The Court reasoned that, based on the above, the Directive does not establish
clear and precise rules that regulate the “extent of interference with the fundamental
rights of Art. 7 and 8 of the Charter”. Therefore, it concluded that the Directive
“entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely
circumscribed by provisions to ensure that it is actually limited to what it is strictly
necessary”.
30
Romania adopted Law 298/2008
31 after the deadline imposed by the Directive,
and used the extension norm which allowed the Member States to postpone application of this Directive to the retention of communications data relating to internet
access, internet telephony and internet e-mail, until 15 March 2009. The strong
public debate around the law soon resulted in a legal action filed by an NGO which
challenged the constitutionality of the law. The Romanian Constitutional Court
(RCC) was the first to decide
32 a law on data retention as contrary to the Constitution
(see below), the decision being seen as a success of the civic society. On the other
hand, this constitutional event produced a legislative gap on Romania’s obligation to
transpose Directive 2006/24/EC, as one of the major reasons of unconstitutionality
stated by the RCC referred to the providers’ obligation to continuously retain traffic,
localization and identification data for six months. The Romanian legislator was thus
confronted with two types of apparently incompatible obligations: the constitutional
obligation of the Parliament (art. 147
33 ) to comply with the RCC decision and amend
accordingly the legal provisions; the obligation of double nature based on the
Constitution (art. 148
34 ) and the EU treaties (art. 258
35 of TFEU). As Romania
30 See the judgement of CJEU, Digital Rights Ireland Ltd. (C-293/12), 16 May 2014 para. 65.
31 Official Gazette, Part I, no. 780 of 21.11.2008.
32 Decision no. 1.258/2009 (Official Gazette, Part I, no. 798 of 23.11.2009).
33 Art. 147 (1): The provisions of the laws and ordinances in force, as well as those of the
regulations, which are found to be unconstitutional, shall cease their legal effects within 45 days
of the publication of the decision of the Constitutional Court if, in the meantime, the Parliament or
the Government, as the case may be, cannot bring into line the unconstitutional provisions with the
provisions of the Constitution. For this limited length of time the provisions found to be unconstitutional shall be suspended de jure. Art. 147 (4): Decisions of the Constitutional Court shall be
published in the Official Gazette of Romania. As from their publication, decisions shall be generally
binding and effective only for the future (http://www.cdep.ro/pls/dic/site.page?den¼act2_2&
par1¼5#t5c0s0a147).
34 Art. 148 (2): As a result of the accession, the provisions of the constituent treaties of the European
Union, as well as the other mandatory community regulations shall take precedence over the
opposite provisions of the national laws, in compliance with the provisions of the accession act.
Art. 148 (4) The Parliament, the President of Romania, the Government, and the judicial authority
shall guarantee that the obligations resulting from the accession act and the provisions of paragraph
(2) are implemented (http://www.cdep.ro/pls/dic/site.page?den¼act2_2&par1¼6#t6c0s0a148).
35 Art. 258 TFEU: If the Commission considers that a Member State has failed to fulfil an obligation
under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned
the opportunity to submit its observations. If the State concerned does not comply with the opinion
within the period laid down by the Commission, the latter may bring the matter before the Court of
Justice of the European Union.
304
E. Lazar and D. N. Costescu
clear and precise rules that regulate the “extent of interference with the fundamental
rights of Art. 7 and 8 of the Charter”. Therefore, it concluded that the Directive
“entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely
circumscribed by provisions to ensure that it is actually limited to what it is strictly
necessary”.
30
Romania adopted Law 298/2008
31 after the deadline imposed by the Directive,
and used the extension norm which allowed the Member States to postpone application of this Directive to the retention of communications data relating to internet
access, internet telephony and internet e-mail, until 15 March 2009. The strong
public debate around the law soon resulted in a legal action filed by an NGO which
challenged the constitutionality of the law. The Romanian Constitutional Court
(RCC) was the first to decide
32 a law on data retention as contrary to the Constitution
(see below), the decision being seen as a success of the civic society. On the other
hand, this constitutional event produced a legislative gap on Romania’s obligation to
transpose Directive 2006/24/EC, as one of the major reasons of unconstitutionality
stated by the RCC referred to the providers’ obligation to continuously retain traffic,
localization and identification data for six months. The Romanian legislator was thus
confronted with two types of apparently incompatible obligations: the constitutional
obligation of the Parliament (art. 147
33 ) to comply with the RCC decision and amend
accordingly the legal provisions; the obligation of double nature based on the
Constitution (art. 148
34 ) and the EU treaties (art. 258
35 of TFEU). As Romania
30 See the judgement of CJEU, Digital Rights Ireland Ltd. (C-293/12), 16 May 2014 para. 65.
31 Official Gazette, Part I, no. 780 of 21.11.2008.
32 Decision no. 1.258/2009 (Official Gazette, Part I, no. 798 of 23.11.2009).
33 Art. 147 (1): The provisions of the laws and ordinances in force, as well as those of the
regulations, which are found to be unconstitutional, shall cease their legal effects within 45 days
of the publication of the decision of the Constitutional Court if, in the meantime, the Parliament or
the Government, as the case may be, cannot bring into line the unconstitutional provisions with the
provisions of the Constitution. For this limited length of time the provisions found to be unconstitutional shall be suspended de jure. Art. 147 (4): Decisions of the Constitutional Court shall be
published in the Official Gazette of Romania. As from their publication, decisions shall be generally
binding and effective only for the future (http://www.cdep.ro/pls/dic/site.page?den¼act2_2&
par1¼5#t5c0s0a147).
34 Art. 148 (2): As a result of the accession, the provisions of the constituent treaties of the European
Union, as well as the other mandatory community regulations shall take precedence over the
opposite provisions of the national laws, in compliance with the provisions of the accession act.
Art. 148 (4) The Parliament, the President of Romania, the Government, and the judicial authority
shall guarantee that the obligations resulting from the accession act and the provisions of paragraph
(2) are implemented (http://www.cdep.ro/pls/dic/site.page?den¼act2_2&par1¼6#t6c0s0a148).
35 Art. 258 TFEU: If the Commission considers that a Member State has failed to fulfil an obligation
under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned
the opportunity to submit its observations. If the State concerned does not comply with the opinion
within the period laid down by the Commission, the latter may bring the matter before the Court of
Justice of the European Union.
304
E. Lazar and D. N. Costescu