Davis & Ors v SSHD
Judgment Approved by the court for handing down.
Österreich EU:C:2013:28, paragraph
EU:C:2013:661, paragraph 29).
50;
and
Case
C
101/12
Schaible
49.
With regard to judicial review of compliance with those conditions, where
interferences with fundamental rights are at issue, the extent of the EU legislature’s
discretion may prove to be limited, depending on a number of factors, including, in
particular, the area concerned, the nature of the right at issue guaranteed by the
Charter, the nature and seriousness of the interference and the object pursued by the
interference (see, by analogy, as regards Article 8 of the ECHR, Eur. Court H.R., S.
and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 102, ECHR
2008-V).
50.
In the present case, in view of the important role played by the protection of personal
data in the light of the fundamental right to respect for private life and the extent and
seriousness of the interference with that right caused by Directive 2006/24, the EU
legislature’s discretion is reduced, with the result that review of that discretion should
be strict.
51.
As regards the question of whether the retention of data is appropriate for attaining the
objective pursued by Directive 2006/24, it must be held that, having regard to the
growing importance of means of electronic communication, data which must be
retained pursuant to that directive allow the national authorities which are competent
for criminal prosecutions to have additional opportunities to shed light on serious
crime and, in this respect, they are therefore a valuable tool for criminal
investigations. Consequently, the retention of such data may be considered to be
appropriate for attaining the objective pursued by that directive.
52.
That assessment cannot be called into question by the fact relied upon in particular by
Mr Tschohl and Mr Seitlinger and by the Portuguese Government in their written
observations submitted to the Court that there are several methods of electronic
communication which do not fall within the scope of Directive 2006/24 or which
allow anonymous communication. Whilst, admittedly, that fact is such as to limit the
ability of the data retention measure to attain the objective pursued, it is not, however,
such as to make that measure inappropriate, as the Advocate General's Opinion.
53.
As regards the necessity for the retention of data required by Directive 2006/24, it
must be held that the fight against serious crime, in particular against organised crime
and terrorism, is indeed of the utmost importance in order to ensure public security
and its effectiveness may depend to a great extent on the use of modern investigation
techniques. However, such an objective of general interest, however fundamental it
may be, does not, in itself, justify a retention measure such as that established by
Directive 2006/24 being considered to be necessary for the purpose of that fight.
54.
So far as concerns the right to respect for private life, the protection of that
fundamental right requires, according to the Court’s settled case-law, in any event,
that derogations and limitations in relation to the protection of personal data must
apply only in so far as is strictly necessary (Case C 473/12 IPI EU:C:2013:715,
paragraph 39 and the case-law cited).