The foundations of the European Union are defined in the Founding Treaties, through which Member States transferred certain competences to the Union, as it originally does not have any competence and can only act through power conferred by Member States. But what happens when the specific competences are not accompanied by a precise EU concept to support them? How do they decide in such cases whether a particular matter falls within the competence of the Union or the Member State? What can be done to address the potential interpretative divergence between the Union and Member States, and is there an established practice for this?
We have the option of exploring the aforementioned problem through the case study of the Union’s response to the migration crisis, where the problem appears in the indeterminacy of the definition of national security that falls within the scope of Member State competences, as is also supported by Article 4(2) TEU, surrounding the EU’s obligation to respect national identity, as will be presented below.
During the handling of the 2015 migration wave and crisis by the Union, questions arose for many whether the Union effectively operated within the competences provided by the Treaties in its response, and whether its measures did not affect or impinge upon the national security falling within the scope of Member State competences. This is where my reference to an (in)secure correlation mentioned in the title originates from. Through the analysis presented, one may be able to assess (in the absence of a unified EU conceptual framework regarding national security) to what extent a specific Treaty provision can be appropriate, and whether, in light of the results, this issue justifies the necessity of Treaty modification.
As mentioned above, Article 4(2) TEU explicitly emphasizes that “The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order, and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.” This means that Member States have supreme decision-making authority within their own territories, including in the area of national security, which is considered an essential state function. The term “essential state functions” also raises some questions. It cannot go unnoticed that “national identity” and “essential state functions” are mentioned within a single paragraph, thus raising the question of the relationship between the two. Is this one or two concepts within the same paragraph? Deciding this is not aided by the fact that, on one hand, CJEU case law intertwines the elements protected by “national identity” and “essential state functions.” On the other hand, the CJEU not only treats these two concepts similarly but also employs cross-referencing between them in its case law.
Upon closer examination of the paragraph, a crucial issue arises. There is no unified concept within the Union that precisely defines what falls under the scope of national security, although both the European Union and its Member States employ various terms to describe the concept, e.g. “internal security”, “public security” or “state security”. Although these terms ought to be differentiated, they are interconnected in certain respects.
In C-373/13 (H. T. v Land Baden-Württemberg), the Court of Justice of the European Union (CJEU) examined the concept of “compelling reasons of national security or public order” in the context of asylum proceedings. However, it is essential to emphasize that in this case, the notion of national security was not defined in a general sense, and the focus was on public security, which falls within the category of related concepts mentioned above.
Interpreting the provisions of Council Directive 2004/83/EC dealing with minimum standards for the qualification and status of third-country nationals as refugees and the content of the protection granted, the Court made the following finding (see: paragraph 78):
„Therefore, in order to interpret the concept of ‘compelling reasons of national security or public order’ … the concept of ‘public security’ covers both a Member State’s internal and external security and that, consequently, a threat to the functioning of the institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or to peaceful coexistence of nations, or a risk to military interests, may affect public security.”
In C-275/06 [Productores de Música de España (Promusicae) v Telefónica de España SAU], the Court found (see: paragraph 51) that “national security, defence, and public security, which constitute activities of the State or of State authorities unrelated to the fields of activity of individuals and, secondly, the prosecution of criminal offences.”
From this case law, the indeterminacy of the unambiguous EU-level definition of national security becomes apparent. However, Member States have addressed this issue at the national level. In order to obtain a comprehensive overview of the various countries’ own concepts of national security, the Council of Bars and Law Societies of Europe (CCBE) conducted a comparative survey. The research includes the following countries as part of the representative sample: Austria, Germany, Italy, Spain, the United Kingdom, France, Belgium, Greece, the Czech Republic, Poland and Hungary. In the case of Hungary, the “National Security Services Act” (Act CXXV of 1995) contains a definition only with regard to the “interest of national security” in Section 74(a). This definition is not precise, but it can serve as a starting point. Based on this, “national security interest means ensuring the sovereignty and protecting the lawful order of Hungary”. Within this framework we can find definitions such as “detecting offensive endeavours against the independence”, “obtaining information related to foreign countries”, and “detecting and warding off covert endeavours aimed at changing, or disrupting by unlawful means the lawful order of the country”.
In Spain, however, the legal concept focuses on actions undertaken by the State to safeguard citizens’ freedom, rights, and well-being, defend the State and its core principles, and cooperate with allies to ensure international security as per commitments made.
In Austria, national security is not legally defined. Article 229 of the Austrian Code of Criminal Procedure (StPO) encompasses the State’s interest in protecting its values, particularly in foreign affairs, security policy, and defense policy.
In France, on the one hand, we can find a definition of the fundamental interests of the state, which formulates national security in a parallel manner, allowing for inferences to be drawn from it, and, on the other hand, the purpose of national security has been defined as well. Article L1111-1 of the Code of Defence sets forth that:
“The purpose of the national security strategy is to identify all the threats and risks that may affect the life of the Nation, particularly with regard to the protection of the population, the integrity of the territory and the permanence of institutions of the Republic, and to determine the responses that the public authorities must make. All public policies contribute to national security.”
The above-mentioned definitions indicate that not only do Member States’ laws also lack a precise definition, but it is also not uniform how certain states approach this issue, whether they have a precise legal concept of national security or not, and how they define it in legal documents. However, there are some overlapping elements such as defending the state against specific actions and threats. Therefore, the following question arises: If national security is such a vague term, then how did the CJEU apply it in its case law, in which areas was it qualified as falling under an EU competence, and on what grounds?
