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Data Retention in Austria: Constitutional Court turns to the CJEU

16 January, 2013

This article is also available in:
Deutsch: VDS in Österreich: Verfassungsgericht wendet sich an Europäischen Ge...

The Austrian Constitutional Court has reservations that the EU Directive on the Retention of Data could be incompatible with the European Charter of Fundamental Rights. For this reason, the 14 constitutional judges have addressed the Court of Justice of the European Union (CJEU), submitting questions on the interpretation of the Charter of Fundamental Rights of the European Union.

This request for a preliminary ruling has been prompted by applications and/or complaints addressed to the Constitutional Court against data retention. To date, the province government of Carinthia, a telecommunications company employee, and a total of some 11 000 private individuals have turned to the Constitutional Court.

The data retention obligation came into force in Austria on 1 April 2012. Shortly after, the Austrian AK Vorrat started a campaign to file a complaint at the Constitutional Court. Within a few weeks, 11 139 Austrians supported the action and declared their will to affiliate the complaint.

On 18 December 2012, the Constitutional Court Judges announced that they shared the reservations of these citiziens. "In the overwhelming number of cases, data retention concerns persons who do not cause any ground for their data being retained. The authorities capture the data of these individuals and are then in possession of information about their private behaviour. In addition, there is an heightened risk of abuse", explains Gerhart Holzinger, president of the Austrian Constitutional Court, continuing: "The Constitutional Court is under an obligation to turn to the CJEU if it has doubts on the interpretation of the Union law. We have doubts that the EU Directive on Data Retention is really compatible with the rights guaranteed by the Charter of Fundamental Rights of the European Union".

This decision to seek a preliminary ruling from the CJEU has a suspensive effect on the proceedings pending with the Constitutional Court in Austria. Once the CJEU has ruled on the questions submitted to it, the Constitutional Court will resume its deliberations. While the matter has been referred to the CJEU, data retention remains in force in Austria. The Constitutional Court says it does not have any means to provisionally suspend the relevant provisions at its own initative.

The Court's decision is a very important stage win for the AK Vorrat activists and the concerned citizens. Lawyer Ewald Scheucher who filed the complaint on behalf of the 11 139 Austrians considers the decision as the best possible result – as the CJEU is the supreme body on this matter. Thus, it is the European Court which has the power to sound the death knell for data retention in Europe.

Constitutional Court has reservations against data retention and turns to the CJEU (18.12.2012)

Judgement (only in German, 18.12.2012)

English version will be available at

AK Vorrat: Constitutional Court shares reservations of 11,139 citizens (only in German, 20.12.2012)

(Contribution by Alice Sedmidubsky -



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