Background of the case according to the press release of the European Commission of 15 July 2021: 

"The Commission has decided to refer Hungary to the Court of Justice of the European Union for unlawfully restricting access to the asylum procedure in breach of Article 6 of the Asylum Procedures Directive (Directive 2013/32/EU), interpreted in light of Article 18 of the Charter of Fundamental Rights of the European Union.

Article 6 of the Asylum Procedures Directive requires Member States to ensure that non-EU nationals and stateless persons located in their territory, including at their borders, are able to exercise in an effective manner the right to apply for international protection.

According to the requirement in Hungarian law, before being able to apply for international protection in Hungary, non-EU nationals must first make a declaration of intent stating their wish to apply for asylum at a Hungarian Embassy outside the European Union and be issued with a special entry permit for that purpose.

The Commission considers that this requirement is an unlawful restriction to access the asylum procedure and is contrary to the Asylum Procedures Directive, read in light of the Charter of Fundamental Rights, as it precludes persons who are on Hungary's territory, including at the border, from applying for international protection there.

The Commission also considers that addressing the COVID-19 pandemic, which is the stated objective of the Hungarian law, cannot justify such a rule.

The Commission is therefore referring Hungary to the Court of Justice of the European Union.

The Hungarian Act LVIII of 2020 on the “transitional rules and epidemiological preparedness related to the cessation of the state of danger” was published on 17 June 2020. It introduced an asylum pre-procedure before a non-EU national can make an application for international protection in Hungary. This pre-procedure comprises two steps. Firstly, the submission of a “statement of intent” to apply for asylum at Hungarian Embassies (“diplomatic representations”) located in neighbouring non-EU countries (i.e. Serbia or Ukraine) and secondly, receipt of a special entry permit to Hungary for the purposes of making an application for international protection, granted at the discretion of the Hungarian authorities.

The transitional Act further provides that if a non-EU national crosses the border irregularly and subsequently states their intention to submit an application for international protection, the police must direct them to the Hungarian representation in the bordering non-EU countries.

The Act is of a temporary nature but its application has been extended by Section 54 of Act CLXII of 2020 to 30 June 2021 and by Section 166(b) of Act CI of 2021 to 31 December 2021."

Judgment of the CJEU

On 22 June 2023, the CJEU held that Hungary failed to fulfil its obligations under Article 6 of the recast Asylum Procedures Directive when it introduced the requirement that a third-country national or a stateless person who is on the territory of Hungary or at the borders and who wishes to apply for international protection is required to go beforehand to the Hungarian Embassy in Belgrade or Kiev in order to lodge in person a declaration of intention of applying for international protection and after examining that declaration, the Hungarian authorities may decide to grant a travel document allowing entry into Hungary for an application for international protection.

The CJEU noted that Article 6 of the recast Asylum Procedures Directive provides that any third-country national or stateless person has the right to submit an application for international protection, including at the borders of a Member State, by manifesting his or her willingness to benefit from international protection with one of the authorities, without the expression of that intention being subject to any administrative formality.

The CJEU referred to its previous case law in which it had ruled that the recast Asylum Procedures Directive seeks to ensure effective, easy and rapid access to the asylum procedure, including from the stage of submission of the application (European Commission v Hungary, 16 November 2021, C-821/19). Thus, the court highlighted that Article 6 of requires Member States to ensure that the persons concerned may be able to effectively exercise the right to apply for international protection, including at the borders, as soon as they so wish, and they cannot unjustifiably delay the time at which the person concerned is given the opportunity to submit the application.

The court also noted that the requirement introduced by Hungary to go in person to an embassy to deposit a declaration of intent is not laid down in Article 6 of the recast Asylum Procedures Directive and is contrary to the objective of that provision. It further added that third-country nationals or stateless persons who have irregularly crossed the Hungarian border and who are deprived of their liberty cannot deposit such a declaration of intent in person while they are detained and thus they have no means of seeking asylum in Hungary.

As Hungary argued that it introduced the restriction in order to protect public health, the court noted that Article 6 of the recast Asylum Procedures Directive does not preclude Member States from exceptionally providing for special arrangements designed to limit the spread of a contagious disease in their territory, if those arrangements are appropriate to ensure such an objective and are not disproportionate to that objective. However, the court held that this is not the case with the procedure introduced by Hungary, which exposes persons to the risk of contracting diseases while travelling to an embassy and then spreading them further. It also added that EU law.

With regard to Hungary’s argument that it introduced the restriction to protect public security, the court held that Hungary had not demonstrated such need.

The CJEU thus found that the requirement imposed by Hungary was a manifestly disproportionate interference with the persons’ right to apply for international protection.

Press release of the CJEU on 22 June 2023

"In 2020, following the outbreak of the Covid-19 pandemic, Hungary adopted a new law requiring certain thirdcountry nationals or stateless persons present in the territory of that Member State or presenting themselves at its borders and wishing to benefit from international protection to undergo a prior procedure. That legislation requires them to travel to the Hungarian embassy in Belgrade (Serbia) or Kyiv (Ukraine) in order to submit in person a declaration of intent relating to the submission of an application for international protection. After examining that declaration, the Hungarian authorities can decide to grant a travel document for those third-country nationals or stateless persons, allowing them to enter the Member State to make such an application for international protection. The European Commission considered that by adopting those provisions, Hungary failed to fulfil its obligations under EU law, in particular the directive on common procedures for granting and withdrawing international protection. It brought an action for failure to fulfil obligations before the Court of Justice. In today’s judgment, the Court holds that by making the possibility, for certain third-country nationals or stateless persons present in its territory or at its borders, of making an application for international protection subject to the prior submission of a declaration of intent at a Hungarian embassy situated in a third country and to the grant of a travel document enabling them to enter Hungarian territory, Hungary has failed to fulfil its obligations under the directive. First, the Court finds that those persons fall within the scope of that directive. The obligation, laid down by Hungarian law, to go first to the Hungarian embassies in Belgrade or Kyiv does not have the effect that those persons must be considered merely to have lodged an application for diplomatic or territorial asylum with a representation abroad, to which the directive is not applicable. The Court examines next whether the Hungarian legislation constitutes a restriction on the rights arising from the directive and whether that restriction may be justified in the light of EU law. In the first place, the Court finds that the condition relating to the prior submission of a declaration of intent is not laid down by the directive and is contrary to its objective of ensuring effective, easy and rapid access to the procedure for granting international protection. In addition, according to the Court, that legislation deprives the third-country nationals or stateless persons concerned of the effective enjoyment of their right to seek asylum from Hungary, as enshrined in the Charter of Fundamental Rights of the European Union. In the second place, the Court considers that the restriction laid down may not be justified by the objective of public health protection, and, more specifically, the fight against the spread of Covid-19, as argued by Hungary. While it is true that Member States may, by way of exception, make an application for international protection subject to special arrangements, intended to limit the spread of a contagious disease on their territory, those detailed rules must be appropriate for securing such an objective and must not be disproportionate in the light of that objective. The Court finds that the obligation to travel to an embassy in another country, thus potentially exposing third-country nationals or stateless persons to the risk of contracting Covid-19 that they could then go on to spread in Hungary, cannot be regarded as a measure suitable for combating the spread of the pandemic. Moreover, the procedure implemented by Hungary constitutes a manifestly disproportionate interference with the right of persons seeking international protection to make an application for international protection upon their arrival at a Hungarian border. In that regard, the Court finds that that Member State has not demonstrated that other measures making it possible to reconcile adequately, on the one hand, the effectiveness of the right of any third-country national or stateless person to make an application for international protection on their territory or at their borders and, on the other hand, the fight against contagious diseases could not have been adopted."