Opinion of the Advocate General — ECLI:EU:C:2023:909
Date: 2023-11-23
Language of the case: Hungarian
Subject matter: Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Hungary

Summary C-420/22 – 1 
Case C-420/22  
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
24 June 2022 
Referring court: 
Szegedi Törvényszék (Hungary) 
Date of the decision to refer: 
16 June 2022 
Applicant: 
NW 
Defendants:  
Országos Idegenrendészeti Főigazgatóság 
Miniszterelnöki Kabinetirodát vezető miniszter 
  
Subject matter of the main proceedings 
Application for an administrative-law review of an administrative decision, 
adopted in the light of an opinion issued by a specialised authority on the basis of 
classified information, ordering the withdrawal of the residence permit of a third-
country national. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-420/22 
 
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Subject matter and legal basis of the request 
Interpretation of Articles 9(3) and 10(1) of Council Directive 2003/109/EC of 
25 November 2003 concerning the status of third-country nationals who are long-
term residents (OJ 2004 L 16, p. 44), and of Articles 41 and 47 of the Charter of 
Fundamental Rights of the European Union (‘the Charter’). 
The request for a preliminary ruling is made pursuant to Article 267 TFEU. 
Questions referred for a preliminary ruling 
1) Must Article 10(1) of Council Directive 2003/109/EC of 25 November 2003 
concerning the status of third-country nationals who are long-term residents, in 
conjunction with Article 47 of the Charter of Fundamental Rights of the European 
Union (‘the Charter’) – and also, in this specific case, with Articles 7 and 24 of the 
Charter – be interpreted as meaning that the authority of a Member State which, 
on grounds of national security and/or public policy or public security, has 
adopted a decision ordering the withdrawal of a long-term residence permit which 
had previously been issued, and the specialised authority which has determined 
that the matter is confidential, must ensure there is a guarantee that in all 
circumstances the person concerned, who is a third-country national, and his or 
her legal representative, are entitled to know at least the essence of the 
confidential or classified information and data underpinning the decision which is 
based on those grounds and to use that information or those data in the 
proceedings concerning the decision, where the responsible authority considers 
that such disclosure would be contrary to the interests of national security? 
2) If the answer is in the affirmative, what precisely must be understood by the 
‘essence’ of the confidential grounds on which that decision is based, having 
regard to Articles 41 and 47 of the Charter? 
3) Having regard to Article 47 of the Charter, must Article 10(1) of Directive 
2003/109 be interpreted as meaning that, where a court of a Member State rules 
on the legality of the opinion of the specialised authority which is based on 
grounds relating to confidential or classified information and on the legality of the 
substantive immigration decision adopted on the basis of that opinion, it must 
have jurisdiction to examine the legality of the confidentiality (its necessity and 
proportionality) and, if it considers that the confidentiality is unlawful, to order, of 
its own motion, that the person concerned and his or her legal representative may 
know and use all the information on which the opinion and the decision issued by 
the administrative authorities are based, or alternatively, if it considers that the 
confidentiality claim is lawful, that the person concerned may know and use at 
least the essence of the confidential information in the immigration proceedings in 
which he or she is concerned? 
NW 
 
