Opinion of the Advocate General — ECLI:EU:C:2024:409
Date: 2024-05-16
Language of the case: Slovak
Subject matter: Provisions governing the Institutions;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Slovakia

Summary C-185/23–1 
Case C-185/23 
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:  
22 March 2023 
Referring court:  
Najvyšší Správny súd Slovenskej republiky (Slovakia) 
Date of the decision to refer:  
28 February 2023 
Applicant and appellant:  
BONUL s.r.o. 
Respondent:  
Výbor Národnej rady Slovenskej republiky na preskúmavanie 
rozhodnutí Národného bezpečnostného úradu 
  
EN 
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Subject matter of the main proceedings 
Judicial review of a decision of a committee of a national parliament confirming a 
decision of the national security authority to withdraw from the applicant 
authorisation to view classified information 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of European Union law, Article 267 TFEU 
Questions referred 
1. Should Article 51(1) of the Charter of Fundamental Rights of the European 
Union be interpreted as meaning that a Member State implements EU law in 
the case where a court of that Member State assesses the legality of a decision of a 
special commission of the parliament of that State by which that commission, as 
an appellate body, has upheld an administrative decision of the national security 
authority revoking/withdrawing 
– first, a legal person’s industrial security clearance giving access to classified 
information in accordance with national law, 
and, at the same time, and only as a consequence of the revocation of that 
clearance, 
– a facility security clearance issued to that legal person for access to 
information classified as ‘SECRET UE/EU SECRET’ within the meaning of 
Article 11 of and Annex V to the Council Decision of 23 September 2013 on 
the security rules for protecting EU classified information (2013/488/EU)? 
2. If Question 1 is answered in the affirmative:  
Should the first and second paragraphs of Article 47 of the Charter be interpreted 
as precluding national legislation and practice under which 
(a) the decision of a national security authority to revoke/withdraw such 
clearance and the relevant certificate does not divulge the classified 
information which led to the authority considering the conditions for 
revocation/withdrawal to have been met, but merely makes reference to the 
document in the files of that authority containing the classified information, 
(b) the legal person concerned does not have access to the national security 
authority’s file or to the individual documents containing classified 
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information which led the authority to request justification of the 
revocation/withdrawal of the clearance and certificate, 
(c) access to that files and those documents may be obtained by the lawyer of 
the legal person concerned, but only with the consent of the head of the 
national security authority, and possibly with that of the body which 
provided those documents to the national security authority, whereby, even 
after having obtained such access, he or she is obliged to keep the content of 
the file and those documents confidential, 
(d) the court which assesses the legality of the decision referred to in Question 
1, however, has full access to those files and documents? 
3. If Question 2 is answered in the affirmative: 
Should the first and second paragraphs of Article 47 of the Charter be interpreted 
as directly permitting (or alternatively obliging) a court assessing the legality 
of a decision such as that referred to in Question 1 not to apply the rules and 
practice described in Question 2 and to grant the legal person concerned or its 
lawyer access to the file of the national security authority and possibly to 
documents containing classified information, if that court considers this necessary 
in order to guarantee the right to an effective remedy and an adversarial 
procedure? 
4. If Question 3 is answered in the affirmative: 
Should Article 51(1) and (2) of the Charter be interpreted as meaning that the 
right of the court to grant access to the file, and possibly to the documents 
described in Question 3, extends 
– only to those parts of the file or documents that contain information relevant 
to the industrial clearance assessment within the meaning of Article 11 of 
and Annex V to Council Decision 2013/488/EU, 
or 
– also to those parts of the file or documents that contain information that is 
relevant only for the assessment of industrial security under national law, 
that is to say, beyond the prerequisites provided for in Council Decision 
2013/488/EU? 
Provisions of EU law relied on 
Article 240(3), Articles 267 to 276, Article 288, fourth paragraph, Article 291(1) 
and Article 346(1)(a) TFEU 
Articles 47, 51 and 52 of the Charter of Fundamental Rights of the European 
Union (‘the Charter’) 
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Recital 3, Articles 1, 11, 15(3) and 16(3) of and Annex V to Council Decision 
2013/488/EU of 23 September 2013 on the security rules for protecting EU 
classified information (2013/488/EU) (OJ 2013 L 274, p. 1). 
