Case C‑808/18

European Commission

v

Hungary

Judgment of the Court (Grand Chamber), 17 December 2020

(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)

1. Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion

   (Art. 258 TFEU)

   (see paragraphs 68, 156)

2. Border controls, asylum and immigration – Asylum policy – Procedures for granting and withdrawing international protection – Directive 2013/32 – Time at which the status of applicant for international protection is acquired – Time at which an application for international protection is made

   (European Parliament and Council Directive 2013/32, Arts 2(c) and 6(1))

   (see paragraphs 97-100)

3. Border controls, asylum and immigration – Asylum policy – Procedures for granting and withdrawing international protection – Directive 2013/32 – Access to the procedure – National legislation requiring applicants to make their application in one of the transit zones situated at the border – Drastic limitation by the national authorities of the number of applicants authorised to enter those zones daily – Administrative practice contrary to EU law – Existence of that practice proved by the Commission and insufficient rebuttal by the Member State concerned – Failure to fulfil obligations

   (Art. 258 TFEU; European Parliament and Council Directive 2013/32, Arts 3 and 6)

   (see paragraphs 93, 94, 102, 103, 106-108, 110, 114-128, 315, operative part 1)

4. Actions for failure to fulfil obligations – Proof of failure – Burden of proof on Commission – Presumptions – Not permissible – Failure to fulfil obligations arising from an administrative practice contrary to EU law – Different evidence requirements – Incumbent on Member State concerned to refute evidence

   (Art. 258 TFEU)

   (see paragraphs 111-113)

5. Border controls, asylum and immigration – Asylum policy – Standards for the reception of applicants for international protection – Directive 2013/33 – Concept of detention – Autonomous concept of EU law – Obligation on the applicant to remain in a transit zone – Included – Conditions

   (European Parliament and Council Directive 2013/33, Art. 2(h))

   (see paragraphs 159, 160, 162-166)

6. Border controls, asylum and immigration – Asylum policy – Standards for the reception of applicants for international protection – Directive 2013/33 – Detention – Grounds – Applicant required to remain in a transit zone during the procedure for examination of his or her application – Ground other than those provided for in Article 8(3) of Directive 2013/33 – Not permissible – Failure to fulfil obligations

   (European Parliament and Council Directives 2013/32, Art. 43 and 2013/33, Art. 8(3), first subpara.)

   (see paragraphs 168, 170-180, 185, 186, 209, 226, 315, operative part 1)

7. Border controls, asylum and immigration – Asylum policy – Procedures for granting and withdrawing international protection – Directive 2013/32 – Article 43 – Specific procedures which may be provided for by Member States at their borders or in their transit zones – Detention of an applicant for international protection in a transit zone in the context of such a procedure – Whether permissible – Limits – Maximum period of detention

   (European Parliament and Council Directive 2013/32, Arts 31(8), 33 and 43)

   (see paragraphs 181-185)

8. Border controls, asylum and immigration – Asylum policy – Procedures for granting and withdrawing international protection – Directive 2013/32 – Applicants in need of special procedural guarantees – Detention in the context of procedures which may be provided for by Member States at their borders or in their transit zones – Whether permissible – Limit – Obligation to examine whether that detention is compatible with the specific needs of those applicants and the adequate support which must be granted to them – Infringement – Failure to fulfil obligations

   (European Parliament and Council Directive 2003/32, Art. 24(3))

   (see paragraphs 191-199, 209, 226, 315, operative part 1)

9. Border controls, asylum and immigration – Asylum policy – Standards for the reception of applicants for international protection – Directive 2013/33 – Detention of vulnerable persons and applicants with special reception needs – National legislation requiring minor applicants, with the exception of unaccompanied minors under 14 years of age, to remain in a transit zone throughout the duration of the procedure for examination of their application – Not permissible – Failure to fulfil obligations

   (European Parliament and Council Directive 2013/33, Art. 11)

   (see paragraphs 201, 203, 209, 226, 315, operative part 1)

10. Border controls, asylum and immigration – Asylum policy – Standards for the reception of applicants for international protection – Directive 2013/33 – Guarantees for detained applicants – Obligation to adopt a written and reasoned decision ordering that detention – Infringement – Failure to fulfil obligations

