Judgment Approved by the court for handing down.
Davis & Ors v SSHD
28.
Those data, taken as a whole, may allow very precise conclusions to be drawn
concerning the private lives of the persons whose data has been retained, such as the
habits of everyday life, permanent or temporary places of residence, daily or other
movements, the activities carried out, the social relationships of those persons and the
social environments frequented by them.
29.
In such circumstances, even though, as is apparent from Article 1(2) and Article 5(2)
of Directive 2006/24, the directive does not permit the retention of the content of the
communication or of information consulted using an electronic communications
network, it is not inconceivable that the retention of the data in question might have
an effect on the use, by subscribers or registered users, of the means of
communication covered by that directive and, consequently, on their exercise of the
freedom of expression guaranteed by Article 11 of the Charter.
30.
The retention of data for the purpose of possible access to them by the competent
national authorities, as provided for by Directive 2006/24, directly and specifically
affects private life and, consequently, the rights guaranteed by Article 7 of the
Charter. Furthermore, such a retention of data also falls under Article 8 of the Charter
because it constitutes the processing of personal data within the meaning of that
article and, therefore, necessarily has to satisfy the data protection requirements
arising from that article (Cases C 92/09 and C 93/09 Volker und Markus Schecke and
Eifert EU:C:2010:662, paragraph 47).
31.
Whereas the references for a preliminary ruling in the present cases raise, in
particular, the question of principle as to whether or not, in the light of Article 7 of the
Charter, the data of subscribers and registered users may be retained, they also
concern the question of principle as to whether Directive 2006/24 meets the
requirements for the protection of personal data arising from Article 8 of the Charter.
32.
In the light of the foregoing considerations, it is appropriate, for the purposes of
answering the second question, parts (b) to (d), in Case C 293/12 and the first
question in Case C 594/12, to examine the validity of the directive in the light of
Articles 7 and 8 of the Charter.
Interference with the rights laid down in Articles 7 and 8 of the Charter
33.
By requiring the retention of the data listed in Article 5(1) of Directive 2006/24 and
by allowing the competent national authorities to access those data, Directive
2006/24, as the Advocate General has pointed out, in particular, in paragraphs 39 and
40 of his Opinion, derogates from the system of protection of the right to privacy
established by Directives 95/46 and 2002/58 with regard to the processing of personal
data in the electronic communications sector, directives which provided for the
confidentiality of communications and of traffic data as well as the obligation to erase
or make those data anonymous where they are no longer needed for the purpose of the
transmission of a communication, unless they are necessary for billing purposes and
only for as long as so necessary.
34.
To establish the existence of an interference with the fundamental right to privacy, it
does not matter whether the information on the private lives concerned is sensitive or
whether the persons concerned have been inconvenienced in any way (see, to that