Provisional text
JUDGMENT OF THE COURT (Third Chamber)
16 July 2026 (*)
( 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 – Return of illegally staying third-country nationals – Threat to national security – Statement by a specialist national authority – Statement of reasons – Access to the file – Classified information – Primacy of EU law )
In Case C‑26/25 [Bukla], (i)
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
PQ
v
Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság,
Alkotmányvédelmi Hivatal,
THE COURT (Third Chamber),
composed of C. Lycourgos (Rapporteur), President of the Chamber, O. Spineanu‑Matei, S. Rodin, N. Piçarra and N. Fenger, Judges,
Advocate General: D. Spielmann,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– PQ, by T. Kovács, A. Németh and B. Pohárnok, ügyvédek,
– the Hungarian Government, by Zs. Biró-Tóth and M.Z. Fehér, acting as Agents,
– the German Government, by J. Möller and R. Kanitz, acting as Agents,
– the European Commission, by F. Blanc, A. Katsimerou, E. Montaguti, Zs. Teleki and P.J.O. Van Nuffel, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
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 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 (OJ 2008 L 348, p. 98), and the principle of the primacy of EU law.
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 Directorate’) and the Alkotmányvédelmi Hivatal (Constitutional Protection Office, Hungary), on the other, concerning the lawfulness of the return decision and the ban on entry and stay issued in respect of PQ.
Legal context
European Union law
The FEU Treaty
3 Article 20 TFEU provides:
‘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.
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:
(a) the right to move and reside freely within the territory of the Member States;
(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;
(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;
(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.
These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.’
Directive 2008/115
4 Recitals 6 and 24 of Directive 2008/115 are worded as follows:
‘(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 criteria, implying that consideration should go beyond the mere fact of an illegal stay. When using standard forms for decisions related to return, namely return decisions and, if issued, entry-ban decisions and decisions on removal, Member States should respect that principle and fully comply with all applicable provisions of this Directive.
…
(24) This Directive respects the fundamental rights and observes the principles recognised in particular by the [Charter].’
5 Article 1 of that directive provides:
‘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.’
6 Article 2(1) of that directive provides:
‘This Directive applies to third-country nationals staying illegally on the territory of a Member State.’
7 Under point 2 of Article 3 of that directive:
‘For the purpose of this Directive the following definitions shall apply:
…
(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 Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2016 L 77, p. 1)] or other conditions for entry, stay or residence in that Member State’.
8 Article 5 of Directive 2008/115 provides:
‘When implementing this Directive, Member States shall take due account of:
(a) the best interests of the child;
(b) family life;
(c) the state of health of the third-country national concerned,
and respect the principle of non-refoulement.’
9 Article 6(1) of that directive provides:
‘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.
…’
10 Article 11 of that directive lays down the rules governing entry-ban decisions.
11 Article 12(1) of that directive provides:
‘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.
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.’
12 Article 13(1) of Directive 2008/115 provides:
‘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.’
Hungarian law
Law No II of 2007
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:
‘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,
…
(c) whose entry and stay adversely affect or endanger national security, public security or public policy;
…
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
…
(d) whose entry and stay adversely affect or endanger national security, public security or public policy;
…
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 [Government Decree No 114 of 2007], within the scope of their powers, with a view to achieving the tasks connected with the protection of interests defined by law. If the independent ban on entry and stay is made on the ground referred to in subparagraph 1(c), or if the return in accordance with the rules governing immigration policing is made on the ground referred to in subparagraph 2(d), the law enforcement agencies specified in [that] decree shall, in cases affecting their tasks and competences, make a proposal as to the duration of the ban on entry and stay. The immigration police authority cannot depart from the content of the proposal.’
14 Paragraph 45(1) of that law provides:
‘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:
(a) the duration of the stay;
(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;
(c) the ties that the third-country national has with Hungary and the absence of connections with his or her country of origin.’
15 Under subparagraph 1 of Paragraph 87/A of that law:
‘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.
