Provisional text

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 28 April 2022 ( )

Case C‑159/21

GM

v

Országos Idegenrendészeti Főigazgatóság,

Alkotmányvédelmi Hivatal,

Terrorelhárítási Központ

(Request for a preliminary ruling from the Fővárosi Törvényszék (Budapest High Court, Hungary))

(Reference for a preliminary ruling – Area of freedom, security and justice – Directive 2011/95/EU – Standards for qualification as a refugee or a beneficiary of subsidiary protection status – Directive 2013/32 – Common procedures for granting and withdrawing international protection – Danger to national security – Opinion of a specialist authority – Access to confidential information – Key elements of such information – Impossibility of relying on information in administrative or judicial proceedings)





I. Introduction

1. This request for a preliminary ruling concerns the interpretation of a number of provisions of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted ( ) and of 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, ( ) as well as Articles 41 and 47 of the Charter of Fundamental Rights of the European Union. ( )

2. The request has been made in the context of the examination of the action brought by GM, a Syrian national, against the decision of the Országos Idegenrendészeti Főigazgatóság (National Directorate-General for Aliens Policing, Hungary; ‘the Directorate-General’ or ‘the determining authority’) withdrawing his refugee status and refusing to grant him subsidiary protection status.

3. By its questions referred for a preliminary ruling, the referring court asks the Court about the arrangements for implementing the procedures for withdrawing international protection from, and refusing to grant international protection to, a third-country national deemed, on the basis of confidential information, to constitute a danger to the security of the Member State in which he or she is present. In particular, that court casts doubt on the compatibility of Hungarian legislation with EU law in so far as, first, that legislation limits the access of the persons concerned or of their representative to the confidential information on the basis of which decisions withdrawing or refusing to grant international protection are adopted on grounds of protecting national security and, second, it affords a prominent role to specialist national security bodies in the procedure leading to the adoption of such decisions.

4. In this Opinion, I will set out the reasons that lead me to take the view that that procedure does not observe several procedural guarantees which an applicant for international protection should enjoy under Directives 2011/95 and 2013/32.

II. Legal context

A. European Union law

5. With regard to Directive 2011/95, the relevant provisions in the context of this request for a preliminary ruling are the following: Article 4(3), Article 14(4)(a) and Article 17(1)(b) and (d).

6. As for Directive 2013/32, the relevant provisions are the following: Article 4(1) and (2), Article 10(2) and (3), Article 11(2), Article 23(1), Article 45(1) and (3) and Article 46(1).

B. Hungarian law

7. Article 8(4) and (5) of menedékjogról szóló 2007. évi LXXX. törvény (Law No LXXX of 2007 on the right to asylum) ( ) of 29 June 2007, as amended by 2018. évi CXXXIII. törvény az egyes migrációs tárgyú és kapcsolódó törvények módosításáról (Law No CXXXIII of 2018 amending certain laws on migration and certain supplementary laws), ( ) in force as of 1 January 2019, provides:

‘(4) A foreign national whose stay in the territory of Hungary constitutes a danger to national security may not be granted refugee status.

(5) Refugee status may not be granted to a foreign national who a court has sentenced, by a decision that has become final,

(a) to a custodial sentence of five or more years for an intentional crime;

(b) a custodial sentence for a crime committed as a repeat offender, multiple repeat offender or multiple repeat violent offender;

(c) a custodial sentence of three or more years for a crime against life, physical integrity or health, a crime endangering health, a crime against human liberty, a crime against sexual freedom or mores, a public order crime, a crime against public security or a crime against administrative rules.’

8. Article 15 of the Law on the right to asylum provides as follows:

‘Subsidiary protection status may not be granted to a foreign national

…

(ab) in respect of whom there is a ground for exclusion as provided for in Article 8(5);

(b) whose stay on the territory of Hungary constitutes a danger to national security.’

9. Article 57(1) and (3) of the Law on the right to asylum is worded as follows:

‘(1) In procedures governed by this Law, the specialist national body shall give opinions on the technical matters which it is competent to assess in the context of administrative proceedings.

…

(3) The competent asylum authority may not depart from the opinion of the specialist national body if that authority is not competent to assess the content of that opinion.’

10. Article 11 of a minősített adat védelméről szóló 2009. évi CLV. törvény (Law No CLV of 2009 on the protection of classified information) ( ) of 29 December 2009 provides:

‘(1) Data subjects shall be entitled to acquaint themselves with their personal data that constitute national classified information on the basis of an access authorisation issued by the classifying authority and shall not require personal security clearance. Before gaining access to the national classified information, the data subject must make a written confidentiality declaration and comply with the rules governing the protection of such information.

(2) On request by the data subject, the classifying authority shall decide within 15 days whether to grant the access authorisation. The classifying authority shall refuse the access authorisation if access to the information harms the public interest on which the classification is based. The classifying authority shall state reasons for refusing the access authorisation.

