ECJ against data retention without any reason or limit

In the press release of the judgment of 5.4.2022, the ECJ has once again ruled that the collection of private communications data is unlawful without any reason or limit. This reinforces the rulings of 2014, 2016 and 2020, according to which changes are necessary at EU and national level.

In this judgment, the ECJ states that the decision to allow data retention as evidence in the case of a long-standing murder case is for the national court in Ireland.

Questions regarding this issue were submitted in 2020 by Germany, France and Ireland. The EU Advocate General confirmed, in a legally non-binding manner, the incompatibility of national laws with EU fundamental rights.

However, a first exception to data retention resulted from the 2020 judgment, according to which, in the event of a serious threat to national security, storage for a limited period and subject to judicial review was recognized as permissible.

Subsequently, a judgment in 2021 stated that national law must provide clear and precise rules with minimum conditions for the purpose of preventing abuse.

According to the ECJ, an without cause storage with restriction should be allowed in the following cases:

• When limited to specific individuals or locations;
• No concrete evidence of crime necessary, local crime rate is sufficient;
• Frequently visited locations such as airports and train stations;
• When national laws require the identity of prepaid cardholders to be stored;
• Quick freeze, an immediate backup and temporary data storage if there is suspicion of crime.

All of these are to be used only to combat serious crime or prevent threats to national security.

In Germany, Justice Minister Marco Buschmann is in favor of a quick freeze solution as an alternative that preserves fundamental rights. However, the EU states are to work on a legally compliant option for data retention despite the ECJ’s criticism of this principle.