Opinion of the Advocate General — ECLI:EU:C:2025:250
Date: 2025-04-03
Language of the case: Hungarian
Procedure: Reference for a preliminary ruling
Origin: Hungary

Summary C-525/23 – 1 
Case C-525/23 [Accra] i 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
14 August 2023 
Referring court: 
Fővárosi Törvényszék (Hungary) 
Date of the decision to refer: 
26 June 2023 
Applicant: 
OS 
Defendant: 
Országos Idegenrendészeti Főigazgatóság 
  
Subject matter of the main proceedings 
Administrative action challenging a decision relating to immigration matters. 
Subject matter and legal basis of the request 
Right of residence of a national of a third State – Evidence of financial provision 
for subsistence costs – Additional requirements relating to evidence beyond those 
established in EU law and not provided for in legal rules, but rather developed by 
the case-law of the highest court of the Member State in question – Right of the 
national of a third Sate, arising from the right to an effective remedy, to be 
warned, expressly and in advance, of such additional requirements 
Article 267 TFEU 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any 
party to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-525/23 
 
2  
Questions referred for a preliminary ruling 
1. Is the practice of a Member State which establishes as additional 
requirements for accepting that an applicant for residency, who is a national 
of a third State and intends to carry out voluntary work, has means of 
subsistence – after he has proved that his relative who is not regarded as a 
family member can and does provide, from his lawfully acquired income 
and by means of regular transfer of the amount required for subsistence, 
sufficient income for the applicant’s subsistence and for his return travel – 
that the applicant must state precisely whether the amount received is 
income or capital and, moreover, must provide documentary evidence of the 
legal basis on which he acquired that income or capital and must have the 
amount or the capital at his disposal, as his own, on a permanent and 
unrestricted basis, consistent with the discretion afforded to Member States 
by Article 7(1)(e) of [Directive (EU) 2016/801], having regard to the 
objectives set out in recitals 2 and 41 and Article 1(a) and Article 4(1) of 
that directive? 
2. Having regard to the principle of the primacy of EU law, fair treatment in 
accordance with Article 79 TFEU, freedom of residence as enshrined in 
Article 45 of the Charter [of Fundamental Rights of the European Union] 
and the rights to an effective remedy and to a fair trial enshrined in 
Article 47 of the Charter, as well as recitals 54 and 61 of [Directive 
2016/801], in particular the principle of legal certainty, does the fact that, as 
a whole, the national legislation relating to residence permits does not 
contain the requirements set out in the first question referred, such that those 
requirements have not been established by the legislature, but rather by the 
highest court of the Member State in its application of the law, which has to 
serve as precedent, have a bearing on the answer to the first question 
referred? 
3. To the extent that, in applying national law for the purpose of accepting that 
the applicant for residency has means of subsistence, the declaration and 
documentary evidence relating to the abovementioned requirements are also 
necessary, in the present case, must Article 7(1)(e) [of Directive 2016/801] 
be interpreted, having regard to the requirement for fair treatment laid down 
by Article 79 TFEU, the rights to an effective remedy and to a fair trial 
conferred by Article 47 of the Charter, the requirement for legal certainty 
referred to in recital 2 [of Directive 2016/801] and the content of recitals 41 
and 42 [of that directive] with regard to procedural safeguards, as meaning 
that the practice of a Member State whereby that applicant is required, after 
being warned of the legal consequences, to state and prove coherently and 
consistently that he meets the additional requirements considered necessary, 
and whereby the application for a residence permit is refused solely on the 
ground that he has failed to provide evidence relating to the requirements 
established in the case-law, is consistent with the provisions of the 
ACCRA 
 
