3.1.
It is stated first and foremost that the claim is directed against the State as legislator and provides for a part of an Act of Parliament to be declared inapplicable. A civil court can only declare (parts of) an Act of Parliament inapplicable in preliminary relief proceedings if and insofar as it is manifestly non-binding because it is in conflict with provisions of treaties or of resolutions by international institutions that are binding on all persons. This criterion arises from Article 94 of the Constitution and established case law (cf. SC 1 July 1983, NJ 1984, 360) and suggests that great restraint be observed, all the more so since in preliminary relief proceedings such as the present proceedings it is only possible for a provisional judgment to be rendered. The restraint that should be observed is rooted in the distribution of competences between the various State bodies based on the Constitution. Acts of Parliament are adopted by the legislature. It is pre-eminently the task of the legislature to weigh all the arguments and interests at issue against each other, in which regard it enjoys a considerable degree of discretion. It is therefore inappropriate for an independent “full” examination to be undertaken by a civil court.
3.2.
The State has contended that the criminal court has already explicitly expressed an opinion on the legal validity of the Wbt (Amsterdam Court of Appeal 9 May 2014, ECLI:NL:GHAMS:2014:1835 and Amsterdam Court of Appeal 27 May 2014, ECLI:NL:GHAMS:2014:2028), so that it is difficult to conclude that the Wbt is manifestly non-binding. This contention does not succeed, since the criminal court examined whether a procedural defect took place on the grounds of Article 359a(1) of the Code of Criminal Procedure and whether the interests of the suspects were violated through application of the (amended) Telecommunications Act. There was no examination on the basis of civil law as to whether the Wbt is in conflict with provisions of treaties or of resolutions by international institutions that are binding on all persons in the judgments referred to.
3.3.
In support of their claims, Privacy First et al. have relied on the findings in the judgment of the Court of 8 April 2014, in which the Data Retention Directive was declared to be invalid. However, it is not in dispute that the declaration of invalidity of the Data Retention Directive by the Court does not automatically mean that the Wbt is similarly invalid. The declaration of invalidity of the Data Retention Directive has caused the Wbt to become autonomous legislation which should be examined in the light of its own merits, with due consideration also for the findings of the Court. It should also be noted that the proposed amendments to the Wbt as set out in the letter of 17 November 2014 play no part in the assessment, since the examination should be limited solely to the legislation as currently applicable.
3.4.
Article 51 of the Charter provides that the Charter applies when the Member States are implementing Union law. It follows from the case law of the Court that the term “implementation of Union law” within the meaning of this article should be interpreted as concerning actions of the Member States within the field of application of Union law (inter alia: CJEU 30 April 2014, C-390/12, Pfleger). As the Wbt complements the ‘e-Privacy Directive’ (Directive 2002/58/EC) and constitutes an obstacle to the free movement of services, it falls within the scope of application of the Charter. It is therefore necessary to examine whether the Wbt, as Privacy First et al. contend, constitutes an unacceptable infringement of Articles 7 and 8 of the Charter. Although the State, in this connection, has not disputed that the Wbt almost exactly replicates the contents of the Data Retention Directive, it has, rightly in the opinion of the court in preliminary relief proceedings, argued that the entire body of relevant domestic legislation should be taken into account when assessing the question as to whether the Wbt is consistent with Articles 7 and 8 of the Charter. This in the light of the fact that the objections to the Data Retention Directive set out by the Court in the judgment of 8 April 2014 relate, among other things, to the absence of certain safeguards for the security of and access to the stored data. These objections can equally be addressed by applicable provisions in other national regulations.
3.5.
Articles 7 and 8 of the Charter set out the right to respect for private and family life, home and communications and the right to protection of personal data. Privacy First et al. have argued that the mere fact that it is laid down in the Wbt that telecommunications data of persons shall be retained constitutes an unacceptable interference with Articles 7 and 8 of the Charter. It has been established that, as the Court also finds under points 32 to 37, inclusive, of the judgment, the obligation imposed (in this case by the Wbt) to retain, for a certain period, data relating to a person’s communications constitutes interference with Articles 7 and 8 of the Charter. This is in line with the case law of the European Court of Human Rights, on which Privacy First et al. have relied. There, it is found with regard to Article 8 of the European Convention on Human Rights, for example, that “The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of article 8 (...). The subsequent use of the stored information has no bearing on that finding.” (ECHR 4 December 2008, S. and Marper, appl.nos 30562/04 and 30566/04). Privacy First et al. therefore correctly assert that the use of the data constitutes far-reaching interference in and by itself with the aforementioned rights. However, insofar as Privacy First et al. argue that the interference with the aforementioned rights is in any event unacceptable, this argumentation is not followed, since it is necessary to assess whether the interference is justified and proportionate.
3.6.
The parties are in dispute in that context about the necessity and effectiveness of the retention obligation as laid down in the Wbt. In this regard, it must be noted, first, that this point of dispute pre-eminently falls under the discretion of the legislature, whose task it is to weigh all the arguments and interests against each other, with the result that the preliminary relief court will only undertake a limited assessment in relation to this point. The Court held that the fight against serious crime is of the utmost importance in order to ensure public security, that its effectiveness may depend to a great extent on the use of modern investigation techniques (point 51) and that the data which must be retained allow additional opportunities to shed light on serious crime (point 49). In addition, the State has demonstrated sufficiently in these proceedings that certain forms of crime are almost exclusively detectable through the use of historical telecommunications data, given that increasingly crime is being committed online or with the aid of the Internet. The State has argued, without being contradicted, that it would not have been possible to solve certain major criminal cases listed by it without a reliance on the retention obligation. The basic principle is therefore that the retention obligation is necessary and effective.
