SZABÓ AND VISSY v. HUNGARY JUDGMENT– SEPARATE OPINION
55
private lives were subject to constant surveillance, breached Articles 7 and 8
of the EU Charter on Fundamental Rights26.
16. Finally, the European Data Protection Authorities made known their
views on the threats to privacy resulting from mass surveillance tools. The
European Data Protection Supervisor delivered, on 20 February 2014, an
Opinion on the Communications from the Commission to the European
Parliament and the Council on “Rebuilding Trust in EU-US Data Flows”
and on “the Functioning of the Safe Harbour from the Perspective of EU
Citizens and Companies Established in the EU”27. Subsequently, the
Working Party Article 29 published its Opinion 4/2014 on surveillance of
electronic communications for intelligence and national security purposes,
of 10 April 201428. On 26 November 2014, the European Data Protection
Authorities Assembled in the Article 29 Working Party issued a Joint
Statement29.
Application of the international law standards to the facts of the case
The categories of offences or activities surveilled
17. Act no. XXXIV of 1994 on the Police (the Police Act) does not
contain any definition of a “terrorist act” or “terrorist action”, which could
eventually raise a problem in terms of foreseeability of the legal framework
of intelligence gathering for national security purposes under Section 7/E
(3). It can be argued that the reference of Section 69 (5) to “terrorist acts
(Section 261 CC)” fills the definitional gap and consequently that these
concepts refer to the definitions of the Criminal Code, as paragraph 64 of
the judgement pretends30. Hence, the safeguard mentioned in paragraph 231
of Roman Zakharov (“the nature of offences which may give rise to an
26
The Luxembourg Court was clearly inspired by the standard established in the data
retention directive case in Germany in 2010 (BVerfG 125, 260).
27
2014/C 116/04.
28
819/14/EN. While focusing on the access to metadata, the Working Party concluded that
secret, massive and indiscriminate surveillance programs are incompatible with the EU
fundamental laws and cannot be justified by the fight against terrorism or other important
threats to national security. The Working Party, amongst others, called for effective, robust
and independent external oversight, performed either by a dedicated body with the
involvement of the data protection authorities or by the data protection authority itself. The
recommendations of the Opinion were based on the legal analysis published in the Working
Document on surveillance of electronic communications for intelligence and national
security purposes, of 5 December 2014.
29
14/EN WP227.
30
Paragraph 64 of the judgment.