Surveillance by intelligence services – Volume II: field perspectives and legal update
of the e-Privacy Directive 2002/58/EC. In other EU
secondary legislation – for example, in Article 6(1)(d)
of the Admission of Third-Country Nationals for the
Purposes of Studies Directive207 – ‘national security’ is
referred to as ‘public security’. The CJEU in Fahimian
v. Germany stated that the concept of ‘public security’
covers both the internal security of a Member State
and its external security.208 Moreover, in ZZ v. Secretary
for the Home Department, the CJEU implicitly held that
the notion of state security as used in EU secondary
legislation is equivalent to the notion of ‘national
security’ as used in national law.209
The 2015 FRA report noted that the concept of national
security is not used harmoniously across EU Member
States.210 In Luxembourg, the notion of ‘national security’
was inserted into the law reforming the intelligence
services in 2016, to clarify the difference in the scope
of missions of the police and intelligence services.211
“National security: all topics of fundamental interest for the
stability of the country, unity of the country and safety of its
citizens.” (Parliamentary committee)
“It is not only military and political security, it is also
increasingly infrastructure and economic and financial
security. Threats can have a plurality of aspects. […]
It includes security of technological infrastructures,
cybercrime.” (Parliamentary committee)
“The services do not have a monopoly on national security.
Other services such as police, customs, etc., also have an
essential role to play.” (Expert body)
Respondents were asked how national security is
defined in their respective legal framework or how it is
understood in the context of intelligence. The responses
reflected the legal terminology in each Member
State and mainly referred to very broad concepts, as
examples provided in the cited quotes show. Links were
also made to international terrorism, organised crime
and anti-democracy groups. Several respondents from
expert bodies referred to their mandate as ‘seeking the
balance between national security and fundamental
rights, privacy in particular’. Some of the respondents
maintained that clearer definitions would help (‘if not
positive, at least negative’), including at EU level.
Defining national security: Luxembourg
“[W]e consider as activity which threatens or could threaten the national security or the above-mentioned interests,
every activity, individual or collective, deployed domestically or from abroad,
a) which can be related to espionage, interference, terrorism, violent propensity extremism, proliferation of arms of
mass destruction or of products linked to defence and technology related to defence, organised crime or cyber-threat
to the extent that the latter two are linked to previously-mentioned activities, and
b) which is likely to endanger the independence and sovereignty of the State, the security and functioning of institutions, fundamental rights and civil liberties, the security of individuals and goods, the scientific and technical potential
or the economic interests of the Grand Duchy of Luxembourg.”
Luxembourg, Law of 5 July 2016, Art. 3(2) [FRA translation]
207 Council Directive 2004/114/EC of 13 December 2004 on
the conditions of admission of third-country nationals for
the purposes of studies, pupil exchange, unremunerated
training or voluntary service, OJ 2004 L 375.
208 CJEU, C-544/15, Sahar Fahimian v. Bundesrepublik
Deutschland, 4 April 2017, para. 39, C-145/09 Tsakouridis,
23 November 2010, paras. 43 and following and C-601/15, N,
15 February 2016, para. 66.
209 CJEU, C-300/11, ZZ v. Secretary of the State of Home
Department, 4 June 2013, paras. 5, 11, 35, 38 and 54.
210 FRA (2015a), p. 24 and following. See also ECtHR, Regner
v. The Czech Republic [GC], No. 35289/11, 19 September 2017,
para. 67.
211 Luxembourg, Law of 5 July 2016 1. reorganising the
State Intelligence Service; 2. modifying the Code of
Criminal Procedure, the Law of 15 June 2004 regarding
the classification of documents and security clearances
and the Law of 25 March 2015 setting the regime for the
compensation and the conditions for promotion of the State
civil servants (Loi du 5 juillet 2016 1. portant réorganisation
du Service de renseignement de l’État; 2. modifiant le Code
d’instruction criminelle, la loi du 15 juin 2004 relative à la
classification des pièces et aux habilitations de sécurité, etla loi du 25 mars 2015 fixant le régime des traitements et les
conditions d’avancement des fonctionnaires de l’État), Art. 3.
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