By Valentina Alexandru
10 months after the German Federal Constitutional Court declared the CJEU ruling on the legality of the European Central Bank’s Public Sector Purchase Programme not binding in Germany, the European Union is faced with yet another threat to democracy and the rule of law, as the French Government requested the Council of State to disregard the EU ruling on national data retention rules.
Data retention has been disputed for a few years now, having created a fracture between Governments regarding it as a prerequisite instrument in safeguarding national security on the one hand, and privacy activists who fear it is only a means to attain mass surveillance, on the other. In 2018, this dispute determined a coalition of associations to file a complaint against 17 Member States, France included, on the grounds that the latter contravened Union law. In line with its priority of fighting terrorism and organized crime, the Portuguese Presidency invited Member States to express their opinion on how the jurisprudence of the highest EU Court impacts data retention rules.
On 6 October 2020, the CJEU issued two rulings, one addressed to the UK (Privacy International v Secretary of State for Foreign and Commonwealth Affairs and Others) and a joint one for France and Belgium (La Quadrature du Net and Others v Premier ministre and Others). The Court determined that the security laws through which the three States demand electronic communications services (ECS) providers to retain traffic and location data on a general and indiscriminate basis infringe EU law.
In the ruling addressed to France, the Court held that when it comes to general and indiscriminate data retention from users for the purpose of preventing crimes and preserving national security, Union law prevails over domestic law. Nonetheless, the Court added that derogations to the judgement are possible in case of a serious menace to national security. If the threat is genuine and present or foreseeable, then strictly necessary data may be retained, but only for a limited period of time.
This matter was previously brought before the Court in cases where the legality behind Governments imposing on ECS providers to pass on users’ data to public authorities was contested. Leading cases such as Tele2 Sverige or Watson and Others highlight the Court’s position on the disputed issue, pursuant to which Member States are prohibited from requiring providers to retain data generally and with no discrimination. The retention should instead be realised in a targeted and limited manner backed by safeguards.
In the 6 October 2020 ruling, the Court sheds light on the content of the Directive on privacy and electronic communications, explaining that the EU legal instrument prevents Member States from enacting legislation that limits the rights and obligations laid down in said Directive, with emphasis on the obligation to shield confidentiality of communications and traffic data, except when the acts are in conformity with the general principles, as well as the fundamental rights enshrined in the Charter.
Recently, the Council of State was asked by the French Government to disregard the EU ruling, the main argument being that the judgment is not in line with France’s constitutional identity. Moreover, France emphasizes that security is a domestic competence, which means that by ruling on the issue at hand the Court acts ultra vires. The same argument was used by the German Federal Constitutional Court when it held that the CJEU ruling is not binding within Germany. At that moment, a prompt response was issued by the European Commission, reaffirming the supremacy of EU law and the binding nature of CJEU rulings.
Such positions of Member States could turn into a serious threat not only to the supremacy of Union law, but also to paramount values such as democracy and the rule of law. Coming from two of the founding members, this reaction has the potential to decrease the general confidence in the EU. While it is true that the European Union has evolved into a far greater project than what the founders have initially signed up for, France’s position might set a precedent that will empower those who have already been threatening democracy and the rule of law. Nevertheless, the EU is determined to counteract threats to the rule of law and has set in place a conditionality mechanism, according to which the EU funds will be conditioned by the respect for democracy and the rule of law. Moreover, in order to further solidify the rule of law, the EU has established a new supervisory mechanism through ‘the rule of law review cycle’ that results in a yearly report on the state of the rule of law in the Member States.
On top of the increasing obstructive attitude of the MEPs, and of the decreasing general confidence in the European Union, the dispute on this matter might further the division within the EU. In a future filled with uncertainty, the only remaining certainty is that the EU will preserve the rule of law at all costs.