Case C‑123/22

European Commission

v

Hungary

Judgment of the Court (Fourth Chamber) of 13 June 2024

(Failure of a Member State to fulfil obligations – Area of freedom, security and justice – Directives 2008/115/EC, 2013/32/EU and 2013/33/EU – Procedure for granting international protection – Effective access – Border procedure – Procedural safeguards – Return of illegally staying third-country nationals – Appeals brought against administrative decisions rejecting an application for international protection – Right to remain in the territory – Judgment of the Court establishing a failure to fulfil obligations – Non-compliance – Article 260(2) TFEU – Financial penalties – Proportionality and dissuasiveness – Lump sum – Periodic penalty payment)

1. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Period for compliance – Reference date for assessing whether there has been a failure to fulfil obligations – Date of expiry of the period prescribed in the letter of formal notice

   (Art. 260(2) TFEU)

   (see paragraph 56)

2. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Effects – Obligations of the Member State at fault – Compliance with the judgment in full – Obligations of the authorities participating in the exercise of legislative power – Amendment of provisions of national law so as to make them conform with the requirements of EU law

   (Art. 260(1) TFEU)

   (see paragraph 57)

3. Member States – Obligations – Failure to fulfil obligations – National system pleaded as justification – Practical, administrative or financial difficulties pleaded as justification – Not permissible

   (Art. 4(3) TEU; Art. 260(2) TFEU)

   (see paragraphs 74, 121, 122)

4. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Effects – Obligations of the Member State at fault – Compliance with the judgment in full – Obligation to amend provisions of national law so as to make them conform with the requirements of EU law – Mere change in the administrative practice – Failure to fulfil obligations

   (Art. 260(1) TFEU)

   (see paragraphs 80, 81)

5. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Breach of the obligation to comply with the judgment – Financial penalties – Purpose – Prevention of the recurrence of similar infringements

   (Art. 260(2) TFEU)

   (see paragraphs 96, 97)

6. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Breach of the obligation to comply with the judgment – Financial penalties – Imposition of a lump sum payment – Discretion of the Court – Criteria for assessment – Effective prevention of future repetition of similar infringements

   (Art. 260(2) TFEU)

   (see paragraphs 98-101)

7. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Breach of the obligation to comply with the judgment – Financial penalties – Lump sum – Calculation of the amount – Criteria – Gravity of the infringement – Prolonged failure to comply with the judgment of the Court – Fundamental nature of the provisions which are the subject of the failure to fulfil obligations that was established – Systematic and deliberate avoidance of applying a common policy as a whole – Failure resulting from a general and persistent practice undermining the principle of solidarity and fair sharing of responsibility between the Member States – Repetition of the unlawful conduct by the Member State concerned

   (Art. 260(2) TFEU)

   (see paragraphs 102, 104-118, 120)

8. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Breach of the obligation to comply with the judgment – Financial penalties – Lump sum – Calculation of the amount – Criteria – Duration of the infringement – Assessment at the date of examination of the facts by the Court

   (Art. 260(2) TFEU)

   (see paragraphs 126, 127)

9. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Period for implementation – Compliance having to be initiated at once and completed as soon as possible

   (Art. 260(1) TFEU)

   (see paragraph 130)

10. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Breach of the obligation to comply with the judgment – Financial penalties – Lump sum – Calculation of the amount – Criteria – Payment capacity – Gross domestic product of the Member State in question – Date of assessment

    (Art. 260(2) TFEU)

    (see paragraph 131)

11. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Breach of the obligation to comply with the judgment – Financial penalties – Periodic penalty payment – Lump sum – Whether the two penalties should be cumulated – Lawfulness

    (Art. 260(2) TFEU)

    (see paragraph 134)

12. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Breach of the obligation to comply with the judgment – Financial penalties – Periodic penalty payment – Imposition of a penalty payment – Condition – Failure to comply continuing up to the time of the Court’s examination of the facts

    (Art. 260(2) TFEU)

    (see paragraph 135)

13. Actions for failure to fulfil obligations – Judgment of the Court establishing the failure of a Member State to fulfil its obligations – Breach of the obligation to comply with the judgment – Financial penalties – Periodic penalty payment – Determination of the form to be taken and of the amount – Discretion of the Court – Criteria

    (Art. 260(2) TFEU)

    (see paragraphs 138-141)

Résumé

The Court orders Hungary to pay a lump sum in the amount of EUR 200000000 and a total penalty payment of EUR 1000000 per day for that Member State’s failure to comply with the judgment in Commission v Hungary (Reception of applicants for international protection). ( 1 )

By that judgment, delivered on 17 December 2020, the Court ruled that Hungary had failed to fulfil its obligations under the Procedures, ( 2 ) Reception ( 3 ) and Return ( 4 ) Directives. More precisely, Hungary had failed to fulfil its obligations with regard, first, to access to the international protection procedure, second, to the detention of applicants for international protection in the transit zones of Röszke and Tompa, third, to the removal of illegally staying third-country nationals and, fourth, to the right of applicants for international protection to remain in Hungarian territory until the time limit for exercising their right to an effective remedy has expired and, when such a right has been exercised within the time limit, pending the outcome of the remedy.

On 9 June 2021, the European Commission sent Hungary a letter of formal notice, in accordance with the procedure provided for in Article 260(2) TFEU, ( 5 ) in which it took the view that Hungary had not taken the measures necessary to comply with the 2020 Commission v Hungary judgment. It therefore asked that Member State to submit its observations within two months.

Since it was not satisfied with Hungary’s replies, the Commission brought an action for failure to fulfil obligations before the Court under Article 260(2) TFEU seeking a declaration that that Member State, despite having closed the transit zones of Röszke and Tompa, has failed to comply with that judgment and an order requiring it to pay a lump sum and a daily penalty payment until the judgment of the Court has been complied with in full.

