The Branch That Finally Snapped

The story goes: a Polish politician after allegedly committing a crime leaves Poland and settles in Hungary. Interestingly, such a short sentence is not enough to clearly identify the politician in question. It may refer to the king Bolesław II the Bold from the 11th century, the infamous 16th century nobleman Samuel Zborowski, or since Dec. 19, 2024 to the former Polish Deputy Justice Minister Marcin Romanowski. All three had followed the Southeastern route to Hungary in order to find a safe haven from prosecution in Poland. However, while exile of the former two remains a matter for historical research, the act of Hungary granting “asylum” to Romanowski generates crucial legal questions regarding the EU’s legal order. These include what kind of asylum is at play here, whether this act was lawful from the perspective of EU law, and what impact it has on the Union’s legal system.

Romanowski’s Story

We should begin by recalling Romanowski’s story. After the recent change of Poland’s government, the Minister of Justice Adam Bodnar appointed the new National Public Prosecutor and took control over the prosecutorial bodies – a case already commented upon in this very forum. Subsequently, an investigation was launched into irregularities regarding the management of the national Justice Fund, handled by Romanowski. The Prosecutor applied for a European arrest warrant (EAW) for Romanowski, and the competent court agreed to it. However, at this stage he was already outside of Polish jurisdiction. When the European arrest warrant was issued for him, news about the “asylum” granted to Romanowski by the Hungarian authorities were published. As per today, no official documentation regarding this grant of asylum was shared with Polish prosecutorial bodies, nor are they available online. One reason for a grant of asylum may be concerns about Romanowski’s capacity to receive a fair trial due to the ongoing reforms of the Polish justice system. What kind of legal act is at play here?

Because the official decision regarding Romanowski’s grant of asylum was not published, the only clue lies in the words of Hungarian Minister Gulyas: that Romanowski received it “[i]n accordance with Hungarian and EU legislation.” This implies that Romanowski cannot have been granted refugee status nor subsidiary protection. The Qualification Directive (article 2 d-g) and the TFEU (article 78) clearly state that those two forms of international protection can only be received by third-country nationals. Romanowski, a Polish citizen, is clearly not in this category. If he were indeed recognized as a refugee, the decision would not be “in accordance with EU legislation”.

Nonetheless, refugee status and subsidiary protection do not exhaust potential meanings of “asylum”. While in the EU this word has been used almost exclusively in the context forged by the Common European Asylum System (CEAS), “asylum” could refer to the state’s sovereign prerogative to grant international protection to any foreigner it finds suitable [paras. 25-30]. This well-established institution of international law, albeit rarely used after the introduction of the Refugee Convention, stems from the state’s right to control its international borders. If a state may refuse an entry of a foreigner, it may also allow for it, owing to reasons it finds convincing. The state’s sovereign prerogative to grant asylum is also recognized by article 14 of the Universal Declaration of Human Rights. While this particular article never became binding as a customary norm, it can be used as guidance and a means of legal defense for a state wishing to grant territorial asylum to the victims of human rights violations, as Grahl-Madsen points out [p. 41]. It is likely that Marcin Romanowski received this form of protection from Hungarian authorities, because it appears to be the only available legal reasoning behind that decision. With neither the CEAS, nor the Refugee Convention applicable to his case, and Romanowski not actually facing a removal (as he was submitting his application before travelling to Hungary, so before he put himself in Hungarian jurisdiction), the state’s prerogative to grant asylum remains the only potential explanation for his grant of asylum. The national legal basis for this instrument is less important to the case for every state can regulate questions of asylum according to its own preference and needs. For instance, Poland included it in its Constitution, in article 56(1). In the case of Romanowski, the relevant legal basis is likely the Hungarian Law on Asylum (paragraph 25D) which introduces a “permission for a tolerated stay” for foreigners who are not refugees or beneficiaries of subsidiary protection but remain at risk of refoulement. This hypothesis is further supported by the statements of Romanowski’s attorney, although its full verification would require the release of official documents.

The Branch that Finally Snapped

Could Hungary grant such protection to Romanowski on the basis of its sovereign prerogative from the perspective of the EU law? Article 78 of the TFEU, the legal basis for the creation of the CEAS and thus the imposition of the exclusion of EU citizens as beneficiaries of international protection, constitutes a shared competence of the Union [p. 285-286], albeit currently largely taken over by the EU due to the preemption doctrine [ibidem, p. 212-216]. Also, EU citizens already enjoy plenty of free-movement related benefits, and in the majority of cases to apply for international protection yields no benefits for them. However, the sovereign prerogative of granting asylum is an inherent competence of a state, and therefore any of its limitations would not be easily accepted by the Member States.

