The European Commission and Hungarian cases concerning migration policy before the CJEU
- Krzysztof Masło
- 6 hours ago
- 6 min read
Migration policy is a matter of concern for the EU and its Member States. The EU’s ‘border’ states are the most concerned with combating irregular migration. They are not only exposed to significant migratory pressure. In accordance with EU regulations, as the state of first entry of a migrant into the EU, these states are responsible for examining applications for international protection. These countries generally take consistent measures aimed at curbing irregular migration and ensuring effective control over migration flows. Such measures are taken by, amongst others, Poland, Hungary, Greece and Italy. They vary in nature, but their common feature is to prevent irregular migrants from reaching the territory of an EU Member State. The otherwise legitimate aim of protecting the internal security of EU Member States has met with a reaction from the European Commission. This reaction varies across different EU Member States. To date, the only EU Member State against which the European Commission (EC) has decided to initiate infringement proceedings under Article 258 TFEU regarding national measures to control illegal migration is Hungary. The CJEU has already issued several judgments against Hungary and the asylum policy pursued by the government in Budapest. The most significant cases are C-808/18,[1] C-821/19[2], C-823/21[3] and the ‘enforcement’ case C-123/22[4].
The first of the above cases (C-808/18) concerns measures taken by the Hungarian government after 2015. As part of its efforts to combat illegal migration via the so-called Balkan route, Hungary built a fence on the border with Serbia and established so-called transit zones in Röszke and Tompa. These were the only places where it was possible to apply for asylum. Asylum seekers staying in the transit zones were not allowed to enter Hungarian territory, although they were free to leave the zone via the Serbian side. The Hungarian government also introduced a series of legislative changes which restricted access to the asylum procedure and allowed migrants to be turned back without any real opportunity to apply for asylum. Those whose asylum applications were rejected were not permitted to remain on Hungarian territory pending the outcome of their appeal.
Another case brought by the European Commission against Hungary (C-821/19) concerned a package of laws adopted by Hungary in June 2018. Their aim was to curb illegal migration and effectively safeguard the EU’s external border. Hungary introduced regulations that criminalised the provision of assistance to migrants. Acts deemed criminal included, amongst others: providing information on the asylum procedure, assisting with the preparation of applications, and supporting migrants’ stay in the country. Restrictions on access to the asylum procedure were also introduced. The new provisions allowed an application to be deemed inadmissible if the migrant had arrived via a country where they were not at risk of persecution.
Case C-823/21 was the result of legislative changes made by the government in Budapest following earlier CJEU judgments finding Hungarian law to be incompatible with EU law. Following the CJEU judgment in Case C-808/18, Hungary amended its asylum system and introduced a new mechanism for accessing international protection. A person who was on Hungarian territory or at the border and wished to apply for asylum could not submit an asylum application directly. Instead, they had to go to the Hungarian embassy in a third country, submit a declaration of intent to apply for asylum there, and await a decision from the Hungarian authorities. Only after obtaining the Hungarian authorities’consent could they receive a document allowing them to enter Hungary and submit a proper application for international protection.
The CJEU successively challenged the system for protecting the EU’s external border developed by the government in Budapest. All of the above cases concluded with the CJEU ruling that Hungary had infringed EU law (including the Procedures Directive and the Reception Conditions Directive). The CJEU held that border protection does not justify a breach of EU law, and that transit zones constitute de facto detention. A return to Serbia effectively meant waiving the right to international protection. Furthermore, restrictions on access to the right to asylum would render that right purely illusory. According to the CJEU, pushbacks violated EU return procedures, as they took place without an administrative decision being issued and without the right to appeal being guaranteed. They therefore circumvented the asylum procedure provided for by EU law.
