Abstract;Judgment — ECLI:EU:C:2024:493
Date: 2024-06-13
Language of the case: Hungarian
Court formation: Fourth Chamber
Subject matter: Provisions governing the Institutions;Area of freedom, security and justice
Procedure: Action for failure to fulfil obligations - successful
Origin: Hungary

summary of the pleas in law relied on, so as to enable the defendant to prepare its defence and the Court to rule on the application. It follows in particular that the essential points of law and of fact on which such an action is based must be indicated coherently and intelligibly in the application itself (judgment of 21 December 2023, Commission v Denmark (Maximum parking time), C‑167/22, EU:C:2023:1020, paragraph 25 and the case-law cited). 52 In the present case, those requirements are met. The Commission set out coherently and precisely, in its application, the reasons which led it to consider that Hungary had not adopted the measures necessary to ensure compliance with the 2020 Commission v Hungary judgment. That institution referred, inter alia, to the amendments made to the Law on the right to asylum in June 2020 in the context of the COVID-19 pandemic, stating that, in its view, those provisions did not lead to compliance with the 2020 Commission v Hungary judgment and that, as it had argued in the case that gave rise to the 2023 Commission v Hungary judgment, they were contrary to EU law. 53 Therefore, the application enables Hungary and the Court to understand exactly the Commission’s position, a condition which must be satisfied in order for that Member State to be able to present an effective defence and in order to enable the Court to ascertain whether that Member State has taken the measures necessary to comply with the 2020 Commission v Hungary judgment. 54 In the light of the foregoing, it must be held that the action is admissible. – Substance 55 Under Article 260(2) TFEU, if the Commission considers that the Member State concerned has not taken the necessary measures to comply with a judgment by which the Court has found that that Member State has failed to fulfil an obligation under the Treaties, it may bring the case before the Court after giving that Member State the opportunity to submit its observations, specifying the amount of the lump sum or penalty payment to be paid by that Member State which it considers appropriate in the circumstances. 56 The reference date for assessing whether there has been a failure to fulfil obligations under Article 260(2) TFEU is the date of expiry of the period prescribed in the letter of formal notice issued under that provision (judgment of 14 December 2023, Commission v Romania (Closure of landfill sites), C‑109/22, EU:C:2023:991, paragraph 37 and the case-law cited). 57 In that regard, it should be noted that the authorities of the Member State concerned participating in the exercise of legislative power are under a duty to amend national legislative provisions which have been the subject of a judgment establishing a failure to fulfil obligations so as to make them conform with the requirements of EU law (see, to that effect, judgment of 13 July 2023, YP and Others (Lifting of a judge’s immunity and his or her suspension from duties), C‑615/20 and C‑671/20, EU:C:2023:562, paragraph 57 and the case-law cited). 58 It must also be borne in mind that the operative part of a judgment establishing a failure to fulfil obligations, which describes the failure to fulfil obligations established by the Court, is of particular importance for the determination of the measures which that Member State is required to adopt in order to comply fully with that judgment. The operative part of that judgment is to be understood in the light of the grounds of that judgment (see, to that effect, judgment of 22 October 2013, Commission v Germany, C‑95/12, EU:C:2013:676, paragraphs 37 and 40 and the case-law cited). 59 In the present case, in the 2020 Commission v Hungary judgment, the Court held that Hungary had failed to fulfil its obligations relating, first, to access to the international protection procedure, second, to the detention of applicants for international protection in the transit zones of Röszke and Tompa, third, to the removal of illegally staying third-country nationals, and, fourth, to the right of applicants for international protection to remain in Hungarian territory until the time limit for exercising their right to an effective remedy has expired and, when such a right has been exercised within the time limit, pending the outcome of the remedy. 60 It should be noted, as a preliminary point, that the Commission’s application does not concern the detention of applicants for international protection in the transit zones of Röszke and Tompa and that, as regards the right of applicants for international protection to remain in Hungarian territory, the application concerns only a situation other than a crisis situation caused by mass immigration. 61 In the first place, as regards access to the international protection procedure, the description of the infringement at issue follows from the introductory wording and the first indent of point 1 of the operative part of the 2020 Commission v Hungary judgment. 62 It follows from the introductory wording of point 1 of the operative part of that judgment that the infringement in question consists in having failed to fulfil Hungary’s obligations under Article 6 of Directive 2013/32. 