Order — ECLI:EU:C:2024:879
Date: 2024-10-04
Language of the case: Czech
Court formation: Sixth Chamber
Subject matter: Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Czechia

summary of the situation and security risks) and on more detailed classified 
information provided by the Národní centrála proti organizovanému zločinu 
(National Headquarters for Combatting Organised Crime). The defendant rejected 
the complainant’s appeal against the Ministry’s decision. 
3 The complainant challenged the defendant’s decision by bringing an action, which 
the Regional Court dismissed. The court became acquainted with the contents of 
the classified information, concluding that the classified information indicated that 
the complainant’s stay in the territory of the Czech Republic was not in the 
interest of the Czech Republic. Furthermore, it held that the complainant’s 
procedural rights were not violated during the administrative proceedings, 
including his right arising from Paragraph 36(3) of zákon č. 500/2004 Sb., správní 
řád (Code of Administrative Procedure). 
4 The complainant filed an administrative complaint in cassation to challenge the 
judgment of the Regional Court, repeating that the administrative authorities had 
infringed his right to become acquainted with the content of the classified 
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information. The complainant stated that he did not know the grounds for the 
rejection of his application. The court failed to examine whether the 
administrative authorities were able to disclose to the complainant more than the 
minimum they had provided to him. The complainant also objected to the manner 
in which the Regional Court itself reviewed the classified information. The 
grounds for the judgment are so vague that the complainant is unable to contest 
them on such a general level. The Regional Court did not permit the 
complainant’s counsel to become acquainted with the content of the classified 
information, as provided for by Paragraph 45(4) of Law 150/2002, soudní řád 
správní (Code of Administrative Procedure). The complainant considers the 
provisions of Paragraph 172(9) of the Law on the Residence of Foreign Nationals 
unconstitutional and contrary to EU law. 
5 The defendant agrees with the conclusions reached by the Regional Court, holding 
that the procedural rights pursuant to Paragraph 36(3) of the Code of 
Administrative Procedure do not apply to the case, as the decision did not pertain 
to a legal right of the complainant. 
2. Applicable European Union legislation and national legislation 
6 The right to judicial review is regulated in Article 47 of the Charter of 
Fundamental Rights of the European Union (‘the Charter’), pursuant to which 
everyone whose rights and freedoms guaranteed by the law of the Union are 
violated has the right to an effective remedy before a tribunal in compliance with 
the conditions laid down in this Article. 
7 It is true that Article 52(1) of the Charter permits a limitation on the exercise of 
the rights recognised by the Charter; nevertheless, that provision requires every 
limitation to respect the essence of the given fundamental right and to be 
necessary, subject to the principle of proportionality, and to genuinely meet the 
objectives of general interest recognised by the European Union. 
8 Pursuant to Article 4 of the Treaty on the Functioning of the European Union 
(TFEU), immigration issues fall within shared competences of the European 
Union. Hence, Member States may adopt legally binding acts in that area to the 
extent it is not governed by EU law. The Directive sets a specific objective that is 
to be achieved by the Member States. The method of implementation may vary in 
specific cases. In the present case, the relevant EU legislation is set out in 
Directive 2011/98/EU of the European Parliament and of the Council of 
13 December 2011 on a single application procedure for a single permit for third-
country nationals to reside and work (Directive 2011/98/EU). 
9 Pursuant to Article 4 of Directive 2011/98/EU 
1. An application to issue, amend or renew a single permit shall be submitted 
by way of a single application procedure. Member States shall determine 
whether applications for a single permit are to be made by the third-country 
national or by the third-country national’s employer. Member States may 
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also decide to allow an application from either of the two. If the application 
is to be submitted by the third-country national, Member States shall allow 
the application to be introduced from a third country or, if provided for by 
national law, in the territory of the Member State in which the third-country 
national is legally present. 
2. Member States shall examine an application made under paragraph 1 and 
shall adopt a decision to issue, amend or renew the single permit if the 
applicant fulfils the requirements specified by Union or national law. A 
decision to issue, amend or renew the single permit shall constitute a single 
administrative act combining a residence permit and a work permit. 
3. The single application procedure shall be without prejudice to the visa 
procedure which may be required for initial entry. 
4. Member States shall issue a single permit, where the conditions provided for 
are met, to third-country nationals who apply for admission and to third-
country nationals already admitted who apply to renew or modify their 
residence permit after the entry into force of the national implementing 
provisions. 
