CJEU (Grand Chamber) - European Commission v Hungary, Case C-821/19, 16/11/2021

Facts:

In 2018, Hungary added new provisions to its asylum law, criminal law and police law. Firstly, a new inadmissibility ground was added. The provision states that applications for international protection will be declared inadmissible if applicants have transited through a state in which they were not exposed to persecution or a risk of serious harm, or in which a sufficient degree of protection is guaranteed.

Secondly, Hungary criminalized organized activities which facilitate the lodging of asylum applications by persons who are not entitled to asylum under Hungarian law (‘the new offense’).

Thirdly, Hungary adopted a provision which allows the police to take restrictive measures against persons who have been accused or found guilty of the above offense. The police is now able to prevent persons violating ‘the new offense’ from entering an area close to the border, based on the ground that the government fears that they would help asylum seekers with their asylum application (‘the related ban’).

The European Commission found that Hungary had failed to fulfill its obligations under the ‘Procedures’ (Article 8(2), Article 12(1)(c), Article 22(1) and Article 33(2)) and ‘Reception’ Directives (Article 10(4)) by enacting those provisions, and brought an infringement procedure before the CJEU.

Decision & reasoning:

1.The inadmissibility ground

The CJEU recalls that Article 33 of the Procedures Directive precludes national legislation from declaring an application for international protection inadmissible on the basis of grounds not listed in Article 33 of the Directive. Therefore, the CJEU found that the new inadmissibility ground, which allows an application for international protection to be rejected as inadmissible on the ground that the applicant transited via a third state in which that person was not exposed to persecution or a risk of serious harm, or in which a sufficient degree of protection is guaranteed, is incompatible with Article 33(2) of the Directive.

2. The new offense

The CJEU holds that the assistance granted to applicants for international protection under Article 8(2) and 22(1) of the Procedures Directive, and Article 10(4) of the Reception Directive fall within the scope of Paragraph 353/A of the Hungarian Criminal Code. The assistance under Article 12(1)(c) of the Procedures Directive does not fall within the scope because it is provided during the examination of the asylum application and not at the stage of submitting the asylum application, as required by Article 353/A of the Hungarian Criminal Code.

Consequently, the CJEU holds that Paragraph 353/A of the Hungarian Criminal Code restricts the rights (enshrined in the Directive) of certain persons or organizations to provide assistance to applicants for international protection.

The CJEU states that while the ‘new offense’ does not formally prohibit persons or organizations from accessing or communicating with asylum applicants present at Hungary’s external borders or in detention facilities, the criminalization of certain types of assistance nevertheless restricts the right to have access to the applicants for international protection and to communicate with them, those rights being protected under Article 8(2) of the Procedures Directive and Article 10(4) of the Reception Conditions Directive. Moreover, the CJEU states that Article 22(1) of the Procedures Directive, which confers on asylum applicants the right to consult a legal adviser or other counselor on matters relating to their asylum applications, is also restricted by the Hungarian provision, since that criminal law provision will discourage such persons from advising asylum seekers.

Lastly, the restriction on the rights of certain persons to provide assistance cannot be justified by the objective of combating (i) assistance provided for purposes of misusing the asylum procedure; and (ii) the facilitation of illegal immigration.

The CJEU notes that Member States can criminalize activities that come within the scope of the rights guaranteed under the relevant provisions, if the exercise of that right would amount to an abusive or fraudulent behavior. However, the CJEU notes that the scope of the ‘new offense’ goes beyond that legitimate aim because it also criminalizes activities performed without any intention to mislead the authorities. The CJEU concluded that the ‘new offense’ strongly discourages the provision of any assistance whatsoever and cannot be regarded as necessary to prevent fraudulent or abusive conduct.

As regards the facilitation of illegal immigration, the CJEU states that the act of assistance in making or submitting an application for asylum on the territory of a Member State cannot be regarded as an activity which aids the illegal entry or residence of a third-country national or a stateless person on the territory of that Member State. An applicant for asylum cannot, in principle, be considered to be unlawfully present on the territory of the Member State in which he has lodged his application for asylum until a decision has been taken at first instance.

Therefore, the Court concluded that the restrictions were not justified and held that Hungary’s enactment of the ‘new offense’ is in breach of the relevant provisions of the Procedures and Reception Directives.

3. The related ban

Article 46/F of the Hungarian Police Act applies to persons which are prosecuted or punished under Paragraph 353/A of the Hungarian Criminal Code. Since the offense under Article 353/A of the Hungarian Criminal Code is contrary to EU law, the restriction created by Article 46/F of the Hungarian Police Act cannot be justified under EU law either.

Observations/comments:

This summary was written by Amirsalar Kavoosi, student at the Human Rights and Migration Law Clinic of the University of Gent.

Other sources:

Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence, Article 1(1).