63 That infringement was established on account of the situation referred to in the first indent of point 1 of that operative part, namely the combination of the requirement that applications for international protection from third-country nationals or stateless persons arriving from Serbia be made in the transit zones of Röszke and Tompa, and the existence of a consistent and generalised administrative practice drastically limiting the number of applicants authorised to enter those transit zones daily. 64 In that regard, the Court held, inter alia, in paragraph 106 of that judgment, that Article 6 of Directive 2013/32 requires Member States to ensure that the persons concerned are able to exercise in an effective manner the right to make an application for international protection, including at their borders, as soon as those persons declare their wish to do so, so that that application is registered and can be lodged and examined in effective observance of the time limits laid down by that directive. As stated in paragraph 104 of that judgment, the very objective of that directive, in particular the objective of Article 6(1) thereof, is to ensure effective, easy and rapid access to the international protection procedure. 65 Therefore, as regards access to the international protection procedure, compliance with that judgment requires Hungary to adopt all the measures necessary to ensure effective, easy and rapid access to the international protection procedure. 66 However, on the date of expiry of the period prescribed in the letter of formal notice, namely 9 August 2021, Hungary had not complied with that requirement. 67 In that regard, contrary to what Hungary submits, the closure of the transit zones of Röszke and Tompa is not sufficient to guarantee effective, easy and rapid access to the international protection procedure. Indeed, it is common ground between the parties that, on the date of expiry of the period prescribed in the letter of formal notice, the regime applicable to access to the international protection procedure was that resulting from the Law of 2020. 68 In that regard, in point 1 of the operative part of the 2023 Commission v Hungary judgment, the Court held that, by making the possibility, for certain third-country nationals or stateless persons present in the territory of Hungary or at the borders of that Member State, of making an application for international protection 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, Hungary had failed to fulfil its obligations under Article 6 of Directive 2013/32. 69 It is apparent from paragraphs 8 to 13 and 37 of that judgment that that finding concerns the provisions of the 2020 Law on access to the international protection procedure, the application of which cannot, therefore, be regarded as valid compliance with the 2020 Commission v Hungary judgment. 70 It is important to clarify that the measures that must be taken in order to comply with a judgment of the Court establishing a failure to fulfil obligations must necessarily be compatible with the provisions of EU law which were found to have been infringed in that judgment, namely, here, Article 6 of Directive 2013/32, and must facilitate the proper application of those provisions. However, as the Court ruled in the 2023 Commission v Hungary judgment, that is not the case, here, with respect to the provisions of the 2020 Law on access to the international protection procedure. 71 Accordingly, it must be held that Hungary has not taken the necessary measures to comply with the 2020 Commission v Hungary judgment as regards access to the international protection procedure. 72 In the second place, as regards the removal of third-country nationals staying illegally in Hungary, the Court held, in the third indent of point 1 of the operative part of the 2020 Commission v Hungary judgment that, in allowing the removal of all third-country nationals staying illegally in its national territory, with the exception of those of them who are suspected of having committed an offence, 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, Hungary had failed to fulfil its obligations under those provisions. 73 Hungary does not dispute the fact that Article 5(1ter) of the Law on State borders, identified in paragraph 254 of that judgment as the national provision justifying that finding, was still in force on the date of expiry of the period prescribed in the letter of formal notice, namely 9 August 2021. However, that Member State considers that situation to be justified on account of the migratory pressure on the ‘Western Balkan migration route’ and the number of displaced persons from Ukraine. 74 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 (see, to that effect, judgment of 8 June 2023, Commission v Slovakia (Right of termination without fees), C‑540/21, EU:C:2023:450, paragraph 86 and the case-law cited). 75 In the third place, as regards the right of applicants for international protection, in a situation other than a crisis situation caused by mass immigration, to remain in Hungarian territory until the time limit for exercising their right to an effective remedy has expired and, when such a right has been exercised within the time limit, pending the outcome of the remedy, in the 2020 Commission v Hungary judgment, the conclusion that Hungary has failed to fulfil its obligations under Article 46(5) of Directive 2013/32 is apparent from the fourth indent of point 1 of the operative part of that judgment. 