Provisions of national law relied on 
Zákon č. 215/2004 Z. z. o ochrane utajovaných skutočností a o zmene a doplnení 
niektorých zákonov (Law No 215/2004 on the protection of classified information 
and amending and supplementing certain laws), as amended (‘Law 
No 215/2004’). 
According to Paragraph 2(a), ‘classified information’ is information or materials 
designated by the originator of the information that, in the interest of the Slovak 
Republic, must be protected against disclosure, misuse, damage, unauthorised 
reproduction, destruction, loss or theft. 
According to Paragraph 2(e), ‘originator of classified information’ means any 
legal or natural person having the power to decide that information or material is 
classified. According to Paragraph 2(f), ‘authorised person’ means any legal or 
natural person who is permitted or has the legal authority to view classified 
information. 
According to Paragraph 10(1)(h), authorisation to view classified information 
requires a valid certificate issued by the Národný bezpečnostný úrad Slovenskej 
republiky (National Security Authority of the Slovak Republic; ‘the NSA’). 
Under Paragraph 26(2), the NSA, on the basis of the results of the checks which it 
carries out, may issue a decision disqualifying the applicant from obtaining the 
clearance referred to in Paragraph 10(1). Under Paragraph 26(3), this decision 
must cite the legal provision underlying the NSA’s decision that the person may 
not view the confidential information, the basis on which the decision was taken 
and the considerations which guided the NSA in assessing the evidence, as well as 
information on appealing against the decision. 
According to Paragraph 6(8), ‘industrial security’ means all measures taken by a 
legal or natural person to protect classified information communicated to or 
produced by it. According to Paragraph 8(1), a legal person’s obligation to 
protect classified information lies with its constituent body (‘the manager’). 
According to Paragraph 34(1)(f), judges hold a special status in the performance 
of their duties. 
According to Paragraph 35(3), in proceedings before a State authority, and with 
the agreement of the competent person for the authority responsible for the 
classified information in question, lawyers are also authorised to inspect such 
classified information to the extent necessary for that procedure on one occasion, 
after signing a declaration of confidentiality. According to Paragraph 35(4), the 
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investigating State authority must immediately inform the NSA and the originator 
of the classified information of the lawyer’s identity and the extent to which the 
lawyer may view information classified as prísne tajné (top secret), tajné (secret) 
or dôverné (confidential). 
Paragraph 38(a) requires that lawyers, as authorised persons, maintain the 
confidentiality of materials and documents containing classified information. 
Paragraph 43 states that, where there is a reasonable presumption that the State 
authority needs a contractor to generate classified information or provides such a 
contractor with classified information, that contractor is required to apply to the 
NSA for industrial security clearance. According to Paragraph 45(1), the NSA 
will investigate whether the contractor meets the industry security conditions, in 
particular, whether the contractor is trustworthy in terms of security 1 within the 
meaning of Paragraph 46(c). 
In accordance with Paragraph 50(1) and (3), if the security assessment shows that 
the contractor meets the conditions laid down in Paragraph 46, the NSA will issue 
it with industrial security clearance for a period not exceeding five years. In 
accordance with Paragraph 50(4), the contractor has the right to inspect classified 
information up to the level of security for which industrial security clearance has 
been granted. 
Paragraph 50(5) provides that, if the NSA finds that a contractor has lost its 
trustworthiness in terms of security within the meaning of Paragraph 46(c) or 
has grossly or repeatedly failed to fulfil its obligations to protect classified 
information, it will terminate the industrial security clearance. According to 
Paragraph 52(1)(c), industrial security clearance loses its validity as soon as the 
NSA issues a notice pursuant to Paragraph 50(5). 
Paragraph 60(7) states that the NSA carries out security investigations in respect 
of natural persons who are required to view classified information in order to 
perform their duties under an international agreement to which the Slovak 
Republic is party, to whom it issues personnel security clearance. 
