Czech Republic, Nejvyšší správní soud (Supreme Administrative Court), 10 Azs 53/2022-46, 23. 11. 2023
Member State
Czech Republic
Sector
Judicial Interaction Techniques; Use of the Preliminary Reference Procedure
Deciding Court Original Language
Nejvyšší správní soud
Deciding Court English translation
Supreme Administrative Court
Registration N
10 Azs 53/2022-46
ECLI (if available)
ECLI:CZ:NSS:2023:10.Azs.53.2022.46
National Follow Up Of (when relevant)
The cited decision is a preliminary reference. The case is still pending.
EU legal sources and CJEU jurisprudence
Art. 47; art. 41 of the EU Charter
Art. 30(2); 31 of directive 2004/38
Art. 4 of directive 2011/98
Decision of the CJEU from 17. 3. 2011, Peñarroja Fa, C‑372/09 and C‑373/09
Decision of the CJEU from 17. 11. 2011, Gaydarov, C‑430/10
Decision of the CJEU from 15. 10. 1987, Heylens and others, 222/86
Decision of the CJEU [GC] from 3. 9. 2008, Kadi a Al Barakaat International Foundation v. Council and Commission, C‑402/05 P and C‑415/05 P
Decision of the CJEU from 14. 2. 2008, Varec SA v. Belgium, C‑450/06
Decision of the CJEU [GC] from 2. 12. 2009, Commission v. Ireland and others, C‑89/08 P
Decision of the CJEU from 21. 2. 2013, Banif Plus Bank, C‑472/11
Decision of the CJEU [GC] from 4. 6. 2013, ZZ, C‑300/11
Decision of the CJEU from 22. 9. 2022, GM v. Országos Idegenrendészeti Főigazgatóság and others, C‑159/21
Decision of the CJEU from 21. 5. 2024, NW (Informations classifiées), C‑420/22 a C‑528/22
ECtHR Jurisprudence
Art. 6(1) of the European Convention on Human Rights
Decision of the ECtHR [GC] from 19. 9. 2017, Regner v Czech Republic, application no. 35289/11
Decision of the ECtHR [GC] from 16. 2. 2000, Fitt v the United Kingdom, application no. 29777/96
Decision of the ECtHR [GC] from 15. 12. 2015, Schatschaschwili v Germany, application no. 9154/10
Decision of the ECtHR [GC] from 15. 10. 2020 ve věci Muhammad and Muhammad v Romania, application no. 80982/12
Dcision of the ECtHR from 9. 3. 2021, Hassine V Romania, application no. 36328/13
Subject Matter
Employment card – Judicial review – Access to classified information
Legal issue(s)
Is it possible to refuse access to the part of the file containing classified information that the foreign national would be able to use in his or her defence during the judicial review procedure?
Request for expedited/PPU procedures
No
National Law Sources
§ 46(6)(a); § 56(1)(j); § 172(9) of the act no. 326/1999 Coll., Act on Residence of Foreigners (zákon o pobytu cizinců)
§ 45(4) of the act no. 150/2002 Coll., Code on the Administrative Justice (soudní řád správní)
Facts of the case
In 2019, a Vietnamese citizen applied for an employment card through the Embassy of the Czech Republic in Hanoi. The Ministry of the Interior rejected the application on the grounds that the applicant's presence in the Czech Republic was not in the country's interest, based on classified information on immigration from Vietnam and security risks. The applicant's appeal was rejected by the Ministry. The applicant then filed a lawsuit, which the Regional Court dismissed, concluding that the classified information justified the refusal and that no procedural rights had been violated during the administrative procedure.
Reasoning (role of the Charter or other EU, ECHR related legal basis)
Following a cassation complaint lodged by the police, the Supreme Administrative Court has decided to make a preliminary reference in relation to the access of an applicant to classified information.
