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On 9 July 2013, the European Court of Justice will have a hearing before
the Grand Chamber with two joined cases on the validity of the data
retention directive (2006/24/EC).
The two cases were brought by the Irish High Court (C-293/12 Digital
Rights Ireland) and by the Austrian Constitutional Court (C-594/12
Seitlinger and Others) and refer to the compatibility of the data
retention directive with Articles 7, 8 and 11 of the Charter of
Fundamental Rights of the European Union.
The ECJ has advised the parties that the hearing will focus on Articles
7 and 8 of the Charter. The judges will explore the purpose and benefits
of data retention.
The parties involved have received a series of questions from the Court
to be answered at the hearing. Here they are:
1 The parties are invited to comment at the hearing as to whether
the area covered by the Directive 2006/24 data retention can serve the
purpose of detection and prosecution of serious crime. You will be asked
in this context to an explanation of the impact it has that many options
for anonymous use of electronic communications services exist.
2 The parties will be asked to explain at the hearing as to whether
and to what extent it is possible, using the information to create
personal profiles and use, from which – independent of the question of
the legality of such a process – the social and professional environment
a person, their habits and activities are described.
3 As is – especially considering the answer to the question II.2 –
the interference with the guaranteed under Articles 7 and 8 of the
Charter of Fundamental Rights to assess individuals whose data was stored?
4 The parties will be asked in light of the case law of the Court
that the European Union legislature is obliged to base its choice on
objective criteria to answer the following questions at the hearing:
a. In a What objective criteria the EU legislature based its decision
in adopting Directive 2006/24?
b. On what data the legislature was to assess the usefulness of data
retention for the detection and prosecution of serious crime?
c. Due to data which the legislature could assume that storage of
the data over a period of at least six months is required?
d. Are there any statistics which suggest that the detection and
prosecution of serious crime since the adoption of the Directive has
5 If a protected by the legal order of the EU fundamental rights and
protected by the legal system in general interest objective against each
other, is the proportionality requires a restriction of the fundamental
right in accordance with the case law of the Court that the requirements
for the protection of the law with the relevant target be reconciled.
The necessary proper balance must be made before the adoption of the
measure in question. Moreover, the exceptions and restrictions must be
limited to the protection of personal data to the absolute minimum.
– Taking account of this case law, the parties are asked to answer the
following questions at the hearing:
a Has the European Union legislature made before the adoption of
Directive 2006/24, a proper balance between the requirements of the
protection of fundamental rights and the standing at issue in the
present case, the public interest? He has in this context the importance
of guaranteed under Articles 7 and 8 of the Charter of Fundamental
Rights of fundamental rights and the fact that numerous opportunities
for anonymous use of electronic communications services are taken into
b. Can be assumed, given the importance of the fundamental rights
concerned that the security measures adopted by the data retained in the
legislature, necessary and sufficiently precise to prevent any possible
abuse? Is it possible in the face of such arrangements that the provider
of electronic communications services as defined in Directive 2006/24,
the required data storage to other outsourcing service providers in
other Member States or in third countries, particularly because of the
cost of that storage? What impact does such outsourcing of data storage
on the security of data?
c. Can – especially considering the answer to the question to 11.5.3
– be assumed that the legislature has limited the interference with the
fundamental rights concerned to the absolute minimum?”
The lawyers of all parties, as well as the Austrian Data Protection
Commission will be given 15 minutes speaking time at the
hearing. Following the comments of several EU Member States,
representatives of the EU Commission and the Council of Ministers, Peter
Hustinx, the EU commissioner for data protection, will have the last word.
A final judgement in this case can be expected next year from ECJ.
Data retention: European Court hearing on 9 July – provides
“revolutionary issues” (only in German, 26.06.2013)
“As large a charter as the wind”?* ECJ to hold hearing in data retention
cases, focusing on Charter of Fundamental Rights (15.06.2013)
They want to know everything (only in German, 26.06.2013)
EDRi-gram: EC goes after governments for not implementing data retention
Data Retention in Austria: Constitutional Court turns to the CJEU