Original scientific paper
THE STRICT NECESSITY TEST ON DATA PROTECTION BY THE CJEU: A PROPORTIONALITY TEST TO FACE THE CHALLENGES AT THE BEGINNING OF A NEW DIGITAL ERA IN THE MIDST OF SECURITY CONCERNS
Zlatan Meškić
; University of Zenica, Faculty of Law
Darko Samardžić
; University of Zenica, Faculty of Law
Abstract
Through the judgments Digital Rights Ireland and Tele2
Sverige, the CJEU emphasised the power of the CFR (in particular arts
7, 8, 52) through the fundamental right of data protection and general
principles of law such as the principle of proportionality and legal certainty.
Article 52 CFR represents the essence of justification. In the
spirit of article 52(3) and (4) CFR it becomes evident that the CJEU,
the ECtHR and the German Constitutional Court go in the same direction.
The CJEU was brave enough to deliver a scathing verdict on data
retention. More strongly than the German CC, the CJEU safeguards
data protection. Hence, the decisions of the CJEU were described as
milestone decisions and the CJEU as a Court of fundamental rights.
On the other hand, the CJEU focused all its power on proportionality
expressed through the element of strict necessity. It is astonishing
that the Court does not use the existing methodology on proportionality
to strengthen legal discipline and confidence. Although proportionality
may be assessed differently in single legal systems and cultures, the broad constitutionalisation and application of proportionality in
jurisdiction proves the power of this general principle of law. The exploration of this principle is rather challenging, but most beneficial for
the future application of primary law.
Keywords
Hrčak ID:
193059
URI
Publication date:
31.12.2017.
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