(3) Where the access authorisation is refused, the data subject may challenge that decision by seeking an administrative judicial review. …’

11. Article 12(1) and (2) of the Law on the protection of classified information states:

‘(1) The authority processing classified information may deny the data subject the right to access his or her personal data if the public interest on which the classification is based would be compromised by exercise of that right.

(2) Where the rights of a data subject are relied upon before a court, the provisions of Article 11(3) shall apply mutatis mutandis to the court hearing the matter and to access to the classified information.’

12. Article 13 of the Law on the protection of classified information reads as follows:

‘(1) Classified information may be used only by a person who has good reason to do so in the interests of performing a State or public function and who, without prejudice to the exceptions laid down by the Law, has:

(a) valid personal security clearance corresponding to the level of classification of the information that that person wishes to use;

(b) a confidentiality declaration; and

(c) a user authorisation.

…

(5) Unless the Law provides otherwise, the court may exercise the decision-making powers necessary to determine the matters brought before it in the order in which those matters are allocated, with no requirement for a national security check, personal security clearance, confidentiality declaration or user authorisation.’

III. The dispute in the main proceedings and the questions referred for a preliminary ruling

13. GM, a Syrian national, applied for asylum in 2005 while serving a custodial sentence imposed on him, by a judgment that became final in 2002, for an offence relating to a large quantity of drugs.

14. The Hungarian authorities granted him ‘accepted person’ status, but withdrew that status from him in 2010 following a review procedure, which was confirmed by a court decision. In 2011, GM filed a new application seeking refugee status, further to which the referring court granted him status as a refugee ‘sur place’ in a judgment of 29 June 2012.

15. In 2019, administrative proceedings to withdraw his refugee status were initiated ex officio, the outcome of which was the withdrawal of that status. It is for the referring court to review the lawfulness of the decision by way of which GM’s refugee status was withdrawn.

16. In the course of the administrative proceedings, the second defendant, the Alkotmányvédelmi Hivatal (Constitutional Protection Office, Hungary) and the third defendant, the Terrorelhárítási Központ (Counter-terrorism Centre, Hungary), found, in the opinion that they issued as specialist national bodies, that GM’s stay in Hungary jeopardised national security.

17. On that basis, the Directorate-General found, in relation to GM, there to be a ground for exclusion from being granted refugee status or being eligible for subsidiary protection.

18. In the context of the appeal proceedings against the decision to withdraw refugee status and to refuse to grant subsidiary protection status, GM’s representative submitted that he cannot access even the key elements of the confidential data on the basis of which a danger to national security was found to exist and that, even if he could access them, the applicable legislation would not permit him to use them in judicial proceedings. He also states, relying on the case-law of the Court, that the determining authority is obliged to make an individual assessment of applications and may not base its decision exclusively on the findings of an opinion issued by specialist national security bodies. Moreover, he argues that the Hungarian legislation added to the grounds for exclusion leading to a status withdrawal a ground that is incompatible with EU law.

19. With regard, in the first place, to the right of access to the information on the basis of which a decision was taken by the Directorate-General, the referring court states that it follows from the relevant case-law of the Kúria (Supreme Court, Hungary) that that court views the procedural rights of the persons concerned as guaranteed merely by the fact that the court conducting the judicial review of an administrative decision based on classified information may consult the file held by the specialist national bodies containing that information. There is therefore no requirement that the person concerned should be able to acquaint himself or herself with and use the information in question, or at least the key elements of that information.

20. The referring court observes that, in the present case, the decision by way of which the Directorate-General refused to grant international protection is based solely on the fact that the two specialist national bodies which are parties to the main proceedings found, in their opinion, that GM’s stay in Hungary ‘jeopardises national security’. The Directorate-General did not itself learn on which grounds those bodies based their opinion, including the classified information.

21. In addition, according to that court, neither GM nor his representative was able to make submissions on the non-reasoned opinion of the specialist national bodies, which was obtained during the administrative proceedings, or to challenge the merits from the stage of those proceedings. Although, under the Hungarian legislation, GM is able to submit a request to access the classified information about him, even if he were granted access to that information he would not, in any case, have the possibility of using it in either the administrative proceedings or the judicial proceedings.

22. The referring court also notes that the Law on the protection of classified information does not allow the specialist national body which decides on the access authorisation to grant the application for access to a limited extent, by disclosing the key elements of the grounds upon which its opinion is based.

23. In addition, although the court reviewing the lawfulness of the opinion of the specialist national bodies and of the asylum decision based on such grounds is entitled to access confidential or classified information, it could not use that information in any context and it could not make any declaration or draw conclusions in relation to the information, either in the course of the proceedings or in the judgment.

24. Thus, the court before which the matter is brought would have to review the lawfulness of the decision at issue and rule at last instance on whether the ground for exclusion based on confidential or classified information applies, without the applicant or his or her representative having been able to present a defence in relation to the grounds of that decision or arguments and facts that could potentially rebut the applicability of such a ground for exclusion in his or her individual case.

