Case C-300/11

ZZ

v

Secretary of State for the Home Department

(Request for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division)

‛Freedom of movement for persons — Directive 2004/38/EC — Decision refusing a citizen of the European Union admission to a Member State on public security grounds — Article 30(2) of the directive — Obligation to inform the citizen concerned of the grounds of that decision — Disclosure contrary to the interests of State security — Fundamental right to effective judicial protection)’

Summary — Judgment of the Court (Grand Chamber), 4 June 2013

1. Preliminary rulings — Jurisdiction of the Court — Limits — Question concerning national security — No general exception excluding measures taken for reasons of public security — Admissibility

   (Art. 267 TFEU; Art. 4(2) TEU)

2. Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Restrictions on the right of entry and the right of residence on grounds of public policy or public security — Statement of reasons for a decision refusing entry into a Member State — Person concerned not informed, precisely and in full, of public security grounds — Lawfulness — Condition — Striking a balance between requirements linked to State security and requirements of the right to effective judicial protection

   (Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Directive 2004/38, Arts 30(2), 27 and 31)

1.  Although, in accordance in particular with Article 4(2) TEU, national security remains the sole responsibility of each Member State and it is accordingly for Member States to take the appropriate measures to ensure their internal and external security, the mere fact that a decision taken by a competent national authority concerns State security cannot result in European Union law being inapplicable.

   (see para. 38)

2.  Articles 30(2) and 31 of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as requiring the national court with jurisdiction to ensure that failure by the competent national authority to disclose to the person concerned, precisely and in full, the grounds on which a decision taken under Article 27 of that directive is based and to disclose the related evidence to him is limited to that which is strictly necessary, and that he is informed, in any event, of the essence of those grounds in a manner which takes due account of the necessary confidentiality of the evidence.

   The competent national authority has the task of proving, in accordance with the national procedural rules, that State security would in fact be compromised by precise and full disclosure to the person concerned of the grounds which constitute the basis of a decision taken under Article 27 of Directive 2004/38 and of the related evidence. It follows that there is no presumption that the reasons invoked by a national authority exist and are valid. The national court with jurisdiction must then carry out an independent examination of all the matters of law and fact relied upon by the competent national authority and it must determine, in accordance with the national procedural rules, whether State security stands in the way of such disclosure.

   If it turns out that State security does stand in the way of disclosure of the grounds to the person concerned, judicial review, as provided for in Article 31(1) of Directive 2004/38, of the legality of a decision taken under Article 27 thereof must be carried out in a procedure which strikes an appropriate balance between the requirements flowing from State security and the requirements of the right to effective judicial protection whilst limiting any interference with the exercise of that right to that which is strictly necessary.

   In this connection, in the light of the need to comply with Article 47 of the Charter, that procedure must ensure, to the greatest possible extent, that the adversarial principle is complied with, in order to enable the person concerned to contest the grounds on which the decision in question is based and to make submissions on the evidence relating to the decision and, therefore, to put forward an effective defence. In particular, the person concerned must be informed, in any event, of the essence of the grounds on which a decision refusing entry taken under Article 27 of Directive 2004/38 is based, as the necessary protection of State security cannot have the effect of denying the person concerned his right to be heard and, therefore, of rendering his right of redress as provided for in Article 31 of that directive ineffective.

   That weighing up of the right to effective judicial protection and of the interest in protecting the security of the State in question is not, however, applicable in the same way to the evidence underlying the grounds that is adduced before the national court with jurisdiction. In certain cases, disclosure of that evidence is liable to compromise State security in a direct and specific manner, in that it may, in particular, endanger the life, health or freedom of persons or reveal the methods of investigation specifically used by the national security authorities and thus seriously impede, or even prevent, future performance of the tasks of those authorities.

   Accordingly, it is incumbent upon the national court with jurisdiction, first, to ensure that the person concerned is informed of the essence of the grounds which constitute the basis of the decision in question in a manner which takes due account of the necessary confidentiality of the evidence and, second, to draw, pursuant to national law, the appropriate conclusions from any failure to comply with that obligation.

   (see paras 61, 62, 64-66, 68, 69, operative part)