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Belgium / Constitutional Court / 84/2015

Belgian French and German-speaking bar associations and two Belgian League of Human Rights associations (‘Liga voor Mensenrechten/Ligue des Droits de l’Homme’) v Belgian State

Policy area:
Information society
Deciding Body type:
National Court/Tribunal
Deciding Body:
Constitutional Court
Type:
Decision
Decision date:
11/06/2015

Key facts of the case:

Directive 2006/24/CE on data retention was transposed in Belgium by the data retention law of 30 July 2013which entered into force on the 2nd of September 2013. In February 2014, two actions for annulment of the law of 30 July 2013 were lodged respectively by the Belgian, French and German speaking bar associations and by the two Belgian League of Human Rights associations (‘Liga voor Mensenrechten/Ligue des Droits de l’Homme’).

The bar associations requested the annulment of Article 5 of the law which comprises most of the content of the law and regulates the retention of data itself whereas the two League of Human Rights associations requested the annulment of the entire law. Both parties invoked the violation of a number of fundamental rights provisions as grounds for the annulment, but mainly Articles 10 and 11 of the Belgian Constitution which guarantee equality and non-discrimination, Articles 6 and 8 of the European Convention of Human Rights and Articles 7, 8 and 47 of the Charter of Fundamental Rights of the European Union.

As for the two League of Human Rights associations, referring to the opinion of the Advocate General at the Court of Justice of the European Union , they claimed that the time limits provided by the law breach the principle of legality and the principle of proportionality. Secondly, they invoke multiple grounds of violations: the nature and scale of the collected data breach the right to privacy; that there are no distinct rules between the laws transposing Directive 2002/58/CE and Directive 2006/24/CE; that there would be situations where legal certainty and the prohibition of arbitrary action would be compromised but also where interference with privacy, freedom of speech, freedom of the press and the right to freedom of assembly would be disproportionate; the lack of precision on whom is the competent authority and on the discretionary power of the intelligence services; the law does not provide sufficient judicial control to safeguard against abuse; the notion of criminal offence used in the law does not respect the principle of legality and is in any case disproportionate; the lack of a definition of the data that is to be retained by type of service and the lack of requirements by which these data must abide; finally, the duration of the retention period is criticised.

Outcome of the case:

The Court decided that Article 5 of the law was unconstitutional and due to the interlinked nature of the other provisions of the law with Article 5, it repealed it all.

The Court ruled that the limitations provided for by the law to the principles of privacy and protection of personal data were disproportionate with regard to Articles 10 and 11 of the Constitution and Articles 7, 8 and 52.1 of the Charter of Fundamental Rights of the European Union.