Are National Information Memory Laws Inside The Orbit Of The Charter?

By Steve Peers

Following the annulment of the EU’s information retentiveness Directive past times the CJEU, an obvious of import inquiry arises: are national information retentiveness laws champaign of report to the same ruling of the Court? The role of this postal service is to gear upwards out the reasons why they are.

The starting betoken for this analysis is Article 51 of the EU’s Charter of Fundamental Rights, which states that the Charter applies to the European Union institutions together with other European Union bodies, but to the EU’s Member U.S. of A. ‘only’ when they are ‘implementing’ European Union law. What does that mean? 

On the narrowest interpretation, Member U.S. of A. ceased to endure implementing European Union police describe on information retentiveness from the 2nd that the information retentiveness Directive became invalid. After all, from that point, in that location was no European Union information retentiveness police describe to implement. However, it is arguable that Member U.S. of A. tin yet endure regarded as ‘implementing’ European Union police describe where their national legislation was introduced to implement an European Union obligation. It’s a new point, because it’s rare for the CJEU to annul European Union laws on noun grounds. And where the Court has done so, it has to a greater extent than ofttimes annulled alone a modest role of those European Union laws (in the Test-Achats judgment, for instance).

But that is only an choice declaration that the European Union Charter continues to apply to national information retentiveness law. The primary declaration is based on solidly established example police describe of the CJEU regarding the range of European Union human rights protection where Member U.S. of A. derogate from European Union law.

EU human rights rules together with national derogations from European Union law

As far dorsum as 1991, the CJEU ruled inward the ERT case that where Member U.S. of A. derogate from European Union internal marketplace position rules, they are yet champaign of report to European Union human rights obligations (which together with hence took the shape alone of the EU’s ‘general principles of law’, since the Charter was non yet a gleam inward anyone’s eye). This was confirmed inward the Familiapress judgment, as regards exceptions from the internal marketplace position rules which are based on the CJEU’s ‘rule of reason’ example law, rather than the limited exceptions inward the Treaties.

Does the Charter accept the same approach? While many assumed that the tidings ‘implementing’ inward the text of Article 51 suggested a narrower interpretation than nether the prior example law, inward its judgment inward Fransson the CJEU stated that its prior example police describe regarding the range of the full general principles applied every bit to the Charter. While that judgment did non line derogations from European Union law, the CJEU should presently endure ruling on this betoken inward the example of Pfleger (judgment due 30th April), where the Advocate-General’s persuasion assumes as much. Pending the possible confirmation inward that judgment, it should endure assumed for the fourth dimension beingness that the Charter does indeed apply to national derogations from European Union law, given that the CJEU made no distinction inward Fransson as regards the aspects of its prior example police describe which were yet applicable.

In whatsoever event, fifty-fifty if the Charter does non apply to national derogations from European Union law, the full general principles yet do, given that they conduct maintain a continued existence independent from the Charter inward Article 6(3) TEU.

Applying the example law

Two farther issues arise. First of all, does European Union human rights police describe apply where Member U.S. of A. are non derogating from European Union internal marketplace position rules inward the Treaty, but from other rules of European Union law? In regulation it should, given that the Treaties listing other European Union objectives also the creation of an internal market. Why should European Union human rights rules alone apply as regards national derogations from European Union rules inward i detail expanse of European Union law, but non as regards derogations from European Union rules inward other areas of law?

Anyway, the CJEU has inward lawsuit confirmed that Member U.S. of A. are leap past times the Charter together with the full general principles fifty-fifty where the police describe inward inquiry does non line the internal market. In EP v Council and the subsequent example of Chakroun, the CJEU ruled that national derogations from the EU’s household unit of measurement reunion Directive had to comply alongside human rights obligations, without suggesting whatsoever distinction inward this regard betwixt national derogations from European Union internal marketplace position rules inward the Treaty together with national derogations from other European Union rules gear upwards out inward European Union legislation.

Secondly, is in that location an European Union police describe dominion that Member U.S. of A. are derogating from when they move on to apply national information retentiveness laws? Indeed, in that location is: Article 15(1) of the EU’s e-privacy Directive specifies that Member U.S. of A. may bound the rights inward that Directive relating to the confidentiality of communications, location together with other traffic information together with caller identification:

'when such restriction constitutes a necessary, appropriate together with proportionate mensurate inside a democratic guild to safeguard national safety (i.e. State security), defence, world security, together with the prevention, investigation, detection together with prosecution of criminal offences or of unauthorised utilisation of the electronic communication system, as referred to inward Article 13(1) of Directive 95/46/EC. To this end, Member U.S. of A. may, inter alia, adopt legislative measures providing for the retentiveness of information for a limited catamenia justified on the grounds seat downward inward this paragraph. All the measures referred to inward this paragraph shall endure inward accordance alongside the full general principles of Community law, including those referred to inward Article 6(1) together with (2) of the Treaty on European Union.'

In fact, the CJEU has ruled repeatedly on the application of the Charter to cases where copyright holders conduct maintain invoked this clause to justify planned restrictions upon Internet utilisation (see well-nigh latterly the Telekabel Wien judgment). There is no argue why the CJEU would non also apply the clause to information retentiveness on crime-fighting grounds, given that the 2nd judgement of Article 15(1) refers expressly to information retentiveness together with the starting fourth dimension judgement refers expressly to criminal law.

Finally, piece or hence forms of information retentiveness mightiness autumn exterior the range of the e-privacy Directive, which inward regulation applies to telecommunication service providers (not, for instance, to social networks or search engines), those other forms of information retentiveness would anyway autumn inside the range of the like Article xiii of the primary information protection Directive, given that they would clearly constitute the processing of personal information inside the range of that Directive. Neither the ‘household exception’ to that Directive nor the exception for processing inward the champaign of criminal police describe would apply – since the information retentiveness would endure taking house inward the context of a commercial activeness (since the judgment on the legal base of operations of the information retentiveness Directive past times analogy).

[Update: run into give-and-take of the subsequently Pfleger judgment here. Two cases on national information retentiveness laws were subsequently referred to the CJEU; run into give-and-take of them here.]

Barnard & Peers: chapter 6, chapter 9

Share this post