Opinion of Advocate General Richard de la Tour delivered on 16 May 2024.

• Jurisdiction: European Union
• Date: 16 May 2024
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 16 May 2024 (1)

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 (Supreme Administrative Court of the Slovak Republic))

(Reference for a preliminary ruling – Decision 2013/488/EU – EU classified information – Facility Security Clearance – Withdrawal of clearance – Charter of Fundamental Rights of the European Union – Article 47 – Access to the file – Article 51 – Implementation of EU law)

I. Introduction

1. This request for a preliminary ruling concerns the interpretation of Council Decision 2013/488/EU of 23 September 2013 on the security rules for protecting EU classified information (2) and of Article 47 and Article 51(1) and (2) of the Charter of Fundamental Rights of the European Union. (3)

2. The request has been made in proceedings between protectus s.r.o., formerly BONUL s.r.o. (‘protectus’ or ‘the appellant in the main proceedings’) and the Výbor Národnej rady Slovenskej republiky na preskúmavanie rozhodnutí Národného bezpečnostného úradu (Committee of the National Parliament of the Slovak Republic for the Review of Decisions of the National Security Authority) (‘the Committee’) concerning the dismissal, by the latter, of the appeal lodged by protectus against the decision of the Národný bezpečnostný úrad (National Security Authority, Slovakia) (‘the NSA’) to revoke its industrial security clearance and, as a result of that revocation, to withdraw its industrial security certificate.

3. Under Slovak law, the purpose of industrial security clearance is to authorise a person to access information classified pursuant to national law. An industrial security certificate allows a person to access EU classified information (‘EUCI’).

4. The decision revoking the industrial security clearance held by protectus was taken because a security risk relating to that undertaking had been established on the basis, in part, of classified information. In that decision, the NSA also found that the revocation of that clearance necessarily entailed the revocation of its industrial security certificate, since those two types of security clearance are linked as a matter of national law.

5. There is, as yet, no horizontal legislation in EU law in the field of EUCI, but there are decisions specific to each EU institution. (4) In addition, the protection of EUCI is governed by EU law only to a partial and limited degree. In such matters, EU law relies on the pre-existing national systems for the protection of classified information on the basis of an equivalent level of protection.

6. The Court has already on several occasions been called upon to rule on the weighing up to be carried out between the right to an effective remedy and the interests cited to justify the non-disclosure of certain information, in particular where those interests relate to national security. This is, however, the first time the Court is called upon to provide clarifications on that weighing-up exercise in relation to EUCI.

7. In answer to the questions submitted by the Najvyšší správny súd Slovenskej republiky (Supreme Administrative Court of the Slovak Republic), and with a view to providing the broad outlines of such an exercise, I will take the following position.

8. First, I will set out the reasons why I take the view that, where a national court is called upon to review the lawfulness of a decision withdrawing from a person a security clearance which allows that person to view EUCI, pursuant to Decision 2013/488, such a situation constitutes an implementation of EU law as provided for in Article 51(1) of the Charter. It follows that the Charter is, in my view, applicable in the context of the present case.

9. Secondly, I will explain why, in my opinion, the arguments put forward by the majority of the participants to these proceedings claiming that Article 47 of the Charter does not apply in the circumstances at issue in the main proceedings must be rejected. Turning to the substance, I will set out the reasons why I am of the view, in the light of the particularities of the field relating to the protection of EUCI, that the Slovak legislation provides for sufficient safeguards to protect the rights of defence of persons whose security clearance is withdrawn.

10. Thirdly, I will clarify that the safeguards stemming from Article 47 of the Charter cannot, in any event, mean that a court, which is to review the lawfulness of a decision withdrawing security clearance based in part on classified information, must have the power to grant the person who is the subject of that decision access to the national security authority’s file containing such information.

II. The facts of the dispute in the main proceedings and the questions referred for a preliminary ruling

11. On 6 September 2018, the NSA issued the appellant in the main proceedings with industrial security clearance allowing it to view information classified as ‘Top Secret’, to transmit information classified as ‘Secret’ in physical and electronic formats and to create information classified as ‘Secret’. In addition, at the request of the appellant in the main proceedings, on 15 November 2018 the NSA also issued it with an industrial security certificate for SECRET EU/EU SECRET information.

12. The NSA subsequently received unclassified information indicating, inter alia, that the appellant in the main proceedings or the members of its board were the subject of a criminal investigation, that it had entered into agreements with companies under such investigation, that it had paid unusual sums to those companies, and that there were suspected associations between its personnel and another company with which it had responded to calls for tenders, with the two companies thus having tendered as parties under common control.

13. The NSA also received other information contained in documents designated as classified documentary evidence.

14. The NSA gave the appellant in the main proceedings the opportunity to comment on some of the information received, but not on the various classified documentary evidence or on the information contained therein.

15. By decision of 25 August 2020, the NSA revoked the industrial security clearance and industrial security certificate held by the appellant in the main proceedings. That clearance was revoked on the basis of the finding that the appellant in the main proceedings posed a security risk based on the existence of a commercial relationship likely to harm the security interests of the Slovak Republic and activities to the detriment of the economic interests of that Member State. In the statement of reasons for that decision, the NSA referred, on the one hand, to unclassified information which it set out in detail and, on the other hand, to classified information, the content of which it did not clarify. In that decision, the NSA also explained that the revocation of the industrial security clearance entailed the revocation of the industrial security certificate, since the validity of that certificate was conditional upon that clearance.

16. The appellant in the main proceedings lodged an appeal against the NSA’s decision with the Committee. In support of that appeal, it claimed primarily that it had not had the opportunity to consult the NSA’s file or to view the content of the classified documentary evidence. The appellant in the main proceedings also challenged the NSA’s findings in so far as they were based on unclassified information.

17. By decision of 4 November 2020, the Committee dismissed that appeal.

18. The appellant in the main proceedings lodged an appeal against that decision before the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic).

19. By that appeal, the appellant in the main proceedings submits that its procedural rights as regards access to the content of the file could not be subject to an absolute restriction solely on the general ground that classified information was concerned. It also criticises the fact that its lawyer was refused access to such information by the Director of the NSA on very general grounds. The appellant in the main proceedings also calls into question the various factual and legal considerations forming the basis of conclusion reached by the NSA and the Committee that it posed a security risk.

20. After that appeal was lodged, jurisdiction to examine it was transferred to the Najvyšší správny súd Slovenskej republiky (Supreme Administrative Court of the Slovak Republic). On 28 September 2022, the NSA sent to that court the entirety of the file, including the classified documentary evidence. By decision of 4 October 2022, the president of the chamber hearing the appeal did not allow those classified parts of the file to be consulted.

21. On the same day, the lawyer for the appellant in the main proceedings applied to that court to be allowed to consult the classified documentary evidence communicated by the NSA. By letter of 5 October 2022, the president of the chamber hearing the appeal rejected that application, but did ask the NSA to consider allowing that evidence to be disclosed to that lawyer. By letter of 25 November 2022, the NSA gave authorisation for just two pieces of classified documentary evidence to be communicated. It refused to agree to the communication of the other classified documentary evidence at issue, on the ground that its communication could have led to sources of information being disclosed and jeopardised the investigations being conducted into the appellant in the main proceedings. By letter of 16 January 2023, the lawyer for the appellant in the main proceedings again asked to be allowed to consult all the classified documentary evidence, relying, inter...