The Supreme Administrative Court is considering whether the restriction of an applicant's right of defence by not being able to fully access and challenge the evidence used against him undermines the fairness of judicial review, in particular when balancing the need for state security against the right to effective judicial protection.
The Supreme Administrative Court highlighted that while Czech courts have unrestricted access to classified documents, they are limited in their ability to disclose these documents to the foreign national concerned for defence purposes following a 2019 amendment to the Foreigners' Residence Act. This restriction is unique to cases involving foreign nationals, raising concerns about whether it unfairly restricts their procedural rights compared to other legal matters. The Supreme Administrative Court is seeking guidance on whether the current legal framework, which restricts access to classified information while providing alternative procedural safeguards, meets the requirements of effective judicial protection under EU law.
After delivering its judgment in joined cases C-420/22 and C-528/22, the CJEU asked the Supreme Administrative Court whether it still wished to pursue its preliminary question, given the similarities between the cases. The CJEU's judgment dealt with the rights of third-country nationals who are family members of EU citizens, focusing on the limits of judicial review and access to classified information when national security is invoked. However, the present case concerns a third-country national who is not a family member of an EU citizen, leading the Supreme Administrative Court to conclude that the CJEU ruling did not fully resolve the specific issues in its case. The Supreme Administrative Court confirmed its request for a preliminary ruling, seeking further clarification on the principles of good administration and effective legal protection, in particular whether national legislation restricting judicial review and access to information in immigration cases unfairly limits the rights of defence of third-country nationals. The Supreme Administrative Court pointed out that the situation in its case begins where the CJEU's previous ruling ends, highlighting the need for further guidance.
Relation of the case to the EU Charter
Art. 41 and 47 of the EU Charter were invoked and form an integral part of the preliminary reference, as they provide the European legal framework for the review in this case.
Relation between the EU Charter and ECHR
The standard of protection guaranteed by the EU Charter and the ECHR appears to be similar. After all, the Supreme Administrative Court points out that the case law of both international courts implies that national administrative courts are obliged to fairly assess the reasons for a particular administrative decision based on information from a classified document.
Use of Judicial Interaction technique(s)
preliminary reference; possibly disapplication of national law in favour of EU law in the future
Horizontal Judicial Interaction patterns (Internal – with other national courts, and external – with foreign courts)
The Supreme Administrative Court did not make any reference to foreign case law.
Vertical Judicial Interaction patterns (Internal – with other superior national courts, and external – with European supranational courts)
The Supreme Administrative Court cites its own case law to establish that each Member State applies its own legislation on the employment of foreigners.
The court cites jurisprudence of the ECtHR and CJEU.
Strategic use of judicial interaction technique (purpose aimed by the national court)
The Supreme Administrative Court presumably wanted to ensure the compatibility of the unique Czech law on the non-disclosure of classified information to foreigners with EU law.
Impact on Legislation / Policy
The case is still pending in front of the CJEU.
Notes on the national implementation of the preliminary ruling by the referring court
The case is still pending in front of the CJEU.
Did the national court quote case law of the CJEU/ECtHR (in particular cases not already referred to by the CJEU in its decision) or the Explanations?
The case is still pending in front of the CJEU.
Did the national court quote soft law instruments, such as GRECO Reports, Venice Commission, CEPEJ Reports, or CCEJ Reports?
No
Did the national court take into account national case law on fundamental rights?
If the court that issued the preliminary reference is not a last instance court, and the “follow up” was appealed before a higher court, include the information
Supreme Administrative Court is the court of last instance.
Was there a consensus among national courts on how to implement the CJEU's preliminary ruling; and were there divergences between the judiciary and other state powers regarding the implementation of the preliminary ruling?
The case is still pending in front of the CJEU.
Impact on national case law from the same Member State or other Member States
The case is still pending in front of the CJEU.
Connected national caselaw / templates
The case is still pending in front of the CJEU.
Author
Ondřej Kadlec, Šimon Chvojka, Masaryk University