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and evidence obtained by means of the general and indiscriminate retention of traffic and location
data in breach of EU law, in the context of criminal proceedings against persons suspected of
having committed criminal offences, where those persons are not in a position to comment
effectively on that information and that evidence and they pertain to a field of which the judges
have no knowledge and are likely to have a preponderant influence on the findings of fact.
228
In the light of the foregoing, the answer to question 3 in Case C‑520/18 is that a national court may
not apply a provision of national law empowering it to limit the temporal effects of a declaration of
illegality, which it is bound to make under that law, in respect of national legislation imposing on
providers of electronic communications services – with a view to, inter alia, safeguarding national
security and combating crime – an obligation requiring the general and indiscriminate retention of
traffic and location data that is incompatible with Article 15(1) of Directive 2002/58, read in the
light of Articles 7, 8 and 11 and Article 52(1) of the Charter. Article 15(1), interpreted in the light of
the principle of effectiveness, requires national criminal courts to disregard information and
evidence obtained by means of the general and indiscriminate retention of traffic and location data
in breach of EU law, in the context of criminal proceedings against persons suspected of having
committed criminal offences, where those persons are not in a position to comment effectively on
that information and that evidence and they pertain to a field of which the judges have no
knowledge and are likely to have a preponderant influence on the findings of fact.
Costs
229
Since these proceedings are, for the parties to the main proceedings, a step in the actions pending
before the national courts, the decision on costs is a matter for those courts. Costs incurred in
submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Grand Chamber) hereby rules:
1.
Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of
12 July 2002 concerning the processing of personal data and the protection of privacy in
the electronic communications sector (Directive on privacy and electronic
communications), as amended by Directive 2009/136/EC of the European Parliament
and of the Council of 25 November 2009, read in the light of Articles 7, 8 and 11 and
Article 52(1) of the Charter of Fundamental Rights of the European Union, must be
interpreted as precluding legislative measures which, for the purposes laid down in
Article 15(1), provide, as a preventive measure, for the general and indiscriminate
retention of traffic and location data. By contrast, Article 15(1) of Directive 2002/58, as
amended by Directive 2009/136, read in the light of Articles 7, 8 and 11 and Article 52(1)
of the Charter of Fundamental Rights, does not preclude legislative measures that:
–
allow, for the purposes of safeguarding national security, recourse to an
instruction requiring providers of electronic communications services to retain,
generally and indiscriminately, traffic and location data in situations where the
Member State concerned is confronted with a serious threat to national security
that is shown to be genuine and present or foreseeable, where the decision
imposing such an instruction is subject to effective review, either by a court or by
an independent administrative body whose decision is binding, the aim of that
review being to verify that one of those situations exists and that the conditions and
safeguards which must be laid down are observed, and where that instruction may
be given only for a period that is limited in time to what is strictly necessary, but
which may be extended if that threat persists;
–
provide, for the purposes of safeguarding national security, combating serious
crime and preventing serious threats to public security, for the targeted retention
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