Paragraph 30(1) states that persons who are the subject of the abovementioned 
decisions of the NSA may appeal in writing against those decisions within 15 
 
1 An untrustworthy industrial security contractor for the purposes of Paragraph 49(1) is one who 
has been found to be a security risk. According to Paragraph 49(2), a security risk is constituted 
by: (a) any action against the interests of the Slovak Republic with regard to national defence, 
State security, international relations, the economic interests of the State, the functioning of a 
State body or any action against the interests that the Slovak Republic has undertaken to protect; 
(b) foreign, commercial or financial ties which may adversely affect the interests of the Slovak 
Republic in the field of foreign or security policy; (c) economic, property or financial links with 
persons involved in organised crime; (d) corruption on the part of the contractor; (e) personal 
instability in management positions or within the organs of the contractor; or (f) the cancellation 
of the certificate of the contractor’s manager. 
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days of service of the decision. Such an appeal is to have suspensive effect and, 
pursuant to Paragraph 30(2), the NSA may itself uphold the appeal. 
Ústavný zákon č. 254/2006 Z. z. o zriadení a činnosti výboru Národnej rada 
Slovenskej republiky na preskúmavanie rozhodnutí Národného bezpečnostného 
úradu (Constitutional Law No 254/2006 on the creation and activities of the 
National Parliament Commission of the Slovak Republic on the review of 
decisions of the National Security Authority, as amended) 
Under Articles 2 and 3, a commission of the National Parliament of the Slovak 
Republic (‘the commission’), composed of 11 MPs, is to review the decisions of 
the NSA adopted pursuant to Law No 215/2004. According to Article 4(2), if the 
appeal is justified, the commission may overturn the contested decision and refer 
the case back to the NSA for reconsideration; otherwise, it shall dismiss the 
appeal. The commission’s decision shall contain the operative part, the 
justification and information about the legal remedy. 
Article 5 subjects the commission’s decision to review by the Najvyšší správny 
súd Slovenskej republiky (Supreme Administrative Court of the Slovak Republic). 
Zákon č. 162/2015 Z. z., Správny súdny poriadok (Law No 162/2015 – Code of 
Judicial and Administrative Procedure) as amended (hereinafter ‘the Code of 
Administrative Procedure’). 
Under Paragraph 81(1) and (3), the participants in proceedings and their 
representatives have the right to view court files containing classified information 
and the annexes thereto, as well as to make transcripts and copies thereof, subject 
to the provisions on the protection of classified information. 
Pursuant to Paragraph 82(1) and (2), the public authority, when submitting an 
administrative document, must always indicate which parts of the document 
contain classified information. The president of the chamber must ensure that 
those parts of the document cannot be viewed. However, viewing cannot be ruled 
out for those parts of the administrative documents which the court needs to view 
as evidence, nor can it be ruled out for those parts which the party to the 
proceedings was able to view in the proceedings before the administrative 
authority. 
Paragraph 119 allows the Administrative Court to take the evidence necessary to 
review the legality of the contested decision. 
Under Paragraph 120(a), the Administrative Court is not bound by the facts 
established by the administrative authority and may itself conduct proceedings to 
take evidence if it considers this necessary for it to rule on the case. 
Vyhláška Národný bezpečnostný úrad č. 134/2016 Z. z. o personálnej bezpečnosti 
(Order of the National Security Authority No 134/2016 on personnel security; 
‘Order No 134/2016’) 
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Under Paragraph 5(1)(d) and (g), in conjunction with Paragraph 6, personnel 
security clearance for natural persons and facility security clearance for 
contractors is to include the highest level of EU classified information to which 
the holder may have access, an indication of the relevant provisions of EU law on 
the basis of which the natural person may access classified information, and the 
start and end dates of validity of the clearance. 
Under Paragraph 5(4)(a), in conjunction with Paragraph 6, this clearance is, in 
principle, issued at most for the period of validity of the certificate. 
