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EU: DATA RETENTION JUDGMENT: European Parliament: Legal Services: Opinion
02 April 2015
See the full text: LIBE - Questions relating to the judgment of the Court of Justice of 8 April 2014 in Jolned Cases C-293/12 and C-594/12, Digital Rights Ireland and Seitlinger and others - Directive 2006/24/EC on data retention - Consequences of the judgment
(27 pages, pdf)
"The DRI judgment presents a novel aspect in so far as the Court of Justice refers specifically to a particular body of the case-law of the European Court of Human Rights on the issue of "general programmes of surveillance", The Court of Justice has now effectively incorporated the same principles, stemming from this case-law of the European Court of Human Rights, into EU law in this same field. In view of the fact that the cited case-law of the European Court of Human Rights itself relates to a diverse category of surveillance measures (which is not at all limited to data retention issues), it is to be expected that the Court of Justice will, in future, also apply the same reasoning when assessing the validity, under the Charter, of other EU legislative acts in this same field of "general programmes of surveillance....
All new and pending ED legislative proposals which concern the special context of "general programmes of surveillance" must clearly now take account of the reasoning of the Court of Justice in the DRI judgment. Great care must therefore be taken in such cases to ensure full respect for the Charter.
The same considerations will apply also in the case of international agreements under negotiation, given that the EU legislature's discretion, in external relations, to conclude international agreements, under the Treaty and in accordance with the Charter, cannot be wider than the discretion, in internal matters, to adopt ED legislation applying within the ED legal order....
Following the DRI judgment, Member States run an even higher risk than before of having their legislation annulled by the national courts, in a similar way to what has already happened in a number of Member States."
But: "bilateral agreements concluded by the Member States with third countries requiring mass collection of personal data and exchange of personal data for law enforcement purposes would presumably have been concluded in the exercise of the competence of the Member States. Consequently the Charter would not be applicable to such agreements and so the DRI judgment would not then have any particular consequences in this regard."
See also: European Parliament: Legal Service Opinion on the ECJ judgment
(dated 8 April 2014, pdf) and Statewatch Observatory: The surveillance of telecommunications in the EU
(from 2004 and ongoing)