European Commission v Republic of Finland.
Date: 2009-12-15
45. According to the Court’s settled case-law, although it is for Member States to take the appropriate measures to ensure their internal and external security, it does not follow that such measures are entirely outside the scope of Community law (see Case C‑273/97 Sirdar  [1999] ECR I‑7403, paragraph 15, and Case C‑285/98 Kreil  [2000] ECR I‑69, paragraph 15). As the Court has already held, the Treaty provides for derogations applicable in situations which may involve public safety, in particular, in Articles 30 EC, 39 EC, 46 EC, 58 EC, 64 EC, 296 EC and 297 EC, which deal with exceptional and clearly defined cases. It cannot be inferred from those articles that the Treaty contains an inherent general exception excluding all measures taken for reasons of public security from the scope of Community law. The recognition of the existence of such an exception. regardless of the specific requirements laid down by the Treaty, would be liable to impair the binding nature of Community law and its uniform application (see Case C‑186/01 Dory  [2003] ECR I‑2479, paragraph 31 and case-law there cited).
46. Furthermore, the derogations provided for in Articles 296 EC and 297 EC must, in accordance with settled case-law in respect of derogations from fundamental freedoms (see, inter alia, Case C‑503/03 Commission  v Spain  [2006] ECR I‑1097, paragraph 45; Case C‑490/04 Commission  v Germany  [2007] ECR I‑6095, paragraph 86; and Case C‑141/07 Commission  v Germany  [2008] ECR I‑6935, paragraph 50), be interpreted strictly.
47. As regards, more particularly, Article 296 EC, it must be observed that, although that Article refers to measures which a Member State may consider necessary for the protection of the essential interests of its security or of information the disclosure of which it considers contrary to those interests, that Article cannot however be read in such a way as to confer on Member States a power to depart from the provisions of the Treaty based on no more than reliance on those interests.
49. Consequently it is for the Member State which seeks to take advantage of Article 296 EC to prove that it is necessary to have recourse to that derogation in order to protect its essential security interests.
57. The Court has taken such a step only in certain specific circumstances, where there is a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force, and where it appears that both individuals and national authorities have been led into adopting practices which did not comply with Community law by reason of objective, significant uncertainty regarding the implications of Community provisions, to which the conduct of other Member States or the Commission may even have contributed (Case C‑359/97 Commission  v United Kingdom  [2000] ECR I‑6355, paragraph 91).
58. Even if judgments delivered under Article 226 EC were to have the same effects as those delivered under Article 234 EC and, therefore, considerations of legal certainty might, exceptionally, make it necessary to limit their temporal effects (see Case C‑178/05 Commission  v Greece  [2007] ECR I‑4185, paragraph 67; Case C‑475/07 Commission  v Poland  [2009] ECR I‑0000, paragraph 61; and Case C‑559/07 Commission  v Greece  [2009] ECR I‑0000, paragraph 78), it need merely be stated that the Republic of Finland has made no attempt, either in its written pleadings or at the hearing, to demonstrate that there is any risk of serious economic repercussions.