On Thursday 13 June, Hungary was ordered by the Court of Justice of the European Union (CJEU) (case C-123/22) to pay a lump sum of €200 million and a penalty payment of €1 million per day of delay for failing to comply with a previous judgment of December 2020 on the management of migratory flows.
This December 2020 judgment concerned non-compliance with several provisions of the 2008 and 2013 directives on common standards and procedures for returning illegally staying third-country nationals and on common procedures for granting and withdrawing international protection (see EUROPE 12625/30).
The shortcomings identified concern the limitation of access to the international protection procedure, the unlawful detention of applicants for this protection in transit zones and the disregard of their right to remain on Hungarian territory pending a final decision on their appeal against the rejection of their application, as well as the removal of illegally staying third-country nationals.
Such a failure, which consists in deliberately evading the application of a common policy of the Union as a whole, constitutes an “unprecedented and exceptionally serious breach of EU law”, the Court ruled on Thursday.
Taking the view that Hungary had still not complied with the 2020 ruling (with the exception of the transit zones, which Hungary had already closed before the ruling was handed down), in February 2022 the European Commission lodged a new legal action for the imposition of financial penalties (see EUROPE 12737/27).
In its judgment, the Court found that Hungary had not taken the necessary measures to comply with the 2020 ruling and that by “disregarding the principle of sincere cooperation, is deliberately evading the application of the EU common policy on international protection as a whole and the rules relating to the removal of illegally staying third-country nationals”.
And the European judge added: “That conduct constitutes a serious threat to the unity of EU law, which has an extraordinarily serious impact both on private interests, particularly the interests of asylum seekers, and on the public interest”.
In particular, Hungary’s failure to fulfil its obligations, which “has the effect of transferring to the other Member States its responsibility, including financial responsibility, for ensuring (...) the reception of applicants for international protection, the examination of their applications and the return of illegally staying third-country nationals, seriously undermines the principle of solidarity and fair sharing of responsibility between the Member States”.
In its defence, Hungary argued that the Commission had “wrongly assessed the seriousness of the infringement in question by failing to take account of the closure of the Röszke and Tompa transit zones, Hungary’s new asylum regulations, the growing pressure of illegal migration and the consequences of Russia’s aggression against Ukraine”.
It also contested that it had infringed the principle of primacy of Union law.
“The ECJ’s decision to fine Hungary with 200M euros plus 1M euros daily(!!!) for defending the borders of the European Union is outrageous and unacceptable”, Hungary’s Prime Minister Viktor Orbán wrote on X. “Illegal migrants are more important to the Brussel bureaucrats than their own European citizens”, he added.
To see the Court’s judgment: https://aeur.eu/f/cn4 (Original version in French by Solenn Paulic)