76 That conclusion is based on the finding, made in paragraphs 289 and 301 of that judgment, that, where a Member State decides to lay down detailed rules governing the exercise of the right to remain in its territory, as established in Article 46(5) of Directive 2013/32, those rules must be defined in a sufficiently clear and precise manner so that the applicant for international protection may ascertain the exact extent of that right and it is possible to assess whether such rules are compatible, inter alia, with Directives 2013/32 and 2013/33. 77 It is apparent from paragraph 297 of that same judgment that, according to Hungary, the conditions to which Article 5(1) of the Law on the right to asylum refers consist in requiring that the person concerned conform to the status of applicant defined by law and, in addition, comply with his or her obligation, as the case may be, to reside in a particular place. 78 First, as stated in paragraph 298 of the 2020 Commission v Hungary judgment, Hungary identifies no provision of the Law on the right to asylum which precisely provides that the right to remain in the territory of a Member State is subject to compliance with a residence condition. 79 Second, as was observed in paragraph 300 of that judgment, the condition requiring compliance with the status of applicant for international protection defined by the law and to which, according to Hungary’s own assertions, the right of residence under Article 5(1)(a) of the Law on the right to asylum is also subject is open to various interpretations and refers to other conditions which have not been identified by that Member State. 80 Thus, compliance with the 2020 Commission v Hungary judgment requires, as regards the infringement in question, amendments to the national legislation, irrespective of the fact relied on by Hungary 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. 81 In that regard, it must be borne in mind 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 (judgment of 24 October 2013, Commission v Spain, C‑151/12, EU:C:2013:690, paragraph 36 and the case-law cited). 82 On the date of expiry of the period prescribed in the letter of formal notice, namely 9 August 2021, Article 5(1)(a) of the Law on the right to asylum was still in force without having been amended, a fact which Hungary does not dispute. 83 In the light of all of the foregoing, it must be found that, by failing to take the measures necessary to ensure compliance with the 2020 Commission v Hungary judgment, Hungary has failed to fulfil its obligations under Article 260(1) TFEU. Financial penalties Arguments of the parties 84 Being of the view that Hungary has still not complied with the 2020 Commission v Hungary judgment, the Commission claims that the Court should order that Member State to pay a lump sum in the amount of EUR 5 468.45 multiplied by the number of days between the date of delivery of that judgment and either the date of compliance by Hungary with that judgment or the date of delivery of the present judgment if the latter date is sooner than the date of compliance with the 2020 Commission v Hungary judgment, the minimum amount of that lump sum being EUR 1 044 000. 85 The Commission also claims that the Court should order Hungary to pay a penalty payment of EUR 16 393.16 per day from the date of delivery of the present judgment until the date Hungary complies with the 2020 Commission v Hungary judgment. 86 Referring to its Communication SEC(2005) 1658 of 12 December 2005, entitled ‘Implementation of Article [260 TFEU]’, as updated in particular by its Communication of 13 April 2021, entitled ‘Adjustment of the calculation for lump sum and penalty payments proposed by the Commission in infringement proceedings before the Court of Justice of the European Union, following the withdrawal of the United Kingdom’ (OJ 2021 C 129, p. 1), the Commission proposes that the amount of the lump sum referred to in paragraph 84 of the present judgment be determined by multiplying a standard flat-rate amount of EUR 895 by a coefficient for seriousness. The result obtained is multiplied by an ‘n’ factor that takes into account, inter alia, the ability to pay of the Member State concerned, and by the number of days the failure to fulfil obligations in question persists. As regards the calculation of the amount of the daily penalty payment referred to in paragraph 85 above, the flat-rate amount is set at EUR 2 683 per day and should be multiplied by that coefficient for seriousness, by a coefficient for duration and by that ‘n’ factor. 87 In the first place, as regards the seriousness of the infringement at issue, the Commission proposes applying a coefficient for seriousness of 13 on a scale of 1 to 20. 