{ "attribution": { "source": "legal.exploreworldai.com", "canonical": "https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-26-25", "cite_as": "NovaCopilot, legal.exploreworldai.com (https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-26-25)", "license": "https://legal.exploreworldai.com/revision", "version": "legal-2026-10-20", "fingerprint": "ewai:eu:cf0e00", "proof": "sha256:1ac5528d616da092448a6ea4c3516b9fbbec423c713bc57006f4b2ddd261bb3a", "jurisdiction": "eu", "lang": "en", "publisher": "NovaCopilot by ExploreWorld Legal", "terms": "https://legal.exploreworldai.com/om" }, "brand_source": "Source: NovaCopilot", "item": { "schema_version": "1.0.0", "id": "eu:c-26-25", "jurisdiction": "eu", "lang": "en", "brand_source": "Source: NovaCopilot", "brand": { "product": "NovaCopilot", "platform": "ExploreWorldAI", "infrastructure": "ExploreWorld Legal", "infrastructure_url": "legal.exploreworldai.com", "legal_entity": "Valkiv Ventures AB", "permanent_url": "https://legal.exploreworldai.com/novacopilot", "source": "Source: NovaCopilot", "powered_by": "Powered by NovaCopilot", "license": "https://legal.exploreworldai.com/licensvillkor" }, "sections": [ { "title": "Provisional text", "paragraphs": [] }, { "title": "JUDGMENT OF THE COURT (Third Chamber)", "paragraphs": [] }, { "title": "16 July 2026 ( * )", "paragraphs": [ "para_4" ] }, { "title": "In Case C‑26/25 [Bukla], ( i )", "paragraphs": [ "para_6" ] }, { "title": "PQ", "paragraphs": [ "para_8", "para_9", "para_10", "para_11", "para_12", "para_13", "para_14", "para_15", "para_16", "para_17", "para_18", "para_19", "para_20", "para_21", "para_22" ] }, { "title": "Judgment", "paragraphs": [ "para_24", "para_25" ] }, { "title": "Legal context", "paragraphs": [] }, { "title": "European Union law", "paragraphs": [] }, { "title": "The FEU Treaty", "paragraphs": [] }, { "title": "3         Article 20 TFEU provides:", "paragraphs": [ "para_30", "para_31" ] }, { "title": "(a)      the right to move and reside freely within the territory of the Member States;", "paragraphs": [ "para_33", "para_34", "para_35", "para_36" ] }, { "title": "Directive 2008/115", "paragraphs": [] }, { "title": "4         Recitals 6 and 24 of Directive 2008/115 are worded as follows:", "paragraphs": [ "para_39", "para_40", "para_41" ] }, { "title": "5         Article 1 of that directive provides:", "paragraphs": [ "para_43" ] }, { "title": "6         Article 2(1) of that directive provides:", "paragraphs": [ "para_45" ] }, { "title": "7         Under point 2 of Article 3 of that directive:", "paragraphs": [ "para_47", "para_48", "para_49" ] }, { "title": "8         Article 5 of Directive 2008/115 provides:", "paragraphs": [ "para_51" ] }, { "title": "(a)      the best interests of the child;", "paragraphs": [] }, { "title": "(b)      family life;", "paragraphs": [ "para_54", "para_55" ] }, { "title": "9         Article 6(1) of that directive provides:", "paragraphs": [ "para_57", "para_58", "para_59" ] }, { "title": "11       Article 12(1) of that directive provides:", "paragraphs": [ "para_61", "para_62" ] }, { "title": "12       Article 13(1) of Directive 2008/115 provides:", "paragraphs": [ "para_64" ] }, { "title": "Hungarian law", "paragraphs": [] }, { "title": "Law No II of 2007", "paragraphs": [ "para_67", "para_68", "para_69", "para_70", "para_71", "para_72", "para_73", "para_74", "para_75", "para_76" ] }, { "title": "14       Paragraph 45(1) of that law provides:", "paragraphs": [ "para_78" ] }, { "title": "(a)      the duration of the stay;", "paragraphs": [ "para_80", "para_81" ] }, { "title": "15       Under subparagraph 1 of Paragraph 87/A of that law:", "paragraphs": [ "para_83", "para_84" ] }, { "title": "16       According to subparagraph 4 of Paragraph 87/B of that law:", "paragraphs": [ "para_86" ] }, { "title": "Government Decree No 114 of 2007", "paragraphs": [ "para_88", "para_89" ] }, { "title": "Law No CLV of 2009", "paragraphs": [ "para_91", "para_92", "para_93", "para_94" ] }, { "title": "20       Paragraph 12(1) of that law provides:", "paragraphs": [ "para_96" ] }, { "title": "The dispute in the main proceedings and the questions referred for a preliminary ruling", "paragraphs": [ "para_98", "para_99", "para_100", "para_101", "para_102", "para_103", "para_104", "para_105", "para_106", "para_107", "para_108", "para_109", "para_110", "para_111", "para_112", "para_113", "para_114", "para_115", "para_116", "para_117", "para_118", "para_119", "para_120", "para_121", "para_122", "para_123", "para_124", "para_125", "para_126", "para_127", "para_128", "para_129", "para_130", "para_131", "para_132", "para_133", "para_134", "para_135", "para_136" ] }, { "title": "Consideration of the questions referred", "paragraphs": [ "para_138", "para_139", "para_140", "para_141", "para_142", "para_143", "para_144", "para_145", "para_146", "para_147", "para_148", "para_149", "para_150" ] }, { "title": "The first question", "paragraphs": [ "para_152", "para_153", "para_154", "para_155", "para_156", "para_157", "para_158", "para_159", "para_160", "para_161", "para_162", "para_163", "para_164", "para_165", "para_166", "para_167", "para_168", "para_169", "para_170", "para_171", "para_172", "para_173" ] }, { "title": "The fifth question", "paragraphs": [ "para_175", "para_176", "para_177", "para_178", "para_179", "para_180", "para_181", "para_182", "para_183", "para_184", "para_185", "para_186", "para_187", "para_188", "para_189", "para_190", "para_191", "para_192", "para_193", "para_194", "para_195" ] }, { "title": "The second question", "paragraphs": [ "para_197", "para_198", "para_199", "para_200", "para_201", "para_202", "para_203", "para_204", "para_205", "para_206", "para_207", "para_208", "para_209", "para_210", "para_211", "para_212", "para_213" ] }, { "title": "The third, fourth, sixth and seventh questions", "paragraphs": [ "para_215", "para_216", "para_217", "para_218", "para_219", "para_220", "para_221", "para_222", "para_223", "para_224", "para_225", "para_226", "para_227", "para_228", "para_229", "para_230", "para_231", "para_232", "para_233", "para_234", "para_235", "para_236", "para_237", "para_238" ] }, { "title": "The ninth question", "paragraphs": [ "para_240", "para_241", "para_242", "para_243", "para_244", "para_245", "para_246", "para_247", "para_248", "para_249", "para_250", "para_251" ] }, { "title": "The eighth question", "paragraphs": [] }, { "title": "Admissibility", "paragraphs": [ "para_254", "para_255", "para_256", "para_257", "para_258" ] }, { "title": "Substance", "paragraphs": [ "para_260", "para_261", "para_262", "para_263", "para_264", "para_265", "para_266", "para_267", "para_268", "para_269", "para_270", "para_271" ] }, { "title": "Costs", "paragraphs": [ "para_273" ] }, { "title": "On those grounds, the Court (Third Chamber) hereby rules:", "paragraphs": [ "para_275", "para_276", "para_277", "para_278", "para_279", "para_280", "para_281", "para_282", "para_283", "para_284", "para_285", "para_286", "para_287" ] }, { "title": "6.       The principle of the primacy of EU law and Article 267 TFEU", "paragraphs": [ "para_289", "para_290", "para_291", "para_292" ] } ], "paragraphs": [ { "text": "Provisional text", "paragraph_id": "para_1" }, { "text": "JUDGMENT OF THE COURT (Third Chamber)", "paragraph_id": "para_2" }, { "text": "16 July 2026 ( * )", "paragraph_id": "para_3" }, { "text": "( Reference for a preliminary ruling – Citizenship of the European Union – Article 20 TFEU – Family member of a Union citizen who has never exercised his or her right of freedom of movement – Area of freedom, security and justice – Border controls, asylum and immigration – Directive 2008/115/EC – Re …", "paragraph_id": "para_4" }, { "text": "In Case C‑26/25 [Bukla], ( i )", "paragraph_id": "para_5" }, { "text": "REQUEST for a preliminary ruling under Article 267 TFEU from the Szegedi Törvényszék (Szeged High Court, Hungary), made by decision of 17 January 2025, received at the Court on 17 January 2025, in the proceedings", "paragraph_id": "para_6" }, { "text": "PQ", "paragraph_id": "para_7" }, { "text": "v", "paragraph_id": "para_8" }, { "text": "Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság,", "paragraph_id": "para_9" }, { "text": "Alkotmányvédelmi Hivatal,", "paragraph_id": "para_10" }, { "text": "THE COURT (Third Chamber),", "paragraph_id": "para_11" }, { "text": "composed of C. Lycourgos (Rapporteur), President of the Chamber, O. Spineanu‑Matei, S. Rodin, N. Piçarra and N. Fenger, Judges,", "paragraph_id": "para_12" }, { "text": "Advocate General: D. Spielmann,", "paragraph_id": "para_13" }, { "text": "Registrar: A. Calot Escobar,", "paragraph_id": "para_14" }, { "text": "having regard to the written procedure,", "paragraph_id": "para_15" }, { "text": "after considering the observations submitted on behalf of:", "paragraph_id": "para_16" }, { "text": "–        PQ, by T. Kovács, A. Németh and B. Pohárnok, ügyvédek,", "paragraph_id": "para_17" }, { "text": "–        the Hungarian Government, by Zs. Biró-Tóth and M.Z. Fehér, acting as Agents,", "paragraph_id": "para_18" }, { "text": "–        the German Government, by J. Möller and R. Kanitz, acting as Agents,", "paragraph_id": "para_19" }, { "text": "–        the European Commission, by F. Blanc, A. Katsimerou, E. Montaguti, Zs. Teleki and P.J.O. Van Nuffel, acting as Agents,", "paragraph_id": "para_20" }, { "text": "having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,", "paragraph_id": "para_21" }, { "text": "gives the following", "paragraph_id": "para_22" }, { "text": "Judgment", "paragraph_id": "para_23" }, { "text": "1         This request for a preliminary ruling concerns the interpretation of Article 4(3) and Article 19(1) TEU, Articles 20 and 267 TFEU, Articles 1, 5, 7, 24, 41, 47, 51 and 52 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Articles 1, 5 and 11 to 13 of Directive …", "paragraph_id": "para_24" }, { "text": "2         The request has been made in proceedings between PQ, on the one hand, and the Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság (National Directorate-General for Immigration Police, Regional Directorate of the Immigration Police, Dél-Alföld, Hungary) (‘the Regional …", "paragraph_id": "para_25" }, { "text": "Legal context", "paragraph_id": "para_26" }, { "text": "European Union law", "paragraph_id": "para_27" }, { "text": "The FEU Treaty", "paragraph_id": "para_28" }, { "text": "3         Article 20 TFEU provides:", "paragraph_id": "para_29" }, { "text": "‘1.      