25. In that regard, the referring court observes that Article 23(1)(b) of Directive 2013/32 has not been transposed into Hungarian law, thus ultimately giving rise, in its view, to a further derogation in addition to the exception to the right of access explicitly permitted in that provision. That court therefore has doubts as to whether Hungarian law guarantees the fundamental procedural rights that form part of GM’s right to an effective remedy.

26. With regard, in the second place, to the connection between the opinions of the specialist national bodies and the decision of the determining authority, the referring court observes that, under Hungarian law, those bodies are required to issue a binding, non-reasoned opinion on whether there is a ‘danger to national security’, from which that authority may not depart. The authority could thus only make reference to that opinion and to the applicable rules in its decision. This would prevent a thorough examination of the existence and applicability of the ground for exclusion from being conducted in each individual case, and also prevent account being taken of individual circumstances and the requirements of necessity and proportionality.

27. According to the referring court, the end result of the Hungarian legislation is therefore that it is not the determining authority that carries out the examination of international protection and gives a substantive decision, but in fact two specialist national bodies, contrary to the provisions of Directive 2013/32, which could result in the procedural guarantees under EU law being undermined and would also run counter to the provisions of Directive 2011/95.

28. In the third place, the referring court states that the determining authority declared, pursuant to the ground for exclusion laid down in Article 15(ab) of the Law on the right to asylum, that GM could not be recognised as a beneficiary of subsidiary protection. In so doing, it relied on a criminal conviction imposed on GM on 6 June 2002, which became final 18 years ago, for an offence which it classified as ‘serious’.

29. The custodial sentence imposed in that judgment was served by the applicant in 2004, 16 years ago, and that offence was already known at the time GM obtained refugee status. In that regard, the referring court observes that neither the determining authority nor the court which ruled on the grant of refugee status applied a ground for exclusion relating to that offence.

30. In the light of all the foregoing, the Fővárosi Törvényszék (Budapest High Court, Hungary) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must Article 11(2), Article 12(1)(d) and [Article 12](2), Article 23(1)(b) and Article 45(1) and (3) to (5) of [Directive 2013/32] – in the light of Article 47 of [the Charter] – be interpreted as meaning that, where the exception for reasons of national security referred to in Article 23(1) of that directive applies, the Member State authority that has adopted a decision to refuse or withdraw international protection based on a reason of national security and the national security authority that has determined that the reason is confidential must ensure that it is guaranteed that in all circumstances the applicant, a refugee or a foreign national beneficiary of subsidiary protection status, or that person’s legal representative, is entitled to have access to at least the key elements of the confidential or classified information or data underpinning the decision based on that reason and to make use of that information or those data in proceedings relating to that decision, where the responsible authority alleges that their disclosure would conflict with the reason of national security?

(2) If the answer is in the affirmative, what precisely should be understood by the “essence” of the confidential reasons on which that decision is based, for the purposes of applying Article 23(1)(b) of [Directive 2013/32] in the light of Articles 41 and 47 of the Charter?

(3) Must Articles 14(4)(a) and 17(1)(d) of [Directive 2011/95] and Article 45(1)(a), (3) and (4) and recital 49 of [Directive 2013/32] be interpreted as meaning that they preclude national legislation according to which refugee or foreign national beneficiary of subsidiary protection status may be withdrawn or excluded by a non-reasoned decision which is based solely on automatic reference to the – likewise non-reasoned – binding and mandatory report of the national security authority and finds that there is a danger to national security?

(4) Must recitals 20 and 34, Article 4 and Article 10(2) and (3)(d) of [Directive 2013/32] and [Article] 14(4)(a) and [Article] 17(1)(d) of [Directive 2011/95] be interpreted as meaning that they preclude national legislation according to which that national security authority examines the ground for exclusion and takes a decision on the substance in a procedure that does not comply with the substantive and procedural provisions of [Directive 2013/32] and [Directive 2011/95]?

(5) Must Article 17(1)(b) of [Directive 2011/95] be interpreted as meaning that it precludes an exclusion based on a circumstance or crime that was already known before the judgment or final decision granting refugee status was adopted but which was not the basis of any ground for exclusion in relation to either the grant of refugee status or to subsidiary protection?’

31. Written observations were submitted by GM, the Czech, Hungarian and Netherlands Governments, and the European Commission. The Netherlands Government took a view on the first two questions only.

IV. Analysis

32. The questions referred for a preliminary ruling by the national court in this case ask the Court to assess the compatibility with a number of provisions of Directives 2011/95 and 2013/32 of the procedure that led to the withdrawal of refugee status from a third-country national and the refusal to recognise him as a beneficiary of subsidiary protection, on the grounds that he constitutes a danger to national security and that he has committed a serious crime.

33. With regard to the grounds relied on by the determining authority, Article 14(4)(a) of Directive 2011/95 provides:

‘Member States may revoke, end or refuse to renew the status granted to a refugee by a governmental, administrative, judicial or quasi-judicial body, when:

(a) there are reasonable grounds for regarding him or her as a danger to the security of the Member State in which he or she is present’.

