Sweden argues that transposing data retention directive is unnecessary
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Deutsch: Schweden hält Umsetzung der VDS-Richtlinie für überflüssig
On 5 September 2011, the Swedish government responded to the European Court of Justice after the Commission referred Sweden to the Court for failing to transpose the Directive on Data Retention (2006/24/EC).
Sweden's main argument is that it is unnecessary to transpose the Data Retention Directive, considering the practical effects of existing Swedish legislation. This implicitly means that transposition would be contrary to the European Convention on Human Rights and the Charter of Fundamental Rights, both of which require restrictions on fundamental rights to be necessary and proportional.
The Directive on Data Retention 2006/24/EC was adopted in 2006 and the Member States had until 15 September 2007 to transpose it into the national law, and until 15 March 2009 to implement the retention of communications data relating to Internet services. The Directive concerns the storage of traffic and location data resulting from electronic communications. Traffic and location data retained by Internet service providers and phone companies will be made available only to national law enforcement authorities in specific cases and in accordance with the national law. However, retention periods, purpose limitation and access requirement vary vastly across the EU.
The European Court of Justice found that Sweden failed to fulfil its obligations to implement the Data Retention Directive in its national legislation on 4 February 2010. Despite this first ruling, Sweden still has not transposed the Directive 2006/24/EC. In the absence of a precise timetable for the transposition of the Directive, the Commission decided to send a letter of formal notice to Sweden in June last year. The Commission asked Sweden for details on the measures Sweden planned to implement the Directive and comply with the Court's decision.
Sweden informed the Commission on 21 January 2011 that draft legislation had been submitted to its Parliament in order to transpose the Directive. The legislation was to be adopted in mid-March. However, the Parliament deferred the vote on the draft legislation implementing the Directive on Data Retention for a year, due to the opposition from a minority of parliamentarians. They used a constitutional rule allowing one-sixth of the MPs to suspend the adoption of a proposed legislation.
Following this suspension of the legislative process, the European Commission swiftly referred Sweden for a second time to the European Court of Justice, requesting it to impose financial penalties (Case C-270/11). The Commission asked the Court to impose a daily penalty of 40 947 Euros/day after the second ruling and a lump sum of 9 597 Euros/day for each day between the first and the second ruling. The ECJ will have to determine the level of sanctions and if it will take the form of a penalty and/or a lump sum.
In its response to the ECJ, Sweden argues that the penalties are disproportionate considering firstly the fact that Sweden does not often fail to fulfil its implementation obligations regarding European directives and secondly that some other Member States likewise fail to implement the Directive without being penalised by any financial penalties.
The Swedish government also indicated that since the first ruling, it has taken all procedurally possible measures to implement the Directive. The delay is due to political and legal matters with regards to the sensitive subjects the Directive is dealing with, such as the right to privacy and those debates are delaying the legislative process. It further points out that this controversy is not limited to Sweden.
Moreover, according to Sweden, the failure to implement the Directive does not create any barriers for the Single Market. Bearing in mind the Commission's own assertion of the low costs of implementing the Directive (as described in the implementation report), this seems to be difficult for the Commission to deny. According to Sweden, the harmonisation realised by the Directive on Data Retention is only minimal and does not appear to be crucial in achieving competition on the Single Market. In addition, the Directive does not say who finance data retention.
It finally appears that the Swedish Government believes that Directive 2002/58/EC on Privacy and Electronic Communications gives the Member States the ability to adopt legislation covering the field of the Data Retention Directive when necessary and that the 2006 Directive's implementation in Sweden is therefore meaningless. The Swedish government especially underlines that the Swedish crime prevention authorities already have sufficient access to data even without full the implementation of the Directive. Furthermore, the differenceasthe implementations across the EU show the limits of the Data Retention directive and create a lack of harmonisation.
According to Sweden, further implementation of the Data Retention Directive is superfluous and unnecessary. The question remaining now is whether the European Court of Justice will follow the Swedish defence on the "necessity" of implementing the Data Retention Directive and the Directive's failure to achieve the task on which its legal base is built - harmonisation. The Commission now faces an unenviable task - it either forces a sovereign Member State to impose unnecessary (and therefore illegal) restrictions on fundamental rights or it accepts the challenge of finally acknowledges the failure of the Directive and the inevitable battle with the Council that will result from any serious effort to fix the broken legislation.
Data Retention Directive 2006/24/EC (15.03.2006)
Judgement of the Court Case C-185/09 (4.02.2010)
Commission refers Sweden back to Court to transpose EU legislation
European Commission Application (31.05.2011)
Sweden's response to the ECJ - Case C-270/11 - (5.09.2011) (available only
(Contribution by Marie Humeau - EDRi)