Blanket Retention of Communications Data in the Case Law of European Courts

The article deals with one of the most controversial European directives – Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC – and its judicial reflections. DRD aims to harmonise Member States’ provisions concerning the obligations of the providers of publicly available electronic communications services or of public communications networks with respect to the retention of certain data which are generated or processed by them, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law. The first chapter focuses on the principles of DRD. It explains arguments legitimizing this act. The second chapter is entitled “criticism against DRD”. The formal criticism concerns the adequacy of the reference to Article 95 EC Treaty. The European Court of Justice did not recognize this opposition in case C-301/06. Polemics against the content of DRD are directed against the weakening of the presumption of innocence. The Court of Justice of the European Union has not so far dealt with this problem. The Romanian Constitutional Court accepted that argument. The third chapter concerns the criticism against the implementation of the DRD by the Member States, represented by the decision of the German Federal Constitutional Court, the Czech Constitutional Court, the Bulgarian Supreme Administrative Court and the Supreme Court of Cyprus. These decisions oppose against the laws of Member States which unreasonably or disproportionately restrict the protection of privacy. The fourth chapter focuses on the proportionality test, respectively the values which the legislation of the Member States protects, its suitability or usefulness and the proportionality in the strict sense. The article highlights the conclusion that these decisions have not been so far implemented in the laws of the Member States. In some cases it can be a difficult task.