Summary of the facts and procedure in the main proceedings 
1 The applicant is a Slovak limited liability company to which the NSA issued, on 
6 September 2018, facility security clearance allowing it to view information 
classified as ‘Prísne tajné’ (top secret), to transmit information classified as 
‘Tajné’ (secret) in physical and electronic form and to create information 
classified as ‘Tajné’ (secret). On 15 November 2018, the NSA issued the applicant 
with facility security clearance for SECRET EU/EU SECRET information. 
2 The NSA then received unclassified information from various sources to the effect 
that (i) the applicant or the members of its board were being investigated in 
relation to various criminal offences, (ii) the applicant had entered into agreements 
with entities suspected of criminal activity and paid them unusual sums of money 
and (iii) the applicant was suspected of associating with another entity with which 
it had participated in tenders of an economic nature without disclosing that they 
were under common control. The NSA obtained further information on its own 
initiative and from other State authorities. This information is contained in 
documents which the NSA or other State bodies, as originators, themselves 
designated as classified documentary evidence. The NSA allowed the applicant to 
comment on certain information, but not on the individual classified evidence and 
the information contained therein. The applicant limited its explanations to the 
information provided to it by the NSA. 
3 On 25 August 2020, the NSA issued a decision in which it concluded that the 
applicant could not be regarded as trustworthy in terms of security, as a security 
risk had been found, namely (i) business links likely to harm the security interests 
of the Slovak Republic 2 and activities to the detriment of the State economic 
interests of the Slovak Republic. 3 On that basis, the NSA revoked the facility 
security clearance of 6 September 2018 and, consequently, 4 the certificate of 
15 November 2018. 
 
2 Pursuant to Paragraph 49(1) and (2)(b) of Law No 215/2004. 
3 Pursuant to Paragraph 49(1) and (2)(a) of Law No 215/2004. 
4 Pursuant to Paragraph 50(5) of Law No 215/2004. 
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4 In the statement of reasons for the decision, the NSA referred to public 
information and other information which it described as ‘information given on 
specific pages of, in specific paragraphs of or in specific annexes to the evidence 
from a classified document with a specific number from a specific date’, without 
giving further details. 
5 The applicant filed an appeal with the commission against the NSA’s decision, 
claiming that it had not been given the opportunity to view the NSA’s documents 
and to inspect the contents of the classified documentary evidence. The applicant 
also challenged the findings of fact and legal assessments made by the NSA on the 
basis of the non-confidential information. The commission rejected that complaint 
in its decision of 4 November 2020 (‘the contested decision’). 
6 The applicant lodged an administrative appeal against that decision, which is 
pending before the Najvyšší Správny súd (Supreme Administrative Court). The 
NSA provided the court with the complete file, which also contained evidence 
from classified documents. 
7 By decision of 4 October 2022, the president of the chamber of the national court 
did not allow the confidential parts of the files to be viewed, pursuant to 
Paragraph 82(1) of the Code of Administrative Procedure. On the same day, the 
applicant’s lawyer applied to view those files. On 5 October 2022, the president of 
the chamber rejected that application on the basis of Paragraph 82(1) of the Code 
of Administrative Procedure, although he asked the NSA to grant such 
authorisation. 
8 By letter of 25 November 2022, the NSA informed the referring court that it 
would only grant authorisation for two pieces of evidence from classified 
documents, but not for the remaining evidence. The NSA reasoned that evidence 
from classified documents contains information the disclosure of which could lead 
to the sources of the information being disclosed and jeopardise the effectiveness 
of the activities of the NSA and other State bodies vis-à-vis the applicant. In a 
letter dated 16 January 2023, the applicant’s lawyer again asked the national court 
for access to evidence from classified documents, citing Article 47 of the Charter 
of Fundamental Rights of the European Union, as interpreted in accordance with 
the judgment of the Court of Justice of 22 September 2022, Országos 
Idegenrendeszeti Főigazgatóság and Others (C-159/21, EU:C:2022:708). 
Essential arguments of the parties in the main proceedings  
9 The applicant complains, first of all, that it was unable to consult the NSA file and 
familiarise itself with the contents of the classified documents used as evidence. 
