Hungary's Lawsuit against the Court of Justice

https://doi.org/10.63189/GHAH8246

In July 2024, the Court of Justice (CJEU) decided in case C-123/22 European Commission v. Hungary to impose on Hungary a hitherto unprecedented lump sum fine and record-equalling periodic penalty payment for breaching the EU migration rules (the Penalty Judgment),^[i] found by the CJEU already in 2020 in case C-808/18 European Commission v. Hungary (the Infringement Judgment).^[ii] In a similarly unprecedented way, Hungary brought in December 2025 an action for damages against the CJEU by the General Court (GC) in case T-855/25 Hungary v. Court of Justice of the European Union (Action for Damages).

In this contribution, we will introduce the facts of the case, starting from the Infringement Judgment to the Action of Damages. In the following contribution, we will analyse its legal implications.

The Infringement

We are not going to discuss the merits of the Infringement Judgment in this paper.^[iii] Only to summarise briefly, in the C-808/18 judgment, Hungary was found by a Grand Chamber ruling to have infringed multiple provisions of three migration directives.^[iv] The illegal conduct constated in five four, namely in (i)  providing that applications for international protection from third-country nationals or stateless persons arriving from Serbia may be made only in the transit zones of Röszke and Tompa, while adopting a consistent and generalised administrative practice drastically limiting the number of applicants authorised to enter those transit zones daily; (ii) establishing a system of systematic detention of applicants for international protection in the transit zones of Röszke and Tompa, without observing the guarantees provided for in the migration directives; (iii) allowing the removal of all third-country nationals staying illegally in its territory, with the exception of those of them who are suspected of having committed a criminal offence, without observing the procedures and safeguards laid down in the migration directives; and (iv) making the exercise by applicants for international protection of their right to remain in its territory subject to conditions contrary to EU law.

Further developments

Following the Infringement Judgment, Hungary closed transit zones of Röszke and Tompa. Hungary also changed its migration legislation, in particular in reaction to the COVID-19 pandemic. In particular, it made the possibility of making an application for international protection for third-country nationals or stateless persons present in the territory of Hungary or at its borders subject to the prior lodging of a declaration of intent at a Hungarian embassy located in a third country and to the granting of a travel document enabling them to enter Hungarian territory; these amendments were however also found to be contrary to the EU law in a later CJEU infringement judgment.^[v]

Concerning the other practices described in the Infringement Judgment, the government of Hungary declared that it is faced with a “constitutional dilemma” and brought an action before the Alkotmánybíróság (the Constitutional Court), seeking to determine whether the Magyarország Alaptörvénye (Hungarian Basic Law) could be interpreted as meaning that Hungary may implement an obligation under EU law which, in the absence of effectiveness of EU legislation, may lead a third-country national staying illegally in Hungary to reside there for an indefinite period and, therefore, to be a de facto member of its population.^[vi] The Constitutional Court decided by the end of 2021 that first, as long as the European Union did not exercise a shared competence effectively, Hungary could exercise that competence, and second, that if the inadequacy of the exercise by the European Union of a shared competence was such as to result in an infringement of the right to identity of persons residing in Hungary, the Hungarian State was required to ensure the protection of that right and, third, that the protection of Hungary’s inalienable right to determine its territorial integrity, its population, its form of government and its state structure formed part of its constitutional identity.^[vii]

Taking the view that there was no compliance with the Infringement Judgment, the Commission brought another action against Hungary in February 2022. Because of the changes in Hungarian legislation, the action however did not concern al the infringements identified in the Infringement decision. The detention of applicants for international protection in the transit zones of Röszke and Tompa was no longer called into question, as it was abolished. Similarly, concerning the right of applicants for international protection to remain in Hungarian territory, the application concerned only a situation other than a crisis situation caused by mass immigration

The Penalty Judgment

The CJEU concluded that Hungary failed to take the measures necessary to ensure compliance with the 2020 Infringement Judgment and had failed to fulfil its obligations under Article 260 (1) of the Treaty on the Functioning of the EU (TFEU).

Concerning the conditions for access to international protection, the CJEU declared that closure of transit zones of Röszke and Tompa was in itself not sufficient to fulfil Hungary's obligation. Neither was the amendment of its migration law in 2020, which was also found contrary to EU law in another CJEU proceedings.^[viii]

As regards the removal of third-country nationals staying illegally in Hungary, it was not disputed that the legislation had not changed. Hungary argued that that was justified by the increasing migratory pressure on the ‘Western Balkans migration route’ and the large number of refugees from Ukraine since February 2022.^[ix] The CJEU nonetheless replied that a Member State cannot plead practical, administrative or financial difficulties or difficulties of a domestic nature to justify failure to observe obligations arising under EU law.^[x]

As regards, finally, the right of applicants for international protection, in a situation other than a crisis situation caused by mass immigration, to remain in Hungarian territory, Hungary argued that in practice, the Hungarian authorities do not proceed with an expulsion until the decision of the authorities rejecting the asylum application has become final.^[xi] The CJEU retorted that mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under EU law.^[xii]

The Penalty

The CJEU recalled that the procedure laid down in Article 260 (2) TFEU is aimed at inducing a defaulting Member State to comply with a judgment establishing a failure to fulfil obligations, thereby ensuring that EU law is in fact applied, and the measures provided for by that provision, namely a lump sum and a penalty payment, are both intended to achieve that objective.^[xiii] According to the CJEU, it was justified to employ both of these measures in this case.^[xiv]

