The President of the Republic requested the Constitutional Court, under the provisions of no. 1 of article 278 of the Constitution of the Portuguese Republic (hereinafter, CRP) and articles 51, no. 1 and 57, no. 1, both of Law No. 28/82, of November 15 (Law on the Organization, Functioning and Procedure of the Constitutional Court, hereinafter referred to as LTC), the “assessment of conformity with the same Constitution of the following rules contained in the Decree No. 91/XV of the Assembly of the Republic, received and registered at the Presidency of the Republic, on November 2, to be promulgated as law:

- the rule contained in article 2, in the part in which it amends article 4 of law no. 32/2008, of 17 July;

- the rule contained in article 2, in the part in which it amends article 4 when combined with article 6 of law no. 32/2008, of 17 July;

- the rule contained in article 2, in the part in which it amends article 9 of law no. 32/2008, of 17 July».



The aforementioned Decree No. 91/XV of the Assembly of the Republic, published in the Gazette of the Assembly of the Republic No. 26, II Series A, of October 26, 2023, whose rules are thus submitted for consideration by this Court, in the process preventive inspection of constitutionality, «Regulates access to metadata relating to electronic communications for criminal investigation purposes, making the second amendment to Law no. 32/2008, of 17 July, which transposes Directive no. 2006/24/CE, of the European Parliament and the Council, of March 15, regarding the conservation of data generated or processed in the context of the provision of publicly available electronic communications services or public communications networks, in accordance with the Ruling of the Constitutional Court No. 268/2022, and the twelfth amendment to Law No. 62/2013, of August 26, which approves the Law on the Organization of the Judiciary System»

The TC judges rejected, by majority, one of the three norms of the Parliament's decree on metadata, whose preventive inspection had been requested by the head of State.

In fact, the Court states in the aforementioned ruling that “basically, if the measure of conservation of traffic and location data in itself can be considered appropriate and necessary for the purposes of public interest that it aims to safeguard, the definition of the range of targeted subjects only does not transgress the limits of proportionality to the extent that it directly addresses situations in which the attack on the fundamental rights in question may be seen as being aimed at pursuing the objectives of the criminal action. In this context, as the measured measure exceeds the limits of proportionality with regard to the respective subjective scope, paragraph 2 of article 18 of the Constitution is violated in the restriction of the fundamental rights to the reservation of the privacy of private life and the informational self-determination (articles 26, no. 1, and 35, no. 1, of the Constitution), losing relevance to the question of whether the other elements on which the proportionality of the measure would depend (the adjustment of the conservation to what is strictly necessary for the purposes to be achieved; and the imposition of safety conditions for the respective storage) are fulfilled by the regulations inspected.

Which is why it must be considered unconstitutional, due to violation of paragraphs 1 and 4 of article 35 and paragraph 1 of article 26, in conjunction with article no. 18, no. 2, of the Constitution, the conservation measure for one year of traffic data and location data, resulting from the combination of the provisions of article 4 with article 6 of Law no. 32/2008, of 17 July".

Based on the reasons set out above, the Constitutional Court decides:

(a) Pronounce the unconstitutionality of the rule contained in article 2 of Decree no. 91/XV, of the Assembly of the Republic, published in the Gazette of the Assembly of the Republic no. 26, II Series A, of October 26 2023, and sent to the President of the Republic for promulgation as law, in the part in which it amends article 4 of Law no. 32/2008, of 17 July, combined with article 6 of the same law, as to the data provided for in paragraph 2 of the aforementioned article 6, due to violation of the provisions of paragraphs 1 and 4 of article 35 and paragraph 1 of article 26, in conjunction with paragraph 2 of article 18, all of the Constitution