In its judgment on the data retention directive (C‑293/12 and C‑594/12), the ECJ caught the spirit of the age.
The storage of all communication data is disproportionate to the objectives of the directive, which include, apart from the completion of the internal market, “the fight against international terrorism in order to maintain international peace and security” as well as “the fight against serious crime in order to ensure public security” (recital 42).
Thereafter, the ECJ refers “furthermore” to Art. 6 of the Charter of fundamental rights of the EU, according to which ”the right of any person not only to liberty, but also to security” is provided. This finding is remarkable, as the prevalent opinion in literature so far agreed on the physical freedom of movement being the sole legally protected good of the provision. The concept of freedom defined the protected good, the mention of “security” had no separate significance besides that. Rather, it was supposed to only clarify the purpose of the provision – the protection against arbitrary arrest. Accordingly, security was practically understood as a mere appendix to the concept of freedom.
This reading is based on the circumstance that Art. 6 of the Charter is patterned exactly on Art. 5 ECHR. What’s more, it is again emphasized in the explanations of the Charter, which have to be taken due account of according to Art. 52 (7) of the Charter and Art. 6 (1), 3. TFEU.
Systematically, the limiting provision of Art. 5 ECHR is repeated there, too. Up to now, the ECtHR only deduced from Art 5 ECHR a right to protection of the freedom of movement and did not attach independent significance. In line with Art 52 (3) of the Charter, the rights of the Charter have the same scope and meaning as the corresponding rights of the ECHR.
By mentioning now a right of any person not only to liberty, but also to security, the ECJ makes an explicit distinction between the two concepts. Can this wording not clearly be understood as the establishment of separate right to security?
But if the wording was taken seriously, it would be possible to rely on this fundamental right to security in future proceedings. What would that mean? Firstly, security measures interfering with fundamental rights could be justified easier with regard to the proportionality principle as security would now be understood as a competing fundamental right. The limitation of a colliding fundamental liberty right would at the same time be a measure to bring the right to security into effect. Secondly, looking even further, would individuals even have the right to demand for security measures to be taken by the European Union? Did the ECJ even lay the foundation for possible positive obligations, which can be deduced from the individual fundamental right acknowledged here, assumed that the EU has a competence to act and that the member states would not be able to protect fundamental rights efficiently? Or, alternatively, does it constitute at least an objective duty of the EU, which was nevertheless still explicitly based on fundamental rights? Would it even be conceivable to justify the creation of a new directive on data retention sufficient to the conditions laid down by the ECJ with regard to fundamental rights?
Remarkably, the Court mentions the right only together with the legitimate aims of the fight against terrorism and crime. It does not discuss a possible conflict of between Art. 7 and 8 and Art. 6 of the Charter in particular, although, with regard to the proportionality of the measure in question, this would be the place where the fundamental right to security would have a significant impact on the outcome of the proceedings. That is why the passage mentioned above has to be treated with caution. Maybe the Court was just thoughtless in this case. However, if it did want introduce a fundamental right to security indeed, this would have a remarkable impact on the future fundamental rights protection system in Europe. With regard to the upcoming accession of the EU to the European Fundamental Rights Convention and having in mind the divergent jurisdiction of the ECHR tthis would be of specific importance.