This tension led to the inclusion of  Protocol no. 24 to the TFEU – the titular “branch that finally snapped” during this case. It contains one sole operative article which aims to limit the instances of Member States taking advantage of their discussed sovereign prerogative towards EU citizens. While it does include a presumption that an international protection application of an EU citizen should be considered as “manifestly unfounded” [Sole Article (d)], it stops short of making it an axiomatic rule. Thus, while in principle Member States should not grant protection to EU citizens, they may still do so. Daniel Thym, in his take on the Protocol no. 24, pointed out this awkward and partially void norm [p. 354-355]. Thym continues that the first test for it came in 2017, during the controversy regarding the Catalan irredentists applying for protection in Belgium, but was resolved by the reference to non-asylum related legal issues. Member States seemed to avoid it so as to not stir the controversy.

Results for the EU Legal Order

Until a controversy was stirred, that is. After acknowledging that Hungarian actions can be somehow portrayed as “in accordance with Hungarian and EU legislation”, the question remains: what will be the impact of this decision on the EU’s legal order? Romanowski´s case illustrates the conflict at the heart of Protocol no. 24. On the one hand, there are clear functional arguments to uphold the state’s prerogative to grant asylum, including for reason related to protecting human rights by  virtue of article 14 of the UDHR. On the other, the stability of the EU legal order, the executive possibilities of the European arrest warrant, as well as the principle of mutual trust are threatened. Risks of that branch of trust snapping are visible in one of the potentially discussed scenarios in Poland, whereby Hungary becomes a safe haven for all kinds of politicians under criminal investigations. For this reason, the Polish government is considering a potential infringement action before the ECJ on the basis of the article 259 of the TFEU.

It is too early to predict what such a submission to the Court would look like. It would probably entail the question whether the grant of territorial asylum unrelated to the mechanisms provided for by the CEAS could stymie the execution of the European arrest warrant. Nonetheless, based on the nature of article 78, the wording of the Protocol no. 24, and the general rules of international law, it is more likely (for the author of this post) that the Court would side with Hungary.

Two additional reasons for that conclusion come to mind. Firstly, there is the ECJ’s adjudicative history of cases such as N.S. v the UK or Jawo v. Germany, in which the Court has already stressed the primacy of the Member States’ human rights obligations relative to those stemming from the rule of mutual trust. Moreover, in the LM (Celmer) case which concerned a similar relationship between the right to free trial and the EAW, the Court clearly stated that article 1(3) of the Framework Decision on the EAW, together with the fundamental rights and principles of the EU law, such as the right to a fair trial, must be respected despite the issuance of the EAW. In other words, the mere existence of the EAW and of the general principle of mutual trust does not exempt the executing authorities from controlling whether, upon surrendering an individual with an EAW, their right to free trial will be respected. In case of Romanowski, if Hungary finds him to be unjustly prosecuted and his right to a fair trial threatened, it is highly improbable that it will surrender him to Poland.

The ECJ´s Dilemma

Unless the ECJ reviews in detail the factual findings of Hungarian authorities regarding the Polish justice system, and finds the latter in conformity to the European standards, it will be faced with a dilemma. Romanowski’s case for asylum is dubious at best, but Hungary decided to recognize it and shielded him with its authority. The subsidiary nature of the ECJ would imply that the Court would have to at least in theory respect this position. The Court would have to decide whether Romanowski’s human rights, and Hungary’s sovereign prerogatives as well as its obligations to protect said rights can be trumped by the principle of the mutual trust. It is unlikely that the ECJ would cross this Rubicon.

Also, it is accepted in general international law (as visible from, for instance, the UN General Assembly Declaration on Territorial Asylum, article 1) that states ought to respect another state’s decision to grant territorial asylum, and not treat it as internationally unlawful or unfriendly. Thus, if the Court decided to rule contrary to this principle, it would further separate the EU legal order from general international law, sparking potentially more far-reaching criticism than in the scenario of allowing one Polish politician to receive protection in Hungary.

What happens to Romanowski?

So what will happen with Romanowski? Unless Hungary decides to withdraw its protection, he is most likely going to remain in this state and escape prosecution. He may also decide to voluntarily return himself into Poland. Legally, there is little more to say. Historically, two aforementioned scenarios from the beginning come into mind. Bolesław II the Bold died in exile in Carinthia, and never came back into Poland. Samuel Zborowski returned to Poland when the subsequently elected monarch, Stefan Batory, came into power who later agreed to bring Zborowski to justice for the very crime that led to his exile. Only time will tell whether Romanowski shall follow into one of their footsteps or create a new path.