II. Three Direct Implications
In my view, one may draw three direct inferences from that judgment. First, it makes clear that a measure that compromises the essence of a fundamental right may not be justified on any ground, not even where the national security of a third country is at stake. The judgment of the CJEU in Schrems sends a clear message to the EU political institutions to the effect that they may only adopt measures that respect the essence of the fundamental rights in question. In practical terms, this means that the new Commission decision authorizing the transfer of data from the EU to the United States—in accordance with the privacy shield principles—must also leave untouched the essence of the fundamental right to privacy.33 In addition, Schrems highlights the fact that the rights attached to the status of EU citizenship are to be distinguished from the fundamental rights recognized by the Charter.34 The reason is that, whilst public security and public policy grounds may justify measures depriving EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status,35 the same does not hold true regarding measures depriving a fundamental right of its essence.
Moreover, the finding that a measure that compromises the essence of a fundamental right may not be justified on any ground was recently confirmed by the seminal judgment of the CJEU in Minister for Justice and Equality (Deficiencies in the system of justice).36 In that case, the question that arose was whether the executing judicial authority could—exceptionally—refrain from giving effect to a European Arrest Warrant, where such execution would give rise to a real risk of breaching an individual’s fundamental right to an independent tribunal and, therefore, his fundamental right to a fair trial as laid down in Article 47 of the Charter.37 The CJEU replied in the affirmative. In what is, for present purposes, the most important passage of that judgment, it ruled that:
[T]he requirement of judicial independence forms part of the essence of the fundamental right to a fair trial, a right which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded.38
Accordingly, free movement of judicial decisions may be limited where the national court, which issues a warrant that is to be recognized and enforced in other Member States, is not independent, because that lack of independence compromises the very essence of the right to a fair trial.
Second, in respect of fundamental rights that are absolute, such as human dignity, the right to life, the prohibition of torture, and the prohibition of inhuman or degrading treatment,39 one may argue that, since no limitation may be imposed upon those rights, their content and their essence are, in effect, coterminous. That may explain why in joined cases Aranyosi and Căldăraru, as well as in the C.K. case, the CJEU ruled that once it is established that the execution of a European Arrest Warrant or the transfer of an asylum seeker runs the risk of subjecting the person concerned to inhuman or degrading treatment, the principle of mutual trust may not be interpreted as requiring such execution or such transfer.40 Similarly, that is also why the CJEU held in Abdida, MP and Petruhhin that Articles 4 and 19(2) of the Charter prohibit the expulsion of a third-country national or the extradition of an EU citizen to a third country where such expulsion or such extradition would give rise to inhuman or degrading treatment.41
Third, regarding fundamental rights that may be subject to limitations, such as the right to respect for private life and the right to effective judicial protection, the essence of those rights is only compromised where the limitation in question empties those rights of their content or calls their very existence into question. To put it in the CJEU’s own words, respect for the essence of a fundamental right means that that right “is not called into question as such.”42
That point can be illustrated by reference to the differences between, on the one hand, the limitations at issue in Schrems and, on the other hand, those that were examined in Digital Rights Ireland and Tele2 Sverige. In Schrems, the limitations on the right to respect for private life of data subjects were particularly drastic. In respect of the US public authorities, there was simply no privacy as those authorities could have unlimited access to the content of all the personal data transferred from the EU to the US. Furthermore, the limitation at issue in that case was not only extremely intense but also overwhelmingly broad.
In Digital Rights Ireland and Tele2 Sverige, the CJEU found, respectively, that the Data Retention Directive and the national legislation at issue imposed a serious limitation on the right to respect for private life in so far as, for the purpose of fighting serious crime, they provided for the retention of metadata. Nevertheless, those measures did not compromise the essence of that fundamental right because they did not permit retention of the content of electronic communications.43 In Digital Rights Ireland, the CJEU added that the essence of the right to protection of personal data was not compromised either. That Directive laid down certain principles of data protection and data security according to which Member States were obliged to ensure that appropriate technical and organizational measures were adopted to prevent the accidental or unlawful destruction and accidental loss or alteration of data.44 Thus, the limitations at issue in Digital Rights Ireland and Tele2 Sverige were less intense than those at issue in Schrems.