34. In addition, Article 17(1)(b) and (d) of that directive states:

‘A third-country national or a stateless person is excluded from being eligible for subsidiary protection where there are serious reasons for considering that:

…

(b) he or she has committed a serious crime;

…

(d) he or she constitutes a danger to the community or to the security of the Member State in which he or she is present.’

35. Examination of the questions submitted by the referring court can, in my view, be divided into three parts.

36. First of all, the first and second questions invite consideration of the scope of the right of access to the confidential or classified information supporting the decision made by the determining authority to withdraw or to refuse international protection.

37. Next, the third and fourth questions involve examining the compatibility with Directives 2011/95 and 2013/32 of a procedure under which the determining authority, first, is bound by the opinion given by specialist national bodies finding that the person concerned constitutes a danger to national security and, second, does not state the reasons for its decision other than the mere reference to that danger.

38. Lastly, the fifth question seeks to ascertain whether the determining authority may, with a view to refusing subsidiary protection, rely on the fact that the applicant has committed a serious crime, even though that ground for exclusion was known to that authority when it previously granted that applicant international protection.

A. The first and second questions referred for a preliminary ruling

39. The first question seeks to establish whether the person who is the subject of a decision withdrawing or refusing to grant international protection, on the ground that he or she constitutes a danger to national security, has the right to access, at the very least, the key elements of the confidential or classified information forming the basis of such a decision, as well as the right to use that information in the administrative proceedings and subsequently, as the case may be, the judicial proceedings. The second question asks the Court to clarify what is covered by the ‘essence’ of the information to which the person concerned should have access pursuant to Article 23(1)(b) of Directive 2013/32, read in the light of Articles 41 and 47 of the Charter.

40. With a view to answering the first question, it must be stated that, under the first subparagraph of Article 23(1) of Directive 2013/32, ‘Member States shall ensure that a legal adviser or other counsellor admitted or permitted as such under national law, who assists or represents an applicant under the terms of national law, shall enjoy access to the information in the applicant’s file upon the basis of which a decision is or will be made’. The rule thus laid down is that of access, by the adviser of the party concerned, to the information that led to the adoption of the decision on international protection.

41. An exception to that right of access is, however, laid down in the second subparagraph of Article 23(1) of that directive, which provides:

‘Member States may make an exception where disclosure of information or sources would jeopardise national security, the security of the organisation or person(s) providing the information or the security of the person(s) to whom the information relates or where investigative interests relating to the examination of applications for international protection by the competent authorities of the Member States or the international relations of the Member States would be compromised. In such cases, Member States shall:

(a) make access to such information or sources available to the authorities referred to in Chapter V; and

(b) establish in national law procedures guaranteeing that the applicant’s rights of defence are respected.’

42. The final subparagraph of Article 23(1) of the directive states that, ‘in respect of point (b), Member States may, in particular, grant access to such information or sources to a legal adviser or other counsellor who has undergone a security check, insofar as the information is relevant for examining the application or for taking a decision to withdraw international protection’.

43. It is my understanding, based on those provisions, that the limitation, on grounds of protecting national security, of the right of access to information regarding the person concerned is subject to two cumulative conditions: (i) the courts having jurisdiction to rule on the lawfulness of the decision on international protection must have access to the confidential information or sources, and (ii) procedures guaranteeing the rights of defence of the person concerned must be laid down in national law.

44. The first condition appears to me, in principle, to be met, in so far as it is apparent from the order for reference that the courts having jurisdiction do indeed have full access to the confidential information relating to the person concerned. However, mention must be made of the restrictions to which those courts are subject as regards the use of that information.

45. The issue raised by the referring court in its first and second questions is rather focused on the assessment of the second condition.

46. As regards that condition, the wording of Article 23(1)(b) of Directive 2013/32 in mandatory terms makes clear that Member States are required to establish in national law procedures guaranteeing that the rights of defence of the applicant for international protection are respected. In that regard, the access to confidential information granted to the individual’s adviser, who has undergone a security check, as provided for in the final subparagraph of Article 23(1) of that directive, is just one example of the procedural rules that can be implemented by Member States.

47. It is thus clear from the final subparagraph of Article 23(1) of Directive 2013/32 and the use of the phrase ‘in particular’ that the EU legislature decided not to determine fully the procedures to be implemented with a view to guaranteeing that the rights of defence of the person concerned are respected where a decision on international protection is taken on the basis of confidential information, and that, on the contrary, it opted to afford Member States a degree of discretion in such matters.

