On 16 December 2009, the UK Supreme Court held a state-funded Jewish school to be guilty of discrimination based on ethnic origin in the way it operated its admissions policies. The Jewish Free School (JFS), one of the top-performing schools in the country, refused a place to a thirteen year old boy, M., because it did not consider him Jewish. It is a fundamental tenet of traditional Judaism that to be Jewish one must be born of Jewish mother or to a woman who converted into Judaism prior to his/her birth. M.'s father was Jewish by birth, but his mother, who was originally an Italian Catholic, had converted to Judaism with the criteria set by a non-orthodox branch of Judaism. The School's admissions standards only recognized orthodox criteria for conversion as valid, hence deeming neither M. nor his mother to be Jewish.

About one year after the European Court of Justice had handed down its notorious decision on the Data Retention Directive concerning telecommunications traffic data, it was for the German Federal Constitutional Court to take a final decision on the German implementation of the Directive. So far, the latter Court had only issued temporary injunctions restricting data retrieval by the public authorities. Now, the final ruling by the Court has been anxiously awaited since the complainants had not only challenged the German provisions implementing the Directive, but also the Directive itself. Thus, the question was raised whether the Court would finally, for the first time in its history, initiate a preliminary ruling procedure according to Article 267 of the Treaty on the Functioning of the European Union.

Introduction

Each time users connect to the internet or make a phone call, they leave ‘digital fingerprints’ which may turn out to be useful for identifying people involved in a crime or an act of terrorism. This is why there is great interest by law enforcement authorities in gaining access to traffic and location data, relying on the forced co-operation of telecommunication and internet providers. However, the effectiveness of compelling these service providers to retain such data for the purpose of fighting crime has been questioned. Moreover, data retention obligations interfere with the right to privacy of individuals, as protected by Article 8 European Convention of Human Rights (ECHR); therefore, they may be imposed only for a legitimate objective, i.e. to protect citizens' safety, and in full respect of the principle of proportionality.

Post 9/11 debate – John Locke important reference – Modern notion, transformation of sovereignty – From legal to political nature of the exception – From temporary to permanent – From preservation of realm to defense of life – Change of the experience of time – Locke ambivalent, transition to modern understanding – Necessity, trust and resistance – Logic of exceptionality – Locke's remaining relevancew