Hungary is refusing to implement the Migration and Asylum Pact. The opposition’s victory could improve relations between Budapest and Brussels. Yet Viktor Orbán’s continued rule cannot be excluded. Unless the EU develops new ‘emergency’ enforcement tools, selective non-compliance could become normalised, undermining trust in EU frameworks.

The New Pact on Migration and Asylum was adopted in 2024 as the EU’s answer to years of political deadlock and dysfunctional asylum governance. Since then, member states have been preparing, at different speeds, for implementation ahead of this June’s deadline. One reality is clear: Hungary is not preparing at all.

The Orbán government has declared that it will not implement the Pact, claiming that the reforms impose “mandatory quotas” and would turn Hungary into a “refugee camp for tens of thousands”, and insisting that it “will not accept migrants”.

The European Commission has avoided escalation ahead of Hungary’s elections. A Peter Magyar victory could ease relations, but it would not automatically solve the problem. Migration has been emotionally supercharged, and any incoming government would inherit years of confrontation.

If Hungary can openly resist implementation, other member states may conclude that selective non-compliance is institutionally acceptable. The new Czech government has already signalled that it rejects the Pact, suggesting Hungary may not remain an isolated case.

The Commission and member states that want the reformed system to work may soon face a key question: how to uphold the new rules, despite open defiance. If the current toolbox cannot close that gap, the Union may need to think seriously about new ‘emergency’ enforcement powers.

Implementation and the true costs of free riding

The Pact is meant to do more than replace old rules, but to make the system work in practice, with more effective procedures complemented by clearer responsibility and solidarity rules, safeguarding the Schengen area. All this, however, only works if participation is more attractive than remaining outside, even partly.

While not abiding by asylum and fundamental rights provisions, and refusing to prepare for Pact implementation, Hungary still benefits from common rules: border-free Schengen travel; participation in the Schengen Information System for border, immigration, customs and other purposes as well as access to Eurodac to track asylum applications and unauthorised movements, and the return framework.

All of this could continue once the Pact becomes fully applicable, even without implementation. Migration and asylum rules are built on interdependence. If one member state refuses to register arrivals properly, apply common procedures, or contribute to responsibility-sharing, the costs do not stop at its borders. They spread across the Union through secondary movements, pressure on reception systems and further erosion of trust.

A sustained refusal, met with delay from the Commission and other member states, could set a precedent and normalise non-compliance. This may already be happening. Recent developments suggest a growing willingness, even among member states with better records than Hungary, to stop applying parts of the asylum acquis and basic obligations.

From sovereignty to emergency: Hungary’s legal dead ends

If Orbán wins again, the question will be what legal case his government could plausibly make against implementing the Pact, and whether it would hold.

The first argument would be exemption. Hungarian officials have periodically suggested that the country should not be bound by migration rules it fundamentally rejects. But under EU law, there is no unilateral opt-out for a member state that simply dislikes adopted legislation. Legally, this route is non-viable.

The second would invoke sovereignty and constitutional identity. Hungary has long framed controlling migration as central to national self-determination and public order. Article 4(2) of the TEU translates this vocabulary into legal terms. However, invoking national security does not exempt member states from EU law.

The third, and more substantial, argument would rely on emergency clauses, especially Articles 72 and 347 of the TFEU. Article 72 is the more likely candidate, since it preserves states’ responsibilities for maintaining law and order and safeguarding internal security. However, it does not create a general carve-out from the asylum acquis. Any reliance on it must still satisfy necessity and proportionality.

In recent years, governments have increasingly invoked Article 72 in migration-related disputes, most notably in the relocation litigation of 2020, when the Luxembourg Court rejected it as a basis for non-compliance.

This argument would likely fail again, even more so now that the Pact includes specific mechanisms to deal with crises situations. Where EU legislation contains tailored derogations, the Court of Justice of the European Union (CJEU) consistently rejects member states’ attempts to further derogate.

Article 347 is even less convincing. It was designed for truly extreme situations of war or grave internal disturbances and cannot easily be stretched to justify general non-implementation of migration legislation.

