Request for a preliminary ruling from the Najvyšší správny súd (Slovak Republic) lodged on 22 March 2023 – BONUL s.r.o. v Výbor Národnej rady Slovenskej republiky na preskúmavanie rozhodnutí Národného bezpečnostného úradu
(Case C-182/23, BONUL)
Language of the case: Slovak
Referring court
Najvyšší správny súd (Slovak Republic)
Parties to the main proceedings
Applicant: BONUL s.r.o.
Defendant: Výbor Národnej rady Slovenskej republiky na preskúmavanie rozhodnutí Národného bezpečnostného úradu
Questions referred
Should Article 51(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) 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)? 1
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
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,
the legal person concerned does not have access to the national security authority’s file or to the individual documents containing classified information which led that authority to request justification of the revocation/withdrawal of the clearance and certificate,
access to that file 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,
the court which assesses the legality of the decision referred to in Question 1, however, has full access to those files and documents?
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?
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?
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1 2013/488/EU: Council Decision of 23 September 2013 on the security rules for protecting EU classified information (OJ 2013 L 274, p. 1).