10 The spirit and purpose of Directive 2011/98/EU is to introduce a single procedure 
for handling applications and for the issuance of a single permit to third-country 
workers. Consequently, the Directive sets a minimum standard for procedural 
guarantees and the right to equal treatment. In its judgments of 22 February 2018 
ref. no. 9 Azs 311/2017-25, or of 5 April 2017, ref. no. 6 Azs 60/2017-13, the 
Supreme Administrative Court stated that: ‘in principle, laying down conditions 
for the employment of and conditions for obtaining a work permit by third-country 
nationals is a matter for national legislation in line with the Directive cited above. 
Consequently, each Member State applies its own national provisions in the 
sphere of the employment of foreign nationals.’ 
11 From the point of view of national law, the Law on the Residence of Foreign 
Nationals, which regulates, inter alia, the issuance of employee cards, is relevant 
to the present case. Furthermore, it lays down the specifics of judicial review of 
the decisions rendered pursuant to that Law, otherwise the court proceeds in 
accordance with the Code of Administrative Procedure. 
12 Pursuant to Paragraph 172(9) of the Law on the Residence of Foreign Nationals, 
Paragraph 45(4) of the Code of Administrative Procedure, i.e., the provisions 
regulating the consultation of those parts of an administrative file that contain 
classified information or other information protected pursuant to special laws, 
shall not be applied in proceedings concerning an application. Subsequently, the 
Supreme Administrative Court cites the wording of Paragraph 172(9) of the Law 
on the Residence of Foreign Nationals before and after an amendment to it that 
excluded the application of Paragraph 45(4) of the Code of Administrative 
Procedure. 
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13 The provisions of Paragraph 172(9) of the Law on the Residence of Foreign 
Nationals, in the version effective from 15 August 2017 to 30 July 2019, set out 
that, in the case of an action contesting a decision, the President of the chamber 
shall decide that, to a party to the proceedings or his or her counsel, the necessary 
part of the content of classified information shall be disclosed, provided that this 
cannot jeopardise the security of the State, its sovereignty, territorial unity, 
democratic foundations, lives or health of persons, or the operations of the Czech 
Republic’s intelligence services or the police; prior to deciding, the President of 
the chamber shall request the position of the body that provided the classified 
information to the administrative authority. If the President of the court chamber 
decides to disclose the necessary part of the contents of classified information to a 
party to the proceedings or his or her counsel, Paragraph 45(6) of the Code of 
Administrative Procedure shall be applied mutatis mutandis. Only persons who 
are already privy to the classified information that formed the foundation of a 
decision of an administrative authority pursuant to the present Law may be party 
to deliberations on that information, all others shall be excluded by the President 
of the court chamber for a certain part of the hearing. 
14 This provision was introduced into the Law by an amendment made by zákon č. 
222/2017 (Law 222/2017). The explanatory memorandum to the latter Law 
pointed out that judgment of the Court of Justice of the European Union of 4 June 
2013, ZZ, C-300/11, EU:C:2013:363 implied a need for regulation that would 
enable a court to examine not only the issue of lawfulness of a decision based on 
information that had not been disclosed to a party to the proceedings, but also the 
issue of disclosing or not disclosing a position or information. According to the 
explanatory memorandum, it is obvious that it is not possible to interfere with the 
independence of judicial power. In its decisions, however, a court should take 
account of the consequences of a disclosure of information or a position (in 
particular, a serious threat to operational-investigative actions of the police or 
intelligence services or the lives or health of persons). If a President of a court 
chamber decides to disclose a necessary part of a position or information, it is 
necessary to duly instruct the person who will become acquainted with the 
classified information concerned. 
15 Another amendment of Paragraph 172(9) of the Law on the Residence of Foreign 
Nationals, made two years later by zákon č. 176/2019 Sb. (Law 176/2019), was on 
the basis of an amendment proposal submitted with respect to amendment during 
the legislative process. There is no rationale or an evaluation of compliance with 
EU law. Effective from 31 July 2019, the following applies: in proceedings 
concerning an action against a decision, Paragraph 45(4) of the Code of 
Administrative Procedure shall not apply. Only persons who are already privy to 
the classified information that formed the foundation of a decision of an 
administrative authority pursuant to the present Law may be party to 
deliberations on that information, all others shall be excluded by the President of 
the court chamber for a certain part of the hearing. 