3 
legislation only if the rights of the person concerned and the procedural 
safeguards have thereby been observed? 
Provisions of European Union law relied on 
– Article 79 TFEU 
– Council Directive 2004/114/EC of 13 December 2004 on the conditions of 
admission of third-country nationals for the purposes of studies, pupil 
exchange, unremunerated training or voluntary service (OJ 2004 L 375, 
p. 12) (no longer in force): Articles 6 and 7. 
– Directive (EU) 2016/801 of the European Parliament and of the Council of 
11 May 2016 on the conditions of entry and residence of third-country 
nationals for the purposes of research, studies, training, voluntary service, 
pupil exchange schemes or educational projects and au pairing: recitals 2, 
20, 21, 41, 42, 54 and 61 and Article 1(a), Article 2(1) and Article 7(1). 
– Charter of Fundamental Rights of the European Union: Articles 45 and 47. 
Provisions of national law relied on 
– A harmadik országbeli állampolgárok beutazásáról és tartózkodásáról szóló 
2007. évi II. törvény (Law II of 2007 on entry and residence by third-
country nationals): Paragraph 2(d), Paragraph 13(1)(f) and Paragraph 87(1). 
Paragraph 2(d) of the provisions relied on establishes which relatives are, for 
the purposes of that law, considered to be family members of the national of 
a third State. Paragraph 13 regulates stays of more than ninety days within a 
period of one hundred and eighty days. Under Paragraph 13(1)(f), nationals 
of a third country may remain in Hungary’s territory for that period, if, 
during the whole of their stay, they have sufficient resources to cover their 
subsistence costs and accommodation, including the cost of return travel. 
– A harmadik országbeli állampolgárok beutazásáról és tartózkodásáról szóló 
2007. évi II. törvény végrehajtásáról szóló 114/2007. (V. 24.) Korm. 
Rendelet (Government Decree 114/2007, of 24 May, approving the 
implementing regulations for Law II of 2007 on entry and residence by 
third-country nationals): Paragraph 29(5) and (6). 
According to these provisions, a national of a third country has the financial 
resources necessary for his or her stay in Hungary if that person or a member 
of his or her family is able to defray that person’s subsistence costs, 
accommodation, return travel and, where necessary, medical care, with 
income or capital which the relevant person has acquired lawfully and has at 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-525/23 
 
4  
his or her disposal. The decree referred to also enumerates how the existence 
of means of subsistence can be proved. 
– A személyi jövedelemadóról szóló 1995. évi CXVII. törvény (Law CXVII 
of 1995 on personal income tax): Paragraph 4(1) and (2). 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant in the main proceedings is a national of a third State and the holder 
of a residence permit valid in Hungary until 30 June 2020 for undertaking studies. 
On 5 June 2020, the applicant submitted an application to renew that residence 
permit with a view to carrying out voluntary work at the Mahatma Gandhi Emberi 
Jogi Egyesület (Mahatma Gandhi Human Rights Organisation; ‘the 
Organisation’). 
2 During the period of volunteering, the applicant intended to finance his 
subsistence in Hungary with the help of his uncle, a British national. The applicant 
enclosed his contract with the Organisation, a statement for the bank account in 
his name showing six months’ transactions, the declaration of responsibility made 
by his uncle and documents providing evidence of his uncle’s income with the 
application to renew the residence permit. 
3 The immigration policing authority at first instance refused the application to 
renew the residence permit and expelled the applicant from EU territory. In the 
reasoning for its decision, that authority explained that, given that the uncle of the 
applicant was not considered to be a family member within the meaning of the 
abovementioned Hungarian legal provisions, he could not cover the subsistence 
costs of the applicant in Hungary and, therefore, the evidence enclosed with the 
application could not be taken into account. 
4 The applicant brought a challenge to that first-instance decision refusing the 
application before the defendant, which confirmed the decision on the basis that 
the person who had taken responsibility for the applicant is not considered to be a 
member of his family and, therefore, cannot cover the subsistence costs of the 
applicant in Hungary. 
5 The applicant brought an administrative action challenging the second-instance 
decision before the Fővárosi Törvényszék (Budapest High Court, Hungary), the 
referring court. In its judgment, the Budapest High Court annulled the defendant’s 
decision, including the first-instance decision, and ordered the administrative 
authority at first instance to initiate a new procedure. 
6 That judgment was set aside by the Kúria (Supreme Court, Hungary), which has 
ordered the Budapest High Court to initiate new proceedings and make a new 
decision. In those new proceedings, the Budapest High Court has referred three 
questions to the Court of Justice for a preliminary ruling. 
ACCRA 
 
