CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
which offences might be considered to be sufficiently serious to justify such
an extensive interference with the fundamental rights enshrined in Articles 7
and 8 of the Charter. Above all, the access by the competent national
authorities to the data retained was not made dependent on a prior review
carried out by a court or by an independent administrative body whose
decision sought to limit access to the data and their use to what was strictly
necessary for the purpose of attaining the objective pursued.
102. Thirdly, the directive required that all data be retained for a period
of at least six months, without any distinction being made between the
categories of data on the basis of their possible usefulness for the purposes
of the objective pursued or according to the persons concerned. The CJEU
concluded that the directive entailed a wide-ranging and particularly serious
interference with the fundamental rights enshrined in Articles 7 and 8 of the
Charter, without such an interference being precisely circumscribed by
provisions to ensure that it was actually limited to what was strictly
necessary. The CJEU also noted that the directive did not provide for
sufficient safeguards, by means of technical and organisational measures, to
ensure effective protection of the data retained against the risk of abuse and
against any unlawful access and use of those data.
2. Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State
for the Home Department v Tom Watson and Others (Cases
C-203/15 and C-698/15; ECLI:EU:C:2016:970)
103. In Secretary of State for the Home Department v. Watson and
Others, the applicants had sought judicial review of the legality of section 1
of the United Kingdom Data Retention and Investigatory Powers Act 2014
(“DRIPA”), pursuant to which the Secretary of State could require a public
telecommunications operator to retain relevant communications data if he or
she considered it necessary and proportionate for one or more of the
purposes falling within paragraphs (a) to (h) of section 22(2) of the
Regulation of Investigatory Powers Act 2000 (“RIPA”). The applicants
claimed, inter alia, that section 1 was incompatible with Articles 7 and 8 of
the Charter and Article 8 of the Convention.
104. By judgment of 17 July 2015, the High Court held that the Digital
Rights judgment laid down “mandatory requirements of EU law” applicable
to the legislation of Member States on the retention of communications data
and access to such data. Since the CJEU, in that judgment, held that
Directive 2006/24 was incompatible with the principle of proportionality,
national legislation containing the same provisions as that directive could,
equally, not be compatible with that principle. In fact, it followed from the
underlying logic of the Digital Rights judgment that legislation that
established a general body of rules for the retention of communications data
was in breach of the rights guaranteed in Articles 7 and 8 of the Charter,
unless that legislation was complemented by a body of rules for access to