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No Right of Entry for President of Hungary

(CN) - Slovakia did not break EU law when it barred the president of Hungary from entering its territory, an adviser to the Court of Justice found Tuesday.

Hungarian president Laszlo Solyom was denied entry into Slovakia on Aug. 21, 2009, after he had been asked to attend the dedication of a statue of Saint Stephen, the founder and first king of Hungary. The dedication was to have taken place in the town of Komarno, Slovakia.

After several diplomatic exchanges between the two countries, Slovak leaders adopted a joint resolution in which they said Solyom's visit was deemed inappropriate since he had not expressed a desire to meet Slovak dignitaries.

The Aug. 21 visit would also coincide with the 41st anniversary of the invasion of Czechoslovakia by Warsaw Pact troops, which included members of the Hungarian army.

Slovakia notified the Hungarian ambassador of its decision, citing security reasons as allowed by EU directive, while Solyom waited outside the Slovakian border. Solyom refrained from entering Slovak territory.

Hungary asked the European Commission to bring infringement proceedings against Slovakia, claiming that the EU directive of security is insufficient to refuse heads of state entrance into another member state. The commission declined to bring the action before the Court of Justice, saying that the directive did not apply to state visits between member states.

When Hungary brought the infringement action before the Court of Justice independently, the commission intervened in support of Slovakia. Advocate General Yves Bot told the high court Tuesday that Slovakia's ban of Sólyom did not violate EU law.

"It is common ground that Mr. Solyom intended to go to the town of Komarno in order to attend the inauguration of a symbolic monument linked to the history of the Hungarian state, and that he was to give a speech on that occasion," Bot wrote.

"Consequently, it was indeed in the performance of his duties as the president of Hungary, and not simply as a citizen of the Union, that Mr. Solyom wished to visit the town of Komarno," Bot stated.

While EU law governs the movement of EU citizens between member states, the same does not apply to visits by heads of state, Bot said.

The European 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," Bot wrote. "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 this is a competence reserved for the member states."

"I do not agree with the idea put forward by Hungary that the status of a citizen of the Union ... should prevail over the status enjoyed by heads of state of the member states, so that the latter must always enjoy freedom of movement within the union," he added.

Visits by heads of state within the EU "depend on the consent of the host state and the detailed conditions defined by the latter within the framework of its competence, and cannot be understood in terms of freedom of movement," the opinion states.

Bot also had cautionary words for Slovakia

"That said, as in the case of any competence reserved for them, the member states should not exercise their diplomatic competence in a manner that might lead to a lasting break in diplomatic relations between two member states," he wrote. "Such a break would, in fact, be incompatible with the integration process aimed at creating, in the words of the preamble to the EU treaty, 'an ever closer union among the peoples of Europe' and would constitute a barrier to the attainment of the essential objectives of the Union, including the aim of promoting peace."

Only a situation of persistent paralysis in diplomatic relations between member states would warrant the intervention of EU law, Bot said.

"We are obviously not dealing with such a situation here, as is evident, for instance, from the meeting between the Hungarian and Slovak prime ministers 10 September 2009, that is to say, a few days after the incident giving rise to the present proceedings," the opinion states.

"On that occasion, they also reiterated their commitment to respecting and applying all the articles of the Treaty on Good-neighborly Relations and Friendly Cooperation between Hungary and the Slovak Republic, signed in Paris on 19 March 1995."

Even if Slovakia was wrong to invoke the security concerns directive in barring Solyom from entering the country, it did not amount to an abuse of rights within the meaning of Court of Justice case law, Bot found.

The advocate general's opinion is not binding on the court, which will issue its judgment of the case on a later date.

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