Judgment Approved by the court for handing down.
SSHD v Watson & Others
Lord Lloyd-Jones:
1.
On 20 November 2015 this court gave judgment in these proceedings ([2015] EWCA Civ
1185) referring preliminary issues to the Court of Justice to the European Union (“CJEU”).
We refer to that judgment for the history of the proceedings and the issues in the domestic
proceedings. The principal purpose of the reference was to obtain clarification of the
judgment of the CJEU in Joined Cases C-293/12 and C-594/12 Digital Rights Ireland Limited
v Minister for Communications, Marine and Natural Resources & Others and Seitlinger and
Others delivered on 8 April 2014 (“Digital Rights Ireland Limited”). We referred the
following questions.
“1. Does the judgment of the Court of Justice in Joined Cases C293/12 and C-594/12 Digital Rights Ireland and Seitlinger,
ECLI:EU:C:2014:238 (“Digital Rights Ireland”) (including, in
particular, paras 60-62 thereof) lay down mandatory requirements of
EU law applicable to a Member State’s domestic regime governing
access to data retained in accordance with national legislation, in
order to comply with Article 7 and 8 of the EU Charter (“the EU
Charter”)?
2. Does the judgment of the Court of Justice in Digital Rights Ireland
expand the scope of Articles 7 and/or 8 of the EU Charter beyond
that of Article 8 of the European Convention on Human Rights
(“ECHR”) as established in the jurisprudence of the European Court
of Human Rights (“ECtHR”)?”
In our judgment of 20 November 2015 we stated (at [118]) that we considered that the
answers to these questions of EU law were not clear and were necessary in order for us to
give judgment in these proceedings.
2.
The President of the CJEU granted an application that the reference be expedited and that it
be joined to the reference made by the Stockholm Administrative Court of Appeals then
pending as Case C-203/15 Tele2 Sverige AB.
3.
Following a hearing on 12 April 2016, the Grand Chamber of the CJEU gave judgment on 21
December 2016. The dispositif reads as follows:“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 national legislation which, for the purpose
of fighting crime, provides for general and indiscriminate retention of
all traffic and location data of all subscribers and registered users
relating to all means of electronic communication.
2. 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 must be interpreted as precluding