European Court confirms: Strict safeguards essential for data retention
Today, on 19 July 2016, the Advocate General (AG) Henrik Saugmandsgaard Øe of the Court of Justice of the European Union (CJEU) issued an Opinion on a case Tele2 Sverige AB v Post- och telestyrelsen (C-203/15) that deals with data retention obligations that were imposed by law on a Swedish telecom provider.
The Court was asked a set of questions related to the respect of European Union (EU) law, in the context of the data retention laws in Sweden and the UK. In the Opinion issued today, the AG re-stated principles that were previously established in the Digital Rights Ireland case. He also provided extensive further analysis of the legal context that national courts need to consider when they “rigorously verify that no other measure or combination of measures” can be as effective as the national data retention regime being proposed.
It is to be hoped that the final Court ruling will be respected by EU Member States. Sadly, since the Digital Rights Ireland case was decided in 2014, EU Member States have persisted in implementing or creating new legislation that wilfully ignores the principles previously established by the Court. The Advocate General made it unequivocally clear that all of the safeguards listed in the Digital Rights Ireland case must be respected by national laws.
It is time for EU Member States to start respecting the law. It is time for the European Commission to do its job to ensure that the law is respected,
said Joe McNamee, Executive Director of European Digital Rights.
How many times does the Court need to be asked the same question before EU Member States start listening? Data retention is an extreme measure which can only be implemented if the criteria repeatedly laid down by the Court are respected.
The European Commission should, at long last, start doing its job. So far, it has avoided taking a position on the numerous data retention laws in Europe that breach the principles that were established by the EU Charter of Fundamental Rights, clarified by the Court in 2014 and, today, re-stated by the Advocate General of the Court of Justice of the European Union.
Almost exactly a year ago, EDRi wrote to the European Commission Vice-President, Frans Timmermans, demanding action. In response, the Commission said that it would “monitor” thoroughly the data retention laws in the EU, but has so far avoided taking action. Time has run out for the Commission’s delaying tactics. It is now time – finally – to ensure that the law of the European Union is respected.
Press Release from the CJEU on the Advocate General Opinion on the case (Case C-203/15) (19.07.2016)
European Commission will “monitor” existing EU data retention laws (29.07.2015)
European Digital Rights asks the European Commission to investigate illegal data retention laws in the EU (02.07.2015)