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Portugal / Constitutional Court / 420/2017

Public Prosecutor’s appeal against the decision of the Lower Court

Deciding Body type:
National Court/Tribunal
Deciding Body:
Constitutional Court
Decision date:

Key facts of the case: 

In this case, the Public Prosecutor's Office requested an authorisation for the transmission of identification data of a user suspect of committing the crime of child pornography. The Court of First Instance rejected this request, invoking the unconstitutionality of Article 6 of the Law 32/2008, of 17 July. This Law transposes Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks into national law. The Court of First Instance did not apply (on the basis of its unconstitutionality) the rule of Article 6 of the Law 32/2008, which establishes the obligation to keep data for a period of one year from the date of completion of the communication, specifically the name and address of the subscriber or registered user to whom the IP protocol address was assigned at the time of the communication (basic data or metadata). The First Court’s decision concluded on the unconstitutionality of that norm on the grounds of the infringement of principles of inviolability of home and privacy of correspondence. That decision was also based on Judgment of the Court (Grand Chamber) of 8 April 2014 on two references for a preliminary ruling from Ireland and Austria, which ruled in the sense of the invalidity of the above mentioned Directive. The Public Prosecutor’s Office has appealed against this decision of the Lower Court.

Outcome of the case:

The Constitutional Court emphasized that the declaration of invalidity of a directive does not have an automatic consequence on the validity of a national law transposing it. The Constitutional Court observed, first, that the judgment of the Court of Justice does not refer precisely to the basic data. On the other hand, the national law transposing the Directive went much further than the Directive, finding solutions which answered the reservations and doubts of the Court of Justice. It is possible to review the validity of this law in the light of the relevant parameters of international law, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms, European Union law, such as the Charter of Fundamental Rights, and national law, such as the Constitution. In view of the Constitution, the Constitutional Court considered that the rule allowing the retention of the data in question does not constitute a disproportionate restriction on the right to privacy. The Constitutional Court ruled in favour of the Public Prosecutor's Office, and did not consider Article 6 of the Law 32/2008, of 17 July, unconstitutional. According to this conclusion, the Constitutional Court ordered the revocation of the First Court’s decision, allowing the transmission of the information requested by the Public Prosecutor’Office.