3 
4) Must Article 9(3) and Article 10(1) of Directive 2003/109, in conjunction 
with Articles 7 and 24 and Article 51(1) and Article 52(1) of the Charter, be 
interpreted as precluding legislation of a Member State under which an 
immigration decision ordering the withdrawal of a long-term residence permit 
which had previously been issued takes the form of a non-reasoned decision 
which: 
(i) is based solely on automatic reference to a – likewise non-reasoned – 
binding and mandatory opinion by the specialised authority which identifies a 
danger or harm to national security, public policy or public security; and 
(ii) has therefore been adopted without an in-depth examination of whether the 
grounds of national security, public policy or public security exist in the specific 
case in question, and without taking into account individual circumstances or the 
requirements of necessity and proportionality? 
Provisions of European Union law relied on 
Directive 2003/109: recital 3 and recitals 6 to 10; Article 2(a) and (b); 
Article 3(1); Article 9(3); and Article 10 
The Charter: Articles 7, 24, 41, 47, 51 and 52 
Provisions of national law relied on 
A szabad mozgás és tartózkodás jogával rendelkező személyek beutazásáról és 
tartózkodásáról szóló 2007. évi I. törvény (Szmtv.) (Law I of 2007 on the entry 
and residence of persons having the right of free movement and residence; ‘Law I 
of 2007’): Article 94(4)(b) and Article 94(5) 
A harmadik országbeli állampolgárok beutazásáról és tartózkodásáról szóló 2007. 
évi II. törvény végrehajtásáról szóló 114/2007. (V. 24) Korm. rendelet (Vhr.) 
(Government Decree 114/2007 of 24 May 2007 on the application of Law II of 
2007 on the entry and residence of third-country nationals): Article 97(1) 
A harmadik országbeli állampolgárok beutazásáról és tartózkodásáról szóló 2007. 
évi II. törvény (Harmtv.) (Law II of 2007 on the entry and residence of third-
country nationals; ‘Law II of 2007’): Article 87/B(4) 
Az általános közigazgatási rendtartásról szóló 2016. évi CL. törvény (Ákr.) (Law 
CL of 2016 on the general regulation of the Public Administration; ‘Law on 
Public Administration’): Article 123(1)(b) 
A minősített adat védelméről szóló 2009. évi CLV. törvény (Mavtv.) (Law CLV 
of 2009 on the protection of classified information; ‘Law on the protection of 
classified information’): Article 3 and Articles 11 to 13 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-420/22 
 
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European Union case-law relied on 
Judgment of 4 June 2013, ZZ (C-300/11, EU:C:2013:363) 
Judgment of 18 July 2013, Commission and Others v Kadi (C-584/10 P, 
C-593/10 P and C-595/10 P, EU:C:2013:518) 
Judgment of 23 October 2014, Unitrading (C-437/13, EU:C:2014:2318, 
paragraphs 20 and 21) 
Judgment of 20 January 2022, Landeshauptmann von Wien (Loss of long-term 
resident status) (C-432/20, EU:C:2022:39, paragraph 24) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant, a Turkish national, married a Hungarian national in 2004. In 2005 
the couple had a child, of Hungarian nationality. The applicant is socially 
integrated in Hungary and has medical insurance, and his family is provided for. 
2 In response to an application submitted by the applicant in August 2012, 
following a period of more than five years’ legal and continuous residence in 
Hungary, and having regard to his wife and child, the immigration authority 
issued him with a permanent residence permit which was valid until 31 October 
2022. 
3 In an opinion dated 12 January 2021, issued at the request of the immigration 
authority, the Alkotmányvédelmi Hivatal (Constitutional Protection Office, 
Hungary), as the specialised authority of first instance, declared that it was 
contrary to Hungary’s national security interests for the applicant to remain. 
Consequently, by decision of 22 January 2021 adopted pursuant to 
Article 94(4)(b) of Law I of 2007, the immigration authority withdrew the 
applicant’s permanent residence permit and ordered him to leave Hungarian 
territory. 
4 The Constitutional Protection Office stated that the information concerning the 
harm to national security interests constituted national classified information 
within the meaning of the Law on the protection of classified information, and that 
therefore neither the applicant nor the immigration authority could know the 
content of that information. 
5 By decision of 10 May 2021, the Országos Idegenrendészeti Főigazgatóság 
(National Directorate-General for the Immigration Police) which, as the authority 
of second instance, heard the administrative appeal lodged by the applicant, 
confirmed the decision of the first-instance authority. It stated that, under 
Article 87/B(4) of Law II of 2007, as far as the specialised issue is concerned, the 
opinion by the Belügyminiszter (Hungarian Minister for the Interior), who took 
part in the proceedings as the specialised authority of second instance, is binding 
NW 
 
