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By decision of the President of the Court of 25 September 2018, Cases C‑511/18 and C‑512/18
were joined for the purposes of the written and oral parts of the procedure and the judgment. Case
C‑520/18 was joined to those cases by decision of the President of the Court of 9 July 2020 for the
purposes of the judgment.
Consideration of the questions referred
Question 1 in Cases C‑511/18 and C‑512/18 and questions 1 and 2 in Case C‑520/18
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By question 1 in Cases C‑511/18 and C‑512/18 and questions 1 and 2 in Case C‑520/18, which
should be considered together, the referring courts essentially ask whether Article 15(1) of Directive
2002/58 must be interpreted as precluding national legislation which imposes on providers of
electronic communications services, for the purposes set out in Article 15(1), an obligation
requiring the general and indiscriminate retention of traffic and location data.
Preliminary remarks
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It is apparent from the documents available to the Court that the legislation at issue in the main
proceedings covers all electronic communications systems and applies to all users of such systems,
without distinction or exception. Furthermore, the data which must be retained by providers of
electronic communications services under that legislation is, in particular, the data necessary for
locating the source of a communication and its destination, for determining the date, time, duration
and type of communication, for identifying the communications equipment used, and for locating
the terminal equipment and communications, data which comprises, inter alia, the name and address
of the user, the telephone numbers of the caller and the person called, and the IP address for Internet
services. By contrast, that data does not cover the content of the communications concerned.
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Thus, the data which must, under the national legislation at issue in the main proceedings, be
retained for a period of one year makes it possible, inter alia, to identify the person with whom the
user of an electronic communications system has communicated and by what means, to determine
the date, time and duration of the communications and Internet connections and the place from
which those communications and connections took place, and to ascertain the location of the
terminal equipment without any communication necessarily having been transmitted. In addition,
that data enables the frequency of a user’s communications with certain persons over a given period
of time to be established. Last, as regards the national legislation at issue in Cases C‑511/18 and
C‑512/18, it appears that that legislation, in so far as it also covers data relating to the conveyance
of electronic communications by networks, also enables the nature of the information consulted
online to be identified.
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As for the aims pursued, it should be noted that the legislation at issue in Cases C‑511/18 and
C‑512/18 pursues, among other aims, the investigation, detection and prosecution of criminal
offences in general; national independence, territorial integrity and national defence; major foreign
policy interests; the implementation of France’s European and international commitments; France’s
major economic, industrial and scientific interests; and the prevention of terrorism, attacks against
the republican nature of the institutions and collective violence liable to cause serious disruption to
the maintenance of law and order. The objectives of the legislation at issue in Case C‑520/18 are,
inter alia, the investigation, detection and prosecution of criminal offences and the safeguarding of
national security, the defence of the territory and public security.
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The referring courts are uncertain, in particular, as to the possible impact of the right to security
enshrined in Article 6 of the Charter on the interpretation of Article 15(1) of Directive 2002/58.
Similarly, they ask whether the interference with the fundamental rights enshrined in Articles 7 and
8 of the Charter entailed by the retention of data provided for in the legislation at issue in the main
proceedings may, in the light of the existence of rules restricting national authorities’ access to
retained data, be regarded as justified. In addition, according to the Conseil d’État (Council of State,
2/15/2021, 4:58 PM