EuGH · C-660/24 · 22.10.2026 · ECLI:EU:C:2026:885
Provisional text
JUDGMENT OF THE COURT (Fourth Chamber)
22 October 2026 (*)
( Failure of a Member State to fulfil obligations – Article 258 TFEU – Area of freedom, security and justice – Judicial cooperation in criminal matters – Directive 2013/48/EU – Right of access to a lawyer in criminal proceedings – Art. 3(3)(b) – Right of suspects and accused persons to the presence and effective participation of their lawyer in questioning – Concepts of ‘presence’ and ‘effective participation’ – Art. 3(6)(b) – Temporary derogation from the right of access to a lawyer – National legislation allowing questioning of suspects and persons under reasonable suspicion of having committed a criminal offence without their lawyer if the lawyer does not attend within a specified period – Incorrect transposition – Article 9 – Waiver of the presence or assistance of a lawyer – Information on the content of that right and the possible consequences of waiving that right – Failure to transpose )
In Case C‑660/24,
ACTION for failure to fulfil obligations under Article 258 TFEU, brought on 10 October 2024,
European Commission, represented by C. Kovács, P. Ondrůšek and M. Wasmeier, acting as Agents,
applicant,
v
Hungary, represented by Zs. Biró-Tóth, M.Z. Fehér and G. Koós, acting as Agents,
defendant,
supported by:
Czech Republic, represented initially by T. Müller, A. Pagáčová, M. Smolek and J. Vláčil, acting as Agents, and subsequently by T. Müller, J. Očková, A. Pagáčová and J. Vláčil, acting as Agents,
intervener,
THE COURT (Fourth Chamber),
composed of I. Jarukaitis, President of the Chamber, R. Frendo (Rapporteur), N. Jääskinen, M. Condinanzi and A. Kornezov, Judges,
Advocate General: T. Ćapeta,
Registrar: E. Sartori, Administrator,
having regard to the written procedure and further to the hearing on 10 December 2025,
after hearing the Opinion of the Advocate General at the sitting on 12 March 2026,
gives the following
Judgment
1 By its application, the European Commission asks the Court to declare that, by failing to take the necessary measures in order to comply with, first, Article 3(6)(b) of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ 2013 L 294, p. 1), read in conjunction with Article 3(3) thereof, and, second, Article 9 of that directive, Hungary has failed to fulfil its obligations under the Directive.
Legal context
European Union law
2 Recitals 4, 6, 8, 23 to 25, 28, 30 to 32, 44, 52 and 54 of Directive 2013/48 state:
‘(4) The implementation of the principle of mutual recognition of decisions in criminal matters presupposes that Member States trust in each other’s criminal justice systems. The extent of the mutual recognition is very much dependent on a number of parameters, which include mechanisms for safeguarding the rights of suspects or accused persons and common minimum standards necessary to facilitate the application of the principle of mutual recognition.
…
(6) Mutual recognition of decisions in criminal matters can operate effectively only in a spirit of trust in which not only judicial authorities, but all actors in the criminal process consider decisions of the judicial authorities of other Member States as equivalent to their own, implying not only trust in the adequacy of other Member States’ rules, but also trust that those rules are correctly applied. Strengthening mutual trust requires detailed rules on the protection of the procedural rights and guarantees arising from the [Charter of Fundamental Rights of the European (‘the Charter’)], the [European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950; ‘the ECHR’] and the [International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on 16 December 1966 and which entered into force on 23 March 1976]. It also requires, by means of this Directive and by means of other measures, further development within the [European] Union of the minimum standards set out in the Charter and in the ECHR.
…
(8) Common minimum rules should lead to increased confidence in the criminal justice systems of all Member States, which, in turn, should lead to more efficient judicial cooperation in a climate of mutual trust and to the promotion of a fundamental rights culture in the Union. Such common minimum rules should also remove obstacles to the free movement of citizens throughout the territory of the Member States. Such common minimum rules should be established in relation to the right of access to a lawyer in criminal proceedings, the right to have a third party informed upon deprivation of liberty and the right to communicate with third persons and with consular authorities while deprived of liberty.
…
(23) Suspects or accused persons should have the right to communicate with the lawyer representing them. Such communication may take place at any stage, including before any exercise of the right to meet that lawyer. Member States may make practical arrangements concerning the duration, frequency and means of such communication, including concerning the use of videoconferencing and other communication technology in order to allow such communications to take place. Such practical arrangements should not prejudice the effective exercise or essence of the right of suspects or accused persons to communicate with their lawyer.
(24) In respect of certain minor offences, this Directive should not prevent Member States from organising the right of suspects or accused persons to have access to a lawyer by telephone. However, limiting the right in this way should be restricted to cases where a suspect or accused person will not be questioned by the police or by another law enforcement authority.
(25) Member States should ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when they are questioned by the police or by another law enforcement or judicial authority, including during court hearings. Such participation should be in accordance with any procedures under national law which may regulate the participation of a lawyer during questioning of the suspect or accused person by the police or by another law enforcement or judicial authority, including during court hearings, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. During questioning by the police or by another law enforcement or judicial authority of the suspect or accused person or in a court hearing, the lawyer may, inter alia, in accordance with such procedures, ask questions, request clarification and make statements, which should be recorded in accordance with national law.
…
(28) Where suspects or accused persons are deprived of liberty, Member States should make the necessary arrangements to ensure that such persons are in a position to exercise effectively the right of access to a lawyer, including by arranging for the assistance of a lawyer when the person concerned does not have one, unless they have waived that right. Such arrangements could imply, inter alia, that the competent authorities arrange for the assistance of a lawyer on the basis of a list of available lawyers from which the suspect or accused person could choose. Such arrangements could include those on legal aid if applicable.