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16 Pursuant to Paragraph 45(4) of the Code of Administrative Procedure, parts of a 
file specified in subparagraph 3 (Parts of the file that contain classified 
information protected by a special law or other information protected pursuant to 
special laws, note added by the Supreme Administrative Court) that have been or 
will be used by the court to take evidence cannot be excluded from consultation. 
Furthermore, those parts of the file which the party to the proceedings was 
entitled to consult in the proceedings before the administrative authority cannot 
be excluded from consultation. Documents or records that were kept separate, 
outside of the file, during the proceedings before an administrative authority, to 
which provisions concerning the consultation of the file did not apply, can be 
provided for consultation only if the President of the chamber decides that that 
could not jeopardise or seriously disrupt the operations of intelligence services or 
the police. Prior to deciding, the President of the chamber shall request the 
position of the body that provided the classified information contained in those 
documents or records. 
3. Analysis of the question referred 
17 In this case, the Supreme Administrative Court is dealing with the question 
whether the interpretation of Article 47 of the Charter of Fundamental Rights of 
the European Union precludes national legislation implementing Directive 
2011/98/EU, pursuant to which a court cannot, in judicial proceedings, decide 
about the consultation of documents or records that were kept separately, outside 
of the administrative file, in proceedings before an administrative authority. 
18 The Court of Justice of the European Union (CJEU) has stated its position on the 
issue in question primarily in the judgment in Case ZZ, cited above. Those 
proceedings concerned a question referred for a preliminary ruling on the 
interpretation of Article 30(2) of Directive 2004/38/EC of the European 
Parliament and of the Council of 29 April 2004 on the right of citizens of the 
Union and their family members to move and reside freely within the territory of 
the Member States (Directive 2004/38). The CJEU concluded that, in light of 
Article 47 of the Charter, Article 30(2) and Article 31 of Directive 2004/38 must 
be interpreted as not requiring a national court to ensure that a competent 
administrative authority inform the person concerned precisely and in full of the 
grounds for its decision. The administrative authority is obliged to provide 
information about the relevant evidence only to the necessary extent. In any event, 
the person concerned must be informed about the essence of those grounds, in a 
manner that takes due account of the necessary confidentiality of the evidence. 
The right to effective judicial protection and the need to safeguard the security 
interests of the State must be balanced. Techniques and procedural rules must be 
available to the national court to enable it to accommodate those conflicting 
interests in the judicial proceedings. In certain cases, the disclosure of evidence 
could directly and specifically jeopardise the security of the State (by threatening 
the lives, health, or freedom of persons or by disclosing the methods of 
investigation of security bodies), seriously disrupting or preventing the 
accomplishment of future tasks of State authorities. 
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19 The Court must assess whether and to what extent a restriction of an applicant’s 
rights of the defence (consisting in particular of the applicant not knowing exactly 
and not being informed fully about the evidence and grounds on which the 
decision is based) can influence the probative value of confidential evidence. The 
court’s task is to ensure that the person concerned be informed about the essence 
of the grounds which constitute the basis of the decision in question in a manner 
which takes due account of the necessary confidentiality of the evidence. 
Furthermore, the court is also obliged to draw, in accordance with national law, 
the appropriate conclusions from any failure to comply with that obligation to 
disclose information. 
20 In order to ensure that such judicial review is effective, the interested party must 
be able to obtain the reasons for the administrative decision taken in relation to 
him, thus enabling him to file an appeal in court. This can be done either by 
reading the decision itself or by requesting and obtaining notification of those 
reasons, without prejudice to the power of the court with jurisdiction to require the 
authority concerned to communicate that information, in order to enable it to 
verify the legality of the decision in fact and in law (judgments of 17 March 2011, 
Peñarroja Fa, C-372/09 and C-373/09, EU:C:2011:156, paragraph 63, or of 
17 November 2011, Gaydarov, C-430/10, EU:C:2011:749, paragraph 41). This 
will enable the person to defend their rights in the best possible conditions and to 
decide, with full knowledge of the relevant facts, whether there is any point in 
their applying to the competent court, and that will also put the latter fully in a 
position in which it may carry out the review of the lawfulness of the 
administrative decision (judgments of 15 October 1987, Heylens and Others, 
222/86, EU:C:1987:442, paragraph 15, or of 3 September 2008, Kadi a Al 
Barakaat International Foundation v Council and Commission, C-402/05 P and 
C-415/05 P, EU:C:2008:461, paragraph 337). 
