President is not (primus inter) pares among ‘his’ own EU-citizens, since he is not equal to them

On 16 October 2012, the CJEU delivered its Grand Chamber judgment in the infringement procedure (Case C-364/10 Hungary v Slovakia) which was initiated by Hungary against Slovakia for refusing the Hungarian President entry into Slovakian territory. It is already quite rare that Member States initiate infringement procedures against each other. Normally the Commission takes up this task, as guardian of the Treaties, but it refused to do so in this case.

Mr Sólyom, the President of Hungary, was invited to a ceremony for the inauguration of a statue of Saint Stephen of Hungary (a Medieval Hungarian King) in the Slovakian town of Komárno. The ceremony was planned for 21 August 2009. 21 August is a sensitive date in Slovakia, since Warsaw Pact troops, among which were Hungarians, invaded Czechoslovakia on 21 August 1968. Therefore, Slovakian authorities found the planned visit inappropriate.

On the day itself, whilst the President was on his way to Komárno, the Ministry of Foreign Affairs of Slovakia informed the Hungarian ambassador that President Sólyom would not be allowed entry into Slovakia. He arrived at the Hungarian-Slovakian border, but did not enter into Slovakian territory.

In the infringement procedure Hungary has argued that Slovakia infringed the free movement of EU-Citizens (Article 21(1) TFEU and Directive 2004/38) by refusing President Sólyom entry into Slovakian territory.

The CJEU dismissed the Hungarian pleas for the following reasons. It first concluded that Mr Sólyom is an EU-citizen, since he is of Hungarian nationality. He therefore has the

primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and restrictions” allowed under EU-law.

EU-law therefore applies, whereas Advocate-General Bot had concluded in his opinion in this case that EU-law was not applicable, since international law regulating diplomatic affairs between Member States was applicable, which is according to the AG outside the competences of the EU and therefore outside the scope of EU-law. The CJEU disagrees with him on this point. Nevertheless, the CJEU uses that same international law to interpret the limitations allowed to restrict the free movement of EU-citizens.

49      The status of Head of State therefore has a specific character, resulting from the fact that it is governed by international law, with the consequence that the conduct of such a person internationally, such as that person’s presence in another State, comes under that law, in particular the law governing diplomatic relations.

50      Such a specific character is 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.

51      Accordingly, the fact that a Union citizen performs the duties of a Head of State is such as to justify a limitation, based on international law, on the exercise of the right of free movement conferred on that person by Article 21 TFEU.

52      In the light of all of the foregoing, it must be held that, in the circumstances of the present case, neither Article 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 fact that international law is applicable to the head of a Member State, who is also an EU-citizen, creates an additional limitation to the free movement of this category of EU-citizens; a category which concerns at least 27 citizens, since 27 Member States have 27 Heads, and probably all EU-citizens falling under international law for diplomats. This argument was not made by any of the parties in this case and the Advocate-General used the international law argument to conclude that EU-law was not applicable at all, whereas the CJEU – in my view – stays quite cryptic about how to fit in the interplay between EU-law and international law in its framework/criteria of judging free movement cases. I wonder therefore what this reasoning really might mean.

Does this mean that there is already a justified limitation when the EU-citizen in question simply falls under international law regulating diplomatic affairs? Or must there be additional elements in order to justify the limitation in a specific case of proportionally? The first conclusion seems arguable on the basis of the text of the judgment and perhaps politically desirable: the EU does not want to interfere with the bilateral diplomatic relationships of its Member States. But if that explanation is the right one, it makes the right to move freely illusory for EU-citizens who are diplomats and are travelling in that capacity. A reason for me to believe that the CJEU did not want to justify an unbounded limitation to the free movement of EU-citizen diplomats merely because they fall under international law, is the way in which the CJEU ruled in its Ruiz Zambrano judgment (par. 42) that EU-citizens may not be deprived of the genuine enjoyment of the substance of the rights, which might be the case if the limitation for EU-citizen diplomats is unbounded.

Perhaps the following paragraphs of the Grand Chamber judgment might be helpful to come to a different conclusion.

46      To that end, it should be noted that, on the basis of customary rules of general international law and those of multilateral agreements, the Head of State enjoys a particular status in international relations which entails, inter alia, privileges and immunities.

47      In particular, Article 1 of the New York Convention of 14 December 1973 on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, states, inter alia, that every Head of State, while on the territory of a foreign State, enjoys that protection.

48      Thus, the presence of a Head of State on the territory of another State imposes on that latter State the obligation to guarantee the protection of the person who carries out that duty, irrespective of the capacity in which his stay is effected.

These paragraphs seem to fill in a material aspect of the limitation. The receiving Member State might refuse entrance when the security of the visiting Head of State, which it is obliged to offer under international law, cannot be guaranteed. That might have been the case here on 21 August 2009, or at least that is what I make from the fact that a visit on that date from Hungary is sensitive. The CJEU even underlines that the specificity of the case and its factual circumstances are decisive in par. 52: “in the circumstances of the present case“. The international law obligation would then neatly be fitted into the free movement framework/criteria as a ‘normal/regular’ justification ground.

