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Data Retention Directive invalid 09/04/2014 The Court of Justice of the European Union has issued a ruling declaring the Data Retention Directive to be invalid.

Data Retention Directive invalid

The Court of Justice of the European Union has issued a ruling declaring the Data Retention Directive to be invalid.

It says that the Directive entails a wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data, without that interference being limited to what is strictly necessary.

This is because it:

  • covers, in a generalised manner, all individuals, all means of electronic communication and all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime.
  • fails to lay down any objective criterion which would ensure that the competent national authorities have access to the data and can use them only for the purposes of prevention, detection or criminal prosecutions concerning offences that, in view of the extent and seriousness of the interference with the fundamental rights in question, may be considered to be sufficiently serious to justify such an interference.
  • so far as concerns the data retention period, imposes a period of at least six months, without making any distinction between the categories of data on the basis of the persons concerned or the possible usefulness of the data in relation to the objective pursued. Furthermore, that period is set at between a minimum of six months and a maximum of 24 months, but the Directive does not state the objective criteria on the basis of which the period of retention must be determined in order to ensure that it is limited to what is strictly necessary.
  • does not provide for sufficient safeguards to ensure effective protection of the data against the risk of abuse and against any unlawful access and use of the data. It notes, inter alia, that the Directive permits service providers to have regard to economic considerations when determining the level of security which they apply (particularly as regards the costs of implementing security measures) and that it does not ensure the irreversible destruction of the data at the end of their retention period.
  • does not require that the data be retained within the EU. Therefore, the directive does not fully ensure the control of compliance with the requirements of protection and security by an independent authority, as is, however, explicitly required by the Charter.

See the ruling and the press release

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