Each of the Member States of the European Union is required to incorporate European directives into national legislation. If a Member State does not obey this obligation, the European Commission can sue this country in the Court of Justice of the European Union (CJEU). But what actions can a country take if such directives force it to adopt legislation that contradicts its own constitution? From the European Commission’s perspective, Member States have an opportunity to raise such concerns for a few weeks during the adoption process of a Directive and, if it doesn’t, all subsequent problems are the fault of the Member State itself.

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Being forced to do something you can’t actually do

This transposition into national legislation also applied to the Directive that forced telecom and Internet providers to retain data concerning the location and communication behaviour of all their users, also known as data retention Directive. Many Member States where unable to meet this requirement. This resulted in the Commission starting a number of infringement procedures against, among others, Romania, Sweden, and Germany.

In order to get a good impression of what goes on behind closed doors, Dutch EDRi member Bits of Freedom requested the Commission to disclose all documents relating to five of these infringement procedures. A few months later, we received thousands of sheets of paper. Now we know how effortlessly national and European leaders blatantly ignore fundamental practical and objections. Ironically, while Member States were taken to court for failing to implement the repressive measures in the Directive, no effort at all was devoted by the European Commission to enforcing Article 10 of the Directive – collecting statistics that were supposed to be used to assess whether the Directive was actually useful or not. It’s a tricky situation: being forced to implement certain rules, despite them being contradictory to the country’s constitution.

Please sue us

The preventive and persistent preservation of data concerning everybody’s location and communication behaviour is, fortunately, a controversial policy. However, to some governments, this seems to be irrelevant. In one of the obtained documents, the Commission describes how a Czech minister viewed the implementation of this controversial undertaking. His assessment: “one day’s headlines and then forgotten”. Some countries even encourage the Commission to start an infringement procedure against them. Crazy, right? It’s as if you’d approach a police officer on the street and beg him or her to please give you a ticket. But this is politics.

The politicians of the German ruling party CDU supported the Commission’s attempts to enforce the implementation of the Directive, because such an infringement procedures increase the pressure on the national debate. For the same reason, the German minister of Internal Affairs (who wanted to see the Directive implemented) did not want the Commission to amend the Directive. In the absence of a reform, the pressure on her Liberal colleague at the Justice department (who refused to implement the Directive) remained high. Similarly the Commission was told by Romanian representatives that a warning against the country would be “helpful”.

Keeping score is too much of an effort

There is no scientific evidence that the invalidation has caused the law enforcement agencies major difficulties. There is no evidence indicating that invalidating the data retention Directive has had a negative impact on the clear-up rate of criminal offences.

This is what the German Minister of Justice wrote in a letter to the European Commission, after the data retention Directive was found to be in violation of the constitution in Germany. It is clear-cut criticism on the assumed – but never substantiated – need for a data retention act.

For many countries, it is too much trouble to gather evidence that supports the alleged need for a data retention act. The Czechs told the Commission that maintaining statistical data (an unenforced obligation under the Directive) was an enormous burden and that it was difficult to obtain data from the police. Instead they indicated a preference to have a conversation with other Member States and to learn from their best practices. How to implement the Directive, without much need for working out if it was serving any purpose?

A data retention act doesn’t help anybody

The documents also give an impression of what is still ahead of us. For instance, the Commission pressured Romania into introducing a new data retention policy after the previous one was declared invalid. The Commission did this despite the warning that there is a risk that a new case would be brought to the Constitutional Court and that the new law will be again declared unconstitutional.

The national legislator being disciplined over and over again calls for additional complexity in the Commission’s enforcement procedures. Their lawyers wrote:

“By letter of 25 November 2008 […] Romania informed the Commission […] that it adopted law no. 298/2008 […]. Romania stated that these measures constituted ‘complete transposition’ of [the data retention Directive] into Romanian law. However, due to an internal omission, this infringement procedure was not subsequently terminated, which should have been done. On 23/11/2009, the Romanian constitutional Court annulled the national law. This law longer exists.

Given those circumstances, it is necessary to close this case which dealt with the situation prior to the annulment of the law by the Romanian Constitutional Court. However, the Commission decided to open a new procedure in order to make sure that [Romania] will transpose the Directive, taking into account the legal situation which is currently in force since the annulment of the law by the Romanian Constitutional Court.”

That is quite a mess that benefits no-one, other than a handful of lawyers. And this is what the Netherlands is about to do: adopting a new data retention law (even though the European Directive itself has now been overturned by the European court), while knowing that it will again collapse in a Dutch or European court. Meanwhile, the investigative agencies are left to deal with the consequences: they have no use for investigative tools that can be declared illegal by a judge – indeed, they were never able to show a use for the data in the first place. The Dutch government should instead invest in something the police can actually use.

Please sue us (only in Dutch, 23.03.2016)

(Contribution by Rejo Zenger, EDRi member Bits of Freedom, The Netherlands)