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

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.