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Brussels, 24 June 2010

Reasoned opinion - Article 259 TFEU - Hungary/Slovakia

The Commission today (24 June 2010) adopted a reasoned opinion in the infringement procedure brought by Hungary against Slovakia under Article 259 of the TFEU. Hungary claims that Slovakia violated European Union law by refusing the Hungarian president entry into its territory in August 2009.

In the event of a dispute between two Member States before the Court of Justice, the Commission issues a reasoned opinion. The conclusion of the Commission's analysis is that the provisions of the treaty and of secondary legislation do not apply to visits by the Head of one Member State to the territory of another, and that in the Commission's view the infringement allegation is therefore unfounded.

It is apparent from the text, the context and the aims of the treaty and of secondary legislation that free movement of persons applies only to people as "private" citizens (fundamental right of individuals) and not to Heads of State of a Member State or non-EU country, who are governed by international law. Furthermore, the institutions do not have the power to modify the international law governing bilateral diplomatic relations between Member States.

The facts

Hungary claims that on 21 August 2009 Slovakia refused the Hungarian president entry into Slovakia on the basis of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States without complying with the substantive and procedural rules laid down in that Directive.

On 21 August 2009 the Hungarian president planned to attend the unveiling of a statue of St Stephen I, the first king (and patron saint) of Hungary, organised by a private association in Komárno, Slovakia. The Slovak authorities considered that the President's visit on that date, which marked the 41st anniversary of the occupation of Czechoslovakia by the Warsaw Pact, posed a security risk and decided to deny him entry to the country under Directive 2004/38/EC.

In October 2009 the Hungarian authorities submitted a complaint to the Commission President calling on the Commission to start infringement proceedings against Slovakia for infringement of Directive 2004/38/EC.

The Commission replied that it was unable to bring infringement proceedings under the circumstances described, since official visits by the head of one Member State to the territory of another Member State do not come under EU law and since Member States retain full control of their bilateral diplomatic relations.

Hungary then brought the matter formally before the Commission under Article 259 TFEU, which requires a matter to be referred to the Commission as a prior step before one Member State brings an action against another before the Court of Justice.

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