paragraph shall be in accordance with the general
principles of Community law, including those referred to in
Article 6(1) and (2) of the Treaty on European Union.
. . .”
22.
There were two important decisions of the Grand Chamber in particular, prior
to Watson:
i)
The European Parliament v Council of the European Union (“Parliament
v Council”) [2006] 3 CMLR 9. This is relied upon by the Respondents, and
was not addressed in Watson. It concerned the supply of passenger data
(“PNR data”) by air carriers to the US Authorities. The Court upheld the
arguments of the Council that Article 3(2) of the DPD (set out above), which
excluded activities to safeguard national security as falling outside the scope
of Community Law, was infringed:
“56.
It follows that the transfer of PNR data to CBP
constitutes processing operations concerning public
security and the activities of the state in areas of
criminal law.
57.
While the view may rightly be taken that PNR data are
initially collected by airlines in the course of an
activity which falls within the scope of Community
Law, namely sale of an aeroplane ticket which
provides entitlement to a supply of services, the data
processing which is taken into account in the decision
on adequacy is, however, quite different in nature. As
pointed out in para. [55] of the present judgment, that
decision concerns not data processing necessary for a
supply of services, but data processing regarded as
necessary for safeguarding public security and for
law-enforcement purposes.
58.
The court held in para. [43] of Lindqvist, which was
relied upon by the Commission in its defence, that the
activities mentioned by way of example in the first
indent of Art.3(2) of the Directive are, in any event,
activities of the state or of state authorities and
unrelated to the fields of activity of individuals.
However, this does not mean that, because the PNR
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