The applicant’s lawyer only had the opportunity to request permission to access 
them after it had received the NSA’s decision. However, the Director of the NSA 
did not grant the request for access to the documents on grounds which the 
applicant regards as excessively vague. The applicant also challenges the NSA’s 
conclusions regarding the facts and the law based on the unclassified information. 
BONUL 
 
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In the administrative appeal, the applicant claims that its procedural rights to view 
the contents of the file cannot be wholly restricted on the vague grounds that it 
contains classified information. According to the applicant, it is inadequate, from 
the point of view of safeguarding the rights of defence, for the court to be able to 
access the classified information. As regards the substance of the case, the 
applicant disputes that there is, in its case, a security risk such as to justify the 
withdrawal of facility security clearance and of the industrial security certificate. 
10 The applicant expressly invokes the Charter and argues that its right to an 
effective remedy and to a fair trial under Article 47 of the Charter has been 
infringed, although it is not apparent from the request for a preliminary ruling that 
the applicant has expressly argued that the relevant national provisions must be 
regarded as implementing EU law. 
11 The respondent disputes the applicant’s allegations. It underlines that the court 
may review the contested decision and take cognisance of all the documents, 
including classified documentary evidence. 
Summary of the grounds of the reference 
Question 1 
12 The referring court is the only judicial body competent to review the contested 
decision; its decision will be final. The referring court considers the Court’s 
answers to the questions referred for a preliminary ruling necessary for the 
resolution of the dispute. The referring court has doubts as to whether the national 
legislation at issue should be regarded as implementing EU law and whether, 
consequently, the Charter applies in the present case. The referring court notes 
that the applicant itself does not state the reasons why that would be the case. 
13 The referring court has examined the case-law of the Court of Justice relating to 
the expression ‘implementing EU law’, referring to paragraph 34 of the judgment 
of 19 April 2018, Consorzio Italian Management and Catania Multiservizi 
(C-152/17, EU:C:2018:264), and to paragraphs 40 and 41 of the order of 
24 September 2019, Spetsializirana prokuratura (presumption of innocence) 
(C-467/19 PPU, EU:C:2019:776), paragraph 25 of the judgment of 6 March 2014, 
Siragusa (C-206/13, EU:C:2014:126), and paragraph 28 of the judgment of 
26 February 2013, Åkerberg Fransson (C-617/10, EU:C:2013:105). 
14 The referring court finds that both the contested decision of the NSA and the 
contested decision of the commission are based exclusively on national law. Order 
No 134/2016 shows that the industrial security certificate indicates the highest 
security classification of EU classified information to which the holder of the 
certificate would have access. However, national law does not provide greater 
detail on how EU classified information should be treated or how it should be 
accessed. 
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15 The referring court notes that Article 1(1) of Decision 2013/488 lays down the 
basic principles and minimum standards of security for protecting EUCI [EU 
classified information]. Recital 3 and Article 1(2) of that decision state that those 
principles and standards must be respected by the Member States in accordance 
with their respective national laws. Under Article 15(3)(c) and (d) of Decision 
2013/488, Member States are required to take all appropriate measures, in 
accordance with their respective national laws and regulations, to ensure that, 
when EUCI is handled or stored, that decision is respected by other persons in the 
Member States duly authorised by virtue of their functions to have access to 
EUCI, and Member States’ contractors. Article 16(3)(a)(iii) of that decision 
requires Member States to designate an NSA [national security authority] to 
ensure that all individuals employed by contractors are appropriately security 
cleared or are otherwise duly authorised by virtue of their functions. Article 11(5) 
of Decision 2013/488 expressly requires the national security authority of each 
Member State to ensure that all contractors or subcontractors registered in that 
Member State participating in classified contracts which require access to 
information classified CONFIDENTIEL UE/EU CONFIDENTIAL or SECRET 
UE/EU SECRET hold facility security clearance (FSC). The detailed rules for 
facility security clearance are governed by Annex V to the Decision (see 
Article 11(7)). 
16 From this, the referring court infers that Decision 2013/488 seeks to impose on 
Member States specific obligations concerning the verification of contractors. 