48. Since Directive 2013/32 does not specify how Member States are to ensure that the rights of defence of the person concerned are respected where the right of access to that person’s file is restricted pursuant to the second subparagraph of Article 23(1) of that directive, the specific arrangements for implementing the procedures established to that end are a matter for the national legal order of each Member State, pursuant to the principle of the procedural autonomy of the Member States, once provided, however, that they are not less favourable than those governing similar domestic situations (principle of equivalence) and do not make it excessively difficult or impossible in practice to exercise the rights conferred by the EU legal order (principle of effectiveness). ( )

49. Furthermore, it follows from the case-law of the Court that the right to good administration, enshrined in Article 41 of the Charter, reflects a general principle of EU law, which is applicable to Member States when they are implementing that law. ( ) Accordingly, the Court may answer the questions referred for a preliminary ruling in this case in the light of that general principle of EU law, pursuant to which the right to good administration encompasses the obligation of the administration to give reasons for its decisions. ( )

50. The Member States are also required, when they implement EU law, to ensure compliance with the right to an effective remedy enshrined in the first paragraph of Article 47 of the Charter, a provision which constitutes a reaffirmation of the principle of effective judicial protection. ( )

51. While there is nothing in the information before the Court to suggest that the principle of equivalence might have been infringed in the present case, the situation is not the same, in my view, as regards the principle of effectiveness and the rights to good administration and to an effective judicial remedy.

52. It is important to point out, in that regard, that the principle of effectiveness means that the Member States are responsible for ensuring that the rights conferred by EU law are effectively protected in each case and, in particular, for ensuring compliance, first, with the principle that the addressees of decisions that significantly affect their interests must be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision and, second, with the right of any person to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law, as enshrined in the second paragraph of Article 47 of the Charter. ( )

53. In that regard, it is important to bear in mind that the principle of equality of arms – which is an integral part of the principle of effective judicial protection of the rights that individuals derive from EU law, enshrined in that provision, in that it is a corollary, like, in particular, the principle audi alteram partem, of the very concept of a fair trial – implies an obligation to offer each party a reasonable opportunity to present its case in conditions that do not place it in a clearly less advantageous position by comparison with its opponent. ( )

54. It follows, in my view, from the foregoing that, in order to be able to exercise effectively the rights of defence guaranteed him or her expressly under Article 23(1)(b) of Directive 2013/32, the person concerned must, at the very least, have at his or her disposal the key elements of the information identifying him or her as a danger to national security and constituting the basis of a decision to withdraw or to refuse to grant international protection. It is in that way that the rights to good administration and to an effective remedy are reconciled with the need to ensure the confidentiality of the information and the evidence of a danger to national security.

55. On the basis of the information made available to the Court, it is my view that Hungarian law does not provide a sufficient guarantee of the procedural rights that must be enjoyed by a person who is the subject of a decision withdrawing or refusing to grant international protection. Indeed, a system in which such procedural rights are deemed to be guaranteed by the mere fact that the court conducting the judicial review of an administrative decision based on confidential or classified information can consult the file held by specialist national bodies containing such information, without it being guaranteed that the person concerned or his or her adviser can acquaint themselves with the information in question or, at the very least, the key elements of that information, and without them being able to use that information in the administrative proceedings or subsequently, as the case may be, the judicial proceedings, does not appear to me to be consistent with the principles which I have just set out.

56. While it is admittedly true that an application can be made by the person concerned to the specialist national bodies requesting that they communicate to him or her the information demonstrating the existence of a danger to national security, the Hungarian legislation in no way guarantees that, if that application is rejected, ( ) the person concerned or his or her representative will be able to acquaint himself or herself with, at the very least, the key elements of the information substantiating the existence of such a danger.

57. With a view to weighing up the rights to good administration and to an effective remedy, on the one hand, against the need to ensure the protection of national security, on the other, useful guidance can in my view be found in particular in the judgment of 4 June 2013, ZZ. ( ) It follows from that judgment that, with a view to ensuring that the adversarial principle is complied with, in order to enable the person concerned to contest the grounds on which the decision in question is based and, therefore, to put forward an effective defence, he or she must be informed, in any event, of the key elements of the grounds on which the decision taken against him or her is based. ( )

58. The Court thus held in that judgment, with regard to a measure restricting the freedom of movement and of residence of a citizen of the European Union on public security grounds, that ‘Articles 30(2) and 31 of [Directive 2004/38/EC ( )], read in the light of Article 47 of the Charter, must be interpreted as requiring the national court with jurisdiction to ensure that the failure by the competent national authority to disclose to the person concerned, precisely and in full, the grounds on which a decision taken under Article 27 of that directive is based and to disclose the related evidence to him is limited to that which is strictly necessary, and that he is informed, in any event, of the essence of those grounds in a manner which takes due account of the necessary confidentiality of the evidence’. ( )

59. The need to reconcile legitimate considerations relating to national security, on the one hand, with the requirement to guarantee that the procedural rights of the person concerned, such as the right to be heard and the adversarial principle, are sufficiently respected, on the other, cannot, in my view, vary depending on the legal status of the person who is alleged to undermine national security. ( ) I therefore suggest that the Court hold that such requirements must be weighed up in the context of a decision withdrawing or refusing to grant international protection, and that effect must be given to that weighing up process, specifically, by notifying the applicant for that protection of the key elements of the information indicating that he or she constitutes a danger to national security and therefore forming the basis of that decision.