    (European Parliament and Council Directive 2013/33, Art. 9)

    (see paragraphs 205, 208, 209, 226, 315, operative part 1)

11. EU law – Scope – No general exception excluding measures taken for reasons of public security – Competence of the Member States to take measures seeking to protect their essential security interests – Burden of proof of the need to take such measures borne by the Member State concerned – Scope – Asylum policy – Invocation of a risk of threat to public order and internal security owing to an arrival of a large number of applicants for international protection – Necessity of derogating from certain provisions of Directive 2013/32 not proved – Not permissible – Effective possibility of derogations for Member States provided for in Directives 2013/32 and 2013/33 – Conditions

    (Art. 72 TFEU; European Parliament and Council Directives 2013/32, Arts 24(3) and 43 and 2013/33, Arts 8(3), first subpara., point (e), 10(1) and 18(9))

    (see paragraphs 212, 214-225)

12. Border controls, asylum and immigration – Immigration policy – Return of illegally staying third-country nationals – Directive 2008/115 – National legislation permitting the forced removal of such a national, falling with the scope of that directive, without prior compliance with the procedures and safeguards provided for therein – Not permissible – Failure to fulfil obligations

    (European Parliament and Council Directive 2008/115, Arts 5, 6(1), 12(1) and 13(1))

    (see paragraphs 248-254, 266, 315, operative part 1)

13. Border controls, asylum and immigration – Immigration policy – Return of illegally staying third-country nationals – Directive 2008/115 – Removal – Concept – Forced deportation of such a national to a narrow strip of land devoid of all infrastructure, beyond a border fence erected in the territory of the Member State concerned – Included

    (European Parliament and Council Directive 2008/115, Art. 3(5))

    (see paragraphs 255-260)

14. EU law – Scope – No general exception excluding measures taken for reasons of public security – Competence of the Member States to take measures seeking to protect their essential security interests – Burden of proof of the need to take such measures borne by the Member State concerned – Scope – Return of illegally staying third-country nationals – Invocation of a risk of threat to public order and internal security – Necessity of derogating from certain provisions of Directive 2013/32 not proved – Not permissible – Effective possibility of derogations for Member States provided for in that directive – Conditions

    (Art. 4(2) TEU; Art. 72 TFEU; European Parliament and Council Directive 2008/115, Arts 6(2), 7(4), 11(2) and (3), 12(1), second subpara, and 18)

    (see paragraphs 261-264)

15. Border controls, asylum and immigration – Asylum policy – Procedures for granting and withdrawing international protection – Directive 2013/32 – Right to an effective judicial remedy – Appeal against a decision refusing an application for international protection – Right to remain in the territory of the Member State concerned until the time limit within which to bring such an appeal or pending the outcome of that appeal – Detailed rules laid down by that Member State – Conditions – Detailed rules in conformity with the rights guaranteed by Directives 2013/32 and 2013/33 – Sufficiently clear and precise detailed rules – No such detailed rules – Failure to fulfil obligations

    (European Parliament and Council Directive 2013/32, Art. 46(5) and 2013/33)

    (see paragraohs 286, 287, 289, 291-302, 314, 315, operative part 1)

16. Acts of the institutions – Directives – Implementation by Member States – Need for clear and precise transposition

    (Art. 288, third para. TFEU)

    (see paragraph 288)

Résumé

Hungary has failed to fulfil its obligations under EU law in the area of procedures for granting international protection and returning illegally staying third-country nationals. In particular, restricting access to the international protection procedure, unlawfully detaining applicants for that protection in transit zones and moving illegally staying third-country nationals to a border area, without observing the guarantees surrounding a return procedure, constitute infringements of EU law.

In response to the migration crisis and to the ensuing arrival of large numbers of applicants for international protection, Hungary adapted its legislation on the right to asylum and return of illegally staying third-country nationals. Thus, a law of 2015 ( 1 )provided, inter alia, for the creation of transit zones, situated at the Serbian-Hungarian border, in which asylum procedures are applied. That law also introduced the concept of a ‘crisis situation caused by mass immigration’, leading, where such a situation is declared by the Government, to the application of derogatory rules in the guise of general rules. In 2017, a new law ( 2 ) expanded the cases in which such a crisis situation could be declared and amended the provisions allowing derogation from the general provisions.

