With today’s approval of the Telecommunications Modernisation Act, the German Federal Council (Bundesrat) has once again adopted data retention. However, this is not to be applied until the European Court of Justice (EUCJ) has made its decision regarding the German regulations on data retention.
eco – Association of the Internet Industry sharply criticises the German Federal Government, the majority in the Bundestag, and now also in the Bundesrat, for ignoring the case law of the ECJ on data retention, and instead even want to extend it. With this decision, the legislator is once again breaking EU law. Only in March of this year, the European Court of Justice declared an Estonian regulation which corresponds almost one-to-one to Section 113b para. 2 of the Telecommunications Act (TKG) – and regulates the general and unsolicited retention of who calls whom from which number, how often and for how long – to be contrary to EU law.
On this, the eco Association’s Vice-Chair Klaus Landefeld says:
“Today’s decision by the Bundesrat once again confirms the considerable scepticism about the compatibility of the draft law with EU law. Since 2014, the European Court of Justice has regularly declared national regulations on data retention to be contrary to EU law, including in Sweden, France, Belgium and most recently in Estonia. Germany now apparently wants to earn this scolding as well. Those who argue here with a shorter retention period or fewer data categories ignore the fact that this does not change anything about the inadmissibility of retention without cause.
The German Federal Government’s pledge not to apply data retention until the EUCJ has made its ruling is a case of horse-trading unworthy of a constitutional state. Laws are being passed in all seriousness that are not to be applied by the executive. This is a declaration of bankruptcy with regard to the observance of civil rights, and at the same time it creates unreasonable legal uncertainty for the providers, who are not helped by a declaration in the minutes by the federal government.”