The purpose of this article is to examine how the CJEU circumscribed the room for maneuver of Member States for safeguarding their internal security and whether the use of and reference to Article 72 TFEU changed over the past years. The starting point of the analysis is the Hungarian asylum infringement case: the article looks back at earlier case-law and identifies how the reference to Article 72 TFEU shifted from considering it an implementation clause to the attempts at using it as a conflict-of-law rule. Although the article finds that the CJEU reduced the scope of possibly using Article 72 TFEU as a conflict-of-law rule and practically excludes its application by the setting high standards for this unique form of application, the article examines some extreme situations from 2020 where it could be validly referred to.

The judgment of the Grand Chamber of the ECtHR in Ilias and Ahmed v. Hungary reflected a big turn of the ECtHR towards a practical and realistic approach. Although the Grand Chamber found that Hungary by choosing to use inadmissibility grounds and expel the applicants to Serbia failed to carry out a thorough assessment of the Serbian asylum system, including the risk of summary removal, contrary to the Chamber it found that a confinement of 23 days in 2015 did not constitute a de facto deprivation of liberty. This paradigm shift is already visible in further decisions of the Court, and it could even serve as a basis for a new direction when reforming the Common European Asylum System.