Case C-364/10, Hungary v. Slovak Republic

Slovakia not breaching EU law by refusing President of Hungary entry into its territory. 

Court furthermore holds that action under Art. 259 TFEU concerning future possible infringements or limited to seeking an interpretation of EU law is inadmissible.

>> At the invitation of an association based in Slovakia, the President of Hungary, Mr László Sólyom, had planned to go to the Slovak town of Komárno (pictured) on 21 August 2009 to take part in a ceremony inaugurating a statue of Saint Stephen.

Following several diplomatic exchanges between the embassies of those two Member States concerning the President of Hungary’s planned visit, the Slovak Ministry of Foreign Affairs finally sent, on 21 August 2009, a note verbale to the Ambassador of Hungary in the Slovak Republic in which it prohibited the President of Hungary from entering Slovak territory. As justification for that prohibition, that note relied on, inter alia, Directive 2004/381 on freedom of movement within the EU.

President Sólyom, having been informed of the terms of that note while on his way to Slovakia, acknowledged receipt of that note at the border and refrained from entering the territory of that Member State. Hungary subsequently asked the Commission to bring infringement proceedings before the Court of Justice against Slovakia. The Commission, however, expressed the view that EU law did not apply to visits made by the head of one Member State to the territory of another Member State and that, in those circumstances, the alleged infringement was unfounded.

Hungary then started infringement proceedings before the Court of its own motion against Slovakia (on the basis of Art. 259 TFEU), arguing inter alia that the Slovak Republic infringed Art. 21(1) TFEU and Directive 2004/38 when it refused the President of Hungary entry into its territory. Hungary claimed, in particular, that Directive 2004/38 applied to all citizens of the Union, including Heads of State, and to all types of visits, that was to say, both official and private.

The Court first of all stressed that citizenship of the Union was intended to be the fundamental status of nationals of the Member States (see, inter alia, Case C-184/99 Grzelczyk [2001]; Case C-135/08 Rottmann [2010]; and Case C-256/11 Dereci and Others [2011]).

Art. 20 TFEU conferred the status of citizen of the Union on every person holding the nationality of a Member State (see, inter alia, Case C-224/98 D’Hoop [2002]; Case C-148/02 Garcia Avello [2003]; and Case C-34/09 Ruiz Zambrano [2011]).

The Court held that it followed that, since Mr Sólyom was of Hungarian nationality, he unquestionably enjoyed that status. The Court first of all argued that, in accordance with Art. 21 TFEU, citizenship of the Union conferred on each Union citizen a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and restrictions laid down by the Treaties and the measures adopted for their implementation (Case C-162/09 Lassal [2010]; and Case C-434/09 McCarthy [2011]).

Second, the Court found that EU law must be interpreted in the light of the relevant rules of international law, since international law was part of the European Union legal order and was binding on the institutions (see, to that effect, Racke, paragraphs 45 and 46, and Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008]).

The Court held that the presence of a Head of State on the territory of another State imposed on that latter State the obligation to guarantee the protection of the person who carried out that duty, irrespective of the capacity in which his stay was effected.

The Court argued that a specific character was capable of distinguishing the person who enjoyed that status from all other Union citizens, with the result that that person’s access to the territory of another Member State was not governed by the same conditions as those applicable to other citizens. Accordingly, the fact that a Union citizen performed the duties of a Head of State was such as to justify a limitation, based on international law, on the exercise of the right of free movement conferred on that person by Art. 21 TFEU.

The Court concluded that, in the circumstances of the present case, neither Art. 21 TFEU nor, a fortiori, Directive 2004/38 obliged the Slovak Republic to guarantee access to its territory to the President of Hungary and that, therefore, the first head of complaint must be rejected as unfounded.

The Court furthermore held that the Slovak Republic was wrong to refer, in its note verbale of 21 August 2009, to Directive 2004/38, a matter which that Member State had, moreover, acknowledged.

However, that fact was not sufficient to prove an abuse of rights by the Slovak Republic. The Court reiterated that evidence of an abusive practice required, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the European Union rules, the purpose of those rules had not been achieved, and, second, a subjective element consisting in the intention to obtain an advantage from the European Union rules by creating artificially the conditions laid down for obtaining it (Case C-515/03 Eichsfelder Schlachtbetrieb [2005]).

In the present case, the conditions laid down for the application of Directive 2004/38 were not formally complied with. Since the only act making reference to that directive was the note verbale of 21 August 2009 from the Ministry of Foreign Affairs of the Slovak Republic to the Ambassador of Hungary in the Slovak Republic, no decision for the purposes of Art. 27 of Directive 2004/38 had been adopted by the competent national authorities or, a fortiori, notified to Mr Sólyom in accordance with Art. 30 of that directive.

Hungary also claimed that there was a risk that the Slovak Republic might, in the future, repeat the infringement of Art. 3 TEU, Art. 21 TFEU and Directive 2004/38. In its view, the existence of such a risk was, inter alia, confirmed by several statements made by the Slovak authorities to the effect that their conduct in regard to the President of Hungary did not infringe EU law.

Since it denied any infringement of EU law, essentially on the ground that EU law was not applicable to the present case, the Slovak Republic took the view that there was consequently no risk of repetition.

The Court held that that the procedure established under Art. 259 TFEU was designed to obtain a declaration that the conduct of a Member State was in breach of EU law and to terminate that conduct (see, to that effect, Joined Cases 15/76 and 16/76 France v Commission [1979]; Case C-456/05 Commission v Germany [2007]; and Joined Cases C-514/07 P, C-528/07 P and C-532/07 P Sweden and Others v API and Commission [2010]).

Thus, as the aim of the Treaty was to achieve the practical elimination of infringements by Member States and the consequences thereof (Case 70/72 Commission v Germany [1973]), according to the Court an action under Art. 259 TFEU concerning future possible infringements or limited to seeking an interpretation of EU law was inadmissible.