La Quadrature du Net and Others v Premier ministre and Others.
Date: 2020-10-06
111


That being said, the option to derogate from the rights and obligations laid down in Articles 5, 6 and 9 of Directive 2002/58 cannot permit the exception to the obligation of principle to ensure the confidentiality of electronic communications and data relating thereto and, in particular, to the prohibition on storage of that data, explicitly laid down in Article 5 of that directive, to become the rule (see, to that effect, judgment of 21 December 2016, Tele2, C‑203/15 and C‑698/15, EU:C:2016:970, paragraphs 89 and 104).
115


It should be made clear, in that regard, that the retention of traffic and location data constitutes, in itself, on the one hand, a derogation from the prohibition laid down in Article 5(1) of Directive 2002/58 barring any person other than the users from storing that data, and, on the other, an interference with the fundamental rights to respect for private life and the protection of personal data, enshrined in Articles 7 and 8 of the Charter, irrespective of whether the information in question relating to private life is sensitive or whether the persons concerned have been inconvenienced in any way on account of that interference (see, to that effect, Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraphs 124 and 126 and the case-law cited; see, by analogy, as regards Article 8 of the ECHR, ECtHR, 30 January 2020, Breyer v. Germany, CE:ECHR:2020:0130JUD005000112, § 81).
116


Whether or not the retained data has been used subsequently is also irrelevant (see, by analogy, as regards Article 8 of the ECHR, ECtHR, 16 February 2000, Amann v. Switzerland, CE:ECHR:2000:0216JUD002779895, § 69, and 13 February 2020, Trajkovski and Chipovski v. North Macedonia, CE:ECHR:2020:0213JUD005320513, § 51), since access to such data is a separate interference with the fundamental rights referred to in the preceding paragraph, irrespective of the subsequent use made of it (see, to that effect, Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraphs 124 and 126).
118


Therefore, first, the retention of traffic and location data for policing purposes is liable, in itself, to infringe the right to respect for communications, enshrined in Article 7 of the Charter, and to deter users of electronic communications systems from exercising their freedom of expression, guaranteed in Article 11 of the Charter (see, to that effect, judgments of 8 April 2014, Digital Rights, C‑293/12 and C‑594/12, EU:C:2014:238, paragraph 28, and of 21 December 2016, Tele2, C‑203/15 and C‑698/15, EU:C:2016:970, paragraph 101). Such deterrence may affect, in particular, persons whose communications are subject, according to national rules, to the obligation of professional secrecy and whistleblowers whose actions are protected by Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (OJ 2019 L 305, p. 17). Moreover, that deterrent effect is all the more serious given the quantity and breadth of data retained.
124


In addition, it should be recalled that Article 52(3) of the Charter is intended to ensure the necessary consistency between the rights contained in the Charter and the corresponding rights guaranteed in the ECHR, without adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union. Account must therefore be taken of the corresponding rights of the ECHR for the purpose of interpreting the Charter, as the minimum threshold of protection (see, to that effect, judgments of 12 February 2019, TC, C‑492/18 PPU, EU:C:2019:108, paragraph 57, and of 21 May 2019, Commission v Hungary (Rights of usufruct over agricultural land), C‑235/17, EU:C:2019:432, paragraph 72 and the case-law cited).
135


In that regard, it should be noted, at the outset, that Article 4(2) TEU provides that national security remains the sole responsibility of each Member State. That responsibility corresponds to the primary interest in protecting the essential functions of the State and the fundamental interests of society and encompasses the prevention and punishment of activities capable of seriously destabilising the fundamental constitutional, political, economic or social structures of a country and, in particular, of directly threatening society, the population or the State itself, such as terrorist activities.
136


The importance of the objective of safeguarding national security, read in the light of Article 4(2) TEU, goes beyond that of the other objectives referred to in Article 15(1) of Directive 2002/58, inter alia the objectives of combating crime in general, even serious crime, and of safeguarding public security. Threats such as those referred to in the preceding paragraph can be distinguished, by their nature and particular seriousness, from the general risk that tensions or disturbances, even of a serious nature, affecting public security will arise. Subject to meeting the other requirements laid down in Article 52(1) of the Charter, the objective of safeguarding national security is therefore capable of justifying measures entailing more serious interferences with fundamental rights than those which might be justified by those other objectives.