Citizenship of the [European] Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.", "paragraph_id": "para_30" }, { "text": "2.      Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:", "paragraph_id": "para_31" }, { "text": "(a)      the right to move and reside freely within the territory of the Member States;", "paragraph_id": "para_32" }, { "text": "(b)      the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;", "paragraph_id": "para_33" }, { "text": "(c)      the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;", "paragraph_id": "para_34" }, { "text": "(d)      the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.", "paragraph_id": "para_35" }, { "text": "These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.’", "paragraph_id": "para_36" }, { "text": "Directive 2008/115", "paragraph_id": "para_37" }, { "text": "4         Recitals 6 and 24 of Directive 2008/115 are worded as follows:", "paragraph_id": "para_38" }, { "text": "‘(6)      Member States should ensure that the ending of illegal stay of third-country nationals is carried out through a fair and transparent procedure. According to general principles of EU law, decisions taken under this Directive should be adopted on a case-by-case basis and based on objective c …", "paragraph_id": "para_39" }, { "text": "…", "paragraph_id": "para_40" }, { "text": "(24)      This Directive respects the fundamental rights and observes the principles recognised in particular by the [Charter].’", "paragraph_id": "para_41" }, { "text": "5         Article 1 of that directive provides:", "paragraph_id": "para_42" }, { "text": "‘This Directive sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations.’", "paragraph_id": "para_43" }, { "text": "6         Article 2(1) of that directive provides:", "paragraph_id": "para_44" }, { "text": "‘This Directive applies to third-country nationals staying illegally on the territory of a Member State.’", "paragraph_id": "para_45" }, { "text": "7         Under point 2 of Article 3 of that directive:", "paragraph_id": "para_46" }, { "text": "‘For the purpose of this Directive the following definitions shall apply:", "paragraph_id": "para_47" }, { "text": "…", "paragraph_id": "para_48" }, { "text": "(2)      “illegal stay” means the presence on the territory of a Member State, of a third-country national who does not fulfil, or no longer fulfils the conditions of entry as set out in Article [6] of [Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union …", "paragraph_id": "para_49" }, { "text": "8         Article 5 of Directive 2008/115 provides:", "paragraph_id": "para_50" }, { "text": "‘When implementing this Directive, Member States shall take due account of:", "paragraph_id": "para_51" }, { "text": "(a)      the best interests of the child;", "paragraph_id": "para_52" }, { "text": "(b)      family life;", "paragraph_id": "para_53" }, { "text": "(c)      the state of health of the third-country national concerned,", "paragraph_id": "para_54" }, { "text": "and respect the principle of non-refoulement.’", "paragraph_id": "para_55" }, { "text": "9         Article 6(1) of that directive provides:", "paragraph_id": "para_56" }, { "text": "‘Member States shall issue a return decision to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5.", "paragraph_id": "para_57" }, { "text": "…’", "paragraph_id": "para_58" }, { "text": "10       Article 11 of that directive lays down the rules governing entry-ban decisions.", "paragraph_id": "para_59" }, { "text": "11       Article 12(1) of that directive provides:", "paragraph_id": "para_60" }, { "text": "‘Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies.", "paragraph_id": "para_61" }, { "text": "The information on reasons in fact may be limited where national law allows for the right to information to be restricted, in particular in order to safeguard national security, defence, public security and for the prevention, investigation, detection and prosecution of criminal offences.’", "paragraph_id": "para_62" }, { "text": "12       Article 13(1) of Directive 2008/115 provides:", "paragraph_id": "para_63" }, { "text": "‘The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence.’", "paragraph_id": "para_64" }, { "text": "Hungarian law", "paragraph_id": "para_65" }, { "text": "Law No II of 2007", "paragraph_id": "para_66" }, { "text": "13       Paragraph 43 of the a harmadik országbeli állampolgárok beutazásáról és tartózkodásáról szóló 2007. évi II. törvény (Law No II of 2007 on the entry and stay of third-country nationals), of 5 January 2007 ( Magyar Közlöny 2007/1.), provides:", "paragraph_id": "para_67" }, { "text": "‘1.      The immigration police authority shall impose an independent ban on entry and stay in respect of a third-country national, residing at an unknown location or abroad,", "paragraph_id": "para_68" }, { "text": "…", "paragraph_id": "para_69" }, { "text": "(c)      whose entry and stay adversely affect or endanger national security, public security or public policy;", "paragraph_id": "para_70" }, { "text": "…", "paragraph_id": "para_71" }, { "text": "2.      Except as provided for in this Law, the immigration police authority shall, in accordance with the rules governing immigration policing, order the return of a third-country national", "paragraph_id": "para_72" }, { "text": "…", "paragraph_id": "para_73" }, { "text": "(d)      whose entry and stay adversely affect or endanger national security, public security or public policy;", "paragraph_id": "para_74" }, { "text": "…", "paragraph_id": "para_75" }, { "text": "3.      The decision to impose an independent ban on entry and stay on the ground referred to in subparagraph 1(c), and on return in accordance with the rules governing immigration policing on the ground referred to in subparagraph 2(d), may also be taken by the law enforcement agencies specified in …", "paragraph_id": "para_76" }, { "text": "14       Paragraph 45(1) of that law provides:", "paragraph_id": "para_77" }, { "text": "‘Before adopting a return decision in accordance with the rules governing immigration policing in respect of a third-country national who holds a residence permit granted on account of his or her family ties, the immigration police authority shall take into account the following aspects:", "paragraph_id": "para_78" }, { "text": "(a)      the duration of the stay;", "paragraph_id": "para_79" }, { "text": "(b)      the age and family situation of the third-country national and the possible consequences that the return measure concerning him or her will have for the members of his or her family;", "paragraph_id": "para_80" }, { "text": "(c)      the ties that the third-country national has with Hungary and the absence of connections with his or her country of origin.’", "paragraph_id": "para_81" }, { "text": "15       Under subparagraph 1 of Paragraph 87/A of that law:", "paragraph_id": "para_82" }, { "text": "‘For the purposes of proceedings governed by this Law, the Government shall designate, by means of a government decree issued for the implementation of this Law, a specialist national authority responsible for making decisions on specific matters.", "paragraph_id": "para_83" }, { "text": "…’", "paragraph_id": "para_84" }, { "text": "16       According to subparagraph 4 of Paragraph 87/B of that law:", "paragraph_id": "para_85" }, { "text": "‘The specialist national authority’s opinion is binding on the immigration police authority concerned with regard to technical matters.’", "paragraph_id": "para_86" }, { "text": "Government Decree No 114 of 2007", "paragraph_id": "para_87" }, { "text": "17       Paragraph 114(4)(a) of the a harmadik országbeli állampolgárok beutazásáról és tartózkodásáról szóló 2007. évi II. törvény végrehajtásáról szóló 114/2007. Korm. rendelet (Government Degree No 114 of 2007 implementing Law No II of 2007 on the entry and stay of third-country nationals) of 24 …", "paragraph_id": "para_88" }, { "text": "18       Under Paragraph 114(4b) of that decree, a return measure may also be ordered on a proposal from the investigating authority, the Constitutional Protection Office or the Counterterrorism Centre.", "paragraph_id": "para_89" }, { "text": "Law No CLV of 2009", "paragraph_id": "para_90" }, { "text": "19       Paragraph 11 of a minősített adat védelméről szóló 2009. évi CLV. törvény (Law No CLV of 2009 on the protection of classified information) of 29 December 2009 ( Magyar Közlöny 2009/194.) provides:", "paragraph_id": "para_91" }, { "text": "‘1.      Data subjects shall be entitled to acquaint themselves with their nationally classified personal data on the basis of an access authorisation issued by the relevant classifying authority and shall not require personal security clearance. Before acquainting themselves with nationally classified information, data subjects must make a written confidentiality declaration and comply with the provisions governing the protection of nationally classified information.", "paragraph_id": "para_92" }, { "text": "2.      On the request of the data subject, the classifying authority shall decide within 15 days whether to grant the access authorisation. The classifying authority shall refuse to grant the access authorisation if acquaintance with the information would undermine the public interest that justified its classification. The classifying authority shall state the reasons for refusing the access authorisation.", "paragraph_id": "para_93" }, { "text": "3.      