In April last year the European Court of Justice (ECJ) invalidated the EU Data Retention directive. The court found it to be in breach with human rights to collect and store data about all citizens all telecommunications.
Since then some countries have backed down from the idea, some (like Germany) are trying to go forward with some form of Data Retention “light” and some EU states (like Sweden) tries to ignore the ECJ ruling all together, continuing the practice as if nothing happened.
In a rather unexpected statement today, the European Commission (EC) tries to duck out of this controversy.
As the European Commission has repeatedly said since the European Court of Justice annulled the EU Data Retention Directive: the decision of whether or not to introduce national data retention laws is a national decision. The European Commission has no intention to go back on this statement or reopen old discussions.
We are aware that data retention is often the subject of a very sensitive, ideological debate and that sometimes there can be a temptation to draw the European Commission into these debates. The European Commission is not ready to play this game.
We have been very clear that the Commission is not coming forward with any new initiatives on Data Retention. In the absence of EU rules, Member States are free to maintain their current data retention systems or set up new ones, providing of course they comply with basic principles under EU law, such as those contained in the ePrivacy Directive.
We are therefore neither opposing, nor advocating the introduction of national data retention laws.
It’s easy to understand that the Commission would like to keep away from this dispute. But what the EC says in the statement is not self-evident.
The ECJ invalidated the directive on the basis that it is in breach with human rights, such as they are defined in the EU Charter of Fundamental Rights and the European Convention on Human Rights.
And if Data Retention was unacceptable as an EU directive, it should also be unacceptable as national law in EU member states. The principal problem with Data Retention is the same, regardless.
Now, both the EU Charter of Fundamental Rights and the European Convention on Human Rights are parts of the EU treaties. And the EC is the Guardian of the Treaties. Hence, the EC should have an obligation to uphold the ECJ ruling on Data Retention — in all of the EU, at all levels.
But it won’t. As usual in the EU, rules and treaties only apply when in line with what the EU elite wants.