…’
16 According to subparagraph 4 of Paragraph 87/B of that law:
‘The specialist national authority’s opinion is binding on the immigration police authority concerned with regard to technical matters.’
Government Decree No 114 of 2007
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 May 2007 provides that a ban on entry and stay may be ordered on a proposal from the investigating authority, the Constitutional Protection Office, the police or the Terrorelhárítási Központ (Counterterrorism Centre, Hungary).
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.
Law No CLV of 2009
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:
‘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.
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.
3. Where the access authorisation is refused, the data subject may challenge that decision by seeking an administrative judicial review. …’
20 Paragraph 12(1) of that law provides:
‘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.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
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.
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.
23 On 6 August 2020, PQ applied for a national settlement permit on account of his family situation.
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.
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.
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.
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 Interior, Hungary) had, as a second-tier specialist authority, delivered an opinion on 12 February 2021 that PQ’s stay in Hungarian territory undermined Hungary’s national security interests. In its decision, the National Directorate-General for Immigration Policing found that, under Hungarian legislation, it could not depart from the opinion of the Minister for the Interior and that it was therefore required to refuse PQ’s application without taking into account his personal situation.
28 On 16 April 2021, the Constitutional Protection Office proposed the adoption of a ban on entry and stay against PQ.
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.
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.
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.
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).
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.
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.
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 to the Regional Directorate. Under Hungarian law, the Regional Directorate must not examine any additional individual circumstances and must rely on the assessment of the Constitutional Protection Office.
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.
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 would be refused authorisation to draw up a written document containing the substance of that information. Under Hungarian law, the court seised of an appeal against a decision on stay has no power in that regard.
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 proceedings without first carrying out a specific assessment of all the relevant circumstances, in particular those relating to the family life of the person concerned. Furthermore, the treatment of classified information during administrative procedures and judicial proceedings contravenes the requirements set out in the Court’s case-law.
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:
‘(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, cohabiting partner) are nationals of a Member State of the European Union and live in that Member State, without previously examining the criteria provided for in Article 5 of [that directive] and in Articles 7 and 24 of the Charter?
(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 [national] authority that solely determines there to be a danger or harm to national security, public security or public policy, where that proposal is binding on the immigration [police] authority, authoritative and has been issued without an in-depth examination of whether the grounds of national security, public security or public policy exist in the specific case in question, and without taking into account individual circumstances or the requirements of necessity and proportionality?
(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 public security, has adopted a return decision, or the specialist [national] authority which has determined the matter to be confidential, must, [in all cases], ensure that the third-country national concerned and his or her legal representative are guaranteed the right to know at least the essence of the confidential or classified information and data underpinning the decision adopted on those grounds and to use that information or those data in the proceedings concerning that decision, where the competent authority considers that such disclosure would be contrary to the interests of national security?
(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?’
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.
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.
42 The referring court is uncertain as to whether several aspects of that decision are compatible with EU law.
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 context of the judicial proceedings or where facts establishing the need for such an examination are revealed in those proceedings. That examination is also precluded where the contested return decision has been preceded by another decision which refused that person’s right of residence in Hungary.
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 on classified information. In those circumstances, the only means compatible with existing national law which would ensure respect for that person’s rights would be for the court having jurisdiction to find that, since he or she is unable to access the relevant classified information, that person is unable to defend his or her rights and, consequently, to invite the public prosecutor to act in that person’s interest. The public prosecutor would then be able to decide to intervene in the proceedings with access to that classified information without, however, being able to disclose it to the person concerned. On the other hand, if the public prosecutor decides not to intervene in the proceedings, the court having jurisdiction may disregard the view of the administrative authorities as regards the existence of a risk to national security.
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.
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:
‘(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
– 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 on them for the first time at the stage of the judicial proceedings (including where the family ties to the Union citizen were already known to the authority which acted in the context of the administrative procedure), or where the relevant facts in that regard are brought to light for the first time at the stage of the judicial proceedings,
– 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?
