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CJEU Case C-808/18 / Opinion

European Commission v Hungary

Policy area:
Irregular migration and return
Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Decision date:
25/06/2020
ECLI:
ECLI:EU:C:2020:493

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:

For the reasons set out in this Opinion, I therefore propose that the Court should:

  1. declare that, by requiring all asylum applications to be lodged in person with the competent authority, and exclusively in the transit zones, access to which is restricted to a limited number of persons, Hungary failed to fulfil its obligation under Articles 3 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;
  2. declare that, by implementing a procedure for examining asylum applications at the border without the safeguards provided for in Article 43 of Directive 2013/32, Hungary failed to fulfil its obligations under that provision; 
  3. declare that, by applying to all asylum applicants, except for children under the age of 14 years, an examination procedure resulting in their compulsory detention in the transit zones for the entire duration of that procedure, without the benefit of the safeguards provided for in 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, Hungary failed to fulfil its obligations under those provisions;
  4. declare that, by moving third-country nationals staying illegally in national territory to the other side of the border fence without observing the safeguards set out in 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, Hungary failed to fulfil its obligations under those provisions;
  5. declare that, by incorrectly transposing into national law Article 46(5) of Directive 2013/32, Hungary failed to fulfil its obligations under that provision;
  6. dismiss the action as to the remainder; (7) order Hungary to pay its own costs and four fifths of the European Commission’s costs and the Commission to bear one fifth of its own costs.