Since under the fourth paragraph of Article 288 TFEU that decision is binding in 
its entirety on all the Member States, the national authorities are required to take 
account of the obligations arising from that decision when issuing and cancelling 
facility security clearances. According to the referring court, it is irrelevant here 
that Decision 2013/488 refers to the relevant national provisions under which 
NSAs are required to operate. The referring court sees this as a consequence of the 
choice of the form of the act (a decision) and of the fact that it is binding on the 
Member States and not on individuals. Under Article 291(1) TFEU, Member 
States are required to adopt all measures of national law necessary to implement 
legally binding Union acts. 
17 The referring court notes that Slovak national law does not lay down any specific 
procedures for issuing facility security clearance for the purposes of Decision 
2013/488. National security checks are carried out when industrial security 
clearances are issued in accordance with national law. On the basis of this 
clearance, contractors are issued facility security clearance for the corresponding 
European Union classification level, the validity of which is subject to the validity 
of the security clearance under national law. However, on the basis of the 
judgment of the Court of Justice of 26 February 2013, Åkerberg Fransson 
(C-617/10, EU:C:2013:105), the referring court takes the view that the fact that 
national provisions were not adopted specifically to implement an EU legal act 
does not mean that their application cannot constitute an implementation of EU 
law. 
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18 The referring court agrees that its review of the contested decision may constitute 
a situation in which a Member State is implementing EU law and to which the 
Charter applies in accordance with Article 51(1) thereof. 
19 The referring court is uncertain as to the legal basis of Decision 2013/488, which 
it regards, in essence, as vague; Article 240(3) TFEU, invoked in this context, 
concerns only the manner in which the Council legislates on procedural matters 
and the Rules of Procedure. According to the referring court, that decision should 
not have as its legal basis Chapter 4 or 5 of Title V of Part Three of the FEU 
Treaty (judicial cooperation in criminal matters and police cooperation), so that, in 
the present case, the jurisdiction of the Court of Justice within the meaning of 
Article 276 TFEU is limited. Furthermore, the referring court does not consider 
that this is a case in which a Member State is not bound by the provisions of the 
Charter by virtue of Article 346(1)(a) TFEU. In the view of the referring court, the 
mere nature or content of Decision 2013/488 does not restrict the admissibility of 
the application of the Treaties or of the Charter in the present case and, therefore, 
the Court’s power of interpretation. 
Question 2 
20 It follows from the relevant national legislation that the NSA and the commission 
must indicate, in their decisions, the facts on which those decisions are based and 
their assessment of those facts. In practice, specific classified information is not 
divulged in those decisions. They refer only to the identity of the documents 
containing the classified information. Such a procedure is allowed in the case-law 
of the Najvyšší súd (Supreme Court, Slovakia) and the Ústavný súd 
(Constitutional Court, Slovakia). Documentary evidence containing classified 
information is not made available to the individual undergoing security clearance. 
Where an administrative appeal is lodged against a decision to revoke/withdraw 
facility security clearance or a certificate, the judges of the Supreme 
Administrative Court have unlimited authority to examine all classified 
information on file. The lawyer for the person undergoing security clearance may 
access classified information only with the agreement of the head of the authority 
where the classified information originated and which forwarded it to the NSA. 
According to national case-law, the decision to grant a lawyer access to classified 
information cannot be subject to a separate review. In any event, the lawyer must 
keep confidential information secret, and therefore may not disclose any of it to 
his or her client. 
