Data Retention Directive
The Data Retention Directive was one of the European Union, through the different national legislation of the EU Member States should be harmonized at stock for retention of telecommunications data directive. The harmonization should be ensured that the data for a specified period for the purpose of investigation and prosecution of serious crime are kept.
The directive was politically and legally controversial. While its proponents described the retention as an indispensable tool to combat terrorism and law enforcement, their critics pointed to their low efficacy and serious interventions in the Informational self-determination and privacy of citizens, whom they regarded as a further step towards a surveillance state.
On April 8, 2014, it was declared by the European Court to be invalid.
Content
The Directive required Member States of the European Union to adopt national laws by which certain data that are incurred in the provision and use of public electronic communication services had to be saved by the service providers at least six months in stock and more than two years could be saved.
Should be stored in particular, traffic and location data. Content data - ie the contents of e -mails and phone calls - should not be saved.
Data to be stored
The following categories of data had to be retained:
Genesis
At European level, the retention was first seriously discussed in 2002. In August 2002, the right-wing Danish government, which then held the Presidency put, a draft similar legislation. The design called for a storage period of twelve months. However, he was no majority.
Following the Madrid cable stops on 11 March 2004 the European Council instructed the Council to examine by June 2005 whether and what legislation should be adopted on data retention.
Subsequently, the governments of France, Ireland, Sweden and the United Kingdom took the initiative and brought on 29 April 2004 the draft Framework Decision on data retention in the Council of Ministers a (Council document 8958 /04). In view of the increasing cross-border crime and international response to the Madrid terrorist attacks they were a single European policy for the retention required. The design called for a minimum retention period of twelve months and a maximum storage period of 36 months. In contrast to the 2002s design retention should also be done to prevent crime and already committed not only to investigate and prosecute offenses. Moreover, the restriction to the most serious offenses and terrorism has been lifted. Even lighter offenses, such as copyright infringement by illegal file sharing, could have been prevented and then followed by retention.
The initiators understood the proposed framework decision as a measure of police and judicial cooperation in criminal matters. To such action under the so -called " EU third pillar", which were issued on the basis of Articles 29-42 of the EU Treaty, the Council decided on principle alone and unanimously. The European Parliament was indeed belongs; but the Council was able to override the opinion of Parliament.
Opponents of retention and members of the European Parliament responded to the project with criticism and accused the Council of Ministers competence arrogance before. They were of the view that retention grab at least partly in the area of the "first pillar of the EU " and thus within the jurisdiction of the EU Parliament in. The retention must therefore - if any - are inserted through an adopted jointly with the Council of the EU Parliament Directive. A framework decision of the Council was not sufficient.
In March 2005, the European Commission this legal opinion joined officially. EU Justice Commissioner Franco Frattini called on the Council to refrain from adopting the proposed Framework Decision.
Regardless of the Council in 2005, continued to work on a majority capable Framework Decision on data retention. As problematic and proved to inter alia, the different conceptions of national governments with regard to the retention periods.
However, the need for unanimity in the Council of Ministers could never be achieved for the Framework Decision.
The terrorist attacks on 7 July 2005 in London and the almost simultaneous takeover of the Presidency of the United Kingdom awarded the project a new impetus. The EU Commission, which faced the projects, at least since the recent terrorist attacks positive, put on 21 September 2005 against its own proposal for a directive. This represented a significant change in the choice of instruments represents a harmonization directive was voted first, namely in the European Parliament, and second, it was imperative on the basis of Article 95 of the EC Treaty, ie the approximation of the single market - and no longer at the 3rd column. This design was a compromise between the conflicting interests represent: Internet data should be stored at least six months, telephony data for at least twelve months. Longer periods may be permitted.
The European Parliament took up the Commission's draft, but changed it at the direction of the Committee on Civil Liberties, Justice and Home Affairs in some crucial points: Thus, for example, the list of data types to be stored shortened. In addition, the data should themselves may be evaluated only for the pursuit of particularly serious offenses. Overall, had the lead rapporteur of the Parliament, German MEP Alexander Alvaro, to take into account more than 200 amendments from the ranks of parliamentarians. The new design ensured, according to Alexander Alvaro, a balance between security and freedom.
