CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 juin 2023

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page-break-inside:avoid; page-break-after:avoid } .sB6A7F5BF { width:17.54pt; display:inline-block } .s7E447BAE { width:130.42pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right }   SECOND SECTION CASE OF UAB AMBERCORE DC AND UAB ARCUS NOVUS v.   LITHUANIA (Application no. 56774/18)   JUDGMENT   Art 6 § 1 (civil) • Administrative proceedings concerning refusal on national security grounds to issue applicant companies with permit to build data centre • Refusal based only partly on non-disclosed classified information of no apparent decisive value • Applicant companies given opportunity to effectively participate in proceedings • Due exercise by administrative courts of powers of scrutiny, giving reasons for decisions with regard to specific case-circumstances • Restrictions on rights to adversarial proceedings and equality of arms offset in such a manner that fair balance between parties not affected to such an extent as to impair very essence of right to a fair hearing   STRASBOURG 13 June 2023 FINAL   13/09/2023   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of UAB AmberCore DC and UAB Arcus Novus v.   Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen , President ,   Jovan Ilievski,   Egidijus Kūris,   Saadet Yüksel,   Lorraine Schembri Orland,   Frédéric Krenc,   Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the application (no.   56774/18) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two companies registered in Lithuania, UAB AmberCore DC (“the first applicant company”) and UAB Arcus Novus (“the second applicant company”), on 28   November 2018; the decision to give notice to the Lithuanian Government (“the Government”) of the complaints concerning the applicant companies’ right to a fair hearing and right to protection of property; the parties’ observations; Having deliberated in private on 9 May 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the applicant companies’ complaint, under Article   6   §   1 of the Convention, that they did not have a fair hearing during administrative court proceedings in which administrative decisions refusing them permission to build a data centre were upheld. Under Article   1 of Protocol No.   1 to the Convention, the applicant companies further complained that they had incurred losses because they had not received security clearance to build the data centre. THE FACTS 2.     The applicant companies, AmberCore DC and Arcus Novus, are registered at a technology park in Liepiškės near Vilnius. They were represented before the Court by Mr R.   Simaitis, a lawyer practising in Vilnius. 3.     The Government were represented by their Agent, Ms   K.   Bubnytė ‑ Širmenė. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5 .     According to information on the applicant companies’ websites, Arcus Novus was founded in 2003 and deals with the implementation and development of technological projects, including the transmission of information by satellite telecommunication. In 2009 Arcus Novus established a subsidiary company, later renamed AmberCore DC, which deals with the construction and development of data centres. The companies note that AmberCore DC is owned by a group of private investors and has experience in telecommunications and the operation of high-tech telecommunication facilities. FIRST SET OF ADMINISTRATIVE PROCEEDINGS 6 .     It appears from the documents submitted by the parties that in February 2015 Arcus Novus, as the sole shareholder of AmberCore DC, increased the share capital of the latter and acquired all its shares. 7 .     On an unknown date, the applicant companies initiated a project to build a data storage facility near Vilnius. In July 2016 Arcus Novus asked the Lithuanian authorities to assess its compliance with the interests of national security, as required by Article   7   §§   10 (3) and (4) of the Law on Enterprises and Facilities of Strategic Importance to National Security and Other Enterprises of Importance to Ensuring National Security (hereinafter “the Law on Enterprises and Facilities of Strategic Importance”, see paragraph 70 below). 8 .     On 11   July 2016 the Chancellery of the Government (hereinafter “the Chancellery”) asked Arcus Novus to submit the necessary information about the company and its activities. On 19   July 2016 Arcus Novus submitted the necessary documents. 9.     On 19   July 2016 the Chancellery inquired with a number of Lithuanian institutions regarding Arcus Novus’s compliance with national security interests. The Commission’s protocol decision no.   NS-23 of 16   August 2016 and related administrative court proceedings (administrative case no. eA-3729-415/2018) 10 .     By protocol decision ( protokolinis sprendimas ) no.   NS-23 of 16   August 2016, the Commission for Assessment of Compliance of Potential Participants with National Security Interests ( Potencialių dalyvių atitikties nacionalinio saugumo interesams įvertinimo komisija – hereinafter “the Commission”) unanimously held that Arcus Novus did not comply with the conditions set out in Article   7 §§   10 (3) and (4) of the Law on Enterprises and Facilities of Strategic Importance (see paragraph   70 below).   