In its decision of 8 April 2014, the European Court of Justice (“ECJ”) declared the Data Retention Directive 2006/24/EC (the “Directive”) invalid. The ECJ ruled that the Directive entailed “a wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data, without that interference being limited to what is strictly necessary”.

The judgment was rendered in response to questions posed to the ECJ by the Irish High Court and the Austrian Constitutional Court. The ECJ had to examine the validity of the Directive in the light of two fundamental rights under the Charter of Fundamental Rights of the EU, namely the fundamental right to respect for private life and the fundamental right to the protection of personal data. More in particular, the ECJ was asked to examine whether the interference of the Directive with these fundamental rights was justified.

The Court first stated that the retention of data required by the Directive does not as such adversely affect the essence of the fundamental rights to respect for private life and to the protection of personal data. The Directive does not permit the acquisition of knowledge of the content of the electronic communications and provides that service or network providers must respect certain principles of data protection and data security.

In addition, the retention of data for the purpose of their possible transmission to the competent national authorities genuinely satisfies an objective of general interest, namely the fight against serious crime and, ultimately, public security.

However, the ECJ observed that the data retained made it possible (1) to know the identity of the person with whom a subscriber or registered user has communicated and by what means, (2) to identify the time of the communication as well as the place from which that communication took  place, and (3) to know the frequency of the communications of the subscriber or registered user with certain persons during a given period.

The ECJ acknowledged that those data, taken as a whole, may provide very precise information on the private lives of the persons whose data are retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, activities carried out, social relationships, and the social environments frequented.

Thereafter, the ECJ identified several particular concerns regarding the proportionality of the Directive:

  1. The generality of the Directive: It covers all individuals, all electronic communications and all traffic data without differentiations, limitations, or exceptions;
  2. The Directive fails to lay down objective criteria for and procedures regulating access to and use of the data;
  3. The Directive fails to lay down objective criteria to determine the data retention period between 6 and 24 months and does not take into account the type of data, its usefulness, or its proportional  necessity;
  4. The Directive does not provide sufficient safeguards against possible abuse, unlawful access, or use of data;
  5. The Directive does not require retaining the data in the EU so that compliance with the EU data protection laws cannot be ensured.

Therefore, the ECJ concluded that even though the retention of data required by the Directive may be considered to be appropriate for attaining the objective pursued by it, the Directive exceeds the limits imposed by compliance with the principle of proportionality.

The decision (C-293/12 and C-594/12) can be on http://curia.europa.eu.