25 March 2011

Europe’s Last Stand Against Data Retention?

The Matrix has you...photo © 2008 Roman Pinzon-Soto | more info (via: Wylio)

Do you remember Morpheus saying “Wake up Neo… The Matrix has you!”?
Do you remember Agent Smith implanting an electronic tracking bug in Neo’s body?
I bet you do, because the image transported by this film does not appear that fictional anymore.
It may be just an arm’s length away.
Yes, I am talking about the retention of your communication traffic data. By “you” I mean all of you who live under the jurisdiction of a member state of the European Union. Any member state? Hmm, well, possibly not, but let me first explain

What is data retention and its purpose?

Data retention in the sense of the Directive 2006/24/EC provides for the storage data arising out of telephone calls made and received, emails sent and received and websites visited. Since location data counts to traffic data, it is collected too.

The introduction of data retention has always been justified with combating terrorism and serious crimes, but it aims to fight file-sharing users instead.

Owing to its controversy, legislation produced by transposition of the data retention Directive has been contested in some EU member states. While Ireland challenged Directive’s compatibility with formalities under the then current EC Treaty,  the constitutional courts of Romania and Germany were asked to deal with data retention’s compatibility with fundamental human rights. As a consequence, the respective provisions got abrogated, but not annulled.

Data retention gains territory

Until recently, Austria managed to postpone the transposition of the Directive 2006/24/EC into its national law. Well, the ostensible resistance grounded on discrepancies between the two coalition forming parties rather than on human rights deliberations.

Doris Bures, Austria’s Minister of Transport, Innovation and Technology announces the upcoming enactment of data retention. Courtesy to APA (Archiv/Fohringer)

However, some weeks ago the farce went to an end and a bill amendment to the telecommunications act was nodded through the council of ministers prior to its submittal to the parliament. Reportedly, the bill is being heavily discussed among the members of the parliament justice committee. The result will be, despite all assurances, the total control of communication.

Now that Austria will no longer be a safe harbour in terms of privacy, are there any other member states that still have not implemented the data retention directive?
Let us have a look at the map of Europe…
Is someone missing?
Yes, there is!

The land of milk and honey

Flag countrysidephoto © 2009 Håkan Dahlström | more info (via: Wylio)


Can you imagine: the Swedes usually known for their discipline and law-abiding behaviour are now obstructing the implementation of Directive 2006/26/EC.
It seems that an arrangement among the Left Party, the Green Party and the Swedish Democrats managed to apply a procedural loophole in order to delay the transposition for at least a year.

What does it mean?

As I previously mentioned, the data retention directive has been referred to a judicial review a few times already. These reviews’ action items towards legislation always read the same: improve!
In this respect, it is likely that the Court of Justice of the European Union delivers a judgment dealing with data retention’s compatibility with fundamental human rights under the acquis.

The good news at the end

I still have hope that this madness will come to an end. Not only because hope springs eternal, but because anyone can make an effort and engage in lawfully fighting data retention.
At least anyone who cares about fundamental human rights.

And if Sweden should fail, then it could be us as individuals who form Europe’s last stand against data retention!


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22 March 2011

Thou Shalt Not Have Any Patent Courts Before Me!

European Court of Justice - Luxembourgphoto © 2006 Cédric Puisney | more info (via: Wylio)

What do the Bible and the Treaty on the Functioning of the European Union (TFEU) have in common?
Perhaps it’s that they both represent various collections of sacred scriptures that are exclusively interpreted by specifically established bodies. Yes, the Pope’s authority as the sole authentic and true interpreter of the Bible can be correlated with the rights of the Court of the European Union (“Court” ) with respect to the TFEU.

The Court’s currently published Opinion 1/09 on the creation of a unified patent litigation system and a European and Community Patents Court is a good example of this. Its holding reminds me of the First Commandment and evaporates any hope of moving the European patent system closer to the US American one.

In the beginning… was the European Patent Convention

The European Patent Convention (EPC) provides a legal framework for the granting of European patents via a single, harmonized procedure before the European Patent Office (EPO).

Nevertheless, subsequent to its granting, a European patent is not a unitary right, but a group of essentially independent, nationally enforceable and nationally revocable patents.
And this is where the problems start: a patent holder with a number of equivalent European patents might have to choose where, e.g. under which patent and legal system, to sue an infringer. Factors influencing this choice of forum would include, among other things, the likelihood of success, or the speed and cost of the proceedings.
However, if litigation in multiple jurisdictions proves to be necessary, it is possible that different courts will reach different decisions, even with patents granted by the EPO and containing identical claims…

As is known, this is not the case in the US where they have a unitary patent law, a single granting authority and a unitary patent jurisdiction.

Those who live in the European Union writhe in pain, waiting for relief

A number of reform proposals have been made to ease the difficulties I outlined above, such as: the creation of a unitary Community patent, the establishment of a Community Patent Court, or the replacement of the EPC with a Community patent system.
And, recently, it seems things have started to heat up a bit: the newly authorised Enhanced Cooperation On Creation Of Unitary Patent Protection may smooth the way to a unitary patent, granted as an EU designation within the EPO framework.
But, owing to Court’s Opinion 1/09, an EU patent will still need to be enforced country by country.
It’s still not the whole nine yards.
Besides, I do not understand why the Court behaves just like the jealous God and shows itself anxious in tolerating a parallel (patent) jurisdiction it cannot control.
By the same token, the specialists at the EPO insist on an own court, serving as the ultimate authority in patent cases . Their reasoning is that the court Court would not have the sufficiently skilled personnel and thus the capability to properly deal with patent matters.
Looks like a dead-end to me.

Revelations for holders of European and future Community patents

Given the problem with the Enhanced Cooperation, it will take years to evaluate its overall effect on the European patent system.
Moreover, without unitary jurisdiction and enforceability, its main objective appears limited to merely language -related cost savings.

So pray, my brothers and sisters! Pray that the Court in Luxembourg shall be manned with skilful judges to rule on our patent cases!


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