Where the access authorisation is refused, the data subject may challenge that decision by seeking an administrative judicial review. …’", "paragraph_id": "para_94" }, { "text": "20       Paragraph 12(1) of that law provides:", "paragraph_id": "para_95" }, { "text": "‘The authority processing the classified information may deny the data subject the right to access his or her personal data if the public interest on which the categorisation is based would be compromised by the exercise of that right.’", "paragraph_id": "para_96" }, { "text": "The dispute in the main proceedings and the questions referred for a preliminary ruling", "paragraph_id": "para_97" }, { "text": "21       PQ, a third-country national, entered Hungary lawfully in June 2005 as a professional football player and has since then resided in the territory of that Member State. Most recently, he held a permanent residence card which was valid until 15 September 2020.", "paragraph_id": "para_98" }, { "text": "22       PQ has been living with his Hungarian partner since 2011. Two children of Hungarian nationality were born of that relationship in 2012 and 2021. PQ and his partner have joint parental authority over their children. He lives with them permanently and usually acts as their primary carer. His children have a close emotional bond and a relationship of dependency with PQ, who has looked after them consistently since they were born.", "paragraph_id": "para_99" }, { "text": "23       On 6 August 2020, PQ applied for a national settlement permit on account of his family situation.", "paragraph_id": "para_100" }, { "text": "24       By a non-reasoned opinion of 9 September 2020, the Constitutional Protection Office decided that PQ’s stay in Hungary undermined its national security interests. That specialist body categorised the data on which it relied in order to give that opinion as classified information.", "paragraph_id": "para_101" }, { "text": "25       By decision of 27 October 2020, the Regional Directorate, which is the first-tier immigration police authority, rejected PQ’s application for a national settlement permit.", "paragraph_id": "para_102" }, { "text": "26       On 3 December 2020, the Constitutional Protection Office proposed the adoption of a return decision against PQ on the ground that his stay in Hungary would undermine that Member State’s national security interests. That specialist authority categorised the data on which it based its proposal as classified information.", "paragraph_id": "para_103" }, { "text": "27       The decision of 27 October 2020 was upheld, on 25 March 2021, by the Országos Idegenrendészeti Főigazgatóság (National Directorate-General for Immigration Policing, Hungary), which is the second-tier immigration police authority, on the ground that the Belügyminiszter (Minister for the Inte …", "paragraph_id": "para_104" }, { "text": "28       On 16 April 2021, the Constitutional Protection Office proposed the adoption of a ban on entry and stay against PQ.", "paragraph_id": "para_105" }, { "text": "29       By decision of 6 May 2021, the Regional Directorate adopted a return decision against PQ, ordered the enforcement of that measure and imposed on PQ a 10-year ban on entry and stay. That decision was based, inter alia, on the proposals adopted on 3 December 2020 and 16 April 2021 by the Constitutional Protection Office.", "paragraph_id": "para_106" }, { "text": "30       By an interim measure of 6 May 2021, the Regional Directorate suspended the enforcement of PQ’s removal until the conditions for his return were satisfied and the criminal proceedings brought against him were concluded or, as the case may be, until the enforcement of any sentence imposed at the end of those criminal proceedings.", "paragraph_id": "para_107" }, { "text": "31       PQ brought actions before the Szegedi Törvényszék (Szeged High Court, Hungary), which is the referring court, against the decision of the National Directorate-General for Immigration Policing of 25 March 2021 and against the decision of the Regional Directorate of 6 May 2021.", "paragraph_id": "para_108" }, { "text": "32       When examining the first of those actions, the referring court made a request to the Court of Justice for a preliminary ruling. The Court responded to that request by judgment of 25 April 2024, NW and PQ (Classified information) (C‑420/22 and C‑528/22, EU:C:2024:344).", "paragraph_id": "para_109" }, { "text": "33       By judgment of 25 September 2024, the referring court annulled the decision of the National Directorate-General for Immigration Policing of 25 March 2021 and ordered the Regional Directorate to initiate a new procedure taking into account the judgment of 25 April 2024, NW and PQ (Classified information) (C‑420/22 and C‑528/22, EU:C:2024:344), while providing guidance as to the approach to be taken for that purpose.", "paragraph_id": "para_110" }, { "text": "34       The proceedings at issue in the main proceedings relate to the examination of the action brought by PQ against the decision of the Regional Directorate of 6 May 2021.", "paragraph_id": "para_111" }, { "text": "35       That court notes that PQ was the subject of a return decision, since the Constitutional Protection Office had taken the view that his stay in Hungary undermined that Member State’s national security interests. The grounds on which that assessment is based were not disclosed either to PQ or …", "paragraph_id": "para_112" }, { "text": "36       The referring court points out that it is apparent from the case-law of the Kúria (Supreme Court, Hungary) that, in a situation such as that at issue in the main proceedings, the procedural rights of the person concerned are safeguarded by the power of the court having jurisdiction – with a view to assessing the lawfulness of the decision on stay – to consult the classified information on which the opinion of the specialist authorities is based.", "paragraph_id": "para_113" }, { "text": "37       In any event, even if a request for access to classified information were granted, neither the person concerned nor their representative could use the classified information to which they were granted access in an administrative procedure or judicial proceedings, since, in practice, they wo …", "paragraph_id": "para_114" }, { "text": "38       The referring court is uncertain whether the Hungarian legislation is compatible with EU law. It takes the view, in particular, that Article 5 of Directive 2008/115 and Article 20 TFEU do not allow for a return decision to be adopted in a situation such as that at issue in the main proceedi …", "paragraph_id": "para_115" }, { "text": "39       In those circumstances, the Szegedi Törvényszék (Szeged High Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:", "paragraph_id": "para_116" }, { "text": "‘(1)      Must Articles 5, 12 and 13 of [Directive 2008/115], read in conjunction with Articles 7, 24, 41 and 47 of the [Charter], be interpreted as precluding a practice whereby a Member State adopts a return decision in respect of a third-country national, whose family members (minor children, coh …", "paragraph_id": "para_117" }, { "text": "(2)      Must Articles 5, 12 and 13 of [Directive 2008/115], read in conjunction with Articles 7, 24, 51(1) and 52(1) of the Charter, be interpreted as precluding a practice whereby a Member State adopts an immigration decision ordering return on the basis of a non-reasoned proposal by a specialist …", "paragraph_id": "para_118" }, { "text": "(3)      Must Articles 5, 12 and 13 of [Directive 2008/115], read in conjunction with Article 47 of the Charter – and also, where relevant, with Articles 7 and 24 of the Charter – be interpreted as meaning that the authority of a Member State which, on grounds of national security, public policy or …", "paragraph_id": "para_119" }, { "text": "(4)      If the answer is in the affirmative, what precisely must be understood by the “essence” of the confidential grounds on which that decision is based, having regard to Articles 41 and 47 of the Charter?’", "paragraph_id": "para_120" }, { "text": "40       By a decision of 26 May 2025, received at the Court on the same day, the referring court supplemented its request for a preliminary ruling.", "paragraph_id": "para_121" }, { "text": "41       The referring court notes that, following that request, the Kúria (Supreme Court) issued, on 24 February 2025, a decision in the interest of a uniform interpretation of the law which is relevant to all immigration procedures. Any Hungarian court seised of an appeal against a return decision is required to apply the interpretation adopted by the Kúria (Supreme Court), without being able to depart from it, even if it provides reasons for its decision in that regard.", "paragraph_id": "para_122" }, { "text": "42       The referring court is uncertain as to whether several aspects of that decision are compatible with EU law.", "paragraph_id": "para_123" }, { "text": "43       In particular, it points out, in the first place, that it follows from that decision that a Hungarian court cannot examine the existence of a right of residence under Article 20 TFEU or of a relationship of dependency where the person concerned has relied on them, for the first time, in the …", "paragraph_id": "para_124" }, { "text": "44       In the second place, the referring court notes that, according to the Kúria (Supreme Court), in the Hungarian legislation as it stands, it is not possible to allow the person concerned access to the essence of the grounds of a decision taken against him or her where those grounds are based …", "paragraph_id": "para_125" }, { "text": "45       In the light of its doubts as to whether the decision of the Kúria (Supreme Court) of 24 February 2025 is compatible with EU law, the referring court is uncertain as to whether the effects conferred by Hungarian law on such a decision are compatible with EU law, in so far as those effects prevent other divisions of the Kúria (Supreme Court) or the ordinary Hungarian courts from complying with EU law.", "paragraph_id": "para_126" }, { "text": "46       On the basis of those factors, the Szegedi Törvényszék (Szeged High Court) added the following questions to those already put to the Court of Justice for a preliminary ruling:", "paragraph_id": "para_127" }, { "text": "‘(5)      Must Article 20 TFEU, read in conjunction with Articles 5, 7, 24, 41, 47, 51(1) and 52(1) of the Charter, be interpreted as precluding the legislation of a Member State and the practice of a [superior] court of that Member State