The Commission’s decision was based on report no. 19-1379 of 5   August 2016 issued by the State Security Department (hereinafter “the SSD”). On the basis of that report the Commission held that Arcus Novus, through intermediary companies, including SatGate Holding ApS and SatGate Investments Ltd., which were registered abroad in Denmark and Malaysia, was owned and controlled by four citizens of the Russian Federation, K.L., V.A., V.M. and B.M. The risk posed by Arcus Novus to Lithuanian national security was increased by the fact that one of these owners, V.A., had previously worked in Russian companies directly linked with the Russian State and law ‑ enforcement authorities. Those companies “were overseen” ( jų veiklą prižiūri ) by the Federal Security Service of the Russian Federation (“the   FSB”). More specifically, from 2006 to 2009 V.A. had worked as a director of the Russian gas corporation’s subsidiary company Gazprom Komplektacija in the Kaliningrad region, and from 2009 to 2014 had been the founder and deputy director of Gazinvest Group, another company operating in Kaliningrad and dealing in customs brokerage. In Lithuania, the data storage facility was to be connected to the Internet and the Lithuanian telecommunications networks, and, through them, to the member States of the European Union (EU) and the Russian Federation. It was likely that when the data storage facility was connected to Russia, it would be connected to the FSB’s Radio-Electronic Intelligence Centre, which carried out radio electronic intelligence activities and cyber spying against Lithuania and other North Atlantic Treaty Organisation (NATO) and EU member States. “According to the assessment by the SSD” ( VSD vertinimu ): (i) the FSB would then be able to intercept the data stored at the facility by Lithuanian and foreign State institutions, companies and organisations and thus gather intelligence; (ii) the FSB would be able to impact the Lithuanian telecommunications networks; (iii) Lithuanian territory could be used to carry out cyberattacks against third countries; and (iv) if [Lithuanian] State institutions, commercial banks and telecommunications companies became clients of the data storage facility, Russia could disrupt the functioning of the Lithuanian State and its economy. 11 .     The Commission also held that Arcus Novus, when increasing the share capital of AmberCore DC and acquiring its shares in February 2015 (see paragraph   6 above), had failed to ask the Commission to assess Arcus Novus’s compliance with national security interests, thus breaching Article   7   §   2   (2) of the Law on Enterprises and Facilities of Strategic Importance. The Commission’s decision also read that “information on Arcus Novus’s compliance with the interests of national security should be provided to Arcus Novus”. 12 .     On 18   August 2016 the applicant companies were sent a letter by the Chancellery (( raštas ) no.   S-72-2767) regarding the results of the screening as to their compliance with national security interests. Proceedings before the Vilnius Regional Administrative Court 13.     The applicant companies contested the Commission’s protocol decision in administrative court. They argued, among other things, that the protocol decision lacked any factual basis and restricted their legitimate interests since it barred them from pursuing the data centre project. They also argued that no documents other than the Commission’s protocol decision no.   NS-23 and the Chancellery’s letter no.   S-72-2767 had been provided to them. They asseverated that they had no intention of linking the data centre via the Internet to the Radio-Electronic Intelligence Centre in the Russian Federation. They also denied that their shareholder V.A. had links to the Russian security services. 14 .     The Commission replied that its findings had been based on the information referred to in the protocol decision, as well as the SSD’s “classified” ( slaptai ) report no.   19-1379 of 5   August 2016, which supplemented the unclassified factual information that had led to the decision. The Commission considered that the court could find its decision justified even without classified information, solely on the basis of the explanations it had given. 15 .     The SSD, which had the status of an interested third party in the proceedings, pointed out that the applicant companies, when seeking to attract potential clients to implement the project and inviting the Lithuanian State institutions to make use of their services, had openly named as their partner the Russian concern Gazprom, which had close links to the Russian special services. The applicant companies’ statements that the protocol decision was not based on any objective information (facts), arguments or evidence did not correspond to reality and were misleading. Furthermore, the applicant companies, when presenting the data centre project, had specified that when implementing it, data transfer infrastructure would be developed internationally so that the data centre would be linked to Europe, Scandinavia and Russia. This information was supported by the data centre project presentation material. 16 .     According to the Government’s observations of 19   November 2020, at that stage of the administrative court proceedings, the parties provided the Vilnius Regional Administrative Court with the documents described below. 