Brussels, 12/12/2013 (Agence Europe) - In conclusions delivered on 12 December, Advocate General Pedro Cruz Villalón considers that the directive on data retention (2006/24/EC) is, on the whole, incompatible with the Charter of Fundamental Rights. He nonetheless suggests suspending the effect of this statement of invalidity in order to allow the legislator a reasonable amount of time in which to adopt the measures needed to remedy the situation.
The advocate general's conclusions are presented to answer the request made by the High Court of Ireland (case C-293/12) and that of the Constitutional Court of Austria (case C-594/12), called upon to rule on the legality of their respective legislations regarding the fundamental right of citizens to having their privacy respected.
The advocate general considers, in particular, that the directive violates that right of privacy by making it an obligation for telephone or electronic communication service operators to collect and keep data on communication traffic and location (but not on the content of those communications). That data can allow comprehensive mapping of a person's movements and even a complete and detailed picture of a person's private identity. Data can be used for unlawful purposes, if not malicious purposes, all the more as it is not stored by the public authorities but by telecommunications companies in places undetermined in cyber-space. As a consequence, the directive should have defined beforehand the fundamental principles governing the definition of minimum guarantees that provide a framework for access to data collected and kept for exploitation. By not defining such principles, the directive does not comply with the requirements of the Charter of Fundamental Rights whereby any restriction of the exercise of fundamental rights should be covered by the law. Cruz Villalon considers, moreover, that the directive does not respect the principle of proportionality by making it an obligation for member states to ensure that data is conserved during a length of time of over two years. None of the stances put to the Court in fact justify a maximum duration of data retention of over one year.
Finally, the advocate general proposes to keep the effects of invalidity of the directive suspended in order to leave the legislator a reasonable amount of time in which to correct the reasons of invalidity. Although the restriction of fundamental rights is certain and makes it urgent to take action, corrections can be made by member states as part of the transposition measures. Also, the advocate general states, on the subject of the maximum duration of data retention, member states have generally exercised their authority with moderation. (FG/transl.jl)