By virtue of Government Decree 408/2020 (VIII.30.), Hungary closed its borders to non-Hungarian citizens as of 1 September 2020. The new rules abolish the tricolour system of green, yellow and red countries we reported on earlier, qualifying literally all countries as red.
The basic rules
Hungarian citizens may return to Hungary from any country but must undergo 10-day quarantine unless they test negative for COVID-19 twice. Non-Hungarian citizens having permanent residence in Hungary and those who are entitled to stay in Hungary for more than 90 days are to be treated the same way as Hungarian citizens.
The same rules apply to professional athletes who are a member of a Hungarian sports organisation, employees of Hungarian cultural organisations and persons participating in an international sports event held abroad by an invitation or delegation issued by a Hungarian sports organisation, if this person enters Hungary after participating in an international sports or cultural event held abroad.
Foreign citizens (not listed above) may generally not enter Hungary. By contrast, the government decree recognises exceptions, for example in the case of commuters from a neighbouring country or in the case of a verifiable reasonable cause (e.g. compulsory court procedures, funerals, weddings or studies, and additional exceptions for those participating in sports or cultural events).
Similar to the restrictions during the first wave of infections, the government decree recognises exceptions for business travel.
This means that employees and representatives of entities having an affiliated company in Hungary can enter Hungary without any further restriction. Upon crossing the borders, the business purpose of the travel (e.g. by presenting an employment contract or invitation letter) must be substantiated. On the other hand, the traveller is not expected to present proof of the legal relationship between the respective companies, but ideally such a relationship should be apparent from the documents they are carrying.
If a Hungarian citizen leaves Hungary for business, they may return to Hungary without any restriction if they prove upon returning that the trip was for business purposes.
Exceptions for Visegrad countries
In line with the above restrictions, the government introduced new easements by virtue of Government Decree 419/2020 (IX.1.) concerning travel among the Visegrad countries (V4), i.e. Hungary, Slovakia, the Czech Republic and Poland.
Hungarian citizens and their non-Hungarian family members coming from Visegrad countries may be exempted from compulsory quarantine if they test negative for COVID-19 once (instead of twice under the general rules), provided they had bookings for accommodation prior to 1 September 2020.
Slovak, Czech and Polish citizens may also enter Hungary if they have booked accommodation for at least one night before 30 September and were tested negative for COVID-19 once five days prior to entering Hungary.
While reclosing the borders appears to be a straightforward measure against the pandemic, it could contradict the EU's basic principle of free movement. But is that the case here?
As a rule, such restrictions may be imposed if they are proportionate, non-discriminatory and are based on the public health situation. It should be added, however, that so far there is no harmonised EU-wide framework establishing the criteria for travel restrictions. Therefore, the Member States are free to set up their own rules, including quarantine obligations or tests, while complying with the requirement of proportionality and non-discrimination.
In this vein, the restrictions are somewhat hard to explain when it comes to restricting the free movement of some EU citizens more than others and where the easements for V4 citizens were not explained in the context of a health crisis. This indeed suggests that the new border measures disproportionally favour travellers from the V4 countries, which explains why the European Commission warned Hungary about discriminating against EU citizens right after the government decree was passed.
By Daniel Gera, Counsel, and Alexandra Bognar, Attorney at Law, Schoenherr