The Data Retention Directive criticised as unlawful

01 January 0001

According to the Advocate General of the European Court of Justice, the EU Data Retention Directive is incompatible with the Charter of Fundamental Rights of the European Union. The criticism arises after several EU Member States have filed cases before the European Court for preliminary rulings on the subject matter.

The purpose of the Data Retention Directive is to ensure that communication data such as invoices and interconnection payments, marketing and certain other value-added services can be made available to law enforcement. The purpose of the Directive is to prevent terrorism and fight criminal activity.

Because of the network operators’ obligation to access and retain information from private citizens’ network, the Directive is a limitation on the exercise of the fundamental right of citizens to privacy.

According to the Advocate General, the Data Retention Directive is incompatible with the requirement that any kind of limitation on the exercise of a fundamental right must be provided for by law. According to the Advocate General, the Directive should define the fundamental principles and specific limitations to ensure the intrusion of the right to privacy is regulated and supervised to prevent misuse.

Furthermore, the Advocate General finds that the Data Retention Directive is incompatible with the principle of proportionality. According to the Directive, it is a requirement that network operators access and retain communication data for a period provided by the Member States. The period can be up to two years, which, according to the Advocate General, is longer than can be justified. Instead, he finds that the period should be less than one year.

The above issue is discussed at the European Court due to two references for preliminary rulings made by the High Court of Ireland and the Constitutional Court of Austria, respectively.

In both cases, private companies submit that the respective authorities have unlawfully processed, retained and exercised control over data related to communication from and to private networks. The plaintiff submits that the Directive is contrary to their national constitutions and must be seen as incompatible with the Charter of Fundamental Rights of the European Union.

The Advocate finds that, in general, the underlying purpose of the Directive is acceptable and therefore suggests that the Directive is not over-turned, but that the European Union is given a reasonable period of time to correct the Directive by adding further safeguards by new legislation. Furthermore, the retention period of two years must be decreased.

The statements of the Advocate General are not binding on the European Court of Justice but they are usually very influential. In previous cases on the same subject, the Court of Justice has chosen to focus more specifically on the underlying questions instead of ruling on the validity of the Directive.

The preliminary rulings can be expected next year.