Judgment Approved by the court for handing down.
Davis & Ors v SSHD
effect, Cases C 465/00, C 138/01 and C 139/01 Österreichischer Rundfunk and
Others EU:C:2003:294, paragraph 75).
35.
As a result, the obligation imposed by Articles 3 and 6 of Directive 2006/24 on
providers of publicly available electronic communications services or of public
communications networks to retain, for a certain period, data relating to a person’s
private life and to his communications, such as those referred to in Article 5 of the
directive, constitutes in itself an interference with the rights guaranteed by Article 7 of
the Charter.
36.
Furthermore, the access of the competent national authorities to the data constitutes a
further interference with that fundamental right (see, as regards Article 8 of the
ECHR, Eur. Court H.R., Leander v. Sweden, 26 March 1987, § 48, Series A no 116;
Rotaru v. Romania [GC], no. 28341/95, § 46, ECHR 2000-V; and Weber and Saravia
v. Germany (dec.), no. 54934/00, § 79, ECHR 2006-XI). Accordingly, Articles 4 and
8 of Directive 2006/24 laying down rules relating to the access of the competent
national authorities to the data also constitute an interference with the rights
guaranteed by Article 7 of the Charter.
37.
Likewise, Directive 2006/24 constitutes an interference with the fundamental right to
the protection of personal data guaranteed by Article 8 of the Charter because it
provides for the processing of personal data.
38.
It must be stated that the interference caused by Directive 2006/24 with the
fundamental rights laid down in Articles 7 and 8 of the Charter is, as the Advocate
General's Opinion, wide-ranging, and it must be considered to be particularly serious.
Furthermore, as the Advocate General has pointed out in paragraphs 52 and 72 of his
Opinion, the fact that data are retained and subsequently used without the subscriber
or registered user being informed is likely to generate in the minds of the persons
concerned the feeling that their private lives are the subject of constant surveillance.
39.
Justification of the interference with the rights guaranteed by Articles 7 and 8 of the
Charter
40.
Article 52(1) of the Charter provides that any limitation on the exercise of the rights
and freedoms laid down by the Charter must be provided for by law, respect their
essence and, subject to the principle of proportionality, limitations may be made to
those rights and freedoms only if they are necessary and genuinely meet objectives of
general interest recognised by the Union or the need to protect the rights and freedoms
of others.
41.
So far as concerns the essence of the fundamental right to privacy and the other rights
laid down in Article 7 of the Charter, it must be held that, even though the retention of
data required by Directive 2006/24 constitutes a particularly serious interference with
those rights, it is not such as to adversely affect the essence of those rights given that,
as follows from Article 1(2) of the directive, the directive does not permit the
acquisition of knowledge of the content of the electronic communications as such.
42.
Nor is that retention of data such as to adversely affect the essence of the fundamental
right to the protection of personal data enshrined in Article 8 of the Charter, because