88 According to the Commission, the EU rules which were the subject of the infringements at issue are of particular importance. First, Articles 6 and 46 of Directive 2013/32 are essential to ensure the effectiveness of the rights guaranteed by the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations, Treaty Series, Vol. 189, p. 150, No 2545 (1954)), which entered into force on 22 April 1954, as supplemented by the Protocol Relating to the Status of Refugees, concluded in New York on 31 January 1967 and which entered into force on 4 October 1967, and by the Charter of Fundamental Rights of the European Union (‘the Charter’), in particular the right to asylum, respect for the principle of non-refoulement and the right to an effective remedy. Second, the infringement relating to unlawful removals affects several fundamental provisions of Directive 2008/115. 89 According to the Commission, failure to comply with the 2020 Commission v Hungary judgment has significant effects on the public interest and on individual interests. First, the Commission states that, since 2015, it has initiated seven infringement procedures against Hungary in the area of asylum, four of which have been referred to the Court. Persistent non-compliance with EU law risks creating a precedent for other Member States and undermining the Common European Asylum System by transferring responsibility for the reception of applicants for international protection to other Member States and by strengthening illegal trafficking in human beings. Second, the infringements at issue have a serious impact on third-country nationals. 90 Moreover, the Commission identifies aggravating circumstances. Hungary did not cooperate with the Commission during the pre-litigation procedure, as it did not indicate any amendment or repeal of the provisions held to be contrary to EU law. Furthermore, repeated infringements of EU migration and asylum law, manifest disregard of the principle of primacy of EU law and the explicit refusal to comply with a judgment of the Court are extremely serious aggravating factors. 91 In the second place, as regards the duration of the infringement, the Commission proposes applying a coefficient for duration of 1 on a scale of 1 to 3, taking into account the period of ten months which elapsed between the date of delivery of the 2020 Commission v Hungary judgment and the date on which the Commission decided to bring the matter before the Court, namely 12 November 2021. 92 In the third place, as regards the ‘n’ factor, while taking note of the guidance given in the judgment of 20 January 2022, Commission v Greece (Recovery of State aid – Ferronickel) (C‑51/20, EU:C:2022:36) – from which it is apparent that the gross domestic product (GDP) of the Member State concerned is the predominant factor, whereas it is not essential to take account of the institutional weight of that Member State – the Commission nevertheless bases its request on the parameters set out in the communications referred to in paragraph 86 of the present judgment. Against that background, the Commission proposes setting the ‘n’ factor at 0.47 for Hungary. 93 Hungary considers that the Commission erred in its assessment of the gravity of the infringement at issue by failing to take account of the closure of the transit zones of Röszke and Tompa, of the new Hungarian legislation on asylum, of the increasing pressure of illegal migration and of the consequences of Russian aggression against Ukraine. In particular, in its view, on account of the closure of those transit zones, Hungary’s alleged failure to fulfil obligations is much more limited than that at issue in the case that gave rise to the 2020 Commission v Hungary judgment, which should be a fundamental consideration in the assessment of the gravity of the infringement at issue. In addition, it is of the view that on account of the proceedings in the case that gave rise to the 2023 Commission v Hungary judgment, the question of the compatibility of the provisions of the 2020 Law with Article 6 of Directive 2013/32 cannot be taken into account in assessing the seriousness of that infringement. 94 Moreover, Hungary considers that it did not infringe the principle of the primacy of EU law. In that regard, the opening of the procedure before the Alkotmánybíróság (Constitutional Court) referred to in paragraph 17 above, in order to ensure compliance with the Hungarian Basic Law, cannot be regarded as an aggravating circumstance. The Hungarian Government did not make compliance with the 2020 Commission v Hungary judgment subject to the decision of the Alkotmánybíróság (Constitutional Court) referred to in paragraph 20 of the present judgment, but merely waited for that decision. Nor did that government expressly refuse to comply with the 2020 Commission v Hungary judgment; it merely took into account external circumstances, unlike the Commission. 95 Lastly, Hungary, referring to paragraph 55 of the judgment of 30 May 2013, Commission v Sweden (C‑270/11, EU:C:2013:339), asks the Court to take into account, as a mitigating circumstance, the fact that it has never failed to comply with a judgment of the Court to date. Findings of the Court 96 As a preliminary point, it must be 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 (judgment of 14 December 2023, Commission v Romania (Closure of landfill sites), C‑109/22, EU:C:2023:991, paragraph 50 and the case-law cited). 