17 .   On 13   January 2017 the Chancellery, together with its response to the applicant companies’ complaint, provided material not containing information constituting a State secret, including: various documents about the applicant companies’ shareholder structure; a number of documents from the Lithuanian authorities, including a copy of the Commission’s protocol decision no. NS-23 of 16 August 2016; a copy of a letter of 16   August 2016 by the SSD to the Government Chancellor ( kancleriui ) stating that the intended project posed a threat to national security given that its developers intended to link the data centre via fibre-optic cables to the FSB’s Radio ‑ Electronic Intelligence Centre in Russia; and copies of replies from the Lithuanian law-enforcement authorities on whether they had any kind of information about the applicant companies relevant for their assessment regarding their possible threat to national security. 18 .     For its part, on 13   February 2017 the SSD provided the court of first instance with AmberCore DC’s presentation of the data storage facility project, together with its response to the applicant companies’ complaint. 19 .     On 13   February 2017, complying with a ruling by the Vilnius Regional Administrative Court of 12   January 2017, the Chancellery provided that court with nineteen pages of classified information related to the applicant companies’ complaint regarding the Commission’s protocol decision of 16   August 2016. 20.     On 28   February 2017 the applicant companies asked the court to hear the case in public and not to add classified documents to the case file. 21 .     According to the Government’s observations, following a request by the applicant companies on 28   February 2017, the Vilnius Regional Administrative Court twice asked the SSD, on 23   March and 3   April 2017, to declassify the classified documents submitted in the administrative case on 17   February 2017 (the SSD’s letter no.   19-223). On 25   April 2017 the court received a response from the SSD stating that since the time frame for the duration of classification had not yet expired and the need for classification remained, the documents could not be declassified. 22 .     According to the Government’s observations, on 8   May and 28   June 2017 the applicant companies also asked the Vilnius Regional Administrative Court to adjourn the hearings owing to their inability to participate, requests which were both granted by the court of first instance. During a hearing on 27   September 2017, the applicant companies submitted a request to adjourn the case in order to reach a settlement with the Commission, which was granted by the court of first instance. During a hearing on 6   December 2017, the applicant companies submitted a request to examine two witnesses, V.A. and V.M., which was granted by the court of first instance, and the persons indicated in the Commission’s decision under appeal as persons whose relations caused a risk to the national security of Lithuania were examined as witnesses. At the same hearing, the applicant companies submitted a request asking for certain classified material not to be recognised as evidence in the case, but it was refused by the court of first instance. 23 .     The Vilnius Regional Administrative Court decided the case in non ‑ public oral proceedings, in which the applicant companies’ representatives K.L. and V.T., their lawyers, and representatives of the Chancellery, the Commission and the SSD took part. 24 .     On 16   January 2018 the applicant companies’ complaint was dismissed as unfounded. The court noted that the dispute between them and the Commission no longer existed, because on 19   April 2017 a court ‑ approved settlement agreement had been signed pursuant to which the agreement to increase the share capital (see paragraph 6 above) had been invalidated. The court also held that if the applicant companies considered that the Commission’s protocol decision had damaged their business reputation, they could defend that in civil proceedings. 25.     The applicant companies appealed. Proceedings before the Supreme Administrative Court 26 .     In its response to the applicant companies’ appeal, the SSD observed that the first-instance court had not examined and assessed the classified documents that the SSD had provided to it, which had been relevant for the Commission when adopting the protocol decision. The SSD stated that, if the Supreme Administrative Court decided to assess all the circumstances that had led to the adoption of the protocol decision and all the arguments by the applicant companies, the SSD would provide it with those documents, which had already been provided to the Commission and the first-instance court. 27 .     On 26   March 2018 the applicant companies requested that the case be examined under the urgent procedure, on the grounds that due to the ongoing litigation they had been incurring serious losses. The request was granted by the Supreme Administrative Court two weeks later, on 4   April 2018. 28 .     By a ruling of 30   May 2018, the Supreme Administrative Court observed that the Commission’s protocol decision no.   