Similarly, in its Opinion 1/15 on the EU-Canada PNR Agreement, the CJEU found that the envisaged agreement constituted a serious limitation on the exercise of the right to respect for private life and of the right to protection of personal data, because it provided for the transfer of the personal data of air passengers travelling between Canada and the EU to the competent Canadian authority. Within the framework of the fight against terrorist offenses and serious transnational crime, that agreement also provided for the use of those data—that is to say, their retention and sharing—by other Canadian authorities, those of the Member States, Europol, and Eurojust and even authorities of third-countries.45 Yet, the envisaged agreement did not compromise the essence of the right to respect for private life given that the information to which those authorities had access was limited to certain aspects relating to air travel between Canada and the EU. Nor did that agreement compromise the essence of the right to protection of personal data, because it limited the purposes for which PNR data may be processed and laid down rules intended to ensure, inter alia, the security, confidentiality, and integrity of the data, and to protect them against unlawful access and processing.46
A joint reading of those judgments and of Opinion 1/15 suggests that, in order to determine whether a measure compromises the essence of a fundamental right, one must not only examine the intensity, but also the extent, of the limitation at issue. A measure that limits the exercise of certain aspects of a fundamental right, leaving others untouched, or that only applies in a specific set of circumstances regarding the individual conduct of the person concerned, is not such as to compromise the essence of that fundamental right. The case law of the CJEU appears to confirm such a reading. Three further examples may illustrate that point.
In N., the referring court called into question the compatibility with the Charter of a provision of the Reception Directive that empowers the Member States to detain an applicant for international protection when national security or public order (“ordre public”) so requires.47 After finding that such a provision limited the right to liberty of those applicants and that the limitation at issue was provided for by law, the CJEU found that the essence of the right to liberty was not compromised. This was because that provision
does not render the guarantee of that right less secure and [because] the power that it confers on Member States enables them to detain an applicant only on the basis of his [or her] individual conduct and under the exceptional circumstances referred to in the same provision, those circumstances also being circumscribed by [other] conditions set out [in] the [Reception Directive] ….48
Likewise, in Delvigne, French legislation precluded nationals who had been convicted of a serious criminal offense from exercising their right to vote in elections to the European Parliament, a right guaranteed by Article 39(2) of the Charter. Whilst constituting a limitation on the exercise of that right, such legislation did not compromise its essence. The CJEU reasoned that “[such a] limitation [did] not call into question that right as such, since it [had] the effect of excluding certain persons, under specific conditions and on account of their conduct, from those entitled to vote in elections to the Parliament, as long as those conditions [were] fulfilled.”49
In the same way, in Menci, the CJEU was asked whether Article 50 of the Charter had to be interpreted as precluding national legislation in accordance with which criminal proceedings may be brought against a person for failing to pay value added tax (VAT) due within the time limit stipulated by law, even though that person had already been made subject, in relation to the same acts, to a final administrative penalty. Similarly, in Garlsson, the Italian legislation at issue provided for the possibility of bringing administrative proceedings against a person with respect to unlawful conduct consisting of market manipulation for which the same person had already been convicted.50 In both cases, the CJEU found that such a duplication of proceedings and penalties constituted a limitation on the ne bis in idem principle guaranteed by Article 50 of the Charter.51 Nevertheless, the essence of that fundamental right was not compromised given that the legislation at issue allowed “such a duplication … only under conditions which are exhaustively defined, thereby ensuring that the right guaranteed by Article 50 is not called into question as such.”52
III. The Essence of Fundamental Rights and the Principle of Proportionality
It follows from Schrems that the essence of a fundamental right places an absolute limit on the limitations that may be imposed on the exercise of that fundamental right. Where a measure compromises the essence of a fundamental right, it is per se incompatible with the Charter, without there being a need to carry out a balancing exercise between competing interests.
It is true that there is some overlap between the concept of the essence of a fundamental right and the principle of proportionality. First, where a measure complies with the principle of proportionality, such a measure may also be regarded as respecting the essence of the fundamental right in question. Indeed, it is simply impossible for a measure to impose a proportionate limitation on the exercise of a fundamental right, whilst depriving that right of its essence. Second, and conversely, where a measure violates the essence of a fundamental right, such a measure automatically constitutes a violation of the principle of proportionality.
However, this is where the overlap ends, because a measure may respect the essence of a fundamental right and yet still violate the principle of proportionality. This can be seen in cases such as Digital Rights Ireland and Tele2 Sverige.