In 2015, the European Commission had already expressed its doubts to Hungary as to the compatibility of its asylum legislation with EU law. The 2017 law raised additional concerns. It criticises Hungary in particular for having, in disregard of the substantive and procedural safeguards provided for in the Procedures, ( 3 ) Reception ( 4 ) and Return ( 5 ) Directives, restricted access to the international protection procedure, established a system of systematic detention of applicants for that protection and forcibly deported, to a strip of land at the border, illegally staying third-country nationals, without observing the guarantees provided for in the Return Directive. In that context, it brought an action for failure to fulfil obligations before the Court, seeking a declaration that a substantial part of the Hungarian legislation in the area infringes certain provisions of those directives.

The Court, sitting as the Grand Chamber, has upheld for the most part the Commission’s action for failure to fulfil obligations.

Findings of the Court

As a preliminary point, the Court notes that it has already settled some of the issues raised by the action in a recent judgment, ( 6 ) delivered in the context of a reference for a preliminary ruling made by a Hungarian court. It also notes that, in order to comply with that judgment, Hungary has since closed its two transit zones. The Court emphasises, however, that that closure has no bearing on the present action, the situation falling to be assessed at the date laid down by the Commission in its reasoned opinion for addressing shortcomings, namely 8 February 2018.

In the first place, the Court holds that Hungary has failed to fulfil its obligation to ensure effective access to the procedure for granting international protection, ( 7 ) in so far as third-country nationals wishing to access, from the Serbian-Hungarian border, that procedure were in practice confronted with the virtual impossibility of making their application. That failure stems from a combination of the national legislation, according to which applications for international protection may, as a general rule, be made only in one of the two transit zones, and a consistent and generalised administrative practice, established by the Hungarian authorities, consisting in drastically limiting the number of applicants authorised to enter those zones each day. For the Court, the existence of that practice has been sufficiently demonstrated by the Commission, which relied on a number of international reports. In that context, the Court recalls that the making of an application for international protection, prior to its registration, lodging and examination, is an essential step in the procedure for granting that protection and that Member States cannot delay it unjustifiably. On the contrary, Member States must ensure that the persons concerned are able to make an application, including at the borders, as soon as they declare their wish of doing so.

In the second place, the Court confirms, as it has recently held, ( 8 ) that the obligation on applicants for international protection to remain in one of the transit zones for the duration of the procedure for examination of their application constitutes detention, within the meaning of the Reception Directive. ( 9 ) That matter having been clarified, the Court finds that this system of detention was established outside the cases set out in EU law and without observance of the guarantees which must normally govern it.

After all, first, the Court recalls that the situations in which the detention of an applicant for international protection is authorised are listed exhaustively in the Reception Directive. ( 10 ) After analysing each of those situations, however, it concludes that the Hungarian system is not covered by any of them. The Court examines in particular the situation in which a Member State may detain an applicant for international protection in order to rule on his or her right of entry into its territory, that detention being able to take place in the context of procedures applied at the border, with a view to verifying, before granting a right of entry, whether the application is not inadmissible or whether it is unfounded for certain specific reasons. ( 11 ) The Court considers, however, that the conditions in which detention is authorised in the context of those border procedures are not fulfilled in this case.

Second, the Court emphasises that the Procedures and Reception Directives require, inter alia, that detention be ordered in writing with reasons, ( 12 ) that the specific needs of applicants identified as vulnerable and in need of special procedural guarantees be taken into account, in order that they receive ‘adequate support’, ( 13 ) and that minors be placed in detention only as a last resort. ( 14 ) Owing, in particular, to its systematic and automatic nature, however, the detention regime provided for under the Hungarian legislation in the transit zones, which concerns all applicants other than unaccompanied minors under 14 years of age, does not allow applicants to enjoy those guarantees.

