72.
We have considered a number of cases in relation to the making of a
reference, including CILFIT [1982] ECR 3415 and Da Costa 1963 ECR 31,
and the Court of Justice’s Recommendations to National Courts and
Tribunals in Relation to the Initiation of Preliminary Ruling Proceedings
2016/C439/01, and we are satisfied that there are several reasons for which we
either must, or in any event may, make a reference to the Grand Chamber in
relation to the BCD regime. In our judgment, it is unclear whether, having
regard to Article 4 TEU, and Article 1 (3) EPD, and particularly by reference
to the matters set out in paragraph 37 above, the activities of the SIAs in
relation to the acquisition and use of BCD for the purposes of national
security:
(a) are to any extent governed by Union law,
(b) are subject to the requirements of Article 15(1) EPD in accordance
with the decision in Watson, or, in accordance with Article 4 TEU
and Article 1(3) EPD, and following the decisions in Parliament v
Council and Ireland v Parliament, should be treated as outside
the scope of the EPD, or
(c) are subject to the requirements stipulated by the decision in
Watson at paragraphs 119 – 125 and, if so, to what extent, taking
into account the essential necessity of the SIAs to use bulk
acquisition and automated processing techniques to protect national
security and the extent to which such capabilities, if otherwise
compliant with the ECHR, may be critically impeded by the
imposition of such requirements.
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