C-821/19: AG Rantos gives opinion on Hungary’s failure to fulfil obligations under EU law

Thursday, February 25, 2021

On 25 February 2021, AG Rantos published an opinion in case C-821/19, European Commission v Hungary.
On the first complaint concerning Hungary’s introduction of a ground of inadmissibility for applications for international protection in addition to those listed in Article 33(2) of the recast Procedures Directive (2013/32/EU), AG Rantos referred to the recent judgment in LH (C-564/18) which confirmed the exhaustive nature of the list of grounds of inadmissibility in Article 33(2). He considered the CJEU’s findings in C-925/19 and C-924/19 PPU also applicable in the present case and as the Hungarian Government had not adduced any new elements to justify the need for a reversal of this established case law, AG Rantos indicated that the interpretation should be upheld.
In relation to the second complaint regarding Article 353/A of the Hungarian Criminal Code that criminalises any ‘organising activity’ enabling asylum proceedings to be brought by a person who is not entitled to international protection under national law, AG Rantos opined that prima facie the provision constitutes an obstacle to rights guaranteed by EU law, in so far as it places every person or organisation intending to provide assistance to applicants for international protection in a position of uncertainty. He further opined that it is for the competent national authorities and not legal advisers, persons or organisations offering assistance, to assess whether the reasons given in the application justify protection being granted in accordance with the conditions imposed by the national legislation.
The AG expressed the view that criminalising assistance could have a significant deterrent effect on all persons or organisations who try to promote a change in legislation or a more flexible interpretation of national law or even claim the relevant national law is incompatible with EU law. Further, AG Rantos stated that despite the provision being restricted to ‘organised activity’ and even when interpreted in a strict sense, the scope of Article 353/A is capable of hindering the activities of almost all persons or organisations providing assistance to applicants for international protection. As such, the AG urged the Court to find that the provision is liable to constitute an obstacle to the exercise of the rights guaranteed by EU law in relation to assistance for applicants for international protection.
The second limb of Commission’s second complaint concerns Article 46/F of the law on the police which provides that police officers are to prevent any person who is the subject of criminal proceedings, inter alia, for offences laid down in Article 353/A of the Criminal Code, from entering an area within a distance of 8 kilometres from the border. AG Rantos expressed that the provision undeniably increases the negative effects of provisions such as Article 353/A of the Criminal code, however in his view, the Article is the legitimate application of a general rule in which police authorities can prohibit persons suspected of having committed criminal offences from accessing ‘sensitive’ places. He took the view that when considered in isolation, the provision does not raise compatibility issues with EU law.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

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