particularly in the light of the impact of Articles 4 and 5 TEU, and the need to
construe the Directive so as to comply with the Treaty, that that sentence may
not have such meaning; and certainly did not do so when the Directive was
originally adopted, because at that time Article 6(1) and 6(2) TEU were in a
different form from that in which they now stand as set out in paragraph 21
above. At that time they read as follows:
“1. The Union is founded on the principles of liberty,
democracy, respect for human rights and fundamental
freedoms, and the rule of law, principles which are common to
the Member States.
2. The Union shall respect fundamental rights, as guaranteed
by the European Convention for the Protection of Human
Rights and Fundamental Freedoms signed in Rome on 4
November 1950 and as they result from the constitutional
traditions common to the Member States, as general principles
of Community law.”
It seems to us that it may be that the last sentence of Article 15 should thus be
construed as nothing more than a reiteration of Recital 11 (with which it is
otherwise in conflict) and that the ECHR does, and the Charter does not, apply
to those activities excluded under Articles 4 and 5 TEU.
45.
This analysis may resolve the otherwise apparent conflict between the
construction by the Grand Chamber of Article 15, and the existence of Article
4(2) of the TEU and Recital 11 and Article 1(3) of the EPD, which appear to
amount to a positive reservation of sovereignty by the Member States in
relation to activities relating to national security. This issue underlies our
reasons for making the reference to the Grand Chamber, to which we return
below.
The Watson Requirements
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