(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 Member State and the practice of a [superior] court of that Member State pursuant to which the proportionality of a decision adopted by the immigration police authority in relation to a return and to an entry and residence ban may be reviewed without the third-country national concerned, or his or her representative, having been able, at the very least, to learn the [essence] of the grounds of the proposal by the specialist authority, which relied on the ground of public policy, public security or national security, underlying that decision and to express his or her point of view and set out his or her counterarguments in that regard?
(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 of that Member State under which, where the exceptions relating to national security, public policy and public safety listed in Article 12(1) of Directive [2008/115] apply, neither the authority of the Member State adopting a return decision based on a ground of national security, public security or public policy nor the authority (entrusted with the protection of order) determining the confidentiality or the classification [of the information] is required – where the disclosure of the grounds would run counter to national security – to guarantee that the person concerned or his or her representative will in any case be aware, at the very least, of the [essence] of the confidential or classified information upon which a decision based on such a ground is founded, as well as the right to use that information in the context of the procedure relating to that decision, since, instead, in the context of the judicial review of an administrative decision based on such confidential or classified grounds, the public prosecutor – or any other person, with the exception of the third-country national concerned – may, at the invitation of the court, act to protect the rights of the third-country national concerned, but again without being entitled to disclose to the applicant concerned, at the very least, the [essence] of the grounds?
(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 Charter as well as with Article 5, Article 11(2), Article 12(1) and Article 13 of Directive [2008/115] – having regard to recitals 6 and 24 and Article 1 of that directive – be interpreted as precluding the legislation of a Member State and the practice of a [superior] court of that Member State pursuant to which
– 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 supreme court gives a more extensive interpretation of EU law than that given in the judgments of the Court of Justice relevant to the case under consideration, and lays down a uniform interpretation of the law which requires, in the context of applying EU law, implementation arrangements that are contrary to the interpretation of that law given in the judgment of the Court of Justice and prevent its effective application,
– 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 interpretation of the law) where it intends to depart, on account of EU law, from one or more binding decisions of a [superior] court contrary to EU law or to the judgments of the Court of Justice, such that the direct application of EU law, including judgments of the Court of Justice, is possible only by virtue of an authorisation to that effect granted by the decision delivered in the context of such a procedure (decision delivered in the interest of a uniform interpretation of the law)?
(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 grounds upon which that authority’s position is based is likely to jeopardise the national security of the Member State concerned in a direct and specific manner, in that it may, in particular, endanger the life, health or freedom of persons or reveal methods of investigation specifically used by the bodies entrusted with specialist functions relating to national security and thus seriously impede, or even prevent, future performance of the tasks of those bodies, grounds which do not allow the party or his or her representative to learn the [essence] of the grounds upon which that position is based?’
Consideration of the questions referred
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 the points of interpretation of EU law which they need in order to decide the disputes before them (see order of 26 January 1990, Falciola, C‑286/88, EU:C:1990:33, paragraph 7, and judgment of 15 April 2021, État belge (Circumstances subsequent to a transfer decision), C‑194/19, EU:C:2021:270, paragraph 21).
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 17 July 1997, Krüger, C‑334/95, EU:C:1997:378, paragraphs 22 and 23; of 28 November 2000, Roquette Frères, C‑88/99, EU:C:2000:652, paragraph 18; and of 3 June 2025, Kinsa, C‑460/23, EU:C:2025:392, paragraph 34). In particular, the Court may find it necessary to consider provisions of EU law which the national court has not referred to in its question (see judgments of 20 March 1986, Tissier, 35/85, EU:C:1986:143, paragraph 9, and of 1 August 2025, Alace and Canpelli, C‑758/24 and C‑759/24, EU:C:2025:591, paragraph 44).
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.
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.
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 institutions, bodies, offices and agencies of the European Union (judgment of 22 September 2022, Országos Idegenrendészeti Főigazgatóság and Others, C‑159/21, EU:C:2022:708, paragraph 34 and the case-law cited).
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).
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.
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.
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.
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.
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.
