Official Journal of the European Union

C series

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C/2024/5776

(Case C-185/23,

protectus)

(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)

(C/2024/5776)

Language of the case: Slovak

Referring court

Parties to the main proceedings

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

Defendant: Výbor Národnej rady Slovenskej republiky na preskúmavanie rozhodnutí Národného bezpečnostného úradu

Operative part of the judgment

1.Article 51(1) of the Charter of Fundamental Rights of the European Union

must be interpreted as meaning 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 that provision;

—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 EU classified information, in accordance with Article 11 of Council Decision 2013/488/EU of 23 September 2013 on the security rules for protecting EU classified information and Annex V thereto, concerns an act implementing EU law, within the meaning of Article 51(1) of the Charter.

must be interpreted as

—first, not precluding national legislation and national practice under which a decision withdrawing a Facility Security Clearance, 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 is to have 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 that information’s confidentiality, in so far as that court ensures 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, as meaning that, in the event that Article 47 of the Charter of Fundamental Rights precludes 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 Facility Security Clearance, 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 Facility Security Clearance solely on the basis of the grounds and evidence which have been disclosed.

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(1) OJ C 252, 17.7.2023.

ELI: http://data.europa.eu/eli/C/2024/5776/oj

ISSN 1977-091X (electronic edition)

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