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retain data, and that it chose to apply strict guarantees to the general and indiscriminate retention
obligation, both as regards the data retained and access to that data, in order to keep interference
with the right to respect for private life to a minimum.
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The referring court also states that subparagraphs 1 and 2 of Article 126(2) of the Law of 13 June
2005, as amended by the Law of 29 May 2016, lay down the conditions under which, respectively,
judicial authorities and the intelligence and security services may obtain access to retained data, and
consequently the review of the lawfulness of that law in the light of the requirements of EU law
should be deferred until the Court has adjudicated on two preliminary ruling procedures pending
before it concerning such access.
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Lastly, the referring court states that the Law of 29 May 2016 seeks to ensure an effective criminal
investigation and effective penalties in cases involving the sexual abuse of minors and to make it
possible to identify the perpetrator of such an offence, even where electronic communications
systems are used. In the proceedings before it, attention was drawn in that respect to the positive
obligations under Articles 3 and 8 of the ECHR. Those obligations may also arise under the
corresponding provisions of the Charter, which may have consequences for the interpretation of
Article 15(1) of Directive 2002/58.
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It is on that basis that the Cour constitutionnelle (Constitutional Court, Belgium) decided to stay
proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)
Must Article 15(1) of [Directive 2002/58], read in conjunction with the right to security,
guaranteed by Article 6 of the [Charter], and the right to respect for personal data, as
guaranteed by Articles 7, 8 and 52(1) of the [Charter], be interpreted as precluding national
legislation such as that at issue, which lays down a general obligation for operators and
providers of electronic communications services to retain the traffic and location data within
the meaning of [Directive 2002/58], generated or processed by them in the context of the
supply of those services, national legislation whose objective is not only the investigation,
detection and prosecution of serious criminal offences but also the safeguarding of national
security, the defence of the territory and of public security, the investigation, detection and
prosecution of offences other than serious crime or the prevention of the prohibited use of
electronic communication systems, or the attainment of another objective identified by
Article 23(1) of [Regulation 2016/679] and which, furthermore, is subject to specific
safeguards in that legislation in terms of data retention and access to that data?
(2)
Must Article 15(1) of [Directive 2002/58], in conjunction with Articles 4, 7, 8, 11 and 52(1)
of the [Charter], be interpreted as precluding national legislation such as that at issue, which
lays down a general obligation for operators and providers of electronic communications
services to retain the traffic and location data within the meaning of [Directive 2002/58],
generated or processed by them in the context of the supply of those services, if the object of
that legislation is, in particular, to comply with the positive obligations borne by the authority
under Articles 4 and [7] of the Charter, consisting in the provision of a legal framework which
allows the effective criminal investigation and the effective punishment of sexual abuse of
minors and which permits the effective identification of the perpetrator of the offence, even
where electronic communications systems are used?
(3)
If, on the basis of the answer to the first or the second question, the Cour constitutionnelle
(Constitutional Court, Belgium) should conclude that the contested law fails to fulfil one or
more obligations arising under the provisions referred to in these questions, might it maintain
on a temporary basis the effects of [the Law of 29 May 2016] in order to avoid legal
uncertainty and to enable the data previously collected and retained to continue to be used for
the objectives pursued by the law?’
Procedure before the Court
2/15/2021, 4:58 PM