engleski

National data retention measures under recent EU jurisprudence

In 2014 the CJEU issued a landmark ruling invalidating the Data Retention Directive (C-293/12 and C-594/12: the 2014 ruling), in core of which lay the concerns of exercised arbitrary powers (domination) of the State in enforcement of mass data retention programmes in the prevailing interest of fighting (serious) crime. Following that ruling a wide array of questions opened as to compliance of existing national data retention schemes with EU law, some of which were approached by the CJEU in its subsequent judgments (C-203/15 and C-698/15 ; C-207/16). This paper closely examines these judgments together with rules of the ePrivacy Directive that are relevant for determination of applicability of EU requirements to national data retention measures and their compatibility under EU law. The analysis shows that the legal area of data retention encompasses a wide and complex array of concerns in respect of compliance with communications privacy and data protection guarantees of affected individuals, not least on account of the wide scope of legal measures it may encompass, and the objectives surrounding them. Additionally to the needed clear and precise legislation, supported by objective evidence on the necessity of a concrete retention measure, the support of requirements for validity of retention measures under EU law also presupposes implementation of privacy and data protection-preserving technological measures in relation to retained data, and their subsequent use and analysis.

data retention ; electronic communications ; e-Privacy Directive ; CJEU ; targeted retention

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