The Alvaro design came with the supporters as well as opponents of the retention criticism. The Council of Ministers finally took the initiative again and negotiated behind the backs of the rapporteur with influential EU parliamentarians to adopt the existing framework under the reservation. The British Home Secretary Charles Clarke succeeded on 30 November 2005 finally to swear the chairman of the Christian and social democratic political groups of the European Parliament in essential points to the position of the Council.
The European Parliament again amended draft was then submitted to a so-called compromise proposal for a decision. Alvaro Rapporteur described the actions of the Council as " scandalous" and pulled his name back from the Parliament template.
On 14 December 2005 the European Parliament voted by 378 to 197 votes for the "compromise proposal ". The negotiated by Charles Clarke design had thus taken the parliamentary hurdle after only three months, becoming the fastest- adopted policy of the EU. The Council of Ministers approved his hand on 21 February 2006 a majority of the design. Only Slovakia and Ireland voted against the directive on formal grounds. ( Refer to the section before the European Court of Justice. )
Transposition into national law
Immediate became applicable to the provisions of the Directive only if they have been implemented by the EU Member States into national law. The German Bundestag has to November 9, 2007, the Law for the Amendment of Telecommunications surveillance and other covert investigative measures and the implementation of Directive 2006/24/EC decided which entered into force on 1 January 2008.
The deadline for the transposition of the Directive was Article 15, paragraph 1 of the Directive, on 15 September 2007. Thus Germany has the EU requirements as well as nineteen other Member States can not meet. For the services of Internet access, Internet telephony and e-mail the reaction was allowed, however, be postponed until not later than 15 March 2009. For this purpose, a special declaration of the Member States was necessary. Such a declaration have sixteen of the twenty-five Member States submitted, including Germany and Austria.
Action before the European Court of Justice
On July 6, 2006 Ireland has brought an action against the EC Directive before the European Court of Justice ( ECJ). Ireland is seeking to annul the directive on the retention of formal grounds: They had not been adopted on an appropriate legal basis since they improper way exclusively to the internal market competence (Article 95 EC) as a legal basis and not to the third pillar namely for the Police and judicial cooperation in criminal matters as the legal basis, convene. The content of the directive have nothing to do with the internal market and its harmonization. The retention should have been so inserted through a unanimous Ministerial Council decision framework. Similarly, the Slovak Republic based its vote against the Council of Ministers. On 10 February 2009, the European Court that the Directive has been adopted on an appropriate legal basis.
In its judgment on transfer of air passenger data to the U.S. on 30 May 2006, the European Court has already ruled that EC acts to protect public security and for law enforcement purposes are not permitted. After the announcement of the judgment, Federal Minister of Justice Brigitte Zypries, thus not inconsistent with the complaint process for the retention open.
On the other hand, it rejected the German Bundestag on 20 June 2006 to complain against the directive also before the European Court of Justice. An application of the opposition was rejected by the deputies of the governing parties CDU / CSU and SPD.
At the national level, inter alia, the working group on data retention had filed a constitutional complaint against the implementation of the Directive in Germany; on March 2, 2010, the Federal Constitutional Court handed down its judgment in which it declared the specific design of the retention unconstitutional and the corresponding provisions void.
In Austria, the policy of the Carinthian Government, an employee of a telecommunications company and more than 11,000 individuals were born before the Constitutional Court, which in turn asked the ECJ for a preliminary ruling. The Advocate General of the ECJ came to the conclusion that the retention in its current form is incompatible with the EU Charter of Fundamental Rights; he viewed it as an illegal, nothing gerechtgertigten invasion of privacy.
On April 8, 2014, the European Court of Justice declared the Directive was invalid because it was not compatible with the Charter of Fundamental Rights of the European Union.