Protect us: Non-disclosure versus the rights of the defence in cases concerning the withdrawal of access to EU confidential information

The Court of Justice holds in Protectus that the withdrawal of a (legal) person’s authority to access EU classified information (EUCI) falls within the scope of Article 47 of the Charter of Fundamental Rights of the EU. This provision guarantees the rights of the defence. Limitations of these rights as a result of non-disclosure of information underlying a withdrawal decision, may be justified. However, such limitations must be strictly necessary, for example to protect national security. Moreover, such limitations must be counterbalanced by the judicial review by the national court of the confidential information and by the disclosure to the person concerned of the essence of the grounds of the decision. If the national court finds that non-disclosure of confidential information is not justified, Article 47 of the Charter does not require the court to disclose this information of its own motion to the person concerned. It may leave this to the national authorities. However, if they refuse to disclose this information, the national court must exclude it from its examination and base its judgment only on the open grounds and evidence. This contribution reflects on the Court’s ruling in Protectus in the light of its earlier case law and the case law of the European Court of Human Rights.