On the 22nd of September 2022, the Court of Justice of the European Union ruled on case C-159/21. It refers to a preliminary ruling made by the Hungarian Court regarding the interpretation of Directive 2011/95/EC (Qualification Directive) and Directive 2013/32/EC (Procedural Directive). The proceedings concern a third-country citizen whose refugee status is revoked and their subsequent subsidiary protection denied due to an unfounded statement issued by the Constitution Protection Office and Counter Terrorism Centre in Hungary. In the above-mentioned statement, Hungarian authorities conclude that the person’s residency in the country constitutes a danger to national security. This decision is objected to by the person in question before the Budapest Regional Court (Referring Court), which decides to cease proceedings and refer the matter to the Court of Justice of the European Union.

According to Hungarian legislation, when disclosure of case information is subject to limitation due to concerns for national security, the addressee of the decision can receive, under certain conditions, approval for access to the classified information. The person concerned, however, is prohibited from using the received information in any administrative or judicial proceedings. The administrative body, on the other hand, is expected to invoke the unfounded claim made by the above-mentioned specialized governmental bodies without the possibility of independently verifying the legislative applicability of the revocation of international protection. The referring Court seeks to determine whether the Hungarian jurisdiction regarding access to classified information is compatible with the Procedural Directive and with the different ruling provisions of the Charter of Fundamental Rights of the EU.

The Court of Justice of the European Union stipulates that European law does now allow for Hungarian legislation to be imposed, according to which the person concerned or their representative has been allowed only subsequent access to the Court record. And, specifically, not after such is granted, and the people concerned have not been informed of the ruling allowing such partial access. Such national legislative order is incompatible with article 23 of Directive 2013/32, which defines the scope of legal aid and the right to representation of the international protection applicant. Furthermore, it does not comply with the general principle of the right of sound administration and article 47 of the Charter. The Court further clarifies that the provisions of Directives 2013/32 and 2011/95 do not allow the body which is responsible for making decisions on applications for international protection to systematically base their judgements on unfounded statements issued by governmental bodies entrusted with specialized functions connected to national security which have themselves concluded that a person constitutes a threat to that national security.

First and foremost, the Court notes that the right to protection is not absolute and that what should be weighed on in is, on the one hand, the right of sound administration and effective remedy and on the other, the national security interests which justify the non-disclosure of data from the person’s record. Given the need to consider article 47 of the Charter, this evaluation cannot result in complete deprivation of the right to protection and denial of the right to appeal. Therefore, article 23(1)(2) of Directive 2013/32 precludes the competent authorities from placing the person in question, or their representative, in a position of inability to thoroughly familiarize themselves with the important informational content of the case, even under the condition of a specialized procedure. Additionally, the access of the competent jurisdiction to the information cannot replace the right of the concerned person nor that of their representative to access to it.

The Court of Justice of the European Union stipulates that when it considers the possibility of revocation or denial of international protection based on concerns for national security, the ruling body should not depend on unfounded statements made by the specialized bodies. The Court concedes that part of the information provided by the bodies responsible for national security could be subject to, when appropriate, the rules of confidentiality within the framework of article 23 of the Procedural Directive. Despite this, the scope of that information and its significance in the ruling must be freely assessed by the ruling body. Consequently, the latter must be in possession of all the requisite information to be able to determine the scope of the judicial decision and to provide a complete statement of the reasons for it.

ECJ’s ruling in case C-159/21 is crucial for changing the administrative and judicial practice in Bulgaria, which concedes that the statement made by the specialized body of the State Agency for National Security (SANS) has a legally binding power. According to article 58(10) of the Law on Refugees and Asylum (LAR), upon receipt of an application for protection, the State Agency for Refugees (SAR) is obliged to request from SANS an officially written statement which is subsequently referred to in the ruling resulting from the judicial proceedings. In imposing penalties and coercive administrative actions under the Law on Foreign Nationals, the Migration Directorate also refers to the binding power of the adverse statement made by the specialized body (article 44, LFRB). As is apparent from the ruling made by the CJEU, the person concerned, should be allowed access to the reasons for the statement made by SANS to effectively prepare their judicial remedy. Just like the State Agency for Refugees and the Migration Directorate, the Court must also carry out their own evaluation of the motivational grounds of the adverse statement made by the SANS. CJEU’s ruling in case C-159/21 legally binds the competent Bulgarian bodies.