BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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falling within paragraphs (a) to (h) of section 22(2) of 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.
230. 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
the data, defined by national law, which provides sufficient safeguards to
protect those rights. Accordingly, section 1 of DRIPA was not compatible
with Articles 7 and 8 of the Charter as it did not lay down clear and precise
rules providing for access to and use of retained data and access to that data
was not made dependent on prior review by a court or an independent
administrative body.
231. On appeal by the Secretary of State, the Court of Appeal sought a
preliminary ruling from the CJEU.
232. Before the CJEU this case was joined with the request for a
preliminary ruling from the Kammarrätten i Stockholm in Case C‑203/15
Tele2 Sverige AB v Post- och telestyrelsen. Following an oral hearing in
which some fifteen EU Member States intervened, the CJEU gave judgment
on 21 December 2016. The CJEU held that Article 15(1) of
Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1)
of the Charter, had to be interpreted as precluding national legislation
governing the protection and security of traffic and location data and, in
particular, access of the competent national authorities to the retained data,
where the objective pursued by that access, in the context of fighting crime,
was not restricted solely to fighting serious crime, where access is not
subject to prior review by a court or an independent administrative
authority, and where there is no requirement that the data concerned should
be retained within the European Union.
233. The CJEU declared the Court of Appeal’s question whether the
protection afforded by Articles 7 and 8 of the Charter was wider than that
guaranteed by Article 8 of the Convention inadmissible.
234. Following the handing down of the CJEU’s judgment, the case was
relisted before the Court of Appeal. On 31 January 2018 it granted
declaratory relief in the following terms: that section 1 of DRIPA was
inconsistent with EU law to the extent that it permitted access to retained
data where the object pursued by access was not restricted solely to fighting