14 December 2009

Will the data retention directive be fully implemented across Europe: a reprise.

About a year ago I composed one of my first blog postings and asked “Will the data retention directive be fully implemented across Europe?”. The reason behind was the then pending decision of the ECJ caused by Ireland’s concern on the data retention directive’s grounds legitimacy and, the wrong way the directive was initially  implemented in Bulgaria.

Recently, I covered the startling decision of the Romanian Constitutional Court that rejected the data retention implementing act due to inconsistency with constitutionally guaranteed and fundamental human rights, such as the right to privacy. Seemingly, this decision will not remain a single one.

In a hearing, appointed for tomorrow, the German Constitutional Court is expected to deal with the mass-complaint filed by nearly 35 000 citizens in which they ask the Court to abrogate the provisions on data retention. I believe the whole data retention concept would then fall apart, if the German Constitutional Court decided in favour of the complainants.

Press releases in Austria which, in my view, attempt to encourage the government in its Fabian position towards data retention, even call for a final ruling by the ECJ on the overall legitimacy of the data retention concept. In such a case, the ECJ will have to scrutinise whether the data retention directive is conciliate with the Charter of Fundamental Rights of the European Union that, together with the Treaty of Lisbon,  is in force as of 1 December 2009.

Comments (3)

  1. 16 December 2009
    Bisser Dyankov said...

    Do you have any idea when we could expect the decision of the German Constitutional Court?

    I know that you are familiar with the amazingly vigorous attempt of the Bulgarian authorities to obtain an access to the data flow of the Bulgarian internet and mobile communication users.. I wonder whether a decision of the German Constitutional Court could aid our efforts to prevent the promulgation of the drafted Bill..

    Keep it up!

    • 16 December 2009

      Hi,

      Unfortunately I could hardly predict when the Court will deliver its ruling, however this is not the first time this Court deals with data retention questions. In March and October 2008 urgent motions were referred to the Court and it issued interim orders by thus limiting providers’ handover obligations with respect to retained data.

      Yes, I am aware of the legislative deliberations in Bulgaria and, in particular, with the ministry of interior’s greediness to access and stockpile data. Another Constitutional Court’s affirmative decision, I believe, should be able to persuade the legislators in Bulgaria to at least reconsider some of the aspects of the current bill. For example the drafters of the Austrian bill neither defined an “interface” term nor did they implement the existing ETSI interface recommendation. They simply proposed a technology neutral handover of retained data in a .CSV file.

  2. 3 March 2010

    […] months ago nearly 35 000 German citizens filed a mass-complaint in which they asked the Court to abrogate the provisions on data […]

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