which", "paragraph_id": "para_128" }, { "text": "–        do not allow the court reviewing the decision of the immigration police authority ordering return to take into account any derived right of residence under Article 20 TFEU or a relationship of dependency – as well as the underlying facts – where the third-country national concerned relies o …", "paragraph_id": "para_129" }, { "text": "–        provide that the existence of a derived right of residence under Article 20 TFEU can be examined in the context of a return procedure only if the return decision was not preceded by another decision (ruling on an application for a residence or settlement permit) – upon which that return decision is, therefore, based – which precluded the right of residence in the Member State?", "paragraph_id": "para_130" }, { "text": "(6)      Must Article 5, Article 11(2), Article 12(1) and Article 13 of Directive [2008/115], read in the light of recitals 6 and 24 and Article 1 of that directive, and in conjunction with Articles 5, 7, 24, 41, 47, 51(1) and 52(1) of the Charter, be interpreted as precluding the legislation of a M …", "paragraph_id": "para_131" }, { "text": "(7)      Must Article 12(1) and Article 13 of Directive [2008/115], read in the light of recitals 6 and 24 and Article 1 of that directive, and in conjunction with Articles 41 and 47 of the Charter, be interpreted as precluding the legislation of a Member State and the practice of a [superior] court …", "paragraph_id": "para_132" }, { "text": "(8)      Must Article 267 TFEU, the second and third subparagraphs of Article 4(3) and the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, read in the light of the principle of the primacy of EU law, and in conjunction with Article 41, Article 51(1) and Article 52(1) of the C …", "paragraph_id": "para_133" }, { "text": "–        the supreme court of a Member State may, even if the Court of Justice has already interpreted in a judgment the EU law relevant to a particular case, deliver decisions making an interpretation of the law which is binding on all lower courts, which cannot depart from it […] and in which that …", "paragraph_id": "para_134" }, { "text": "–        the supreme court of the Member State must, in order to be able to apply EU law or the judgments of the Court of Justice relevant to a particular case, initiate a specific procedure provided for in domestic law (domestic preliminary ruling procedure, procedure in the interest of a uniform i …", "paragraph_id": "para_135" }, { "text": "(9)      Must paragraph 97 of [the judgment of 25 April 2024, NW and PQ (Classified information) (C‑420/22 and C‑528/22, EU:C:2024:344)] be interpreted as meaning that the specialist authority which determines the risk to national security may conclude that the disclosure of the [essence] of the gro …", "paragraph_id": "para_136" }, { "text": "Consideration of the questions referred", "paragraph_id": "para_137" }, { "text": "47       As a preliminary point, it should be recalled that, according to the Court’s settled case-law, the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts by means of which the Court provides the national courts with th …", "paragraph_id": "para_138" }, { "text": "48       In the procedure providing for cooperation, it is for the Court to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court should, where necessary, reformulate the question referred to it (see judgments of 1 …", "paragraph_id": "para_139" }, { "text": "49       In that regard, it should be noted, in the first place, that, although only the fifth question refers expressly to Article 20 TFEU, it is nevertheless apparent from the statement of reasons for the request for a preliminary ruling that the referring court envisages that PQ may have a right of residence under that article and that it therefore asks, in general terms, whether the return procedure applied to PQ is compatible with that article.", "paragraph_id": "para_140" }, { "text": "50       It follows that all the questions relating directly to that return procedure, namely the first to seventh questions, must be examined not only in the light of the provisions of Directive 2008/115 and the Charter to which they refer, but also of Article 20 TFEU.", "paragraph_id": "para_141" }, { "text": "51       In the second place, as regards Article 41 of the Charter, to which the referring court makes reference in its first and fourth to seventh questions, it should be recalled that it is clear from the wording of that provision that it is addressed not to the Member States but solely to the ins …", "paragraph_id": "para_142" }, { "text": "52       However, Article 41 of the Charter reflects a general principle of EU law, which is intended to apply to Member States when they implement that law (judgment of 22 September 2022, Országos Idegenrendészeti Főigazgatóság and Others , C‑159/21, EU:C:2022:708, paragraph 35 and the case-law cited).", "paragraph_id": "para_143" }, { "text": "53       That general principle must therefore be taken into consideration with a view to clarifying the obligations imposed on the Member States when implementing Article 20 TFEU and Directive 2008/115.", "paragraph_id": "para_144" }, { "text": "54       In the third place, it should be noted that the Hungarian Government proposes a substantive reformulation of the first to third and eighth questions on the basis of an interpretation of the Hungarian legislation which differs from that adopted by the referring court.", "paragraph_id": "para_145" }, { "text": "55       In that regard, it should be noted that, in support of that proposal, the Hungarian Government relied to a large extent on the decision of the Kúria (Supreme Court) of 24 February 2025, which had not yet been delivered on the date on which the request for a preliminary ruling was referred to the Court of Justice.", "paragraph_id": "para_146" }, { "text": "56       The referring court took into account, in its decision of 26 May 2025, that decision of the Kúria (Supreme Court) and considered it necessary, as a result, to formulate new questions for a preliminary ruling relating to certain points raised by the Hungarian Government, with the result that that government’s proposal to reformulate the first to third questions in order to take into consideration that decision of the Kúria (Supreme Court) is largely devoid of purpose.", "paragraph_id": "para_147" }, { "text": "57       It is true that the Hungarian Government draws conclusions from the decision of the Kúria (Supreme Court) which differ in part from those adopted by the referring court.", "paragraph_id": "para_148" }, { "text": "58       However, it is settled case-law that, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction, inter alia, to interpret and apply national law (see judgments of …", "paragraph_id": "para_149" }, { "text": "59       It follows that, in order to answer the first to third and eighth questions, the Court must rely not on the description of the Hungarian legislation relied on by the Hungarian Government, but on that put forward by the referring court.", "paragraph_id": "para_150" }, { "text": "The first question", "paragraph_id": "para_151" }, { "text": "60       By its first question, the referring court asks, in essence, whether Article 20 TFEU and Articles 5, 12 and 13 of Directive 2008/115, read in conjunction with Articles 7, 24 and 47 of the Charter and with the general principle of good administration, must be interpreted as precluding the au …", "paragraph_id": "para_152" }, { "text": "61       As a preliminary point, it should be noted that Articles 12 and 13 of Directive 2008/115, Article 47 of the Charter and the general principle of good administration impose procedural obligations which are irrelevant with a view to answering the first question.", "paragraph_id": "para_153" }, { "text": "62       That point having been clarified, it must be recalled, in the first place, that it is apparent from the Court’s settled case-law that Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferr …", "paragraph_id": "para_154" }, { "text": "63       However, the provisions of the FEU Treaty on citizenship of the European Union do not confer any autonomous right on third-country nationals. Any rights conferred on third-country nationals are not autonomous rights of those nationals but rights derived from those enjoyed by a Union citizen …", "paragraph_id": "para_155" }, { "text": "64       In that regard, the Court has held that there are very specific situations in which, despite the fact that secondary EU law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his or her freedom of movement, a right of resi …", "paragraph_id": "para_156" }, { "text": "65       However, a refusal to grant a right of residence to a third-country national is liable to undermine the effectiveness of citizenship of the European Union only if there exists, between that third-country national and the Union citizen concerned who is a family member, a relationship of depe …", "paragraph_id": "para_157" }, { "text": "66       As can be seen from the Court’s case-law, it is in the light of the intensity of the relationship of dependency between the third-country national concerned and the Union citizen, who is a family member of that third-country national, that the recognition of a right of residence under Artic …", "paragraph_id": "para_158" }, { "text": "67       In that context, a Member State cannot, where the conditions laid down in paragraphs 64 to 66 above are satisfied, adopt a return decision against the third-country national concerned.", "paragraph_id": "para_159" }, { "text": "68       First, in such a situation, Article 20 TFEU precludes that third-country national from being refused residence, as well as the imposition of an expulsion measure or, more broadly, a measure requiring him or her to return to a third country, since such measures are capable of depriving the U …", "paragraph_id": "para_160" }, { "text": "69       Second, it is apparent from the case-law of the Court that the right of residence provided for in Article 20 TFEU derives directly from primary law and arises from the time when the