The Charter of Fundamental Rights of the European Union at the Portuguese Constitutional Court: The Data Retention Cases

Research output: Chapter in Book/Report/Conference proceedingChapterpeer-review

Abstract

The usually placid waters of the Portuguese legal order were shaken in
mid-April 2022 by a judicial ruling with the potential to trigger a tsunami of
criminal conviction reversals that is already provoking a backlash in the
investigation and repression of serious criminal offences committed online.
Several provisions of the so-called “Data Retention Law”, originally
adopted to transpose the contentious “Data Retention Directive”, were
declared unconstitutional by the Portuguese Constitutional Court (PCC),
as they breach the rights to privacy, to data protection and to an effective
legal remedy, as interpreted in accordance with the Charter of Fundamental
Rights of the European Union (CFR). The ruling caused shockwaves across
the political spectrum and triggered a constitutional crisis (of sorts), with
both the President of the Republic and the Prime Minister hinting on media
outlets at the need for a mooted constitutional amendment in a field
pre-empted by EU law. The Attorney-General went as far as to request
the annulment of the ruling, an unprecedented claim promptly dismissed by
the PCC on procedural and material grounds.
Original languageEnglish
Title of host publicationOn the Relation between the EU Charter of Fundamental Rights and National Fundamental Rights
EditorsMoritz Malkmus, Alexander Heger
PublisherSpringer Verlag
Pages155-173
ISBN (Electronic)978-3-031-52685-5
ISBN (Print)978-3-031-52684-8
DOIs
Publication statusPublished - 2024

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