Nevertheless, if that is how we have to read the quoted paragraphs from the judgment, I would have expected the CJEU to have added the next step in the free movement framework/criteria: a proportionality test. A limitation of the free movement of EU-citizen diplomats would then only be allowed when there is an actual and present danger to their security which therefore cannot be guaranteed (with an analogy to its case-law on infringements to free movement by expulsion, which is only allowed if the personal conduct of the EU-citizen forms a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society., cf. the Orfanopoulos-case, par. 66).

Another reason for me to believe that the CJEU tacitly refers to a proportionality test, is the importance which it added to that test in the Rottmann-case: it is the power of the Member States to regulate the acquisition and loss of nationality, but when such a decision would mean the loss of EU-citizenship, they must also abide by proportionality.

In earlier case-law on EU-citizenship, the CJEU reiterates that EU-citizenship is “the fundamental status of nationals of the Member States” (cf. par. 41 of the Ruiz Zambrano-judgment and the case-law cited there). This fundamental status seems to have been developed by the CJEU to a status which has primacy over (cf. Davies) and becomes less dependent on (cf. Golynker) national law since the Rottmann-case. The Hungary v Slovakia-case discussed here makes an exception for international law: even though the fundamental status of Mr Sólyom is his EU-citizenship, the fact that he falls under international law as President of Hungary may limit his free movement rights.

This judgment demonstrates that a the head of a Member State is not equal to other EU-citizens. Therefore I conclude that the President is not first among equals. Perhaps limitations on their free movement rights are allowed even without a proportionality test, since the CJEU is silent about it, although I doubt, as explained above, whether that may be concluded from this judgment.

Furthermore, this judgment leads to a more general question: are there more public functions or other parts of international law that can make an EU-citizen not equal to ‘normal’ EU-citizens? Heads of State, Heads and Members of Governments, Diplomats, Members of Parliament, etc.? And may their movement rights stemming from EU-law therefore be limited more easily than those of ‘normal’ EU-citizens?

3 comments

  1. Martin Holterman

    My sense is that there was some serious cutting going on here, in order to arrive at a judgement that represented a rough consensus view of the Grand Chamber. That is how people tend to summarise the methods of the Court: you start with a draft by the rapporteur, and then you cut out all the parts that too many other judges don’t like. Sometimes, the result is a judgement with apparent gaps.

    In this case, I would ask quite simply whether there is an international law rule that allows country X to prevent citizens of countries Y and Z from entering its territory. Surely there is, absent issues of refugee status. So why is it that this rule has been superseded by the EU rules on free movement, but the rule on the international travel – or lack thereof – of heads of state is not?

    The AG at least had a plausible answer, which I don’t know is correct but which at least has the benefit of reminding everyone that the doctrine of conferred powers still exists. The Court, on the other hand, seems to be entirely silent on this matter. Invoking an implied proportionality test does not seem to resolve this difficulty either.

    • Emanuela M.

      Thank you for a well written case analysis!

      I also agree with the insightful comment that the judgment would have been more coherent if the procedure had been slightly different. The principle of conferral and its use in points 51-53 of the opinion is also interesting to follow and ponder about.

      Let’s try to compare the point 50 of the opinion:
      ‘While the movement of citizens of the Union between Member States is governed by EU law, and in particular by Article 21 TFEU and Directive 2004/38, the same does not apply to visits to Member States by Heads of State’ which basically says that the movement of diplomats falls outside the scope of EU law, with the judgment of the Court in paragraph 51:
      ‘Accordingly, the fact that a Union citizen performs the duties of a Head of State is such as to justify a limitation, based on international law, on the exercise of the right of free movement conferred on that person by Article 21 TFEU.’.

      According to the judgement the free movement of diplomats falls within the ambit of EU law and the interdiction constituted a restriction of the exercise of the right stipulated by Article 21 TFEU. The interdiction is treated in the same way as it were one produced by a provision of national law.

      Shall the obligations of the member states arising from bilateral or multilateral agreements, in particular for this case, the law governing the diplomatic relations, be treated on the same footing with obligations arising from the national law of the member states?

      I agree of course that in the case of an affirmative answer, the proportionality test should be performed as in any other similar situation, where a justified restriction must be proportionate to the legitimate aim pursued.

      This case gives writing material for all the EU legal scholars for the next two years, I would say.

  2. Emanuela M.

    I have been thinking about the principle of conferral for a while trying to find a reason for why the Court has decided not to follow the AG’s conclusions on this point. I quote from point 51 from the Opinion issued on the 6 March this year:

    ‘As stated in Article 5(2) TEU, ‘[u]nder the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States’. The Treaties being silent on the question of access for Heads of State to the territory of Member States, I conclude that this is a competence reserved for the Member States.’

    I have found a possible answer in Article 352 TFEU. In my opinion this article can be interpreted in the sense that the Union holds not only an explicit competence, the attributed one as stipulated by Article 5(2) TEU, but also an implicit competence, not yet attributed but still situated within the scope of EU law. This seems to be the case here for the matter of ‘visits to Member States by Heads of State’.

    What do you think?

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