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 16 March 1978, Oehlschläger, 104/77, EU:C:1978:69, paragraph 4, and of 24 July 2023, Lin, C‑107/23 PPU, EU:C:2023:606, paragraph 76). For its part, the Court of Justice must rule on the interpretation or validity of the provisions of EU law in respect of which its opinion is sought, taking into account the factual and legislative context of the questions submitted to it, as described by the referring court (see, to that effect, judgments of 18 December 2007, Laval un Partneri, C‑341/05, EU:C:2007:809, paragraph 47, and of 1 August 2025, Royal Football Club Seraing, C‑600/23, EU:C:2025:617, paragraph 66).
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.
The first question
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 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 examined the consequences of such a decision on the family life of that third-country national and on the situation of that third-country national’s minor children.
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.
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 conferred by virtue of their status as Union citizens (judgment of 25 April 2024, NW and PQ (Classified information), C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 58 and the case-law cited).
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. The purpose and justification of those derived rights are based on the fact that a refusal to recognise them would be such as to interfere, in particular, with a Union citizen’s freedom of movement within the territory of the European Union (judgment of 25 April 2024, NW and PQ (Classified information), C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 59 and the case-law cited).
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 residence must nevertheless be granted to a third-country national who is a family member of that Union citizen, since the effectiveness of citizenship of the European Union would otherwise be undermined if, as a consequence of refusal of such a right, that Union citizen were obliged in practice to leave the territory of the European Union as a whole, thus depriving him or her of the genuine enjoyment of the substance of the rights conferred by that status (judgment of 25 April 2024, NW and PQ (Classified information), C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 60 and the case-law cited).
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 dependency of such a nature that it would lead to the Union citizen being compelled to accompany the third-country national concerned and to leave the territory of the European Union as a whole (judgment of 25 April 2024, NW and PQ (Classified information), C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 61 and the case-law cited).
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 Article 20 TFEU must be assessed, and such an assessment must take account of all the circumstances of the case (judgment of 25 April 2024, NW and PQ (Classified information), C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 63 and the case-law cited).
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.
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 Union citizen concerned, on account of the relationship of dependency between him or her and that third-country national, of the genuine enjoyment of the rights conferred by virtue of his or her status as a Union citizen (see, to that effect, judgments of 13 September 2016, CS, C‑304/14, EU:C:2016:674, paragraph 32, and of 25 April 2024, NW and PQ (Classified information), C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 65).
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).
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 territory of the Member State concerned, within the meaning of point 2 of Article 3 of Directive 2008/115 (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 89).
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).
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.
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).
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 that he or she derives from the status that Article 20 TFEU confers on him or her, the procedural requirements imposed on the competent national authorities as regards the examination of applications for residence permits can be transposed, mutatis mutandis, to return procedures.
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 the evidence enabling them to assess whether the conditions for the application of that article are satisfied (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 69 and the case-law cited).
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 and the Union citizen concerned must be free to adduce and, if necessary, by carrying out the requisite investigations, whether there is a relationship of dependency between those two persons as described in paragraph 65 above (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 70 and the case-law cited).
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 information for that purpose, that the decision which they will adopt does not mean that that Union citizen is obliged, in practice, to leave the territory of the European Union as a whole. To that end, those authorities must, in particular, determine whether there is a relationship of dependency between the persons concerned as described in paragraph 65 above (see, by analogy, judgment of 25 April 2024, NW and PQ (Classified information), C‑420/22 and C‑528/22, EU:C:2024:344, paragraphs 71 and 72).
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 third-country national concerned and, second, respect the principle of non-refoulement. Those interests and that principle must be duly taken into account at all stages of the return procedure and, in particular, at the time of the adoption of a return decision (see, to that effect, judgments of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal – Medicinal cannabis), C‑69/21, EU:C:2022:913, paragraph 91, and of 4 September 2025, Adrar, C‑313/25 PPU, EU:C:2025:647, paragraph 79).
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).