…
(30) In cases of geographical remoteness of the suspect or accused person, such as in overseas territories or where the Member State undertakes or participates in military operations outside its territory, Member States are permitted to derogate temporarily from the right of the suspect or accused person to have access to a lawyer without undue delay after deprivation of liberty. During such a temporary derogation, the competent authorities should not question the person concerned or carry out any of the investigative or evidence-gathering acts provided for in this Directive. Where immediate access to a lawyer is not possible because of the geographical remoteness of the suspect or accused person, Member States should arrange for communication via telephone or video conference unless this is impossible.
(31) Member States should be permitted to derogate temporarily from the right of access to a lawyer in the pre-trial phase when there is a need, in cases of urgency, to avert serious adverse consequences for the life, liberty or physical integrity of a person. During a temporary derogation on that ground, the competent authorities may question suspects or accused persons without the lawyer being present, provided that they have been informed of their right to remain silent and can exercise that right, and provided that such questioning does not prejudice the rights of the defence, including the privilege against self-incrimination. Questioning may be carried out for the sole purpose and to the extent necessary to obtain information that is essential to avert serious adverse consequences for the life, liberty or physical integrity of a person. Any abuse of this derogation would in principle irretrievably prejudice the rights of the defence.
(32) Member States should also be permitted to derogate temporarily from the right of access to a lawyer in the pre-trial phase where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings, in particular to prevent destruction or alteration of essential evidence, or to prevent interference with witnesses. During a temporary derogation on that ground, the competent authorities may question suspects or accused persons without a lawyer being present, provided that they have been informed of their right to remain silent and can exercise that right, and provided that such questioning does not prejudice the rights of the defence, including the privilege against self-incrimination. Questioning may be carried out for the sole purpose and to the extent necessary to obtain information that is essential to prevent substantial jeopardy to criminal proceedings. Any abuse of this derogation would in principle irretrievably prejudice the rights of the defence.
…
(44) Requested persons should have the right to communicate with the lawyer representing them in the executing Member State. It should be possible for such communication to take place at any stage, including before any exercise of the right to meet with the lawyer. Member States may make practical arrangements concerning the duration, frequency and means of communication between requested persons and their lawyer, including concerning the use of videoconferencing and other communication technology in order to allow such communications to take place. Such practical arrangements should not prejudice the effective exercise and essence of the right of requested persons to communicate with their lawyer.
…
(52) This Directive upholds the fundamental rights and principles recognised by the Charter, including … the right to an effective remedy and the right to a fair trial, the presumption of innocence and the rights of the defence. This Directive should be implemented in accordance with those rights and principles.
…
(54) This Directive sets minimum rules. Member States may extend the rights set out in this Directive in order to provide a higher level of protection. Such higher level of protection should not constitute an obstacle to the mutual recognition of judicial decisions that those minimum rules are designed to facilitate. The level of protection should never fall below the standards provided by the Charter or by the ECHR, as interpreted by the case-law of the Court of Justice [of the European Union] and of the European Court of Human Rights [(‘the ECtHR’)].’
3 Article 3 of that directive, entitled ‘The right of access to a lawyer in criminal proceedings’, states:
‘1. Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively.
2. Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest:
(a) before they are questioned by the police or by another law enforcement or judicial authority;
(b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph 3;
(c) without undue delay after deprivation of liberty;
(d) where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court.
3. The right of access to a lawyer shall entail the following:
(a) Member States shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority;
(b) Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned;
…
4. Member States shall endeavour to make general information available to facilitate the obtaining of a lawyer by suspects or accused persons.
Notwithstanding provisions of national law concerning the mandatory presence of a lawyer, Member States shall make the necessary arrangements to ensure that suspects or accused persons who are deprived of liberty are in a position to exercise effectively their right of access to a lawyer, unless they have waived that right in accordance with Article 9.
5. In exceptional circumstances and only at the pre-trial stage, Member States may temporarily derogate from the application of point (c) of paragraph 2 where the geographical remoteness of a suspect or accused person makes it impossible to ensure the right of access to a lawyer without undue delay after deprivation of liberty.
6. In exceptional circumstances and only at the pre-trial stage, Member States may temporarily derogate from the application of the rights provided for in paragraph 3 to the extent justified in the light of the particular circumstances of the case, on the basis of one of the following compelling reasons:
(a) where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person;
(b) where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings.’
4 Under Article 8 of that directive, entitled ‘General conditions for applying temporary derogations’:
‘1. Any temporary derogation under Article 3(5) or (6) … shall
(a) be proportionate and not go beyond what is necessary;
(b) be strictly limited in time;
(c) not be based exclusively on the type or the seriousness of the alleged offence; and
(d) not prejudice the overall fairness of the proceedings.
2. Temporary derogations under Article 3(5) or (6) may be authorised only by a duly reasoned decision taken on a case-by-case basis, either by a judicial authority, or by another competent authority on condition that the decision can be submitted to judicial review. The duly reasoned decision shall be recorded using the recording procedure in accordance with the law of the Member State concerned.
…’
5 Article 9 of that directive, entitled ‘Waiver’, provides:
‘1. Without prejudice to national law requiring the mandatory presence or assistance of a lawyer, Member States shall ensure that, in relation to any waiver of a right referred to in Articles 3 and 10:
(a) the suspect or accused person has been provided, orally or in writing, with clear and sufficient information in simple and understandable language about the content of the right concerned and the possible consequences of waiving it; and
(b) the waiver is given voluntarily and unequivocally.
2. The waiver, which can be made in writing or orally, shall be noted, as well as the circumstances under which the waiver was given, using the recording procedure in accordance with the law of the Member State concerned.
3. Member States shall ensure that suspects or accused persons may revoke a waiver subsequently at any point during the criminal proceedings and that they are informed about that possibility. Such a revocation shall have effect from the moment it is made.’