In C-72/22 (PPU, M.A. v State Border Protection Service at the Ministry of the Interior of the Republic of Lithuania), the Republic of Lithuania first declared a state of emergency in a part of its territory, and later declared emergency for the entire country due to the mass influx of migrants. After M.A.’s arrest in Poland and extradition to Lithuania, it was determined that Lithuanian databases did not contain any information about him, and therefore, he was present in the country illegally. Pending the decision on his status, M.A. was detained due to the risk of escape. In the court proceedings, M.A. applied for asylum, but the application was rejected. According to the national Law on the Legal Status of Aliens, M.A.’s illegal entry into Lithuania and his detention precluded him from submitting an application for international protection, and consequently, he could not be considered an asylum seeker. Furthermore, the provisions of the state of emergency in the country only allowed for less coercive measures to be applied to asylum seekers.
The CJEU sought to determine in the case whether the Lithuanian provision protecting national security during a state of emergency in the face of mass immigration is contrary to EU law, considering that in this case, foreign nationals who have entered and reside illegally are effectively deprived of the possibility to submit an application for international protection. Additionally, the CJEU examined the compatibility with EU law of provisions allowing authorities, in the context of a state of emergency declared due to mass immigration, to detain a person solely on the grounds of illegal entry into the state’s territory.
The CJEU concluded that while Member States can establish provisions affecting the location of submitting applications for international protection under Directive 2013/32/EU, they cannot practically prevent applicants from having the opportunity to submit such applications. Paragraph 70 of the judgment specifically highlighted that ensuring public order and adopting measures to ensure internal and external security within their territory is the responsibility of Member States, but this does not mean that such measures are entirely outside the scope of EU law. During the case, the Lithuanian government did not clarify how such a measure would impact the maintenance of public order and internal security in the context of the state of emergency declared due to the mass influx of migrants. As a result, the CJEU found that the national regulation, which prevents illegally residing third-country nationals within the territory of the state from accessing the procedure for examining applications for international protection, is contrary to EU law.
In the answer to the second question, the CJEU interpreted the national regulation in conjunction with Directive 2013/33/EU. According to the directive, a person seeking international protection may only be placed in detention if it passes the test of necessity and proportionality. Article 8 of the directive lists reasons that may justify a person’s detention, including when the asylum seeker is detained on the grounds of protecting national security or public order. Paragraph 88 of the judgment defines the concept of public security and argues that it “covers both the internal security of a Member State and its external security and, consequently, a threat to the functioning of institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or to peaceful coexistence of nations, or a risk to military interests, may affect public security.” Paragraph 89 states that the justification for national security or public order would be applicable if the individual behavior poses a direct and sufficiently serious threat that affects a fundamental interest of society or the internal or external security of the Member State. Thus, national legislation that allows detaining asylum seekers purely on the basis of their illegal presence in the territory of the Member State during a state of emergency due to a mass influx of foreigners is contrary to EU law.
As can be seen, in the case of the first question, the issue of national security was not specifically mentioned, while in the second question, its interpretation by the CJEU was provided. However, despite the presence of national security in the mentioned directive, the CJEU only analyzed the concept of public security. Nevertheless, other concepts combining that of national security used by Member States and the EU were identified earlier, including public security. Notably, similarities can be found between the concept of public security as defined by the CJEU and the Member State definitions of national security, such as the state’s internal and external defence, threats to state institutions and the population. Consequently, if overlaps exist, the legality of the Union’s competence may become questionable, if a Member State adopts an interpretation of the concept of national security that unequivocally places the given situation within their national competence, thus leading to a lack of competence on the Union’s part in the area where it acted. Meanwhile—despite the absence of a precise EU definition—the Union does not consider the case as falling under the scope of the concept of national security, as it correlates with other Union competences. It also raises the question of what possible changes can be made within the current framework of the Treaties or whether a treaty amendment is necessary to address the situation.
Moreover, the problem of the indeterminacy of the concept has not only arisen in migration cases but also raises general issues due to its lack of clarity. For instance, the CJEU reaffirmed strict guidelines for national surveillance laws and measures concerning electronic communications and online service providers. In C-623/17 (Privacy International) and the joined cases C-511/18, C-512/18, and C-520/18 (La Quadrature du Net, French Data Network and Ordre des barreaux francophones et germanophones and Others), the CJEU stated that surveillance, investigation, and intelligence actions must fully comply with the rule of law within the EU, regardless of their justification by national security imperatives. With this, the CJEU set certain boundaries for national security, excluded a part of this category from the state’s competence, and brought it under EU jurisdiction, despite national security being an area reserved for the Member States. In the mentioned case, Member States also referred to this competence problem. They pointed out that Directive 2022/58 cannot be applicable against their national regulations if they relate to national security. However, the CJEU ruled that while national regulations can indeed serve this purpose, they must not apply to every individual, but only to those for whom there are reasonable grounds to assume their involvement in terrorist activities. As can be seen, according to the CJEU’s decision, the presence of a national security reason must be accompanied by a special situation. All this was done without a precise EU definition of national security, and the CJEU established the interpretative framework solely based on the ePrivacy Directive (2002/58/EC).From all of these, a general conclusion can be drawn that the current EU regulations raise several issues. The lack of a precise EU legal concept, diverging interpretations among the Member States, and the relevant case law indicate that there are indeed insecure correlations within the conceptual framework and changes are necessary. This problem, as we have seen, arises not only during crisis management but also in various regulatory areas. All of this, originating from just one overly vague legal concept, might actually raise the necessity of the revision of the EU Treaties.
Dalma Medvegy is a fourth year undergraduate law student at the University of Szeged, Hungary, Faculty of Law and Political Sciences, holding a talent scholarship from the Aurum Foundation. She is Vice President in charge of Academic Activities at ELSA Szeged in the academic year of 2022/2023, Member of the International and EU Environmental Law Research Group at the University of Szeged, Faculty of Law and Political Sciences. Her research focuses on the revision of EU treaties and the future of Europe.