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 effect, judgments of 14 January 2021, Staatssecretaris van Justitie en Veiligheid (Return of an unaccompanied minor) (C‑441/19, EU:C:2021:9, paragraph 60), and of 11 March 2021, État belge (Return of the parent of a minor), C‑112/20, EU:C:2021:197, paragraph 33).
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 family member of Union citizens, who are nationals of that Member State and have never exercised their freedom of movement, without having first examined the consequences of such a decision on the family life of that third-country national and on the situation of that third-country national’s minor children, where those authorities have information on the existence of family ties between the third-country national and those Union citizens.
The fifth question
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 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:
– 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
– 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
– the return procedure was preceded by a decision refusing residence in the Member State concerned.
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 cooperation, in accordance with which he or she must inform the competent national authorities as soon as possible of all the relevant developments concerning his or her family life (see, to that effect, judgment of 4 September 2025, Adrar, C‑313/25 PPU, EU:C:2025:647, paragraph 83 and the case-law cited).
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.
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 investigation, that the conditions laid down in paragraphs 64 to 66 above are satisfied (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 73).
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 court on a potential failure to comply with those obligations in the context of an effective remedy, as required by Article 13(1) of Directive 2008/115 and Article 47 of the Charter, even if he or she has not relied, before those authorities, on a right of residence under Article 20 TFEU or on a relationship of dependency.
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 derives from the status that Article 20 TFEU confers on him or her, it is for the national courts called upon to rule on a refusal of residence to take into account facts introduced after the administrative decision (see, to that effect, judgment of 22 June 2023, Staatssecretaris van Justitie en Veiligheid (Thai mother of a Dutch minor child), C‑459/20, EU:C:2023:499, paragraph 52).
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.
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).
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.
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 those rules by seeking to ensure that the right of the third-country national concerned to have his or her family situation taken into account before a return decision is adopted cannot be used to reopen or extend indefinitely the administrative procedure (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 105).
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.
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 assessing in any way whether that article was applicable, even though they had information regarding the existence of family ties between the third-country national concerned and a Union citizen.
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, Staatssecretaris van Justitie en Veiligheid (Thai mother of a Dutch minor child), C‑459/20, EU:C:2023:499, paragraph 52). In addition, as recalled in paragraph 69 above, a right of residence under Article 20 TFEU arises at the time when the requisite conditions are met, irrespective of the procedures carried out with a view to obtaining recognition of that right.
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 significant period of time elapses between the adoption of those decisions, the competent national authorities must, in any event, take into account during the return procedure any new circumstances relevant for the purposes of the application of Article 20 TFEU and thus they will not be able to rely exclusively, in order to preclude that application, on the fact that the right of residence was previously refused, even if that refusal was adopted taking due account of Article 20 TFEU.
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:
– 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
– 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
– the return procedure was preceded by a decision refusing residence in the Member State concerned.
The second question
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 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 have never exercised their freedom of movement, solely on the basis of a binding non-reasoned opinion adopted by a body entrusted with specialist functions linked to national security, without a rigorous examination of all the individual circumstances or of whether the principle of proportionality had been observed.
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, in order to maintain public policy or safeguard public security. That may be the case where the third-country national represents a real, immediate and sufficiently serious threat to public order or public or national security (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 76 and the case-law cited).
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 best interests of the child of the third-country national concerned (judgment of 25 April 2024, NW and PQ (Classified information), C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 77 and the case-law cited).
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 their right to freedom of movement. Moreover, the Court has already held that that requirement must be complied with in a procedure relating to the application of Article 20 TFEU, where the decision at issue is not a decision refusing residence but is an expulsion measure (see, to that effect, judgment of 13 September 2016, CS, C‑304/14, EU:C:2016:674, paragraphs 40 and 41).
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.
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 of applying those articles, and in particular the family situation of the third-country national concerned, before being able to adopt such a return decision. Those national authorities must, moreover, ensure compliance with the principle of proportionality at all stages of the return procedure (see, to that effect, judgments of 11 June 2015, Zh. and O., C‑554/13, EU:C:2015:377, paragraph 49, and of 1 August 2025, Al Hoceima and Boghni, C‑636/23 and C‑637/23, EU:C:2025:603, paragraph 77).
