19/01/2017 - - General
New CJEU ruling on data retention with potential impact on judicial cooperation in criminal matters

The Court of Justice of the European Union (CJEU) delivered an important preliminary ruling on data retention in the Joined Cases C-203/15 Tele2 Sverige AB v Post-och telestyrelsen and C-698/15 Secretary of State for the Home Department v Tom Watson and Others.

Thus, in its judgement dated 21 December 2016, the CJEU responded to two requests for preliminary rulings related to the invalidation by the CJEU on the 8 April 2014 of Directive 2006/24/EC governing data retention. The requests for preliminary rulings sought notably to clarify the impact of the judgement decision of the so called data Retention Directive judgement (In the case C-293/12 of 8 April 2014, Digital Rights Ireland Ltd) at national level. Of particular interest was the compatibility of a general data retention obligation with the fundamental rights enshrined in EU law.

The CJEU found that EU law precludes a general and indiscriminate retention of traffic data and location data. The Court however recalled that it is open to Members States to make provision, as a preventive measure, for targeted retention of that data solely for the purpose of fighting serious crime, provided that such retention is, with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the chosen duration of retention, limited to what is strictly necessary. Access of the national authorities to the retained data must be subject to conditions, including prior review by an independent authority and the data being retained within the EU.

As a result of this judgment, national legislation might need to be adjusted to comply in full with the specific requirements set by the Court. Implementation of the safeguards to be put in place at national level will also need to be carefully taken into consideration. In turn, this situation might  impact on judicial cooperation, mainly but not exclusively, in the context of securing admissibility of evidence.

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