3.7.
The dispute between the parties is further focused on the question of whether there are provisions in Dutch legislation which sufficiently address the objections that resulted in the Court ruling that the Data Retention Directive is invalid. Just like the Data Retention Directive, the Wbt covers without any limitation all persons using means of electronic communication and therefore applies even to persons for whom there is no evidence capable of suggesting that their conduct might have a link with serious crime. Nor is any relationship required between the data whose retention is provided for and a threat to public security (points 57 to 59, inclusive, of the judgment). Contrary to what Privacy First et al. maintain, it cannot be concluded from the judgment of the Court that such a broad retention obligation is in any event not proportionate in the light of the intended objective, since the Court goes on to consider whether the Date Retention Directive provides sufficient safeguards for access to the data retained. If what Privacy First et al. have maintained were to be correct, the Court would not have got around to addressing this question. Furthermore, the Court held (“Having regard to all the foregoing considerations”, point 69) that the legislature has exceeded the limits imposed by compliance with the principle of proportionality. It follows from this that the outlined objections, taken together, led to that opinion.
3.8.
The above does not alter the fact that it is necessary to assess whether the interference with Articles 7 and 8 of the Charter is precisely circumscribed by provisions to ensure that it is actually limited to what is strictly necessary. In this respect it is noted that a limitation of the data whose storage is provided for to the data of suspects is inconceivable in view of the objective of the Wbt, namely the effective detection of serious crime. In the case of a first offender it is not possible to make a distinction in advance between suspects and non-suspects. However, the need to provide safeguards and guarantees regarding access to these data is even greater since it concerns a very broad interference, underlining the importance of setting high standards in that regard.
3.9.
The State has correctly argued that the Telecommunications Data (Security) Decree (Besluit beveiliging gegevens telecommunicatie) requires providers of telecommunications services in the Netherlands to apply a high level of protection and security and that this is subject to supervision by the Radiocommunications Agency Netherlands and the Personal Data Protection Authority (CBP). To this extent, therefore, the objection to the Data Retention Directive noted by the Court under point 67 of the judgment is addressed. However, it must be concluded from point 69 that a requirement that the data in question should be retained within the European Union is “an essential component” of the protection of individuals with regard to the processing of personal data, since it is only through that requirement that the control by an independent authority of compliance with the requirements of protection and security, on the basis of EU law, is fully ensured. Such a requirement is absent in the Wbt. The State has also acknowledged that in practice (several small) providers retain their user data outside the European Union.
3.10.
Furthermore, as the Court finds under point 60 of the judgment, legislation should lay down objective criteria by which to determine the limits of the access of the competent national authorities to the data and their subsequent use for the purposes of prevention, detection and criminal prosecutions concerning offences that may be considered to be sufficiently serious to justify the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter. The court in preliminary relief proceedings is of the opinion that this is not the case in the Wbt. Although the Wbt establishes a clear delineation since access to the data is limited to the detection and prosecution of criminal offences for which pre-trial detention is allowed or of terrorist offences, this category also includes criminal offences which are not sufficiently serious to justify the interference. It should be remembered that the provisions of the Data Retention Directive were a response to the terrorist attacks in London and Madrid in 2004 and 2005. The material objective of the Data Retention Directive, and hence of the Wbt which is based on it, was to ensure that certain data are available for the purpose of the fight against serious crime. Criminal offences for which pre-trial detention is allowed also include offences that are punishable by a sentence of imprisonment of at least four years. The State has argued that any decision to request the data is not taken lightly, and that no data will be requested in the case of a bicycle theft, for example, which is also a criminal offence for which pre-trial detention is allowed. However, it is a fact that the possibility to do so exists and that there are no safeguards to actually limit access to the data to what is strictly necessary for the purpose of combating serious crime, and only serious crime.
3.11.
The above is particularly important since the Wbt and related legislation do not make access to the data retained dependent on a prior review carried out by a court or by an independent administrative body. Contrary to what the State maintains, the Public Prosecution Service cannot be regarded as an independent administrative body. That the Court considers this a serious objection may be inferred from the use of the words “above all” under point 62 of the judgment.
3.12.
All this leads to the conclusion that the Wbt in its current form interferes with the rights enshrined in Articles 7 and 8 of the Charter in a manner which is not limited to what is strictly necessary and must therefore be qualified as unacceptable. In view of the foregoing, the Wbt is manifestly non-binding. The court in preliminary relief proceedings is aware that rendering the Wbt inoperative may have far-reaching consequences for the detection and prosecution of criminal offences. However, this does not justify allowing the aforementioned interference to persist. Nor does the fact that the consequences of rendering the Wbt inoperative are potentially irreversible in itself prevent the relief sought from being allowed. Privacy First et al.’s principal claim, as set out under I, will therefore be allowed. In the light of the foregoing, Privacy First et al. have no further interest in the relief sought under II being allowed, since rendering the Wbt inoperative means that the basis for requesting the data concerned will cease to apply.
3.13.
As the party against whom judgment has been given, the State will be ordered to pay the costs of these proceedings as well as, partly suspended, the subsequent costs.
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