By Joe McNamee

On the 8th of April, the European Court of Justice ruled that Data Retention Directive was incompatible with European law and declared it invalid. Recent comments by Commissioner Cecilia Malmström (whose Home Affairs portfolio covered the Directive) appear to claim that she was always aware of the incompatibility of the Directive with European law.

Addressing journalists in Brussels on Tuesday, DN.se reporter Johan Schück observed the Commissioner say that “the criticism from the ECJ is similar to the objections she herself had against the directive during her time as a MEP”.

More explicitly (albeit also more spuriously), her press release on the ruling “confirms the critical conclusions in terms of proportionality of the Commission’s evaluation report of 2011 on the implementation of the data retention directive”

These two statements that the Commissioner was aware of the incompatibility (whether since her time as a member of the European Parliament or just since 2011) suggest that she failed to respect both her own personal obligations as a Commissioner and the duties of the Commission itself.

On a personal level, Commissioner Malmström swore an oath at the Court in Luxembourg “to respect the Treaties and the Charter of Fundamental Rights of the European Union in the fulfillment of all my duties”. On that day, Commission President Barroso said “the oath of independence and respect for the EU Treaties is more than a symbolic act. The European Commission is a unique institution and the Commissioners have today made clear that they will uphold all the principles and values enshrined in the Treaties and the Charter of Fundamental rights”. All of the principles and values…

In reality, it seems likely that Ms Malmström would have reformed the Directive, if it had not been made very clear to her by Member States that they would not accept a revision of the Directive. She said this unequivocally in a plenary session of the European Parliament in 2012 that she believe that Member States “will not accept any proposal to abolish it.” However, if this is the reason why she did not undertake the revision that she apparently thought was necessary, this too would have been in breach of her oath to “be completely independent” in the carrying out of her obligations and “to neither seek nor take  instructions from any government or from any other institution, body, office or entity.”

On the other hand, maybe, despite the Commissioner’s claims about having been fully aware of the incompatibility of the measure with European law, she might just be innocent of her implicit arguments against herself. After all, in December 2010, she stated:

We have to recognise that data retention is here to stay, and for good reasons. Access to telecommunications data are, at least in some cases, the only way of detecting and prosecuting serious crime. And in some cases it can be vital to exclude individuals from crime scenes and clearing them of suspicion. We do need data retention as an instrument to maintain security in our Member States. – Conference in Brussels, 3rd December 2010.

Similarly, in April 2011, she argued that “overall, the information we have received indicates that data retention subject to EU regulation is indeed a necessary measure”.

So, she knew, she didn’t know, she might have known, she might have wanted to do something, but she believed she would not be supported, but she has a legal obligation to be act independently. To borrow a quotation from a different political era – we are given the impression of a Commissioner who is in office but not in power.

For some historical context, see:
29 February 2012: ENDitorial: Member States turn a drama into a crisis for Commissioner Malmström on data retention
April 2011: Shadow implementation report for the data retention Directive
6 April 2011: ENDitorial: Data retention: Is the EC trying to dig itself out of a hole?