ECJ Hearing: eco and SpaceNet Seeking to Overturn German Blanket Data Retention

With the support of eco – Association of the Internet Industry, SpaceNet AG wants to put an end to blanket data retention. With this in mind, the company had already filed a lawsuit against the act at the Administrative Court in Cologne in 2016. In September 2019, the German Federal Administrative Court submitted several fundamental questions to the European Court of Justice (ECJ) for clarification.

Now, on 13 September 2021, the European Court of Justice has heard oral arguments on whether Germany’s obligation to retain traffic and location data without cause and on across the board is in accordance with Union law – including the EU Charter of Fundamental Rights. The Advocate General will deliver his opinion on the basis of the oral hearing. The ECJ ruling will then follow a few months later.

The ECJ pointed out that it was judging on the basis of the applicable law, the ePrivacy Directive, and that the general retention of data without an authorisation was not in line with this. In this respect, several judges expressed clear doubts about the compatibility of the German regulations with EU law: the data retention was without any reason. The protection of professional secrets (e.g. doctors, lawyers) was also insufficient. Unlike counselling centres, they cannot be exempted upon application. In addition, the comparatively strict access conditions for authorities in Germany could not compensate for the fact that the German regulations on the general storage of data, without any reason, violated the required rule-exception relationship.

Furthermore, it was not up to the ECJ, but to the legislator to create new regulations. The Court, however, was not convinced by the Federal Republic of Germany’s argument that targeted data retention applies in Germany.

eco Chair of the Board Oliver Süme hopes that the ECJ will rule in favour of data protection and the privacy of users. Süme: “Blanket digital surveillance is not what we need; rather, we require trust in the integrity, security and privacy of digital communication. The next German federal government should also immediately take this into account and finally abolish the act on data retention – if necessary, even without a signpost from Luxembourg.”  nächste Bundesregierung dringend berücksichtigen und das Gesetz zur Vorratsdatenspeicherung endgültig abschaffen – im Zweifel auch ohne Wegweiser aus Luxemburg.“

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