Directive of the European Parliament and of the Council of
Directive of the European Parliament and of the Council of
Directive of the European Parliament and of the Council of
…
…
Member States may provide for procedures, in accordance with the basic principles and guarantees of Chapter II, in order to decide at the border or transit zones of the Member State on:
In the case of a decision: a court or tribunal shall have the power to rule whether or not the applicant may remain on the territory of the Member State, either upon the applicant’s request or acting …
An applicant may be detained only: The grounds for detention shall be laid down in national law. …
Where a foreign national lodges an application in the transit zone: the provisions of this chapter shall apply subject to the derogations provided for in this article. …
An asylum application must be lodged in person with the competent authority, and exclusively in the transit zone, unless the asylum applicant: …
The competent asylum authority shall take a decision on the basis of the information in its possession, or shall discontinue the procedure, if the asylum applicant: … …
An asylum applicant present in the transit zone may enter Hungary if:
Directive of the European Parliament and of the Council of
by limiting, in appeals against decisions rejecting an application for international protection, the examination referred to in Article 46(3) of Directive 2013/32 to the facts and points of law considered when the decision was adopted, by failing to transpose Article 46(5) of Directive 2013/32 into national law and by adopting provisions which derogate from the general rule of automatic suspensory effect in situations not covered by Article 46(6) thereof, by moving third-country nationals staying illegally in Hungary to the other side of the border fence without observing the procedures and safeguards laid down in Article 5, Article 6(1), Article 12(1) and Article 13(1) of Directive 2008/115; by requiring asylum applications to be lodged in person with the competent authority, and exclusively in the transit zone, by ordering that a procedure be applied to all asylum applicants (except for children under the age of 14 years) resulting in the compulsory detention of those asylum applicants for the entire duration of the asylum procedure in the facilities of a transit zone, which, if left, lead only to Serbia, without that detention being subject to appropriate safeguards, by shortening, from eight days to three, the deadline for bringing applications for review of first-tier decisions refusing asylum, had failed to fulfil its obligations under Article 5, Article 6(1), Article 12(1) and Article 13(1) of Directive 2008/115, Articles 3 and 6, Article 24(3), Article 43 and Article 46(3), (5) and (6) of Directive 2013/32, and Article 2(h) and Articles 8, 9 and 11 of Directive 2013/33, all read in conjunction with Articles 6, 18 and 47 of the Charter.
Judgment of
See, inter alia, judgment of
See judgment of
In its defence, Hungary explains that a crisis situation caused by mass immigration is a special situation which may be declared when the conditions laid down in Article 80/A(1) of the Law on the right to asylum are met and during which specific procedural rules apply. It states that the Hungarian Government made that declaration in September 2015 and extended its effects until
The making of an application for international protection is defined in the Commission’s proposal for [Council] Directive 2005/85/EC [of
Proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status /*COM/2000/0578 final — CNS 2000/0238*/, comments on Article 4.
Emphasis added.
EASO and Frontex,
in September 2015, the Hungarian Minister for the Interior informed the UNHCR that the maximum number of admissions to the transit zone was set at 100 persons per day, a number that was subsequently reduced to 50 in February 2016 and thereafter to 30 in March 2016; Report of the UNHCR entitled in November 2016, only 10 persons per day were allowed to enter the transit zone, a number that was reduced to 5 per day in 2017 (that latter figure was moreover confirmed by a report of the Secretary General of the Council of Europe Report of the fact-finding mission by Ambassador Tomáš Boček, Special Representative of the Secretary General of the Council of Europe on Migration and Refugees, to Serbia and two transit zones in Hungary, Report drawn up by the Hungarian Helsinki Committee entitled in May 2018, 10 persons per week were admitted to the transit zones; because of that progressive limitation on access to the transit zones, persons wishing to apply for international protection are required to wait several months before being admitted to those zones, a wait that may last between 11 and 18 months. UNHCR report entitled
As is apparent from the report of the fact-finding mission by Ambassador Tomáš Boček, Special Representative of the Secretary General of the Council of Europe on Migration and Refugees, to Serbia and two transit zones in Hungary,
I note, in that regard, that the Commission refers throughout its pleadings to the
Annex, Detailed explanation of the amended proposal accompanying the document
Footnote not relevant to the English version of this Opinion.
