i)
We have already cited in paragraph 21 above Recital 13 of the DPD, which
recites exclusions from the scope of Community Law and of that Directive,
where processing “relates to State security matters”. Recital 11 to the EPD,
also there set out, in terms excludes from that Directive activities relating to
(inter alia) public and State security matters referred to in Article 15, so that
“the Directive does not affect the ability of Member States to carry out”
interception, or (a fortiori) other less intrusive measures, such as the obtaining
and processing of BCD.
The proviso is that “such measures must be
appropriate, strictly proportionate to the intended purpose and necessary
within a democratic society and should be subject to adequate safeguards in
accordance with the [ECHR]”.
This proviso would be satisfied by our
conclusions (subject to the reserved issues) in our October Judgment.
ii)
Article 1(3) of the EPD, also there set out, states plainly that the Directive
does not apply to activities (inter alia) concerning public security and State
security, which fall outside the scope of the Treaty. There is no proviso.
iii)
Article 15 refers to the legislative measures which may be adopted by Member
States to safeguard (inter alia) national security. Until its last sentence it
appears to add nothing to Recital 11 (and indeed Recital 13 of the DPD) and to
Article 1(3). The last sentence then provides that “all the measures referred to
in this 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”. It is this sentence which led the Grand Chamber
to the conclusion that the measures in Article 15 fell within the scope of the
Directive, and, on its conclusions, the Charter.
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It seems to us possible,