5 
and mandatory for the immigration authority hearing the case. In making its 
decision, that authority did not take any account of the applicant’s personal 
circumstances. 
6 The applicant has lodged an application for an administrative-law review with the 
referring court, seeking the annulment of the decision issued at second 
administrative instance. 
The essential arguments of the parties in the main proceedings 
7 The applicant argues that the administrative authorities which have taken part in 
the proceedings have not examined his personal circumstances nor his financial 
situation and income, in spite of the fact that the case falls within the scope of 
Article 45(1) of Law II of 2007, which requires an assessment of personal 
circumstances to be made before an expulsion decision is adopted. 
8 In his view, the defendant has failed to show that the applicant’s residence in 
Hungary constitutes a real, direct and serious threat to national security. The 
applicant notes that the immigration authorities have had no knowledge of the 
detailed reasoning for the opinions issued by the specialised authorities or of the 
facts underpinning that reasoning, and they have therefore adopted their decisions 
without examining either necessity or proportionality, and have failed in their duty 
to establish all the facts, thus failing to satisfy the requirements of a fair 
procedure. 
9 In their defence document, the immigration authority of second instance and the 
specialised authority of second instance – from 25 May 2022 oversight of the civil 
national security services has been transferred from the Minister for the Interior to 
the Miniszterelnöki Kabinetirodát vezető miniszter (Minister for the Prime 
Minister’s Office) – request that the application be dismissed. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 The first, second and third questions are referred because, according to the 
Hungarian legislation relied on and the case-law of the Kúria (Supreme Court), in 
immigration proceedings the immigration authority is not required to give reasons 
for its substantive decision to withdraw a permanent residence permit in so far as 
that decision is founded on national security grounds and based on classified 
information; nor does the specialised authority have to give reasons for its opinion 
where it is based on classified information. 
11 Article 94(4)(b) of Law I of 2007 does not allow the immigration authority any 
discretion. Nor is it required to examine the applicant’s personal circumstances. If 
it fails to act in accordance with the opinions requested from the specialised 
authorities, its decision must be annulled pursuant to Article 123(1)(b) of the Law 
on Public Administration. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-420/22 
 
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12 In the view of the Supreme Court, having regard to the specific legislative context, 
it is not unlawful for the opinion by the specialised authority not to include 
reasons where it is based on classified information. Moreover, where the 
immigration authority’s decision is based on an opinion arrived at on the basis of 
classified information, the decision may not include that information. 
13 Under current Hungarian legislation, the natural person concerned may not apply 
for access to the classified information on which the immigration decision is based 
nor apply to be permitted to use that information in the substantive immigration 
proceedings; nor does the court which hears administrative-law actions brought 
against such immigration decisions have the authority to do so. 
14 According to the Supreme Court, first, the procedural rights of the persons 
concerned are guaranteed by the fact that the court hearing the administrative-law 
review is able to consult the documents of the specialised authority which contain 
the classified information. However, with regard to that information, in its 
judgment the court can only determine whether or not the contents of the opinion 
issued by the specialised authority provide sufficient grounds to demonstrate harm 
to national security; it cannot rule on the logical conclusion reached by that 
authority. In the view of the Supreme Court, the interpretation of the Court of 
Justice concerning classified information does not apply, since that interpretation 
is relevant only in the case of individuals who fall within the scope 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 amending Regulation (EEC) 
No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 
73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC 
(OJ L 145, p. 1[; corrigendum, OJ 2004 L 229, p. 35]). 
15 In the second place, according to the case-law of the Supreme Court, procedural 
rights are also guaranteed by the fact that, under the Law on the protection of 
classified information, interested parties may apply to the competent specialised 
authority to obtain access to the classified information. The Law requires 
interested parties to commence separate administrative proceedings to that effect. 
However, as a general rule, such applications are usually refused on grounds of 
protecting the public interest, irrespective of the substantive proceedings involved, 
the purpose, or what breach of fundamental rights forms the basis for the request 
by the interested parties for access to the information. Thus, in practice, there is no 
possibility of obtaining authorisation to access the information. The Law on the 
protection of classified information contains no provision for obtaining ‘extracts’, 
or scope for discovering the essential grounds that demonstrate the threat to 
national security, not even to the extent required in order to mount a defence in the 
substantive proceedings. Applications to use the information in question are also 
refused, partly by reference to the refusal to grant access to the information and 
partly on the grounds that the provisions in the Law on the protection of classified 
information which concern the right of use and authorisation for use apply solely 
to individuals or organisations which perform public functions and which need to 
NW 
 
