This was approved by the Court at paragraphs 41 and 42:
“41. Moreover, as that division of competences is not fixed, the
protection conferred by Article 4(2) TEU also concerns
internal reorganisations of powers within a Member State, as
observed by the Advocate General in points 41 and 42 of his
Opinion. Such reorganisations, which may take the form of
reallocations of competences from one public authority to
another imposed by a higher-ranking authority or voluntary
transfers of competences between public authorities, have the
consequence that a previously competent authority is released
from or relinquishes the obligation or power to perform a given
public task, whereas another authority is henceforth entrusted
with that obligation or power.
42. Secondly, such a reallocation or transfer of competence
does not meet all of the conditions required to come within the
definition of public contract.”
36.
The Respondents also refer to:
i)
Mengozzi AG’s Opinion of 8 September 2016 1/15, in which he refers to
Parliament v Council:
“85. The Court was asked by the Parliament to
determine, in particular, whether the Commission was
authorised to adopt an adequacy decision, based on
Article 25 of Directive 95/46 on the adequate
protection of personal data contained in the Passenger
name Record of air passengers transferred to the
United States, when Article 3(2) of that directive
expressly excluded from its scope processing
operations concerning, in particular, public security
and the activities of the State in areas of criminal law.
The Court logically replied in the negative. In fact, the
processing of the PNR data in the context of the
agreement with the United States could not be
associated with the supply of services, but fell within a
framework established by the public authorities that
related to public security, which did not come within
the scope of Directive 95/46.”
ii)
The European Council Notice 2016/C691/01 of February 2016. This was a
statement made by the European Council in the context of a hoped for new
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