Opinion of the Advocate General — ECLI:EU:C:2019:1056
Date: 2019-12-05
Language of the case: Hungarian
Subject matter: Asylum policy;Area of freedom, security and justice;Border checks
Procedure: Reference for a preliminary ruling
Origin: Hungary

Translation C-564/18 — 1 
Case C-564/18 
Request for a preliminary ruling 
Date lodged: 
7 September 2018 
Referring court: 
Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest 
Administrative and Labour Court, Hungary) 
Date of the decision to refer: 
21 August 2018 
Applicant: 
LH 
Defendant: 
Bevándorlási és Menekültügyi Hivatal 
  
The Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and 
Labour Court, Hungary), in administrative proceedings concerning the grant of 
refugee status, or subsidiary protection, between LH […], the applicant, and the 
Bevándorlási és Menekültügyi Hivatal (Immigration and Asylum Office) […], the 
defendant, has the made 
the order 
the operative part of which is follows: 
This court makes a reference for a preliminary ruling to the Court of Justice of the 
European Union, requesting that it be dealt with under the urgent preliminary 
ruling procedure. 
This court stays the proceedings until the urgent preliminary ruling procedure is 
concluded. 
This court refers the following questions to the Court of Justice for a 
preliminary ruling: 
EN 
REQUEST FOR A PRELIMINARY RULING OF 21. 8. 2018 — CASE C-564/18 – 1  
 
2  
1. May the provisions on inadmissible applications in Article 33 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 (recast) 
(‘the Procedures Directive’) be interpreted as not precluding a Member State’s 
legislation pursuant to which an application is inadmissible in the context of the 
asylum procedure when the applicant has arrived in that Member State, Hungary, 
via a country where he is not exposed to persecution or a risk of serious harm, or 
in which a sufficient degree of protection is guaranteed? 
2. May Article 47 of the Charter of Fundamental Rights and Article 31 of the 
Procedures Directive — having regard also to the provisions of Articles 6 and 13 
of the European Convention on Human Rights — be interpreted as meaning that a 
Member State’s legislation complies with those provisions when it lays down a 
mandatory time limit of eight days for the administrative-law proceedings before a 
court in respect of applications declared inadmissible in asylum procedures? 
[…] [procedural aspect of national law] 
Grounds: 
On 19 July 2018, the applicant, a Syrian national of Kurdish ethnicity, made an 
application for refugee status, arguing that since before the war he had been 
considering living in Europe because he wished to pursue archaeological studies 
there. 
At the end of the procedure which it carried out, the competent asylum authority 
[…] adopted a decision rejecting the applicant’s application for that status as 
inadmissible, and declared the principle of non-refoulement to be inapplicable to 
his case. 
The competent asylum authority directed that the applicant be returned from the 
territory of the European Union to the territory of the Republic of Serbia and 
ordered that that decision be enforced by removal. It also imposed on the applicant 
a two-year ban on entry and residence. 
The applicant brought an action under administrative law against that decision, 
seeking to have it re-examined. [Or. 2] 
Rules of law applicable in the present case: 
The administrative action brought by the applicant in the present case is governed 
by Paragraph 53 of the menedékjogról szóló 2007. évi LXXX. törvény (Law No 
LXXX of 2007 on the right to asylum; ‘the 2007 Law on the right to asylum’). 
LH 
 
