By Kirsten Fiedler

The Advocate General of the European Court of Justice today issued a devastating Opinion on the European Directive that requires European telecommunications providers to store details of all electronic communications for between six months to two years. The case was brought before the Court by EDRi-member Digital Rights Ireland and AKVorrat.at in close cooperation with Austrian EDRi members IfNf and VIBE.

The Advocate General’s Opinion states that the Directive “is as a whole incompatible with Article 52(1) of the Charter of Fundamental Rights of the European Union”. In particular, the measure is not necessary and does not “genuinely meet objectives of general interest recognised by the Union. Furthermore, Article 6 of the Directive is in violation of Articles 7 and 52(1) of the Charter.

“The failings of the Directive 2006/24/EC have been crystal clear since it was initially proposed by the European Commission. Neither at the time that the proposal was initially made, nor at any time since, has the Commission been able to produce credible evidence that the measure was necessary,” says Joe McNamee, Executive Director of European Digital Rights.

Faced with abuses of the data being stored under the Directive – which it detailed in its own evaluation report – the European Commission did nothing.

Faced with cases where democratic governments decided against implementing the flawed and unnecessary legislation was not fully implemented, the Commission took legal action against Austria, Greece, Germany, Ireland and Sweden. As a result, financial penalties were imposed on several of these countries.

The Opinion issued today is a particular embarrassment to the current Home Affairs Commissioner Cecilia Malmström. Even before the Commission had prepared its implementation report on the Directive (breaching its own legal obligations by being over six months late), Malmström confirmed that “data retention is here to stay”. Even after the abuses and bad practice were exposed in her own report, she took no steps to address the problems – but remained stubbornly fixated on ensuring that the Directive was enforced everywhere in the EU.

“We believe that the European Commission is now morally obliged to return all financial penalties unjustly imposed as a result of failures of implement the Directive. We urge the Member States to use any returned funds in appropriate projects for the protection of fundamental rights,” adds Joe McNamee.