60. Since the purpose of the notification of the key elements of that information is to allow the person concerned to contest the grounds forming the basis of the decision withdrawing or refusing to grant international protection, that person must thus be aware of the main facts and conduct attributed to him or her.

61. It is, however, important to note that, in its judgment of 4 June 2013, ZZ, ( ) the Court pointed to the particular nature of the evidence, which may need to be kept confidential. According to the Court, ‘in certain cases, disclosure of that evidence is liable to compromise State security in a direct and specific manner, in that it may, in particular, endanger the life, health or freedom of persons or reveal the methods of investigation specifically used by the national security authorities and thus seriously impede, or even prevent, future performance of the tasks of those authorities’. ( )

62. Finally, I would point out that the Hungarian legislation appears to me, in any event, to be incompatible with the obligation to guarantee the rights of defence of the person concerned, an obligation which stems from Article 23(1)(b) of Directive 2013/32, in so far as the information of which that person might be aware could not, pursuant to that legislation, be used for his or her defence in the administrative proceedings or in the judicial proceedings.

63. In the light of the foregoing, I propose that the Court answer the first and second questions to the effect that Article 14(4)(a) and Article 17(1)(d) of Directive 2011/95 and Article 23(1)(b) of Directive 2013/32, read in conjunction with Article 47 of the Charter and in the light of the general principle of EU law relating to the right to good administration, must be interpreted as precluding national legislation which, first, does not allow a person or his or her legal representative, where that person is the subject of a decision withdrawing or refusing international protection, based on the fact that he or she constitutes a danger to national security, to know, at the very least and systematically, the essence of the information forming the basis of such a decision and, second and in any event, does not permit that person or his or her legal representative to use such information in the context of the administrative proceedings and subsequently, as the case may be, the judicial proceedings.

64. The key elements of the information that must be notified to a person who is the subject of a decision withdrawing or refusing to grant international protection, on the ground that he or she constitutes a danger to national security, must enable that person to learn the main facts and conduct attributed to him or her, whilst taking due account of the need to protect the confidentiality of the evidence.

B. The third and fourth questions referred for a preliminary ruling

65. By its third and fourth questions, the referring court asks, in essence, whether Directives 2011/95 and 2013/32 must be interpreted as precluding national legislation pursuant to which the determining authority is obliged to reject an application for international protection or to withdraw protection previously granted where bodies with a specialist role in national security matters, which are not subject to the rules laid down in those directives, have found, in a non-reasoned opinion, that the person concerned constitutes a danger to national security.

66. In the present case, it is apparent from the account of the facts that, in its decision, the determining authority withdrew the refugee status held by GM and then refused to grant him subsidiary protection, basing its decision on a non-reasoned opinion given by bodies with a specialist role in national security matters.

67. In so far as the Hungarian Government argues that the role assigned to such bodies falls exclusively within the competences of the Member States, under Articles 72 and 73 TFEU, it must be recalled that those provisions cannot be interpreted as allowing Member States not to apply provisions of EU law, based on no more than reliance on the responsibilities incumbent upon them with regard to the maintenance of law and order and the safeguarding of internal security. ( )

68. As the Hungarian Government itself acknowledges in its observations, the specialist bodies that examine potential threats to national security do not rule on the question of the need for international protection. According to that government, the mission of those bodies is to determine whether the person concerned staying in the country entails a danger to the security of the State in question. The assessment of that situation with reference to the criteria applied in relation to the grant of international protection and its use as evidence are, in turn, obligations incumbent on the authority competent for granting such protection.

69. That recognition of a separation between the powers enjoyed by the determining authority and those held by the specialist national bodies is, however, significantly restricted under the Hungarian procedure for the grant or withdrawal of international protection: that authority cannot depart from the opinion issued by the specialist bodies as regards the existence of a danger to national security and must, as an automatic consequence of a finding to that effect, withdraw or refuse to grant international protection. The authority cannot, in such circumstances, acquaint itself with the information on which that opinion is based and will therefore be unable to give reasons for its decision beyond a mere reference to the existence of that danger.

70. It is my view that such a procedure runs counter to two sets of rules set out in Directives 2011/95 and 2013/32. First, the determining authority must be able to enjoy full and complete powers as regards the evaluation of the need to grant or to withdraw international protection. Second, and the two points are linked, that authority must give reasons for its decision in fact and in law.

71. With regard to the role played by the determining authority, it is clear from Article 4(1) of Directive 2013/32 that Member States are to designate for all procedures a determining authority which will be responsible for an appropriate examination of applications in accordance with that directive. Member States are also subject to various obligations concerning the means that must be provided to that authority. Although Article 4(2) of the directive does provide that another authority may be responsible, it must be observed that the situations referred to in that provision bear no relation to a decision such as that at issue in the main proceedings.

72. The role played by the determining authority as regards both the examination of an application for international protection and the withdrawal of protection previously granted is explicitly stated on several occasions, in particular in Articles 10 and 45 of Directive 2013/32.

