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.
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!
>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.
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.