97 It should also be recalled that, in each case, it is for the Court to determine, in the light of the circumstances of the case before it and according to the degree of persuasion and deterrence which appears to it to be required, the financial penalties appropriate, in particular, for preventing the recurrence of similar infringements of EU law (judgment of 14 December 2023, Commission v Romania (Closure of landfill sites), C‑109/22, EU:C:2023:991, paragraph 51 and the case-law cited). – The lump sum payment 98 In accordance with settled case-law, the imposition of a lump sum payment and the fixing of that sum must depend in each individual case on all the relevant factors relating both to the characteristics of the failure to fulfil obligations that was established and to the conduct of the Member State involved in the procedure initiated under Article 260 TFEU. That provision confers a wide discretion on the Court in deciding whether to impose such a penalty and, if it decides to do so, in determining the amount (judgment of 14 December 2023, Commission v Romania (Closure of landfill sites), C‑109/22, EU:C:2023:991, paragraph 78 and the case-law cited). 99 In the present case, all the legal and factual circumstances that have led to the finding of a failure to fulfil obligations indicate that, if the future repetition of similar infringements of EU law is to be effectively prevented, a dissuasive measure must be adopted, such as the imposition of a lump sum payment. 100 In those circumstances, it is for the Court, in the exercise of its discretion, to fix the lump sum in an amount appropriate to the circumstances and proportionate to the infringements (see, to that effect, judgment of 14 December 2023, Commission v Romania (Closure of landfill sites), C‑109/22, EU:C:2023:991, paragraph 80 and the case-law cited). 101 Relevant factors in that regard include the seriousness and duration of the infringements found and the ability of the Member State in question to pay (see, to that effect, judgment of 14 December 2023, Commission v Romania (Closure of landfill sites), C‑109/22, EU:C:2023:991, paragraph 81 and the case-law cited). 102 In the first place, as regards the seriousness of the infringements at issue, a prolonged failure to comply with a ruling of the Court of Justice in itself seriously undermines the principle of legality and the principle of res judicata in a Union based on the rule of law. 103 In that regard, despite the closure of the transit zones of Röszke and Tompa, Hungary has not taken the measures necessary to comply with the 2020 Commission v Hungary judgment as regards several essential aspects of that judgment, namely access to the international protection procedure, the removal of illegally staying third-country nationals and the right of applicants for international protection to remain in Hungarian territory until the time limit for exercising their right to an effective remedy has expired and, when such a right has been exercised within the time limit, pending the outcome of the remedy. 104 In that context, it is necessary to emphasise the importance of the provisions which are the subject of the failure to fulfil obligations established in paragraph 83 above. 105 First, compliance with Article 6 of Directive 2013/32 is necessary in order to ensure, in accordance with the right to asylum recognised in Article 18 of the Charter, the effectiveness of the other provisions of that directive and, as a result, of the common policy on asylum, subsidiary protection and temporary protection as a whole. 106 Infringement of that fundamental provision systematically prevents any access to the international protection procedure, making it impossible for the Member State concerned to apply that policy, as established in Article 78 TFEU, in its entirety. 107 It should be noted that the deliberate evasion by a Member State of the application of a common policy as a whole constitutes an unprecedented and exceptionally serious infringement of EU law, which represents a significant threat to the unity of EU law and to the principle of equality of the Member States, referred to in Article 4(2) TEU. 108 As regards the specific case of the common policy on asylum, subsidiary protection and temporary protection, such an infringement undermines in a particularly seriously manner both the public interest and the interests of third-country nationals and stateless persons wishing to apply for international protection. In particular, the systematic avoidance of applications for international protection deprives the Convention Relating to the Status of Refugees, as supplemented by the Protocol Relating to the Status of Refugees, to which all Member States are parties and which constitutes the cornerstone of the international legal regime for the protection of refugees, of its essential effects as regards the Member State concerned (see, to that effect, judgment of 16 January 2024, Intervyuirasht organ na DAB pri MS (Women victims of domestic violence), C‑621/21, EU:C:2024:47, paragraph 36 and the case-law cited). Furthermore, the fact that it is impossible for third-country nationals or stateless persons to make an application for international protection at the Hungarian border deprives those persons of the effective enjoyment of their right, as guaranteed by Article 18 of the Charter, to seek asylum in Hungary (see, to that effect, the 2023 Commission v Hungary judgment, paragraph 52). 