NS-23 of 16   August 2016 (see paragraphs 10 and 11 above) “was based, among other things, on classified documents ( įslaptinti dokumentai )” provided by the SSD to the Commission, and that those documents formed the factual basis for the protocol decision. The Supreme Administrative Court stated that “[to date] the classified material [had] not been included in the case file [before it], and [that it was] necessary in order to assess whether the Commission’s protocol decision was lawful and reasoned”. The Supreme Administrative Court thus ordered the SSD to provide those documents to it. 29 .     It appears from the material in the case file that afterwards, on 6   June 2018, the Prosecutor General’s Office informed the Supreme Administrative Court that its judges could consult the classified information at its premises, which had secure facilities for such a purpose. On 11   June 2018 the Supreme Administrative Court thus informed the SSD that the judges would consult the classified information at the premises of the Prosecutor General’s Office. 30 .   On 27   June 2018 the Supreme Administrative Court examined the case in written proceedings and left the first-instance court’s decision unchanged. It referred to, among other things, Article   2 §§   1 and 2, Article   3   §   3 (3) and Article 7 of the Law on Enterprises and Facilities of Strategic Importance as regards national security interests and the telecommunications sector (see paragraph   70 below). Regarding the applicant companies’ compliance with the interests of national security, the court held that the information indicated in protocol decision no. NS-23 (see paragraph 10 above), examined and assessed by the first-instance court, constituted the factual basis for finding that Arcus Novus had links with the FSB, those links posing a threat to Lithuania’s national security. Accordingly, there was no legal basis for finding that the applicant company met the national security requirements, within the meaning of Article   7 §   10 (3) and (4) of the Law on Enterprises and Facilities of Strategic Importance. In the words of the court, “that information [was] not contradicted by the classified documents examined by the appellate court”. 31 .     The Supreme Administrative Court also referred to Article 46 of the Constitution (see paragraph   69 below) and the Constitutional Court’s case ‑ law to the effect that that provision was inseparable from such constitutional values as State independence and territorial integrity. In the context of the case at hand, it was relevant that legal measures taken to protect the information technology and telecommunications sector, which was of strategic importance to national security, from possible external impact from countries unfavourable to the State of Lithuania in terms of their geopolitical orientation, or from the individuals closely linked to those States, were inseparable from the State’s obligation set out in Article   46 §   3 of the Constitution to regulate economic activity so that it served the general welfare of the nation and did not breach the constitutional principle of proportionality. 32 .     In response to the applicant companies’ grievance of discrimination (on the basis of nationality), the Supreme Administrative Court observed that the principle of non-discrimination did not negate the possibility of different legal regulation being established for certain categories of persons in different situations. As pointed out by the Constitutional Court, the constitutional principle of equality did not negate the possibility of treating persons differently according to their status (see paragraph   74 below). Accordingly, national security guarantees constituted a constitutionally justifiable ground for restricting persons’ activity in economic sectors of strategic importance. Besides, Article   8 §   3 of the Law on Investments (see paragraph   71 below) also provided that investment in sectors of important for national security interests was only allowed after having assessed the compliance of a potential participant. 33 .     The Supreme Administrative Court thus found that the contested individual administrative decision – the Commission’s protocol decision – was based on objective evidence (facts), had a basis in law and was reasoned. SECOND SET OF ADMINISTRATIVE PROCEEDINGS The Commission’s protocol decision no.   NS-49 of 24   November 2017 and related administrative court proceedings (administrative case no.   eA-4143-442/2018) 34.     On 11   October 2017 the two applicant companies and SatGate Holding ApS (see paragraph   10 above) asked the Commission to verify, under Article   7 §   2   (2) of the Law on Enterprises and Facilities of Strategic Importance, SatGate Holding ApS and Arcus Novus’s compliance with the interests of national security. The companies intended to conclude a business transaction so that SatGate Holding ApS would obtain 100% of Arcus Novus’s shares. Given that the latter company already controlled 100% of AmberCore DC’s shares, SatGate Holding ApS would obtain control over the company AmberCore DC, which operated in the sector of information technology, telecommunications and other high technology of strategic importance to national security. 35 .     