5 
The essential arguments of the parties in the main proceedings 
7 In his administrative appeal against the first-instance immigration decision, the 
applicant argued that, although his uncle was not actually considered to be a 
family member, he would provide the applicant with the financial assistance under 
a loan agreement and the applicant would stay in Hungary at a student residence. 
He enclosed with that appeal a declaration in which his uncle undertook to 
provide the applicant, for the duration of the volunteering, with HUF 200 000 a 
month (approximately EUR 520), by means of bank transfers or [through] other 
entities. 
8 Once the administrative appeal had been rejected by the defendant, in his 
administrative action, the applicant criticised the fact that the evidence provided 
by him had only been assessed from the standpoint that his uncle was not 
considered to be a family member and, therefore, could not take responsibility for 
maintaining the applicant and that, in short, the applicant’s means of subsistence 
in Hungary were not guaranteed. The applicant maintained that his uncle would 
not provide him with the assistance in the form of maintenance, but rather as a 
gift, such that the applicant’s own means of subsistence would then be guaranteed. 
9 In its response to the administrative action, the defendant argued that the 
declaration made by the applicant’s uncle did not state the legal basis of the 
assistance and, therefore, it could not regard it as a gift. However, the defendant 
added that, under the abovementioned Hungarian legislation, subsistence costs 
must be defrayed with income or capital that is lawfully acquired. In that regard, 
the legal basis on which the income or capital is acquired lacks relevance and, 
therefore, that was not the reason why it rejected the applicant’s appeal. 
Conclusions of the courts that have heard the main proceedings previously 
10 As far as lawfully acquired income or capital is concerned, the Budapest High 
Court takes as its starting point the definition of ‘income’ contained in Law 
CXVII of 1995 on personal income tax. That definition does not establish a 
distinction according to the source of the income. The concept of income not only 
includes income obtained in the form of wages in the context of an employment 
relationship, but also that received on any other basis in the context of any other 
legal relationship. Thus, the concept of income also includes the payments that the 
applicant obtains form his uncle as a natural person. In that regard, the legal basis 
on which the applicant’s uncle provides the assistance lacks relevance. Therefore, 
according to the Budapest High Court, the defendant acted unlawfully in 
examining the income obtained by the applicant solely from the perspective of 
whether it was provided by a member of his family. Instead, it should have 
considered whether the applicant’s income was of a regular nature, urging him to 
provide the evidence necessary for that purpose. 
11 Contrary to the position of the Budapest High Court, the Supreme Court held that 
the concept of income should not be interpreted on the basis of the provisions of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-525/23 
 
6  
the Law on personal income tax. It is necessary to examine whether the 
applicant’s statements are coherent and consistent and, moreover, whether they 
are unquestionably supported by the enclosed documents. In the present case, 
however, the applicant’s uncle has not stated the legal basis on which he intends 
to provide the applicant with HUF 200 000 a month. The applicant contradicted 
himself in his statements in that regard: while, in his administrative appeal, he 
stated that he receives that sum in the form of a loan, in his administrative action 
he maintained that he receives it in the form of a gift. That undermined the 
applicant’s credibility and the reliability of his statements. 
12 According to the Supreme Court, the Budapest High Court also erred in not 
considering the legal basis of the income to be relevant. On the contrary, that basis 
is of particular relevance, since it makes it possible to determine whether the 
applicant has the resources in question as his own on a permanent basis. The 
applicant should, therefore, have stated precisely whether he regarded the amount 
provided by his uncle as income or as capital. He should have provided 
documentary evidence for the legal basis on which he received that sum of money 
and also for the fact that he had it at his disposal, as his own, on a permanent basis 
and without restriction. The Budapest High Court should clarify those points in 
the new proceedings. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
13 The Budapest High Court has doubts as to whether the requirements established 
by the Supreme Court, compliance with which must be proved by the applicant, 
are consistent with the provisions of Directive 2016/801 and whether the 
requirements of a fair trial are fully observed in the present case. 
14 As regards the need to request a preliminary ruling from the Court of Justice, the 
Budapest High Court first of all considers that the questions which it is referring 
are relevant in relation to EU law. The Hungarian legislation transposing Directive 
2016/801 must be consistent with that directive, as must the case-law developed in 
applying that legislation. The question of whether the case-law of the Supreme 
Court is consistent with Article 7(1)(e) of Directive 2016/801 necessarily has a 
bearing on the decision reached in the proceedings as regards the substance. 
Second, the Court of Justice has not yet interpreted the relevant provisions of 
Directive 2016/801 in the light of the approach set out in the questions referred for 
a preliminary ruling by the Budapest High Court. Third, given that the Budapest 
High Court and the Supreme Court differ significantly in their interpretation of the 
law, the answer to the questions referred cannot be considered obvious. 
15 With regard to the first question referred, the Budapest High Court starts from the 
premiss that, as far as means of subsistence are concerned, the Supreme Court 
required the assessment of additional requirements that are not provided for either 
in Directive 2016/801 or in the Hungarian legislation transposing it. There can be 
no doubt that, when they authorise the entry and residence of nationals of a third 
ACCRA 
 