6 Article 11 of Directive 2013/48, entitled ‘Legal aid’, is worded as follows:
‘This Directive is without prejudice to national law in relation to legal aid, which shall apply in accordance with the Charter and the ECHR.’
Hungarian law
7 Paragraph 3(1) and (2) of the a büntetőeljárásról szóló 2017. évi XC. törvény (Law No XC of 2017 establishing the Code of Criminal Procedure) of 26 June 2017 (Magyar Közlöny 2017/99.; ‘the Code of Criminal Procedure’) provides:
‘(1) The accused person shall be entitled to effective protection at all stages of the criminal proceedings.
(2) The accused person shall have the right both to defend himself or herself in person and to have recourse to a lawyer to defend himself or herself.’
8 Paragraph 39 of the Code of Criminal Procedure provides:
‘(1) An accused person shall have the following rights:
…
(b) to be granted by the court, the public prosecutor’s office and the investigating authority the time and conditions necessary to prepare his or her defence;
(c) to receive from the court, the public prosecutor’s office and the investigating authority information on his or her rights and obligations in the context of criminal proceedings;
(d) to instruct a lawyer to conduct his or her defence or to request the appointment of a lawyer;
(e) to consult his lawyer without supervision;
…
(2) An accused person in custody shall have the following rights:
…
(c) to contact his or her lawyer – and the consular representative of his or her State in the case of a foreign national – in person, by post or by electronic means, without supervision;
…
…
(4) The court, the public prosecutor’s office or the investigating authority must inform the defendant of his or her rights and inform him or her of his or her obligations from the outset of his or her involvement in the criminal proceedings. …
(5) Where the defendant is placed in custody, the court, the public prosecutor’s office or the investigating authority shall also inform him or her of his or her rights in writing. The information shall include the maximum possible duration of custody under the relevant decision or under the law, the rules on the extension, maintenance and review of custody, the right to appeal against such decisions and the right to submit an application for custody to be brought to an end.
…’
9 Under Paragraph 44(3) of that code:
‘The participation of a defence lawyer in criminal proceedings shall be mandatory if:
(a) the offence is punishable by a custodial sentence of up to five years or more;
(b) the accused person or the person under reasonable suspicion of having committed a criminal offence is subject to a coercive measure restricting personal liberty, has been arrested in another case, is subject to a preventive mandatory medical measure, is serving a custodial sentence, is interned or has been placed in a supervised educational centre;
(c) the accused or person under reasonable suspicion of having committed a criminal offence is hard of hearing, deaf and blind or blind, has a speech impediment, is unable to express himself or herself for other reasons, is severely restricted in his or her communication or, irrespective of his or her capacity for discernment, has a mental health condition;
(d) the accused person or the person under reasonable suspicion of having committed a criminal offence does not know Hungarian;
(e) the accused person or person under reasonable suspicion of having committed a criminal offence is unable to defend himself or herself personally for other reasons;
(f) the court, the public prosecutor’s office or the investigating authority has appointed a lawyer, either at the request of the accused person or of the person under reasonable suspicion of having committed a criminal offence, or because it has been deemed necessary for other reasons;
(g) the present law specifically so requires.’
10 Paragraph 74(1) of that code is worded as follows:
‘The court, the public prosecutor’s office and the investigating authority shall inform the person who is the subject of the criminal proceedings of his or her rights and obligations prior to the procedural act concerning him or her, unless otherwise provided for in this law.’
11 Paragraph 274(3) of that code provides:
‘Custody may last until the adoption of a decision on a coercive measure restricting individual freedom, but not more than 72 hours.’
12 Under Paragraph 385(2) of the Code of Criminal Procedure:
‘A person placed in police custody shall be questioned within 24 hours of the start of his or her detention.’
13 Paragraph 387(3) of that code provides:
‘If the suspect or person under reasonable suspicion of having committed a criminal offence wishes to instruct a lawyer, or if the investigating authority or the public prosecutor’s office appoints a lawyer, the investigating authority or the public prosecutor’s office shall immediately inform the lawyer and postpone questioning of the suspect until the lawyer arrives, by at least two hours. If, during that period,
(a) the lawyer does not attend, or
(b) the suspect or person under reasonable suspicion of having committed a criminal offence consents, after consulting his or her lawyer, to the start of questioning,
the investigating authority or the public prosecutor’s office shall begin questioning the suspect.’
Pre-litigation procedure and procedure before the Court
14 On 19 December 2016, Hungary informed the Commission of the adoption of national measures transposing Directive 2013/48 into its legal order.
15 After examining the notified measures, the Commission considered that they did not align national law with Article 3(6)(b) and Articles 9 and 10 of Directive 2013/48. It therefore sent Hungary a letter of formal notice on 12 November 2021, inviting it to submit its observations within two months.
16 By letter of 12 January 2022, Hungary replied to that letter of formal notice, stating that it considered that it had correctly transposed those provisions of Directive 2013/48 into its legal order.
17 After analysing the replies thus provided, the Commission considered that they were unsatisfactory, but only in so far as they concerned Article 3(6)(b) and Article 9 of Directive 2013/48. On 14 July 2023, that institution therefore sent a reasoned opinion to Hungary, requesting it to comply with the obligations referred to therein within two months of receiving it.
18 In its reply of 13 September 2023 to the reasoned opinion, Hungary again claimed that it had correctly transposed Article 3(6)(b) of Directive 2013/48 into its legal order. As regards the failure to transpose Article 9 of that directive, that Member State stated that the Hungarian legislation could be adapted in order to respond to that complaint.
19 Following a meeting held on 5 April 2024, Hungary announced that it would provide as soon as possible further information on possible changes to its legislation, without necessarily communicating any specific text.
20 The Commission was not satisfied with the reply provided by Hungary and decided, on 10 October 2024, to bring the present action before the Court.
