The Court of Justice of the EU (CJEU) issued a judgment (case C-159/21),on Thursday 22 September, in which it held that EU law on the withdrawal of international protection following an infringement of national rules precluded the Hungarian rules. The latter provides that the person concerned by the withdrawal, or his or her representative, can only access the file after the fact, with authorisation and without being informed of the reasons for the decision.
This case before the CJEU dates back to 2002. At that time, a man called ‘GM’ was convicted of drug trafficking by a Hungarian court. Ten years later, in June 2012, he was granted refugee status by a judgment of the Budapest Court.
In July 2019, his status was withdrawn by decision of the National Directorate-General for Aliens Policing, which applied the principle of non-pushback. This decision was based on the counsel’s opinion of two specialised Hungarian bodies - the Office for the Protection of the Constitution and the Central Office for the Prevention of Terrorism - which concluded that GM’s stay compromised national security.
GM therefore appealed against this decision to the court which referred the case, which asked the CJEU whether the Hungarian rules on access to information were compatible and whether the Hungarian rule requiring the administration to rely on an counsel’s opinion of the above-mentioned specialised bodies, without itself being able to examine the application of the protection exclusion clause at issue, was in conformity with EU law.
Concerning access to the file, the CJEU notes that the modalities of access to files depend on the Member States. Without calling into question the right to defence, certain elements of the file may not be communicated to the person concerned, when these elements are likely to compromise the national security of a Member State in a “direct and particular” manner. However, a balance must be struck between the right to an effective remedy for the data subject and the interests invoked to justify non-disclosure of elements of the file.
Here, the CJEU considers that allowing access to certain elements of the file, coupled with a complete ban on using them for the purposes of administrative or possible court proceedings, compromises the right to defence.
Furthermore, the CJEU considers that the determining authority “cannot simply implement a decision adopted by another authority” and take, on that basis alone, the decision to withdraw previously granted international protection.
Instead, it should analyse all the information and make its own assessment of the facts. Some of this information may be provided by bodies with specialised national security functions. However, the competent authority cannot be required to rely on an unreasoned opinion given by such bodies on the basis of an assessment for which it has not been provided with the factual basis.
See the judgment: https://aeur.eu/f/38a (Original version in French by Thomas Mangin)