1.1.3. Infringement procedures by the European Commission

Under the EU Treaties, the European Commission is responsible for ensuring that EU law is correctly transposed and applied. As the guardian of the Treaties, the Commission may commence infringement proceedings under Article 258 22 of the Treaty on the Functioning of the European Union, if there are indications that a Member State has systematically breached Union law, be it by practice or by incomplete or incorrect transposition of the EU law. The purpose of the procedure is to bring the infringement to an end. The infringement procedure starts with a letter of formal notice, by which the Commission allows the Member State to present its views regarding the breach observed. If no reply to the letter of formal notice is received, or if the observations presented by the Member State in reply to that notice cannot be considered satisfactory, the Commission may move to the next stage of the infringement procedure, which is the reasoned opinion; if the Member State still does not put an end to the infringement the Commission may then refer the case to the Court of Justice.23

In the course of 2018, the Commission took the following actions in the frames of infringement proceedings vis-à-vis member states in the area of asylum:  

On 19 July 2018, the Commission took further steps in an infringement procedure against Hungary that was initiated in 2015, due to non-compliance of its asylum and return legislation with EU law 24 by referring the country to the Court of Justice of the European Union. Three areas of concern remain unaddressed: a) falling short of the Asylum Procedures Directive, Hungarian legislation only allows applications for protection to be submitted within transit zones at the external borders, which are not easily accessible, and after excessively long periods; b) in regards to reception conditions, the indefinite detention of applicants in transit zones is considered by the Commission as breaching the provisions of the Reception Conditions Directive; c) finally, in regards to return, failure to issue individual decisions, as well as failure to include information on legal remedies available to individuals with a return decision is in breach of the EU Return directive. On the same day, the Commission also sent a letter of formal notice to Hungary concerning the criminalisation of activities to support asylum and residence applications (the so-called Stop Soros legislation).25 As the majority of concerns raised in the formal notice remained unaddressed, on 24 January 2019, the Commission proceeded to the next step of the infringement procedure by sending a reason opinion to Hungary.26  

On 8 November 2018, the Commission sent a formal notice to Bulgaria concerning the incorrect implementation of the EU asylum acquis. Identified shortcomings in the areas of accommodation and legal representation of UAMs; identification and provision of support to vulnerable applicants; provision of sufficient legal assistance; and applicants’ detention, were considered to be in breach of the Asylum Procedures Directive and the Reception Conditions Directive.  
On 24 January 2019, the Commission also called on Hungary, Poland, and Slovenia, through a reasoned opinion, to fully implement the current Qualification Directive.27  All three Member States have submitted their reply, which are under analysis by the Commission services.

 

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22 European Commission, The infringements procedure
23 European Commission, Infringements proceedings.  
24 European Commission, Migration and Asylum: Commission takes further steps in infringement procedures against Hungary.
25 European Commission, Migration and Asylum: Commission takes further steps in infringement procedures against Hungary.
26 European Commission, Asylum: Commission takes next step in infringement procedure against Hungary for criminalising activities in support of asylum applicants.​​​​
27 European Commission, January infringements package: key decisions.