Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
Mr A has a dual Algerian and French citizenship. He also is family member of a EU citizen.
When he tried to enter the territory of a EU Member State an entry refusal decision was taken on grounds of public security. The information the entry refusal decision was based on was not disclosed to him. The authorities claim that it is classified and according to the national law it cannot be revealed nor to him neither to his lawyer.
Mr A argues that his right to the effective remedy (Article 47 of the Charter) is infringed as he is not able to effectively challenge the entry refusal decision. He argued that the Charter is applicable as the decision was based on EU law (Directive 2004/38 on the right of the EU citizens to move and reside freely within the territory of the Member States).
The authorities claim that EU law is not applicable in this case as Article 4(2) TEU and Article 346(1)(a) TFEU state that State security remains the responsibility of solely the Member States.
Is the Charter applicable in this case?
In its judgment C-300/11, ZZ v. Secretary of State for the Home Department, the Court held that “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”.
The Court also referred to its previous judgment in case C‑387/05 Commission v Italy where it held that "it cannot be inferred that the Treaty contains an inherent general exception excluding all measures taken for reasons of public security from the scope of Community law. The recognition of the existence of such an exception, regardless of the specific requirements laid down by the Treaty, would be liable to impair the binding nature of Community law and its uniform application."
In ZZ the Court interpreted provisions of the Directive 2004/38 in the light of Article 47 of the Charter. It stated that in described situation the person concerned must be informed, in any event, of the essence of the grounds on which a decision refusing entry taken is based, as the necessary protection of State security cannot have the effect of denying the person concerned his right to be heard.
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