Proposal for a COUNCIL IMPLEMENTING DECISION setting out recommendations for remedial actions aimed at addressing the serious deficiencies identified in the 2024 Schengen evaluation of Hungary on the application of certain provisions of the Schengen acquis related to fundamental rights in the context of border management and return
Date: 2024-08-09
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EU migration policy, Hungary, Schengen Agreement, admission of aliens, area of freedom, security and justice, border control, external border of the EU, internal border of the EU, removal, third country

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   EUROPEAN COMMISSION  Brussels, 9.8.2024  COM(2024) 999 final/2 -     DOWNGRADED ON 18.9.2024 2024/0207 (NLE)  Proposal for a COUNCIL IMPLEMENTING DECISION setting out recommendations for remedial actions aimed at addressing the serious deficiencies identified in the 2024 Schengen evaluation of Hungary on the application of certain provisions of the Schengen acquis related to fundamental rights in the context of border management and return  
 
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

• 
In  accordance  with  Article  4(1)(b)  of  Council  Regulation  (EU)  2022/9221  on  the 
establishment  and  operation  of  an  evaluation  and  monitoring  mechanism  to  verify  the 
application  of  the  Schengen  acquis,  the  multiannual  evaluation  programme  2020-20242  and 
the  2024  annual  evaluation  programme3,  a  periodic  Schengen  evaluation  of  Hungary  was 
conducted by a team of Commission and Member State experts, supported by observers from 
EU agencies and bodies4. This evaluation verified Hungary’s implementation of the Schengen 
acquis  in  the  fields  of  border  management,  return,  visa,  police  cooperation,  large-scale  IT 
systems  (the  Schengen  Information  System)  and  data  protection.  The  evaluation  also  paid 
attention to verifying respect for fundamental rights in the application of the Schengen acquis 
by Hungary. 

At the end of the evaluation activity, Hungary was informed that, in accordance with Article 
2(10)  of  Council  Regulation  (EU)  2022/922,  serious  deficiencies  were  identified  in  the 
application  of  certain  provisions  of  the  Schengen  acquis,  namely  the  lack  of  access  to  the 
asylum  procedures  in  Hungary  as  well  as  the  failure  to  respect  the  principle  of  non-
refoulement  and  the  safeguards  of  Directive  2008/115,  leading  to  the  practice  of  collective 
expulsions. In  accordance with  Article 22(2) and (3) of Council Regulation (EU) 2022/922, 
the Commission adopted on 9 August 2024 an evaluation report5, which sets out the findings 
and  the  assessments  related  to  the  serious  deficiencies  identified  during  the  evaluation.  As 
provided  for  in  the  Schengen  Evaluation  Guide  for  the  implementation  of  Regulation 
2022/9226, this evaluation report includes only those findings that led to the determination of 
the serious deficiencies. The outcome of the full evaluation of Hungary, with the exception of 
the identified serious deficiencies, will be presented in the comprehensive evaluation report in 
accordance with Article 20 of Regulation 2022/922.  

This  proposal  contains  the  recommendations  for  remedial  action  aimed  at  addressing  the 
serious deficiencies identified in the report adopted by the Commission on 9 August 2024. 

• 

Consistency with existing policy provisions in the policy area 

These recommendations serve to implement correctly and effectively the existing provisions 
in the policy area concerned. 

• 

Consistency with other Union policies 

These recommendations do not have links with other key Union policies. 

1 

2 
3 
4 

5 
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Council Regulation (EU) 2022/922 of 9 June 2022 on the establishment and operation of an evaluation 
and monitoring mechanism to verify the application of the Schengen  acquis, and repealing Regulation 
(EU) No 1053/2013; OJ L 160, 15/06/2022. 
C(2019) 3692. 
C(2023) 5300. 
Frontex,  the  EU  Fundamental  Rights  Agency,  eu-LISA,  Europol  and  the  European  Data  Protection 
Supervisor. 
C(2024) 9000. 
C(2023) 6790 final, p. 42. 

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2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

Article 22(4) of Council Regulation (EU) 2022/922 of 9 June 2022 on the establishment and 
operation  of  an  evaluation  and  monitoring  mechanism  to  verify  the  application  of  the 
Schengen acquis, and repealing Regulation (EU) No 1053/2013.  

• 

Subsidiarity (for non-exclusive competence)  

Article 22(4) of Council Regulation (EU) 2022/922 specifically requests the Commission to 
submit  a  proposal  to  the  Council  to  adopt  recommendations  for  remedial  action  aimed  at 
addressing the serious deficiencies identified in the course of the evaluation activity. Action at 
Union level is required to strengthen mutual trust between the Member States and to ensure 
better  coordination  at  Union  level  in  order  to  guarantee  that  all  Schengen  rules  are  applied 
correctly and effectively by the Member States. 

