05 March 2017
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Council calls in the "experts" to try and get round the law
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Retention of electronic communication data - next steps (LIMITE doc no: 6713-17, pdf):
In the Watson/Tele2 case the Council recognises that:
"the Court ruled that Article 15(1) of Directive 2002/58/EC (the ePrivacy Directive), read in the light of the Charter of Fundamental Rights, must be interpreted as precluding national legislation "which, for the purpose of fighting crime, provides for general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication", as well as national legislation that "governs the protection and security of traffic and location data and, in particular, access of the competent national authorities to the retained data, where the objective pursued by that access, in the context of fighting crime, is not restricted solely to fighting serious crime, where access is not subject to prior review by a court or an independent administrative authority, and where there is no requirement that the data concerned should be retained within the European Union,,,
expressed their concerns on the implications of the judgment, which might hinder the effectiveness
of the investigations and prosecutions of crimes. The majority
of delegations reiterated the support expressed at the informal
ministerial meeting in Valletta on 26-27 January 2017 for a coordinated approach at EU level and for discussions to continue at expert level." [emphasis added].
The Commission 3 years after the Digital Rights is now confronted by a confirmation by the Court that such laws are unlawful is considering:
"how national data retention laws can be construed in conformity with the judgment:"
See: In December 2016: Watson/Tele2 Sverige AB case: The Members States may not impose a general obligation to retain data on providers of electronic communications services (Press release, pdf) and Full-text of CJEU judgment (pdf) and in 2014: "Digital Rights Ireland and Seitlinger and others": The Court of Justice declares the Data Retention Directive to be invalid (Press release, pdf) and Judgment (pdf) - the CJEU declared the measure was unlawful since it was adopted in 2006.
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