conditions justifying the grant of that right of residence are satisfied, even before an application is made for recognition of a right of residence (see, to that effect, judgment of 8 May 2025, Stadt Wuppertal , C‑130/24, EU:C:2025:340, paragraphs 32, 33 and 39).", "paragraph_id": "para_161" }, { "text": "70       It follows that, from the moment when a relationship of dependency such as that referred to in paragraph 65 above comes into being, the third-country national concerned can no longer be considered, for as long as that relationship of dependency persists, as staying illegally in the territor …", "paragraph_id": "para_162" }, { "text": "71       It follows from Article 2(1) and Article 6(1) of that directive that a Member State may adopt a return decision only in respect of a third-country national who is staying illegally on its territory (see, to that effect, judgment of 19 December 2024, Kaduna , C‑244/24 and C‑290/24, EU:C:2024:1038, paragraphs 137 and 138).", "paragraph_id": "para_163" }, { "text": "72       It follows from the foregoing that the competent national authorities must take into consideration Article 20 TFEU when they consider adopting a return decision against a third-country national who is a family member of a Union citizen.", "paragraph_id": "para_164" }, { "text": "73       To that end, although it is true that it is for the Member States to determine the arrangements for the implementation of Article 20 TFEU in the context of return procedures, the fact remains that those rules must not, however, compromise the effectiveness of that article (see, by analogy, judgment of 25 April 2024, NW and PQ (Classified information) , C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 68 and the case-law cited).", "paragraph_id": "para_165" }, { "text": "74       In that regard, given that the implementation of a return procedure with respect to the parent of a Union citizen who is a minor is liable – in the same way as the adoption of a decision refusing residence to that parent – to deprive that Union citizen of the genuine enjoyment of the rights …", "paragraph_id": "para_166" }, { "text": "75       It follows that, in the context of such a procedure, the competent national authorities are not obliged to examine systematically and on their own initiative the existence of a relationship of dependency within the meaning of Article 20 TFEU, as the person concerned is required to provide t …", "paragraph_id": "para_167" }, { "text": "76       Yet, in order to ensure the effectiveness of Article 20 TFEU, it is for the national authorities conducting a return procedure concerning a third-country national who is a family member of a Union citizen to assess, inter alia on the basis of the evidence which the third-country national an …", "paragraph_id": "para_168" }, { "text": "77       Consequently, the competent national authorities must, when they consider, pursuant to national legislation, adopting a return decision in respect of a third-country national whose family ties with a Union citizen are known to them, ensure, if necessary by gathering the requisite informatio …", "paragraph_id": "para_169" }, { "text": "78       In the second place, irrespective of the requirements arising from Article 20 TFEU, when Member States implement Directive 2008/115, they must, pursuant to Article 5 of that directive, first, take due account of the best interests of the child, family life and the state of health of the thi …", "paragraph_id": "para_170" }, { "text": "79       A Member State cannot, therefore, adopt a return decision without taking into account the relevant details of the family life of the third-country national concerned which he or she has put forward in support of an application for residence (see, to that effect, judgment of 8 May 2018, K.A. and Others (Family reunification in Belgium) , C‑82/16, EU:C:2018:308, paragraph 104).", "paragraph_id": "para_171" }, { "text": "80       In addition, where the competent national authorities consider adopting a return decision against the parent of a minor, those authorities must carry out a general and in-depth assessment of the situation of that minor, taking due account of the best interests of the child (see, to that eff …", "paragraph_id": "para_172" }, { "text": "81       In the light of all the foregoing considerations, the answer to the first question is that Article 20 TFEU and Article 5 of Directive 2008/115 must be interpreted as precluding the authorities of a Member State from adopting a return decision in respect of a third-country national who is a …", "paragraph_id": "para_173" }, { "text": "The fifth question", "paragraph_id": "para_174" }, { "text": "82       By its fifth question, which it is appropriate to examine in the second place, the referring court asks, in essence, whether Article 20 TFEU, read in conjunction with Articles 7, 24 and 47 of the Charter and with the general principle of good administration, must be interpreted as precludin …", "paragraph_id": "para_175" }, { "text": "–        a right of residence under Article 20 or a relationship of dependency is invoked for the first time at the stage of the judicial proceedings but the family ties between the third-country national concerned and a Union citizen were already known to the competent authorities; or", "paragraph_id": "para_176" }, { "text": "–        the facts which are relevant for the purpose of applying Article 20 are first brought to light in the course of the judicial proceedings; or", "paragraph_id": "para_177" }, { "text": "–        the return procedure was preceded by a decision refusing residence in the Member State concerned.", "paragraph_id": "para_178" }, { "text": "83       First, as regards the scenario where a right of residence under Article 20 TFEU or a relationship of dependency has not been invoked during the administrative procedure, it is important to note that a third-country national who is subject to a return procedure is under a duty of sincere coo …", "paragraph_id": "para_179" }, { "text": "84       Nonetheless, as is apparent from paragraphs 73 to 77 above, where the competent national authorities have information on the existence of family ties between the third-country national concerned and a Union citizen, those authorities cannot adopt a return decision without having checked, if necessary by carrying out the requisite investigations, that Article 20 TFEU does not preclude the adoption of such a decision.", "paragraph_id": "para_180" }, { "text": "85       In such a situation, the fact that that third-country national has not specifically relied on Article 20 TFEU before those authorities is not such as to exempt those authorities from carrying out such a check or to allow them to adopt a return decision when they find, through that investiga …", "paragraph_id": "para_181" }, { "text": "86       Therefore, given the clear and unconditional nature of the obligations thus imposed on the competent national authorities, those obligations must be regarded as having direct effect. Consequently, the third-country national concerned must have the possibility of relying before a national co …", "paragraph_id": "para_182" }, { "text": "87       Second, as regards any matters of fact brought to light for the first time during the judicial proceedings, it should be recalled that the Court has held that, in order to prevent a Union citizen who is a minor from being deprived of the genuine enjoyment of the rights that he or she derive …", "paragraph_id": "para_183" }, { "text": "88       Given that the implementation of a return procedure is also likely to deprive a Union citizen who is a minor of the genuine enjoyment of the rights that he or she derives from the status that Article 20 TFEU confers on him or her, that solution must also apply when examining an action brought against a return decision.", "paragraph_id": "para_184" }, { "text": "89       It must also be stated that, as regards an expulsion order issued against a national of a Member State on grounds of public policy, the Court has held that EU law precludes a national practice whereby the national courts may not take into consideration facts introduced after that order (see, to that effect, judgment of 29 April 2004, Orfanopoulos and Oliveri , C‑482/01 and C‑493/01, EU:C:2004:262, paragraph 82).", "paragraph_id": "para_185" }, { "text": "90       It follows that a national court hearing an action challenging a return decision must take into account factual matters relevant to the application of Article 20 TFEU brought to light for the first time during the judicial proceedings.", "paragraph_id": "para_186" }, { "text": "91       Third, as regards the relevance of the existence of a prior decision on residence, it must be pointed out that, given that it is for the Member States to determine the arrangements for the implementation of Article 20 TFEU in the context of a return procedure, it is open to them to define t …", "paragraph_id": "para_187" }, { "text": "92       In particular, a Member State may provide that the competent national authorities are required to take account of findings relating to the family situation of the person concerned made when examining an application for a residence permit, without necessarily having to reconsider the entirety of that situation from the beginning.", "paragraph_id": "para_188" }, { "text": "93       However, first, the existence of a decision refusing residence cannot be decisive for the purposes of applying Article 20 TFEU during return proceedings, in a situation such as that at issue in the main proceedings, where the competent national authorities adopted that decision without asse …", "paragraph_id": "para_189" }, { "text": "94       Second, it is apparent from the Court’s case-law on residence that the competent national authorities must take account of the situation as it stands at the time when they are called upon to rule on the application of Article 20 TFEU (see, to that effect, judgment of 22 June 2023, Staatssec …", "paragraph_id": "para_190" }, { "text": "95       It follows from the criteria set out in the preceding paragraph of the present