73. Thus, Article 10 of that directive lays down the requirements for the examination of applications. Under Article 10(2) of the directive, ‘when examining applications for international protection, the determining authority shall first determine whether the applicants qualify as refugees and, if not, determine whether the applicants are eligible for subsidiary protection’. Pursuant to paragraph 3 of that article, ‘Member States shall ensure that decisions by the determining authority on applications for international protection are taken after an appropriate examination’. To that end, Member States must ensure inter alia that ‘applications are examined and decisions are taken individually, objectively and impartially’ (Article 10(3)(a)) and that ‘precise and up-to-date information is obtained from various sources’ (Article 10(3)(b)). This echoes the requirement set out in Article 4(3) of Directive 2011/95, according to which every application for international protection must be subject to an ‘assessment … on an individual basis’, taking into account, inter alia, each applicant’s particular circumstances.

74. In addition, with regard to the procedures for the withdrawal of international protection, Article 45(1) of Directive 2013/32 provides that Member States are to ensure that, where the competent authority is considering withdrawing international protection from a third-country national or stateless person, the person concerned enjoys procedural guarantees, namely ‘to be informed in writing that the competent authority is reconsidering his or her qualification as a beneficiary of international protection and the reasons for such a reconsideration’ (Article 45(1)(a)) and ‘to be given the opportunity to submit, in a personal interview …, reasons as to why his or her international protection should not be withdrawn’ (Article 45(1)(b)).

75. In order to guarantee the rights of defence of the applicant for international protection, the competent authority must state reasons for its decisions. A requirement to that effect is inter alia stipulated in Article 11(2) of Directive 2013/32, under which ‘Member States shall … ensure that, where an application is rejected with regard to refugee status and/or subsidiary protection status, the reasons in fact and in law are stated in the decision and information on how to challenge a negative decision is given in writing’. The same requirement appears in Article 45(3) of that directive, which provides that ‘Member States shall ensure that the decision of the competent authority to withdraw international protection is given in writing’ and that ‘the reasons in fact and in law shall be stated in the decision’.

76. The Court has already had occasion to point to the importance of the role conferred by EU law on the determining authority, observing that it follows from Directive 2013/32 that the examination of the application for international protection by an administrative or quasi-judicial body with specific resources and specialised staff in this area is a vital stage of the common procedures established by that directive. ( )

77. Similarly, the Court has held that the determining authority is responsible for carrying out an appropriate examination of applications, at the end of which it will take a decision regarding them, and that it is, therefore, for such authorities alone to carry out, acting under the supervision of the courts, the assessment of the facts and circumstances laid down in Article 4 of Directive 2011/95, an assessment which cannot be limited to restating the conclusions of an expert’s report. It follows that that authority cannot base its decisions solely on the conclusions of such a report and that it cannot, a fortiori, be bound by those conclusions when assessing each individual situation. ( )

78. The content of that assessment, as part of the consideration of grounds for exclusion, has also been clarified by the case-law of the Court, from which it follows, inter alia, that, for a ground for exclusion to apply, the determining authority must, for each individual case, conduct an assessment of the specific facts brought to its attention with a view to determining whether there are serious reasons for considering that the person in question falls within the scope of that ground for exclusion. ( )

79. The mandatory and automatic nature of the account taken by the determining authority of the non-reasoned opinions that are issued by specialist national bodies is, in my view, incompatible with the procedural guarantees which I have just set out. In so far as, first, that authority is not aware of the information, not even simply the essence thereof, which substantiates the existence of a danger to national security and, second, where it cannot depart from those opinions, the authority is in reality deprived of the power to assess, individually and fully, the circumstances of the person concerned with a view to determining whether there are serious reasons for considering that that person falls within the scope of a ground for exclusion.

80. The end result of those procedural arrangements is that the determining authority adopts a decision withdrawing or refusing to grant international protection without being in a position to give adequate reasons for its decision. This gives rise to a breach of the right to an effective remedy, which is to be enjoyed by applicants for international protection pursuant to Article 46(1) of Directive 2013/32.

81. I infer from the foregoing considerations that Article 4(3), Article 14(4)(a) and Article 17(1)(d) of Directive 2011/95, and Article 4(1) and (2), Article 10(2) and (3), Article 11(2), Article 45(1) and (3) and Article 46(1) of Directive 2013/32, read in conjunction with Article 47 of the Charter and in the light of the general principle of EU law relating to the right to good administration, must be interpreted as precluding national legislation pursuant to which the determining authority is obliged to reject an application for international protection or to withdraw protection previously granted where bodies with a specialist role in national security matters, which are not subject to the rules laid down in those directives, have found, in a non-reasoned opinion, that the person concerned constitutes a danger to national security.

C. The fifth question referred for a preliminary ruling

82. By its fifth question, the referring court asks, in essence, whether Article 17(1)(b) of Directive 2011/95 must be interpreted as precluding an applicant from being excluded from being eligible for subsidiary protection on the basis of a criminal conviction which was already known to the authorities which had previously had to rule on the grant of international protection to the person concerned.

