LOUW v. SWEDEN
Inadmissible
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova
1. The applicant, Mr Rudolf Simon Louw, is a Dutch national who was born in 1951 and lives in Zierikizee. He was represented before the Court by Mr T. Barkhuysen, a lawyer practising in Amsterdam. 2 3. The applicant worked as an engineer for a Swedish company that produces aircraft for the military. He started in 1996 in the civilian section and transferred to the military side of the business in 1998, where he had access to some classified information related to defence. However, he never had a security clearance. In 2003 the company changed its practices so that only security-cleared personnel could access classified information. A security protection agreement was signed between the company and the Swedish Defence Material Administration (Försvarets materielverk, hereinafter – “the Administration”). Thereafter the applicant did not have access to classified information on defence matters. 4. However, as the applicant needed access to classified information in order to carry out his work, the company requested that the Administration grant him security clearance at level 2 (out of a possible three levels). On 10 June 2008 the Administration refused the company’s request, stating that a foreign citizen could not be given access to defence secrets at that level. 5. The company subsequently renewed its request to the Administration to grant the applicant security clearance at level 2. On 7 October 2008 the Administration refused the request, stating that a foreign citizen could not be allowed to handle licensed information in the form of weapons data or information from strength of material analyses. 6. The Administration’s decisions could not be appealed against. 7. The applicant, meanwhile, continued to work for the company on tasks that did not require security clearance. 8. During 2008 and 2009 the company suffered major shortages in demand which led to a reorganisation and staff reductions. The applicant received an offer to transfer to another department to continue to work as an engineer. He refused the offer. As there were no other suitable positions available, he was made redundant on 27 November 2009. 9. The applicant took the company to court, asking the Linköping District Court (tingsrätt) to declare the dismissal invalid and award him damages. 10. On 20 June 2012 his application was dismissed by the court. It found that the company had made the applicant a reasonable offer of an internal transfer and that the company had had an actual shortage of work. The dismissal had therefore been valid. 11. The applicant appealed against the judgment to the Labour Court (Arbetsdomstolen) and also requested that the court refer the case to the Court of Justice of the European Union (hereinafter “the CJEU”) for a preliminary ruling. 12. On 19 December 2012 the Labour Court refused the request for a referral for a preliminary ruling and decided not to grant leave to appeal. The decision was final. 13. Thereafter the applicant lodged an application with the Court (application no. 46964/13). He complained that the Administration’s refusal to grant him security clearance and his subsequent dismissal had constituted a violation of Article 1 of Protocol No. 1 to the Convention, separately and in conjunction with Article 14. Under Article 6, alone and in conjunction with Article 14, he further complained that the domestic courts had failed to request a preliminary ruling from the CJEU, that the domestic courts had not been impartial or independent, and that he had not had access to a court with full jurisdiction. The application was declared inadmissible by the Court, sitting as a Single Judge, on 3 April 2014. The Court found that the complaints under Article 1 of Protocol No. 1 and Article 14 were premature since the applicant could bring a claim with the Chancellor of Justice (Justitiekanslern). The remaining complaints were declared inadmissible. 14. As a consequence, the applicant turned to the Chancellor of Justice, requesting damages from the State for the alleged violations of Article 6, Article 14 and Article 1 of Protocol No. 1. He submitted the same grounds as he had before the Court. 15. On 1 June 2015 the Chancellor of Justice rejected the claim. The Chancellor noted that the Administration’s decisions had not concerned the applicant, but the company. The decisions had rather to be seen as replies by the State to the company within the framework of their security protection agreement and not as an exercise of public authority. Article 6 had thus not been applicable. Even so, the applicant had been able to challenge the dismissal he claimed was the consequence of his failure to obtain security clearance before the courts. Moreover, the Chancellor of Justice found that the proceedings before the domestic courts had been Article 6-compliant. Regarding Article 1 of Protocol No. 1, the Labour Court had found that the dismissal had been lawful. Lastly, concerning Article 14, the distinction made between Swedes and foreign citizens in terms of defence secrets had an objective and reasonable basis. In any event, the applicant had contributed to the situation by refusing the company’s offer to be transferred to another department. 16. Pursuant to section 7 of the Security Protection Act (säkerhetsskyddslag, 1996:627), a private company has to protect, inter alia, classified information concerning national security in order to prevent such information being disclosed, changed or destroyed without authorisation and ensure that people who are not reliable from a security perspective do not participate in activities of importance to national security. 17. When the state procures services externally, a security protection agreement must be signed with the other party if it involves information that is classified on national security grounds (section 8 of the Act). 18. A security clearance must be granted before a person, through his or her employment at a company, participates in activities of importance to national security. The security clearance must ensure that the person is loyal to the protected interests and otherwise reliable in terms of security (section 11). 19. There is no prohibition on granting security clearance to foreign citizens working in private companies. Such a prohibition applies, however, in the public sector. The Government may in individual cases grant an exception for public sector employees (section 29 of the Act). 20. In accordance with section 17 of the Act, there are three different levels of security clearance, depending on the extent of access the employee has and the nature of the information. Level 1: the employee has access to a great extent to classified information of the utmost importance to national security. Level 2: the employee has access to classified information of the utmost importance to national security to an extent that is not insignificant. Level 3: the employee otherwise has access to classified information of importance to national security and where disclosure can be expected to cause a not insignificant level of harm to national security. 21. The Administration is responsible for granting security clearances. Pursuant to section 50 of the Security Protection Ordinance (säkerhetsskyddsförordning, 1996:633), no appeal lay against the Administration’s decisions. 22. According to a letter from the Government Offices (Regeringskansliet), dated 28 January 2013 (Fö2013/62RS) to the European Commission, the Administration handled about 3,000 cases of security clearance during 2012. Thirteen of those cases concerned foreign citizens, including eleven EU citizens. The Administration granted all the requests for security clearance.