Belgian Constitutional Court rules against data retention

On 12 June, following two actions for annulment brought independently, the Belgian Constitutional Court ruled against the mass collection of communications metadata. This ruling is line with a recent ruling from the Court of Justice of the European Union (CJEU) invalidating the directive that inspired the Belgian law.

The Data Retention Directive (2006/24/CE) adopted in the aftermath of the terrorist attacks in Madrid (2004) and London (2005) – and invalidated in 2014 -required telecommunication service providers or operators to retain communications metadata on each and every customer for between 18 months and two years. In July 2013, the Belgian Federal Parliament adopted, under an emergency procedure, a law and a decree transposing the Directive into Belgian law.

In February 2014, NURPA, datapanik.org, EDRi member Liga voor Mensenrechten and the Ligue des Droits de l’Homme (LDH) jointly initiated a crowdfunding campaign to finance an action for annulment before the Constitutional Court. The success encountered by the campaign – the 5 000 euro goal was exceeded in a couple of weeks – has shown how much citizens value their privacy.

In the ruling, the Belgian Constitutional Court reaffirms the importance of the right to privacy under the Article 22 of the Belgian Constitution, and recalls that any limitation of this right must be proportionate. Belgium joins the growing list of Member States in which the national transposition of the Directive was challenged successfully. It should be noted that it is currently not clear whether the European Commission plans to introduce a new proposal for the retention of communications data or not.

“This constitutional ruling should have the effect of a shock to our governments: they cannot expand indefinitely the massive surveillance of their citizens. There is an increasingly obvious imbalance between the respect for privacy and the legitimate need for security. This is what prompted LDH to make data protection and privacy our main themes for 2015,”

said Alexis Deswaef, President of LDH.

“The ruling of the Constitutional Court brings a breath of fresh air in a nauseating context where murderous acts of a few terrorists are enough to destroy the fundamental principles of rights and freedoms of our democracies. This should remind everyone that rights and freedoms are a constant struggle, even more so when the trend in Europe is the stacking of securitarian measures, as sadly demonstrated by the French case,”

concluded André Loconte, spokesman of NURPA.

The Constitutional Court repeals the transposition of the data retention directive (12.06.2015)
http://nurpa.be/actualites/2015/06/const-court-repeals-data-retention-belgium

Avis de la Cour de justice de l’Union au sujet de la directive sur la conservation des données (12.06.2015)
http://nurpa.be/actualites/2013/12/avis-CJUE-data-retention#contexte-belge

Data retention in Belgium
http://stopdataretention.be/en/

Ruling in Dutch
http://nurpa.be/files/20150611_ruling-const-cour-dataretention-belgium_nl.pdf

Ruling in German
http://nurpa.be/files/20150611_ruling-const-cour-dataretention-belgium_de.pdf

Status of data rentention Directive transpositions accross Member States
http://wiki.vorratsdatenspeicherung.de/Transposition

EU executive plans no new data retention law (12.06.2015)
http://www.reuters.com/article/2015/03/12/us-eu-data-telecommunications-idUSKBN0M82CO20150312

(Contribution by NURPA, Belgium)