109 Second, compliance with Article 46(5) of Directive 2013/32 is essential in order to ensure, as regards applicants for international protection, the effectiveness of the principle of effective judicial protection of an individual’s rights under EU law, which is a general principle of EU law stemming from the constitutional traditions common to the Member States, enshrined in Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and now reaffirmed in Article 47 of the Charter (see, to that effect, judgment of 7 September 2023, Asociaţia ‘Forumul Judecătorilor din România’, C‑216/21, EU:C:2023:628, paragraph 59). 110 Third, Articles 5, 6, 12 and 13 of Directive 2008/115 establish fundamental guarantees, in particular with regard to the right to protection in the event of removal and expulsion, enshrined in Article 19 of the Charter, for the application of that directive. 111 By allowing, without complying with those guarantees, the removal of all third-country nationals staying illegally on its territory, with the exception of those of them who are suspected of having committed an offence, a Member State fails to have regard to much of the content of the requirements concerning the procedures applicable to the return of illegally staying third-country nationals, which, pursuant to Article 79(2)(c) TFEU, is a vital component of the common immigration policy. 112 Moreover, the fact that proceedings concern a failure to comply with a judgment relating to a general and persistent practice has the effect of rendering the failure to fulfil obligations in question more serious (judgment of 2 December 2014, Commission v Italy, C‑196/13, EU:C:2014:2407, paragraph 100). 113 It should be noted that, by failing to take the measures necessary to comply with the 2020 Commission v Hungary judgment, Hungary is systematically and deliberately evading the application of the common policy on asylum, subsidiary protection and temporary protection, and the rules relating, in the context of a common immigration policy, to the return of persons residing without authorisation, which constitutes an exceptionally serious breach of EU law. 114 It should be added that Hungary’s conduct has the effect, inter alia, of transferring to the other Member States its responsibility, including financial responsibility, for ensuring the reception of applicants for international protection in the European Union, for examining applications in accordance with the procedures for granting and withdrawing that protection, and for ensuring arrangements for the return of illegally staying third-country nationals that comply with EU law. 115 Such conduct seriously undermines the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States, which governs, in accordance with Article 80 TFEU, the common policy on asylum, subsidiary protection and temporary protection and the common immigration policy (see, to that effect, judgment of 2 April 2020, Commission v Poland, Hungary and Czech Republic (Temporary mechanism for the relocation of applicants for international protection), C‑715/17, C‑718/17 and C‑719/17, EU:C:2020:257, paragraph 80 and the case-law cited). 116 In that regard, it should be recalled that the principle of solidarity is one of the fundamental principles of EU law and is one of the values common to the Member States on which the European Union is founded, pursuant to Article 2 TEU (see, to that effect, judgment of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 129 and the case-law cited). 117 By unilaterally upsetting the balance between the advantages and obligations arising from its membership of the European Union, a Member State calls into question observance of the principle of equality of the Member States before EU law. That failure in the duty of solidarity accepted by the Member States by the fact of their accession to the European Union strikes at the very root of the EU legal order (see, to that effect, judgment of 7 February 1979, Commission v United Kingdom, 128/78, EU:C:1979:32, paragraph 12). 118 It follows from all of the foregoing that the failure to comply with the 2020 Commission v Hungary judgment has 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. 119 It is true that account must be taken of the fact that Hungary has not previously been the subject of any proceedings brought under Article 260 TFEU (see, by analogy, judgment of 14 December 2023, Commission v Romania (Closure of landfill sites), C‑109/22, EU:C:2023:991, paragraph 63 and the case-law cited). 120 However, in addition to the exceptional seriousness of the infringement in question, it is necessary also to take into consideration, as an aggravating circumstance, the repetition of the unlawful conduct of that Member State (see, by analogy, judgment of 20 January 2022, Commission v Greece (Recovery of State aid – Ferronickel), C‑51/20, EU:C:2022:36, paragraph 103), which led to various other findings of infringements in the area of international protection (judgments of 2 April 2020, Commission v Poland, Hungary and Czech Republic (Temporary mechanism for the relocation of applicants for international protection), C‑715/17, C‑718/17 and C‑719/17, EU:C:2020:257; of 16 November 2021, Commission v Hungary (Criminalisation of assistance to asylum seekers), C‑821/19, EU:C:2021:930; and the 2023 Commission v Hungary judgment). 121 Furthermore, account must be taken of the fact that the Hungarian Government stated that it was appropriate to wait, before complying with the 2020 Commission v Hungary judgment, for the completion of the proceedings, referred to in paragraph 17 of the present judgment, which it had initiated before the Alkotmánybíróság (Constitutional Court), and the decision of that court referred to in paragraph 44 of the present judgment. 