21 By decision of the President of the Court of 7 February 2025, the Czech Republic was granted leave to intervene in support of the form of order sought by Hungary.
The action
22 In support of its action, the Commission relies on two complaints alleging, first, failure to transpose correctly Article 3(6)(b) of Directive 2013/48, read in conjunction with Article 3(3) thereof, into Hungarian law and, second, failure to transpose Article 9 of that directive.
The first complaint, alleging incorrect transposition of Article 3(6)(b), read in conjunction with Article 3(3), of Directive 2013/48
Arguments of the parties
23 By its first complaint, the Commission submits that Hungary incorrectly transposed into its legal order Article 3(6)(b) of Directive 2013/48, read in conjunction with Article 3(3) thereof, in so far as Paragraph 387(3) of the Code of Criminal Procedure generally allows suspects or persons under reasonable suspicion of having committed a criminal offence to be questioned without a lawyer being present if the lawyer does not attend the questioning within a time period of at least two hours after having been informed.
24 That legislation is incompatible with Article 3(3) of Directive 2013/48, under which suspects or accused persons must be afforded the right of access to a lawyer, and more specifically with point (b) of that provision, which provides that those persons have the right for their lawyer to be present and participate effectively when questioned. Where the right of access to a lawyer has not been waived in compliance with the conditions referred to in Article 9 of that directive, Member States may derogate from the application of the right to a lawyer being present at the questioning of the persons concerned only in exceptional circumstances, expressly provided for in Article 3(6) of that directive, in point (b) of that provision in particular, namely where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings.
25 The Commission submits that the right to communicate with a lawyer before questioning and to be questioned while a lawyer is present, as provided for in Article 3(3)(a) and (b) of Directive 2013/48, is unconditional and that the only derogations from those rights are expressly provided for in Article 3(6) of that directive. Thus, according to that institution, Article 3(3)(b) of Directive 2013/48 requires Member States to ensure that a lawyer is present during questioning, unless the conditions laid down in Article 3(6) of that directive are satisfied.
26 The Commission considers that the term ‘presence’ in Article 3(3)(b) of Directive 2013/48 must be understood as referring to the physical presence of the lawyer. The requirement relating to the lawyer’s ‘effective participation’ in questioning provided for by that provision confirms that interpretation. In that regard, the reference to national law in that provision does not concern the presence of the lawyer, solely the arrangements for his or her participation. Moreover, as regards questioning or the hearing, recital 25 of Directive 2013/48 does not contain a reference to remote means of communication. It is apparent from recital 24 of that directive that the remote assistance of a lawyer, namely by telephone, may be organised only on an exceptional basis in respect of minor offences. However, that possibility is clearly limited to proceedings in which the accused person is not questioned by a law enforcement authority.
27 The Commission also objects to Hungary’s argument that that interpretation of Article 3(3)(b) of Directive 2013/48 would give rise to a risk of abuse and a situation in which questioning could not take place in time, which would delay the criminal procedure and could also have repercussions on the other rights of the suspect or accused person or those of other persons concerned, such as victims. According to the Commission, the mere risk of an abuse of rights cannot justify making the right of access to a lawyer subject to a general condition contrary to the wording and purpose of Article 3 of Directive 2013/48. In order to mitigate that risk of abuse, that institution is of the view that the automatic appointment of a lawyer in order to assist suspects or accused persons could be envisaged.
28 In its defence, Hungary argues that the Hungarian legislation complies with Directive 2013/48. According to Hungary, Article 3(3)(b) of that directive requires only that suspects or accused persons may have access to a lawyer if they so wish, without, however, a lawyer always having to be physically present during questioning. Thus, it does not follow from that provision that if the person concerned does not wish to rely on his or her right to a lawyer being present at his or her questioning, that questioning cannot, in that case, take place. In addition, it is apparent from the wording of Article 3(3)(b) of that directive, and more particularly from the expression ‘where a lawyer participates during questioning’, that a lawyer is not always required to participate in questioning.
29 Hungary is of the view that the interpretation of Article 3(3)(b) of Directive 2013/48 advanced by the Commission would make it in practice mandatory for a lawyer to be present during questioning, unless the person concerned waives that right. The fact that the lawyer is not actually present at the time of a procedural act cannot constitute a general obstacle to the completion of procedural acts which are mandatory at any stage of the procedure. EU law cannot be interpreted as imposing on Member States an obligation which would have the effect of preventing the performance of any procedural act in a situation where the absence of the lawyer is due to the fact that the suspect or accused person acted intentionally and in bad faith. Consequently, the right to a lawyer’s presence cannot constitute an absolute right and the case-law of the ECtHR does not impose an absolute requirement for a lawyer to be present during questioning.
30 Hungary is of the view that Article 3(6) of Directive 2013/48, as an exception to Article 3(3) of that directive, does not list the cases in which it is possible to derogate from the mandatory presence of a lawyer at the questioning of the suspect or accused person, but those in which it is not necessary to offer that person the possibility of having access to a lawyer. Thus, where that person has been offered the possibility of a lawyer being present, but has not chosen to exercise that right, the absence of a lawyer during questioning, whatever the cause, does not constitute a derogation which should satisfy the conditions laid down in Article 3(6) of Directive 2013/48. The Hungarian legislation should not therefore be regarded as derogating, under that provision, from the principle established in Article 3(3)(b) of the Directive, since it does not exempt the authorities from the obligation to inform a lawyer, and it does not restrict the possibility for the person concerned to instruct a lawyer of his or her choice or to request the appointment of a lawyer at any stage of the proceedings.
31 According to Hungary, it is only if the lawyer was given the opportunity to participate effectively in the procedural act but that either he or she did not wish to rely on his or her right to be present, or the person concerned did not deem his or her participation necessary, that the questioning of the suspect or person under reasonable suspicion of having committed a criminal offence could take place. Thus, Hungarian legislation allows, on an exceptional basis, a suspect or person under reasonable suspicion of having committed a criminal offence to be questioned without a lawyer being present where that lawyer does not attend questioning within a period of at least two hours after having been informed. Furthermore, the expiry of that period does not trigger the start of questioning, since the person concerned may refuse to make a statement after having been informed of his or her rights.
