Asylum policy penalty: Judgment of the EU Court: EU Commission v Hungary

Judgment of the Court in Case C-123/22 | Commission v Hungary (Reception of applicants for international protection II)

Asylum policy: Hungary is ordered to pay a lump sum of 200 million euros and a penalty payment of 1 million euros per day of delay for failure to comply with a judgment of the Court of Justice

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That failure, which consists in deliberately avoiding the application of a common EU policy as a whole, constitutes an unprecedented and extremely serious infringement of EU law

In December 2020 ¹, the Court of Justice held that Hungary had failed to comply with the rules of EU law on, inter alia, procedures for granting international protection and returning illegally staying third-country nationals. That failure concerned restricting access to the international protection procedure, unlawfully detaining applicants for international protection in transit zones and failing to observe their right to remain in 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.

Taking the view that Hungary still had not complied with the 2020 judgment (except as regards the transit zones, which Hungary had already closed before delivery of the present judgment), the European Commission brought a new action for failure to comply with obligations, seeking the imposition of financial sanctions.

In its judgment, the Court holds that Hungary has not taken the measures necessary to comply with the 2020 judgment as regards access to the international protection procedure, the right of applicants for international protection to remain in Hungary pending a final decision on their appeal against the rejection of their application and the removal of illegally staying third-country nationals.

In so doing, that Member State, 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. 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 obligations, which has the effect of transferring to the other Member States its responsibility, including financial responsibility, for ensuring, in accordance with EU law, 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.

Since this failure to fulfil obligations constitutes an unprecedented and exceptionally serious breach of EU law, the Court orders Hungary to pay a lump sum of 200 million euros and a penalty payment of 1 million euros per day of delay ².

NOTE: An action for failure to fulfil obligations directed against a Member State which has failed to comply with its obligations under European Union law may be brought by the Commission or by another Member State. If the Court of Justice finds that there has been a failure to fulfil obligations, the Member State concerned must comply with the Court’s judgment without delay.

Where the Commission considers that the Member State has not complied with the judgment, it may bring a further action seeking financial penalties. However, if measures transposing a directive have not been notified to the Commission, the Court of Justice can, on a proposal from the Commission, impose penalties at the stage of the initial judgment.

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1 Judgment of 17 December 2020, Commission v Hungary, C‑808/18 (see also Press Release No 161/20)

2 This includes a penalty payment in the amount of 900 000 euros per day of delay for the infringement of the rules on procedures for granting international protection and a penalty payment in the amount of 100 000 euros per day of delay for the failure to observe the rules on returning illegally staying third-country nationals.

Unofficial document for media use, not binding on the Court of Justice. The full text and, as the case may be, an abstract of the judgment is published on the CURIA website on the day of delivery.