122 In that regard, it should be recalled that, by virtue of the principle of the primacy of EU law, a Member State’s reliance on rules of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of EU law. Compliance with the obligations following from that principle is necessary in particular in order to ensure respect for the equality of Member States before the Treaties and constitutes an expression of the principle of sincere cooperation set out in Article 4(3) TEU (judgment of 5 June 2023, Commission v Poland (Independence and private life of judges), C‑204/21, EU:C:2023:442, paragraph 77 and the case-law cited). 123 In addition, following the 2020 Commission v Hungary judgment, Hungary, instead of ensuring full compliance with that judgment, extended the applicability ratione temporis of the provisions of the 2020 Law, which were also incompatible with Article 6 of Directive 2013/32, as was held in the 2023 Commission v Hungary judgment. 124 In those circumstances, Hungary’s conduct shows that it has not acted in accordance with its duty of sincere cooperation to put an end to the failure to fulfil obligations established by the Court in the 2020 Commission v Hungary judgment, which constitutes an additional aggravating circumstance (see, by analogy, judgment of 12 November 2019, Commission v Ireland (Derrybrien wind farm), C‑261/18, EU:C:2019:955, paragraph 120). 125 Lastly, it must be stated that migratory movements over recent years, and in particular those following the Russian aggression against Ukraine, cannot be regarded, in the present case, as a mitigating circumstance since Hungary has not established, in its written observations or at the hearing, how it was prevented, as a result of those migratory movements, from adopting the measures necessary to comply with the 2020 Commission v Hungary judgment. 126 In the second place, as regards the duration of the infringements at issue, it should be borne in mind that that duration must be assessed by reference to the date on which the Court assesses the facts (judgment of 20 January 2022, Commission v Greece (Recovery of State aid – Ferronickel), C‑51/20, EU:C:2022:36, paragraph 105 and the case-law cited). 127 In order to determine whether the failure on the part of the defendant to fulfil obligations continued up until the Court’s examination of the facts, it is necessary to consider the measures which were adopted, according to that party, after the period prescribed in the letter of formal notice (judgment of 14 December 2023, Commission v Romania (Closure of landfill sites), C‑109/22, EU:C:2023:991, paragraph 53 and the case-law cited). 128 Hungary has not mentioned any measure, adopted between the date of expiry of that time limit and the end of the written part of the procedure, that is capable of calling into question the finding made in paragraph 83 of the present judgment. It stated at the hearing that there had been no change in the relevant national legislation since the end of the written part of the procedure. 129 It is therefore established that the failure to fulfil obligations has continued for more than three years after the date of delivery of the 2020 Commission v Hungary judgment, which is a considerable period of time. 130 Although Article 260(1) TFEU does not specify the period within which a judgment must be complied with, it follows from settled case-law that the importance of the immediate and uniform application of EU law means that the process of compliance must be initiated at once and completed as soon as possible (judgment of 14 December 2023, Commission v Romania (Closure of landfill sites), C‑109/22, EU:C:2023:991, paragraph 67 and the case-law cited). 131 In the third place, as regards the ability of the Member State concerned to pay, its GDP should be taken as the predominant factor, without taking account of its institutional weight. In that regard, it is also necessary to take account of recent trends in that Member State’s GDP at the time of the Court’s examination of the facts (judgment of 14 December 2023, Commission v Romania (Closure of landfill sites), C‑109/22, EU:C:2023:991, paragraph 69 and the case-law cited). 132 In the light of the foregoing considerations, and in particular the exceptional seriousness of the infringements at issue and Hungary’s failure to cooperate in good faith in order to bring them to an end, the Court considers it appropriate to impose a lump sum, the amount of which must be set at EUR 200 000 000. 133 Hungary must, therefore, be ordered to pay the Commission a lump sum of EUR 200 000 000. – The penalty payment 134 According to settled case-law, in exercising the discretion conferred on it in such matters, the Court is empowered to impose a penalty payment and a lump sum payment cumulatively (judgment of 14 December 2023, Commission v Romania (Closure of landfill sites), C‑109/22, EU:C:2023:991, paragraph 77 and the case-law cited). 135 The imposition of a penalty payment is, in principle, justified only in so far as the failure to comply with an earlier judgment of the Court continues up to the time of the Court’s examination of the facts (judgment of 14 December 2023, Commission v Romania (Closure of landfill sites), C‑109/22, EU:C:2023:991, paragraph 52 and the case-law cited). 