32 Hungary adds that the national legislature amended the Code of Criminal Procedure by a law, adopted on 26 November 2024 and published on 4 December 2024, which inserted Paragraph 387/A into that code. That new provision is specifically intended to meet the Commission’s requirements with regard to Directive 2013/48, in that its objective is to strengthen the safeguards which must surround questioning where a lawyer is not present, even though, according to that Member State, such safeguards were already provided for by Hungarian legislation before that amendment.
33 In its reply, the Commission considers that the new Paragraph 387/A of the Code of Criminal Procedure still does not comply with Directive 2013/48 and does not alter the fact that Article 387(3) of that code authorises, outside the conditions laid down in Article 3(6)(b) of that directive, the questioning of a suspect or person under reasonable suspicion of having committed a criminal offence without a lawyer being present. In any event, since Article 387/A entered into force on 4 December 2024, that is to say, almost two months after the present action was brought, it cannot be taken into account by the Court, since it follows from settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined solely by reference to the situation prevailing in the Member State concerned at the end of the period laid down in the reasoned opinion.
34 In its statement in intervention, the Czech Republic submits that, while the Commission argues, in support of its action, that the right to a lawyer’s presence during questioning may be restricted only for compelling reasons, that premiss is not supported by the case-law of the ECtHR, on which Article 3 of Directive 2013/48 is based. It is apparent, in that regard, from the judgment of the ECtHR of 23 February 2010, Yoldaș v. Türkiye (CE:ECHR:2010:0223JUD002750304, § 52), that what is decisive in the light of the objective of Article 6(3)(c) of the ECHR is not the actual presence of a lawyer during questioning, but the possibility for the person concerned to exercise effectively his or her right of access to a lawyer, freely to choose the lawyer – who could be present during the questioning – and to be duly informed of that right.
35 According to that Member State, the Commission’s argument that that risk of abuse could be remedied by ensuring that an available lawyer is appointed automatically to provide legal assistance if the lawyer chosen by the suspect or accused person is not available would be tantamount to compelling the Member States, on the basis of Directive 2013/48, to assign that person a court-appointed lawyer.
36 In its response to that statement in intervention, the Commission contends that, where a particular case is brought before it, the ECtHR assesses the overall fairness of national proceedings on a case-by-case basis. The position would be different in the case of infringement proceedings before the Court of Justice for failure to fulfil obligations in respect of an infringement of Article 3(6) of Directive 2013/48. Since that provision defines precisely the conditions under which Member States may temporarily derogate from the application of the rights provided for in Article 3(3) of that directive, any national legislation which does not satisfy those conditions is contrary to Article 3(6). Thus, the incompatibility of national legislation with that directive is sufficient in itself to establish an infringement of that directive, without there being any need to assess, in each individual case, the overall fairness of the procedure conducted on the basis of that national legislation.
Findings of the Court
37 Article 3(1) of Directive 2013/48 lays down the fundamental principle that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to enable them to exercise their rights of defence practically and effectively (judgment of 14 May 2024, Stachev, C‑15/24 PPU, EU:C:2024:399, paragraph 47 and the case-law cited).
38 That principle is embodied in Article 3(2) of that directive, under which suspects and accused persons must have access to a lawyer without undue delay and, in any event, from whichever of the four specific points in time listed in points (a) to (d) of that provision is the earliest. In addition, Article 3(3) of that directive specifies, in points (a) to (c), the elements which the right of access to a lawyer includes (judgment of 14 May 2024, Stachev, C‑15/24 PPU, EU:C:2024:399, paragraph 48).
39 Accordingly, Article 3(3)(b) of Directive 2013/48 provides that Member States are to ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation is to be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned.
40 While it is thus apparent, as Hungary correctly submits, from the second sentence of Article 3(3)(b) of Directive 2013/48, read in the light of recital 25 of that directive, that the lawyer’s ‘effective participation’ in questioning is to take place in accordance with the procedural rules laid down by national law, that express reference to the laws of the Member States refers only to ‘effective participation’ and not to ‘presence’.
41 It follows, first, as the Advocate General observed, in essence, in points 47 and 48 of her Opinion, that the reference to national procedural rules in Article 3(3)(b) of Directive 2013/48 concerns only the effective participation of the lawyer in questioning the suspect or accused person. That reference is therefore intended to allow the Member States not to limit, outside the conditions laid down in Article 3(3)(b) of that directive, the very presence of the lawyer at that questioning, as Hungary argues, but only to lay down the detailed arrangements for his or her participation.
42 Second, as Directive 2013/48 contains no definition of the term ‘presence’, it should be borne in mind that, according to settled case-law, the determination of the meaning and scope of terms for which EU law provides no definition and in respect of which it makes no reference to the law of the Member States must be determined by reference to their usual meaning in everyday language, while account is also taken of the context in which they occur and the purposes of the rules of which they form part (judgment of 16 July 2026, Knocknamona and Massey, C‑27/25 and C‑356/25, EU:C:2026:596, paragraph 40 and the case-law cited).
43 In that regard, it should be noted, first of all, that, in its usual meaning in everyday language, the term ‘presence’ refers to the fact that a person is, in principle, physically or materially present at a given place at a given point in time, the antonym of that term being ‘absent’.
44 Next, as regards the context in which that term is used, it should be noted, first, that it appears, inter alia, in recital 25 of Directive 2013/48, which states that Member States should ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when they are questioned by the police or by another law enforcement or judicial authority, including during court hearings.
