Case C‑185/23

protectus s.r.o., formerly BONUL, s.r.o.

v

Výbor Národnej rady Slovenskej republiky na preskúmavanie rozhodnutí Národného bezpečnostného úradu

(Request for a preliminary ruling
from the Najvyšší správny súd Slovenskej republiky)

Judgment of the Court (Grand Chamber) of 29 July 2024

(Reference for a preliminary ruling – Decision 2013/488/EU – Classified information – Facility Security Clearance – Withdrawal of the clearance – Non-disclosure of classified information on which the withdrawal was based – Article 47 of the Charter of Fundamental Rights of the European Union – Obligation to state reasons – Access to the file – Principle of an adversarial process – Article 51 of the Charter of Fundamental Rights – Implementation of EU law)

1. Fundamental rights – Charter of Fundamental Rights – Scope – Implementation of EU law – Decision withdrawing an industrial security clearance allowing access to information classified by a Member State – Review, by a national court, of the lawfulness of such a decision – Act concerned not constituting an implementation of EU law

   (Charter of Fundamental Rights of the European Union, Art. 51(1); Council Decision 2013/488, Art. 1(1))

   (see paragraphs 44-47, 68, operative part 1)

2. Fundamental rights – Charter of Fundamental Rights – Scope – Implementation of EU law – Withdrawal of an industrial security clearance allowing access to information classified by a Member State – Decision withdrawing, in accordance with Decision 2013/488, as a result of the withdrawal of such a clearance, an industrial security certificate authorising access to EU classified information – Review, by a national court, of the lawfulness of such a decision – Act concerned constituting an implementation of EU law

   (Charter of Fundamental Rights of the European Union, Art. 51(1); Council Decision 2013/488, Arts 11(5) and 15(3)(c), and Annex V)

   (see paragraphs 48, 49, 54-57, 59, 60, 62-68, operative part 1)

3. Fundamental rights – Right to effective judicial protection – Right to an effective remedy – Decision withdrawing a national Facility Security Clearance, within the meaning of Decision 2013/488, and not divulging the classified information justifying that withdrawal – Non-disclosure of such information for reasons linked to the protection of State security or international relations – National legislation and national practice allowing the court whose task it is to review the lawfulness of such a withdrawal to have access to that information – Conditional access to that information granted to the lawyer of the former holder of that clearance – Whether permissible – Conditions

   (Charter of Fundamental Rights of the European Union, Art. 47; Council Decision 2013/488, Art. 11(5) and Annex V)

   (see paragraphs 72-92, 102, operative part 2)

4. Fundamental rights – Right to effective judicial protection – Right to an effective remedy – Decision withdrawing a national Facility Security Clearance, within the meaning of Decision 2013/488, and not divulging the classified information justifying that withdrawal – Non-disclosure of such information for reasons linked to the protection of State security or international relations – National legislation and national practice allowing the court whose task it is to review the lawfulness of such a withdrawal to have access to that information – Conditional access to that information granted to the lawyer of the former holder of that clearance – Premiss of a finding of incompatibility with Article 47 of the Charter – Obligation on the national court with jurisdiction to disclose of its own motion certain classified information to the former holder of the clearance – None – Obligation, if there is any, falling on the competent national authority – Arrangements applicable to the review, by that court, of the lawfulness of the withdrawal of that clearance in the event of that authority’s refusal to authorise such disclosure

   (Charter of Fundamental Rights of the European Union, Art. 47; Council Decision 2013/488)

   (see paragraphs 99-102, operative part 2)

Résumé

Seised of a request for a preliminary ruling from the Najvyšší správny súd Slovenskej republiky (Supreme Administrative Court of the Slovak Republic) made in a case concerning the withdrawal of a Facility Security Clearance based on classified information, the Court of Justice, sitting as the Grand Chamber, gives further guidance on the balance to be struck between the right to an effective remedy and the interests justifying the non-disclosure of certain classified information.

In September 2018, the National Security Authority of Slovakia (‘the NBÚ’) issued protectus s.r.o. an industrial security clearance on account of which, under the law of that Member State, it was authorised to have access to information classified under national law. In November 2018, the NBÚ also issued it with an industrial security certificate for ‘SECRET UE/EU SECRET’ information. As a result of that certificate, it was authorised to have access to classified information of the European Union (‘EUCI’).

The NBÚ subsequently received non-classified information indicating, inter alia, that protectus or the members of its board were the subject of a criminal investigation, that it had entered into agreements with companies under such and that there were suspicions that the appellant and another company, with which it was under common control, had responded to the same calls for tenders. The NBÚ also received other information, which was designated as ‘classified documentary evidence’.

