EU: The European Court of Justice adjudicates on data retention

The highly controversial data retention has overcome an important obstacle with the European Court's decision dated of 10.02.2009. The European Court of Justice (ECJ) declared that data retention is lawful.

At the same time, however, the ECJ did not uphold the legality of data retention as a whole, but it rather only judges the legal foundation, on which the EU directive is based. This directive, in turn, is the basis for the national regulation in the Telecommunications Act of Germany.

The directive was enacted on February 21, 2006. It is based on the EU Treaty and was passed by the European Parliament and the Council. Ireland and Slovakia turned to the ECJ against the just decided case. They censured that the directive on the retention of data contains rules for combating crime and it therefore should have been enacted by the competent European Council of Ministers.

This opinion has now been rejected by the ECJ. The directive was adopted correctly on the basis of the Treaty on European Union, because it predominantly affects the functioning of the single European market. Several member states had passed regulations on the retention of data by telecommunications providers even before the directive was adopted. The considerable differences between these separate national regulations could have resulted in severe disadvantages for individual providers, which could affect the single European market. It was imperative to avoid this through a uniform European regulation.

It must be noted here that, in its judgement on the legal foundation of the directive, the ECJ has completely disregarded the aim of data retention, which, as is well known, lies in the area of criminal prosecution.

One further lawsuit against data retention is currently pending at the German Federal Constitutional Court (BVerfG). This lawsuit was suspended until the ECJ made its decision and it will certainly be resumed now. The Federal Constitutional Court now has to decide whether the regulations in the Telecommunications Act of Germany are compatible with the German Basic Constitutional Law. However, the problem here is that after the dismissal of the case by the ECJ, the Federal Constitutional Court may be prevented from inspecting the legality, because of their so called "Solange" (as long as) jurisprudence. This judgement restricts the decision-making authority of the Federal Constitutional Court as long as (solange) the EU itself provides a reasonable protection of fundamental rights through its own courts. The Federal Constitutional Court will now have to determine whether such protection is still present after the decision of the ECJ and it may have to abandon its former judgement in order to review the compatibility of data retention with the German Constitution.

This paves the way for a decision of the Federal Constitutional Court on the German regulations for data retention. Only this judgement will have direct effect on the companies.