JUDGMENT OF THE COURT IN JOINED CASES C-793/19 - SPACENET AND C-794/19 - TELEKOM DEUTSCHLAND

29 settembre 2022

The Court of Justice confirmed that EU law precludes the general and indiscriminate retention of traffic and location data, except in the case of a serious threat to national security

However, in order to combat serious crime, the Member States may, in strict compliance with the principle of proportionality, provide for, inter alia, the targeted or expedited retention of such data and the general and indiscriminate retention of IP addresses.

By its judgment delivered today, the Court of Justice confirmed that EU law precludes national legislation which provides, on a preventative basis, for the purposes of combating serious crime and preventing serious threats to public security, for the general and indiscriminate retention of traffic and location data.

However, EU law does not preclude national legislation which

  •           llows, for the purposes of safeguarding national security, an instruction to be given requiring providers of electronic communications services to retain, generally and indiscriminately, traffic and location data in situations where the Member State concerned is confronted with a serious threat to national security that is shown to be genuine and present or foreseeable. Such an instruction must be subject to effective review, either by a court or by an independent administrative body, and can be given only for a period that is limited in time to what is strictly necessary, but which may be extended if that threat persists;
  •           –  provides, for the purposes of safeguarding national security, combating serious crime and preventing serious threats to public security, for the targeted retention of traffic and location data which is limited, on the basis of objective and non-discriminatory factors, according to the categories of persons concerned or using a geographical criterion, for a period that is limited in time to what is strictly necessary, but which may be extended;
  •           –  provides, for the same purposes, for the general and indiscriminate retention of IP addresses assigned to the source of an internet connection for a period that is limited in time to what is strictly necessary;
  •           –  provides, for the purposes of safeguarding national security, combating crime and safeguarding public security, for the general and indiscriminate retention of data relating to the civil identity of users of electronic communications systems, and
  •           –  allows, for the purposes of combating serious crime and, a fortiori, safeguarding national security, an instruction to be given requiring providers of electronic communications services to undertake, for a specified period of time, the expedited retention of traffic and location data in the possession of those service providers.

Such national legislation must, moreover, ensure, by means of clear and precise rules, that the retention of data at issue is subject to compliance with the applicable substantive and procedural conditions and that the persons concerned have effective safeguards against the risks of abuse.

 

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