The NBÚ offered protectus the possibility to comment on the non-classified information at the NBÚ’s disposal. By a decision adopted in August 2020, based, in part, on classified information, that body, first, revoked the appellant’s industrial security clearance on the ground that a security risk had been established concerning it and, secondly, as a consequence of the revocation of that industrial security clearance, revoked the appellant’s industrial security certificate.

By a decision of the Committee of the National Parliament of the Slovak Republic for the Review of Decisions of the NBÚ adopted in November 2020, the appeal brought by the appellant against that decision of the NBÚ was dismissed. In September 2022, the NBÚ sent the referring court before which the appeal against the decision of that committee had been brought the entirety of the file, including the classified documentary evidence.

In October 2022, the President of the Chamber seised of the appellant’s appeal first ruled out consultation of the classified parts of the file, then rejected the request by the appellant’s lawyer to consult the classified documentary evidence, while requesting the NBÚ to examine the possibility of such disclosure. In November 2022, that body granted consent for the disclosure of two pieces of classified documentary evidence, but refused to disclose the other classified documentary evidence at issue, on the ground that to do so would have led to the disclosure of sources of information.

In January 2023, relying inter alia on Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), the appellant’s lawyer asked again to be able to consult all the documentary evidence.

In that context, the referring court decided to ask the Court as to the applicability of the Charter to the dispute in the main proceedings. On that matter, it points out, inter alia, that Decision 2013/488 on the protection of EUCI ( 1 ) imposes certain specific obligations on the Member States concerning the clearance of individuals or legal entities possessing the legal capacity to undertake contracts, which might imply that the legislation at issue constitutes an implementation of that decision. Secondly, in the event that the Charter is applicable to the dispute, the referring court asks the Court to state to what extent the Slovak legislation and practice on access to classified information in proceedings seeking to challenge the revocation of industrial security clearances or industrial security certificates are compatible with the right to an effective remedy laid down by Article 47 of the Charter.

Findings of the Court

In the first place, as regards the scope of the Charter, the Court examines first the Charter’s applicability to the withdrawal of an industrial security clearance allowing access to information classified by a Member State. It observes in that regard that EU law does not contain, at the present stage of its development, any act establishing general rules on decisions taken by the Member States in order to authorise access to information classified under national legislation. In particular, Decision 2013/488, to which the referring court refers as regards EUCI, does not contain any provisions governing such access. Therefore, it does not appear that the national legislation governing the withdrawal of the industrial security clearance at issue in the main proceedings has the object or effect of giving effect to a provision of EU law. Accordingly, the withdrawal of an industrial security clearance such as that at issue in the main proceedings does not entail the implementation of EU law, within the meaning of the Charter.

Next, as regards the applicability of the Charter to the withdrawal of an industrial security certificate authorising access to EUCI, the Court states that the EU institutions have adopted specific acts intended to govern the protection of such information in the context of their operation. In particular, in the light of the rules thus established by Decision 2013/488, which imposes obligations on the Member States, ( 2 ) the measures adopted by those States to ensure industrial security, by regulating access to EUCI linked to contracts concluded by the Council through the granting and monitoring of Facility Security Clearances (FSC), must be regarded as implementing EU law. The withdrawal by a national authority of an FSC, within the meaning of that decision, entails, in particular, such implementation. Such a withdrawal calls into question an authorisation, the granting of which and, at least in part, its effects, are provided for by Decision 2013/488. ( 3 )

Consequently, the Court rules that the review by a national court of the lawfulness of a decision withdrawing an industrial security clearance allowing access to information classified by a Member State does not concern an act constituting an implementation of EU law, within the meaning of Article 51(1) of the Charter. On the other hand, the review, by such a court, of the lawfulness of a decision withdrawing, as a result of the withdrawal of that industrial security clearance, an industrial security certificate authorising access to EUCI, in accordance with Article 11 of Decision 2013/488 and Annex V thereto, concerns an act implementing EU law.

In the second place, as regards the issue of the compatibility of legislation and practice such as that at issue in the main proceedings with Article 47 of the Charter, the Court first examines whether the situation concerned falls within the scope of that provision. It points out in that regard that it follows from Annex V to Decision 2013/488 that access to EUCI by an economic operator for the conclusion or performance of a classified Council contract is subject to the holding of an FSC. The Court also sets out the arrangements applicable, under that decision, to the participation of contractors in classified contracts requiring access to EUCI within their facilities, in the performance of those contracts or during the pre-contractual stage, which pre-supposes that they hold an FSC. Thus, the withdrawal of an FSC has the consequence that the economic operator concerned loses the authorisation to access EUCI for the purposes of the conclusion and performance of a classified contract. Therefore, such a withdrawal means, inter alia, that that operator will be deprived of the option, which it had before that withdrawal, to participate in the pre-contractual stage of a classified contract of the Council and to be awarded such a contract by that institution if its tender is selected. Consequently, such an economic operator must have, in accordance with Article 47 of the Charter, an effective remedy to challenge the withdrawal of its FSC.