See the Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, signed at Brussels on
See my Opinion in Joined Cases
To my knowledge, the idea of establishing a specific framework for
This inevitably means that the functional classification under national law of the facilities at Röszke and Tompa as transit zones or reception institutions, which Hungary referred to on numerous occasions in its defence, is wholly irrelevant for that purpose.
asylum applications must necessarily be made in the transit zones of Röszke and Tompa, in accordance with Article 80/J(1) of the Law on the right to asylum, as described at length in the examination of the first complaint in the present action for failure to fulfil obligations; the competent national authority is to designate, in accordance with Article 80/J(5) of that law, one of the transit zones as the asylum applicant’s place of stay until the transfer order under Regulation (EU) No 604/2013 Regulation of the European Parliament and of the Council of
Article 2(d) of Directive 2013/32 defines the concept of
Specifically, Article 71/A(7) provides that the rules governing border procedures are not to apply to
Judgment of
Before the Court ruled in that case, I had already taken a position on the interpretation of Article 72 TFEU in my Opinion in
According to the Court, those derogations are set out in Articles 36, 45, 52, 65, 72, 346 and 347 TFEU.
Judgment of
I am paraphrasing paragraphs 148 to 153 of the judgment.
Judgment of
Judgment of the ECtHR of
Judgment of
Judgment of
ECtHR,
See my Opinion in Joined Cases
It is apparent from the explanations relating to Article 52 of the Charter that paragraph 3 of that article is intended to ensure the necessary consistency between the Charter and the ECHR,
See, as regards asylum, judgments of
That
That recital states as follows:
Judgment of
ECtHR,
Judgment of
For my part, I do not see how such a far-reaching restriction on freedom of movement could be regarded as an inevitable consequence of the limited size of the transit zone as a whole, as Hungary claims.
Judgment of
Judgment of
See, in that regard, my Opinion in Joined Cases
Judgment of
See, in particular, judgment of
Judgment of
See also judgment of
Hungary refers, in particular, to the judgment of
It must be stated that Hungary’s argument that the Hungarian police act within the limits of the legislative framework and use coercive measures proportionately only in the cases provided for by law, as required by Article 8(4) of Directive 2008/115, is irrelevant to determining whether Hungary failed to fulfil the obligations it is claimed to have infringed in the present complaint.
Judgment of
Emphasis added.
Article 5(1a) of the Law on State borders provides:
Judgment of
In the absence of any challenge to its validity, the fact that Directive 2008/115 does not contain a recital, like recital 51 of Directive 2013/32, stating that it does not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security, in accordance with Article 72 TFEU, certainly does not justify a derogation from the provisions of that directive on the basis of that article, as Hungary claims.
Article 18 of Directive 2008/115 merely permits Member States to allow for periods for judicial review longer than those provided for under the third subparagraph of Article 15(2) of that directive and to take urgent measures in respect of the conditions of detention derogating from those set out in Articles 16(1) and 17(2) of the directive.
As the Commission notes in the application, Article 18(3) of Directive 2008/15 even expressly states that
Judgment of
Directive of the European Parliament and of the Council of
See judgment of
See, inter alia, judgment of
Hungary does not dispute the Commission’s assertion that, while it is true that Article 51(2) of Law No II of 2007 on the entry and stay of third-country nationals provides that
Emphasis added.
Emphasis added.
Article 46(6)(a) and (b) of Directive 2013/32.
Hungary confirmed at the hearing that Article 53 covers appeals brought against those decisions by drawing attention to paragraph 2 of that article, according to which
Paragraph 4 of that article states that the reasons justifying the need for immediate judicial protection must be set out in detail in the application, the supporting documents must be attached and the facts on which the application is based must be substantiated.
Hungary confirmed at the hearing that the relationship between those two legal acts must be understood in that way.