National Security and Essential Security Interests in CJEU Jurisprudence

The chapter analyses the case law of the CJEU on national security and essential interests of member states security. It answers the following questions: what do the national security and essential security interests clauses in EU law actually mean, what is their content? What role do they play? What is the extent of discretion of the member states when applying those clauses? What are the requirements concerning an effective review of measures undertaken to protect security? The analysis leads to the conclusion that recent case law could be seen as the beginning of differentiation or stratification between clauses of public and national security. This case law is, however, contradicted to some extent by the interpretation of the ‘public security’ clause by the Court. Instead of demoting the public security to less crucial threats to ‘make room’ above for national security, the Court seems to continue to attribute to it fundamental importance (notably a threat to the survival of the population, as well as the risk of a serious disturbance to foreign relations or the peaceful coexistence of nations). Also, as concerns the role of the national security clause, the difference between national and public clauses seems to be only quantitative, not qualitative. For the Court, the national security clause does not seem to be about the question of delimitation of competencies between the EU and the member states.