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alone pursuant to Article 4 [TEU]?
(2)
Is [Directive 2002/58], read in the light of the [Charter], to be interpreted as authorising
legislative measures, such as the measures for the real-time collection of the traffic and
location data of specified individuals, which, whilst affecting the rights and obligations of the
providers of an electronic communications service, do not however require them to comply
with a specific obligation to retain their data?
(3)
Is [Directive 2002/58], read in the light of the [Charter], to be interpreted as meaning that it is
a prerequisite for the lawfulness of the procedures for the collection of connection data that
the data subjects are informed whenever their being so informed is no longer liable to
jeopardise the investigations being undertaken by the competent authorities, or may such
procedures be regarded as lawful taking into account all the other existing procedural
safeguards where those safeguards ensure that the right to a remedy is effective?’
Case C‑512/18
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By application lodged on 1 September 2015, French Data Network, La Quadrature du Net and the
Fédération des fournisseurs d’accès à Internet associatifs brought an action before the Conseil
d’État (Council of State, France) for the annulment of the implied rejection decision arising from
the Prime Minister’s failure to reply to their application for the repeal of Article R. 10‑13 of the
CPCE and Decree No 2011‑219, on the ground, inter alia, that those legislative texts infringe
Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 of the Charter. Privacy
International and the Center for Democracy and Technology were granted leave to intervene in the
main proceedings.
70
As regards Article R. 10‑13 of the CPCE and the obligation of general and indiscriminate retention
of communications data laid down therein, the referring court, which raises similar considerations
to those in Case C‑511/18, observes that such retention allows a judicial authority to access data
relating to communications made by an individual before being suspected of having committed a
criminal offence, with the result that such retention is of unparalleled usefulness for the
investigation, detection and prosecution of criminal offences.
71
As regards Decree No 2011‑219, the referring court considers that Article 6(II) of the LCEN,
which imposes an obligation to hold and retain only data relating to the creation of content, does not
fall within the scope of Directive 2002/58 since that directive’s scope is limited, in accordance with
Article 3(1) thereof, to the provision of publicly available electronic communications services in
public communications networks in the European Union. On the other hand, that national provision
does fall within the scope of Directive 2000/31.
72
The referring court considers, however, that it follows from Article 15(1) and (2) of Directive
2000/31 that the directive does not establish a prohibition in principle on retaining data relating to
the creation of content, from which derogation would be possible only by way of exception. Thus,
the question arises whether Articles 12, 14 and 15 of Directive 2000/31, read in the light of
Articles 6, 7, 8 and 11 and Article 52(1) of the Charter, are to be interpreted as allowing a Member
State to introduce national legislation, such as Article 6(II) of the LCEN, which requires the persons
concerned to retain data capable of enabling the identification of anyone who has contributed to the
creation of the content or some of the content of the services which they provide, so that a judicial
authority may, where appropriate, require the communication of that data with a view to ensuring
compliance with the rules on civil and criminal liability.
73
It is on that basis that the Conseil d’État (Council of State, France) decided to stay proceedings and
to refer the following questions to the Court for a preliminary ruling:
‘(1)
Is the general and indiscriminate retention obligation imposed on providers on the basis of
the implementing provisions of Article 15(1) of [Directive 2002/58] to be regarded, inter alia
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