EU Data Retention Directive Declared Null and Void: What is Next and How The Ruling Has Been Received in the Member States

The Court of Justice ("CoJ") of the European Union ("EU") has declared the Data Retention Directive 2006/24/EC ("Directive") to be invalid (the "Decision"). We provide for a summary of the Decision and discuss its possible consequences, including reactions to the judgment in Germany, the United Kingdom, France, Italy, Spain, the Netherlands and Belgium.

(Press release of the Court of Justice available under http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-04/cp140054en.pdf)

Full text of the Decision available under
http://curia.europa.eu/juris/documents.jsf?num=C-293/12.)

The Decision and its consequences

The Data Retention Directive basically provides that certain traffic and location data as well as related data necessary to identify a subscriber or user must be retained by providers of publicly available electronic communications services or of public communications networks for a period of at least six months and for no longer than two years from the date of the communication.

The CoJ regarded this as a particularly serious interference with the fundamental rights to respect for private life and the protection of personal data, since the retained data procure precise information about the private lives of the persons whose data are retained. This interference is not as such unlawful. The CoJ acknowledged that the retention of data for the purpose of allowing the competent national authorities to have possible access to those data, genuinely satisfies an objective of general interest, namely the defense against serious crime and international terrorism.

But how the Data Retention Directive was adopted exceeds by far the limits set by the principle of proportionality, for the following reasons:

• The Directive fails to set out objective criteria defining when the retained data may be accessed by authorities. It is not sufficiently ensured that an offence must be serious enough to justify the interference, and access to the data is not made dependent on prior review by a court or an independent administrative body.
• The data retention period is imposed without making a distinction between the categories of the data on the basis of the persons concerned, or the usefulness of the data for the purposes of the objective pursued.
• Sufficient safeguards, designed to protect the data against the risk of abuse and against any unlawful access and use, are missing.
• The Directive does not require that the data are to be retained within the EU. Therefore, security controls by an independent authority, carried out on the basis of EU law, cannot be ensured. Referencing this requirement is seen by some as a reaction to the NSA scandal.

 
Since the Directive has been declared invalid from the outset, the EU member states are no longer required to transpose it into their national laws. The member states nevertheless may introduce laws on data retention on a national level, provided those are in line with the relevant constitutional requirements. Laws on data retention already existing in the member states remain valid as well (save for possible constitutional challenges they are or might be facing on a national level).

The Decision also leaves the possibility to propose a new revised Directive, since data retention as such has not been declared unlawful. Currently, it seems that the EU Commission will take its time to analyze the complex ruling and that it is rather for the new EU Commissioners who will take office in November 2014 to make a political decision on a proposal for a new data retention directive. One can also safely assume that the Decision will influence the ongoing discussions regarding the proposed General Data Protection Regulation which has been recently adopted by the EU Parliament and is currently struggling to be adopted by the European Council.

Germany

The German legislature had transformed the Directive by means of an amendment of the German Telecommunication Act effective 1 January 2008 after a lengthy political debate. Providers of publicly accessible telecommunication services had become obligated to retain traffic data for general law enforcement reasons for six months following the relevant communication act. Although Germany had adopted the minimum retention period provided by the Directive on March 2, 2010, the German Federal Constitutional Court declared the new legislation null and void. Similar to the CoJ Decision, the court did not regard the concept of data retention unconstitutional as such, but took issue with the way the Directive was implemented in Germany. It ruled that the new legislation by far exceeded the limits set by the constitutional right of informational self-determination of the individual in that it did not narrow down the scope of use of the retained data sufficiently, e. g., by not limiting it to the prosecution or prevention of certain severe criminal acts.

In the new Telecommunication Act enacted in 2012 the provisions on data retention were simply deleted and not replaced by a new data retention concept. Treaty violation proceedings which the EU Commission therefore launched against Germany have lost their grounds entirely, on account of the Decision of the CoJ. In fact, German law is currently fully in line with the Decision. However, on the political stage a debate has already been kicked off as to whether Germany should now implement a new data retention policy on a national level in spite of the annulment of the Directive. Based on the first reactions to the Decision, by the Federal Ministry of Justice (a social democrat) and the Federal Ministry of Internal Affairs (a member of the conservative party), it can be anticipated there will be a compromise at some point in time. But a new legislative initiative will not start in the short term, and in any case will be much more moderate than it was in the first instance.

United Kingdom

The Directive was implemented in the U.K. for fixed and mobile telephony in 2007, and for the internet in 2009. It applies a 12 month retention period to public communications providers. Access to retained communications data is controlled by the Regulation of Investigatory Powers Act 2000. These retention requirements and access controls would have been updated by the draft Communications Data Bill and applied to a wider range of persons, giving greater access to data for public authorities. This legislation has not passed and was criticized by the U.K. Information Commissioner and other observers of privacy issues. In April 2013, the Deputy Prime Minister announced that his party would not support the proposals as they were unworkable and disproportionate.

