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Parliament and of the Council of 27 April 2016 on the protection of natural persons with
regard to the processing of personal data and on the free movement of such data, and
repealing Directive 95/46/EC, as appropriate. Article 23(1) of Regulation 2016/679, read
in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental
Rights, must be interpreted as precluding national legislation which requires that
providers of access to online public communication services and hosting service
providers retain, generally and indiscriminately, inter alia, personal data relating to
those services.
4.
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, 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. 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.
[Signatures]
*
Language of the case: French.
2/15/2021, 4:58 PM