CYIL Vol. 4, 2013

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 Romanian 20 and Czech 21 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 http://www.edri.org/edrigram/number7.23/romania-decision-data-retention. 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.