judgment that, in a situation where the decision refusing residence and the return decision are not adopted at the same time, in particular in a situation, such as that at issue in the main proceedings, where a s …", "paragraph_id": "para_191" }, { "text": "96       Consequently, the answer to the fifth question is that Article 20 TFEU, read in conjunction with Article 47 of the Charter, must be interpreted as precluding legislation of a Member State, as interpreted by the supreme court of that Member State, which excludes reliance on Article 20 TFEU against a return decision or during return proceedings where:", "paragraph_id": "para_192" }, { "text": "–        a right of residence under Article 20 or a relationship of dependency is invoked for the first time at the stage of the judicial proceedings but the family ties between the third-country national concerned and a Union citizen were already known to the competent authorities; or", "paragraph_id": "para_193" }, { "text": "–        the facts which are relevant for the purpose of applying Article 20 are first brought to light in the course of the judicial proceedings; or", "paragraph_id": "para_194" }, { "text": "–        the return procedure was preceded by a decision refusing residence in the Member State concerned.", "paragraph_id": "para_195" }, { "text": "The second question", "paragraph_id": "para_196" }, { "text": "97       By its second question, which it is appropriate to examine in the third place, the referring court asks, in essence, whether Article 20 TFEU and Articles 5, 12 and 13 of Directive 2008/115, read in conjunction with Articles 7 and 24 of the Charter, must be interpreted as precluding legislat …", "paragraph_id": "para_197" }, { "text": "98       In the first place, it is apparent from the Court’s settled case-law that the Member States may derogate, under certain conditions, from the derived right of residence flowing from Article 20 TFEU for a family member of a Union citizen, such as the situation set out in paragraph 64 above, i …", "paragraph_id": "para_198" }, { "text": "99       However, a refusal of a right of residence based on that ground can result only from a specific assessment of all the relevant circumstances of the case, in the light of the principle of proportionality, the fundamental rights whose observance the Court ensures and, where appropriate, the b …", "paragraph_id": "para_199" }, { "text": "100     It follows from the considerations set out in paragraphs 72 and 73 above that that requirement also applies during a return procedure conducted in respect of a third-country national who is a family member of EU citizens who are nationals of that Member State and who have never exercised the …", "paragraph_id": "para_200" }, { "text": "101     Furthermore, when the Member States consider adopting a return decision on grounds of national security, they must still comply with Article 5 of Directive 2008/115 and Articles 7 and 24 of the Charter.", "paragraph_id": "para_201" }, { "text": "102     As stated in recital 6 of that directive, decisions taken under that directive should be taken on a case-by-case basis and based on objective criteria, with the result that it is for the competent national authorities to take into consideration all the relevant circumstances for the purpose …", "paragraph_id": "para_202" }, { "text": "103     Therefore, although EU law does not determine which authority must carry out the assessments referred to in paragraphs 99 and 101 above, the fact remains that a return decision, based on a ground of national security, can only be adopted following such assessments.", "paragraph_id": "para_203" }, { "text": "104     In the second place, Article 12(1) of Directive 2008/115 provides that return decisions are to be issued in writing and give reasons in fact and in law. However, that provision does permit a restriction on information on reasons in fact where national law allows for the right to information to be restricted, in particular in order to safeguard national security.", "paragraph_id": "para_204" }, { "text": "105     Given that EU law contains no rule defining precisely the practical arrangements for such a limitation, those arrangements are a matter for the domestic legal order of each Member State, in accordance with the principle of the procedural autonomy of the Member States, provided that those arr …", "paragraph_id": "para_205" }, { "text": "106     In that regard, it must also be borne in mind that the Member States, when implementing EU law, are required to ensure compliance both with the requirements stemming from the general principle of good administration and with the right to an effective remedy enshrined in the first paragraph of Article 47 of the Charter (judgment of 25 April 2024, NW and PQ (Classified information) , C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 80 and the case-law cited).", "paragraph_id": "para_206" }, { "text": "107     It follows from the Court’s settled case-law that if the judicial review guaranteed by the first paragraph of 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 or her is based, either by r …", "paragraph_id": "para_207" }, { "text": "108     However, it is important to recall that the rights set out in Article 47 of the Charter are not absolute rights, and that the obligation to state reasons, which is the corollary thereto, may therefore be limited, within the framework laid down in Article 12(1) of Directive 2008/115, on the b …", "paragraph_id": "para_208" }, { "text": "109     That weighing up cannot, however, lead, in the light of the necessary observance of Article 47 of the Charter, to depriving the rights of defence of the person concerned of all effectiveness and to rendering meaningless the right to a remedy provided for in Article 13(1) of Directive 2008/11 …", "paragraph_id": "para_209" }, { "text": "110     It follows from the foregoing considerations, relating to (i) the requirement to take into account all the relevant circumstances for the purposes of the application of Article 20 TFEU and Article 5 of Directive 2008/115 and (ii) the obligation to state reasons for return decisions, that a n …", "paragraph_id": "para_210" }, { "text": "111     That finding in no way precludes some of the information used by the competent authority in conducting the assessments referred to in paragraphs 99 and 101 above from being provided by bodies entrusted with specialist functions linked to national security, on their own initiative or at the r …", "paragraph_id": "para_211" }, { "text": "112     Similarly, that finding does not prevent a Member State from conferring on a body entrusted with specialist functions linked to national security the power to issue a binding opinion requiring the adoption of a return decision, provided that that body complies with the obligation to state re …", "paragraph_id": "para_212" }, { "text": "113     In the light of all of the foregoing, the answer to the second question is that Article 20 TFEU and Articles 5, 12 and 13 of Directive 2008/115, read in conjunction with Articles 7 and 24 of the Charter, must be interpreted as precluding legislation of a Member State which requires the autho …", "paragraph_id": "para_213" }, { "text": "The third, fourth, sixth and seventh questions", "paragraph_id": "para_214" }, { "text": "114     By the third, fourth, sixth and seventh questions, which it is appropriate to examine together and in the fourth place, the referring court asks, in essence, whether Articles 12 and 13 of Directive 2008/115, read in conjunction with Articles 1, 5 and 11 thereof, Article 20 TFEU, the general …", "paragraph_id": "para_215" }, { "text": "115     As a preliminary point, it should be noted that, since the third, fourth, sixth and seventh questions relate exclusively to the procedure to be followed before the competent national authorities and the national courts in a situation such as that at issue in the main proceedings, Articles 1 and 11 of Directive 2008/115 and Articles 5, 7 and 24 of the Charter are not relevant for the purposes of answering those questions.", "paragraph_id": "para_216" }, { "text": "116     As noted in paragraph 104 above, Article 12(1) of Directive 2008/115 provides that return decisions and entry ban decisions are to be issued in writing and to provide reasons in fact and in law.", "paragraph_id": "para_217" }, { "text": "117     Article 13(1) of that directive provides that the third-country national concerned is to be afforded an effective remedy to appeal against those decisions before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence.", "paragraph_id": "para_218" }, { "text": "118     Those provisions do not, however, contain any indication as to the arrangements governing access to the file in a return procedure. Furthermore, as noted in paragraphs 104 and 105 above, although Article 12(1) of that directive allows the information relating to the factual grounds to be inc …", "paragraph_id": "para_219" }, { "text": "119     It follows that the practical arrangements of the procedures laid down for access by the third-country national concerned to the file in a return procedure and to the grounds of a return decision and an entry ban decision, where those decisions are based on information the disclosure of whic …", "paragraph_id": "para_220" }, { "text": "120     It follows, in particular, that respect for the rights of defence of the person concerned must be guaranteed during both the administrative procedure and any judicial proceedings (judgment of 25 April 2024, NW and PQ (Classified information) , C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 88 and the case-law cited).", "paragraph_id": "para_221" }, { "text": "121     In that connection, as regards, in the first place, the administrative procedure, it is apparent from the Court’s settled case-law that observance of the rights of the defence means that the addressee of a decision which significantly affects his or her interests must be placed in a position …", "paragraph_id": "para_222" }, { "text": "122     The purpose of that requirement is, inter alia, in the context of a return