45 Second, it is apparent from Article 3(5) of that directive, read in the light of recital 30 thereof, that where a suspect or accused person is geographically remote, Member States may temporarily derogate from the right of that person to have access to a lawyer without undue delay after the deprivation of his or her liberty, and only at the pre-trial stage; however, during the period of such a temporary derogation, the competent authorities should not, inter alia, question the person concerned. It follows that ‘access to a lawyer’, within the meaning of Article 3, requires that the lawyer be present, in principle physically, during the questioning of the suspect or accused person.
46 In addition, Article 3(3)(a) of that directive, read in the light of recitals 23 and 44 thereof, provides, in essence, that suspects or accused persons must have the right to meet in private and communicate with the lawyer representing them, at any time, including prior to questioning by the police or by another law enforcement or judicial authority. It follows that the EU legislature intended to distinguish the ‘right to communicate’ of those persons with their lawyer, which may be exercised by means of telecommunications, from their ‘right to meet’ that lawyer, which requires, on the contrary, the presence, in principle physical, of the lawyer. The same applies to the presence of the lawyer during questioning, in which he or she must be able to participate effectively.
47 Last, as regards the objectives of Directive 2013/48, it is apparent from recitals 4, 6 and 54 of that directive that it seeks, inter alia, to implement the principle of mutual recognition of decisions in criminal matters, which presupposes that Member States trust in each other’s criminal justice systems. It is also apparent from the Directive that the EU legislature took account of the fact that the strengthening of that mutual trust requires detailed rules on the protection of safeguards and procedural rights arising, inter alia, from the Charter and the ECHR.
48 In that regard, the ECtHR has held that a suspect has the right for his or her lawyer to be physically present during initial police interviews and whenever they are questioned in the subsequent pre-trial proceedings. Such physical presence must enable the lawyer to provide assistance to that person that is effective and practical rather than merely abstract, and in particular to ensure that the rights of the defence of the interviewed suspect are not prejudiced (see, to that effect, ECtHR, 9 November 2018, Beuze v. Belgium, CE:ECHR:2018:1109JUD007140910, § 134; ECtHR, 23 May 2019, Doyle v. Ireland, CE:ECHR:2019:0523JUD005197917, § 74; ECtHR, 4 June 2019, Farrugia v. Malta, CE:ECHR:2019:0604JUD006304113, § 97; and ECtHR, 18 January 2022, Atristain Gorosabel v. Spain, CE:ECHR:2022:0118JUD001550815, § 49).
49 In those circumstances, it must be held that the concept of ‘presence’ of a lawyer, within the meaning of Article 3(3)(b) of Directive 2013/48, means that suspects and accused persons have the right to the presence, in principle physical, of their lawyer when questioned.
50 That said, it cannot be ruled out that, in certain exceptional circumstances, the lawyer’s presence may be ensured by other means, inter alia, digital means, provided that they ensure full and effective exercise of the rights of the defence.
51 The right for a lawyer to be present during questioning may nevertheless be subject to temporary derogations. Thus, in accordance with Article 3(6) of Directive 2013/48, in exceptional circumstances and during the pre-trial stage only, Member States may temporarily derogate from the application of the rights provided for in Article 3(3) of that directive, in so far as that is justified, in the light of the particular circumstances of the case, on the basis of at least one of the two ‘compelling reasons’ referred to in points (a) and (b) of Article 3(6). The first of those reasons is connected to the existence of ‘an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person’. The second reason may arise ‘where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings’.
52 In the present case, it should be noted that the Hungarian legislation provides that the investigating authority or the public prosecutor’s office may start questioning the suspect where the lawyer chosen or appointed does not attend within a period of at least two hours after having been informed.
53 It follows that, contrary to the requirements arising from Article 3(3)(b) of Directive 2013/48, that legislation does not guarantee that a lawyer is present and participates effectively in questioning.
54 It remains to be determined whether that legislation can be regarded as a temporary derogation from the obligation referred to in Article 3(3)(b) of Directive 2013/48, which satisfies the conditions laid down in Article 3(6) of that directive. In that regard, it must be noted that that legislation derogates, in a general manner, from the right of suspects or persons under reasonable suspicion of having committed a criminal offence to be questioned when a lawyer is present where that lawyer does not attend the questioning within a period of at the very least two hours after having been informed, without making that derogation subject to the conditions set out in Article 3(6) of Directive 2013/48 and, in particular, to one of the two compelling reasons set out in points (a) and (b) of that article, respectively.
55 It is apparent from the scheme and objectives of the Directive that the temporary derogations from the right of access to a lawyer which Member States may provide for are set out exhaustively in Article 3(5) and (6) thereof (judgment of 12 March 2020, VW (Right of access to a lawyer in the event of non-appearance), C‑659/18, EU:C:2020:201, paragraph 42).
56 As regards the scheme of Directive 2013/48, Article 3(6) of that directive, as a provision derogating from the principles established in Article 3(1) to (3) of the Directive, must be interpreted strictly. Furthermore, Article 8 of that directive, entitled ‘General conditions for applying temporary derogations’, refers only, as regards the right of access to a lawyer, to the derogations provided for in Article 3(5) or (6) thereof. Recitals 30 to 32 of Directive 2013/48 also refer to those derogations only (judgment of 12 March 2020, VW (Right of access to a lawyer in the event of non-appearance), C‑659/18, EU:C:2020:201, paragraph 43).
57 As regards the objectives of Directive 2013/48, it is apparent, first, from recitals 4 and 6 thereof that it seeks, inter alia, to further the mutual trust of Member States in their respective criminal justice systems, in order thereby to implement the principle of mutual recognition of criminal decisions, the extent of which is very much dependent on a number of parameters, which include mechanisms for safeguarding the rights of suspects or accused persons. Second, it is apparent from recitals 8 and 52 of that directive that it also seeks to ensure a common level of fair trial rights to suspects or accused persons throughout the European Union, in particular as regards the right of access to a lawyer in criminal proceedings.
