The Court of Justice – Legal Reasoning, the Rule of Law and Data Protection

Abstract

In the recently heard case of Privacy International, the Court of Justice of the European Union (“the Court”) was invited to reconsider its decision in Tele2 Sverige AB v Post-och telesyresen in relation to the issue of whether the Court had jurisdiction in circumstances where a Member State sought to rely on national security as a basis for mass surveillance operations. In Tele 2, which we shall discuss presently, the Court held that data retained in order to fight crime and for national security purposes could only be retained on a targeted basis and, accordingly, that the mass retention of data for these purposes, provided for under the laws impugned in Tele 2, was a disproportionate interference with the right to the protection of personal data under EU law. In Privacy International, Advocate General Sanchez-Bordona recommended that the Court’s insistence on “targeted retention” in Tele 2 should be replaced by a modified form of limited retention. The Privacy International case was one of an unprecedented number of references arising out of the issues raised in Tele 2. The difficulties created by that case in terms of the effectiveness of law enforcement and national security have posed very serious problems for Member States. It is the view of the authors that Tele 2 imposes restrictions that are unworkable and also that its meaning is unclear in some important respects.