The CJEU invalidated the Data Retention Directive and thereby elaborated on the scope of Articles 7 and 8 of the Charter.
The main objective of the Data Retention Directive (2006/24/EC) is to harmonise Member States’ provisions concerning the retention of certain data which are generated or processed by providers of publicly available electronic communications services or of public communications networks. It seeks to ensure that the data are available for the purpose of the prevention, investigation, detection and prosecution of serious crime e.g. organised crime and terrorism. Thus, providers must retain traffic and location data as well as related data necessary to identify the subscriber or user. By contrast, the directive does not permit the retention of the content of the communication or of information consulted. The directive allows for the data retained to be accessed by the competent national authorities in specific cases and in accordance with national law.
The High Court of Ireland had to resolve a dispute between the Irish company Digital Rights Ireland and the Irish authorities regarding the legality of national measures concerning the retention of data relating to electronic communications.
The Austrian Constitutional Court had before it several constitutional actions brought by Government of the Province of Carinthia and by Mr Seitlinger, Mr Tschohl and 11.128 other applicants. Those actions sought the annulment of the national provision which transposed the directive into Austrian law.
The referring courts asked the CJEU, inter alia, to examine the validity of the directive- in particular in the light of Articles 7, 8, 11 and 41 of the Charter.
First, the CJEU examined the relevance of Articles 7, 8 and 11 of the Charter with regard to the question of the validity of Directive 2006/24
The Court observed that the data to be retained under the directive make it possible: to know the identity of the person with whom a subscriber or registered user has communicated and by what means; to identify the time of the communication as well as the place from which that communication took place and; to know the frequency of the communications of the subscriber or registered user with certain persons during a given period. “Those data, taken as a whole, may provide very precise information on the private lives of the persons whose data are retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, activities carried out, social relationships and the social environments frequented” (paras. 26-27).
The Court stated that “[…] it is not inconceivable that the retention of the data in question might have an effect on the use, by subscribers or registered users, of the means of communication covered by that directive and, consequently, on their exercise of the freedom of expression guaranteed by Article 11 of the Charter” (para. 28).
The Court found that “the retention of data for the purpose of possible access to them by the competent national authorities, as provided for by Directive 2006/24, directly and specifically affects private life and, consequently, the rights guaranteed by Article 7 of the Charter. Furthermore, such a retention of data also falls under Article 8 of the Charter because it constitutes the processing of personal data within the meaning of that article and, therefore, necessarily has to satisfy the data protection requirements arising from that article (Cases C‑92/09 and C‑93/09 Volker und Markus Schecke and Eifert EU:C:2010:662, paragraph 47)” (para. 29).
Secondly, the CJEU examined whether the directive constitutes an interference with Articles 7, 8 and 11 of the Charter.
To CJEU reiterated that, “to establish the existence of an interference with the fundamental right to privacy, it does not matter whether the information on the private lives concerned is sensitive or whether the persons concerned have been inconvenienced in any way (see, to that effect, Cases C‑465/00, C‑138/01 and C‑139/01 Österreichischer Rundfunk and Others EU:C:2003:294, paragraph 75)” (para.33).
The Court also held that the directive constitutes “an interference with the fundamental right to the protection of personal data guaranteed by Article 8 of the Charter because it provides for the processing of personal data”.
The CJEU held that, by requiring the retention of those data and by allowing the competent national authorities to access those data, the directive interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data. Furthermore, the fact that data are retained and subsequently used without the subscriber or registered user being informed is likely to generate in the persons concerned a feeling that their private lives are the subject of constant surveillance (para. 37)
Thirdly, the Court then examines whether such an interference with the fundamental rights is justified in accordance with Article 52 of the Charter.
The Court recalled that “Article 52(1) of the Charter provides that any limitation on the exercise of the rights and freedoms laid down by the Charter must be provided for by law, respect their essence and, subject to the principle of proportionality, limitations may be made to those rights and freedoms only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others” (para. 38)
The Court found that that the retention of data required by the directive is not such as to adversely affect the essence of the fundamental rights to respect for private life and to the protection of personal data as it does not permit the acquisition of knowledge of the content of the electronic communications as such and provides that service or network providers must respect certain principles of data protection and data security (paras. 39-40).
Furthermore, the retention of data for the purpose of their possible transmission to the competent national authorities genuinely satisfies an objective of general interest, namely the fight against serious crime and, ultimately, public security (para. 41-44)
Therefore, the Court found it necessary to verify whether the proportionality of the interference can be established (see excerpts of judgement below)
The Court held that, by adopting Directive 2006/24, the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter. In this context, the Court found no need to examine the validity of the Directive in the light of Article 11 of the Charter (para. 69-70) and declared the directive invalid (para. 71/73).