German Traffic Data Retention Law considered invalid by Higher Administrative Court of North Rhine-Westphalia

By Sven-Erik Heun, Valerian Jenny, Simon Assion,


In a preliminary decision, the Higher Administrative Court of North Rhine-Westphalia (decision of 22 June 2017 - 13 B 238/17) has relieved one network operator of the obligation to retain traffic data.

As a result of this decision the retention of traffic data in Germany will likely not start on its original commencement date on 1 July 2017.

The decision comes as a result of proceedings initiated by the Munich Network Provider Spacenet, who was supported by eco, the German Association of the Internet Industry. It is another high point in the struggle around traffic data retention laws that has been waging both in Germany and in other European countries for more than 10 years now.

The key argument of the Administrative Court was based on another court ruling by the European Court of Justice (ECJ): In the Watson/Tele2 decision of 21 December 2016, the ECJ had decided that national traffic data retention laws, if their scope is too broad, are unlawful and invalid due to a breach of the European Charta of Fundamental Rights. According to the ECJ, data retention obligations must not be “general and indiscriminate”, but have to be restricted to a particular time period, a geographical area or a group of persons (decision of 21 December 2016 - C 203/15 and C 698/15). The German law failed to meet these requirements, according to the Higher Court of North Rhine-Westphalia in its recent ruling. Thus, the court declared that these rules are not binding to the claimant.

It remains to be seen what the results of the decision are. While the German traffic data retention obligations are in principle still valid for all other service providers except for the original claimant, the ruling is a very clear statement that the competent courts would not approve if the German regulator Bundesnetzagentur tried to enforce the retention rules. And to the contrary, even if telecommunication service providers were inclined to retain traffic data without objection, it is doubtful whether they have legal basis for the retention.

It is expected that either the Bundesnetzagentur or the German Federal Government will issue a statement at the beginning of next week in which they clarify whether the regulator will enforce the data retention rules after 1 July 2017. When such a statement is made, it will clear the path for further decisions – the key question now being whether other service providers should also seek legal remedies at the courts.

And the original court proceedings will also continue now. While the ruling of the Higher Administrative Court of North Rhine-Westphalia, which was made as a result of summary proceedings, is not challengeable as such, there are also the main proceedings which are still pending at the lower Administrative Court of Cologne. And in addition, there are also numerous other proceedings against the traffic data retention obligations in Germany, both before the Cologne Administrative Court and before the Federal Constitutional Court. At this time, none of these courts has submitted a case to the ECJ, but this will probably change now.