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European Court of Justice data retention cases to be heard on 9 July

3 July, 2013
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This article is also available in:
Deutsch: EuGH-Anhörung zur Vorratsdatenspeicherung


On 9 July 2013, the European Court of Justice will have a hearing before the Grand Chamber with two joined cases on the validity of the data retention directive (2006/24/EC).

The two cases were brought by the Irish High Court (C-293/12 Digital Rights Ireland) and by the Austrian Constitutional Court (C-594/12 Seitlinger and Others) and refer to the compatibility of the data retention directive with Articles 7, 8 and 11 of the Charter of Fundamental Rights of the European Union.

The ECJ has advised the parties that the hearing will focus on Articles 7 and 8 of the Charter. The judges will explore the purpose and benefits of data retention.

The parties involved have received a series of questions from the Court to be answered at the hearing. Here they are:

"Section II 1 The parties are invited to comment at the hearing as to whether the area covered by the Directive 2006/24 data retention can serve the purpose of detection and prosecution of serious crime. You will be asked in this context to an explanation of the impact it has that many options for anonymous use of electronic communications services exist.

2 The parties will be asked to explain at the hearing as to whether and to what extent it is possible, using the information to create personal profiles and use, from which - independent of the question of the legality of such a process - the social and professional environment a person, their habits and activities are described.

3 As is - especially considering the answer to the question II.2 - the interference with the guaranteed under Articles 7 and 8 of the Charter of Fundamental Rights to assess individuals whose data was stored?

4 The parties will be asked in light of the case law of the Court that the European Union legislature is obliged to base its choice on objective criteria to answer the following questions at the hearing:

a. In a What objective criteria the EU legislature based its decision in adopting Directive 2006/24?

b. On what data the legislature was to assess the usefulness of data retention for the detection and prosecution of serious crime?

c. Due to data which the legislature could assume that storage of the data over a period of at least six months is required?

d. Are there any statistics which suggest that the detection and prosecution of serious crime since the adoption of the Directive has improved 2006/24?

5 If a protected by the legal order of the EU fundamental rights and protected by the legal system in general interest objective against each other, is the proportionality requires a restriction of the fundamental right in accordance with the case law of the Court that the requirements for the protection of the law with the relevant target be reconciled. The necessary proper balance must be made before the adoption of the measure in question. Moreover, the exceptions and restrictions must be limited to the protection of personal data to the absolute minimum.

- Taking account of this case law, the parties are asked to answer the following questions at the hearing:

a Has the European Union legislature made before the adoption of Directive 2006/24, a proper balance between the requirements of the protection of fundamental rights and the standing at issue in the present case, the public interest? He has in this context the importance of guaranteed under Articles 7 and 8 of the Charter of Fundamental Rights of fundamental rights and the fact that numerous opportunities for anonymous use of electronic communications services are taken into account?

b. Can be assumed, given the importance of the fundamental rights concerned that the security measures adopted by the data retained in the legislature, necessary and sufficiently precise to prevent any possible abuse? Is it possible in the face of such arrangements that the provider of electronic communications services as defined in Directive 2006/24, the required data storage to other outsourcing service providers in other Member States or in third countries, particularly because of the cost of that storage? What impact does such outsourcing of data storage on the security of data?

c. Can - especially considering the answer to the question to 11.5.3 - be assumed that the legislature has limited the interference with the fundamental rights concerned to the absolute minimum?"

The lawyers of all parties, as well as the Austrian Data Protection Commission will be given 15 minutes speaking time at the hearing. Following the comments of several EU Member States, representatives of the EU Commission and the Council of Ministers, Peter Hustinx, the EU commissioner for data protection, will have the last word.

A final judgement in this case can be expected next year from ECJ.

Data retention: European Court hearing on 9 July - provides "revolutionary issues" (only in German, 26.06.2013)
https://netzpolitik.org/2013/vorratsdatenspeicherung-europaischer-geri...

“As large a charter as the wind”?* ECJ to hold hearing in data retention cases, focusing on Charter of Fundamental Rights (15.06.2013)
http://www.contentandcarrier.eu/?p=435

They want to know everything (only in German, 26.06.2013)
http://www.sueddeutsche.de/politik/europaeischer-gerichtshof-zu-datens...

EDRi-gram: EC goes after governments for not implementing data retention (5.06.2013)
http://www.edri.org/edrigram/number11.11/ec-fines-sweden-data-retentio...

Data Retention in Austria: Constitutional Court turns to the CJEU (16.01.2013)
http://www.edri.org/edrigram/number11.1/data-retention-austria

 

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