Next, as regards the minimum guarantees which such a remedy must satisfy, the Court states that, in a situation where the withdrawal of a FSC is based exclusively on the withdrawal of another security clearance, the judicial review of the withdrawal of that FSC can be effective only in so far as the former holder of that FSC may have access to the grounds relied on to justify the withdrawal of that other security clearance. While overriding considerations concerning, inter alia, the protection of State security or international relations may preclude the disclosure to the former holder of a FSC of the information on which the withdrawal of that FSC is based, it is nonetheless the task of the national court with jurisdiction to apply, in the course of its judicial review, techniques which accommodate those overriding considerations and the need sufficiently to guarantee to an individual respect for his or her procedural rights, such as the right to be heard and the requirement for an adversarial process.

To that end, the Member States are required to provide for effective judicial review both of the existence and validity of the reasons invoked by the competent national authority with regard to State security to justify its refusal to disclose all or part of the information on which the withdrawal of the FSC, for the purposes of Decision 2013/488, was based, and of the lawfulness of that withdrawal. The court with jurisdiction must, in that context, be able to examine all that information.

So far as concerns the requirements to be met by judicial review of the existence and validity of the reasons invoked by the competent national authority with regard to State security of the Member State concerned, it is necessary for a court to be entrusted with carrying out an independent examination of all the matters of fact or law relied on by the competent national authority in order to assess whether overriding considerations actually preclude the disclosure of all or part of the grounds on which the withdrawal at issue is based and of the related evidence. If that court concludes that State security does not preclude the disclosure, at least in part, of such grounds or evidence, it is to give the competent national authority the opportunity to disclose the missing grounds and evidence to the person concerned. If that authority does not authorise that disclosure, that court is to proceed to examine the lawfulness of that withdrawal solely on the basis of the grounds and evidence which have been disclosed. On the contrary, if it turns out that overriding considerations do indeed preclude the disclosure to the person concerned of such grounds or evidence, the judicial review of the lawfulness of that withdrawal must be carried out in the context of a procedure which strikes a balance between the requirements arising from those overriding considerations and those of the right to effective judicial protection, in particular the right to respect for the principle of an adversarial process. In any event, the person concerned must be informed of the essence of the grounds on which that withdrawal is based.

Consequently, the Court states, first, that Article 47 of the Charter does not preclude national legislation and national practice under which a decision withdrawing an FSC, within the meaning of Decision 2013/488, does not divulge the classified information justifying that withdrawal, on account of overriding considerations relating, for example, to the protection of State security or international relations, while providing that the court with jurisdiction to assess the lawfulness of that withdrawal has access to that information and that the lawyer of the former holder of that FSC may not have access to that information apart from with the consent of the national authorities concerned and on condition that he or she guarantees the information’s confidentiality. That court must however ensure that the non-disclosure of information is limited to what is strictly necessary and that the former holder of that FSC is informed, in any event, of the essence of the grounds for that withdrawal in a manner which takes due account of the necessary confidentiality of the evidence.

Secondly, in the event that Article 47 of the Charter does preclude such legislation and practice, it does not require the national court with jurisdiction to disclose of its own motion certain classified information to the former holder of the FSC, as the case may be through the former holder’s lawyer, where the failure to disclose that information to that former holder or its lawyer does not appear to be justified. It is for the competent national authority to do so, if necessary. If that authority does not authorise that disclosure, that court is to proceed to examine the lawfulness of the withdrawal of that FSC solely on the basis of the grounds and evidence which have been disclosed.

( 1 ) Council Decision 2013/488/EU of 23 September 2013 on the security rules for protecting EU classified information (OJ 2013 L 274, p. 1).

( 2 ) The Court refers in particular to Article 1(2), to Article 11(2), (5) and (7), to Article 15(3)(c), to Article 16(3)(a)(i) of Decision 2013/488 and to Annex V thereto.

( 3 ) Specifically, the Court observes that the granting of that authorisation is provided for by Article 11(5) of that decision, read in conjunction with point 8 of Annex V thereto, its effects for their part being defined, in part, inter alia in Article 11(5) of that decision and in point 11 of Annex V thereto.