EU Anti-Terror Data Retention Directive Meeting Resistance In EU Courts

The European Court of Justice in a decision dated 30 May ordered Sweden to pay a lump sum of €3 million euros for its delay in transposing the controversial 2006 EU data retention directive into national law in time.

The data retention directive attempted to harmonise member state provisions for public communication services providers to store traffic and location data of every single user to allow for later crime investigation and prosecution.

The directive pushed through following the US attacks of 11 September 2001 and part of a flurry of anti-terror measures in the EU and its member states met with considerable resistance in several member states. Opponents warned that data would be used beyond anti-terror investigations, and even in cases against copyright infringement.

Sweden lost the first case in 2010 for violating its obligations to transpose the directive by September 2007. A new Swedish government finally implemented the data retention provisions on 1 May 2012. Several other member states did not yet implement the legislation, according to the Commission, or faced defeats in their national constitutional courts. The Commission just last week warned Belgium for not fully transposing the directive.

The transposition into Czech law was annulled by its Constitutional Court in 2011. The German law was stopped by the German Constitutional Court in 2010, and the Commission’s case against Germany is pending.

German liberal politician Jimmy Schulz in a reaction to the decision from Luxembourg this week wrote that he still is expecting the data retention directive itself to be declared in breach of EU constitutional law.

Both the Austrian and the Irish high courts have referred cases to the European Court of Justice on the directive in 2012 arguing it might violate the EU Charter of Fundamental Rights of the European Union. The Commission meanwhile postponed the regular review of the controversial directive which according to recent reports is expected to be finalised in 2014.