- By virtue of Article 26 § 2 of the Charter (Listina základních práv a svobod), which has the rank of constitutional law, the right to exercise certain professions or activities may be subject to certain conditions or restrictions.
- In judgment no. I. ÚS 828/09 of 22 September 2009 the Constitutional Court observed, in particular, that the right to freely choose one’s profession did not include the right to obtain security clearance or the right to practise a specific profession, the exercise of which was moreover strictly limited in the interests of the State. It rejected the complainant’s argument that a decision revoking security clearance for the “secret” category had infringed his fundamental right to freely choose his profession, within the meaning of Article 26 of the Charter. It observed that that right could be construed not as enshrining everyone’s right to a specific profession but only the right to choose the profession one wished to practise. It added that in order to enter into a particular employment relationship or to carry on a specific independent activity, the person concerned had to satisfy the detailed statutory conditions for exercising that profession or activity, in accordance with Article 26 § 2 of the Charter.
- In judgment no. 5 As 44/2006 of 30 January 2009 the Supreme Administrative Court held that, in interpreting the expression “risk for national security”, the evidence gathered had to be examined in the light of a possible security risk. Thus, a mere suspicion of a national security risk sufficed to conclude that the person concerned was not trustworthy from a national security point of view.
- The Supreme Administrative Court also referred to the connection between holding a particular post and issuing security clearance. Referring to the drafting history of the Law, it observed that access to classified information must only be granted to persons necessarily requiring access for the purposes of exercising their profession or function. That was also the position taken by the Constitutional Court, which, in judgment no. I. ÚS 828/09 of 22 September 2009, held that it was not possible to infer from the right to freely choose one’s profession the right to obtain security clearance, which was neither guaranteed by the Charter of Fundamental Rights and Freedoms nor by the instruments of infra-constitutional rank.
- On 4 June 2013 the Court of Justice of the European Union (CJEU) gave a preliminary ruling in the case ZZ v. the United Kingdom (case C-300/11). The request for the ruling concerned the interpretation of Article 30(2) of the amending 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, read in particular in the light of Article 47 of the Charter of Fundamental Rights of the European Union. The context was a dispute between a person with dual French and Algerian nationality and the United Kingdom immigration authorities regarding the latter’s decision refusing him admission, on public security grounds, to the United Kingdom. The CJEU replied, in substance, that where, in exceptional cases, a national authority refused, on grounds of State security, to provide precise and full disclosure to the person concerned of the grounds which constituted the basis of a decision refusing entry, it was necessary for a court to be entrusted with verifying whether those reasons stood in the way of precise and full disclosure of the grounds on which the decision in question was based and of the related evidence. With regard to proof that State security would in fact be compromised by disclosure to the person concerned of those grounds, it observed that there was no presumption that the reasons invoked by a national authority existed and were valid (§ 61 of the judgment). It observed, further, that if the court in question concluded that State security did not preclude disclosure to the person concerned of the precise and full grounds on which a decision refusing entry was based, it gave the competent national authority the opportunity to disclose the missing grounds and evidence to the person concerned. If that authority did not authorise their disclosure, the court proceeded to examine the legality of such a decision on the basis of solely the grounds and evidence which had been disclosed (§ 63) and if it turned out that State security did stand in the way of disclosure of the grounds to the person concerned, judicial review of the legality of a decision taken must be carried out in a procedure which struck an appropriate balance between the requirements flowing from State security and the requirements of the right to effective judicial protection whilst limiting any interference with the exercise of that right to that which was strictly necessary. It held in particular:
“65. In this connection, first, in the light of the need to comply with Article 47 of the Charter, that procedure must ensure, to the greatest possible extent, that the adversarial principle is complied with, in order to enable the person concerned to contest the grounds on which the decision in question is based and to make submissions on the evidence relating to the decision and, therefore, to put forward an effective defence. In particular, the person concerned must be informed, in any event, of the essence of the grounds on which a decision refusing entry ... is based, as the necessary protection of State security cannot have the effect of denying the person concerned his right to be heard and, therefore, of rendering his right of redress ineffective ... .
66. Second, the weighing up of the right to effective judicial protection against the necessity to protect the security of the Member State concerned – upon which the conclusion set out in the preceding paragraph of the present judgment is founded – is not applicable in the same way to the evidence underlying the grounds that is adduced before the national court with jurisdiction. In certain cases, disclosure of that evidence is liable to compromise State security 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 the national security authorities and thus seriously impede, or even prevent, future performance of the tasks of those authorities.
67. In that context, the national court with jurisdiction has the task of assessing whether and to what extent the restrictions on the rights of the defence arising in particular from a failure to disclose the evidence and the precise and full grounds on which the decision ... is based are such as to affect the evidential value of the confidential evidence.
68. Accordingly, it is incumbent upon the national court with jurisdiction, first, to ensure that the person concerned is informed of the essence of the grounds which constitute the basis of the decision in question in a manner which takes due account of the necessary confidentiality of the evidence and, second, to draw, pursuant to national law, the appropriate conclusions from any failure to comply with that obligation to inform him.”
- Those considerations were of even greater application, in the Government’s submission, if, under Article 26 § 2 of the Charter of Fundamental Rights and Freedoms, for the performance of a specific public office, the law stipulated special requirements that the official concerned had ceased to satisfy. The Government therefore shared the view of the Supreme Administrative Court that there was no right to hold such public office because the person concerned could not have any legitimate expectation of not being removed from office if he or she no longer satisfied the requirements for the proper performance of that office (see paragraph 59 above).