals against decisions 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,
• by failing to transpose Article 46(5) of Directive 2013/32 into national law and by adopting provisions which derogate from the general rule of automatic suspensory effect in situations not covered by Article 46(6) thereof,
• by moving third-country nationals staying illegally in Hungary to the other side of the border fence 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;
• by requiring asylum applications to be lodged in person with the competent authority, and exclusively in the transit zone,
• by ordering that a procedure be applied to all asylum applicants (except for children under the age of 14 years) resulting in the compulsory detention of those asylum applicants for the entire duration of the asylum procedure in the facilities of a transit zone, which, if left, lead only to Serbia, without that detention being subject to appropriate safeguards,
• by shortening, from eight days to three, the deadline for bringing applications for review of first-tier decisions refusing asylum,
• 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, all read in conjunction with Articles 6, 18 and 47 of the Charter.

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41) The Commission notes that it follows from Articles 3 and 6 of Directive 2013/32 that Member States are required to ensure that all persons seeking international protection are able to lodge an application in their territory and, after arriving there, are afforded access to the procedure for the grant of such protection. The obligation to register applications for international protection no later than three working days after they were made, enshrined in Article 6 of that directive, also refers to applications lodged at the border of a Member State. Moreover, the very effectiveness of the obligation to grant international protection, as provided for in Article 18 of the Charter, would be undermined if Member States were able to refuse to register applications made at their borders.

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55) As regards the second consideration, it is true that Directive 2013/32 does not set a time limit within which Member States are required to record the making of such an application. However, this does not mean that Member States may, at their discretion, subject potential applicants to an unreasonable wait before they are able to make their application. Such an interpretation would render meaningless the right of those applicants to access the procedure for granting international protection, which in turn is intended to give effect to the right to asylum enshrined in Article 18 of the Charter. I therefore share the Commission’s view that the obligation on Member States to ensure effective access to that procedure requires them to establish a reception mechanism so that persons wishing to obtain international protection can effectively make an application for that purpose.

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65) I see no relevance in the argument that the application of that directive to the present case would have the effect of conferring on the persons concerned an individual right to choose their country of asylum (‘right to asylum shopping’), which does not follow from either Article 18 of the Charter or the United Nations Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951, since the obligation on the host State to ensure effective access to the procedure for granting international protection disregards the third country through which those persons arrived in the territory of that State or at its borders. Moreover, I consider that the concepts of ‘first country of asylum’, ‘safe country of origin’ and ‘safe third country’ set out in Directive 2013/32 already allow Member States to prevent asylum shopping without jeopardising access to the procedure in question.

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129) When invited to state their views on the relevance of that judgment at the hearing, the parties took opposing positions. While the Commission maintained that the conclusion reached by the European Court of Human Rights could not be transposed to the present case on account of a number of significant factual and legal differences, Hungary asserted that that conclusion, which did apply to the circumstances of the case, was such as to support its argument that the situation of applicants for international protection does not fall within the concept of ‘detention’ as laid down in Article 2(h) of Directive 2013/33. Thus, that Member State appears to take the view that, if the placing of those applicants in one of the transit zones is not a deprivation of liberty for the purpose of Article 5 of the ECHR, it goes without saying that it cannot be classified as detention either, since the concept of detention presupposes the existence of a deprivation of liberty in terms of Article 6 of the Charter.

130) In my Opinion in the Joined Cases FMS and Others, ( 40 ) which also concerned whether placing a person in one of the transit zones at the Serbian-Hungarian border amounted to detention within the meaning of Directive 2013/33, I explained that, while it is true that Article 5 of the ECHR corresponds to Article 6 of the Charter, and that Article 52(3) of the Charter requires that the rights enshrined therein, which correspond to the rights guaranteed by the ECHR, be interpreted as having the same meaning and the same scope as those laid down in the ECHR, the fact remains that the Court of Justice of the European Union has held on numerous occasions that the consistency that provision pursues cannot adversely affect the autonomy of EU law and of the Court itself, ( 41 ) since the ECHR does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law. ( 42 ) I thus invited the Court to leave aside the case-law of the European Court of Human Rights and to conduct its examination in the light of Article 6 of the Charter, considered autonomously. ( 43 ) Since the latter article must be deemed, in the light of recital 35 of Directive 2013/33, ( 44 ) to have been incorporated in the definition of ‘detention’ in Article 2(h) thereof, I concluded that the existence of detention must be determined solely by examining the conditions set out in that definition, whereby ‘confinement of an applicant by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement’ is to be regarded as detention.

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