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in the light of the safeguards and checks to which the collection and use of such connection
data are then subject, as interference justified by the right to security guaranteed in Article 6
of the [Charter] and the requirements of national security, responsibility for which falls to the
Member States alone pursuant to Article 4 [TEU]?
(2)
Are the provisions of [Directive 2000/31], read in the light of Articles 6, 7, 8 and 11 and
Article 52(1) of the [Charter], to be interpreted as allowing a State to introduce national
legislation requiring the persons, whose activity consists in offering access to online public
communications services and the natural or legal persons who, even free of charge, and for
provision to the public via online public communications services, store signals, writing,
images, sounds or messages of any kind provided by recipients of those services, to retain the
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?’
Case C‑520/18
74
By applications lodged on 10, 16, 17 and 18 January 2017, joined in the main proceedings, the
Ordre des barreaux francophones et germanophone, the Académie Fiscale ASBL and UA, the Liga
voor Mensenrechten ASBL, the Ligue des Droits de l’Homme ASBL, and VZ, WY and XX
brought actions before the Cour constitutionnelle (Constitutional Court, Belgium) for the annulment
of the Law of 29 May 2016, on the ground that it infringes Articles 10 and 11 of the Belgian
Constitution, read in conjunction with Articles 5, 6 to 11, 14, 15, 17 and 18 of the ECHR,
Articles 7, 8, 11 and 47 and Article 52(1) of the Charter, Article 17 of the International Covenant on
Civil and Political Rights, which was adopted by the United Nations General Assembly on
16 December 1966 and entered into force on 23 March 1976, the general principles of legal
certainty, proportionality and self-determination in relation to information and Article 5(4) TEU.
75
In support of their actions, the applicants in the main proceedings submit, in essence, that the Law
of 29 May 2016 is unlawful because, among other things, it goes beyond what is strictly necessary
and does not lay down adequate guarantees of protection. In particular, neither its provisions
relating to the retention of data nor those governing access by the authorities to retained data satisfy
the requirements deriving from the judgments of 8 April 2014, Digital Rights Ireland and Others
(C‑293/12 and C‑594/12, EU:C:2014:238; ‘Digital Rights’) and of 21 December 2016, Tele2
(C‑203/15 and C‑698/15, EU:C:2016:970). They contend that those provisions entail a risk that
personality profiles will be compiled, which may be misused by the competent authorities, and that
they do not establish an appropriate level of security and protection for the retained data. Lastly,
that law covers persons who are bound by professional secrecy and persons who are under a duty of
confidentiality, and applies to personal communication data that is sensitive, without including
specific safeguards to protect such data.
76
The referring court observes that the data which must be retained by providers of telephony
services, including via the Internet, Internet access and Internet-based email and by operators
providing public electronic communications networks, under the Law of 29 May 2016, is identical
to that listed in Directive 2006/24/EC of the European Parliament and of the Council of 15 March
2006 on the retention of data generated or processed in connection with the provision of publicly
available electronic communications services or of public communications networks and amending
Directive 2002/58/EC (OJ 2006 L 105, p. 54), without any distinction being made as regards the
persons concerned or on the basis of the objective pursued. As regards the latter point, the referring
court states that the objective pursued by the legislature by means of that law is not only to combat
terrorism and child pornography, but also to enable the use of the retained data in a wide variety of
situations in the context of criminal investigations. The referring court also notes that it is apparent
from the explanatory memorandum for that law that the national legislature considered it
impossible, in the light of the objective pursued, to impose a targeted and selective obligation to
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