ECJ judgment
German data retention violates EU law
In a new judgment, the European Court of Justice has confirmed its position on the controversial German data retention. photo
© Jens Büttner/dpa-Zentralbild/dpa
Greens and FDP feel their criticism has been confirmed by the decision of the European Court of Justice on data retention. But the verdict leaves the legislature a certain amount of leeway.
With a new judgment, the highest EU court has set strict limits on the storage of telecommunications data for the investigation of criminal offenses in Germany. The European Court of Justice (ECJ) declared on Tuesday that the German regulation on data retention, which has been suspended since 2017, is incompatible with EU law (C-793/19 and C-794/19). The coalition partners in Berlin drew different conclusions from the verdict.
According to the ECJ, the communication data of all citizens must not be stored without cause. A targeted and time-limited storage of the data is only possible in the event of a serious threat to national security, the new judgment said. To combat serious crime, it may also be possible to retain IP addresses.
Federal Minister of Justice Marco Buschmann (FDP) said in Berlin: “The coalition agreement makes it clear what needs to be done now. Communication data is no longer stored without cause.” In the future, such data could only be stored if “there is sufficient reason, i.e. the suspicion of a serious criminal offense and a plausible reason for this data to be connected with this crime”. Buschmann announced that he wanted to present a draft bill for a new law within two weeks in order to have a clear legal position quickly. After the verdict was announced, he wrote on Twitter: “We will now quickly and finally remove data retention without cause from the law.”
Faeser: Judgment also allows storage
Federal Minister of the Interior Nancy Faeser (SPD) said that the European Court of Justice had clearly clarified which data should be stored to protect national security and fight serious crime. He also expressly decided: “IP addresses may be stored in order to be able to fight serious crime.” In addition, it allows specific storage arrangements for specific locations such as airports, train stations or areas with a high crime rate. These legal options must now also be used, said Faeser. The resolute fight against sexualised violence against children is particularly important to her. The judgment of the European Court of Justice is “another harsh smack” for the advocates of the storage of data without cause, who have not yet succeeded in presenting a constitutional regulation, according to the Greens in the Bundestag. Green Party leader Omid Nouripour said: “In the traffic lights, we have already ruled out mass surveillance of all citizens without cause in the coalition agreement.” Instead, the coalition wants to “take effective instruments based on the rule of law to fight serious crime”. It is therefore good that the Federal Minister of Justice will present a draft for a quick freeze regulation. The federal government could then “initiate a measure that specifically averts dangers and protects the fundamental rights of the citizens”.
The deputy chairman of the Union faction, Andrea Lindholz (CSU), said: “It’s good that there is finally clarity.” She called on the federal government to quickly submit a draft law.
ECJ sees encroachments on fundamental rights without justification
According to the judges, the previous German regulation, which has not been applied since 2017 due to legal uncertainties, can allow very precise conclusions to be drawn about the private life of the person – for example about habits of daily life or the social environment. This allows a profile of these people to be created. The judges explained that this was an encroachment on fundamental rights that required separate justification. The ECJ thus remained true to its line. In recent years, the highest EU court has repeatedly overturned or severely restricted national data retention regulations.
SpaceNet AG, which had brought the lawsuit, welcomed the verdict: “After six years of proceedings, we are glad that the issue of data retention has finally been clarified. Now there is legal certainty again for the Internet industry, our customers and all citizens,” said the board of directors SpaceNet AG, Sebastian von Bomhard.
The digital association Bitkom was also pleased: “It makes no sense to continue working on this instrument of storage of connection data without cause. Politicians are called upon to use other, legally compliant options for digital forensics,” said Managing Director Bernhard Rohleder.
The national chairman of the police union, Jochen Kopelke, demanded that two things should be taken into account during the deliberations of the traffic light government on a successor regulation for data retention: The extent to which data is handed over to the investigating authorities should not be left to the discretion of the telecommunications provider. In addition, a short storage period drastically limits the usefulness. He said: “A legally compliant storage of traffic data that works in everyday police work is, so to speak, practiced protection of victims and optimized criminal prosecution.”