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.
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.
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 arrangements are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it impossible in practice or excessively difficult to exercise the rights conferred by the European Union legal order (principle of effectiveness) (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 79 and the case-law cited).
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).
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 reading the decision itself or by requesting and obtaining notification of those reasons, without prejudice to the power of the court with jurisdiction to require the authority concerned to provide that information, so as to make it possible for the person concerned to defend his or her rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in applying to the court with jurisdiction, and in order to put the latter fully in a position in which it may carry out the review of the lawfulness of the national decision in question (judgment of 25 April 2024, NW and PQ (Classified information), C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 81 and the case-law cited).
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 basis of a weighing up, on the one hand, of the right to good administration and the right to an effective remedy of the person concerned and, on the other hand, the interests relied on in order to justify the non-disclosure of information on reasons in fact to that person, in particular where those interests relate to national security (see, by analogy, judgment of 22 September 2022, Országos Idegenrendészeti Főigazgatóság and Others, C‑159/21, EU:C:2022:708, paragraph 50).
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 2008/115, in particular by not informing that person, at the very least, of the essence of the grounds on which the decision taken against him or her is based (see, by analogy, judgment of 22 September 2022, Országos Idegenrendészeti Főigazgatóság and Others, C‑159/21, EU:C:2022:708, paragraph 51).
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 national authority which is competent as regards return procedures cannot validly confine itself to implementing a non-reasoned decision adopted by another national authority which has failed to comply with that requirement, and take, on that basis alone and on grounds of national security, a return decision 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 their right to freedom of movement (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 82 and the case-law cited).
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 request of that authority (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 83 and the case-law cited).
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 reasons and that it can adopt such an opinion only after having duly taken into account all the relevant circumstances referred to in paragraphs 99 and 101 above (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 84 and the case-law cited).
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 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 have never exercised their freedom of movement, solely on the basis of a binding non-reasoned opinion adopted by a body entrusted with specialist functions linked to national security, without a rigorous examination of all the individual circumstances or of whether the principle of proportionality had been observed.
The third, fourth, sixth and seventh questions
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 principle of good administration and Articles 5, 7, 24 and 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 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 nationals of that Member State and have never exercised their freedom of movement, are based on information the disclosure of which would jeopardise the national security of that Member State, that third-country national can access that information only after obtaining authorisation to that end, is not provided even with the essence of the grounds on which those decisions are based and cannot, in any event, use, for the purposes of an administrative procedure or judicial proceedings, the information to which he or she could have had access, if any, but that the court with jurisdiction must request the intervention of a public prosecutor in order to protect the rights of that third-country national.
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.
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.
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.
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 included in return decisions to be restricted, where national law allows for the right to information to be restricted, in particular in order to safeguard national security, EU law does not contain any particular rule defining the specific arrangements for such a limitation.
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 which would jeopardise the national security of the Member State in question, fall within the legal order of each Member State, within the limits resulting from the principles and law recalled in paragraphs 105 and 106 above.
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).
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, by the authorities of the Member States when they take decisions which come within the scope of EU law, in which he or she can effectively make known his or her views as regards the information on which the authorities intend to base their decision (judgment of 25 April 2024, NW and PQ (Classified information), C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 89 and the case-law cited).
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 full knowledge of the facts, an individual assessment of all the relevant circumstances, which requires that the addressee of those decisions be able to correct an error or submit such information relating to his or her personal circumstances as will argue in favour of the adoption or non-adoption of those decisions, or in favour of their having a specific content (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 90 and the case-law cited).
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 effects of those obligations on him or her (see, to that effect, judgments of 8 May 2018, K.A. and Others (Family reunification in Belgium), C‑82/16, EU:C:2018:308, paragraph 103, and of 14 January 2021, Staatssecretaris van Justitie en Veiligheid (Return of an unaccompanied minor), C‑441/19, EU:C:2021:9, paragraph 59).