On 16   October 2017 the Commission wrote to the Ministry of Foreign Affairs, the Ministry of the Interior, the Prosecutor General’s Office, the SSD, the Financial Crimes Investigation Service, the Police Department and the Special Investigation Service, asking for their conclusions regarding the two companies’ compliance with the interests of national security. 36 .     On 6   November 2017 the Commission held that it did not have sufficient information about the shareholders of SatGate Holding ApS, and that the information in its possession was “contradictory or [had not been] fully disclosed”. Three days later the Commission asked the companies to provide information regarding what companies were owned by the SatGate Holding ApS shareholders K.L., V.T., V.M., M.G. and V.A., as well as to provide information about several other linked companies. Representatives of SatGate Holding ApS, Arcus Novus and AmberCore ApS provided that information to the Commission on 16   November 2017. The Commission’s protocol decision no.   NS-49 37 .     On 24   November 2017 the Commission unanimously adopted a second protocol decision, no. NS-49, holding that Arcus Novus and SatGate Holding ApS did not meet the requirements of Article   7 §   10 (4) of the Law on Enterprises and Facilities of Strategic Importance. On the basis of information received from the applicant companies’ lawyers, the Commission concluded that Arcus Novus was controlled, through intermediary companies registered abroad, by Russian citizens K.L.,V.M. and V.A., the latter having been a shareholder of several other companies registered in Lithuania, New Zealand and the Russian Federation. 38 .     The Commission also held that, according to the assessment by the SSD, SatGate Holding ApS and Arcus Novus had links to the Russian FSB, which posed a threat to the national security of Lithuania. The circumstances established in the report regarding Arcus Novus’s non-compliance with the requirements of Article   7 §   10   (4) of the Law on Enterprises and Facilities of Strategic Importance, which the SSD had provided to the Commission in 2016 (see paragraph   10 above), related to V.A., remained unchanged. Even if V.A. were to sell his shares in Arcus Novus to SatGate Holding ApS, he would retain influence in Arcus Novus. 39 .     The Commission also noted that “when examining the question regarding [Arcus Novus’s] compliance with the interests of national security, not only public but also declassified ( išslaptinta ) information provided by competent institutions [had been] assessed”. 40.     The applicant companies appealed against the Commission’s protocol decision, as did SatGate Holding ApS. Proceedings before the Vilnius Regional Administrative Court 41 .     According to the Government’s observations of 19   November 2020, during this (second) set of administrative court proceedings, the following unclassified documents were provided by the parties to the Vilnius Regional Administrative Court. 42 .     On 28   December 2017 the applicant companies provided that court with material including, among other things, various documents regarding the applicant companies’ shareholder structure and internal regulations. The material also included copies of the following: the Commission’s protocol decision no. NS-23 of 16   August 2016 (see paragraph   10 above); the Chancellery’s letter of 18 August 2016 to Arcus Novus stating that it did not comply with the national security interests criteria (see paragraph   12 above); the Commission’s protocol decision no. NS-49 of 24 November 2017 (notified to the applicant companies’ lawyers by the Commission on 1   December 2017, see paragraphs   37-39 above); a copy of the Chancellery’s request to the applicant companies’ lawyers for additional information regarding the direct and indirect shareholders of SatGate Holding ApS, and the applicant companies’ lawyers’ reply to that request, together with that additional information (see paragraph   36 above). 43 .     On 3 January 2018 the Chancellery, together with its response to the applicant companies’ appeal, provided the first-instance court with material relating to the dispute, which did not contain information constituting a State secret and included the above-mentioned decisions of the Commission and various documents about the applicant companies’ shareholder structure and internal regulations. It also contained a copy of an email of 2   November 2017 sent by the Ministry of Foreign Affairs to the Commission indicating that, on the basis of information from the UK companies registers, they “presumed” ( darome prielaidą ) that V.A., whom the SSD had seen as having connections making him a threat to national security, could remain in the AmberCore DC project and remain its developer, which would mean that the threat to national security would persist. 44 .     On 26   January 2018 the SSD, as an interested third party in the proceedings, provided the Vilnius Regional Administrative Court with a six ‑ page long response to the applicant companies’ complaint. The response gave a detailed account of the threat posed by the applicant companies to the interests of national security, on account of, among other things, the companies’ shareholders and ownership structure, and the past links of one of its owners, V.A., to Gazprom (see paragraphs 49 and 50 below). The SSD also provided the court with a copy of the “Project presentation leaflet on the data storage facility by AmberCore DC”, in which Gazprom had been mentioned among the “partners” or “customers” of the SatGate Group of companies. 