[pcrh]

Do EU treaties per se contain any language that might be relevant to privacy?

It seems axiomatic that legal systems contain provisions that prevent their violation. However, democracy requires that laws are voted on by elected representatives or plebiscites, which can of course mean repealing prior laws.

However the EU institutions are not sovereign, which might be the loophole here?

Edit: I'm aware that the EU is only afforded "competences" given to it by treaties, so perhaps human rights don't fall into any of these...?

However, I also wonder if legislation such as Chat Control, etc, might fall outside its competences.

In the end, the question is whether there is a legal mechanism by which the introduction of laws such as those in question here can be prohibited?

[Muromec]

There is no loophole really, EU can repeal it's own laws the same way it passes them -- it needs to get the commission, the parliament and enough national governments on board.

>Do EU treaties per se contain any language that might be relevant to privacy?

Doesn't matter really. No right in any treaty is absolute. Not even the right to life itself -- the police can and does shoot people and it's legal for them to do under specific conditions. And of course the chat control law says that whatever it is supposed to be doing should be done in the most privacy respecting way possible.

In theory the court (any court really) can weight whether the measures are proportionate and whether negative obligations (not invade privacy) are in a balance with positive obligations (you know -- protective children is also important) and whether the balance is appropriate of a democratic society.

The problem everybody is trying to not see - there is no right to E2E encryption under any law right now. There is no right to have a communication channel that government can't possibly listen to. It's not a thing. The same way there is no right to have your house unsearchable by police and your freedom unbound by a court that can jail you. There are strict limits when any of those things happen, but they do fact happen all the time for good reasons and for bad ones too.

Add: if I would attack it from a legal standpoint, I would not focus on privacy so much, but rather say that creating mass-scaning capability is a threat to the democracy itself.

[pcrh]

Most rights are held in balance, as you describe.

However, mass surveillance cannot reasonably be held in balance with detection of crimes, as most people are not criminals

[Muromec]

It's not that I like chat control or think that mass surveillance can lead to any good.

What I'm saying, is -- just because the balance isn't where you want it to be, and the policy is bad, that alone doesn't mean the law is unconstitutional, against the EU treaties or ECHR or should be impossible to pass through the legislative.

It's just bad because it's bad.

[bergfest]

That's what I'm wondering too. I still hold out hope that the EU and the ECJ cannot override the fundamental rights guaranteed by the constitutions of the individual member states.

It is generally assumed that the ECJ has ultimate precedence over national constitutional courts, but I have my doubts. As a thought experiment, imagine it wasn't the EU, but the Chinese CCP with whom the treaties were concluded. It then quickly becomes clear why a national constitutional court fundamentally cannot accept the unconditional transfer of jurisdiction to a foreign entity.

The German Federal Constitutional Court (BVerfG) already stated in its judgment on the Public Sector Purchase Programme (PSPP) that it is prepared to intervene in the event of an exceeding of competences (ultra vires). Furthermore, the BVerfG has repeatedly defended the fundamental rights to privacy against the government in the past. I am relatively certain that the warrantless chat control would not succeed at the national level in Germany. The question is how the BVerfG will react if the ECJ gives the green light to chat control. As I said, I still have hope.

[pcrh]

In this regard, note that the EU can only propose legislation that falls under one of its "competences". For example, national militaries, income tax, education, most of foreign policy, etc, do not fall under EU control.

The ECHR itself is independent of the EU, it is national governments that have signed up to this treaty.

So perhaps the EU institutions do not need to directly refer to the ECHR, only national governments should???

.... It would be interesting to hear knowledgeable legal opinion in this!

[Muromec]

>So perhaps the EU institutions do not need to directly refer to the ECHR, only national governments should???

Correct. EU is not a party of the convention, member states are, so EU law can be ruled on by ECJ and national law and actions of national governments by ECHR.

Then at the end of the day it's the national government that would look at your chats and "I'm just following EU law" would not be an especially great excuse for the ECHR court.