Action brought on 21 December 2018 — European Commission v Hungary

(Case C-808/18)

Language of the case: Hungarian

Parties

Applicant: European Commission (represented by: M. Condou-Durande, A. Tokár and J. Tomkin, acting as Agents)

Defendant: Hungary

Form of order sought

The Commission claims that the Court of Justice should:

a)    Declare that, by:

providing that an asylum application must be made in person before the competent asylum authority, and exclusively in the transit zones, access to which is restricted to a limited number of people;

applying generally a special procedure, in which there is no guarantee that the safeguards laid down in Directive 2013/32 will be observed;

ordering that a procedure is to be applied to all asylum seekers (with the exception of those under 14 years), following which the asylum seekers must be compulsorily detained in the transit zones during the entire asylum procedure, in facilities which lead only to Serbia, without having given that detention the guarantees laid down in Directive 2013/33;

moving third-country nationals staying illegally in Hungary to the other side of the border fence, without respecting the procedures and guarantees laid down in Article 5, Article 6(1), Article 12(1) and Article 13(1) of Directive 2008/115;

not transposing Article 46(5) of Directive 2013/32 into the national legal system and adopting provisions which depart from the general rule relating to the automatic suspensive effect in situations which are not included in Article 46(6) of that directive,

Hungary has failed to fulfil its obligations under Article 3, Article 6, Article 24(3), Article 43 and Article 46(5) and (6) of Directive 2013/32/EU, 1 under Article 2(h), Article 8, Article 9 and Article 11 of Directive 2013/33/EU, 2 and under Article 5, Article 6(1), Article 12(1) and Article 13(1) of Directive 2008/115/EC, 3 all in conjunction with Articles 6, 18 and 47 of the Charter of Fundamental Rights.

b)    Order Hungary to pay the costs.

Pleas in law and main arguments

The Commission takes the view that Hungary has infringed Articles 3 and 6 of Directive 2013/32 by providing that an asylum application must be made in person before the competent asylum authority, and exclusively in the transit zones, access to which is restricted to a limited number of people. In doing so, Hungary is not guaranteeing applicants for international protection effective access to the asylum procedure.

In the Commission’s view, the provisions of the Law on the right to asylum, according to which applicants are required to remain in the transit zones until their application for international protection is dealt with, give rise to a situation whereby Hungary systematically detains all asylum applicants, contrary to Directive 2013/33.

Furthermore, the Commission takes the view that Hungary has failed to fulfil its obligations under Article 5, Article 6(1), Article 12(1) and Article 13(1) of Directive 2008/115 by moving third-country nationals staying illegally in Hungary to the other side of the border fence, without respecting the procedures and guarantees laid down in that directive.

According to the Commission, Hungary has not transposed the general rule laid down in Article 46(5) of Directive 2013/32 into the national legal system, given that, in the event of an administrative action being brought against an application refused on the ground of being unfounded, the Law on the right to asylum has removed the provision which provided for the automatic suspensive effect of legal proceedings.

Furthermore, the Commission submits that Hungary is infringing Article 46(5) and (6) of Directive 2013/32 because, in the event of an application for international protection being refused, the Law on the right to asylum does not clearly provide for the possibility of requesting said suspensive effect. Consequently, asylum seekers’ right to remain in Hungary until the outcome of the proceedings is not guaranteed, given that the decision refusing asylum is enforceable irrespective of whether legal proceedings are brought.

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1 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).

2 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).

3 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).