Moreover, the Court rejects Hungary’s argument that the migration crisis justified derogating from certain rules in the Procedures and Reception Directives, with a view to maintaining public order and preserving internal security, in accordance with Article 72 TFEU. ( 15 ) In that regard, it recalls that that article must be interpreted strictly and considers that Hungary does not demonstrate sufficiently its necessity of having had recourse to it. In addition, the Court points out that the Procedures and Reception Directives already take into account the situation where a Member State must face a very significant increase in the number of applications for international protection, since they provide, by specific provisions, for the possibility of departing from some of the rules imposed in normal times.

In the third place, the Court holds that Hungary has failed to fulfil its obligations under the Return Directive, in so far as the Hungarian legislation allows for the removal of third-country nationals who are staying illegally in the territory without prior compliance with the procedures and safeguards provided for in that directive. ( 16 ) On that point, the Court notes that those nationals are forcibly escorted, by the police, from the other side of a fence erected a few metres from the border with Serbia, to a strip of land devoid of any infrastructure. According to the Court, such forced deportation is equivalent to removal, within the meaning of the Return Directive, the persons concerned in practice having no choice other than leaving Hungarian territory afterwards and going to Serbia. In that context, the Court recalls that an illegally staying third-country national falling within the scope of the Return Directive must be the subject of a return procedure, in compliance with the substantive and procedural safeguards established by that directive, before his or her removal, where appropriate, is carried out, it being understood that forced removal is to take place only as a last resort. Furthermore, for reasons similar to those set out above, the Court rejects Hungary’s line of argument according to which it was allowed, pursuant to Article 72 TFEU, to derogate from the substantive and procedural safeguards established by the Return Directive.

In the fourth place, the Court considers that Hungary has not respected the right, conferred, in principle, by the Procedures Directive on any applicant for international protection, to remain in the territory of the Member State concerned after the rejection of his or her application, until the time limit within which to bring an appeal against that rejection or, if an appeal has been brought, until a decision has been taken on it. ( 17 ) After all, the Court notes that, when a ‘crisis situation caused by mass immigration’ has been declared, the Hungarian legislation makes the exercise of that right subject to detailed rules not in conformity with EU law, in particular the obligation to remain in the transit zones, which resembles detention contrary to the Procedures and Reception Directives. On the other hand, when such a situation has not been declared, the exercise of that right is made subject to conditions which, while not necessarily contrary to EU law, are not defined in a sufficiently clear and precise manner to enable the persons concerned to ascertain the exact extent of their right and the compatibility of those conditions with the Procedures and Reception Directives to be assessed.

( 1 ) Egyes törvényeknek a tömeges bevándorlás kezelésével összefüggő módosításáról szóló 2015. évi CXL. törvény (Law No CXL of 2015 amending certain laws in the context of managing mass immigration) (Magyar Közlöny 2015/124).

( 2 ) Határőrizeti területen lefolytatott eljárás szigorításával kapcsolatos egyes törvények módosításáról szóló 2017. évi XX. törvény (Law No XX of 2017 amending certain laws related to the strengthening of the procedure conducted in the guarded border area) (Magyar Közlöny 2017/39).

( 3 ) 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’).

( 4 ) 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’).

( 5 ) 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’).

( 6 ) Judgment of 14 May 2020, Országos Idegenrendézeti Főigazgatóság Dél-alföldi Regionális Igazgatóság (C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367).

( 7 ) That obligation is apparent from Article 6 of the Procedures Directive, read in conjunction with Article 3 thereof.

( 8 ) Abovementioned judgment of 14 May 2020.

( 9 ) Article 2(h) of that directive.

( 10 ) Article 8(3), first subparagraph, of that directive.

( 11 ) Article 8(3), first subparagraph, point (c), of the Reception Directive and Article 43 of the Procedures Directive.

( 12 ) Article 9(2) of the Reception Directive.

( 13 ) Article 24(3) of the Procedures Directive.

( 14 ) Article 11(2) of the Reception Directive.

( 15 ) That article provides that the provisions which appear under Title V of the FEU Treaty, relating to the area of security, freedom and justice, are not to affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.

( 16 ) Those safeguards are laid down inter alia in Articles 5, 6(1), 12(1) and 13(1) of the Return Directive.

( 17 ) Article 46(5) Procedures Directive.