Concerning the lump sum, the CJEU identified twelve reasons why the infringement was serious^[xv] and concluded that he failure to comply with the 2020 Infringement Judgment had “an extraordinarily serious impact on both the public interest and private interests, in particular the interests of third-country nationals and stateless persons wishing to apply for international protection”.^[xvi]

As an aggravating circumstance, the CJEU took into consideration the repetition of the unlawful conduct.^[xvii] The CJEU also took into account the fact that Hungary consulted the Constitutional Court (and waited with any possible action to its opinion), thus taking into question the primacy of EU law.^[xviii] The fact that the infringement lasted in effect more than three years, “a considerable period of time”,^[xix] was also calculated.

On the basis of these considerations, taking into account the seriousness and duration of the infringements found and the ability of the Member State in question to pay,^[xx] the Hungary was ordered to pay the Commission a lump sum of EUR 200 000 000.^[xxi] This amounts to the highest lump sum penalty ever imposed on a Member State. It also equals more than 191 times the fine that the Commission had sought.^[xxii]

Concerning the periodic penalty payment, the CJEU took into account the same criteria as with the lump sum.^[xxiii] The Court observed that in applying those criteria, regard must be had in particular to the effects of failure to comply on private and public interests and to the urgency of inducing the Member State concerned to fulfil its obligations.^[xxiv] Without going into more details, the Court decided on a cumulative periodic penalty payment of EUR 1 000 000 per day,^[xxv] equalling to the maximum periodic penalty imposed so far^[xxvi] and to more than 61 times the amount sought by the Commission.^[xxvii]

Action for damages

The level of sanctions imposed on Hungary is unprecedented. Similarly unprecedented, however, is the Hungary's next move. In December 2025, Hungary brought to the General Court an action for damages, based on the non-contractual liability of the EU for the Penalty Judgment (Action for Damages).^[xxviii]  The Action for Damages claims that the CJEU has manifestly and gravely disregarded the limits on its discretion under Article 260 (2) TFEU and thus committed a sufficiently serious violation of EU law, which has caused damage to the applicant.

The Damages Action is based on three pleas in law. The first plea in law alleges that the CJEU acted in breach of the right to a fair trial under Article 47 (2) of the Charter of Fundamental Rights of the European Union. The second plea alleges that the CJEU acted in breach of the principle of equality between the Member States under Article 4 (2) TEU. And finally, the third plea in law alleges that the CJEU acted in breach of the principles of legal certainty, foreseeability and transparency.^[xxix]

No Member State has so far brought an action for damages against the EU, based on breach of law consisting in a final judgement of the CJEU. The merits of this case and its legal analysis will be discussed in my next contribution on this topic.

^[i] CJEU, C-123/22, 13 July 2022.

^[ii] CJEU, C-808/18, 17 December 2020.

^[iii] In detail, see e.g. Myl (2022)

^[iv] Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals; directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast); directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast).

^[v] CJEU, C‑823/21, 22 June 2023.

^[vi] Penalty Judgment, par. 17.

^[vii] Penalty Judgment, par. 20.

^[viii] Penalty Judgment, par. 71.

^[ix] Penalty Judgment, par. 44.

^[x] Penalty Judgment, par. 74.

^[xi] Penalty Judgment, par. 46.

^[xii] Penalty Judgment, par. 81.

^[xiii] Penalty Judgment, par. 96.

^[xiv] Penalty Judgment, par. 134.

^[xv] Gavin (2025), p. 903.

^[xvi] Penalty Judgment, par. 118; emphasis added.

^[xvii] Penalty Judgment, par. 120; the CJEU referred to cases three other cases, listed in that paragraph.

^[xviii] Penalty Judgment, par. 121.

^[xix] Penalty Judgment, par. 129.

^[xx] Penalty Judgment, par. 101.

^[xxi] Penalty Judgment, par. 133.

^[xxii] Gavin (2025), p. 904.

^[xxiii] Penalty Judgment, par. 141.

^[xxiv] Penalty Judgment, par. 141.

^[xxv] Penalty Judgment, par. 142.

^[xxvi] The same level was reached before in CJEU, C-204/21 R, 6 October 2021.

^[xxvii] Gavin (2025), p. 904.

^[xxviii] Mellersh (2025).

^[xxix] CJEU, case T-855/25: Action brought on 15 December 2025 – Hungary v Court of Justice of the European Union (C/2026/1223),9 March 2026, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62025TN0855.

References

Gavin, B. (2025), ‘Introductory Note to Case C-123/22, Comm'n v. Hung. (C.J.E.U.)’, International Legal Materials, 64 (3), pp. 903-924.

Mellersh, N. (2025), ‘Hungary files lawsuit against EU court over migration-related fine’, InfoMigrants, 17 December 2025, available at: https://www.infomigrants.net/en/post/68777/hungary-files-lawsuit-against-eu-court-over-migrationrelated-fine.  

Myl, M. (2022), ‘What might be the future migration and asylum policy of the European Union? Comment on the judgement of the Court of Justice, case C-808/18 European Commission v Hungary’, Polish Review of International and European Law, 11 (1), pp. 151-168.