ZZ v Secretary of State for the Home Department.
Date: 2013-06-04
38. That is not the case here. First, the question referred relates to the interpretation of Article 30(2) of Directive 2004/38, read in the light, in particular, of Article 47 of the Charter. Second, that question arises in the context of a genuine dispute relating to the legality of a decision refusing entry taken, pursuant to the directive, by the Secretary of State against ZZ. Furthermore, although it is for Member States to take the appropriate measures to ensure their internal and external security, the mere fact that a decision concerns State security cannot result in European Union law being inapplicable (see, to this effect, Case C‑387/05 Commission  v Italy  [2009] ECR I-11831, paragraph 45).
47. Article 31 of Directive 2004/38 obliges the Member States to lay down, in domestic law, the measures necessary to enable Union citizens and members of their families to have access to judicial and, where appropriate, administrative redress procedures to appeal against or seek review of any decision restricting their right to move and reside freely in the Member States on the grounds of public policy, public security or public health (see, to this effect, Case C-249/11 Byankov  [2012] ECR I-0000, paragraph 53). In accordance with Article 31(3), the redress procedures must include an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based.
50. It is in that context that it must be determined whether and to what extent Articles 30(2) and 31 of Directive 2004/38, the provisions of which must be interpreted in a manner which complies with the requirements flowing from Article 47 of the Charter, permit the grounds of a decision taken under Article 27 of the directive not to be disclosed precisely and in full.
53. According to the Court’s settled case-law, if the judicial review guaranteed by Article 47 of the Charter is to be effective, the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based, either by reading the decision itself or by requesting and obtaining notification of those reasons, without prejudice to the power of the court with jurisdiction to require the authority concerned to provide that information (Joined Cases C‑372/09 and C-373/09 Peñarroja Fa  [2011] ECR I‑1785, paragraph 63, and Case C-430/10 Gaydarov  [2011] ECR I-0000, paragraph 41), so as to make it possible for him to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his applying to the court with jurisdiction, and in order to put the latter fully in a position in which it may carry out the review of the lawfulness of the national decision in question (see, to this effect, Case 222/86 Heylens and Others  [1987] ECR 4097, paragraph 15, and Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission  [2008] ECR I‑6351, paragraph 337).
54. Admittedly, it may prove necessary, both in administrative proceedings and in judicial proceedings, not to disclose certain information to the person concerned, in particular in the light of overriding considerations connected with State security (see, to this effect, Kadi and Al Barakaat International Foundation  v Council and Commission , paragraph 342).
55. As regards judicial proceedings, the Court has already held that, having regard to the adversarial principle that forms part of the rights of the defence, which are referred to in Article 47 of the Charter, the parties to a case must have the right to examine all the documents or observations submitted to the court for the purpose of influencing its decision, and to comment on them (Case C-450/06 Varec  [2008] ECR I‑581, paragraph 45; Case C-89/08 P Commission  v Ireland and Others  [2009] ECR  I‑11245, paragraph 52; and Case C-472/11 Banif Plus Bank  [2013] ECR I-0000, paragraph 30; see also, as regards Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, the judgment of the European Court of Human Rights in Ruiz-Mateos v. Spain , 23 June 1993, § 63, Series A no. 262).
56. The fundamental right to an effective legal remedy would be infringed if a judicial decision were founded on facts and documents which the parties themselves, or one of them, have not had an opportunity to examine and on which they have therefore been unable to state their views ( Commission  v Ireland and Others , paragraph 52 and the case-law cited).
57. However, if, in exceptional cases, a national authority opposes precise and full disclosure to the person concerned of the grounds which constitute the basis of a decision taken under Article 27 of Directive 2004/38, by invoking reasons of State security, the court with jurisdiction in the Member State concerned must have at its disposal and apply techniques and rules of procedural law which accommodate, on the one hand, legitimate State security considerations regarding the nature and sources of the information taken into account in the adoption of such a decision and, on the other hand, the need to ensure sufficient compliance with the person’s procedural rights, such as the right to be heard and the adversarial principle (see, by analogy, Kadi and Al Barakaat International Foundation  v Council and Commission , paragraph 344).
61. Thus, the competent national authority has the task of proving, in accordance with the national procedural rules, that State security would in fact be compromised by precise and full disclosure to the person concerned of the grounds which constitute the basis of a decision taken under Article 27 of Directive 2004/38 and of the related evidence (see, by analogy, Case C-284/05 Commission  v Finland  [2009] ECR I‑11705, paragraphs 47 and 49). It follows that there is no presumption that the reasons invoked by a national authority exist and are valid.