27/07/2023, 22:38
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62
Therefore, first, the retention of traffic and location data for policing purposes is liable, in itself, to
infringe the right to respect for communications, enshrined in Article 7 of the Charter, and to deter users
of electronic communications systems from exercising their freedom of expression, guaranteed in
Article 11 of the Charter, effects that are all the more serious given the quantity and breadth of data
retained. Secondly, in view of the significant quantity of traffic and location data that may be
continuously retained under a general and indiscriminate retention measure, as well as the sensitive
nature of the information that may be gleaned from those data, the mere retention of such data by
providers of electronic communications services entails a risk of abuse and unlawful access (judgment
of 5 April 2022, Commissioner of An Garda Síochána and Others, C‑140/20, EU:C:2022:258,
paragraph 46 and the case-law cited).
63
That being said, in so far as Article 15(1) of Directive 2002/58 allows Member States to introduce the
derogations referred to in paragraph 51 to 54 above, that provision reflects the fact that the rights
enshrined in Articles 7, 8 and 11 of the Charter are not absolute rights, but must be considered in
relation to their function in society. Indeed, as can be seen from Article 52(1) of the Charter, that
provision allows limitations to be placed on the exercise of those rights, provided that those limitations
are provided for by law, that they respect the essence of those rights and that, in compliance with the
principle of proportionality, they are necessary and genuinely meet objectives of general interest
recognised by the European Union or the need to protect the rights and freedoms of others. Thus, in
order to interpret Article 15(1) of Directive 2002/58 in the light of the Charter, account must also be
taken of the importance of the rights enshrined in Articles 3, 4, 6 and 7 of the Charter and of the
importance of the objectives of protecting national security and combating serious crime in contributing
to the protection of the rights and freedoms of others (judgment of 5 April 2022, Commissioner of An
Garda Síochána and Others, C‑140/20, EU:C:2022:258, paragraph 48 and the case-law cited).
64
Thus as regards, in particular, effective action to combat criminal offences committed against, inter
alia, minors and other vulnerable persons, it should be borne in mind that positive obligations of the
public authorities may result from Article 7 of the Charter, requiring them to adopt legal measures to
protect private and family life. Such obligations may also arise from Article 7, concerning the
protection of an individual’s home and communications, and Articles 3 and 4, as regards the protection
of an individual’s physical and mental integrity and the prohibition of torture and inhuman and
degrading treatment (judgment of 5 April 2022, Commissioner of An Garda Síochána and Others,
C‑140/20, EU:C:2022:258, paragraph 49 and the case-law cited).
65
In view of those different positive obligations, it is therefore necessary to strike a balance between the
various interests and rights at issue and to establish a legal framework which enables such a balance to
be struck (see, to that effect, judgment of 5 April 2022, Commissioner of An Garda Síochána and
Others, C‑140/20, EU:C:2022:258, paragraph 50 and the case-law cited).
66
In that context, it is clear from the wording itself of the first sentence of Article 15(1) of Directive
2002/58 that the Member States may adopt a measure derogating from the principle of confidentiality
referred to in paragraph 52 above where such a measure is ‘necessary, appropriate and proportionate
within a democratic society’, and recital 11 of the directive specifies, in that respect, that a measure of
that nature must be ‘strictly’ proportionate to the intended purpose.
67
In that regard, it should be borne in mind that the protection of the fundamental right to privacy
requires, according to the settled case-law of the Court, that derogations from and limitations on the
protection of personal data must apply only in so far as is strictly necessary. In addition, an objective of
general interest may not be pursued without having regard to the fact that it must be reconciled with the
fundamental rights affected by the measure, by properly balancing the objective of general interest
against the rights at issue (judgment of 5 April 2022, Commissioner of An Garda Síochána and Others,
C‑140/20, EU:C:2022:258, paragraph 52 and the case-law cited).
68
More specifically, it follows from the Court’s case-law that the question whether the Member States
may justify a limitation on the rights and obligations laid down, inter alia, in Articles 5, 6 and 9 of
Directive 2002/58 must be assessed by measuring the seriousness of the interference entailed by such a
limitation and by verifying that the importance of the public interest objective pursued by that
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