136 In the present case, as established in paragraph 129 of the present judgment, Hungary’s failure to fulfil obligations has continued up to the time of the Court’s examination of the facts of the case. 137 In those circumstances, an order imposing a periodic penalty payment on Hungary is an appropriate financial means by which to encourage that Member State to take the measures necessary to put an end to the failure to fulfil obligations established and to ensure full compliance with the 2020 Commission v Hungary judgment (see, by analogy, judgment of 14 December 2023, Commission v Romania (Closure of landfill sites), C‑109/22, EU:C:2023:991, paragraph 55 and the case-law cited). 138 In that regard, according to settled case-law, that penalty payment must be decided upon according to the degree of persuasion needed in order for the Member State in question to alter its conduct and bring to an end the impugned conduct (see, to that effect, judgment of 14 December 2023, Commission v Romania (Closure of landfill sites), C‑109/22, EU:C:2023:991, paragraph 56 and the case-law cited). 139 In exercising its discretion in the matter, it is for the Court to set that penalty payment so that it is both appropriate to the circumstances and proportionate to the infringement established and the ability to pay of the Member State concerned (judgment of 14 December 2023, Commission v Romania (Closure of landfill sites), C‑109/22, EU:C:2023:991, paragraph 57 and the case-law cited). 140 The Commission’s proposals regarding the amount of that penalty payment cannot bind the Court and are merely a useful point of reference. The Court must remain free to set the penalty payment to be imposed in an amount and in a form that it considers appropriate for the purposes of inducing the Member State concerned to bring to an end its failure to comply with its obligations arising under EU law (judgment of 14 December 2023, Commission v Romania (Closure of landfill sites), C‑109/22, EU:C:2023:991, paragraph 58 and the case-law cited). 141 For the purposes of determining the amount of a penalty payment, the basic criteria which must be taken into consideration in order to ensure that that payment has coercive effect and that EU law is applied uniformly and effectively are, in principle, the seriousness of the infringements, their duration and the capacity of the Member State in question to pay. 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 (see, to that effect, judgment of 14 December 2023, Commission v Romania (Closure of landfill sites), C‑109/22, EU:C:2023:991, paragraph 59 and the case-law cited). 142 In the present case, in the light of all the legal and factual circumstances which led to the finding of a failure to fulfil obligations as well as the considerations set out in paragraphs 102 to 131 of the present judgment, the Court considers it appropriate to impose a penalty payment of EUR 900 000 per day in respect of Article 6 and Article 46(5) of Directive 2013/32, and to impose a penalty payment of EUR 100 000 per day in respect of Articles 5, 6, 12 and 13 of Directive 2008/115. 143 Hungary must therefore be ordered to pay the Commission a penalty payment of EUR 900 000 per day of delay in implementing the measures necessary to comply with the 2020 Commission v Hungary judgment, from the date of delivery of the present judgment until the date of full compliance with that first judgement in so far as concerns Article 6 and Article 46(5) of Directive 2013/32. Hungary must also be ordered to pay the Commission a penalty payment of EUR 100 000 per day of delay in implementing the measures necessary to comply with the 2020 Commission v Hungary judgment, from the date of delivery of the present judgment until the date of full compliance with that first judgement in so far as concerns Articles 5, 6, 12 and 13 of Directive 2008/115. Costs 144 Under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Hungary has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, the Court (Fourth Chamber) hereby: 1. Declares that, by failing to take all the measures necessary to comply with the judgment of 17 December 2020, Commission v Hungary (Reception of applicants for international protection) (C‑808/18, EU:C:2020:1029), Hungary has failed to fulfil its obligations under Article 260(1) TFEU; 2. Orders Hungary to pay the European Commission a lump sum in the amount of EUR 200 000 000; 3. Orders Hungary to pay the Commission a penalty payment of EUR 900 000 per day from the date of delivery of the present judgment until the date of compliance with the judgment of 17 December 2020, Commission v Hungary (Reception of applicants for international protection) (C‑808/18, EU:C:2020:1029), in so far as concerns Article 6 and Article 46(5) of 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; 4. Orders Hungary to pay the Commission a penalty payment of EUR 100 000 per day from the date of delivery of the present judgment until the date of compliance with the judgment of 17 December 2020, Commission v Hungary (Reception of applicants for international protection) (C‑808/18, EU:C:2020:1029), in so far as concerns Articles 5, 6, 12 and 13 of 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; 5. Orders Hungary to pay the costs. [Signatures] * Language of the case: Hungarian.