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storage by third parties (judgment of 5 April 2022, Commissioner of An Garda Síochána and Others,
C‑140/20, EU:C:2022:258, paragraph 39).
57
In so far as Article 15(1) of Directive 2002/58 permits Member States to adopt legislative measures
that ‘restrict the scope’ of the rights and obligations laid down inter alia in Articles 5, 6 and 9 of that
directive, such as those arising from the principles of confidentiality of communications and the
prohibition on storing related data recalled in paragraph 52 above, that provision provides for an
exception to the general rule provided for inter alia in Articles 5, 6 and 9 and must thus, in accordance
with settled case-law, be the subject of a strict interpretation. That provision, therefore, cannot permit
the exception to the obligation of principle to ensure the confidentiality of electronic communications
and data relating thereto and, in particular, to the prohibition on storage of those data, laid down in
Article 5 of that directive, to become the rule, if the latter provision is not to be rendered largely
meaningless (judgment of 5 April 2022, Commissioner of An Garda Síochána and Others, C‑140/20,
EU:C:2022:258, paragraph 40 and the case-law cited).
58
As regards the objectives that are capable of justifying a limitation of the rights and obligations laid
down, in particular, in Articles 5, 6 and 9 of Directive 2002/58, the Court has previously held that the
list of objectives set out in the first sentence of Article 15(1) of that directive is exhaustive, as a result of
which a legislative measure adopted under that provision must correspond, genuinely and strictly, to
one of those objectives (judgment of 5 April 2022, Commissioner of An Garda Síochána and Others,
C‑140/20, EU:C:2022:258, paragraph 41 and the case-law cited).
59
Furthermore, it is clear from the third sentence in Article 15(1) of Directive 2002/58 that measures
taken by the Member States must comply with the general principles of EU law, which include the
principle of proportionality, and ensure respect for the fundamental rights guaranteed by the Charter. In
that regard, the Court has previously held that the obligation imposed on providers of electronic
communications services by a Member State by way of national legislation to retain traffic data for the
purpose of making them available, if necessary, to the competent national authorities raises issues
relating to compatibility not only with Articles 7 and 8 of the Charter, but also with Article 11 of the
Charter, relating to the freedom of expression, which constitutes one of the essential foundations of a
pluralist, democratic society, and is one of the values on which, under Article 2 TEU, the European
Union is founded (see, to that effect, judgment of 5 April 2022, Commissioner of An Garda Síochána
and Others, C‑140/20, EU:C:2022:258, paragraphs 42 and 43 and the case-law cited).
60
It should be made clear, in that regard, that the retention of traffic and location data constitutes, in
itself, first, a derogation from the prohibition laid down in Article 5(1) of Directive 2002/58 barring any
person other than the users from storing those data, and, secondly, an interference with the fundamental
rights to the respect for private life and the protection of personal data, enshrined in Articles 7 and 8 of
the Charter, irrespective of whether the information in question relating to private life is sensitive,
whether the persons concerned have been inconvenienced in any way on account of that interference,
or, furthermore, whether the data retained will or will not be used subsequently (judgment of 5 April
2022, Commissioner of An Garda Síochána and Others, C‑140/20, EU:C:2022:258, paragraph 44 and
the case-law cited).
61
That conclusion is all the more justified since traffic and location data may reveal information on a
significant number of aspects of the private life of the persons concerned, including sensitive
information such as sexual orientation, political opinions, religious, philosophical, societal or other
beliefs and state of health, given that such data moreover enjoy special protection under EU law. Taken
as a whole, those data may allow very precise conclusions to be drawn concerning the private lives of
the persons whose data have been retained, such as the habits of everyday life, permanent or temporary
places of residence, daily or other movements, the activities carried out, the social relationships of those
persons and the social environments frequented by them. In particular, those data provide the means of
establishing a profile of the individuals concerned, information that is no less sensitive, having regard to
the right to privacy, than the actual content of communications (judgment of 5 April 2022,
Commissioner of An Garda Síochána and Others, C‑140/20, EU:C:2022:258, paragraph 45 and the
case-law cited).
https://curia.europa.eu/juris/document/document_print.jsf;jsessionid=A4432EEFFE3535A201E714AE6441EE66?mode=DOC&pageIndex=1&docid=265881…
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