21 In view of the principle of adversarial judicial proceedings, as part of the right to 
defence embodied in Article 47 of the Charter, the parties to the proceedings must 
have the right to a process of inspecting all evidence or observations submitted to 
the court, with a view to commenting on them and influencing the court’s decision 
(judgments of 14 February 2008, Varec SA v Belgian State, C-450/06, 
EU:C:2008:91, paragraph 45; of 2 December 2009, Commission v Ireland and 
Others, C-89/08 P, EU:C:2009:742, paragraph 52, and of 21 February 2013, Banif 
Plus Bank, C-472/11, EU:C:2013:88, paragraph 30). A fundamental right to 
effective judicial protection would be infringed if a judicial decision were founded 
on facts and documents which the parties have not had an opportunity to examine 
and on which they have therefore been unable to comment (judgment in 
Commission v Ireland, paragraphs 52 and the case-law cited). A court must give 
an individual an adequate opportunity to exercise his procedural rights, such as the 
right to be heard or the adversarial principle (similarly see the above-mentioned 
judgment in Kadi and Al Barakaat International Foundation v Council and 
Commission, paragraph 344). 
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22 It may prove necessary in judicial and administrative proceedings not to disclose 
certain information to a person concerned, in particular in view of pressing 
reasons related to the security of the State (Kadi and Al Barakaat International 
Foundation v Council and Commission, paragraph 342). 
23 According to the conclusions adopted by the CJEU in ZZ (paragraphs 62 to 64), a 
national court must carry out an independent examination of all matters of law and 
fact relied upon by the competent national authority, and it must determine, in 
accordance with the national procedural rules, whether State security stands in the 
way of such disclosure. If that court concludes that State security does not bar 
precise and full disclosure to the person concerned, of the grounds on which the 
decision is based, it gives the competent national authority the opportunity to 
disclose the missing grounds and evidence to the person concerned. If that 
authority does not authorise their disclosure, the court proceeds to examine the 
legality of such a decision solely on the basis of the grounds and evidence which it 
has available to it. If it turns out that State security does stand in the way of 
disclosure of the grounds to the person concerned, the court must review the 
legality of the administrative decision, to strike an appropriate balance between 
State security and the right to effective judicial protection, whilst limiting any 
interference with the exercise of that right to that which is strictly necessary. 
24 The Court of Justice also examined the question of restricting the right of access 
to a file in its judgment of 22 September 2022, GM v Országos Idegenrendészeti 
Főigazgatóság and Others, C-159/21, EU:C:2022:708, in relation to Directive 
2013/32/EU of the European Parliament and of the Council of 26 June 2013 on 
common procedures for granting and withdrawing international protection. The 
CJEU concluded that Articles 41 and 47 of the Charter preclude national 
legislation stipulating that where a decision to reject an application for legal 
protection or withdrawing such protection is based on information the disclosure 
of which would jeopardise the national security of the Member State concerned, 
the person concerned, or his or her legal adviser, can access that information only 
after obtaining authorisation to that end. Furthermore, the CJEU criticised the 
national Hungarian legislation for not informing foreign nationals of the substance 
of the grounds on which such decisions are based, and on the ground that those 
nationals cannot use any information to which they may have access for the 
purposes of administrative or judicial proceedings. 
25 The ECtHR also addressed the issue. In Regner v. the Czech Republic (judgment 
of the Grand Chamber of 19 September 2017, No 35289/11), the complainant’s 
security clearance had been revoked. The proceedings initiated by the complainant 
were restricted in two ways. 
First: classified documents and information were not disclosed to the complainant 
or his counsel. Second: given that the decision was based on those documents, the 
grounds of the decision were not disclosed to the complainant. 
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26 The Grand Chamber summed up in this case that courts have unrestricted access 
to all classified documents on which the administrative authority based the 
grounds of its decisions. The power is conferred on them to review in detail the 
grounds on which the administrative authority did not disclose the classified 
documents. They have the power to carry out an examination of the reasons for 
not disclosing classified documents and order the disclosure of those that they 
consider do not warrant that classification. Moreover, they are empowered to 
assess the merits of the administrative authority’s decision revoking security 
clearance and to quash, where applicable, an arbitrary decision of the 
administrative authority (Regner v. the Czech Republic, paragraph 152). 
