Constitutionalizing Mass Surveillance in the EU: Civil Society Demands, Judicial Activism and Legislative Inertia

Abstract

Despite the shock provoked by the Snowden revelations, mass surveillance is still a reality in the EU. However, over the past few years, it is possible to observe a gradual constitutionalisation of these practices. This paper maps this ongoing process which is progressively defining constitutional limits and societal affordances of mass surveillance in the EU, focusing on the three main actors contributing to it. Firstly, it presents civil society as the propeller of this trend, having promptly advocated a ban of general surveillance systems in the aftermath of the Snowden revelations and having promoted a series of strategic litigations that offered the opportunity to challenge state surveillance practices both at national and at EU level. Secondly, it analyses the CJEU case law in the field as its main constitutionalizing engine. The Court indeed pragmatically ascertained that an absolute prohibition of mass surveillance does not appear to be a realistic solution and put significant effort in actively defining the legal boundaries of these practices by striving to find an equilibrium between state interests and fundamental rights. Thirdly, it considers the approaches taken by national legislators as a slowing factor, being they still often reluctant to incorporate the constitutional standards progressively developed by courts, despite the now significant body of judicially created parameters in the field.

Keywords: mass surveillance, constitutionalisation, civil society, CJEU, legislators