Public Security and Public Order in EU Law : Adjudicative Challenges in the Laws of the Internal and Digital Markets

Abstract

The digital era has brought about new security challenges. Security in the digital context is neither border centric nor a traditional security threat that can be contained into individual behaviour or which respects traditional borders. It may affect both privacy issues at the individual level and state security. What does this mean for the tools and adjudicative methods of EU law which are used to deal with security issues? Traditionally, national security issues have been state-centric: in the assessment of Member States’ reaction, based on public security/public order issues, the focus has very much been on the appropriateness of States’ response. In this context (of mass surveillance and anti-terrorism), there is simultaneously an ongoing battle as to who – the national court or the CJEU – ultimately controls the ambit of core concepts of EU law, namely national security, public security and public order? And where is the “battlefield”: in classic free movement or in secondary legislation? This tension is reflected in number of fundamental rulings of the CJEU that form the core of this Article. This Article asks whether the traditional adjudicative tests developed under the classic free movement case law are still relevant in the current climate. We focus on the role of proportionality and on the role of the EU Charter of Fundamental Rights (EUCFR) which is both the starting point of any legal analysis under EU law but also brings with it its own methodological framework and a new test of proportionality enshrined in art. 52(1) EUCFR.