Member States' Security Sensitive Data in the Case Law of the Court of Justice of the European Union
The protection of national security aspects is inherent to the EU member states. The case law of the CJEU was not in line with the normative detachment of the concept of national security relating to EU law. The CJEU has dealt with that concept both indirectly and directly by performing a balancing test between national security interests of member states and freedom and rights guaranteed by EU law. According to its case law, the mere fact that a question concerns a member state's national security cannot result in EU law being inapplicable. The CJEU’s latest case law has encroached the powers conferred upon it by the EU treaties and deprived Article 4 Paragraph 2 of the TEU of its effet utile. Instead of defining necessary conditions for national security services in data retention context, which would have harmonized their actions with EU law, looking up to the ECHR as a role model, the CJEU has virtually prevented member states from exercising their obligations regarding national security protection.