21 According to the case-law of the Court of Justice, one element of the right to a fair 
trial is not only to know the reasons for an administrative decision, but also to 
have access to all the information in the file on which the administrative authority 
relied. The parties to the proceedings must have the right to acquaint themselves 
with all the evidence or opinions submitted to the court, so that they can influence 
its decision or respond to the evidence relied on. In accordance with the case-law 
of the Court of Justice, the right of access to the file may be weighed against the 
interests of national security. However, such a balancing exercise cannot have the 
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effect of depriving the defence of its effective rights by depriving the person 
concerned or his legal counsel of information, at least of the essential 
considerations on which the decision is based. It is not sufficient that the person 
concerned or his/her legal counsel can have access to that information only after 
obtaining authorisation to that end, as they are not even able to acquaint 
themselves with the essential grounds on which such decisions are based and may 
under no circumstances use information to which they have had access for the 
purposes of administrative or judicial proceedings. 5 Simultaneously, the fact that 
the court has guaranteed access to those files does not replace these rights of the 
persons concerned. 6 
22 The referring court considers that, in the light of the foregoing, the answer to 
Question 2 could be clear (acte éclairé), but that, unlike the present case, Case 
C-159/21 concerned the interpretation not only of Article 47 of the Charter, but 
also of the second subparagraph of Article 23(1) of Directive 2013/32, 7 which 
expressly gives the parties concerned a specific right of access to information or 
sources the disclosure of which would jeopardise national security. 
23 The referring court is unsure whether the provisions of Article 11 of Decision 
2013/488 and Annex V thereto confer on the applicant a right guaranteed by EU 
law which can be upheld by invoking the first paragraph of Article 47 of the 
Charter, that is to say, whether it can derive from Decision 2013/488 the right not 
to have its facility security clearance revoked or the right to have the NSA comply 
with certain minimum procedural standards when revoking such clearance. The 
referring court agrees with the view that Decision 2013/488 does not confer rights 
directly on the applicant, but it has doubts in this regard, as it infers from 
Article 11(2) and (3) of that decision that, when the General Secretariat of the 
Council concludes classified contracts (see Annex A), a security investigation in 
accordance with Article 11(4) and (5) is a condition for the participation of a 
contractor in a tendering procedure for the conclusion of such a contract. Thus, the 
revocation/withdrawal of facility security clearance fundamentally affects the 
applicant’s ability to apply for such a classified contract. It may follow from this 
that Decision 2013/488 confers certain rights on contractors. 
24 Next, the referring court, in referring to Article 52(3) of the Charter, cites the 
case-law of the European Court of Human Rights (‘the ECtHR’) on judicial 
reviews of decisions based on classified information. The ECtHR considered it 
essential that the court hearing the case should have full access to the classified 
 
5 See judgment of the Court of 22 September 2022, Országos Idegenrendeszeti Főigazgatóság 
and Others (Case C-159/21, EU:C:2022:708), paragraphs 50 and 51 and the operative part.  
6 Ibid., paragraph 57. 
7 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 (OJ 2013 L 180, 
p. 60). 
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information. 8 According to this interpretation, it would, in the present case, 
suffice that the national court before which the proceedings are pending alone 
could view the classified information. However, the Court of Justice has 
emphasised in its case-law that, in the light of the second paragraph of Article 47 
of the Charter, this is insufficient. 9 The referring court therefore believes that, in 
relation to the present case, a more precise interpretation of the second paragraph 
of Article 47 of the Charter is required from the Court of Justice. 
Question 3 
25 In the court proceedings between the applicant and the NSA, the national court 
may not, without the authorisation of the NSA, permit the applicant or its lawyer 
to view those parts of the file which contain classified information. Given that the 
parts of the file containing classified information were submitted to the court by 
the NSA, in practice only the applicant’s ability to view the file was restricted. 
Although Paragraph 82(2) of the Code of Administrative Procedure allows the 
parties to view the file which is to be used as evidence, the court viewing files 
submitted by the administrative authority is not regarded as taking evidence in 
national practice. 
26 According to Article 82(2) and (3) of the Code of Administrative Procedure 
viewing parts of a file that contains classified information requires that the person 
viewing the file fulfils the conditions laid down in Law No 215/2004. In practice, 
the applicant would therefore require valid industrial security clearance and its 
lawyer would need security clearance or the consent of the competent authority in 
accordance with Law No 215/2004. 
