03/02/2020
CURIA - Documents
and therefore a valuable tool in the prevention of offences and the fight against crime, in particular organised
crime.
It must therefore be held that the retention of data for the purpose of allowing the competent national authorities
to have possible access to those data, as required by Directive 2006/24, genuinely satisfies an objective of general
interest.
In those circumstances, it is necessary to verify the proportionality of the interference found to exist.
In that regard, according to the settled case-law of the Court, the principle of proportionality requires that acts of
the EU institutions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and do
not exceed the limits of what is appropriate and necessary in order to achieve those objectives (see, to that effect,
Case C‑343/09 Afton Chemical EU:C:2010:419, paragraph 45; Volker und Markus Schecke and Eifert
EU:C:2010:662, paragraph 74; Cases C‑581/10 and C‑629/10 Nelson and Others EU:C:2012:657, paragraph 71;
Case C‑283/11 Sky Österreich EU:C:2013:28, paragraph 50; and Case C‑101/12 Schaible EU:C:2013:661,
paragraph 29).
With regard to judicial review of compliance with those conditions, where interferences with fundamental rights are
at issue, the extent of the EU legislature’s discretion may prove to be limited, depending on a number of factors,
including, in particular, the area concerned, the nature of the right at issue guaranteed by the Charter, the nature
and seriousness of the interference and the object pursued by the interference (see, by analogy, as regards
Article 8 of the ECHR, Eur. Court H.R., S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §
102, ECHR 2008-V).
In the present case, in view of the important role played by the protection of personal data in the light of the
fundamental right to respect for private life and the extent and seriousness of the interference with that right
caused by Directive 2006/24, the EU legislature’s discretion is reduced, with the result that review of that discretion
should be strict.
As regards the question of whether the retention of data is appropriate for attaining the objective pursued by
Directive 2006/24, it must be held that, having regard to the growing importance of means of electronic
communication, data which must be retained pursuant to that directive allow the national authorities which are
competent for criminal prosecutions to have additional opportunities to shed light on serious crime and, in this
respect, they are therefore a valuable tool for criminal investigations. Consequently, the retention of such data may
be considered to be appropriate for attaining the objective pursued by that directive.
That assessment cannot be called into question by the fact relied upon in particular by Mr Tschohl and
Mr Seitlinger and by the Portuguese Government in their written observations submitted to the Court that there are
several methods of electronic communication which do not fall within the scope of Directive 2006/24 or which allow
anonymous communication. Whilst, admittedly, that fact is such as to limit the ability of the data retention measure
to attain the objective pursued, it is not, however, such as to make that measure inappropriate, as the Advocate
General has pointed out in paragraph 137 of his Opinion.
As regards the necessity for the retention of data required by Directive 2006/24, it must be held that the fight
against serious crime, in particular against organised crime and terrorism, is indeed of the utmost importance in
order to ensure public security and its effectiveness may depend to a great extent on the use of modern
investigation techniques. However, such an objective of general interest, however fundamental it may be, does not,
in itself, justify a retention measure such as that established by Directive 2006/24 being considered to be
necessary for the purpose of that fight.
So far as concerns the right to respect for private life, the protection of that fundamental right requires, according
to the Court’s settled case-law, in any event, that derogations and limitations in relation to the protection of
personal data must apply only in so far as is strictly necessary (Case C‑473/12 IPI EU:C:2013:715, paragraph 39
and the case-law cited).
In that regard, it should be noted that the protection of personal data resulting from the explicit obligation laid
down in Article 8(1) of the Charter is especially important for the right to respect for private life enshrined in
Article 7 of the Charter.
Consequently, the EU legislation in question must lay down clear and precise rules governing the scope and
application of the measure in question and imposing minimum safeguards so that the persons whose data have
been retained have sufficient guarantees to effectively protect their personal data against the risk of abuse and
against any unlawful access and use of that data (see, by analogy, as regards Article 8 of the ECHR, Eur. Court
H.R., Liberty and Others v. the United Kingdom, 1 July 2008, no. 58243/00, § 62 and 63; Rotaru v. Romania, § 57
to 59, and S. and Marper v. the United Kingdom, § 99).
The need for such safeguards is all the greater where, as laid down in Directive 2006/24, personal data are
subjected to automatic processing and where there is a significant risk of unlawful access to those data (see, by
analogy, as regards Article 8 of the ECHR, S. and Marper v. the United Kingdom, § 103, and M. K. v. France,
18 April 2013, no. 19522/09, § 35).
As for the question of whether the interference caused by Directive 2006/24 is limited to what is strictly necessary,
it should be observed that, in accordance with Article 3 read in conjunction with Article 5(1) of that directive, the
directive requires the retention of all traffic data concerning fixed telephony, mobile telephony, Internet access,
Internet e-mail and Internet telephony. It therefore applies to all means of electronic communication, the use of
which is very widespread and of growing importance in people’s everyday lives. Furthermore, in accordance with
Article 3 of Directive 2006/24, the directive covers all subscribers and registered users. It therefore entails an
interference with the fundamental rights of practically the entire European population.
In this respect, it must be noted, first, that Directive 2006/24 covers, in a generalised manner, all persons and all
means of electronic communication as well as all traffic data without any differentiation, limitation or exception
being made in the light of the objective of fighting against serious crime.
curia.europa.eu/juris/document/document.jsf?doclang=EN&text=&pageIndex=0&part=1&mode=DOC&docid=150642&occ=first&dir=&cid=99319 (judgment… 9/11