45 .     The case was heard by the Vilnius Regional Administrative Court in closed hearings, with the participation of both applicant companies’ representatives and lawyers. At the applicant companies’ request, V.A. and V.M. (see paragraph   37 above) were examined as witnesses. 46 .     The applicant companies acknowledged that on 1   December 2017 they had received a letter from the Chancellery (( raštas ) no.   S-3315) enclosing an extract ( išrašas ) of the Commission’s protocol decision no.   NS ‑ 49 of 24   November 2017 (see paragraphs   37-39 and 42 above). The applicant companies nevertheless claimed that the protocol decision had no factual basis and unjustifiably restricted their rights and lawful interests. They also pleaded that they had already invested in the data centre project, and that entities ( subjektai ) from Russia and Denmark had already invested. The negative assessment by the Commission made it impossible to continue developing the project and would deprive the investors of the “large sums of money already invested”. 47.     The applicant companies also contested the Commission’s finding that Arcus Novus was controlled, via intermediary companies registered abroad, by Russian citizens K.L., V.M. and V.A. They also argued that “presumptions” ( prielaidos ) in the protocol decision regarding V.A. and his Russia-related links (see paragraph   10 above) could not be the basis for finding that a person did not comply with national security interests. As argued by the applicant companies, “having acquainted themselves with the protocol decision, they had asked V.A. to clarify the real situation. V.A. had explained that the circumstances referred to by the Commission did not correspond to reality, as he had never worked or otherwise been linked to intelligence organisations in Russia or any activities which would be hostile to the interests of the Republic of Lithuania”. The applicant companies considered that the Commission’s decision was in breach of the principle of non-discrimination. 48.     On 8   March 2018 the Vilnius Regional Administrative Court dismissed the applicant companies’ appeal regarding the Commission’s protocol decision no. NS-49 of 24 November 2017. 49 .     The court noted that it appeared from the content of the protocol decision of 24 November 2017 that the Commission, based on the assessment by the SSD, had established that SatGate Holding ApS and Arcus Novus had links with the FSB of the Russian Federation, conducting intelligence operations against Lithuania, which posed a risk to national security, and that therefore they did not meet the requirements of Article   7 §   10 (4) of the Law on Enterprises and Facilities of Strategic Importance, given that the information provided suggested the applicant companies had links with foreign special services. In the protocol decision, the Commission had established that the risk to Lithuania’s national security had increased due to the fact that V.A. had previously worked in Russian companies directly linked to the Russian government and law-enforcement authorities (see paragraph   10 above). 50 .     The court further noted that the applicant companies disagreed with the Commission’s assessment and maintained that its arguments regarding V.A.’s connections had no factual basis. However, the court stated that the Commission had reached its decision on the basis of the SSD’s material (both publicly available and classified) that V.A. had connections with Gazprom Komplektacija in Kaliningrad and with Gazinvest Group. The Law on Enterprises and Facilities of Strategic Importance did not specify which relations should be considered a threat to national security and which existing relations caused a person to be recognised as not complying with the requirements of Article 7 § 10 (4) of that Law. Referring to established case-law of the Supreme Administrative Court (ruling of 11   August 2016 in case no.   A-4560-662/2016, and ruling of 13   October 2017 in case no.   A-5137-624/2017), the Vilnius Regional Administrative Court pointed out that State security was an essential element ( valstybės saugumas yra esminę reikšmę turinti aplinkybė ), important for all members of society; it was a fundamental value ( pagrindinė vertybė ) which took priority over possible violations of individual rights. A threat to national security was a circumstance considered important when deciding on the State’s national interests. A threat to national security could also occur as a potential threat (the Supreme Administrative Court’s ruling of 23   June 2010 in case no.   A858-1810/2010). The Commission had discretion to assess whether specific persons could be considered to pose a real or potential threat to national security. The Commission had to exercise its discretion on the basis of objective information, namely that received from the entities specified in Article   7 §   6 of the Law on Enterprises and Facilities of Strategic Importance, which were assigned the function of collecting operational material to ensure the State’s security. Besides, the Commission’s discretion had to be exercised in the light of the principles of objectivity, impartiality, lawfulness and proportionality. 