27 In the event that the referring court should not apply national law and practice to 
the present case, as described in Question 2, it is unsure how and to what extent it 
should allow the applicant to view classified information. The court therefore 
seeks to ascertain whether a particular procedure or obligation on the part of the 
national court can be derived from the second paragraph of Article 47 of the 
Charter. In its case-law, the Court of Justice has stressed that the national court is 
obliged to make certain information it has received from the administrative 
authority available to the relevant person, but not the entirety of the file in which 
that information appears. 10 In view of the uncertainties associated with Decision 
2013/488, which led to Questions 1 and 2 being referred, the referring court 
considers it important that the Court of Justice should interpret the second 
 
8 ECtHR, judgment of 19 September 2017 in Regner v. Czech Republic (application 
No 35289/11, ECLI:CE:ECHR:2015:1126JUD003528911). 
9 Judgment of 16 May 2017, Berlioz Investment Fund (C-682/15, EU:C:2017:373, 
paragraph 100), or judgment of 13 September 2018, UBS Europe and Others (C-358/16, 
EU:C:2018:715, paragraph 70). 
10 Judgment of 16 May 2017, Berlioz Investment Fund (C-682/15, EU:C:2017:373), paragraph 
100, or judgment of 13 September 2018, UBS Europe and Others (C-358/16, EU:C:2018:715), 
paragraph 70. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 28. 2. 2023 – CASE C-185/23 
 
14  
paragraph of Article 47 of the Charter also with regard to classified information 
matters governed by that decision. 
Question 4 
28 Revocation of facility security clearance within the meaning of Decision 2013/488 
is merely the direct consequence of the revocation of industrial security clearance 
under national legislation. 
29 However, a comparison of the conditions of industrial security under the national 
regulations and under Decision 2013/488 reveals they are not identical, but that a 
security risk is more broadly defined in the national legislation. According to 
point 9 of Annex V to Decision 2013/488, a security risk is referred to only in 
point (b) with reference to ‘ownership, control, or the potential for undue 
influence’. Law No 215/2004 regards both an action against the interests of the 
Slovak Republic in certain areas (defence, security, international relations) and 
certain foreign, commercial or property links as potential security risks which 
could damage the interests of the Slovak Republic. Annex V to Decision 2013/488 
makes no reference to such risks. According to Article 11(5) of Decision 
2013/488, the national security authority must act in accordance with the national 
legislation, which may regulate more broadly the criteria for recognising security 
risks. In the present case, according to the referring court, the contested decision 
of the commission and that of the NSA are based on security risks governed solely 
by Law No 215/2004. 
30 Given that the provisions of the Charter are addressed to the Member States only 
when they are implementing EU law, the referring court is uncertain as to whether 
that is the case here. 
31 If Article 47 of the Charter were to give rise to a right (and a potential obligation) 
to grant the applicant or its lawyer access to relevant classified information, it 
would be necessary to determine whether that also applies to classified 
information relating to a security risk within the meaning of the national 
legislation, but not within the meaning of Decision 2013/488. For example, 
classified information about the applicant’s actions against the interests of the 
Slovak Republic, in accordance with Article 49(2)(a) of Law No 215/2004, is not 
relevant to the outcome in the light of the criteria set out in point 9 of Annex V to 
Decision 2013/488. In this instance, the referring court would consider that 
Article 51(2) of the Charter could be interpreted as precluding a national court 
from handling such confidential information directly on the basis of Article 47 of 
the Charter and on the non-application of national law. 
32 On the other hand, however, both the NSA and the commission, which is the 
respondent, decided to revoke/withdraw facility security clearance within the 
meaning of Article 11 of Decision 2013/488 and Annex V thereto, solely on the 
ground that they had simultaneously revoked (withdrawn) industrial security 
clearance in accordance with Paragraph 50 of Law No 215/2004. While it is true 
BONUL 
 
15 
that that certificate was revoked only on grounds of a security risk which is not 
expressly mentioned in point 9 of Annex V to Decision 2013/488, the fact remains 
that, according to the referring court, an equally acceptable interpretation would 
be that the requirements of Article 47 of the Charter apply in full to all classified 
information relevant to the revocation/withdrawal of facility security clearance, 
whether or not that information related to the circumstances referred to in point 9 
of Annex V to Decision 2013/488.