27 In its judgment in Regner v. the Czech Republic (paragraphs 147–149), the Grand 
Chamber summarised the general assumptions and principles that must be applied 
in such cases. The right to the disclosure of all relevant evidence is not absolute. 
In criminal cases, the ECtHR has found that there may be competing interests, 
such as national security or the need to protect witnesses at risk of reprisals or 
keep secret police methods of investigation of crime, which must be weighed 
against the rights of the party to the proceedings. However, only measures 
restricting the rights of a party to the proceedings which do not affect the very 
essence of those rights are permissible under Article 6(1). For that to be the case, 
any difficulties caused to the applicant party by a limitation of his or her rights 
must be sufficiently counterbalanced by the procedures followed by the judicial 
authorities (see, mutatis mutandis, judgment of the Grand Chamber of 16 
February 2000, Fitt v. the United Kingdom, no. 29777/96, paragraph 45 with other 
references, and judgment of the Grand Chamber of 15 December 2015, 
Schatschaschwili v. Germany, no. 9154/10, paragraph 107). In cases where 
evidence has been withheld from the applicant party on public interest grounds, 
the ECtHR must scrutinise the decision-making procedure to ensure that, as far as 
possible, it complied with the requirements to provide adversarial proceedings and 
equality of arms and incorporated adequate safeguards to protect the interests of 
the person concerned (see Fitt v. the United Kingdom, paragraph 46). 
28 These conclusions are the basis of the judgment of the Grand Chamber of the 
ECtHR of 15 October 2020 in Muhammad and Muhammad v. Romania, No. 
80982/12. In that judgment, the ECtHR explained and elaborated on the principles 
of the protection of aliens within the meaning of Article 1 of Protocol No. 7 to the 
Convention for the Protection of Human Rights and Fundamental Freedoms. An 
alien must be given an effective opportunity to submit reasons against an 
administrative decision and to be protected from arbitrariness. Only limitations 
which are duly justified and sufficiently counterbalanced will be permissible 
(Muhammad and Muhammad v. Romania, paragraphs 130–133; cf. also related 
case-law, such as judgment of 9 March 2021, Hassine v. Romania, No. 36328/13). 
29 The case-law of both international courts implies the obligation of national 
administrative courts to assess fairly the reasons behind a specific decision of an 
administrative authority based on information from a classified document. 
Although a foreign national may be denied access to classified documents in 
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administrative proceedings, this does not mean that an administrative authority 
will disclose nothing at all to him. The appropriate quantity of information that an 
administrative authority must disclose to a foreign national will naturally differ 
based on the circumstances of each case. 
30 To summarise, the CJEU has already addressed similar cases. Its case-law, 
however, does not yet give a sufficient answer to the question whether in 
proceedings on the issue of a single permit under Directive 2011/98/EU, the 
guarantees arising from Article 47 of the Charter preclude a legislator from 
excluding the power of a court to decide about the disclosure of classified 
documents in court proceedings in a situation when ‘other’ techniques and 
procedural rules of courts to compensate for the applicant’s rights, are preserved 
(CJEU judgment in ZZ, paragraph 57, or judgment of the ECtHR in Regner v. the 
Czech Republic, paragraph 158). 
31 Czech courts have unrestricted access to all classified documents on which an 
administrative authority based the grounds for its decision. They can review in 
detail the reasons due to which the administrative authority did not disclose the 
classified documents. They can assess the reasons for not disclosing classified 
documents. Furthermore, they are authorised to examine the factual side of a 
decision of an administrative authority to invalidate security clearance or to annul 
it. They can order an administrative authority to declassify information which a 
court deems no longer requires classification. 
32 Following the 2019 amendment of the Law on the Residence of Foreign 
Nationals, however, Czech courts cannot make available or disclose classified 
information that a foreign national could use for his defence during judicial 
review. 
33 Furthermore, the Supreme Administrative Court notes that the legal regulation at 
issue is unique in the Czech legal order and was only adopted in the Law on the 
Residence of Foreign Nationals. In matters concerning foreigners in which an 
administrative authority did not make the background documents for the decision 
available to a foreign national, administrative courts thus only have limited 
options for balancing out the foreign national’s procedural rights. The Supreme 
Administrative Court does not, however, find any legitimate reason for a court 
being subject to more procedural restrictions in matters concerning foreign 
nationals than in any other matters. 
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