ECJ Declares Data Retention Directive Invalid


On 8 April 2014, the Court of Justice of the European Union ("ECJ") handed down a judgment on two references for a preliminary ruling from the High Court of Ireland (Case C-594/12) and the Constitutional Court of Austria (Case C-293/12) declaring 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 (the "Data Retention Directive") to be invalid. The ECJ held that the Data Retention Directive interfered in a unjustified manner with the fundamental rights to respect for private life and protection of personal data (Articles 7 and 8 of the EU Charter of Fundamental Rights).

The Data Retention Directive sought to harmonise Member States' provisions concerning the retention of specific data (traffic and location data as well as related data necessary to identify the subscriber or user, but not the content of the communication or of information consulted) which are generated or processed by providers of publicly available electronic communications services or of public communications networks, in order to make them available for the purpose of the prevention, investigation, detection and prosecution of serious crime. The Data Retention Directive was implemented in Belgium on 30 July 2013 (see, VBB on Belgian Business Law, Volume 2013, No. 7, p.6-7; and Volume 2013, No. 8, p.11, available at

In its judgment, the ECJ first examined the interference with the rights to respect for private life and to the protection of personal data. The ECJ concluded that the Data Retention Directive interferes in a serious manner with these fundamental rights by requiring the retention of the data and by allowing the competent national authorities to access those data. Furthermore, the ECJ considered that the retention and use of the data without informing the subscriber or registered user can give the individuals concerned the feeling that their private lives are the subject of constant surveillance.

The ECJ then examined whether such an interference with the fundamental rights at issue could be justified. On this aspect, the ECJ decided that the retention of data required by the Data Retention Directive is not such as to affect adversely the essence of the fundamental rights in question and that the possible transmission of the data to the competent national authorities genuinely satisfies an objective of...

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