Cauza Bărbulescu c. România sau cât de echitabil mai rămâne echilibrul fără analiza necesității
The case Bărbulescu v. Romania, or the fairness of an equilibrium that doesn’t take into account necessity

Summary/Abstract: This article discusses the proportionality test in the European Court of Human Rights’ decision in the Bărbulescu v. Romania case, and its consequences for one of the most intimate aspects of private life: Internet communications with close persons. The classical proportionality test involves three stages (sub-tests): appropriateness, necessity and balancing.This test takes into account all the case circumstances. The necessity stage, which I emphasize, checks for a less restrictive appropriate measure to achieve the legitimate aim. In this respect, the contested measure is compared to other measures that could achieve the same aim, at the same level, but with lower costs for the limited right. However, the Court has developed over the years its own proportionality test, a different test from the classical one. It sometimes omits the necessity stage. This phenomenon is visible in Bărbulescu v. Romania.In this case, the applicant, a private company employee, was fired because he used a company computer for personal purposes. The employer monitored and recorded for some period of time the messages the applicant had exchanged with his fiancée and his brother. Was this measure necessary? This article seeks to demonstrate that in such sensitive cases, which relate to the most intimate aspects of private life, the Court should actuate the necessity sub-test and highlight its findings to provide the applicants with an effective guarantee.

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