“Furthermore, although it is for member states to take the
appropriate measures to ensure their internal and external
security, the mere fact that a decision concerns state security
cannot result in European Union law being inapplicable.”
Mr de la Mare points out that when ZZ was returned to the Court of Appeal,
[2004] QB 820, Richards LJ stated at paragraph 18 that the gist was a
“minimum requirement which cannot yield to the demands of national
security”, and continued “nor is there anything particularly surprising about
such a result in the context of restrictions on the fundamental rights of free
movement and residence of Union citizens under European Union law”. Mr
de la Mare also points to the role of EU law in the pre-Human Rights Act
cases of R v Secretary of State for the Home Department ex p Gallagher
[1995] ECR I-4253 and R (Shingara and Radiom) v Secretary of State for
the Home Department [1997] ECR I-3343, where Articles 8 and 9 of
Council Directive 64/221EEC were applied without challenge, in cases of
national security.
42.
The Claimant submits that Watson is binding and should be followed, even
though the facts are not entirely identical.
43.
The irresistible force seemed to be met by the immovable object, as the VicePresident put it in argument. To return to Parliament v Council, implicit in
the Grand Chamber’s reasoning in that case is that the Court was adopting a
purposive approach: as the purpose of the processing and transfer of data to
the United States Government was to further the activities of the state, then the
activity of the data processor fell outside the scope of Community law.
Applying that principle to this case:
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