22.07.2016

CJEU: Advocate General’s Opinion on data retention by providers of electronic communication services

Just for my legal memory ...
Advocate General’s Opinion in Joined Cases C-203/15 Tele2 Sverige AB v Post-och telestyrelsen and C-698/15 Secretary of State for Home Department v Tom Watson and Others (press release):
VI –  Conclusion
263. In light of the foregoing, I propose that the Court’s answer to the question referred for a preliminary ruling by the Kammarrätten i Stockholm (Administrative Court of Appeal, Stockholm, Sweden) and the Court of Appeal (England & Wales) (Civil Division) should be as follows:
Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (‘Directive on privacy and electronic communications’), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, and Articles 7, 8 and 52(1) of the Charter of Fundamental Rights of the European Union are to be interpreted as not precluding Member States from imposing on providers of electronic communications services an obligation to retain all data relating to communications effected by the users of their services where all of the following conditions are satisfied, which it is for the referring courts to determine in the light of all the relevant characteristics of the national regimes at issue in the main proceedings:
–        the obligation and the safeguards which accompany it must be provided for in legislative or regulatory measures possessing the characteristics of accessibility, foreseeability and adequate protection against arbitrary interference;
–        the obligation and the safeguards which accompany it must observe the essence of the rights recognised by Articles 7 and 8 of the Charter of Fundamental Rights;
–        the obligation must be strictly necessary in the fight against serious crime, which means that no other measure or combination of measures could be as effective in the fight against serious crime while at the same time interfering to a lesser extent with the rights enshrined in Directive 2002/58 and Articles 7 and 8 of the Charter of Fundamental Rights;
–        the obligation must be accompanied by all the safeguards described by the Court in paragraphs 60 to 68 of its judgment of 8 April 2014 in Digital Rights Ireland and Others (C‑293/12 and C‑594/12, EU:C:2014:238) concerning access to the data, the period of retention and the protection and security of the data, in order to limit the interference with the rights enshrined in Directive 2002/58 and Articles 7 and 8 of the Charter of Fundamental Rights to what is strictly necessary; and
–        the obligation must be proportionate, within a democratic society, to the objective of fighting serious crime, which means that the serious risks engendered by the obligation, in a democratic society, must not be disproportionate to the advantages which it offers in the fight against serious crime.