For the purposes of combating market abuse offences, European Union law does not allow for the general and indiscriminate retention of traffic data for a period of one year from the day of registration by operators of electronic communications services, the Court of Justice of the EU ruled on Tuesday 20 September (joined cases C-339&397/20).
In France, two litigants accused of insider dealing are challenging the French Cour de Cassation basing its decision on national provisions, which do not comply with EU law, that allowed the general and undifferentiated retention of personal data from telephone calls and unlimited access to such data by AMF investigators. They are based on the case law of the Court (Tele2 Sverige and Watson, see EUROPE 11694/16).
For the Court, the ePrivacy Directive (2002/58/EC) is the reference act for the retention and, more generally, the processing of personal data in the electronic communications sector. This directive also governs the records of traffic data held by telephone operators, which the competent authorities within the meaning of Directive (2003/6/EC) and the Market Abuse Regulation (596/2014) can obtain from them.
The European Court of Justice confirms its case law prohibiting the general and undifferentiated retention of traffic data for a period of one year from the day of recording of electronic communications. And EU law also precludes a court from restricting the temporal effects of a declaration of invalidity of national legislation requiring service providers to retain traffic data across the board in an undifferentiated manner.
The admissibility of evidence obtained through such unlawful retention is a matter for national law, subject to compliance, inter alia, with the principles of equivalence and effectiveness, the Court said. The latter principle requires the national criminal court to disregard information and evidence obtained by means of generalised and undifferentiated data retention that is incompatible with EU law, if the persons concerned are not in a position to comment on it effectively.
See the Court's judgment: https://aeur.eu/f/36c (Original version in French by Mathieu Bion)