CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
supervisory mechanisms sufficiently counterbalanced these regulatory
shortcomings (see paragraph 150 of the Chamber judgment).
319. Before the Grand Chamber the Government essentially disputed
that there were areas of concern, emphasising that international cooperation
was limited to exchanges with trusted foreign partners and was monitored
by the Inspectorate, whereas the applicant considered that the discretion
granted to the FRA was too broad and that the existing supervisory
mechanisms did not counterbalance the identified shortcomings, there being
no legal requirements in respect of which compliance could be supervised
(see the parties’ positions in more detail in paragraphs 200, 201, 215 and
216 above).
320. The Court points out at the outset that in the present case it is not
dealing with a concrete occurrence of, for example, the disclosure or use, by
a foreign Government or organisation, of personal data transmitted to them
by the Swedish authorities. Indeed, no examples about such disclosures or
use have been submitted to the Court. Nonetheless, insofar as the possibility
of transmitting intelligence to foreign parties is part of the Swedish bulk
interception regime and activities whose very existence can be seen as
interfering with Article 8 rights, the Court, having regard to the applicant’s
complaints, must review the Swedish intelligence transmission regime and
its functioning for their compliance with the requirements of quality of the
law and necessity in a democratic society. The applicant’s complaints relate
solely to the sending of intelligence to foreign parties and do not concern
the receipt of foreign intelligence and its use by the Swedish authorities.
321. It is undisputed that Contracting States may need to transmit to
foreign services intelligence obtained through bulk interception of
communications for a variety of reasons, including warning foreign
Governments about threats, soliciting their help in identifying and dealing
with threats or enabling international organisations to act in exercise of their
mandate. International cooperation is crucial for the effectiveness of the
authorities’ efforts to detect and thwart potential threats to Contracting
States’ national security.
322. The Court observes that the possibility for the FRA to share
intelligence it has obtained with foreign partners is provided for in Swedish
law, which also sets out the relevant general purpose (see paragraphs 49 and
74 above). It is to be observed, however, that the level of generality of the
terms used cannot but lead to the conclusion that the FRA may send
intelligence abroad whenever this is considered to be in the national interest.
323. Having regard to the unpredictability of situations that may warrant
cooperation with foreign intelligence partners, it is understandable that the
precise scope of intelligence sharing cannot be circumscribed in law
through, for example, exhaustive and detailed lists of such situations or the
types of intelligence or content that can be transmitted. The applicable legal
regulation and practice must operate, however, in a manner capable of