procedure such as that at issue in the main proceedings, to enable the competent authority to comply with its obligation to rule on the possible adoption of a return decision and an entry ban by carrying out, with ful …", "paragraph_id": "para_223" }, { "text": "123     That requirement is intended, more generally, when a return procedure is initiated, to contribute to compliance with the obligations imposed in Article 5 of Directive 2008/115, by ensuring that the third-country national concerned is able to make his or her views known on the specific effect …", "paragraph_id": "para_224" }, { "text": "124     Since that requirement necessarily supposes that that third-country national will be afforded, if necessary though an adviser, a concrete possibility to be aware of the evidence on which the authorities intend to base their decision, respect for the rights of the defence necessitates, as a c …", "paragraph_id": "para_225" }, { "text": "125     As regards, in the second place, the judicial proceedings, respect for the rights of the defence means that an applicant must be able not only to ascertain the reasons upon which the decisions taken in relation to him or her are based, but also to have access to all the material in the file …", "paragraph_id": "para_226" }, { "text": "126     Furthermore, the adversarial principle, which forms part of the rights of the defence referred to in Article 47 of the Charter, means that 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 …", "paragraph_id": "para_227" }, { "text": "127     That being so, it should be borne in mind that the rights of the defence are not absolute rights, and the right of access to the file, which is the corollary thereto, may be limited on the basis of a weighing up of, on the one hand, the general principle of good administration and the right …", "paragraph_id": "para_228" }, { "text": "128     That weighing up cannot, however, lead, in the light of the necessary respect for Article 47 of the Charter, to depriving the rights of defence of the person concerned of all effectiveness and to rendering meaningless his or her right of redress stemming from that article, in particular by n …", "paragraph_id": "para_229" }, { "text": "129     That weighing up may, nevertheless, result in certain material in the file not being disclosed to the person concerned, where disclosure of that information is likely to jeopardise the security of the Member State in question in a direct and specific manner, in that it may, in particular, en …", "paragraph_id": "para_230" }, { "text": "130     Therefore, although Member States may, where national security so requires, not grant the person concerned direct access to all of his or her file in the context of a return procedure such as that at issue in the main proceedings, and, in particular, pursuant to Article 12(1) of Directive 20 …", "paragraph_id": "para_231" }, { "text": "131     In that context, it must be held, first of all, that where the disclosure of information placed on the file has been restricted on grounds of national security, respect for the rights of defence of the person concerned is not sufficiently guaranteed by the possibility for that person to obta …", "paragraph_id": "para_232" }, { "text": "132     Next, the power of the court having jurisdiction to have access to the entire file cannot replace access to the information placed on that file by the person concerned, since respect for the rights of the defence means that that person, if necessary though an adviser, may defend his or her o …", "paragraph_id": "para_233" }, { "text": "133     Lastly, a mechanism such as that described by the referring court, based on the involvement of a public prosecutor in the interests of the third-country national concerned, without that prosecutor being able to communicate the information to which he or she will have access to that third-country national, is not capable of fulfilling the requirements arising from Article 47 of the Charter.", "paragraph_id": "para_234" }, { "text": "134     Such a mechanism in no way guarantees that the public prosecutor will express the point of view of the third-country national concerned on the relevant elements of the file, since that third-country national is not aware of that evidence and the public prosecutor is not required to consult that third-country national or to follow any instructions given by him or her.", "paragraph_id": "para_235" }, { "text": "135     In addition, it is apparent from the case-law of the Court that disclosure of the essence of the grounds on which the decision at issue is based referred to in paragraph 130 above must be ensured vis-à-vis the addressee of that decision itself (see, to that effect, judgments of 4 June 2013, ZZ , C‑300/11, EU:C:2013:363, paragraph 65, and of 29 July 2024, protectus , C‑185/23, EU:C:2024:657, paragraph 88).", "paragraph_id": "para_236" }, { "text": "136     The Court also held that national legislation under which a lawyer could have access to classified information on which a decision was based, but was not authorised to disclose the content of that information to his or her client, was not sufficient to ensure compliance with Article 47 of the Charter (see, to that effect, judgment of 29 July 2024, protectus , C‑185/23, EU:C:2024:657, paragraph 95).", "paragraph_id": "para_237" }, { "text": "137     It follows that the answer to the third, fourth, sixth and seventh questions is that Articles 12 and 13 of Directive 2008/115, read in conjunction with Article 5 thereof, Article 20 TFEU, the general principle of good administration and Article 47 of the Charter, must be interpreted as precl …", "paragraph_id": "para_238" }, { "text": "The ninth question", "paragraph_id": "para_239" }, { "text": "138     By its ninth question, which it is appropriate to examine in the fifth place, the referring court asks, in essence, whether the general principle of good administration and Article 47 of the Charter must be interpreted as precluding legislation of a Member State which provides that a body en …", "paragraph_id": "para_240" }, { "text": "139     As is apparent from paragraph 130 above, the principle of effectiveness, the general principle of good administration and Article 47 of the Charter preclude a national court hearing an appeal against a return decision from being able to dismiss that appeal by relying, as a decisive factor, on material in the file, the essence of which has not been communicated to the person concerned.", "paragraph_id": "para_241" }, { "text": "140     It is true that the rules on the classification and declassification of information under national legislation and on the arrangements for disclosing classified information are not the subject of harmonisation by any EU act (see, to that effect, judgment of 25 April 2024, NW and PQ (Classified information) , C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 103 and the case-law cited).", "paragraph_id": "para_242" }, { "text": "141     The fact remains that, where a return decision is based on classified information, those rules must be implemented in compliance with the general principle of good administration and Article 47 of the Charter (see, to that effect, judgment of 25 April 2024, NW and PQ (Classified information) , C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 105 and the case-law cited).", "paragraph_id": "para_243" }, { "text": "142     The Court has held that it is open to the Member States, in order to avoid, for reasons of State security, in exceptional cases, precise and full disclosure to the person concerned of the grounds which constitute the basis of a decision on residence, to provide for techniques and rules of pr …", "paragraph_id": "para_244" }, { "text": "143     The Court has found that a system in which the court having jurisdiction is able not only to examine all the grounds on which the decision at issue was taken and the evidence relating to those grounds, but also to verify whether or not the reasons relied on by the competent national authorit …", "paragraph_id": "para_245" }, { "text": "144     As regards judicial review of those reasons, the Court has held that it is sufficient, in order to ensure compliance with Article 47 of the Charter, that the court having jurisdiction may, if it considers that those reasons are invalid, afford the competent national authority the opportunity …", "paragraph_id": "para_246" }, { "text": "145     In such a case, if the competent national authority decides not to disclose all the grounds and evidence relating thereto, the court having jurisdiction must, in order to comply with Article 47 of the Charter, carry out an examination of the legality of the decision at issue on the basis of …", "paragraph_id": "para_247" }, { "text": "146     Conversely, if the court having jurisdiction finds that the reasons relied on by the competent national authority preclude the full disclosure of those grounds and that evidence, the Court has held that the court having jurisdiction may take those grounds and that evidence into consideration …", "paragraph_id": "para_248" }, { "text": "147     However, the Court has also stated that, where there has been a failure to fulfil that obligation to inform the person concerned, the court having jurisdiction is required to draw the appropriate conclusions from that failure (see, to that effect, judgment of 25 April 2024, NW and PQ (Classified information) , C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 112 and the case-law cited).", "paragraph_id": "para_249" }, { "text": "148     In those circumstances, it remains open to the Member States to reserve to the competent national authority the power to disclose or refuse to disclose those classified grounds or that classified evidence, provided that the national court seised of the action against a return decision has th …", "paragraph_id": "para_250" }, { "text": "149     Consequently, the answer to the ninth question is that the general principle of good administration and Article 47 of the Charter must be interpreted as not precluding legislation of a Member State which provides that a body entrusted with