Collegium MaiusOn 18 September 2017 the seminar "Public order, national security and the rights of third - country nationals in immigration and citizenship cases" was held in the oldest building of Jagiellonian University (Collegium Maius) . The seminar was organized by Association of the Councils of State and Supreme Administrative Jurisdiction of the European Union (ACA-Europe) and Supreme Administrative Court of Poland in cooperation with the Voivodship Administrative Court in Cracow, represented by the Vice-President of this Court dr Anna Dumas. Over forty participants were present at the seminar, representing the Councils of State and the Supreme Administrative Courts from twenty EU Member States.

 

Marek & Piet HeinThe seminar was opened by the President of the Supreme Administrative Court of Poland Prof. dr hab. Marek Zirk-Sadowski and the President of ACA-Europe, the Vice – President of the Council of State of the Netherlands, Prof. Piet Hein Donner. Then the General Advocate of the Court of Justice of the European Union (CJEU), Prof. UŚ dr hab. Maciej Szpunar took the floor. He presented – from the perspective of CJEU – the case law of CJEU related to notions of the public order and national security. At the same time he underlined that those notions have to be interpreted in the context of relevant national law, so it is for the national courts to establish case-by-case, if the criteria resulting from EU law are met. The General Report, based on the national reports of the ACA-Europe Members, was presented by its author, the Treasurer of the ACA-Europe Association, the Vice – President of the Supreme Administrative Court of Poland Prof. UŁ dr hab. Jacek Chlebny. He underlined that neither national security nor public order are terms of precise comprehension in the judicial practice of EU Member States and the national reports show that there is no definitive or consistent interpretation which is placed on these terms. He pointed out that the difficulty of defining such vague notions allow for the weighing up of the rights of the individual and the public in an individual case. He noted that, when defining the risk to national security or public order, national judge must have thorough knowledge of the transnational legal instruments and the relevant case-law of the CJEU. However, in the end of the judicial process it is a national judge who has to answer whether the entry or stay of a third-country national poses a threat to public order or raises concerns with regard to national security.

 

Roger StevensDuring the seminar as panelists and moderators also spoke among others: the First President of the Council of State of Belgium Roger Stevens, the President of the Supreme Court of Hungary dr Péter Darák, the First President of the Supreme Court of Ireland Frank Clarke and Prof. Dr. Dr. h.c. Klaus Rennert, the President of the Federal Administrative Court.

 

Participants discussingParticipants discussed the legal framework and proceedings before national administrative bodies in the field of immigration and citizenship cases and the scope and methods of exercising judicial control over decisions issued in this matter. In the context of the CJEU case-law it was emphasized that national judges, taking into account the national security - on the one hand and the right of the access of individual to information on the reasons of the decision made on the grounds of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States - on the other hand, have to strike balance between those principles in three aspects: legal basis of the decision, its reasons and public access to the case-law. The issue of the access of national judges to confidential documents was also discussed, as well as methods of classifying documents depending on their disclosure and their impact on the possibility of using those documents in the judicial proceedings. National judges emphasised several times that the judicial control, especially in the field of immigration and citizenship cases, is a very important and an extraordinary tool of control over the executive power and activities of the public administration in the framework of the principles of checks and balances and separation of powers.

 

Marek Zirk-SadowskiThe closing remarks were made by the President of Supreme Administrative Court Prof. dr hab. Marek Zirk-Sadowski who stressed out that the European, comparative and national perspective, reflected in the General Report and in presentations of the participants of the seminar, leads to a conclusion that administrative judges in Europe are facing similar challenges in each EU Member State. He also pointed out that the complexity of the court cases in the discussed matter requires a special and individual treatment, taking into consideration the need to strike the balance between the rights of individuals and the standards arising from CJEU and European Court of Human Rights case-law on the one hand and public interest and national security as a part of constitutional identity of EU Member States on the other

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