The European Commission on Tuesday referred Hungary to the Court of Justice of the European Union (CJEU) for failing to comply with EU law regarding penalties for migrant smuggling.

The case concerns Hungary’s Decree 148/2023, adopted in April 2023. The law allows people convicted of migrant smuggling to leave prison early and serve the rest of their sentence under a system called “reintegration detention.” Under this regime, convicted individuals are released from prison shortly after sentencing and required to leave Hungarian territory within 72 hours to serve the remainder of their sentence in their home country or country of habitual residence.

The commission argues that this practice undermines EU efforts to deter migrant smuggling and violates both Council Directive 2002/90/EC and Council Framework Decision 2002/946/JHA. These legal instruments require member states to impose effective, proportionate, and dissuasive penalties for facilitating unauthorized entry, transit, or residence in the EU.

According to the commission, the Hungarian decree allows convicted smugglers to avoid serving meaningful prison time and fails to ensure that sentences are enforced in the countries to which individuals are expelled. The commission also expressed concern about the lack of safeguards, oversight, and enforcement mechanisms related to the execution of reintegration detention outside Hungary.

Hungarian authorities have released nearly 2,500 foreign nationals convicted of smuggling under the reintegration detention policy. Under current rules, authorities may only rearrest individuals if they fail to leave the country within the mandated 72-hour period. Police reports also indicate that some of the released individuals have been rearrested for committing new offenses.

Hungary’s mass release of convicted smugglers has also affected relations with other states in the Schengen Area. Austrian authorities expressed concern that the policy could enable individuals to resume smuggling operations across borders, straining law enforcement cooperation and increasing migration-related pressures within the Schengen Area.

A letter of formal notice was issued to Hungary on July 14, 2023, initiating infringement proceedings. The Hungarian government responded on September 14, 2023, but the Commission found the arguments unconvincing and proceeded with a reasoned opinion on October 3, 2024. After reviewing Hungary’s response to the reasoned opinion on December 11, 2024, the commission determined that the country remained in breach of its EU obligations, prompting the referral to the CJEU.

The commission maintains that Hungary’s approach jeopardizes the deterrent effect of EU law and hinders the joint efforts to combat migrant smuggling.