specialist functions linked to national security may …", "paragraph_id": "para_251" }, { "text": "The eighth question", "paragraph_id": "para_252" }, { "text": "Admissibility", "paragraph_id": "para_253" }, { "text": "150     The European Commission submits that the eighth question must, in part, be rejected as inadmissible, in so far as it relates to the effects on the Kúria (Supreme Court) itself of a decision in the interest of a uniform interpretation of the law. Since the referring court is a lower court, an answer from the Court of Justice in that regard will play no part in the way the dispute in the main proceedings is decided.", "paragraph_id": "para_254" }, { "text": "151     In that regard, it should be recalled that, according to the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must ass …", "paragraph_id": "para_255" }, { "text": "152     It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual fact …", "paragraph_id": "para_256" }, { "text": "153     In the present case, given that the referring court is not a chamber of the Kúria (Supreme Court), but a lower court, it must be held that the rules defining the conditions under which the Kúria (Supreme Court) may depart from its own case-law clearly bear no relation to the subject matter of the dispute in the main proceedings.", "paragraph_id": "para_257" }, { "text": "154     It follows that the eighth question is admissible only in so far as it relates to the rules defining the powers of lower courts.", "paragraph_id": "para_258" }, { "text": "Substance", "paragraph_id": "para_259" }, { "text": "155     By the admissible part of its eighth question, which it is appropriate to examine in the sixth place, the referring court asks, in essence, whether Article 4(3) and Article 19(1) TEU, Article 267 TFEU and Article 47 of the Charter, read in conjunction with the principle of the primacy of EU …", "paragraph_id": "para_260" }, { "text": "156     As a preliminary point, it should be noted that, since the eighth question relates to the rules governing, in general, relations between the Kúria (Supreme Court) and the Hungarian lower courts, the provisions of Directive 2008/115 are not of direct relevance to the answer to that question.", "paragraph_id": "para_261" }, { "text": "157     According to settled case-law, the principle of the primacy of EU law establishes the pre-eminence of EU law over the law of the Member States. That principle therefore requires all Member State bodies to give full effect to the various EU provisions, and the law of the Member States may not …", "paragraph_id": "para_262" }, { "text": "158     In that context, the national court, having exercised the discretion conferred on it by Article 267 TFEU, is bound, for the purposes of the decision to be given in the main proceedings, by the interpretation of provisions of EU law provided by the Court and must therefore, if necessary, disr …", "paragraph_id": "para_263" }, { "text": "159     In those circumstances, the requirement to give full effect to EU law includes the obligation, on the national court in question, to alter established case-law, where necessary, if that case-law is based on an interpretation of national law that is incompatible with EU law (judgments of 11 January 2024, Global Ink Trade , C‑537/22, EU:C:2024:6, paragraph 25, and of 12 February 2026, Petlichev , C‑56/25, EU:C:2026:87, paragraph 48 and the case-law cited).", "paragraph_id": "para_264" }, { "text": "160     In addition, where the Court’s case-law has provided a clear answer to a question concerning the interpretation of EU law, that national court must do everything necessary to ensure that that interpretation is applied (judgment of 11 January 2024, Global Ink Trade , C‑537/22, EU:C:2024:6, paragraph 26 and the case-law cited).", "paragraph_id": "para_265" }, { "text": "161     Although the Court held, in paragraph 29 of the judgment of 11 January 2024, Global Ink Trade (C‑537/22, EU:C:2024:6), that legislation of a Member State requiring, in principle, lower courts to comply with the findings of a superior court could nevertheless be compatible with the principle …", "paragraph_id": "para_266" }, { "text": "162     On the contrary, in the present case, the referring court expressly stated that the applicable Hungarian legislation in no way authorised it to depart from a decision of the Kúria (Supreme Court) delivered in the interest of a uniform interpretation of the law. It follows from paragraphs 157 to 160 above that such legislation is in breach of the principle of the primacy of EU law.", "paragraph_id": "para_267" }, { "text": "163     Although the Hungarian Government submits that the Hungarian legislation allows the referring court to depart from the decision of the Kúria (Supreme Court) at issue in the main proceedings provided that it explicitly states the reasons for that choice, it is apparent from the case-law of th …", "paragraph_id": "para_268" }, { "text": "164     It is therefore for the referring court alone to ensure that the Hungarian legislation applicable in the main proceedings does indeed have the scope which it set out in the order for reference.", "paragraph_id": "para_269" }, { "text": "165     It should also be noted that, although the eighth question concerns not only the interpretation of the principle of the primacy of EU law and Article 267 TFEU, but also that of various other provisions of primary law and the general principle of good administration, it is apparent from the f …", "paragraph_id": "para_270" }, { "text": "166     In the light of the foregoing, the answer to the eighth question is that the principle of the primacy of EU law and Article 267 TFEU must be interpreted as precluding legislation of a Member State which requires a national court to comply with the legal assessments of a superior court, even though it considers, in the light of the interpretation of EU law provided by the Court, that those assessments are not consistent with EU law.", "paragraph_id": "para_271" }, { "text": "Costs", "paragraph_id": "para_272" }, { "text": "167     Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.", "paragraph_id": "para_273" }, { "text": "On those grounds, the Court (Third Chamber) hereby rules:", "paragraph_id": "para_274" }, { "text": "1.       Article 20 TFEU and Article 5 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals", "paragraph_id": "para_275" }, { "text": "must be interpreted as precluding the authorities of a Member State from adopting a return decision in respect of a third-country national who is a family member of Union citizens, who are nationals of that Member State and have never exercised their freedom of movement, without having first examine …", "paragraph_id": "para_276" }, { "text": "2.       Article 20 TFEU, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union,", "paragraph_id": "para_277" }, { "text": "must be interpreted as precluding legislation of a Member State, as interpreted by the supreme court of that Member State, which excludes reliance on Article 20 TFEU against a return decision or during return proceedings where:", "paragraph_id": "para_278" }, { "text": "–         a right of residence under Article 20 or a relationship of dependency is invoked for the first time at the stage of the judicial proceedings but the family ties between the third-country national concerned and a Union citizen were already known to the competent authorities; or", "paragraph_id": "para_279" }, { "text": "–         the facts which are relevant for the purpose of applying Article 20 are first brought to light in the course of the judicial proceedings; or", "paragraph_id": "para_280" }, { "text": "–         the return procedure was preceded by a decision refusing residence in the Member State concerned.", "paragraph_id": "para_281" }, { "text": "3.       Article 20 TFEU and Articles 5, 12 and 13 of Directive 2008/115, read in conjunction with Articles 7 and 24 of the Charter of Fundamental Rights,", "paragraph_id": "para_282" }, { "text": "must be interpreted as precluding legislation of a Member State which requires the authorities of that Member State to adopt a return decision, on grounds of national security, in respect of a third-country national who is a family member of Union citizens, who are nationals of that Member State and …", "paragraph_id": "para_283" }, { "text": "4.       Articles 12 and 13 of Directive 2008/115, read in conjunction with Article 5 thereof, Article 20 TFEU, the general principle of good administration and Article 47 of the Charter of Fundamental Rights,", "paragraph_id": "para_284" }, { "text": "must be interpreted as precluding legislation of a Member State, as interpreted by the supreme court of that Member State, which provides that, where a return decision and an entry ban decision, adopted in respect of a third-country national who is a family member of Union citizens, who are national …", "paragraph_id": "para_285" }, { "text": "5.       The general principle of good administration and Article 47 of the Charter of Fundamental Rights", "paragraph_id": "para_286" }, { "text": "must be interpreted as not precluding legislation of a Member State which provides that a body entrusted with specialist functions linked to national security may, where it considers that disclosure of even the essence of the grounds on which a return decision is based risks undermining national sec …", "paragraph_id": "para_287" }, { "text": "6.       The principle of the primacy of EU law and Article 267 TFEU", "paragraph_id": "para_288" }, { "text": "must be interpreted as precluding legislation of a Member State which requires a national court to comply with the legal assessments of a superior court, even though it considers, in the light of the interpretation of EU law provided by the Court, that those assessments are not consistent with EU law.", "paragraph_id": "para_289" }, { "text": "[Signatures]", "paragraph_id": "para_290" }, { "text": "*       Language of the case: Hungarian.", "paragraph_id": "para_291" }, { "text": "i       The name of the present case is a fictitious name. 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