The impact of article 47 CFREU on national caselaw between general principles and sectorial Application Jacek Chlebny, professor at the University of Łódź, Vice-president of the Supreme Administrative Court of Poland

Two examples Visa refusals – example of success Access to classified evidence – so far unresolved (work in progress)

Article 32(3) of the Visa Code Applicants who have been refused a visa shall have the right to appeal. Appeals shall be introduced against the Member State that has taken the final decision on the application for an extension and in accordance with the national law of that Member State. Member States shall provide applicants with information regarding the procedure to be followed in case of review, as specified in Annex VI.’

Review of visa refusals in Polish law Article 76(1) of the Law on Foreign Nationals of 12.12.2013 reads: ‘Refusal of a Schengen visa … by: (1)      a consul — may be challenged by a request for a review of the case by that authority; Article 5 of the Law on proceedings before the administrative courts of 30.08.2002 states: ‘The administrative courts shall not have jurisdiction in cases concerning: … (4)      visas issued by consuls, with the exception to the visa refusals to foreign spouses of nationals of other Member States of the European Union.

El Hassani - national procedure Mr El Hassani submitted an application for a Schengen visa to the Consul in Rabat in order to visit his wife and son who are Polish nationals. That application was refused by the consul Mr El Hassani submitted a request for review to the same consul who, again refused to grant that application on the ground of the lack of certainty as to his intention to leave Poland before the visa expired.

El Hassani - national procedure Mr El Hassani also argues that although his wife and son are Polish nationals the national legislation does not allow him to bring an appeal before an administrative court if the issue of a visa is refused, unlike the foreign spouses of nationals of other Member States of the European Union. the RAC dismissed the appeal holding that actions brought against a decision to refuse a Schengen visa by the consul does not fall within the jurisdiction of the administrative court. Furthermore, that court refused to refer a question to the Court of Justice for a preliminary ruling.

El Hassani – referral for a preliminary ruling by SAC ‘Must Article 32(3) of the Visa Code, having regard to recital 29 thereof and the first paragraph of Article 47 of the Charter, be interpreted as requiring the Member States to guarantee an effective remedy (appeal) before a court of law?’

Judgement of the General Court of 13 December 2017, Soufiane El Hassani, C-403/16, ECLI:EU:2017:960 The EU Visa Code read in the light of Article 47 of the Charter, must be interpreted as meaning that it requires Member States to provide for a judicial appeal against decisions refusing visas

Access to classified evidence

Equality of Arms all evidence admitted during the procedure available to the parties with a view to adversarial argument v. Kafka Trial

ECtHR – classified evidence Chahal v. United Kingdom, 15 November 1996,§§ 131 and 154 a reference to the „Canadian system” Al-Nashif v. Bulgaria, 20 June 2002, §§ 137–138, “there must be some form of adversarial proceedings, if need be through a special representative after a security clearance” ( § 137) Othman (Abu Qatada) v. United Kingdom, 17 January 2012, “Art. 13 of the Convention cannot be interpreted as placing an absolute bar on domestic courts receiving closed evidence, provided the applicant’s interests are protected at all times before those courts” (§ 219).

Court of Justice Article 47 of the Charter ZZ judgement 4.06.2013 there is no presumption that the reasons invoked by a national authority exist and are valid. national court must carry out an independent examination of all the matters of law and fact relied upon by the competent national authority and it must determine, in accordance with the national procedural rules, whether State security stands in the way of disclosure of classified evidence. judicial review must be carried out in a procedure which strikes an appropriate balance between the requirements flowing from State security and the requirements of the right to effective judicial protection „the person concerned is to be informed in any event, of the essence of those grounds in a manner which takes due account of the necessary confidentiality of the evidence”.

Procedural rights of the applicant were restricted in 2 ways: Regner v. the Czech Republic, application No. 35289/11, judgment of the Grand Chamber of 19.09. 2017 the case concerned an administrative decision on revoking the security clearance of a highprofile civil servant which had been essential for him to be able to carry out his public function. Procedural rights of the applicant were restricted in 2 ways: classified documents and information were not available either to him or to his lawyer, in so far as the decision revoking security clearance was based on those documents, the grounds for the decision were not disclosed to him.

ECtHR Regner v. the Czech Republic judgement of 19.09.2017 Having regard to the proceedings as a whole, the Court in the Regner Case came to the conclusion that the fair balance between the parties was not affected to such an extent as to impair the very essence of the applicant’s right to a fair trial. § 161 Regner v. the Czech Republic

ECtHR Regner v. the Czech Republic judgement of 19.09.2017 The divergence between the ZZ judgement and the Regner judgement ? Does the Human Rights Court give guidance about how low the standards should be? In the dissenting opinions to the Regner judgment various arguments are raised,including, inter alia, that the Grand Chamber judgment failed to match the progress in this area that can be seen in the case-law of the Court of Justice of the European Union, or in the case-law of certain domestic courts

A fair balance between the parties ? mechanism in the national law that could at least partly counterbalance the lack of access to the classified evidence. A fair balance between the parties ?

Questions in relation to access to the classified evidence that substantiates that decision what is the “ essence of the grounds” ? special requirements for judges (security clearance) and a vetting process ? an individual “need to know” clearance in order to allow a party or his/her lawyer access to classified evidence? special advocates that have access to classified evidence and a special tribunal set up for cases in which secrecy of the evidence has to be protected ?

Thank you