3 
The national rules of law applicable in the present case: 
Article XIV(4) and Article Q of the Magyarország Alaptörvénye (Basic Law of 
Hungary, ‘the Basic Law’) 
Articles 6 and 13 of the European Convention on Human Rights (‘the ECHR’), 
enacted by Law No XXXI of 1993 
Paragraph 51(2)(f) and Article 53(4) of the 2007 Law on the right to asylum 
EU law applicable in the present case: 
Article 6 of the Treaty [on European Union] (‘TEU’) 
Article 47 of the Charter of Fundamental Rights of the European Union (‘the 
Charter’) 
Articles 5, 31 and 33 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] (‘the Procedures Directive’) 
As a matter of law, the applicant submits that the defendant’s decisions — its 
decision which did not rule on the substance and the decision on the substance — 
are unlawful and must, therefore, be annulled; he further submits that a ruling 
must be given on the substance of his application for refugee status, given that 
Paragraph 51(2)(f) of the 2007 Law on the right to asylum, pursuant to which the 
defendant classified that application as inadmissible, infringes EU law because it 
involves a ground of inadmissibility not included in Article 33 of the Procedures 
Directive. According to the applicant, Paragraph 51(2)(f) of the 2007 Law on the 
right to asylum introduced an entirely new concept of ‘safe transit country’ which 
is contrary to EU law because it is not included in Article 33 of the Procedures 
Directive. 
As a matter of law, the defendant contends that when Paragraph 51(2)(f) of the 
2007 Law on the right to asylum is assessed in its historical context, objective 
conclusions cannot be drawn as to the applicability of the provision at issue. When 
the Procedures Directive was adopted, it could not have been foreseen that from 
2015 onwards hundreds of thousands of third-world nationals on the margins of 
civilisation would lodge asylum applications. At the time the provision disputed 
by the applicant was adopted, the legislature emphasised not only applicants’ 
individual interests, but also sought, while having regard to an applicant’s 
fundamental rights, to devise rules consistent with the considerable number of 
applicants, its socio-economic effects in Hungary and, not incidentally, Hungarian 
political will. According to the defendant, there should be no question, in the 
present proceedings, of disregarding the Hungarian legislature’s intention. The 
institution of preliminary ruling proceedings may result in the contentious 
proceedings being stayed; such a stay would delay for an unforeseeable period the 
REQUEST FOR A PRELIMINARY RULING OF 21. 8. 2018 — CASE C-564/18 – 1  
 
4  
conclusion of those proceedings and also the fulfilment of the legislature’s 
intention. 
The need for an interpretation of EU law 
Grounds relating to the first question 
In accordance with Article 5 of the Procedures Directive, relating to ‘More 
favourable provisions’, ‘Member States [Or. 3] may introduce or retain more 
favourable standards on procedures for granting and withdrawing international 
protection, insofar as those standards are compatible with this Directive’. 
Pursuant to Article 33(2) of the Procedures Directive, ‘Member States may 
consider an application for international protection as inadmissible only if: 
(a) another Member State has granted international protection; 
(b) a country which is not a Member State is considered as a first country of 
asylum for the applicant, pursuant to Article 35; 
(c) a country which is not a Member State is considered as a safe third country 
for the applicant, pursuant to Article 38;  
(d) the application is a subsequent application, where no new elements or 
findings relating to the examination of whether the applicant qualifies as a 
beneficiary of international protection by virtue of Directive 2011/95/EU have 
arisen or have been presented by the applicant; or 
(e) a dependant of the applicant lodges an application, after he or she has in 
accordance with Article 7(2) consented to have his or her case be part of an 
application lodged on his or her behalf, and there are no facts relating to the 
dependant’s situation which justify a separate application.’ 
In accordance with Paragraph 51(2)(f) of the Law on refugees, an application is 
inadmissible when the ‘applicant has arrived in Hungary via a country where he 
is not exposed to persecution within the meaning of Paragraph 6(1) or the risk of 
or serious harm, within the meaning of Paragraph 12(1), or in which a sufficient 
degree of protection is guaranteed’. 
Paragraph 6(1) of the Law on refugees provides: ‘Hungary shall grant refugee 
status to foreigners who fulfil the conditions set out in the first sentence of Article 
XIV(4) of the Basic Law.’ 
Paragraph 12(1) of the Law on refugees provides: ‘Hungary shall grant subsidiary 
protection status to foreigners who do not fulfil the conditions for being 
recognised as refugees but who run the risk of serious harm should they return to 
LH 
 
