In A Landmark Decision The European Court Of Justice Declares The Telecom Data Retention Directive Invalid

Author:Ms Lokke Moerel, Wanne Pemmelaar and Richard van Staden ten Brink
Profession:De Brauw Blackstone Westbroek N.V.

The Court of Justice of the European Union (ECJ) issued a landmark decision on 8 April 2014 invalidating the retention of telecommunication traffic and location data by telecom service providers and the access to that data by national authorities under the EU Data Retention Directive 2006/24/EC (Directive). The ECJ concluded that the Directive disproportionally interferes with the fundamental rights of European citizens to private life and protection of personal data. The ruling applies retroactively to the moment the Directive entered into force on 3 May 2006. The ECJ has thus removed the legal foundation for the current retention by the telecom service providers of individual's traffic and location data, and the right by the competent authorities to request that data.


The Directive was adopted on 15 March 2006 and relates to the mandatory retention of telecommunication traffic and location data by telecom services providers. According to the Directive, telecom service providers are obliged to store a person's telecommunications data for a minimum of 6 and a maximum of 24 months. Competent authorities (such as the police or security agencies) are subsequently able to request access to details necessary to trace and identify the source of a communication, destination of a communication, the date, time and duration of a communication, the communication device or the location of mobile equipment etc. These data are required to be available to competent national authorities for the purpose of the investigation, detection and prosecution of a serious crime, as defined by each Member State in its national law.

The Directive covers fixed telephony, mobile telephony, Internet access, Internet email and Internet telephony. To date, all 28 EU Member States have notified the Commission about the transposition of the Directive into their national law, with the exception of Belgium and Germany.

The case in question arose in 2006, after the Irish human rights advocacy organisation Digital Rights Ireland sued the Irish State, questioning the legality and constitutionality of Irish data retention legislation. In 2012 the High Court of Ireland referred the case to the ECJ, asking for its opinion. Similarly, in December 2012, the Austrian Verfassungsgerichtshof referred several constitutional cases to the ECJ, initiated by the Kärntner Landesregierung (Government of the Province of Carinthia) and 128 other applicants seeking the annulment of the...

To continue reading