Brussels, 16/10/2012 (Agence Europe) - Slovakia legitimately refused entry into its territory of the Hungarian president without being in breach of Union law on free movement, the Court of Justice of the EU states in a ruling on Tuesday 16 October (Case C-364/10). According to the Court, the fact that a European citizen exercises the role of Head of State confers special status upon that person which may justify the limitation, based on international law, of that person's right to free movement within the EU. The Court thus acknowledges the primacy of international law over Community law, when it comes to the privileges and immunities of heads of State, and dismisses Hungary's action against refusal.
At the origin of the case was a visit that the Hungarian president, Laszlo Solyom, was to make to Komarno (Slovak Republic) in commemoration of Saint Stephen, the founder of the Hungarian state, on 21 August 2009, which is also the anniversary of intervention in Czechoslovakia by armed forces of five Warsaw Pact countries, including Hungary. Fearing public disorder, the Hungarian authorities had notified the Hungarian ambassador of the ban on the president to enter Slovak territory, on the basis of the provisions of Directive 2004/38/EC (free movement of citizens), which allows the right of citizens to move freely within the EU to be restricted for reasons of public order, public security and public health. The refusal had been communicated to the president when he was already on his way, forcing him to turn back. Hungary subsequently decided to introduce infringement proceedings before the Court against Slovakia, deeming that the latter had acted counter to its obligations on free movement (Directive 2004/38/EC and Article 21 of the TFEU), by refusing access to its territory for the Hungarian president, who is a citizen of the EU, by invoking the directive cited but not complying with its provisions.
In its judgment, the Court notes that President Solyom's Hungarian nationality confers upon him the right to move and reside freely on the territory of EU member states. Nonetheless, it points out that Union law must be interpreted in the light of the relevant rules of international law, since international law is part of the EU legal order and is thus binding on the European institutions. In that respect, the Court states that, on the basis of the customary rules of general international law and those of multilateral agreements, the Head of State enjoys a particular status in international relations which entails, inter alia, privileges and immunities. Thus, the presence of a Head of State on the territory of another State imposes on that latter State the obligation to guarantee the protection of the person carrying out that duty, irrespective of the capacity in which his visit takes place (official or private stay). That special status therefore confers a specific character on the person concerned, distinguishing him from the other citizens of the Union, with the result that that person's access to the territory of another member state is not subject to the same conditions as those applicable to other citizens. Consequently, “the fact that an EU citizen performs the duties of Head of State is such as to justify a limitation on the exercise of the right of movement conferred on that person by EU law”, the Court rules. On that basis, the Court finds that EU law did not oblige Slovakia to guarantee access to its territory to the president of Hungary, independently of the fact that it had, wrongly, invoked Directive 2004/38/EC as a legal basis on which to refuse access. (FG/transl.jl)