• 

Proportionality 

Article 22(4) of Council Regulation (EU) 2022/922 mirrors the specific powers of the Council 
in the field of mutual evaluation of the implementation of Union policies within the area of 
freedom, security and justice. In that light, this proposal for a Council Implementing Decision 
is proportionate to the objective pursued. 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

3. 

• 

n.a. 

• 

Stakeholder consultations 

In  line  with  Article  30(3)  of  Council  Regulation  (EU)  2022/922  and  Article  8  of  Council 
Regulation  (EU)  No  182/2011,  the  evaluation  report  shall  be  submitted  for  ex-post 
consultation of the Schengen Committee within 14 days after the adoption by the Commission 
of the evaluation report. 

Collection and use of expertise 

Impact assessment 

Regulatory fitness and simplification 

• 

n.a. 

• 

n.a. 

• 

n.a. 

• 

Fundamental rights 

The  protection  of  fundamental  rights  when  applying  the  Schengen  acquis  was  taken  into 
account during the evaluation process. 

BUDGETARY IMPLICATIONS 

4. 

n.a. 

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OTHER ELEMENTS 

5. 

n.a. 

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2024/0207 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING DECISION 

setting out recommendations for remedial actions aimed at addressing the serious 
deficiencies identified in the 2024 Schengen evaluation of Hungary on the application of 
certain provisions of the Schengen acquis related to fundamental rights in the context of 
border management and return 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union,  

Having regard to Council Regulation (EU) 2022/922 of 9 June 2022 on the establishment and 
operation  of  an  evaluation  and  monitoring  mechanism  to  verify  the  application  of  the 
Schengen  acquis,  and  repealing  Regulation  (EU)  No 1053/20137,  and  in  particular  Article 
22(4) thereof,  

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

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The  Schengen  area  without  border  control  at  internal  borders  relies  on  the  effective 
and  efficient  application  of 
the  Member  States. 
That acquis comprises  measures  in  the  area  of  external  borders,  compensatory 
measures  for  the  absence  of  controls  at  internal  borders  and  a  strong  monitoring 
framework,  which  together  strengthen  free  movement  and  ensure  a  high  level  of 
security,  justice  and  protection  of  fundamental  rights,  including  the  protection  of 
personal data. 

the  Schengen acquis  by 

In  accordance  with  Article  4(1)(b)  of  Council  Regulation  (EU)  2022/922,  as  well  as 
the  multiannual  evaluation  programme  2020-20248  and  the  2024  annual  evaluation 
programme9,  a  periodic  Schengen  evaluation  of  Hungary  was  conducted  by  an 
evaluation  team  of  Commission  and  Member  State  experts,  supported  by  observers 
from EU agencies and bodies10. This evaluation verified Hungary’s implementation of 
the  Schengen  acquis  in  the  fields  of  border  management,  return,  visa,  police 
cooperation,  large-scale  IT  systems  (the  Schengen  Information  System)  and  data 
protection. Schengen evaluations also pay particular attention to verifying respect for 
fundamental rights in the application of the Schengen acquis.  

Since  the  last  evaluation  in  2019,  the  operational  environment  in  Hungary  has 
significantly changed due to evolving migratory and security risks in the region. While 
the migratory pressure in the Western Balkan route remains high, the pressure at the 
Hungarian-Serbian border has decreased over the last  months.  Furthermore, Russia’s 

OJ L 160, 15.6.2022, p. 1. 
C(2019) 3692. 
C(2023) 5300. 
Frontex,  Europol,  eu-LISA,  the  European  Union  Agency  for  Fundamental  Rights  and  the  European 
Data Protection Supervisor.  

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unprovoked  and  unjustified  war  of  aggression  against  Ukraine  has  had  widespread 
implications  for  Hungary  and  the  Schengen  area  as  a  whole,  requiring  increased 
vigilance  for  European  integrated  border  management  to  limit  the  security  risks  and 
safeguard the integrity of the Schengen area. 

In  the  2024  Schengen  evaluation  of  Hungary,  serious  deficiencies  were  identified  in 
the application of certain provisions of the Schengen  acquis concerning  fundamental 
rights  in  the  context  of  border  management  and  return.  The  Council  was  informed 
thereof on 4 July 2024. The draft report was shared with the Hungarian authorities on 
11 July 2024 and their comments were received on 19 July 2024. On 9 August 2024, 
Commission  Implementing  Decision  C(2024)  9000  adopted  the  report  identifying 
those serious deficiencies. 