The Court upholds the Commission’s action.

Findings of the Court

In today’s judgment, the Court finds that, on the date of expiry of the period prescribed in the letter of formal notice, namely 9 August 2021, Hungary had not taken the measures necessary to comply with the 2020 Commission v Hungary judgment. Those measures must necessarily be compatible with the provisions of EU law which were found to have been infringed in that judgment and must facilitate the proper application of those provisions. However, on the date of expiry of the period prescribed in the letter of formal notice, aside from the closure of the transit zones of Röszke and Tompa, the national legislation that was the subject of the 2020 Commission v Hungary judgment had not been amended so as to make it comply with those requirements. In particular, the amendment of national legislation that was the subject of the judgment in Commission v Hungary (Declaration of intent prior to an asylum application) ( 6 ) cannot be considered to be a measure complying with the 2020 Commission v Hungary judgment since it is not compatible with the obligations under Article 6 of Directive 2013/32, which was found to have been infringed in that latter judgment.

In addition, Hungary’s failure to comply with that judgment has an extraordinarily serious impact on both the public interest and certain private interests, in particular the interests of third-country nationals and stateless persons wishing to apply for international protection.

To begin with, the importance of the provisions that are the subject of the established failure to fulfil obligations must be highlighted. In that regard, first, the infringement of the fundamental provision that is Article 6 of the Procedures Directive systematically prevents any access to the international protection procedure, making it impossible for Hungary to apply the common policy on asylum in its entirety. The systematic and deliberate evasion by a Member State of the application of a common policy as a whole constitutes an unprecedented and exceptionally serious infringement of EU law, which represents a significant threat to the unity of EU law and to the principle of equality of the Member States, referred to in Article 4(2) TEU. Second, compliance with Article 46(5) of the Procedures Directive is essential in order to ensure, as regards applicants for international protection, the effectiveness of the principle of effective judicial protection of an individual’s rights under EU law, which is a general principle of EU law stemming from the constitutional traditions common to the Member States. Third, the fundamental guarantees established by Articles 5, 6, 12 and 13 of the Return Directive constitute much of the content of the requirements applicable to the return of illegally staying third-country nationals, which is a vital component of the common immigration policy.

Next, Hungary’s conduct has the effect of transferring to the other Member States its responsibility, including financial responsibility, for ensuring the reception of applicants for international protection in the European Union, for examining applications in accordance with the procedures for granting and withdrawing that protection, and for ensuring arrangements for the return of illegally staying third-country nationals that comply with EU law. Such conduct seriously undermines the principle of solidarity and fair sharing of responsibility between the Member States in the area of asylum. In that regard, the Court recalls that the principle of solidarity is one of the fundamental principles of EU law and is one of the values common to the Member States on which the European Union is founded, pursuant to Article 2 TEU. By unilaterally upsetting the balance between the advantages and obligations arising from its membership of the European Union, a Member State calls into question observance of the principle of equality of the Member States before EU law. That failure in the duty of solidarity accepted by the Member States by the fact of their accession to the European Union strikes at the very root of the EU legal order.

Moreover, the repetition of Hungary’s unlawful conduct, which led to a number of other findings by the Court of infringements in the area of international protection, ( 7 ) is an aggravating circumstance. Hungary’s conduct following the 2020 Commission v Hungary judgment shows that it has not acted in accordance with its duty of sincere cooperation to put an end to the failure to fulfil obligations established by the Court, which constitutes an additional aggravating circumstance.

Accordingly, in the light of the exceptional seriousness of the infringements at issue and Hungary’s failure to cooperate in good faith in order to bring them to an end, the duration of the infringements and the capacity of that Member State to pay, the Court orders that Member State to pay the Commission a lump sum in the amount of EUR 200000000 and a penalty payment in the total amount of EUR 1000000 per day from today until the date of compliance with the 2020 Commission v Hungary judgment.

( 1 ) Judgment of 17 December 2020, Commission v Hungary (Reception of applicants for international protection) (C‑808/18, EU:C:2020:1029; ‘the 2020 Commission v Hungary judgment’).

( 2 ) 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) (‘the Procedures Directive’). The Court established a failure to fulfil obligations under Article 6, Article 24(3), Article 43 and Article 46(5) of that directive.

( 3 ) 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) (‘the Reception Directive’). The Court established a failure to fulfil obligations under Articles 8, 9 and 11 of that directive.

( 4 ) 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) (‘the Return Directive’). The Court established that Hungary had failed to fulfil its obligations under Article 5, Article 6(1), Article 12(1) and Article 13(1) of that directive.

( 5 ) Under Article 260(1) and (2) TFEU, a Member State which the Court has found to have failed to fulfil an obligation under the Treaties is required to take the necessary measures to comply with the judgment of the Court, and the Commission may bring the matter before the Court if it considers, after giving the Member State concerned the opportunity to submit its observations, that such measures have not been taken. If the Court finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it.

( 6 ) Judgment of 22 June 2023, Commission v Hungary (Declaration of intent prior to an asylum application) (C‑823/21, EU:C:2023:504).

( 7 ) Judgments of 2 April 2020, Commission v Poland, Hungary and Czech Republic (Temporary mechanism for the relocation of applicants for international protection) (C‑715/17, C‑718/17 and C‑719/17, EU:C:2020:257); of 16 November 2021, Commission v Hungary (Criminalisation of assistance to asylum seekers) (C‑821/19, EU:C:2021:930); and of 22 June 2023, Commission v Hungary (Declaration of intent prior to an asylum application) (C‑823/21, EU:C:2023:504).