German Blanket Data Retention Not Compliant with EU Law: eco-Supported Lawsuit Wins

  • Important signal set for the entire Internet industry: “The German federal government must react now”
  • SpaceNet AG: Blanket data retention is the wrong instrument for fighting crime
  • Administrative Court of Cologne decides: Blanket data retention infringes fundamental European rights

 German blanket data retention is not compliant with European Union law. This is the decision which has been reached by the Administrative Court of Cologne. Supported by eco – Association of the Internet Industry, the Internet provider SpaceNet filed a suit (Ref. 9 K 3859/16) in April 2016, the aim of which was to achieve a landmark decision which would finally put a halt to the blanket retention of data. The decision of the Administrative Court of Cologne is of central consequence for the Internet and telecommunications companies concerned.

Important signal set for the entire Internet industry: “The German federal government must now react”.

“We are very pleased with the outcome of the case and with the ruling, which sends such an important signal to the entire Internet industry. We believe that this confirms our fundamental concerns regarding the reintroduction of blanket data retention. The German federal government must now react immediately and put an end to this costly odyssey for companies. We finally need legal and planning security,” states Oliver Süme, Chair of the Board at eco.

With blanket data retention, the traffic and location data of the users of most telecommunications services are retained without cause.

SpaceNet AG: Blanket data retention is the wrong instrument for fighting crime

Due to its far-reaching infringements of fundamental rights, blanket data retention is extremely contentious – and yet its actual benefits in combating crime have yet to be proven. The technical implementation, on the other hand, is both complex and expensive, with costs to companies of an estimated 600 million Euros.

Sebastian von Bomhard, CEO of the complainant SpaceNet AG, sees the position of his company as having been justified. “When it comes to massive infringements of fundamental civil rights, especially in the digital sphere, we have always been vigilant and taken an unequivocal stand,” says von Bomhard. “Blanket data retention may allow citizens to be spied upon, but it certainly cannot catch terrorists. We are therefore very pleased with the verdict.”

Blanket data retention encroaches on fundamental European rights

The Administrative Court of Cologne has ruled that Paragraphs 113ff of the German Telecommunications Act (TKG) do not meet the requirements of the European Court of Justice (EUCJ).

“A national regulation providing for a general and indiscriminate blanket retention of data is inadmissible, according to the Administrative Court of Cologne. It is possible to draw very precise conclusions about the private life of persons from the totality of the retained data, and the retained storage serves to create the impression of constant monitoring of private life. Any infringement of fundamental rights flowing from a national regulation which provides for the retention of traffic and location data is to be viewed with particular gravity. Such a violation of fundamental rights can only be justified in instances where serious criminal offenses are being tackled,” explains Prof. Matthias Bäcker, Counsel for Plaintiff.

At the end of 2016, the European Court of Justice had already ruled on comparable regulations in Sweden and Great Britain, specifying that the fundamental right to respect for private life requires that the retention of personal data must remain an exception and not the rule. Retention should be limited to what is absolutely necessary.

Background:

Courts have repeatedly adjudicated European and national regulations on blanket data retention to be unlawful, starting in 2010 with the ruling of the German Federal Constitutional Court on the German government’s first regulatory attempt. In 2014, the EUCJ repealed the European Directive (EC/2006/24) on blanket data retention.

At the end of 2015, the German government coalition then passed a new version of the controversial bill. On 25 April 2016, the Internet provider SpaceNet AG, supported by eco, filed a suit against this law with the Administrative Court of Cologne. The primary aim of this action was to bring about a landmark decision, which ultimately can only be reached by the European Court of Justice, with this to be achieved in particular through the presentation of fundamental legal points.

Such a landmark decision was reached at the end of 2016 by the EUCJ with regard to regulations in Sweden and Great Britain, which are essentially comparable with the German provisions. The Higher Administrative Court of North Rhine-Westphalia also came to the same conclusion and ruled on 22 June 2017 in a preliminary legal injunction that the German blanket data retention is not compatible with European Union law.

In their judgement of 20 April 2018, last Friday the Cologne judges fully complied with the decision of the Münster Higher Administrative Court, which on 22 June 2017 had already exempted SpaceNet AG from their blanket data retention obligation. Following on from this June 2017 decision, just a few days later, the German Federal Network Agency had also suspended the blanket data retention obligation for all other providers.

An appeal can be lodged against the current ruling by the Administrative Court of Cologne; an appeal to the Federal Administrative Court in Leipzig is permitted.