European Court of Justice confirms that generalized conservation of electronic communications data is contrary to EU law

The European Court of Justice (ECJ) ruled on Tuesday that EU law is contrary to national law, which provides for preventive generalized and undifferentiated conservation of traffic and location data related to the fight against serious crime related to electronic communications.

As the Luxembourg-based court recalls, the European Directive 2002/58 / EC on confidentiality and electronic communications “does not confine itself to regulating access to this data, with the aim of preventing misuse, but also sets out, in particular, the principle of prohibition on storage. On traffic and location data. ”

Thus, “the conservation of this data constitutes, on the one hand, an exception to the prohibition on storage and, on the other hand, an interference with the fundamental rights to respect for privacy and the protection of personal data. While the European Directive on Confidentiality and Electronic Communications allows Member States to restrict these rights and obligations for the purposes of, in particular, the fight against serious crime, such restrictions must uphold the principle of proportionality.

According to the CJEU, “this principle establishes compliance not only with the propensity and necessity requirements, but also with the requirements relating to the proportionate purpose of these measures.” Thus, the Court of Justice has already stated that the purpose of combating serious crime, however fundamental it may be, “does not in itself justify the measure of generalized and undifferentiated traffic data conservation to be necessary and localized. Established by the European directive. ”

In this sense, “even the positive commitments of the Member States not to adopt regulations enabling them to fight crime effectively can not justify such serious interference as the data protection regulation entails in their rights. “People with virtually no data on the entire population are affected by the relationship, at least indirectly, with an aspirational goal.”

In any event, the Court of Justice states that Union law does not preclude legislative measures to be taken to combat serious crime and to avoid a serious threat to public safety: “Selective protection of traffic and location data based on victim categories. Or by geographical criteria ”; “Generalized and undifferentiated conservation of IP addresses attributed to the origin of the connection”; “Generalized and undifferentiated conservation of data related to the civil identity of electronic media users”; And “Fast maintenance (Fast freezing) Traffic and location data held by the providers of this service.

In addition, the Court of Justice recalls that “in accordance with the principle of procedural autonomy of the Member States, the admissibility of evidence obtained through this preservation is governed by national law, without respect for the principles, inter alia. Equivalence and efficiency. ”

The Court of Justice ruling concerns a case that began in March 2015 when GD was sentenced to life in prison for the murder of a woman in Ireland.

In an appeal to the Irish Court of Appeal, the applicant accused the trial court, in particular, of misrepresenting evidence consisting of traffic and location data related to telephone calls.

In order to challenge the admissibility of this evidence in criminal proceedings, GD also filed a civil lawsuit in the High Court of Ireland seeking the annulment of certain provisions of the Irish Law of 2011 governing the maintenance of such evidence. Data and access to them claiming that the said law violates the rights conferred by Union law.

The Supreme Court upheld GD’s allegations in a ruling of 6 December 2018.

Ireland has appealed against this decision to the Supreme Court of Ireland, which is the rapporteur in this case.

The Supreme Court of Ireland, in its reference order, sought clarification of the requirements of federal law for the fight against serious crime related to the storage of the above data, as well as the necessary safeguards for access to the same data.

This Court had doubts as to the scope of the declaration of possible incompatibility and its temporary effectiveness, given that the Irish Law of 2011 had adopted a provision on the conservation of data generated or processed for the transposition of Directive 2006/24 / EC. Public electronic communications services declared invalid by the decision of the Court of Justice on April 8, 2014.