On 30 October 2017 the Tribunal made a request to the Court of Justice of the European Union for a preliminary ruling pursuant to Article 267 TFEU in relation to BCD.
The underlying complaint concerns the acquisition and use by the intelligence services of (inter alia) Bulk Communications Data (BCD)
In a judgment date 6 September 2017 the Tribunal said:
In our judgment, it is unclear whether, having regard to Article 4 TEU, and Article 1 (3) EPD, the activities of the intelligence services in relation to the acquisition and use of BCD for the purposes of national security:
- are to any extent governed by Union law,
- are subject to the requirements of Article 15(3) EPD in accordance with the decision in Watson, or, in accordance with Article 4 TEU and Article 1(3) EPD, and following the decisions in Parliament v Council and Ireland v Parliament, should be treated as outside the scope of the EPD, or
- are subject to the requirements stipulated by the decision in Watson at paragraphs 119 – 125 and, if so, to what extent, taking into account the essential necessity of the SIAs to use bulk acquisition and automated processing techniques to protect national security and the extent to which such capabilities, if otherwise compliant with the ECHR, may be critically impeded by the imposition of such requirements.””
The order for reference and accompanying request for a preliminary ruling can be found here: IPT BULK DATA ORDER FOR REFERENCE TO CJEU.pdf
The order for reference is accompanied by the following documents:
- Judgment of the Investigatory Powers Tribunal dated 17 October 2016.
- Judgment of the Investigatory Powers Tribunal dated 8 September 2017
- Section 94, Telecommunications Act 1984. www.legislation.gov.uk/ukpga/1984/12/section/94
- Two sample directions made under section 94, Telecommunications Act 1984. 2 x s94 OPEN directions.pdf
- The covering letter accompanying the referral can be found here: IPT to CJEU October 2017.pdf