Although Hungary had established a system that not only curbed illegal border crossings but also hindered or prevented access to the asylum procedure, further legislative changes introduced by the government in Budapest were met with a strong reaction from the European Commission. The Commission found that the Hungarian government had failed to comply with the CJEU judgment and initiated an ‘enforcement’ procedure against Budapest under Article 260 TFEU, based on a system of financial penalties. In its judgment of 13 June 2024, the CJEU found that Hungary had failed to comply with the judgment in Case C-808/18, and that the infringement was serious and persistent. According to the CJEU, migrants still had no real opportunity to lodge an asylum application and could not remain on Hungarian territory whilst their cases were being examined. Pushbacks were still being carried out. The CJEU imposed a massive fine on Hungary: a lump sum of €200 million and €1 million for each day of delay in complying with the judgment. This judgment has not been complied with, and Hungary has sued the EU institutions for damages.[5]
When considering the migration crisis and the measures taken by states to stem the uncontrolled influx of irregular migration, one cannot help but feel that the Hungarian government has been treated differently by the European Commission. The influx of irregular migrants affects many EU ‘border’ states (including Poland, Greece, Italy and Spain). Numerous proceedings have been brought before the CJEU against these states concerning the measures they have employed to combat irregular migration. None of them has so far been sued by the European Commission under the infringement procedure (Article 258 TFEU).
The practices employed by these countries are similar. Greece, for example, has built a border wall on its land border with Turkey. It also applies a restrictive asylum and deportation policy, as well as pushbacks, sending migrants back to Turkey. The Greek government also applies a temporary suspension of the processing of asylum applications for certain groups, e.g. from North Africa, and an accelerated procedure for rejecting applications for international protection. Meanwhile, the Italians turn back boats carrying migrants sailing from Libya. The Italian government is concluding agreements with third countries to externalise the provision of international protection. Such an agreement has been concluded with Albania. On this basis, centres for migrants have been established on Albanian territory. Migrants intercepted at sea are sent to these centres rather than to Italy. In these centres, accelerated deportation procedures are applied.
The European Commission is closely scrutinising Greek and Italian legislation and is engaged in dialogue with the governments of these countries. However, it has not decided to lodge a formal complaint against these countries. It would have plenty of grounds to do so. The practice of pushbacks has been challenged by the ECtHR, and there is currently no indication that the Court’s position will change.[6] Furthermore, as early as 2022, OLAF accused the EU agency FRONTEX of violating fundamental rights whilst cooperating with the Greek coastguard during return operations.[7] The OLAF report also led to a situation in which irregular migrants sued FRONTEX for compensation.[8]
Criticism of the liberal migration policy pursued by the European Commission and the ECtHR is slowly beginning to gain traction in Europe. On 15 May 2026, the member states of the Council of Europe adopted the Chisinau Declaration.[9] The declaration states that the decision to deport a foreign national is a matter for the state and that the ECtHR should not question it. The ECtHR is to act in a subsidiary capacity, rather than supplanting the actions of state authorities, in particular the judicial and administrative bodies ruling on deportation. Subsidiarity also applies to the factual and legal findings made by these bodies. The ECtHR should therefore not substitute its own findings for those made by these authorities. The Chisinau Declaration also confirmed the legality of the practice whereby states establish centres outside their own territory where foreign nationals await a decision on international protection. Only time will tell how effectively this declaration will influence the understanding of fundamental rights in the EU. This declaration has shown that European states have had enough of a liberal migration policy and wish to effectively control migration flows across their own borders and safeguard their internal security.
[1] Commission v Hungary, C-808/18, Judgment of the CJEU of 17 December 2020, ECLI:EU:C:2020:1029.
[2] Commission v Hungary, C-821/19, Judgment of the CJEU of 16 November 2021, ECLI:EU:C:2021:930.
[3] Commission v Hungary, C-823/21, Judgment of the CJEU of 22 June 2023, ECLI:EU:C:2023:504.
[4] Commission v Hungary, C-123/22, Judgment of the CJEU of 13 June 2024, ECLI:EU:C:2024:493.
[5] See: Petr, „Legal Implications of the Hungary's Lawsuit against the Court of Justice”, https://www.ceaclaw.org/post/legal-implications-of-the-hungary-s-lawsuit-against-the-court-of-justice.
[6] Case of A.R.E. v. Greece, Application No(s) 15783/21, Judgment (Merits and Just Satisfaction) of 7 January 2025, ECLI:CE:ECHR:2025:0107JUD001578321.
[8] WS and Others v. the European Border and Coast Guard Agency (Frontex), C-679/23 P, Judgment of the Court (Grand Chamber) of 18 December 2025, ECLI:EU:C:2025:976; Alaa Hamoudi v European Border and Coast Guard Agency (Frontex), C-136/24 P, judgment of the Court (Grand Chamber) of 18 December 2025, ECLI:EU:C:2025:977.