Opinion Of Advocate General On Incompatibility Of Data Retention Directive With Charter Of Fundamental Rights

Author:Van Bael Bellis
Profession:Van Bael & Bellis

On 12 December 2013, Advocate General Villalón (the "AG") delivered an interesting opinion (the "Opinion") in cases C-293/12 Digital Rights Ireland and C-594/12 Seitlinger and Others. Both cases concern Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (the "Data Retention Directive"). The AG is of the opinion that the Data Retention Directive is incompatible with the Charter of Fundamental Rights (the "Charter"). The Data Retention Directive creates an obligation on telecommunications operators to collect and retain, for a specified time, a considerable amount of telecommunications data generated or processed by the citizens throughout the territory of the European Union. The purpose of this obligation under the Data Retention Directive is to ensure that these telecommunications data remain available for the purpose of the investigation, detection and prosecution of serious crimes. The Opinion was delivered in the context of two separate requests for a preliminary ruling referred to the Court of Justice of the European Union ("ECJ") by the High Court of Ireland and the Verfassungsgerichtshof (the High Court of Austria). The questions referred to the ECJ can be summarised as follows: Are data retention obligations compatible with Article 7 (respect for private and family life) and Article 8 (protection of personal data) of the Charter? If data retention obligations are seen as limitations to Articles 7 and 8 of the Charter, do they comply with Article 52 (1) of the Charter which provides, among others, that any limitation on the exercise of the rights and freedoms recognised by the Charter have to be proportionate within the meaning of Article 5 (4) of the Treaty on European Union? Regarding the first issue, the AG found that the Data Retention Directive is incompatible with Articles 7 and 8 of the Charter as data retention "may make it possible to create a both faithful and exhaustive map of a large portion of a person's conduct strictly forming part of his private life, or even a complete and accurate picture of his private identity." On top of that, there is, according to the AG, an increased risk that "the retained data might be used for unlawful purposes which are potentially detrimental to privacy or, more broadly, fraudulent or even malicious" as the data are...

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