To buy time, Hungary could invoke a crisis, although dense procedures and delimited derogations make this less attractive than unilateral action.

Hungary could drag its feet, but it would struggle to present a strong legal case for blanket refusal to apply the new legislation.

The limits of Brussels’ enforcement arsenal

What can the EU do if Hungary, or another government, persistently refuses to apply EU asylum law?

The obvious answer is infringement proceedings, which may eventually lead to financial sanctions. This route should not be dismissed. It affirms that implementation is not optional and that member states cannot choose which parts of the legal order to obey. But this route also has serious limits.

First, it is doubtful whether the Commission would open infringement proceedings when many member states may not be ready for the Pact implementation after June 2026. In any case, infringement proceedings are slow compared with the immediate operational consequences of non-compliance and their use has also declined in recent years.

Most importantly, infringement proceedings and negotiations only work if the targeted government is interested in returning to compliance. Where open confrontation is politically useful, a government can portray them as persecution, absorb slow-cooking financial penalties while reinforcing its domestic narrative of sovereign resistance.

This is how Hungary has acted following the sanctions imposed by the CJEU precisely for failing to comply with EU migration law: Orbán called the June 2024 ruling “outrageous and unacceptable”, and the Commission ultimately had to recover part of the penalty by deducting it from EU funds allocated to Hungary. Yet even this did not persuade his government.

In this context, infringements remain necessary, but they no longer look sufficient.

The other widely discussed legal route is Article 7 TEU, under which the Council may suspend certain Treaty rights, including voting in the Council, if a member state seriously and persistently breaches the Union’s values.

Calls to trigger Article 7 return whenever Hungary vetoes major EU decisions, including during the March Summit’s dispute over EU support to Ukraine.

Yet this would require unanimous agreement among all other member states, making Article 7 as politically unlikely as procedurally cumbersome. It would also be too blunt for an implementation failure in a single policy field, even against the backdrop of wider rule-of-law erosion.

For all the debate around it, the overwhelming likelihood is that the Union will continue to avoid relying on Article 7 as the main response to migration-related non-compliance.

This leaves the EU in an awkward position. If infringement is too weak and Article 7 too far-fetched, the Commission has no calibrated instrument to ensure or restore compliance effectively.

Time to think about emergency enforcement?

The EU has developed new tools to manage the permacrisis, but remains far less effective at ensuring enforcement, including in ‘normal times’. This is not only a migration-policy problem, but a structural weakness in EU governance.

The debate should therefore not end with whether Hungary can be sued again. The deeper issue is whether the Union needs more targeted instruments for situations in which a member state openly rejects a common framework while continuing to benefit from adjacent forms of cooperation.

Under the present rules, member states have only one immediate option: Schengen-related safeguards. In some circumstances, they can reintroduce internal border controls or tighten checks to contain spillover effects. While understandable, this is unsatisfactory. It does not address the problem at its root and comes at Schengen’s expense.

Against this background, the Union may need to consider embedding narrowly framed emergency powers into EU law, including the temporary suspension of access to key cooperative frameworks where a member state refuses to uphold the obligations that sustain them.

Suspending access to such frameworks could create a stronger incentive to comply, especially where the government concerned places a premium on security and border control. It would also make clear that participation in highly integrated frameworks cannot be a one-way arrangement in which states retain the advantages while discarding their obligations.

While no such procedures exist, the idea that the EU legal order rests on interlinked rights and obligations finds explicit judicial support, most prominently in the Repubblika judgment.

Developing specific emergency enforcement tools with appropriate procedural safeguards would create a more proportionate step between slow-moving litigation and the ‘nuclear option’ of Article 7, tailored to cases of open, sustained and strategically motivated non-compliance.

Without such tools, the Union may discover too late that the real threat to the reformed asylum system is not another ‘migration crisis’, but the normalisation of selective non-compliance.

Alberto-Horst Neidhardt is a Senior Policy Analyst and Head of the European Diversity and Migration programme. 

Felix Peerboom is a PhD candidate and lecturer at Maastricht University (UM), Faculty of Law, Department of European Law.

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