With the decision of the CoJ, changes will be needed to the U.K. regulations as well as any proposed new legislation. However, the process of change is likely to be slow. In practice, the Directive will first need amendment or replacement. While the U.K. government could voluntarily make changes to the existing law, this seems unlikely as intelligence data is perceived as being particularly valuable. Debate about data retention in the U.K. has concentrated on the draft Communications Data Bill rather than the Data Retention Directive. However, the CoJ decision will give the latter more prominence. Sarah Ludford, the Liberal Democrat Home Affairs Spokesperson in the European Parliament, has already said, "This landmark judgment throws a spanner in the works of increased state surveillance."

France

In France, the Data Retention Directive was implemented by French Decree No 2006-358 dated March 24, 2006 on data retention of electronic communications, which created Articles R. 10-11 et seq of the French Posts and Electronic Communication Code. Such provision sets forth a one year data retention period from the date of producing and processing the relevant data.

In 2007, several associations of electronic communications services providers initiated a claim aimed at obtaining the cancellation of French Decree No 2006-358 on the basis, notably, of a violation of the right to privacy. The French Conseil d'Etat rejected such claim. The judges considered that, in light of the public security interest followed by French Decree No 2006-358, the interference of data retention with private life was not sufficiently disproportionate. The decision of the CoJ is hence very likely to rekindle discussions, all the more given that the legal basis relied upon before the French Conseil d'Etat (article 8 of the European Convention on Human Rights) differs from the one put forward before the CoJ (articles 7, 8 and 11 of the Charter of Fundamental Rights of the EU). In addition, the cancellation of (at least part of) the legal basis on which is based French Decree No 2006-358 may force the French government to repeal such Decree.

Italy

In Italy, the Directive has been implemented through an amendment to the Privacy Code effective as of August 22, 2009. Under the Privacy Code, providers of a public communications network or a publicly available electronic communications service are allowed to process traffic data strictly necessary for (i) invoicing purposes or, (ii) payment purposes (in case of interconnection), for a period of up to six months. For the purpose of preventing or prosecuting criminal offences, the above mentioned providers must retain "telephone traffic data" and "electronic communications traffic data" for 24 months or 12 months, respectively. A 30 day retention period applies in case of data related to unsuccessful calls processed on a provisional basis.

In the lack of both a new European directive on the point and a new Italian law which abolishes the data retention clause set forth in the Privacy Code, the data retention obligations set forth therein will continue to be in full force and effect. Nevertheless, the Decision might be the arm to justify the launching of legal actions before Italian courts aimed at avoiding the data collection by providers. At the political level, the Decision seems to have been welcome. For instance, the President of the Italian Data Protection Authority commented on the Decision, pointing out the importance of the related contents as it "balances security and privacy which had been materially disaligned during the last few years".

Spain

The Directive was implemented in Spain through Law 25/2007, relative to retention of data relating to electronic communications networks and public communication, effective from November 2007. Such law is only applicable to electronic communications operators and provides for a retention period in respect of traffic data of 12 months from the date on which the communication occurred.

From a legal point of view, the Decision of the CoJ has no immediate effect in Spain. It only invalids the Data Retention Directive, but not the national laws implementing it. Nevertheless, at a national level, the Decision of the CoJ may result in filings against the application of the Spanish national legislation in force, in particular since the enactment of said Law 25/2007 was already rather controversial. In addition to possible legal consequences, the Decision will also be reviewed closely and taken into consideration by the Spanish Data Protection Authority in its application of the Spanish data protection law, as the authority's director declared.

The Netherlands

The Directive was implemented in the Netherlands through an amendment to the Telecommunications Act, effective from September 1, 2009. Under the Dutch Act, traffic data related to mobile communications have to be retained for one year, as from the relevant communication act. For internet traffic data a retention period of six months is prescribed. The data retention requirements have been the subject of significant criticism, from the affected service providers, privacy advocates, and the Dutch Data Protection Agency. The Dutch State Secretary of Security and Justice in response to the Decision stated that Dutch providers will be required to continue to retain traffic data for the coming eight weeks while the government studies the Decision. However, various parties in parliament have already stated that the data retention provisions should be abolished completely or in part, and further challenges seem likely.

Belgium

In Belgium, the Directive has been implemented in a law of July 30, 2013 which foresees a retention period of one year as from the relevant communication act. Such law has been challenged before the Constitutional Court by the French Bar Association and the Human Rights League. The Decision of the Court of Justice is thus likely to have an impact on such procedure and may ultimately trigger the annulment of the Belgian law by the Belgian Constitutional Court.