5 
their country of origin and who may not or, because of the fear of that risk, wish 
not to request the protection of their country of origin.’ 
Article XIV(4) of the Basic Law provides: ‘Hungary shall, upon request, grant 
asylum to non-Hungarian nationals being persecuted or having a well-founded 
fear of persecution in their native country or in the country of their usual 
residence for reasons of race, nationality, membership of a particular social 
group, religious or political belief, if they do not receive protection from their 
country of origin or from any other country. A non-Hungarian national who has 
arrived on Hungarian territory via a country in which he was not exposed to 
persecution or a direct risk of persecution is not entitled to benefit from the right 
to asylum’. 
It is apparent from the wording of Article 33(2) of the Procedures Directive 
(‘Member States may consider an application for international protection as 
inadmissible only if’) that Article 33(2) of the Procedures Directive must be 
interpreted as meaning that it lists specifically and exhaustively [Or. 4] the 
grounds of inadmissibility and that, unless otherwise provided under EU law, 
Member States may not introduce new grounds of inadmissibility in addition to 
those set out in that provision. Furthermore, Article 33(2) of the Procedures 
Directive may be interpreted as meaning that a Member State — unless otherwise 
provided under EU law — cannot derogate from that provision in order to impose 
more restrictive rules for third-country nationals or stateless persons who ask for 
international protection from a Member State, which means that it is impossible to 
introduce new grounds of inadmissibility. 
In the light of its content, [the adoption of] Paragraph 51(2)(f) of the 2007 Law on 
the right to asylum, which entered into force on 1 July 2018, may be considered as 
introducing a new ground of inadmissibility, not included in Article 33(2) of the 
Procedures Directive, because the provision may not, because of its content, be 
linked to any of the grounds of inadmissibility listed in that article. 
This court must verify that the national legislation described above is, as 
regards inadmissible applications, consistent with the relevant EU law; it 
wishes indeed to exclude the possibility that it involves a new ground of 
inadmissibility for an application, contrary to EU law, and therefore needs a 
decision from the Court of Justice. 
Grounds relating to the second question 
Under the second sentence of Article Q(3) of the Basic Law, international treaties 
become an integral part of the Hungarian legal system on being enacted by 
legislation. In accordance with Article 13 of the ECHR, enacted by Law XXXI of 
1993, everyone whose rights and freedoms as set forth in that Convention are 
violated must have an effective remedy before a national authority 
notwithstanding that the violation has been committed by persons acting in an 
official capacity. Under Article 6 of the ECHR, everyone is entitled to a fair and 
REQUEST FOR A PRELIMINARY RULING OF 21. 8. 2018 — CASE C-564/18 – 1  
 
6  
public hearing within a reasonable time by an independent and impartial tribunal 
established by law. When international treaties are given effect [in national law], 
the obligations which they contain become part of the Hungarian legal system.  
Article 6 [TEU] states that the Charter of Fundamental Rights [of the European 
Union] (‘the Charter’) has the same legal value as the Treaties, with the result that 
the institutions, bodies, offices and agencies of the European Union, as well as all 
of the Member States, with the exception of the United Kingdom and Poland, are 
legally bound by the provisions of the Charter when implementing provisions of 
EU law 
Article 47 of the Charter concerns the right to an effective remedy and an 
impartial tribunal and states that everyone has the right to an effective remedy 
before a court and to a fair and public hearing within a reasonable time by an 
independent and impartial tribunal. 
Both the grant and the refusal of refugee status or subsidiary protection entail the 
application of provisions of EU law, which in turn requires compliance with the 
Charter. The defendant’s decision is not open to an administrative appeal but may 
be challenged only by way of an administrative-law action before the courts. 
According to Article 31 of the Procedures Directive, [Or. 5] which governs the 
conditions applicable to the asylum procedure in the Member States, the Member 
States are to ensure that the examination procedure is concluded as soon as 
possible, without prejudice to an adequate and complete examination. 
Paragraph 53(4) of the 2007 Law on the right to asylum provides that the judicial 
stage of the asylum procedure is to last no longer than eight days in the case of 
applications declared inadmissible. Under the Hungarian legislation, a court 
cannot amend the defendant’s decision in those cases and court’s decision on the 
substance concluding the proceedings is not open to appeal. The abovementioned 
time limit cannot be complied with, or only with great difficulty, and in most 
cases it is insufficient in order to conduct a fruitful, effective and lawful 
procedure. It is almost impossible for a court to clarify the facts exhaustively in so 
far as necessary in order to give its decision while complying with an eight-day 
time limit, and this causes the applicant serious harm. The legislation in question 
overlooks both the specific characteristics of the judicial procedure and the 
circumstances encountered during asylum procedures. In most cases, the facts are 
difficult to prove or to establish plausibly, and the gathering of information which 
the court needs to give its decision takes a lot of time. Further, in some cases of 
inadmissible applications, the burden of proving facts, or establishing them as 
plausible, lies wholly or in part with the applicants for asylum, who are 
nevertheless already vulnerable. It may be necessary to conduct a personal 
interview with the applicant, which entails providing an interpreter, so that the 
evidence-gathering procedure requires even more time during the judicial phase. 
This court considers that it is impossible to give a decision within the eight days 
LH 
 
