Privacy International – CJEU Judgment (European Union, 2020)

Privacy international has challenged the lawfulness of the practices of collecting and using the bulk communications data (BCD) by the UK security and intelligence agencies. The Investigatory Powers Tribunal referred to the Court of Justice of the European Union the questions whether the existence of such practices fall within the scope of EU law and of Directive 2002/58 and if yes, does the EU law precludes national legislation enabling State authority to require providers of electronic communications services to carry out the 'general and indiscriminate' transmission of traffic data and location data to the security and intelligence agencies for the purpose of safeguarding national security. The referring court asked two questions : firstly, having regard to Article 4 TEU (referring to national security)  and Article 1(3) of Directive 2002/58, ("Directive shall not apply to activities ..... which fall to the activities concerning public security, defence, State security") does a requirement in a direction by a Secretary of State to a provider of an electronic communications network that it must provide bulk communications data to the security and intelligence agencies of a Member State fall within the scope of Union law and of Directive. The second question reffered to the court was seeking to ascertain whether Article 15(1) of Directive 2002/58, read in the light of Article 4(2) TEU and Articles 7, 8 and 11 and Article 52(1) of the Charter, is to be interpreted as precluding national legislation enabling a State authority to require providers of electronic communications services to carry out the general and indiscriminate transmission of traffic data and location data to the security and intelligence agencies for the purpose of safeguarding national security. The UK and several EU members states highlighted that the activities of security and intelligence agencies are the sole responsibility of Member States as it guaranteed in the treaty (Article 4(2) TEU)