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 corollary, the right of access to all the material in the file during the administrative procedure (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 91 and the case-law cited).
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 on which the authority has based that decision, in order to be able effectively to comment on that material (judgment of 25 April 2024, NW and PQ (Classified information), C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 92 and the case-law cited).
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, and to comment on them, which presupposes that the person subject to a return decision and an entry ban must be able to acquaint himself or herself with the material in his or her file which is made available to the court or tribunal called upon to rule on the appeal against those decisions (judgment of 25 April 2024, NW and PQ (Classified information), C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 93 and the case-law cited).
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 to an effective remedy of the person concerned and, on the other, the interests relied on in order to justify the non-disclosure of an element of the file to that person, in particular where those interests relate to national security (judgment of 25 April 2024, NW and PQ (Classified information), C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 94 and the case-law cited).
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 not informing that person at the very least of the essence of the grounds on which the decisions taken against him or her are based (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 95 and the case-law cited).
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, endanger the life, health or freedom of persons or reveal the methods of investigation specifically used by bodies entrusted with specialist functions relating to national security and thus seriously impede, or even prevent, future performance of the tasks of those authorities (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 96 and the case-law cited).
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 2008/115, restrict access to information relating to the factual grounds for the decisions taken against that person, they cannot, without acting in breach of the principle of effectiveness, the general principle of good administration and the right to an effective remedy, place that person in a situation where he or she would not be in a position to gain effective knowledge, where appropriate in the context of a specific procedure designed to protect national security, of the essence of the decisive material contained in that file (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 97 and the case-law cited).
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 obtain, under certain conditions, authorisation to access that information, together with a complete prohibition on using the information thus obtained for the purposes of the administrative procedure or any judicial proceedings (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 98 and the case-law cited).
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 own interests by expressing his or her point of view on that information (see, to that effect, judgments of 25 April 2024, NW and PQ (Classified information), C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 99, and of 29 July 2024, protectus, C‑185/23, EU:C:2024:657, paragraph 95 and the case-law cited).
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.
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.
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).
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).
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 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 nationals of that Member State and have never exercised their freedom of movement, are based on information the disclosure of which would jeopardise the national security of that Member State, that third-country national can access that information only after obtaining authorisation to that end, is not provided even with the essence of the grounds on which those decisions are based and cannot, in any event, use, for the purposes of an administrative procedure or judicial proceedings, the information to which he or she could have had access, if any, but that the court with jurisdiction must request the intervention of a public prosecutor in order to protect the rights of that third-country national.
The ninth question
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 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 security, refuse to disclose those grounds to the third-country national who is the subject of that return decision.
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.
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).
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).
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 procedural law which accommodate, on the one hand, legitimate State security considerations regarding the nature and sources of the information taken into account in the adoption of such a decision and, on the other, the need to ensure sufficient compliance with the person’s procedural rights, such as the right to be heard and the adversarial principle (judgment of 25 April 2024, NW and PQ (Classified information), C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 107 and the case-law cited).
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 authority relating to State security actually preclude the full disclosure of those grounds and that evidence, is compatible with 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 108 and the case-law cited).
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 to disclose the omitted grounds and evidence to the person concerned (judgment of 25 April 2024, NW and PQ (Classified information), C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 109 and the case-law cited).
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 only those grounds and evidence which have been disclosed (judgment of 25 April 2024, NW and PQ (Classified information), C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 110 and the case-law cited).
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 by appropriately weighing up the relevant requirements and has noted that, where that court intends to do so, it must ensure that the essence of the grounds which constitute the basis of the decision at issue is communicated to the person concerned in a manner which takes due account of the necessary confidentiality of the evidence (judgment of 25 April 2024, NW and PQ (Classified information), C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 111 and the case-law cited).
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).
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 the power to draw the appropriate conclusions from the decision ultimately adopted in that regard by that authority (see, by analogy, judgment of 29 July 2024, protectus, C‑185/23, EU:C:2024:657, paragraph 99 and the case-law cited).