51 .     The Vilnius Regional Administrative Court then referred to the information “provided in the case by the SSD” from which it was apparent that the data centre project posed a threat to Lithuania’s national security because of its founders’ intent to link it to Russia (the court referred to the information set out in paragraph   10 above). The court also noted that the data centre project was a private initiative, which aimed to provide information technology and telecommunications services in the data centre. Until the project was implemented, the list of persons/subjects ( subjektų ratas ) who would use those services would not be defined. However, from the project presentation leaflet submitted, it was evident that the project was intended to contribute to the development of strategic infrastructure related to the State’s national security, and that data would be transmitted across State borders, including to Russia. In such circumstances, the court concluded that “the information in the case file confirmed” that when implementing the project, data which could be linked to State security would be stored in the centre, the protection of which formed part of the guaranteeing of State security. Taking that into account, the possibility of other States’ security services taking part in the project through interested persons clearly amounted to a danger to State security. It was worth pointing out that publicly accessible ( viešai prieinama ) information confirmed the circumstances established by the Commission regarding V.A.’s links to the Russian company Gazprom, which was overseen by the Russian FSB. The court also noted that from 2006 to 2009 V.A. had been the director of Gazprom’s subsidiary company in Kaliningrad (see paragraph   10 above). Those circumstances had not, for the most part, been contested by the applicant companies and SatGate Holding ApS. 52.     In the light of the above, the court found it established that Arcus Novus and SatGate Holding ApS, which (both) had direct links with V.A., posed a threat to national security because of the latter’s links to the Russian security and intelligence services. Having regard to the above, the court held that the Commission had lawfully and reasonably acknowledged that Arcus Novus and SatGate Holding ApS did not meet the requirements of Article 7 § 10 (4) of the Law on Enterprises and Facilities of Strategic Importance. The applicant companies’ arguments that they had already invested in the data centre project had had no impact on the Commission’s decision. 53.     The court also noted that one of the applicant companies’ main grievances was that the Commission’s decision was essentially based on information classified under the rules established by law, and that they had had no possibility of seeing that information. They argued that classified evidence was inadmissible because it restricted their right to a defence. 54.     As to evidence, the court referred to Article   56 §   3 of the Law on Administrative Proceedings, pursuant to which factual information constituting State or official secrets “as a rule” ( paprastai ) could not constitute evidence in administrative proceedings, until it was declassified (see paragraph   73 below). However, according to the Supreme Administrative Court’s practice, “as a rule” meant that in certain situations classified information could be considered admissible evidence, which could be assessed by the court under the rules set out in Article   56 §   6 of the Law on Administrative Proceedings. This was in a situation where it was not the only evidence, proving or disproving circumstances important for the case, and where the unclassified evidence in the case was reliable and sufficient to substantiate established factual circumstances (the Supreme Administrative Court’s ruling of 28   October 2014 in case no.   A143-1456/2014). As noted by the Supreme Administrative Court, such an explanation essentially also corresponded to the Constitutional Court’s position in the ruling of 15   May 2007 (see paragraph   75 below) and the Court’s case-law under Article   6 §   1 of the Convention (the Supreme Administrative Court referred to Meral v.   Turkey , no.   33446/02, 27   November 2007; Miran v. Turkey , no.   43980/04, 21   April 2009; Topal v. Turkey , no.   3055/04, 21   April 2009; and Gulijev v.   Lithuania , no.   10425/03, 16   December 2008). 55 .     In the case at hand, the protocol decision was not based on exclusively classified information which the applicant companies had been unable to access. The court noted that “publicly available information and the unclassified information by the SSD and the Commission [had been] sufficient to adopt the contested protocol decision, that is, to hold that the applicant companies did not meet the requirements of Article   7 §   10   (4) of the Law on Enterprises and Facilities of Strategic Importance”. The court had no basis for doubting the objectivity and reliability of the unclassified documents provided by the SSD, and, moreover, that those documents were supported by classified documents provided by the SSD, which the court had also assessed. In the light of the foregoing, the court held that the applicant companies’ right to have their rights defended in court ( teisė į teisminę gynybą ) had not been breached. Likewise, there was no reason to declare the classified information provided by the SSD as inadmissible evidence. When the protocol decision had been adopted, the reality of the possible threat to State security ( galimos grėsmės valstybės saugumui realumas ), which in this case had been objective and proven on the basis of the information referred to in the protocol decision and in the SSD’s reports, had been assessed. 