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know, access and use information in connection with those functions. 
Consequently, even if the applicant were to obtain authorisation to access the 
classified information, he would not be able to use it in either the administrative or 
the judicial proceedings. 
16 When interpreting Article 30(2) and Article 31 of Directive 2004/38/EC in the 
context of public policy and public security grounds, with regard to limitations 
placed on rights in connection with decisions adopted on the basis of confidential 
information, the Court of Justice of the European Union has ruled that failure to 
disclose, precisely and in full, the grounds for a decision must be interpreted in 
accordance with the requirements flowing from Article 47 of the Charter and in 
the light of the requirements in Article 52(1) of the Charter stipulating that there 
must be a connection between the limitation and its purpose, and that the 
limitation must be necessary and proportionate (Case C-300/11). 
17 With regard to the jurisdiction of the court hearing administrative-law applications 
for review of decisions adopted on the basis of confidential information, the Court 
of Justice has stated that where courts examine confidential documents they must 
also verify the lawfulness of that confidentiality. If the confidentiality is unlawful, 
they must grant the interested party access to the information, and if it is lawful, 
they must ensure that ‘the person concerned [is] informed, in any event, of the 
essence of the grounds’ on which the decision in question is based. 
18 Moreover, as interpreted by the Court of Justice, the fundamental right guaranteed 
by Article 47 of the Charter includes general procedural guarantees which apply to 
all cases involving evidence based on confidential information, irrespective of the 
legal status of the person concerned, and which therefore apply in other 
proceedings falling within the scope of EU law (such as refugee or immigration 
cases) (Case C-437/13). 
19 The applicant has the status of ‘long-term resident’ in Hungary, within the 
meaning of Article 2(b) of Directive 2003/109, having regard both to the 
definition of the concept contained in that provision and to the fact that the 
applicant holds a permanent residence permit, irrespective of the fact that he does 
not have a temporary or EU residence permit. 
20 In the view of the referring court, the aforementioned procedural guarantees must 
also be respected in the case of individuals who come within the scope of 
Directive 2003/109. 
21 With regard to the ‘essence’ of the national security grounds, the case-law of the 
Court of Justice draws a distinction between the ‘essence of the grounds’ on 
which the decision is based and the evidence underpinning those grounds. In the 
case of the essence of the grounds, it is not sufficient merely to state that there is a 
threat to national security. In the judgment in Commission and Others v Kadi, the 
Court of Justice provided guidelines on what the ‘essence of the grounds’ may 
include, in other words, the information which must be provided to the person 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-420/22 
 
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concerned in order to avoid prejudicing his or her rights of defence. However, the 
same requirements regarding the partial disclosure of confidential information to 
the person concerned do not apply to the evidence which underpins those grounds. 
22 In its case-law, the Court of Justice has ruled that EU law must be applied even 
where Member States rely on grounds of public policy, public security or national 
security in their decisions. 
23 In the light of the above, the referring court is of the view that it is also necessary 
to determine what is meant by the essence of the confidential information. 
24 The fourth question referred is based on the fact that, under Hungarian law, it is 
possible for a substantive immigration decision affecting the right of residence, 
and thus the right to private and family life, and also the rights of a minor, to be 
adopted by means of a decision of the immigration authority which does not 
include an in-depth examination of whether a reason for refusal exists and applies 
to the specific case in question, does not take account of individual circumstances, 
and does not assess either necessity or proportionality. 
25 Thus, under Hungarian law, the examination of the case of a third-country 
national who holds a permanent residence permit and the substantive decision on 
that case are not actually made by the competent immigration authority but by 
specialised authorities which do not act in accordance with EU law. This 
deprivation of authority, which appears to be contrary to EU law, gives rise to a 
breach of the procedural guarantees enshrined in EU law.