About Data Protection: When the Retention becomes unlawful.


Breaking news.

Today’s ECJ ruling in Joined Cases C-203/15 and C-698/15[1] on the validity of UK and Swedish national rules on data retention under EU law, represents a milestone for data protection in EU.

The set of rules was the expression of a general obligation of data retention, required by the Directive 2006/24/EC[2]. However, the same Court in 2014 in the Digital Rights Ireland ruling[3], decided for the invalidity of the Directive. As a result, two references were made to the ECJ concerning these national provisions. More specifically, according to the contested UK rules, the Secretary of State was able to require public telecommunication operators the retention of users’ data, for a period of 12 months and with the exclusion of their contents. Differently, Swedish law stretched these limits, requiring the providers “to retain systematically and continuously and with no exceptions all the data of their users with respect to all means of electronic communication”.

The main question was whether similar rules, imposing a general obligation to retain data on the providers and granting access to national authorities, were compliant with EU law and, in particular, the Directive 2002/58/EC on privacy and electronic communication[4] and the Charter of Fundamental Rights of the European Union[5]. The answer to this question is pretty clear:  EU law “precludes any national rule prescribing general and indiscriminate retention of data”.

But what does “general and indiscriminate retention of data” mean?

According to “settled case law” and namely, to the above mentioned Digital Rights judgement of 2014,“derogations should apply only in so far as is strictly necessary”[6]. Quite interestingly, the Court applied the same principle in another significant case last year, when ruling on Facebook Ireland and the transfer of some of its users data to servers located in the US.[7] In the proceedings, initiated by Maximillian Schrems , the Court, having to decide whether the US safe harbor provisions were “adequate” under Directive 95/46[8] ,  ruled out their validity, expressly referring to the principles laid down in Digital Rights[9].

Specifically, there are two main points to be stressed in the reasoning of the Court.On one side, it assessed that “to establish the relevance of the violation it does not matter the nature of the data concerned[10]. This is because this data allows “very precise conclusions to be drawn concerning the private life of the persons concerned”. Thus,” the interference in the fundamental rights enshrined in Art and 8 of the Charter is very far reaching and must be considered to be particularly serious”. Secondly, the ECJ pointed out that “protection of fundamental right to respect for private life requires derogations and limitations to apply only in so far as it is strictly necessary[11]. As a result, legislation permitting public authorities to have access “on a generalized basis” to the content of electronic communication, without an “objective criterion” by which to determinate the limits of the access and the specific purposes, must be regarded as not compliant with EU law.[12]

However, “Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter, does not prevent a Member State from adopting legislation permitting, as a preventive measure, the targeted retention of traffic and location data, for the purpose of fighting serious crime, provided that the retention of data is limited, with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the retention period adopted, to what is strictly necessary”.[13] In other words, four conditions have to be satisfied for a lawful retention: a) It has to provide for sufficient guarantees[14], c)  being based on objective evidence, d) and it has to clearly define the modalities and the circumstances under which the competent authorities are to be granted access to the data.[15] Finally, data is to be stored within the EU. A condition, the latter, which, deriving from the Schrems ruling, witnesses the inadequacy of non-EU legislations to promote the respect of private life and personal data, according to the EU Charter.

What’s next?

In the current situation, it is hard to anticipate what will be the future developments for data protection in Europe and elsewhere. New legal conflicts might follow on the validity of national and international laws, connected to innovative technologies; the same notion of authorised restriction might change. Recently, following the Schrems success, a class action has been initiated against Facebook from 25000 users all over the world. The Austrian supreme court[16] has now asked the CJEU to rule on the procedural validity of such a claim under EU law. A positive outcome could further modify the current EU legal framework.In other words, it is too early for conclusions to be drawn at this stage.Meanwhile, today’s ruling has to be read as further recognition of data protection relevance, raising awareness on the need of carefully shaping the limitations allowed, not only when coming to non-EU countries but also when considering EU national rules.



[2] Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 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.

[3] [Hereinafter ‘Digital Rights’].

[4] Directive 2002/58/EC on Privacy and Electronic Communications

[5] Art 7 on the respect of private life and Art 8 on protection of personal data of the Charter of Fundamental Rights of the European Union [Hereinafter ‘the Charter’].

[6] Watson at 96.

[7] C-362/14 Schrems v Data Protection Commissioner [Hereinafter ‘Schrems’].

[8] And, in essence, the validity of Commission Decision 2000/520EC on the adequacy of these provisions.

[9] See also Google Spain and Google further stressing the relevance of art 7 and 8.

[10] At 97. See also Schrems p.87 and Digital Rights at 33.

[11] See Schrems at 92, Digital Rights at 52.

[12] Schrems at 92 and 93 / Digital Rights at 52 and at 57 to 61.

[13] Watson at 107.

[14] In fact, at 100 “The fact that the data is retained without the subscriber or registered user being informed is likely to cause the persons concerned to feel that their private lives are the subject of constant surveillance”.

[15] And be subject to further review by competent authorities.

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Federica Pezza is a trainee lawyer, specialising in EU and IP law, currently working for the legal department of British American Tobacco(BAT) in London. After graduating at University Federico II of Naples in 2015 with a comparative dissertation in EU law, focusing on Copyright developments in Italy and France, Federica recently completed an LLM in Intellectual Property Law with a Distinction at Queen Mary University of London. Before joining the trademark department of BAT, she gained experience in the law tech area by working in a law tech London based start-up. Federica is a registered journalist in Italy and a French and English speaker.

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