58 To interpret Article 3 of Directive 2013/48 as allowing Member States to provide for derogations from the right of access to a lawyer other than those which are exhaustively set out in Article 3 would run counter to those objectives and the scheme of that directive and to the very wording of Article 3 and would render that right redundant (judgment of 12 March 2020, VW (Right of access to a lawyer in the event of non-appearance), C‑659/18, EU:C:2020:201, paragraph 45).
59 In those circumstances, it must be held that national legislation which generally allows suspects or persons under reasonable suspicion of having committed a criminal offence to be questioned without the presence of a lawyer if the lawyer does not attend within a time period of at the very least two hours after having been informed is not covered by the grounds for a temporary derogation from that right listed exhaustively by Directive 2013/48 and therefore infringes Article 3(6)(b) of that directive, read in conjunction with Article 3(3) thereof, in so far as that derogation from the right to the lawyer’s presence and his or her effective participation in questioning is not subject to a finding that immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings.
60 None of Hungary’s arguments calls that conclusion into question.
61 First, it is appropriate to reject Hungary’s argument that the limitation on the right of access to a lawyer referred to in paragraph 59 of the present judgment is justified where the suspect or person under reasonable suspicion of having committed a criminal offence is placed in custody, in so far as, in accordance with Hungarian legislation, in that situation, that person must be questioned within 24 hours of having been placed in custody and the questioning may not exceed 72 hours. According to that Member State, there is, therefore, a risk of obstruction of the criminal proceedings justifying questioning where a lawyer is not chosen or does not attend within the prescribed period.
62 It is true that, according to recital 28 of Directive 2013/48, where suspects or accused persons are deprived of liberty, the EU legislature intended for Member States to make the necessary arrangements to ensure that such persons are in a position to exercise effectively the right of access to a lawyer, including by arranging for the assistance of a lawyer when the person concerned does not have one, unless they have waived that right.
63 However, as the Commission rightly points out, a number of options complying with the requirements of Directive 2013/48 are available to the Member State concerned in order to deal with the risk of obstruction of criminal proceedings due to the suspect or accused person not having chosen a lawyer or due to the fact that the lawyer chosen did not attend within the prescribed period. First of all, in the exceptional circumstances referred to in Article 3(6) of Directive 2013/48, in particular where it is imperative for the investigating authorities to act immediately in order to avoid seriously jeopardising criminal proceedings, those authorities may conduct questioning without a lawyer being present. Next, if those conditions are not met and if the competent authorities consider that it is nevertheless necessary to carry out the questioning, they may, in order to remedy the absence of a choice of lawyer by the suspect or accused person or the impossibility for the lawyer chosen to be present at that questioning, appoint an available lawyer automatically. Lastly, where the suspect or accused person waives his or her right of access to a lawyer under the conditions laid down in Article 9 of that directive, questioning may also take place without a lawyer being present.
64 The existence of those various options shows that that observance of the right of access to a lawyer laid down in Article 3(3)(b) of Directive 2013/48 does not inevitably mean that the Member State concerned is required to provide for the automatic appointment of a lawyer to assist the person in custody during his or her questioning.
65 Consequently, it cannot be maintained that continuing the questioning where a lawyer is absent could be justified by the fact that the failure to appoint a lawyer by the suspect or person under reasonable suspicion of having committed a criminal offence or the fact that the lawyer did not attend within the prescribed period could constitute a delaying tactic on the part of that suspect or that person and would risk obstructing the criminal proceedings.
66 Second, as regards Hungary’s argument based on the adoption of a new Paragraph 387/A in the Code of Criminal Procedure, it must be borne in mind that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations is determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes (judgment of 1 August 2025, Commission v Spain (Work-life balance directive), C‑70/24, EU:C:2025:615, paragraph 58 and the case-law cited).
67 In the present case, by the reasoned opinion of 14 July 2023, the Commission requested Hungary to comply with its obligations referred to in that opinion within two months of receiving it.
68 It follows that, in the present case, Hungary cannot effectively challenge a failure to fulfil its obligations by relying on an amendment to the Code of Criminal Procedure published on 4 December 2024, that is to say, after the expiry of that period.
69 It follows from all the foregoing considerations that, by failing to adopt the necessary measures to comply with Article 3(6)(b) of Directive 2013/48, read in conjunction with Article 3(3) thereof, Hungary has failed to fulfil its obligations under that directive.
The second complaint, alleging failure to transpose Article 9 of Directive 2013/48
Arguments of the parties
70 In its application, the Commission claims that Hungary has failed to fulfil its obligations under Directive 2013/48, since it has not transposed Article 9 of that directive into its legal order. The Commission submits that Hungarian law does not provide that suspects or accused persons must be informed of the possible consequences of waiving the right of access to a lawyer, as provided for in Article 9(1)(a) of that directive, and/or of the possibility of revoking their initial decision, in accordance with Article 9(3) of that directive.
71 According to that institution, the possibility afforded by Hungarian law to suspects and accused persons not to exercise their right of access to a lawyer has the same consequences as a formal waiver of that right, with the result that such a possibility should be subject to the requirements relating to any waiver, inter alia, of that right, laid down in Article 9 of Directive 2013/48, failing which those requirements would be circumvented or, at the very least, seriously compromised.
72 The term ‘waiver’ in Article 9 should be interpreted as covering both formal and informal waivers of that right.
73 According to the Commission, the rights conferred by Directive 2013/48 must be guaranteed in a practical and effective manner and thus enable suspects and accused persons to be in a position to take an informed decision on their defence at all stages of the proceedings. To that end, the Hungarian legal system, which refers, as regards the right of access to a lawyer, to an inalienable right which the suspect or accused person is free to exercise or not, should provide sufficient safeguards for those persons when they decide not to exercise that right, since such a decision has the effect of depriving them of the effective protection of a lawyer.
