This article is also available in:
Deutsch: [Niederländischer Senat “enttäuscht” über Evaluierung der VDS-Richtlinie |]

The same week the Dutch Senate approved a long-anticipated shortening
of mandatory retention periods for internet data to six months, it
published its correspondence with the Dutch Minister of Security and
Justice on the Data Retention Directive evaluation by the European
Commission. In a 31 May 2011 letter to the Minister, the Senate
considers the evaluation report “unsatisfying”, “unconvincing” and
“disappointing” and explicitly asks the Minister whether the Directive
should be withdrawn.

Most notably, the Senate concludes that the report does not adequately
demonstrate the necessity and proportionality of the Directive
(2006/46/EC) and that it fails to prove a “pressing social need” for the
Directive, as the E-Privacy Directive (2002/58/EC) already provides for
storage of certain traffic data for billing and marketing purposes. The
Senate also voiced reservations on its effectiveness. All these criteria
– necessity, proportionality, pressing social need, effectiveness – have
to be met in order to meet the safeguards of the European Convention on
Human Rights (ECHR).

The Senate also criticises the report for “too easily sidestepping”
several Constitutional Court cases across the European Union, in which
implementation laws were ruled unconstitutional or the principle of
blanket data retention itself was deemed in breach of the ECHR. And it
points out that the Dutch submission to the evaluation is particularly
unsatisfying and “methodologically questionable”. Finally, it reiterates
the fact that historic traffic data were already available after the
London and Madrid bombings, without a Directive mandating blanket
retention schemes being in place. On the basis of its analysis, the
Senate asks the Minister whether the withdrawal of the Directive should
be considered.

The Minister Ivo Opstelten responded in a 27 June letter that the
Dutch government still thinks data retention “plays an important role in
the law enforcement effort”, but he conveniently delays any further
explanation until the European Commission proposes changes to the
Directive. Interestingly, Mr. Opstelten suggests that the Senate write a
letter directly to the Commission and/or Parliament to voice its concerns.

Since 2004, the Senate has been critical of data retention and hesitant
to implement the Directive in Dutch law in 2009. But in this recently
published letter, the Senate takes an unprecedented explicit and
unanimous stance. As The Netherlands lacks a Constitutional Court to
definitely rule on the constitutionality of laws, the Senate has an
important say in whether Dutch legislation breaches constitutional
safeguards. Its critique of the evaluation report could signal that it
will, in due course, call upon the government to take a critical stance on
amending or annulling the Directive during negotiations in the Council.

In anticipation of the Commission to hide the numerous failures of the
Directive by omission and dissemblance, EDRi produced a “shadow report” on
17 April 2011, providing a more accurate assessment of the Directive, using
the Commission’s own methodology.

Correspondence between the Dutch Minister of Security and Justice and
the Senate on the Data Retention Directive evaluation by the European
Commission (only in Dutch, 29.06.2011)

Official data retention evaluation report (18.04.2011)

EDRi’s Shadow report on the evaluation (PDF) (17.04.2011)

(Contribution by Axel Arnbak – EDRi-member Bits of Freedom)