Slovakia / Constitutional Court / PL. ÚS 10/2014-78 Members of the National Council of the Slovak Republic

Key facts of the case:

Members of the Parliament submitted a motion for the compatibility of the Electronic Communications Act, Criminal Procedure Code and the Act on Police Force with the EU Charter, ECHR and the Constitution. The compatibility of the abovementioned legislation was questioned by 31 members of the Parliament arguing that the legislation interfers with the citizens‘ right to private life. The Electronic Communications Act obliged the electronic communications providers to store private users' data (such as traffic and location data and communication data) for the period of 6 (internet communication) to 12 months (other types of communication). The MPs also asked the Court to pose a question to the ECJ concerning the validity of the Art. 3, Art. 5 and Art. 6 of the Directive 2006/24/EC concerning the principle of data retention.', as the challenged legislation was amended for the purposes of the implementation of the Directive. 

Outcome of the case:

The Court stated that the challenged legislation is unconstitutional and incompatible with the Art. 8 of the ECHR. Regarding the validity of the Directive 2006/24/EC, the Constitutional Court declared posing the question to ECJ as unnecessary, since this question was already resolved by the ECJ in the case of Digital Rights Ireland Ltd. Invalidating of the Directive 2006/24/EC by the ECJ did not, according to the Constitutional Court, mean that challenged legislation adopted in order to implement the Directive would no longer fall within the remit of the EU law. However, the Court stated that following the judgment that the challenged legislation is unconstitutional, it does no longer need to check its compatibility with the EU law (therefore the Charter).

Paragraphs referring to EU Charter: 

 

68. The challenged provisions of the Electronic Communications Act even after the invalidating of the Directive 2006/24/EC by the ECJ remain within the sphere of competence of European Union law, as they provide an exception to the application of other Union rules (Directive 2002/58/EC), as is acknowledged by the Union law (Art. 15/1 of the Directive. 2002/58/EC). Likewise, the challenged provisions of the Criminal Procedure Code and the Act on Police Force are to be regarded as a modification falling within the scope of Art.15/1 of the Directive 2002/58/EC because of their nature and the objectives pursued (in this regard see: Judgment Kreshnik Ymeraga and others v Ministre du Travail, de l'Emploi et de l'Immigration, C87/12, EU: C: 2013: 291, paragraph 41, and Case Cruciani Siragusa and Regione Sicilia - Soprintendenza Beni Culturali e Ambientali di Palermo, C206/13, EU: C: 2014: 126, paragraph 25). Within the constitutional inquiry, the contested provisions of the Law on Electronic Communications, Criminal Procedure Code and the Police Force Act, the Court must therefore take into account also the wording of the relevant provisions of the Charter, especially Art. 7, Art. 8 and Art. 52/1 of the Charter and the relevant case law of the Court of Justice of the European Union.

69. Since the beginning of its functioning, the Constitutional Court has been acting in accordance with the principle of pacta sunt servanda and it consistently rules that the fundamental rights and freedoms under the Constitution must be interpreted and applied in the light and spirit of international human rights and fundamental freedoms (PL. ÚS 5/93, PL. ÚS 15/98, PL. ÚS 17/00, PL. ÚS 24/2014). The Constitutional Court thus always, except in cases when the wording of the Constitution excludes so, takes into account the wording of these treaties and the relevant case-law while defining the content of fundamental rights and freedoms enshrined in the Constitution (II. ÚS 55/98, PL. ÚS 24/2014). The Charter (Ú. v. EÚ C­ 326, 26. 10. 2012, p. 391 ̶ 407), although not adopted as an international treaty,  became a legally binding part of the primary law of the European Union by the adoption of the Lisbon Treaty, with the same legal force as the Treaties on which the Union is based (Art. 6/1 of the Treaty on European Union as amended by the Lisbon Treaty). The position of the Treaties on which the Union is founded (Treaty on European Union and the Treaty on functioning of the European Union), in the legal system of the Slovak Republic is regulated by Art. 1(2) of the Constitution and Art. 7(5) of the Constitution. Article 1(2) of the Constitution regulates the commitment of the Slovak Republic to recognize and respect the general rules of international law, international treaties by which it is bound, and its other international obligations. Article 7/5 of the Constitution lists the categories of international agreements that take precedence over laws. In the category of international agreements referred to in that provision we can certainly include the Treaties on which the Union is founded. The Charter, as having the same legal value as the Treaties on which the Union is founded, has to be therefore granted an equal position, as is endowed to the international treaties on human rights and fundamental freedoms in the Constitution's Art. 7(5).

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74. Given the constant case law of the Constitutional Court which, in accordance with the principle of pacta sunt servanda requires that the fundamental rights and freedoms under the Constitution are interpreted and applied at least in the sense and spirit of international human rights and fundamental freedoms treaties (PL. ÚS 5/93 , Pl. ÚS 15/98, PL. ÚS 17/00, PL. ÚS 24/2014) and the relevant case law issued therewith (II. ÚS 55/98, PL. ÚS 24/2014), fundamental rights and freedoms under the Constitution are necessary to be interpreted and applied within the meaning and spirit of the Charter and its relevant case law issued by the ECJ in cases where the challenged national legislation falls within the scope of the EU law.

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76. However, The Constitutional Court considers it necessary to refer also to its earlier case law (PL. ÚS 3/09), according to which, if in the proceedings under Art. 125/1/a of the Constitution, the Constitutional Court finds and determines that the contested law, its part or some of its provisions are not in accordance with the Constitution or constitutional law, it is in principle no longer needed to examine their incompatibility with the EU law (despite it is asked by the petitioners), because their possible non-compliance would lead to the same result and the same legal effect as reached by the decision that the contested legislation is not in conformity with the Constitution or constitutional law. The Constitutional Court justifies such a "self-limiting" access to its jurisdiction, by saying that by non-compliance with the Constitution or constitutional statutes, the cause of action is extinguished under the legislation in relation to the alleged non-compliance with European Union law.

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99. Council of Europe Convention. No. 108 on the protection of individuals with regard to automatic processing of personal data requires the consent of the person concerned during the processing of personal data only in the Art. 15/3, in respect of the provisions governing the assistance to the concerned persons, who are residents of another country. The concept of the person's consent with the processing of personal data does not play a key role in the Council of Europe Convention No. 108. Similarly, the same applies  within the European Union. Secondary regulations of the European Union concerning the protection of personal data (also referred to by the Explanatory Notes to Art. 8 of the Charter) considers the data subject's consent to processing of personal data only for one of the possible basis of the allowable (legal) processing of personal data (see also Art. 7 of the Council of Europe Convention No. 108). Secondary norms of the European Union concerning the protection of personal data [Council Directive. 95/46/EEC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (hereinafter “Directive 95/46/EEC ") and Directive 2002/58/EC] introduce provisions on data protection that goes beyond the requirements the person's consent to the processing of personal data. Secondary EU provisions on data protection introduce a system of safeguards (checks and balances, "checks and balances" in English), designed to ensure the legality of (admissibility of) the process of processing of personal data even with the absence of the prior consent of the person concerned.



 

 

Deciding body (original language): 
Ústavný súd Slovenskej republiky
Language: 
Slovak