Brussels, 19/07/2016 (Agence Europe) - Member states can impose a general obligation to conserve users' data upon telecommunication operators only in order to prevent serious infringements and only for as long as certain provisions of the Charter of Fundamental Rights of the EU are scrupulously guaranteed, Advocate General Henrik Saugmandsgaard Oe told the court of justice of the EU on Tuesday 19 July.
This matter has been brought before the Court of Justice once again, following the resounding judgement of April 2014 which overturned the European directive on data conservation (EUROPE 11056). Today, it must specify the scope of this judgement in the national context, dealing with two joined cases (C-203/15 and C-698/15) which relate to the regulatory framework in force in Sweden and the United Kingdom.
The Court must state whether these two regimes, which place a general data conservation obligation on providers, are compatible with EU law. The data in question identify and locate the source and destination of the information, data regarding the date, time and duration of the communication and determine the type of communication and type of equipment used.
In the view of the Advocate General, there is theoretically no contradiction between regimes of this kind and EU law, as long as they are proportionate and offer certain guarantees. They must, for instance, be accompanied by legislative or regulatory measures preventing any arbitrary measures. They must also respect the “essential content” of the right to privacy and the right to the protection of data of a personal nature laid down in the Charter.
As for the aims pursued, these may only correspond to the fight against serious infringements, rather than simple infringements or in order to ensure the correct unfolding of a non-criminal procedure. As regards the resources, the member states must respect the judgement of the Court from 2014 as regards access to data, the amount of time for which they are kept and the protection and security of the data. (Original version in French by Jan Kordys)