The Way to Luxemburg: National Court Decisions on the Compatibility of the Data Retention Directive with the Rights to Privacy and Data Protection
25 Pages Posted: 19 Oct 2015
Date Written: October 15, 2013
The Data Retention Directive has given rise to significant concerns within the European Union regarding its compatibility with existing fundamental rights, and more specifically with the rights to privacy and data protection. Since 2008 numerous national courts have declared unconstitutional specific provisions of the national laws transposing the Directive on the basis that they violate the rights to privacy and data protection. Although a first impression may be created that the national courts have decided upon the compatibility of the Directive with those rights, a closer look into the reasoning of the various courts reveals that this might not be the case. To date, two requests for a preliminary ruling on the compatibility of the Data Retention Directive with fundamental rights have been filed at the Court of Justice of the European Union. This paper studies the rationale of the decisions of the national courts that have dealt with data retention with regard to the rights to privacy and data protection in order to identify the main arguments in the reasoning of the courts. The paper also examines whether these national court decisions could influence the Court of Justice, in view of its anticipated decision with regard to the cases pending before it.
Keywords: data retention, CJEU, national courts, proportionality
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