Dissertation committee:
1) κ. Γεώργιος Γιαννόπουλος, Καθηγητής Νομικής Σχολής ΕΚΠΑ
2) κ. Σπυρίδων Βλαχόπουλος, Καθηγητής Νομικής Σχολής ΕΚΠΑ
3) κ. Βασίλειος Κονδύλης, Καθηγητής Νομικής Σχολής ΕΚΠΑ
4) κα Λίλιαν Μήτρου, Καθηγήτρια Τμήματος Μηχανικών, Πληροφοριακών και Επικοινωνιακών Συστημάτων Πανεπιστημίου Αιγαίου
5) κα Βασιλική Χρήστου, Επίκουρη Καθηγήτρια Νομικής Σχολής ΕΚΠΑ
6) κ. Νικόλαος Σημαντήρας, Επίκουρος Καθηγητής Νομικής Σχολής ΕΚΠΑ
7) κα Φερενίκη Παναγοπούλου, Επίκουρη Καθηγήτρια Τμήματος Δημόσιας Διοίκησης Παντείου Πανεπιστημίου
Summary:
The present thesis deals with the issue of the intersection of the competences of the Independent Authorities involved in the protection of the privacy of electronic communications (ADAE, HDPA, EETT), approaching their existing competences and providing criteria for their clearer delimitation, in order to clarify the scope of activity of each Independent Authority.
In the first Chapter, the dimension of the problem is presented from the point of view of national and European legislation and experience and it is observed that both at the level of the conceptual elements of communication and at the level of its institutional safeguarding there is an intersection of competences not only between the above mentioned Independent Authorities, but also with the judicial, legislative and executive function. More specifically, the concept of communication is examined, the problems posed by the Over the Top (OTT) services as regards the competence of the HDPA and ADAE, the characteristic elements of communication and whether they constitute elements of privacy of communication or personal data and the related concepts of communication (security, confidentiality, integrity, availability), which constitute a criterion for delimiting the competences of these Independent Authorities. At the institutional level, from the point of view of the national law, the problems of interpretation posed by article 19 of the Constitution are examined, in particular the restrictions on the right to lift the privacy of communications by the judicial function (L. 2225/1994, L. 5002/2022, no. 1/2023 legal opinion of the honorary prosecutor of the Supreme Court), as well as the regulatory framework for lawful interception (PD 47/2005), which subjected the external elements of communication to its privacy. Also, at the level of criminal legislation, the involvement of the criminal legislator in the imposition of sanctions is examined and whether there is a violation of the principle of "non bis in idem", when ADAE imposes as an administrative sanction a high fine, which has the character of a penalty, according to the case law of the ECHR. At the level of European legislation, the transposition of the European Directives relating to electronic communications is examined and it is noted that their provisions raise the issue of the intersection of the competences of the Independent Authorities in these matters. This is due to the fact that, from the point of view of European experience, there is no specific authority, such as ADAE, responsible for protecting the privacy of electronic communications, but instead several regulatory authorities have joint competences in this area.
In the second Chapter, it is examined whether this intersection is justified in view of the competences of the Independent Authorities, the specificities of the national law and the case law. In this context, the legal and regulatory framework governing ADAE, HDPA and EETT is analysed and an intersection of their competences is identified in the exercise of their regulatory and sanctioning powers, as well as in matters of security of electronic communications networks and services, which is exacerbated by the involvement of state agencies, such as the National Cyber Security Authority. Moreover, there is a disagreement in the case law of the Supreme Court and the Council of State and in the legal opinions of the prosecutors of the Supreme Court as to the content of article 19 of the Constitution and whether it covers the whole of the communication or only the content of the communication and therefore whether the external elements of the communication constitute elements of privacy or personal data. Specific examples (the Digea incident and the ePrivacy Regulation) are also provided in order to further understand this issue. Finally, the justifying reasons for the intersection of the competences of the above Independent Authorities are presented, mainly the specificity of their purpose under the Constitution and the implementation of the principle of "non bis in idem" according to the case law of the Council of State, in order to highlight that despite the existence of a common regulatory framework for the Independent Authorities (L. 3051/2002), their unification is not acceptable neither by the Constitution nor by the case law of the Council of State, since they protect distinct legal goods, which must be more clearly delimitated by the legislator.
In this light, a critical view of the whole issue, as well as a series of proposals for its resolution, is formulated.
Keywords:
electronic communications, lifting of privacy, joint competence, delimitation of competences, ADAE, HDPA, EETT