56 .     Lastly, because of the content and nature of classified information, which was linked to State security interests, not all the arguments leading to the adoption of the protocol decision could have been disclosed in the protocol decision. However, this was not a reason to acknowledge that the protocol decision lacked basis. The applicant companies’ right to a defence in court had not been breached. The protocol decision met the essential requirements of an individual administrative decision – it contained a factual basis and a legal assessment had also been provided. It followed that the protocol decision was lawful and reasoned. Proceedings before the Supreme Administrative Court 57.     The applicant companies lodged an appeal with the Supreme Administrative Court, arguing that the first-instance court had merely restated in its reasoning what had been said in the Commission’s decision and had failed to evaluate any of the circumstances to assess its reasonableness. Moreover, the first-instance court had also failed to properly examine the evidence submitted. It had also refused to summon and examine (certain) witnesses, thus demonstrating its prejudicial attitude towards the applicant companies. The applicant companies also disputed the lower court’s conclusion that the publicly available information had been sufficient for the Commission to reach its decision. They considered that, in reality, the Commission had not added any piece of unclassified evidence to the case file to support its presumptions that the applicant companies posed a threat to national security.   The applicant companies also considered that the adding of non-public documents ( nevieši dokumentai ) to the file had been in breach of their procedural guarantees. If the State institutions wished to rely on such documents, the SSD firstly had to declassify them. 58.     The applicant companies asseverated that they had no intention of connecting the data storage facility to the FSB’s Radio-Electronic Intelligence Centre in the Russian Federation. The Commission’s assumption in this regard had been far-fetched and technologically unfeasible. The applicant companies could not understand what threat their project posed to national security. 59.     Lastly, they argued that the protocol decision breached their right to protection of property. 60.     The Commission and the SSD, who had been a third party in the proceedings, asked the Supreme Administrative Court to dismiss the applicant companies’ appeal. 61 .     By a ruling of 30   May 2018, the Supreme Administrative Court noted that the Commission’s protocol decision no.   NS-49 of 24 November 2017 (see paragraphs   37-39 above) “was based, among other things, on classified documents” ( įslaptinti dokumentai ) provided by the SSD to the Commission, and that those documents formed the factual basis for the protocol decision. The Supreme Administrative Court noted that “[to date] the classified material [had] not been included in the case file [before it], and [that it was] necessary in order to assess whether the Commission’s protocol decision was lawful and reasoned”. The Supreme Administrative Court thus ordered the SSD to provide those documents to it (see also paragraph 29 above). 62.     Afterwards, having examined the case in written proceedings, by a ruling of 27   June 2018, the Supreme Administrative Court dismissed the appeal by the two applicant companies and SatGate Holding ApS and left the lower court’s decision unchanged. 63 .     The Supreme Administrative Court found that the Commission’s protocol decision did comply with the requirements set out in Article   8 §   1 of the Law on Public Administration (see paragraph   72 below), since it was based on specific legislative provisions which had been applied to specific facts. It further held that “it could be understood ( galima suvokti ) from the content of the Commission’s decision the factual and legal basis” on which the decision was based, from which it followed that the applicant companies’ right to a defence in court ( teisė į teisminę gynybą ) had not been curtailed. 64 .     Neither Arcus Novus nor SatGate Holding ApS had contested the fact that they both fell under the status of potential participants within the meaning of Article   2 §   2 of the Law on Enterprises and Facilities of Strategic Importance; accordingly, the Commission had had reason to assess their compliance with the interests of national security. Under Article   7 §   10   (4) of that Law, a potential participant was acknowledged as complying with the interests of national security provided that it had no links to foreign States’ special services. 65 .     The Supreme Administrative Court then stated that its panel had “examined the evidence as presented in the case file and reached the conclusion that the publicly available factual evidence provided by