7 
following the receipt of the application by the court without infringing the 
requirement of a complete examination. 
This court needs a decision from the Court of Justice in order to ensure, in 
the present case, an effective and efficient remedy, without disregarding the 
requirement of a complete examination. 
Grounds relating to the request for application of the urgent procedure: 
The request for the urgent procedure to be applied is justified by the fact that the 
duration of the preliminary ruling proceedings may considerably delay the 
conclusion of proceedings in the present case, further increasing the harm 
sustained by the applicant. The decision of the Court of Justice — concerning both 
questions referred — will have a considerable effect on other similar cases, 
decided on the basis of the same rules of law. The request for the application of 
the urgent procedure, made to the Court of Justice [manifestly incomplete 
sentence], Pursuant to Article 107(1) of the Consolidated version of the Rules of 
Procedure of the Court of Justice of 25 September 2012 (‘the Rules of 
Procedure’), ‘A reference for a preliminary ruling which raises one or more 
questions in the areas covered by Title V of Part Three of the Treaty on the 
Functioning of the European Union may, at the request of the referring court or 
tribunal or, exceptionally, of the Court’s own motion, be dealt with under an 
urgent procedure derogating from the provisions of these Rules.’ Given that the 
present asylum procedure concerns Chapter 2 of Title V of Part Three of the FEU 
Treaty, entitled ‘Policies on border checks, asylum and immigration’, it may, at 
the request of the referring court or tribunal, be dealt with under an urgent 
procedure. 
In accordance with Paragraph 130(1) of the polgári perrendtartásról szóló 2016. 
évi CXXX. törvény (Law No CXXX of 2016 on the Civil Procedure Code, ‘the 
Civil Procedure Code’), applicable pursuant to Paragraph 32 of the közigazgatási 
perrendtartásról szóló 2017. évi I. törvény (Law No I of 2017 on the 
Administrative Procedure Code, ‘the Administrative Procedure Code’), this court 
has decided to make a reference to the Court of Justice and, pursuant to 
Paragraph 126(1)(a) of Civil Procedure Code, to stay the procedures until the 
Court of Justice has concluded the preliminary ruling proceedings. 
In accordance with Paragraph 128(5) of the Civil Procedure Code, the present 
order is not open to appeal. [Or. 6] 
Under Article 267 of the consolidated versions of the Treaty on European Union 
and the Treaty on the Functioning of the European Union (OJ 2010 C 83, p. 1), 
where a question of the interpretation a rule of EU law is raised before any court 
or tribunal of a Member State against whose decisions there is no judicial remedy 
under national law, that court or tribunal must bring the matter before the Court. 
REQUEST FOR A PRELIMINARY RULING OF 21. 8. 2018 — CASE C-564/18 – 1  
 
8  
This court has made a reference for a preliminary ruling to the Court of Justice, 
requesting that it be dealt with under the urgent preliminary ruling procedure, 
pursuant to Article 107(1) of the Rules of Procedure of the Court. 
Budapest, 21 August 2014 
[…] [signature]