By Diego Naranjo

One and a half years after the Court of Justice of the European Union (CJEU) invalidated the Data Retention Directive, the idea of having an EU data retention instrument is back on the table.

On 8 September 2015, officials from the European Commission (EC) told EDRi that, despite the evidence that we provided of the possible existence of illegal laws in Europe,, they had no intention of starting any infringement proceedings against Member States that are not complying with the CJEU judgement and are therefore in breach of the Charter of Fundamental Rights of the European Union. We were left without a clear idea of what their promise to “continue monitoring legislative developments at the national level” meant.

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As a result of the current chaotic situation, in which some countries stick to their existing data retention laws, while others invalidate them, the Council of the European Union has decided to take the initiative. In a note published on 24 November, the Council asked if this non-harmonised system (which does not seem to be a problem for the Guardian of the Treaties, the EC) should be changed with a new EU-wide data retention proposal from the European Commission. The Council seems to not have digested well the CJEU judgment, and asks the following question:

“Is the Data Retention Judgement to be interpreted in the sense that retaining bulk electronic communication data without specific reason is still allowed?”

The Council might find a hint of the answer to that question from the press release from the CJEU, published on 8 April 2014, right after the ruling declaring the Data Retention Directive invalid, where the Court stated that “the wide-ranging and particularly serious interference of the directive with the fundamental rights at issue is not sufficiently circumscribed to ensure that that interference is actually limited to what is strictly necessary” and that “by adopting the Data Retention Directive, the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality”.Despite this clear wording the Council has a question, which could be rephrased for rhetorical purposes as follows: What would Member States think about having invasive data retention laws (either their own ones, or a new EU norm to rule them all), if we ignore the CJEU case law and the Charter of Fundamental Rights altogether? While Member States take their time to respond, we assume the Commission will continue with their monitoring tasks.

As the Council of Europe’s Secretary General said: “Terrorists can’t destroy our democracies, only we can do that.” For that, at least, the EU is on the right track.

Note from the Council of the European Union on a general debate on data retention. 24.11.2015
http://data.consilium.europa.eu/doc/document/ST-14246-2015-INIT/en/pdf

European Digital Rights asks the European Commission to investigate illegal data retention laws in the EU
https://edri.org/edri-asks-european-commission-investigate-illegal-data-retention-laws/

European Commission will “monitor” existing EU data retention laws 29.07.2015
https://edri.org/european-commission-will-monitor-existing-eu-data-retention-laws/

EPP Press Release: Data Protection Directive trialogue should be suspended
http://www.eppgroup.eu/press-release/Data-Protection-Directive-trialogue-should-be-suspended?usebuid=6049

The Court of Justice declares the Data Retention Directive to be invalid (08.04.2014)
http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-04/cp140054en.pdf

(Contribution by Diego Naranjo, EDRi)

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