40.
He submits in any event that the activities of the security services of Member
States are outside the scope of the TEU only insofar as they do not disturb the
rights and obligations imposed by EU law, the corollary of which is that the
EU has no competence to undertake work to further the national security of
any Member State, and cannot comment on the adequacy or inadequacy of any
Member State’s efforts, or demand any particular steps be taken in that regard.
He points out that national security has not amounted to a ‘get out’ in the
context of freedom of movement or goods (notwithstanding the express
exclusions for national security in Articles 36 and 52 of TFEU). Thus in
European Commission v Italian Republic Case C-387/05 judgment of 15
December 2009 the Court stated:
“45. According to the Court’s settled case-law, although it is
for Member States to take the appropriate measures to ensure
their internal and external security, it does not follow that such
measures are entirely outside the scope of Community law (see
Case C-273/97 Sirdar [1999] ECR I-7403, paragraph 15, and
Case C-285/98 Kreil [2000] ECR I-69, paragraph 15). As the
Court has already held, the only articles in which the Treaty
expressly provides for derogations applicable in situations
which may affect public safety are Articles 30 EC, 39 EC, 46
EC, 58 EC, 64 EC, 296 EC and 297 EC, which deal with
exceptional and clearly defined cases. It cannot be inferred that
the Treaty contains an inherent general exception excluding all
measures taken for reasons of public security from the scope of
Community law.”
41.
This was followed by the Grand Chamber in ZZ (France) v Secretary of
State for the Home Department Case C-300/11 [2013] QB 1136, a case
which considered whether an individual facing expulsion from the UK was
entitled to a gist of the case against him in the Special Immigration Appeal
Commission. The Court said in paragraph 38:
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