Belgium, Consitutional Court, 11 June 2015 84/2015

Identification of the case

• Art. 1-7 of Law 30.07.2013 modifying art. 2, 126, 145 of Law 13.06.2005 and art. 90 bis of the Code of Criminal Procedure

• Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 (Data Retention Directive)
• Article 7, 8, 52 CFREU

Summary of the case

The Order des barreaux francophones et germanophone and ASBL (Liga voor Mensenrechten) and ASBL (Ligue des Droits de l’Homme) lodged two annulment requests of art.5 (together with art. 1-7) of Law 30 July 2013 to the Constitutional Court. The requests were joined in a single case by the Court. The Law 30 July 2013 was adopted in order to transpose Directive 2006/24, after the formal notice by the Commission (infringement procedure). It concerned the obligation for communication resources or service providers to retain data in order to fulfil criminal purposes, avoid malicious calls i.e. to emergency numbers, grant security. The first applicant claimed the violation of Art. 10-11 of the Belgian Constitution, Art. 6 and 8 ECHR and Art. 7, 8, 47 CFREU as the consultation of metadata was applying to lawyers indistinctly, not taking into account the peculiar situation of lawyers and their professional secrecy obligations, as well as the right to defense of their clients. The second applicants claimed the violation, among others, of Art. 6 and 8 ECHR and Art. 7, 8, 11 and 52 CFREU and the principle of proportionality, also recalling Digital Rights Ireland case.

• Other

Annulment of national law provisions (constitutional judicial review of national legislative acts)

After having examined Law 30 July 2013 and its legislative background, also in terms of parliamentary procedure and discussion, the Court recalls the CJEU judgement in the joined cases Digital Rights Ireland and Kärntner Landesregierung. The CJEU had declared invalid Directive 2006/24, for the reason that the EU legislature had exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter. In order to apply the ratio decidendi of the CJEU case, the Court considers the scope of Law 30 July 2013 to be identical to the one of the Directive. Furthermore, the national law explicitly referred to the Directive. For these reasons, the Constitutional Court applies the same principles and reasoning of the CJEU, quoting it directly: the obligation imposed by the Directive 2006/24 on providers of publicly available electronic communications services or of public communications networks to retain, for a certain period, data relating to a person’s private life and to her communications for the purpose of access to them by the competent national authorities constitutes, in itself, an interference with the rights guaranteed by Article 7 and Article 8 of the Charter. Moreover, it applies art. 52(1) CFREU to verify whether the limitation to the abovementioned rights is provided by law according to the principle of proportionality, if it is necessary and genuinely meets objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. The national court then emphasises that national law was even more disproportionate than the Directive, in view of the fact that it was not justified by public security, it could easily involve people not connected to the crimes, there were no exceptions possible or limitations in time and space, . In the end, explicitly stating that its reasoning follows the path of the CJEU’s, the Constitutional Court declares art. 5 of Law 30 July 2013 in violation of the principle of proportionality, Art. 7, 8, 52(1) CFREU and Art. 10, 11 of the Constitution in combination with them. As a consequence, the Court annuls Law as a whole.

Role of the Charter and role of the general principles on enforcement

The Court applies Articles 7, 8 and 52(1) of the Charter. It declares national law invalid because it infringes such rights, also in combination with Relevant provisions of the Belgian Costitution.

• Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
• Right to a fair trial
• Explicit reference to Art. 6 ECHR

Art. 10 and 11 of the Belgian Consitution are declared infringed, as they must be read in combination with art. 7,8,52.1 CFREU.

The Court lays the foundations of its reasoning on art. 7,8,52 para. 1 CFREU, as interpreted by the CJEU in Digital Rights Ireland case. * The reference to art. 47 CFREU is actually made by the first applicant (Order des barreaux francophones et germanophone), who invokes the violation of the right to a fair trial and defense as the law in question applies to lawyers indistinctly regardless of their function and of their professional secrecy. It is not recalled by the Court.

• Proportionality

The Court applies the proportionality principle directly quoting the CJEU judgement (para.48-66) in its proportionality assessment, declaring the law to have exceeded its limits for the same reasons. According to CJEU, Directive 2006/24 entails a serious interference of the fundamental rights enshrined in Articles 7 and 8 of the Charter without limiting such interference to what is strictly necessary: first, the Directive targets all individuals without any differentiation or exception; second, no objective criterion is provided to limit the access of the competent national authorities to data and their subsequent use; third, the Directive imposes a data retention period of at least six months, without making any distinction between the categories of data involved on the basis of the persons concerned or the possible usefulness of the data in relation to the objective pursued. The national court adds some more grave infringements entailed in Law 30 July 2013.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• C-293/12 and C-594/12 joined cases, Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung and Other

Conform interpretation with EU law as interpreted by the CJEU

To solve a conflict between between national law implementing a EU Directive and fundamental rights. To implement a CJEU judgement into national law.

Invalidation of national law implementing the EU Directive.

Additional notes on the decision

Invalidation of national law implementing data retention Directive.

Likewise, the Constitutional Courts of other Member States annulled their national data retentions provisions implementing Directive 2006/24/CE.