to Article 15(1), whereby Member States may adopt legislative measures to
restrict the scope of the rights and obligations provided for in the relevant
Articles, including measures providing for the retention of data.
The
Judgment then continues in paragraphs 72 to 81 to conclude that the legislative
measures contained in the Swedish statute and in DRIPA fell within the scope
of the EPD, notwithstanding Article 1(3). There is no mention of Article 4 of
the
TEU
set
out
in
paragraph
21
above,
but
there
is
a
construction/interpretation of Article 15 of the EPD in the context of Article
1(3):
“72. Admittedly, the legislative measures that are referred to in
Article 15(1) of Directive 2002/58 concern activities
characteristic of States or State authorities, and are unrelated
to fields in which individuals are active (see, to that effect,
judgment of 29 January 2008, Promusicae, C-275/06,
EU:C:2008:54, paragraph 51). Moreover, the objectives
which, under that provision, such measures must pursue, such
as safeguarding national security, defence and public security
and the prevention, investigation, detection and prosecution of
criminal offences or of unauthorised use of the electronic
communications system, overlap substantially with the
objectives pursued by the activities referred to in Article 1(3) of
that directive.
73. However, having regard to the general structure of
Directive 2002/58, the factors identified in the preceding
paragraph of this judgment do not permit the conclusion that
the legislative measures referred to in Article 15(1) of Directive
2002/58 are excluded from the scope of that directive, for
otherwise that provision would be deprived of any purpose.
Indeed, Article 15(1) necessarily presupposes that the national
measures referred to therein, such as those relating to the
retention of data for the purpose of combating crime, fall
within the scope of that directive, since it expressly authorises
the Member States to adopt them only if the conditions laid
down in the directive are met.
74. Further, the legislative measures referred to in
Article 15(1) of Directive 2002/58 govern, for the purposes
mentioned in that provision, the activity of providers of
electronic communications services. Accordingly, Article 15(1),
Page 22