Article 29 WP Opinion On Necessity And Proportionality In Law Enforcement

Author:Van Bael Bellis
Profession:Van Bael & Bellis

On 27 February 2014, the Working Party (the "Working Party"), an independent European advisory body on data protection and privacy comprised of representatives from the national data protection authorities of the EU Member States, the European Data Protection Supervisor and the European Commission, adopted an opinion (the "Opinion") providing guidance on law enforcement measures that may interfere with the right to protection of personal data. The Opinion contains recommendations to the EU and national legislators and authorities adopting measures in the area of freedom, security and justice. In particular, the Opinion explains what elements must be taken into account when reviewing existing or adopting new rules on enforcement measures that may entail an intrusion in an individual's personal life and processing their personal data.

Pursuant to Article 8 of the Charter of Fundamental Rights (the "Charter"), every person has the right to the protection of their personal data. According to the Opinion, many law enforcement measures may intrude on an individual's private life and at the same time entail the processing of personal data, for instance a request by a national authority to access personal data from telecommunications providers, dawn raids or individualised ticketing for football games. The Working Party therefore emphasises the importance of the concepts of necessity and proportionality in adopting new or reviewing existing law enforcement measures.

The Opinion provides that, based on case law of the European Court for Human Rights with regard to interference with the protection of private and family life, any interference must satisfy the following 3 criteria:

All law enforcement measures that may intrude on the right to protection of personal data must have a legal basis. This legal basis must set out the type of measures an authority can take, the degree of discretion an authority has and must provide adequate legal safeguards of the right to personal data protection. The measures must be in pursuit of a legitimate aim, such as interests of national security, public safety, economic well-being of a country, prevention or detection of disorder or a crime, protection of health or morals. The measures must be necessary in a democratic society. The Working Party furthermore considered case law of the Court of Justice of the European Union ("ECJ"). In particular, it reiterated the ECJ finding that...

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