In Digital Rights Ireland, the CJEU noted that the Data Retention Directive imposed a limitation on the rights enshrined in Articles 7 and 8 of the Charter that was “particularly serious,”53 because that Directive required the retention of metadata in connection with “all persons and all means of electronic communication as well as all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime.”54 After finding that the essence of the right to respect for private life and that of the right to protection of personal data were not compromised, the CJEU went on to carry out a proportionality assessment. It held that the retention of metadata in connection with electronic communications was an appropriate means of attaining the objective pursued by the Data Retention Directive—to fight serious crime. As such, retention was indeed a valuable tool for criminal investigations. Yet, regarding the necessity of the measure, the CJEU held that, since that Directive entailed a wide-ranging and particularly serious interference with the fundamental right to private life, “derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary.”55 This meant that when adopting the Data Retention Directive, the EU legislator was under “the obligation to lay down clear and precise rules governing the extent of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter.”56 The CJEU considered that the EU legislator had failed to do so.57
Similarly, in Tele2 Sverige, the CJEU held that, whilst the Swedish legislation at issue did not compromise the essence of the right to respect for private life, it exceeded the limits of what was strictly necessary to attain the legitimate objective of fighting serious crime. This was because, like the Data Retention Directive, the Swedish legislation imposed a serious limitation on that fundamental right,58 as it provided for a general and indiscriminate retention of all the traffic and location data of all subscribers and registered users relating to all means of electronic communication. Further, it imposed on providers of electronic communications services an obligation to retain those data systematically and continuously, with no exceptions. Where national legislation provides for the retention of traffic and location data as a means of preventing serious crime, compliance with the principle of proportionality is subject to both procedural and substantive conditions. Procedurally, it must lay down clear and precise rules governing the scope and application of data retention and impose minimum safeguards that guarantee effective judicial protection.59 Substantively, it must establish a link between the data to be retained and the objective pursued.60
As AG Saugmandsgaard Øe observed in his Opinion in Ministerio Fiscal, it follows from the judgments of the CJEU in Digital Rights Ireland and Tele2 Sverige that compliance with the principle of proportionality requires “[the] establishment of a link between the seriousness of the interference found and the seriousness of the reason that could justify the interference.”61 In Ministerio Fiscal, the CJEU endorsed that observation explicitly:62 Only the fight against serious crime may justify a serious interference.63 Conversely, the objective of fighting crime generally may justify an interference that is not serious.64 In the case at hand, the question was whether access by the police to data for the purposes of identifying the owners of SIM cards activated by a stolen mobile telephone—such as their surnames, forenames and, if need be, addresses—constituted a serious interference with their rights to respect for private life and to protection of personal data. The CJEU replied in the negative, given that those data only enabled the police to establish the identity of the owners of those SIM cards, but did not cover the communications carried out with a stolen mobile phone. In other words, the interference was not serious, because “[t]hose data do not therefore allow precise conclusions to be drawn concerning the private lives of the persons whose data is concerned.”65 Accordingly, EU law did not preclude the national court from authorizing the police to have access to those data for the purposes of fighting crime generally.66
From a methodological perspective, the case law of the CJEU reflects the fact that that court will first examine whether the measure in question respects the essence of the fundamental rights at stake and will only carry out a proportionality assessment if the answer to that first question is in the affirmative.67 The application of that method of analysis is not simply empty formalism, but rather seeks to emphasize the point that the essence of a fundamental right is absolute and not subject to balancing.
Otherwise, if the CJEU were to examine first whether the measure in question complies with the principle of proportionality, the concept of the essence of fundamental rights would lose both its importance and its autonomous nature. On the one hand, once it is held that the contested measure complies with the principle of proportionality, the result of the respect-for-the-essence test becomes obvious. On the other hand, once it is established that the contested measure violates the principle of proportionality, the application of the respect-for-the-essence-test becomes devoid of purpose because the measure has already been found to be incompatible with the Charter. It might also give rise to inconsistencies where the CJEU subsequently finds that the measure in question also compromises the essence of a fundamental right. This is because the CJEU would have undertaken a balancing exercise that should not have been undertaken in the first place.
It is worth noting that the case law of the ECtHR has not always followed the method of analysis employed by the CJEU but has rather, in the past, incorporated the concept of the essence of a fundamental right into a proportionality assessment.68 Moreover, in Ezz and Others v Council, it was only after having found that the freezing of assets of the persons subject to EU restrictive measures constituted a proportionate limitation on those persons’ right to property, that the GC examined the question of whether those measures respected the essence of that fundamental right. Unsurprisingly, the GC answered that question in the affirmative.69 Nevertheless, for the reasons mentioned above, this Article respectfully submits that this manner of proceeding is not correct, as it reflects neither the absolute nature of the essence of fundamental rights, nor the logic underpinning Article 52(1) of the Charter.