Recital 11
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(11) Like Directive 95/46/EC, this Directive does not address issues of protection of fundamental rights and freedoms related to activities which are not governed by Community law. Therefore it does not alter the existing balance between the individual's right to privacy and the possibility for Member States to take such measures, as are referred to in Article 15(1) of, necessary for the protection of public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the enforcement of criminal law. Consequently, this Directive does not affect the ability of Member States to carry out lawful interception of electronic communications or take other measures, if necessary for any of these purposes and in accordance with the European Convention of Human Rights and Fundamental Freedoms. Such measures must be appropriate, st! ri! ! ctly proportionate to the intended purpose and necessary within a democratic society. |
(11) Like Directive 95/46/EC, this Directive addresses issues of protection of fundamental rights and freedoms, related to activities which are governed by Community law. In taking measures for the protection of public security, defence and State security (including the economic well-being of the State when the activities relate to State security matters) and for the enforcement of criminal law, and in carrying out lawful interception of electronic communications if necessary for any of these purposes, Member States should act on the basis of a specific law which is comprehensible to the general public, and the measures should be entirely exceptional, authorised by the judicial or other competent authorities on a case-by-case basis and for a limited duration, appropriate, proportionate and necessary within a democratic society. Under the European Convention on Human Rights and pursuant to rulings ! is! ! sued by the European Court of Human Rights, any form of wide-scale general or exploratory electronic surveillance is prohibited. |
Amendment 20
Article 15, paragraph 1
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1. Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1)(2)(3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary measure to safeguard national security, (i.e. State security) defence, public security or the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communications system, as referred to in Article 13(1) of Directive 95/46/EC. To this end Member States may inter alia provide for the retention of data for a limited period justified on the grounds laid down in this paragraph, in accordance with the general principles of Community law. |
1. Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1)(2)(3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary, appropriate, proportionate and temporary measure within a democratic society to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC. These measures shall be entirely exceptional and based on a specific law which is comprehensible to the general public, and shall be authorised by the judicial or other competent authorities on a case-by-case basis. Under the European Convention on Human Rights and the EU Charter of Fundamental Rights and pursuant to rulings issued by the European Court of Hum! an! ! Rights, any form of widespread general or exploratory electronic surveillance is prohibited. |
Justification
Along with the references to the ECHR and the related case law, the EU Charter of Fundamental Rights should be mentioned.