74 In its defence, Hungary submits that the provisions of the Code of Criminal Procedure provide for the suspect or accused person to be fully informed of his or her rights and obligations. In that regard, that Member State submits that suspects and accused persons are not, in actual fact, able to waive their right of access to a lawyer, since that right is an inalienable right under Hungarian law. Thus, where legal representation is mandatory, the competent authorities appoint a lawyer to assist them. By contrast, where legal representation is not mandatory, suspects or accused persons are free to decide whether they wish to be assisted by a lawyer or to request that a lawyer be appointed. The decision not to be assisted by a lawyer does not therefore constitute a waiver of the right of access to a lawyer, but merely means that suspects or accused persons do not wish to exercise that right.
75 Accordingly, Article 9 of Directive 2013/48 does not need to be transposed into Hungarian law because there is no situation in which suspects or accused persons could validly waive the right of access to a lawyer and which would require them to be informed of that possibility.
76 In addition, Hungary submits that, even though the provisions of the Code of Criminal Procedure already enable suspects or accused persons to be fully informed of their rights of defence, the scope of the information that must be provided to them has been clarified in the new Paragraph 387/A of that code. It is apparent from that provision that those persons must be informed of their right to refuse to make statements, in particular without their lawyer being present, and to request the presence of a lawyer at any time. Thus, if the person concerned declares that he or she does not wish to make a statement, that new Paragraph 387/A provides that questioning is to be terminated. However, if that person, without being assisted by a lawyer, makes a statement after having been informed that he or she had the right to refrain from doing so, that new provision specifies that he or she is waiving, in full knowledge of the facts, the presence of a lawyer and, as a result, the right to answer questions only when a lawyer is present. Accordingly, the objective of the new Paragraph 387/A of the Code of Criminal Procedure is to strengthen the safeguards for suspects or accused persons during questioning without a lawyer being present, so that Hungarian legislation is in closer compliance with the requirements of the Commission.
Findings of the Court
77 As a preliminary matter, for the same reasons as those set out in paragraphs 66 to 68 of the present judgment, Hungary’s argument based on the adoption of the new Paragraph 387/A of the Code of Criminal Procedure must be rejected.
78 Only national legislation in force before the expiry of the period laid down in the reasoned opinion must therefore be taken into consideration.
79 Article 9(1) of Directive 2013/48 lays down two conditions which must govern any waiver by the suspect or accused person of his or her right of access to a lawyer.
80 Thus, under point (a) of that provision, the suspect or accused person must have been provided with information about the content of the right of access to a lawyer and the possible consequences of waiving that right, it being specified that that information, which may be provided orally or in writing, must be clear and sufficient and communicated in simple and understandable language. In addition, under point (b) of that provision, the waiver must be given voluntarily and unequivocally.
81 Under Article 9(3) of Directive 2013/48, Member States are to ensure that suspects or accused persons may revoke a waiver subsequently at any point during the criminal proceedings, and that they are informed of that possibility.
82 In that regard, even though, under Hungarian law, the right of access to a lawyer is regarded as an inalienable right, it is common ground that suspects or accused persons may decide not to exercise that right. However, as the Commission rightly pointed out, the consequence of an accused person’s decision not to exercise that right is that that person must defend himself or herself without the assistance of a lawyer. Therefore, as the Advocate General observed in points 90 and 91 of her Opinion, in practice, such a decision has the same effect as a waiver, within the meaning of Article 9 of Directive 2013/48.
83 As regards Hungary’s argument that the waiver of the right of access to a lawyer in criminal proceedings is not formally recognised in that Member State, it must be borne in mind that the fact that a certain legal concept does not exist in a particular Member State cannot release that Member State from its obligation to adopt laws, regulations and administrative measures in order to ensure that all the provisions of that directive are properly transposed. Both the principle of legal certainty and the need to ensure that directives are fully applied in law and not merely in fact require all Member States to incorporate the requirements of the Directive in question into a clear, precise and transparent legal framework providing for binding provisions in the area covered by it. Such an obligation is incumbent on Member States in order to prevent any change in the situation existing at a given time in those States and to ensure that all subjects of law in the European Union, including those in Member States where a certain legal concept covered by a directive does not exist, know clearly and precisely what their rights and obligations are in all circumstances (see, by analogy, judgment of 1 August 2025, Commission v Spain (Work-life balance directive), C‑70/24, EU:C:2025:615, paragraph 64).
84 Consequently, it must be held that, by failing, by the expiry of the period laid down in the reasoned opinion, to adopt the legislative provisions necessary to transpose Article 9 of Directive 2013/48 into its legal order, Hungary has failed to fulfil its obligations under that directive.
85 It follows from all the foregoing considerations that, by failing to adopt the measures necessary to comply, first, with Article 3(6)(b) of Directive 2013/48, read in conjunction with Article 3(3) thereof, and, second, with Article 9 of that directive, Hungary has failed to fulfil its obligations under that directive.
Costs
86 Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and Hungary has been unsuccessful, Hungary must be ordered to bear its own costs and to pay those incurred by that institution.
87 Under Article 140(1) of those rules, the Member States that intervened in the proceedings are to bear their own costs. Consequently, the Czech Republic is to bear its own costs.
On those grounds, the Court (Fourth Chamber) hereby:
1. Declares that, by failing to take the necessary measures in order to comply with, first, Article 3(6)(b) of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, read in conjunction with Article 3(3) thereof, and, second, Article 9 of that directive, Hungary has failed to fulfil its obligations under the Directive;
2. Orders Hungary to bear its own costs and to pay those incurred by the European Commission;
3. Orders the Czech Republic to bear its own costs.
[Signatures]
* Language of the case: Hungarian.