According to a previously unpublished letter dated 25/10/2010 (pdf), the EU Commission considered lifting the obligation on all EU Member States to have communications data retained indiscriminately („data retention“). Member States were to be allowed to opt out of the controversial scheme.
The letter written by the General Director of DG Home Affairs to the Commission’s Legal Service says:
Subject to a favourable opinion from your services, such non-participation by Member States could take different forms. In particular:
- The proposal could exhaustively list those Member States that are not participating in the amended data retention measure;
- The proposal could include a provision allowing Member States not to participate in the amended data retention measure.
In each scenario, the proposal could require Member States that are not participating/opt not to participate in the amended data retention measure not to maintain any domestic measures providing for compulsory data retention.
It is quite a sensation to read these detailed plans for lifting the EU-wide obligation to retain communications data without cause. The Commission’s thinking was probably influenced by Germany’s Constitutional Court having declared unconstitutional the German data retention law, and by civil society protesting against data retention throughout Europe.
It is all the more disappointing that the Commission’s Legal Service in its reply dated 10/11/2010 falsely claimed that the plans could not be carried out for legal reasons. On the basis of this false advice the Commission has given up its original intention to accept the targeted preservation of suspect’s communications data (data preservation) as an alternative to blanket data retention. Despite legal opinions by several experts to the contrary (in German), the Commission has since refused to reconsider its stance.
Lately, the Commission has decided to delay revising the data retention directive indefinitely (in German). Due to the EU’s undemocratic structure the European Parliament cannot itself put forward a proposal to scap or amend the unpopular directive.
It will therefore be up to the European Court of Justice, having been seized by the Irish High Court, to annul the data retention directive for violating the right to privacy. I think it likely that the directive will be annulled, as have national data retention laws in Romania, Germany and the Czech Republic (legal analysis). The German Minister of Justice also believes the case will be successful (in German).
Note: The EU Commission has deleted parts of its letter (pdf) before releasing it.
The above is the author Patrick Breyer’s personal opinion and is not necessarily the opinion of AK Vorrat.