Tuchtfeld, Erik

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Towards a European Court ofFundamental RightsErik Tuchtfeld 2020-10-19T14:10:26With its judgments on bulk data retention issued at the beginning of this month,the European Court of Justice (ECJ) has entitled itself to examine virtually allsurveillance measures in the digital sphere. In doing so, it has once more clarified itspositioning as the decisive Fundamental Rights Court in Europe. In the midst of theultra vires-storm caused by the PSPP-judgement of the Bundesverfassungsgericht– and questions arising with regard to German Legal Hegemony in Europe – a trueshift of power to the ECJ can be spotted which is, surprisingly, supported by thenational constitutional courts.European Union Law and the “National Security” ExceptionArt. 4 (2) TEU emphasizes that “national security remains the sole responsibility ofeach Member State”. Therefore, one might conclude that these measures are onlyto be reviewed by national constitutional courts, and in accordance with EuropeanCourt of Human Rights’ (ECtHR) interpretation of the corresponding human rights.Recently, such assumption has led to harsh criticism and the accusation of hypocrisywith regard to the ECJ’s Schrems II-decision, invalidating the EU-US-Privacy Shield(and thereby the legal basis for most of the data transfer to the US): While theECJ reviewed the measures of US intelligence services thoroughly for assessingthe adequacy of the level of data protection in the US, it would not do the sameregarding such measures by EU Member States. This seems to be, by the way, alsothe view of the governments of nine different EU Member States (United Kingdom,Czech Republic, Estonia, Ireland, France, Cyprus, Hungary, Poland and Sweden)submitting observations in the cases decided two weeks ago, contending that Art. 4(2) TEU would be “deprived of any practical effect if it were necessary for measuresin the field of national security to meet the requirements of Directive 2002/58 [theePrivacy Directive]” (paras. 32-33).Following this assessment, non-EU countries would have to provide a higherstandard of data protection since measures by intelligence services of the MemberStates could only be examined by the national constitutional courts (if such courtsexist at all, which is not the case in all EU Member States).An Exception Not Applying to Individual ObligationsWith its recent bulk data retention decisions the ECJ has responded to this: NoMember State can escape its obligations under EU law by simply putting the“National Security”-stamp on legislation (para. 44). Instead, the Court differentiatesbased on the addressee of the national legislation in question. Since in case of bulkdata retention it is the electronic communication services providers who are obligedto store the data, the ePrivacy Directive – and Union law in general, including the- 1 -Charter – is applicable (para. 46). Interestingly enough, the ECJ stated in an obiterdictum that the General Data Protection Regulation (GDPR), which was in the caseat hand not in question, would apply to any processing of data by individuals, evenif done in the interest of the prevention and detection of criminal offences or threatsto national security (para. 47). This assertion is the true bombshell of the judgment:It means that every measure by a Member State obliging individuals to cooperateand handing out personal data to government agencies falls within the scope of theCFR. Looking back at recent popular cases on governmental surveillance, they allfulfill this criterion: Big Brother Watch concerned the RIPA Framework which obligedInternet Service Providers to provide access to digital communications (same goesfor the US-american PRISM program), in DE-CIX the central German Internetexchange point provider was fighting back its obligation to cooperate with theGerman Intelligence Service (BND). New developments such as keyword warrantsare also based on accessing data stored by individuals. In consequence, the ECJhas entitled itself to examine virtually all surveillance measures in the digital sphere,since the vast majority of them are executed with the support of private entities. Theexception of “national security” for the scope of application of Union law was therebyreduced to an absolute minimum.The different interpretations of „minimum standard“In combination with the particular understanding of Art. 53 CFR, this does not onlylead to one more court examining national legislation in the light of fundamentalrights (next to the corresponding national constitutional courts and the ECtHR) butmakes the ECJ factually the one decisive Fundamental Rights Court in Europe.This is accomplished by the ECJ’s interpretation of the “twin norm” Art. 53 CFR. Itscounterpart is Art. 53 of the European Convention on Human Rights (ECHR). Bothprovisions state that nothing in their corresponding legal texts shall be interpretedin a manner restricting human rights. In the jurisprudence of the ECtHR, this ledto an understanding of the Convention accepting and promoting the diversity ofconstitutional orders within Europe – as long as they are not falling behind theminimum standard set by the Convention. This is different under the Charter: Theprinciple of primacy of European Union law – the “essential feature of the EU legalorder” – would be undermined if differing (higher) standards in the protection offundamental rights would question the execution of Union law. Member States can(theoretically) still apply higher fundamental rights standard but this must not affectthe Holy Trinity of Union law: Primacy, Unity and Effectiveness.Therefore, the ECJ has developed a broad scope of application for the Charter whileat the same time narrowing the margin for acceptable interpretations of fundamentalrights protection in the Union substantially: In the end, it is its own interpretationwhich must prevail.The reaction of the national constitutional courtsOne might expect the national constitutional courts to resist such development.Ultimately, the question is about who has “the final say”. The same issue – on thesurface – which led to the PSPP-judgment of the Bundesverfassungsgericht thisMay. However, one can observe quite the opposite. Several national constitutional- 2 -courts, inter alia the Austrian Verfassungsgerichtshof, the Belgian ConstitutionalCourt, the French Conseil Constitutionnel, the Italien Corte costituzionale andlastly the very same Bundesverfassungsgericht in Right to be Forgotten I & IIissued in November 2019, have adopted the European fundamental rights – in theirinterpretation by the ECJ – as standard of review for their own proceedings.How is this compatible with PSPP and other ultra vires-judgements (and threats) bynational constitutional courts? There is one important difference: PSPP was neverabout fundamental rights protection (even though the Bundesverfassungsgerichtconstrued a fundamental right to democracy), it was about democratic legitimacyand the key right of parliaments, the budgetary law. In fact, it was from the outsetthe national courts (inter alia long time ago with Solange I) who encouraged the ECJtake a more active role in the protection of fundamental rights. Even the intentionof PSPP was – according to case rapporteur Huber and then president of the courtVoßkuhle – not to weaken the Court but to cheer it up to take a more active role, tointensify its review.The One Court for Digital Fundamental RightsOn the one hand an understanding of the scope of application of the Charterof Fundamental Rights which effectively allows the review of nearly all (mass)surveillance activities by its Member States, on the other hand the good old principleof primacy of Union law, applied also in the field of interpreting fundamental rights,the ECJ has clearly expressed its will to protect to rights of Union citizens in thedigital sphere – no matter who is infringing them. It becomes the one court in theEuropean Union whose interpretation of fundamental rights, at least in the digitalsphere, is pivotal. This is more than welcome in a Europe with one common digitalspace.- 3 -

Towards a European Court of Fundamental Rights

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Towards a European Court of Fundamental Rights

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