Sweden argues that transposing data retention directive is unnecessary

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On 5 September 2011, the Swedish government responded to the European Court
of Justice after the Commission referred Sweden to the Court for failing to
transpose the Directive on Data Retention (2006/24/EC).

Sweden’s main argument is that it is unnecessary to transpose the Data
Retention Directive, considering the practical effects of existing Swedish
legislation. This implicitly means that transposition would be contrary to
the European Convention on Human Rights and the Charter of Fundamental
Rights, both of which require restrictions on fundamental rights to be
necessary and proportional.

The Directive on Data Retention 2006/24/EC was adopted in 2006 and the
Member States had until 15 September 2007 to transpose it into the national
law, and until 15 March 2009 to implement the retention of communications
data relating to Internet services. The Directive concerns the storage of
traffic and location data resulting from electronic communications. Traffic
and location data retained by Internet service providers and phone companies
will be made available only to national law enforcement authorities in
specific cases and in accordance with the national law. However, retention
periods, purpose limitation and access requirement vary vastly across the
EU.

The European Court of Justice found that Sweden failed to fulfil its
obligations to implement the Data Retention Directive in its national
legislation on 4 February 2010. Despite this first ruling, Sweden still has
not transposed the Directive 2006/24/EC. In the absence of a precise
timetable for the transposition of the Directive, the Commission decided to
send a letter of formal notice to Sweden in June last year. The Commission
asked Sweden for details on the measures Sweden planned to implement the
Directive and comply with the Court’s decision.

Sweden informed the Commission on 21 January 2011 that draft legislation had
been submitted to its Parliament in order to transpose the Directive. The
legislation was to be adopted in mid-March. However, the Parliament deferred
the vote on the draft legislation implementing the Directive on Data
Retention for a year, due to the opposition from a minority of
parliamentarians. They used a constitutional rule allowing one-sixth of the
MPs to suspend the adoption of a proposed legislation.

Following this suspension of the legislative process, the European
Commission swiftly referred Sweden for a second time to the European Court
of Justice, requesting it to impose financial penalties (Case C-270/11). The
Commission asked the Court to impose a daily penalty of 40 947 Euros/day
after the second ruling and a lump sum of 9 597 Euros/day for each day
between the first and the second ruling. The ECJ will have to determine the
level of sanctions and if it will take the form of a penalty and/or a lump
sum.

In its response to the ECJ, Sweden argues that the penalties are
disproportionate considering firstly the fact that Sweden does not often
fail to fulfil its implementation obligations regarding European directives
and secondly that some other Member States likewise fail to implement the
Directive without being penalised by any financial penalties.

The Swedish government also indicated that since the first ruling, it has
taken all procedurally possible measures to implement the Directive. The
delay is due to political and legal matters with regards to the sensitive
subjects the Directive is dealing with, such as the right to privacy and
those debates are delaying the legislative process. It further points out
that this controversy is not limited to Sweden.

Moreover, according to Sweden, the failure to implement the Directive does
not create any barriers for the Single Market. Bearing in mind the
Commission’s own assertion of the low costs of implementing the Directive
(as described in the implementation report), this seems to be difficult for
the Commission to deny. According to Sweden, the harmonisation realised by
the Directive on Data Retention is only minimal and does not appear to be
crucial in achieving competition on the Single Market. In addition, the
Directive does not say who finance data retention.

It finally appears that the Swedish Government believes that Directive
2002/58/EC on Privacy and Electronic Communications gives the Member States
the ability to adopt legislation covering the field of the Data Retention
Directive when necessary and that the 2006 Directive’s implementation in
Sweden is therefore meaningless. The Swedish government especially
underlines that the Swedish crime prevention authorities already have
sufficient access to data even without full the implementation of the
Directive. Furthermore, the differenceasthe implementations across the EU
show the limits of the Data Retention directive and create a lack of
harmonisation.

According to Sweden, further implementation of the Data Retention Directive
is superfluous and unnecessary. The question remaining now is whether the
European Court of Justice will follow the Swedish defence on the “necessity”
of implementing the Data Retention Directive and the Directive’s failure to
achieve the task on which its legal base is built – harmonisation. The
Commission now faces an unenviable task – it either forces a sovereign
Member State to impose unnecessary (and therefore illegal) restrictions on
fundamental rights or it accepts the challenge of finally acknowledges the
failure of the Directive and the inevitable battle with the Council that
will result from any serious effort to fix the broken legislation.

Data Retention Directive 2006/24/EC (15.03.2006)
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:105:0054:0063:EN:PDF

Judgement of the Court Case C-185/09 (4.02.2010)
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:080:0006:0006:EN:PDF

Commission refers Sweden back to Court to transpose EU legislation
(6.04.2011)
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/409&format=HTML&aged=0&language=EN&guiLanguage=en

European Commission Application (31.05.2011)
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2011:226:0017:0018:EN:PDF

Sweden’s response to the ECJ – Case C-270/11 – (5.09.2011) (available only
in Swedish)
http://www.edri.org/files/sw_C-270-11_slutligt.pdf

(Contribution by Marie Humeau – EDRi)