Death of a Directive: EU Data Retention?

The Data Retention Directive was adopted in the aftermath of the public transport attacks in London in July 2005. It requires telecommunications service providers to retain user traffic data for all telecommunications users for a period of six months to two years. The Directive has been highly criticised for requiring generalised data surveillance within the EU and thus infringing privacy of EU citizens.

Since its adoption, the Directive has been challenged in several Member States. The Supreme Administrative Court of Bulgaria and Romanian Constitutional Court have found some or all of the measure to be unlawful. Furthermore, Sweden has been on the receiving end of an enforcement action by the Commission for its failure to implement the measure. The Swedish Government continues to equivocate as the matter is likely to be contentious in the upcoming General Election there. However, as widely reported (Irish Times, Financial Times), the German Federal Constitutional Court has now dealt what may be the death blow to the measure.

The German Court held that the national law implementing the Directive was repugnant to the German Constitution. The grounds for the decision are not yet available in English, but the FT summarises:

The judges ruled that the German legislation putting the EU directive into effect violated a constitutional guarantee of privacy. Although it did not outlaw data storage, the ruling requires the purpose of such storage be defined, its use sanctioned by a court of law, and justified on the grounds of serious crime.

This reasoning is largely similar to that of the Romanian Constitutional Court in its decision of October last year. However, coming from the German Court – probably the most influential national court in the EU – it represents a much bigger threat to the Directive. Two particular similarities between the Romanian and German decisions are worth pointing out: first, both Courts express their dissatisfaction with the general scheme of the data retention programme – not simply specific issues that might be rectified by better transposition; second, both judgments are targeted at the national implementing law rather than the Directive itself. This sleight of hand offers merely the smallest of fig leafs to decisions that challenge the supremacy of EU law on the basis of incompatibility with national constitutional law.

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