83. I note that, according to the request for a preliminary ruling, in order to refuse GM the benefit of subsidiary protection, the competent authority relied on a criminal conviction imposed on him on 6 June 2002, which became final 18 years ago, for an offence that it classified as ‘serious’. The sentence imposed was served in 2004.

84. Article 17(1)(b) of Directive 2011/95 provides that a third-country national is excluded from being eligible for subsidiary protection where there are serious reasons for considering that he or she has committed a serious crime.

85. The Court has already stated that the scope of the ground for exclusion laid down in that provision is broader than that of the ground for exclusion from refugee status laid down in Article 12(2)(b) of that directive. ( ) While the ground for exclusion from refugee status laid down in the latter provision refers to a serious non-political crime outside the country of refuge prior to the admission of the person concerned as a refugee, the ground for exclusion from subsidiary protection laid down in Article 17(1)(b) of the directive refers more generally to a serious crime and is therefore limited neither territorially nor temporally, nor as to the nature of the crimes at issue. ( )

86. It is true that that provision sets out a ground for exclusion which constitutes an exception to the general rule laid down in Article 18 of Directive 2011/95 and therefore calls for strict interpretation. ( ) However, restrictions as to the period during which the serious crime to which it refers must have been committed cannot be inferred either from the wording of that provision or from the purpose of that ground for exclusion from subsidiary protection. ( )

87. More generally, it does not follow from either Directive 2011/95 or Directive 2013/32 that the competent authorities are bound, following the withdrawal of refugee status, by assessments made previously on the applicability of grounds for exclusion in the initial procedure for examination of the application for international protection.

88. It is therefore my view that nothing precludes the determining authority from being able to take account, in the context of its assessment concerning an application for subsidiary protection, on the basis, as the case may be, of new information, of the ground for exclusion laid down in Article 17(1)(b) of Directive 2011/95, even though that ground for exclusion was already known to the authorities that previously ruled on the grant of international protection to the person concerned.

89. I would also point out that it may be inferred from the case-law of the Court that, like the criterion of the penalty provided for under the criminal legislation of the Member State concerned, ( ) the criterion of the penalty imposed is certainly of particular significance in assessing the seriousness of the crime justifying the exclusion from subsidiary protection under Article 17(1)(b) of Directive 2011/95. However, I note that it follows from that case-law that the competent authority cannot rely on the ground for exclusion laid down in that provision, which concerns the commission of a ‘serious crime’ by the applicant for international protection, until it has undertaken, for each individual case, an assessment of the specific facts within its knowledge with a view to determining whether there are serious reasons for considering that the acts committed by the person in question, who otherwise satisfies the qualifying conditions for the status applied for, fall within the scope of that ground for exclusion, since the assessment of the seriousness of the crime in question requires a full investigation into all the circumstances of the individual case concerned. ( )

V. Conclusion

90. In the light of all of the foregoing considerations, I propose that the questions referred by the Fővárosi Törvényszék (Budapest High Court, Hungary) for a preliminary ruling are answered as follows:

(1) Article 14(4)(a) and Article 17(1)(d) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, and Article 23(1)(b) of 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, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and in the light of the general principle of EU law relating to the right to good administration, must be interpreted as precluding national legislation which, first, does not allow a person or his or her adviser, where that person is the subject of a decision withdrawing or refusing to grant international protection, based on the fact that he or she constitutes a danger to national security, to know, at the very least and systematically, the essence of the information forming the basis of such a decision and, second and in any event, does not permit that person or his or her adviser to use such information in the context of the administrative proceedings and subsequently, as the case may be, the judicial proceedings.

The essence of the information that must be notified to a person who is the subject of a decision withdrawing or refusing to grant international protection, on the ground that he or she constitutes a danger to national security, must enable that person to learn the main facts and conduct attributed to him or her, whilst taking due account of the need to protect the confidentiality of the evidence.

(2) Article 4(3), Article 14(4)(a) and Article 17(1)(d) of Directive 2011/95 and Article 4(1) and (2), Article 10(2) and (3), Article 11(2), Article 45(1) and (3) and Article 46(1) of Directive 2013/32, read in conjunction with Article 47 of the Charter of Fundamental Rights and in the light of the general principle of EU law relating to the right to good administration, must be interpreted as precluding national legislation pursuant to which the determining authority is obliged to reject an application for international protection or to withdraw protection previously granted where bodies with a specialist role in national security matters, which are not subject to the rules laid down in those directives, have found, in a non-reasoned opinion, that the person concerned constitutes a danger to national security.

(3) Article 17(1)(b) of Directive 2011/95 must be interpreted as not precluding the determining authority from being able to take account, in the context of its assessment concerning an application for subsidiary protection, of the ground for exclusion laid down in that provision, even though that ground for exclusion was already known to the authorities that previously ruled on the grant of international protection to the person concerned.