LLB, LLM, GCAP
PhD candidate at King’s College London and Senior Lecturer in Law at Bucks New University
In the judgment, delivered on 16 October 2012, the Court of Justice of the European Union (CJEU) had to resolve a conflict between two Member States that joined the Union in 2004.
In this case, Hungary claimed that Slovakia infringed free movement of persons (in particular, Article 21(1) TFEU and the Citizenship Directive 2004/38) by not allowing Mr Sólyom, the Hungarian President, to enter its territory. Slovakia, for its part, stated that this prohibition was valid for one day only – the day of the 41st anniversary of the invasion of Czechoslovakia by Warsaw Pact troops, which included Hungarian troops. In short, the dispute was a conflict of a political nature relating to the soviet history of both Member States, which ended up before the Court as a matter of non-discrimination and free movement of persons under EU law.
Apart from the historical and political context, procedural aspects of the case were also interesting, as indirectly they reflected the European Commission’s attitudes towards current anti-democratic developments in Hungary. Initially, Hungary asked the Commission to bring infringement proceedings before the Court of Justice against the Slovak Republic under Article 258 TFEU. The Commission considered, however, that the dispute was outside the scope of EU law. Hungary then decided to bring infringement proceedings before the Court of Justice on its own initiative against the Slovak Republic, as authorised by the Treaty (Article 259 TFEU). The Commission decided to intervene in the proceedings in support of the Slovak Republic.
On 6 March 2012 Advocate General AG Bot delivered his opinion, in which he came to the conclusion that the Slovak Republic did not infringe EU law. The Advocate General considered that “it was indeed in the performance of his duties as the President of Hungary, and not simply as a citizen of the Union, that Mr Sólyom wished to visit the town of Komárno” (para 49). Therefore, the movements of the Heads of State, although made within the Union, fell within the sphere of diplomatic relations that remain within the competences of Member States and were governed by international law, and not by EU law (paras 51-57). The only restriction placed by EU law was the prohibition for Hungary and Slovakia to exercise their diplomatic relations “in a manner that might lead to a lasting break in diplomatic relations between two Member States” (para 58).
The ruling of the Court of Justice
The Court started with the famous statement based on its previous case law that “citizenship of the Union is intended to be the fundamental status of nationals of the Member States” (para 40) and that every person who is a national of an EU Member State is entitled to such a status (para 41), including Mr Sólyom, the Hungarian President. However, the Court stated that “EU law must be interpreted in the light of the relevant rules of international law, since international law is part of the European Union legal order and is binding on the institutions” (para 44). This is an interesting statement in relationship to the recent claims by the Court of the autonomy of the European legal order from international law, which generated extensive legal debates, especially in the context of the UN and EU terrorist lists. The Court went on to distinguish whether, at the time of the expected entry, Mr Sólyom was acting as the Head of State and concluded in the affirmative (paras 45-50). This “specific character” of the EU citizen acting as the Head of State was “capable of distinguishing the person who enjoys that status from all other Union citizens, with the result that that person’s access to the territory of another Member State is not governed by the same conditions as those applicable to other citizens” (para 50). Therefore, Mr Sólyom could rely neither on Article 21 TFEU nor on Directive 2004/38 to gain entry to Slovakia. The Court also rejected Hungary’s argument that Slovakia abused EU rights by relying, during diplomatic communications, on the same Directive when refusing Mr Sólyom’s entry (paras 53-61).
The second and fourth heads of complaint by Hungary related to the future (i.e. hypothetical) infringements of EU law (Article 3 TEU, Article 21 TFEU, Directive 2004/38) by Slovakia. These complaints were rejected as inadmissible. In doing so, the Court pointed to the purpose and nature of the EU law-enforcement procedure under Article 259 TFEU: “as the aim of the Treaty is to achieve the practical elimination of infringements by Member States and the consequences thereof… an action under Article 259 TFEU concerning future possible infringements or limited to seeking an interpretation of EU law is inadmissible.”
The outcome: what does it mean for European integration?
Even though Hungary’s claims on all accounts were dismissed in their entirety, this case was an important one: it was decided by the Court sitting as the Grand Chamber (15 judges). Two important observations could be made.
Firstly, this is only the sixth time in the history of European integration that one Member State has initiated an action for failure to fulfil obligations directly against another Member State. The enforcement procedure under Article 259 TFEU is rarely used, as Member States generally prefer, for political reasons, to ask the Commission to act under Article 258 TFEU. Of the five earlier cases under Article 259 TFEU, none related to diplomatic relations of Member States and only three were closed by final judgment. These were 141/78 France v United Kingdom (regarding fishing boundaries and the notification of conservation measures), C-388/95 Belgium v Spain (whether the designation of origin “Rioja” wines was Spanish), and C-145/04 Spain v United Kingdom(whether the inhabitants of Gibraltar could participate the European Parliament elections).
Secondly, the use of Article 259 TFEU procedure in diplomatic relations between Hungary and Slovakia illustrates important dynamics for European integration, especially since the enlargements of 2004/2007. Whilst the Court did not refer to AG Bot’s Opinion in its judgment, the Advocate General emphasised that “a lasting break in diplomatic relations between two Member States … would, in fact, be incompatible with the integration process … and would constitute a barrier to the attainment of the essential objectives of the Union, including the aim of promoting peace” (para 58). Interestingly, Hungary and Slovakia are not the only neighbouring Member States that tried solving their diplomatic conflicts through litigation before the Court. One could point out to the recent highly-political Runevic-Vardyn litigation, which touched upon national sensitivities of Poland and Lithuania.
While “my neighbour is my enemy” attitude is not uncommon in the history of European integration (take the initial membership of the UK and the French position as an example), it poses great problems for European project. If Jean Monnet’s vision of the future Europe and the recent Nobel Prize are to mean something, all 27 Member States need to find dialogue not only on political/historical issues, but also on many social and economic ones, which are central for the effective functioning of the Union. Otherwise, in addition to the current economic and Euro crises, we are to face uncertain times, indeed.
Note: This article was originally published on 15 November 2012 on the Bucks New University Law Blog (http://bucks.ac.uk/whoswho/school_of_applied_management_and_law/law/blog/c_364_10_hungary_v_slovakia/).