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, where it considers that disclosure of even the essence of the grounds on which a return decision is based risks undermining national security, refuse to disclose those grounds to the third-country national who is the subject of that return decision. However, in order to ensure that that person’s rights of defence are respected, a national court hearing an action challenging such a decision must, where relevant, draw the appropriate conclusions from any decision taken by the competent authorities not to disclose all or part of the grounds for that decision and the evidence relating thereto.
The eighth question
Admissibility
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.
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 assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (see judgments of 21 April 1988, Pardini, 338/85, EU:C:1988:194, paragraph 8, and of 24 July 2023, Lin, C‑107/23 PPU, EU:C:2023:606, paragraph 61).
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 facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see judgments of 13 July 2000, Idéal tourisme, C‑36/99, EU:C:2000:405, paragraph 20, and of 24 July 2023, Lin, C‑107/23 PPU, EU:C:2023:606, paragraph 62).
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.
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.
Substance
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 law, the general principle of good administration and Articles 1, 5 and 11 to 13 of Directive 2008/115, 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.
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.
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 undermine the effect accorded to those various provisions in the territory of those States. It follows that, by virtue of the principle of the primacy of EU law, a Member State’s reliance on provisions of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of EU law (judgment of 11 January 2024, Global Ink Trade, C‑537/22, EU:C:2024:6, paragraph 23 and the case-law cited).
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, disregard the rulings of a superior national court if it considers, in the light of the interpretation provided by the Court, that those rulings are not consistent with EU law, if necessary by refusing to apply the national rule requiring it to comply with the decisions of that superior court (judgments of 11 January 2024, Global Ink Trade, C‑537/22, EU:C:2024:6, paragraph 24, and of 12 February 2026, Petlichev, C‑56/25, EU:C:2026:87, paragraph 47 and the case-law cited).
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).
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).
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 of the primacy of EU law, it reached that conclusion on the ground that the legislation at issue in the case which gave rise to that judgment authorised lower courts to depart from such assessments, where they considered that those assessments were incompatible with EU law and provided reasons for their decision in that regard.
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.
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 the Court referred to in paragraph 58 above that, in the context of the procedure referred to in Article 267 TFEU, the Court must give a ruling taking into account the regulatory context of the questions referred to it, as defined by the referring court.
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.
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 foregoing that the principle of the primacy of EU law and Article 267 TFEU preclude, in any event, legislation such as that referred to in that question, with the result that it is not necessary to rule on those various other provisions of primary law mentioned or on the general principle of good administration.
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.
Costs
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.
On those grounds, the Court (Third Chamber) hereby rules:
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
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 examined the consequences of such a decision on the family life of that third-country national and on the situation of that third-country national’s minor children, where those authorities have information on the existence of family ties between the third-country national and those Union citizens.
2. Article 20 TFEU, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union,
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:
– 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
– 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
– the return procedure was preceded by a decision refusing residence in the Member State concerned.
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,
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 have never exercised their freedom of movement, solely on the basis of a binding non-reasoned opinion adopted by a body entrusted with specialist functions linked to national security, without a rigorous examination of all the individual circumstances or of whether the principle of proportionality had been observed.
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,
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 nationals of that Member State and have never exercised their freedom of movement, are based on information the disclosure of which would jeopardise the national security of that Member State, that third-country national can access that information only after obtaining authorisation to that end, is not provided even with the essence of the grounds on which those decisions are based and cannot, in any event, use, for the purposes of an administrative procedure or judicial proceedings, the information to which he or she could have had access, if any, but that the court with jurisdiction must request the intervention of a public prosecutor in order to protect the rights of that third-country national.
5. The general principle of good administration and Article 47 of the Charter of Fundamental Rights
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 security, refuse to disclose those grounds to the third-country national who is the subject of that return decision. However, in order to ensure that that person’s rights of defence are respected, a national court hearing an action challenging such a decision must, where relevant, draw the appropriate conclusions from any decision taken by the competent authorities not to disclose all or part of the grounds for that decision and the evidence relating thereto.
6. 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.
[Signatures]