7 
State, the Member States may assess the financial provision required for 
subsistence on the basis of their own national rules. Nevertheless, according to the 
Budapest High Court, that does not mean that the Member States can supplement 
the content of Article 7(1)(e) of Directive 2016/801 with additional assessment 
criteria. 
16 According to the Budapest High Court, it is doubtful that the additional 
requirements established by the Supreme Court are genuinely relevant in relation 
to the provision of Directive 2016/801 relied on. The relevance of whether the 
applicant receives the amount from his uncle in the form of a loan or a gift and 
whether he will have to return it or it will remain at his disposal on a permanent 
basis is debatable. It has been proven in the present case that the applicant’s uncle 
is a solvent individual and obtains his income lawfully. Moreover, the applicant’s 
uncle made a declaration in which he expressly stated the purpose of the 
assistance, that is, that the amount in question is intended to be used for the 
applicant’s subsistence during the period of volunteering. On the basis of the 
above, the Budapest High Court considers that, in order to prove the existence of 
means of subsistence, it is sufficient to show that the amount was paid into a bank 
account used exclusively by the applicant and that the applicant withdrew that 
amount from that account. 
17 The purpose of Directive 2016/801 is to establish, in a single legal instrument, the 
conditions to be met by nationals of a third State in order to be able to enter the 
territory of the Member States for a period of more than three months for the 
purpose of carrying out a voluntary activity, simplifying and unifying the 
provisions previously in force. The Directive also aims to encourage the mobility 
of the individuals concerned. It is questionable whether the fact that the Supreme 
Court, in relation to entry and residence, establishes additional requirements that 
supplement the general conditions provided for in Article 7(1)(e) of Directive 
2016/801 is compatible with those objectives. 
18 The Budapest High Court refers to the judgment of 10 September 2014, Ben 
Alaya, C-491/13, EU:C:2014:2187, paragraphs 33 and 34, which referred to the 
then-in-force Directive 2004/114. Articles 6 and 7 of that former directive 
regulated the conditions of admission for nationals of a third country to undertake 
studies. Regarding those conditions, the Court of Justice has declared that the 
discretion available to the national authorities relates only to the conditions laid 
down in Articles 6 and 7 of that directive and, within that context, to the 
assessment of the relevant facts in order to determine whether the conditions 
established in that directive are met. The Court of Justice has also declared that, 
were Member States to add other conditions for admission, it would equate to 
making them stricter, which would be contrary to the objective pursued by 
Directive 2004/114. 
19 Given that the subsistence requirements applicable to students and contained in 
Directive 2004/114 match those of Article 7(1)(e) of Directive 2016/801, in 
particular as regards undertaking voluntary work, the Budapest High Court also 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-525/23 
 
8  
considers the abovementioned judgment of the Court of Justice to be relevant to 
the present case. 
20 The question therefore arises of whether, when national authorities assess the 
means of subsistence, the discretion available to them extends solely to the 
conditions provided for in Article 7(1)(e) of Directive 2016/801 or whether they 
are also authorised to establish additional criteria in order to determine whether 
those conditions are met. It is thus a matter of whether the applicant may be 
required to make a declaration consistent with the declaration made by the person 
providing him with the assistance regarding the legal basis on which he is 
acquiring the means of subsistence and, moreover, be required to provide 
documentary evidence of his right to have those resources at his disposal on a 
permanent and unrestricted basis. 
21 The second question referred by the Budapest High Court relates to the situation 
in which the Court of Justice considers that the discretion afforded to the Member 
States includes the establishment of the abovementioned additional requirements. 
In that regard, the Budapest High Court wonders whether it is relevant that those 
additional requirements are not established in legislation, but rather have only 
been determined by the case-law of the highest court of a Member State, whose 
decisions are binding on lower authorities. 
22 The third question referred by the Budapest High Court refers to the requirement 
for a fair trial and to procedural safeguards. The Supreme Court established the 
additional requirements in question by assessing only the evidence available in the 
light of the criteria which it determined itself, without requesting more 
information from the applicant or giving him the opportunity to provide evidence 
in relation to the latter. In that regard, the Budapest High Court seeks clarification 
as to whether the establishment by the Supreme Court of the assessment of those 
additional requirements complies with the requirements of a fair trial, even 
though, in the administrative procedure, the applicant was not warned of such 
requirements, or required to provide declarations or documents in relation to them.