Czech Yearbook Vol. 4 2013

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DAVID PETRLÍK CYIL 4 ȍ2013Ȏ
important in Melloni, in which the Spanish constitutional court intended to rule
that the national authorities could not have consented to extradition of a person to
a Member State which, in cases of serious offences, allows convictions in absentia
without making the surrender conditional upon the convicted party being able
to challenge these convictions in new proceedings in order to safeguard his or her
rights of defence.16 This approach would have compromised the primacy, unity and
effectiveness of the Framework Decision on the European arrest warrant,17 because
the latter explicitly enabled such extraditions if other conditions were fulfilled.
National courts can apply the national standard of protection of fundamental
rights, in particular, when the legislature implements a Directive that leaves a margin
of discretion to national authorities. The national standard can be fully applied,
accordingly, as regards the exercise of this discretion. Conversely, insofar as the
discretion is non-existent, the EU standard must be respected. Such an approach
has been applied, even before Åkerberg Fransson, by several national constitutional
courts which reviewed, for example, the constitutionality of national measures that
implemented the controversial Directive 2006/24 on data retention.18 These measures
were declared null and void for violation of the national standard of fundamental rights
by the German,19 Romanian20 and Czech21 Constitutional Courts, by the Bulgarian
16 Case C-399/11 Melloni [2013] ECR I0000.
17 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the
surrender procedures between Member States (OJ 2002L 190, p. 1).
18 Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the
retention of data generated or processed in connection with the provision of publicly available electronic
communications services or of public communications networks and amending Directive 2002/58/EC
(OJ 2006L 105, p. 54).
19 Judgement of 2 March 2010, 1 BvR 256/08, 1 BvR 263/08, 1 BvR 586/08 (Data Retention Ruling).
The German Constitutional Court declared the national law unconstitutional due to conflict with
Article 10, paragraph 1 of the Basic Law, which guarantees the inviolability of correspondence, postal
and telecommunications secrecy. It held that this law did not meet the requirements arising from
the principle of proportionality, which requires, among other things, that the legal regulation of data
retention reflects the specific gravity of such an infringement of fundamental rights of individuals. In
particular, the contested legislation did not sufficiently define the purpose of using such data; it did
not guarantee their adequate security; and, finally, it did not grant to individuals adequate and effective
guarantees against the risk of abuse, especially in the form of judicial review.
20 Judgement of 8 October 2009 (No 1258). The Romanian Constitutional Court held that national
implementing measure was unconstitutional, as it did not sufficiently define the intended use of such
an instrument; its wording was too vague; it did not define the powers and duties of authorized public
authorities and individuals concerned; and it did not provide sufficient safeguards against abuse.
Information available at
21 Judgement of 22March 2011, Pl. ÚS 24/10, published under No. 94/2011 Sb., N52/60 SbNU625.The
Czech Constitutional Court noted that the national provisions went beyond the framework provided
by the Directive 2006/24 regarding the amount and type of information to keep, and it concluded
that these provisions did not meet constitutional requirements. In particular, these provisions were not
accurate, especially with regard to the competent authorities to whom the data in question could be
transmitted. Furthermore, they did not adequately ensure the safety and security of data, and they did
not grant individuals guarantee against abuse and arbitrariness. Accordingly, the Constitutional Court
annulled the national provisions in question.