Recommendations  for  remedial  actions  should  be  set  out  and  immediately  taken  by 
Hungary in order to address the identified serious deficiencies. Considering the nature 
of  the  findings,  their  persistency,  and  the  need  to  swiftly  address  them,  all 
recommendations are given the same level of priority.  

(4) 

(5) 

(6)  Within  one  month  of  the  adoption  of  this  Decision,  Hungary  should,  pursuant  to 
Article 22(6) of Regulation (EU) 2022/922, establish an action plan to implement all 
recommendations  and  to  remedy  the  serious  deficiencies  identified  in  the  evaluation 
report. Hungary should provide that action plan to the Commission for the review of 
its adequacy, as well as to the Council. Hungary should report to the Commission and 
the Council on the implementation of its action plan every two months from the date 
of  notice  of  receipt  of  the  review  of  the  action  plan  and  until  the  Commission 
considers that all recommendations are fully implemented.  

(7) 

(8) 

In accordance with Article 22(7) of Regulation (EU) 2022/922, a revisit  by the team 
should take place to verify the progress made in implementing the recommendations, 
which  should  be  organised  no  later  than  one  year  from  the  date  of  the  evaluation 
activity.  

These  recommendations  are  without  prejudice  to  the  actions  Hungary  should 
undertake in order to comply with the judgments of the Court of Justice in  Cases C-
808/1811,  C-823/2112,  C-123/2213,  which  the  Commission  is  monitoring  in  line  with 
the established procedures. 

(9) 

This  Decision  will  be  transmitted  to  the  European  Parliament  and  to  the  national 
Parliaments of the Member States. 

RECOMMENDS:  

Hungary should 

1. 

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discontinue  the  practice  of  removing  third-country  nationals  that  have  irregularly 
entered  or  are  irregularly  staying  in  Hungary,  including  those  who  have  expressed 
their intention to apply for international protection, in accordance with Articles 3 and 

Judgment  of  the  Court  of  Justice  of  17  December  2020  in  Case  C-808/18  Commission  v  Hungary, 
ECLI:EU:C:2020:1029. 
Judgment  of  the  Court  of  Justice  of  22  June  2023  in  Case  C-823/21  Commission  v  Hungary, 
ECLI:EU:C:2023:504. 
Judgment  of  the  Court  of  Justice  of  13  June  2024  in  Case  C-123/22  Commission  v  Hungary, 
ECLI:EU:C:2024:493. 

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4 of Regulation (EU) 2016/39914 and Articles 4(4), 5, 6(1), 12(1) and 13 of Directive 
2008/11515  read  in  conjunction  with  Articles  18  and  47  of  the  Charter  of 
Fundamental Rights of the EU in order to ensure that third-country nationals seeking 
international  protection  on  the  territory,  including  at  the  border,  can  effectively 
access international protection;  

amend the national law and change the administrative practice in order to provide the 
national authorities with the legal power to refer the third-country nationals applying 
for  international  protection  to  the  relevant  authorities  in  the  Hungarian  territory  in 
order to fulfil the obligations of Articles 3 and 4 of the Schengen Borders Code read 
in conjunction with Article 18 of the Charter;  

amend the national legislation and change the administrative practice to ensure that 
third-country  nationals  who  have  not  been  apprehended  in  connection  with  the 
irregular border crossing  but  who are irregularly staying  on the Hungarian territory 
and  meet  the  requirements  for  being  granted  a  return  decision  are  provided  with  a 
return decision following an individual assessment, including of the principle of non-
refoulement, in accordance with Articles 5, 6(1), 12(1) and 13 of Directive 2008/115 
read in conjunction with Article 47 of the Charter; 

take  the  necessary  measures  to  ensure  the  full  respect  of  the  principle  of  non-
refoulement as regards the third-country nationals apprehended at the external border 
following  the  irregular  crossing,  as  required  by  Article  4(4)  point  (b)  of  Directive 
2008/115  and  Articles  3  and  4  of  the  Schengen  Borders  Code  read  in  conjunction 
with Articles 19 and 47 of the Charter. 

2. 

3. 

4. 

Done at Brussels, 

For the Council 
The President 

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15 

Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union 
Code on the rules governing the movement of persons across borders (Schengen Borders Code);  OJ L 
77, 23.3.2016. 
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; OJ L 348, 24.12.2008. 

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