Europe’s controversial data retention directive is dealt a lethal blow by the European Court of Justice

ikYfyDhQHruMBy Simon Davies

In one of the most significant civil liberties developments of recent years an Advocate General of the European Court of Justice has found that the EU Data Retention Directive is “wholly”  incompatible with the Union’s Charter of Fundamental Rights.

The 2006 EU Directive requires communications providers to store traffic information on all their customers for at least two years in case it is requested. This requirement has been ruled unconstitutional in a small minority of countries including Germany.

Pedro Cruz Villalón

Pedro Cruz Villalón

In an opinion issued today (12 December), Pedro Cruz Villalón, one of the Court’s nine advocates-general, said that the directive represented a serious interference with the fundamental right to privacy.

Although the opinion is non-binding, the Court tends to follow recommendations made by its advocates-general.

The analysis concludes: “Directive 2006/24 9 [the Data Retention Directive] is as a whole incompatible with Article 52(1) of the Charter [of Fundamental Rights], since the limitations on the exercise of fundamental rights which that directive contains because of the obligation to retain data which it imposes are not accompanied by the necessary principles for governing the guarantees needed to regulate access to the data and their use.”

The directive, which requires EU member states to put in place legislation obliging the providers of phone and internet services to retain communications and location data of all users, is now at risk of falling.

The Advocate General warned that large portions of an individual’s private life can be reconstructed using such data, and that there is a risk that data retained by communications providers could be used for unlawful purposes.

He also raised concern that the directive failed to define the concept of “serious crime” that allows law enforcement officials to use such data.