CJEU Case C-823/21 / Judgement

European Commission v Hungary
Policy area
Asylum and migration
Deciding body type
Court of Justice of the European Union
Deciding body
Court (Fourth Chamber)
Type
Decision
Decision date
22/06/2023
ECLI (European case law identifier)
ECLI:EU:C:2023:504
  • CJEU Case C-823/21 / Judgement

    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 – Procedures for granting international protection – Directive 2013/32/EU – Article 6 – Effective access – The making of an application – National legislation laying down prior administrative steps to be carried out outside the territory of the Member State – Public health objective

    Outcome of the case:

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

    1) Declares that by making the possibility, for certain third-country nationals or stateless persons present in the territory of Hungary or at the borders of that Member State, of making an application for international protection subject to the prior lodging of a declaration of intent at a Hungarian embassy located in a third country and to the granting of a travel document enabling them to enter Hungarian territory, Hungary has failed to fulfil its obligations under Article 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) Orders Hungary to bear its own costs and to pay those incurred by the European Commission.

  • Paragraphs referring to EU Charter

    1) By its application, the European Commission asks the Court to declare that, by making the possibility, for third-country nationals present in the territory of Hungary, including at the borders of that Member State, of accessing the procedure for granting international protection and of making an application for international protection, subject to the requirement of first undergoing a procedure at a Hungarian diplomatic representation in a third country, Hungary has failed to fulfil its obligations under Article 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), interpreted in the light of Article 18 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

    ...

    15) On 30 October 2020, the Commission sent Hungary a letter of formal notice concerning the compatibility with Article 6 of Directive 2013/32, read in the light of Article 18 of the Charter, of certain provisions of the Law of 2020.

    ...

    17) On 18 February 2021, the Commission, not being convinced by that reply, issued a reasoned opinion in which it considered that Hungary had failed to fulfil its obligations under Article 6 of Directive 2013/32, read in the light of Article 18 of the Charter, by making the possibility for third-country nationals present in the territory of Hungary, including at the borders of that Member State, to apply for international protection subject to the condition that they undergo a preliminary procedure at a Hungarian diplomatic representation located in a third country. The Commission called upon Hungary to adopt the necessary measures to comply with the reasoned opinion within two months of its receipt.

    ...

    20) The Commission considers that by making the possibility for third-country nationals present in the territory of Hungary, including at the borders of that Member State, to access the international protection procedure and make an application for international protection subject to the condition that they undergo a preliminary procedure at a Hungarian diplomatic representation located in a third country, Hungary has failed to fulfil its obligations under Article 6 of Directive 2013/32, read in conjunction with Article 18 of the Charter.

    21) The Commission submits that Directive 2013/32, which lays down the procedural rules necessary to give effect to the right to asylum, recognised in Article 18 of the Charter, requires Member States to guarantee for all persons present in the territory of a Member State, including at the borders of that Member State, the right to make an application for international protection. If the effectiveness of Article 6 of Directive 2013/32 is not to be undermined, a Member State may not, moreover, unjustifiably delay the time at which the person concerned is given the opportunity to make his or her application for international protection.

    ...

    44) The right to make an application for international protection 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 seek asylum in a Member State, as guaranteed by Article 18 of the Charter and specified in Article 6 of that directive (see, to that effect, judgments of 17 December 2020, Commission v Hungary (Reception of applicants for international protection), C‑808/18EU:C:2020:1029, paragraph 102, and of 16 November 2021, Commission v Hungary (Criminalisation of assistance to asylum seekers), C‑821/19EU:C:2021:930, paragraph 132).

    ...

    52) Furthermore, the effect of the legislation complained of by the Commission is that, apart from the persons referred to in Article 271(1) of the Law of 2020, third-country nationals or stateless persons who are staying in the territory of Hungary or present themselves at the borders of that Member State, without undergoing the prior procedure imposed by that law, are deprived of the effective enjoyment of their right, as guaranteed by Article 18 of the Charter, to seek asylum from that Member State.

    ...

    55) In that regard, it must be noted that it is apparent from Article 35 of the Charter and from Article 9 TFEU, Article 114(3) TFEU and Article 168(1) TFEU that a high level of human health protection must be ensured in the definition and implementation of all the European Union’s policies and activities (judgment of 24 February 2022, Agenzia delle dogane e dei monopoli and Ministero dell’Economia e delle Finanze, C‑452/20EU:C:2022:111, paragraph 49 and the case-law cited).

  • Paragraphs referring to EU Charter (original language)