Data Retention in Austria: Constitutional Court turns to the CJEU

By EDRi · January 16, 2013

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Deutsch: [VDS in Österreich: Verfassungsgericht wendet sich an Europäischen Gerichtshof |]

The Austrian Constitutional Court has reservations that the EU Directive
on the Retention of Data could be incompatible with the European Charter
of Fundamental Rights. For this reason, the 14 constitutional judges
have addressed the Court of Justice of the European Union (CJEU),
submitting questions on the interpretation of the Charter of Fundamental
Rights of the European Union.

This request for a preliminary ruling has been prompted by applications
and/or complaints addressed to the Constitutional Court against data
retention. To date, the province government of Carinthia, a
telecommunications company employee, and a total of some 11 000 private
individuals have turned to the Constitutional Court.

The data retention obligation came into force in Austria on 1 April
2012. Shortly after, the Austrian AK Vorrat started a campaign to file a
complaint at the Constitutional Court. Within a few weeks, 11 139
Austrians supported the action and declared their will to affiliate the

On 18 December 2012, the Constitutional Court Judges announced that they
shared the reservations of these citiziens. “In the overwhelming number
of cases, data retention concerns persons who do not cause any ground
for their data being retained. The authorities capture the data of these
individuals and are then in possession of information about their
private behaviour. In addition, there is an heightened risk of abuse”,
explains Gerhart Holzinger, president of the Austrian Constitutional
Court, continuing: “The Constitutional Court is under an obligation to
turn to the CJEU if it has doubts on the interpretation of the Union
law. We have doubts that the EU Directive on Data Retention is really
compatible with the rights guaranteed by the Charter of Fundamental
Rights of the European Union”.

This decision to seek a preliminary ruling from the CJEU has a
suspensive effect on the proceedings pending with the Constitutional
Court in Austria. Once the CJEU has ruled on the questions submitted to
it, the Constitutional Court will resume its deliberations. While the
matter has been referred to the CJEU, data retention remains in force in
Austria. The Constitutional Court says it does not have any means to
provisionally suspend the relevant provisions at its own initative.

The Court’s decision is a very important stage win for the AK Vorrat
activists and the concerned citizens. Lawyer Ewald Scheucher who filed
the complaint on behalf of the 11 139 Austrians considers the decision
as the best possible result – as the CJEU is the supreme body on this
matter. Thus, it is the European Court which has the power to sound the
death knell for data retention in Europe.

Constitutional Court has reservations against data retention and turns
to the CJEU (18.12.2012)

Judgement (only in German, 18.12.2012)

English version will be available at

AK Vorrat: Constitutional Court shares reservations of 11,139 citizens
(only in German, 20.12.2012)

(Contribution by Alice Sedmidubsky –