[Blog] No obligation to transpose the data retention directive (13 May 2012)

This is how we argue that there is no obligation for EU Member States to transpose the EU's controversial data retention directive 2006/24/EC:

  1. Article 8 ECHR prohibits Germany to transpose that directive. As the Constitutional Rourt of Romania has found, blanket communications data retention violates Article 8 ECHR. The ECHR is just as binding on Member States as EU law. As the EU respects the ECHR there can be no obligation to transpose secondary EU law that violates the ECHR.
  2. The data retention directive will soon be annulled by the ECJ. The Irish High Court is to refer to the ECJ the question of whether the data retention directive is in line with the EU Charta on Fundamental Rights. It is entirely disproportionate to require blanket communications data throughout the EU merely on the basis of preventing market distortion (Article 114 TFEU). More information
  3. In the meantime Member States can request under Article 114 (4) TFEU to be exempted from having to implement the directive, with a view of maintaining a higher level of protection of fundamental rights than the EU does. If the Commission refuses, the Member State should take the matter to the ECJ. More information (in German)
Blog post by Patrick - Opinions voiced in this post reflect the author's personal point of view.