German Data Retention Decision: Early Analysis

The latest issue of the German Law Journal contains what may be the first academic analysis of the Bundesverfassungsgericht decision in the data retention case – previously discussed here. The article, entitled ‘Pitting Karlsruhe Against Luxembourg? German Data Protection and the Contested Implementation of the EU Data Retention Directive’ by Christian DeSimone offers a historical overview of data protection in Germany and a discussion of the adoption of the Data Retention Directive and its implementation in Germany. There is also some brief discussion of the BVerfG decision. As no English translation of the decision is available to date, it is not possible to comment on the usefulness of the analysis of the BVerfG decision. However, the article contains a beautifully succinct comment on the reasons for the adoption of the EU law as a Directive rather than a Framework Decision: “The politics of legislative process trumped legal orthodoxy”. The article is available for free and the full citation is [2010] 11(3) German Law Journal 291.

EU Data Retention: Death of a Directive?

The Data Retention Directive was adopted in the aftermath of the public transport attacks in London in July 2005. It requires telecommunications service providers to retain user traffic data for all telecommunications users for a period of six months to two years. The Directive has been highly criticised for requiring generalised data surveillance within the EU and thus infringing privacy of EU citizens.

Since its adoption, the Directive has been challenged in several Member States. The German Administrative Court of Wiesbaden, Supreme Administrative Court of Bulgaria and Romanian Constitutional Court had all found some or all of the measure to be unlawful. Furthermore, Sweden has been on the receiving end of an enforcement action by the Commission for its failure to implement the measure. The Swedish Government continues to equivocate as the matter is likely to be contentious in the upcoming General Election there. However, as widely reported (Irish Times, Financial Times), the German Federal Constitutional Court has now dealt what may be the death blow to the measure.