BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
2. Tele2 Sverige AB v. Post- och telestyrelsen and Secretary of State
for the Home Department v. Tom Watson and Others (Cases
C-203/15 and C-698/15; ECLI:EU:C:2016:970)
214. In Secretary of State for the Home Department v. Watson and
Others, the applicants had sought judicial review of the legality of section 1
of the Data Retention and Investigatory Powers Act 2014 (“DRIPA”),
pursuant to which the Secretary of State could require a public
telecommunications operator to retain relevant communications data if he or
she considered it necessary and proportionate for one or more of the
purposes falling within paragraphs (a) to (h) of section 22(2) of RIPA. The
applicants claimed, inter alia, that section 1 was incompatible with
Articles 7 and 8 of the Charter and Article 8 of the Convention.
215. On 17 July 2015, the High Court held that the Digital Rights
judgment laid down “mandatory requirements of EU law” applicable to the
legislation of Member States on the retention of communications data and
access to such data. Since the CJEU, in that judgment, held that
Directive 2006/24 was incompatible with the principle of proportionality,
national legislation containing the same provisions as that directive could,
equally, not be compatible with that principle. In fact, it followed from the
underlying logic of the Digital Rights judgment that legislation that
established a general body of rules for the retention of communications data
was in breach of the rights guaranteed in Articles 7 and 8 of the Charter,
unless that legislation was complemented by a body of rules for access to
the data, defined by national law, which provided sufficient safeguards to
protect those rights. Accordingly, section 1 of DRIPA was not compatible
with Articles 7 and 8 of the Charter as it did not lay down clear and precise
rules providing for access to and use of retained data and access to those
data was not made dependent on prior review by a court or an independent
administrative body.
216. On appeal by the Secretary of State, the Court of Appeal sought a
preliminary ruling from the CJEU.
217. Before the CJEU this case was joined with the request for a
preliminary ruling from the Kammarrätten i Stockholm in Case C‑203/15
Tele2 Sverige AB v Post- och telestyrelsen. Following an oral hearing in
which some fifteen European Union Member States intervened, the CJEU
gave judgment on 21 December 2016. The CJEU held that Article 15(1) of
Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1)
of the Charter, had to be interpreted as precluding national legislation
governing the protection and security of traffic and location data and, in
particular, access of the competent national authorities to the retained data,
where the objective pursued by that access, in the context of fighting crime,
was not restricted solely to fighting serious crime, where access was not
subject to prior review by a court or an independent administrative
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