NATIONAL SECURITY AND DATA RETENTION
From the ruling in La Quadrature du Net C-511/18 we know now that there is a
definition of national security in Union law, which is already an astonishing
achievement.
In point 135 the Court defines national security. The Grand Chamber says:
“...Article 4(2) TEU provides that national security remains the sole responsibility
of each Member State. That responsibility corresponds to the primary interest in
protecting the essential functions of the State and
the fundamental interests of society
and encompasses the
prevention and punishment of activities capable of
seriously destabilising the fundamental constitutional, political, economic
or social structures of a country and, in particular, of directly threatening
society, the population or the State itself, such as terrorist activities.”
Now this definition remains necessarily broad but considering that this is such a
delicate and sensitive field for the Member States, the field where they feel the
most their quality as Masters of the Treaties and constituting entities of the Union,
its importance is evident and cannot be understated.
Note however, to nuance, that this of course does not come out of the blue:
elsewhere in the same ruling the Court could already remind established case-law
according to which
the mere fact that a national measure has been taken for the purpose of
protecting national security cannot render EU law inapplicable and exempt
the Member States from their obligation to comply with that law (see, to
that effect, judgments of 4 June 2013,
ZZ, C-300/11, EU:C:2013:363,
paragraph 38; of 20 March 2018,
Commission v
Austria (State printing office),
C-187/16, EU:C:2018:194, paragraphs 75 and 76; and of 2 April
2020,
Commission v
Poland, Hungary and Czech Republic (Temporary mechanism for
the relocation of applicants for international protection), C-715/17, C-718/17 and
C-719/17, EU:C:2020:257, paragraphs 143 and 170).
However, this is more ‘classical’ case law in the sense that it constitutes a
traditional defence of Union law from being made inapplicable by Member States
simply resorting to the ‘wild card’ of national security to avoid obligations of
Union law. For instance, a Member State cannot simply invoke national security
to avoid to apply provisions on the relocation of refugees (joined cases C-715/17).
Likewise, Member States cannot avoid their obligations stemming from Union
rules on public procurement just by invoking a national security exception.
(Elitaliana?)