Mass Surveillance and Data Protection in EU Law: The Data Retention Directive Saga
5 Swedish Studies in European Law (Oxford, Hart Publishing, May 2013)
Posted: 23 Jul 2012
Date Written: July 23, 2012
Abstract
Mass surveillance in the European Union (EU) through the so-called Data Retention Directive (2006/24/EC) has been subject to intense controversy in the Member States. This chapter examines the contribution of the CJEU in unpacking the constitutional and human rights implications arising out of the retention of private data for the purpose of law enforcement. In spite of intense litigation, this chapter argues that the CJEU has not yet had the opportunity to rule on a number of essential constitutional and human rights questions related to the disproportionate invasion of the Directive on the right to privacy. The chapter commences with an account of how the Directive came into being as well as the main challenges met by the EU legislature in the process of adopting it. It then moves on to consider how the CJEU has defended the Directive in relevant cases regarding its interpretation or validity. The CJEU has so far dealt with the legal basis/competence aspect of the Directive. Although unconvincing, the CJEU’s rationale for far-reaching supranational action in the field of criminal justice has been endorsed by the Treaty of Lisbon.
Keywords: Data Retention Directive, EU competence, CJEU jurisprudence, human rights
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