Comment
The two judgments of the European Court of Justice in the four cases of Privacy International, La Quadrature du Net and Others, French Data Network and Others and Ordre des Barreaux francophones et germanophone and Others: The Grand Chamber is trying hard to square the circle of data retention

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Abstract

On 6 October 2020, the Grand Chamber of the European Court of Justice rendered two landmark judgments in Privacy International, La Quadrature du Net and Others, French Data Network and Others as well as Ordre des barreaux francophones et germanophone and Others. The Grand Chamber confirmed that EU law precludes national legislation which requires a provider of electronic communications services to carry out the general and indiscriminate transmission or retention of traffic data and location data for the purpose of combating crime in general or of safeguarding national security.

In situations where a Member State is facing a serious threat to national security which proves to be genuine and present or foreseeable, such State may however derogate from the obligation to ensure the confidentiality of data relating to electronic communications by requiring, by way of legislative measures, the general and indiscriminate retention of this data for a period which is limited in time to what is strictly necessary but which may be extended if the threat persists.1 In respect of combating serious crime and preventing serious threats to public security, a Member State may also provide for the targeted retention of this data and its expedited retention. Such an interference with fundamental rights must be accompanied by effective safeguards and be reviewed by a court or by an independent administrative authority. It is likewise open to a Member State to carry out a general and indiscriminate retention of IP addresses assigned to the source of a communication where the retention period is limited to what is strictly necessary or even to carry out a general and indiscriminate retention of data relating to the civil identity of users of means of electronic communication. In the latter case, the retention is not subject to a specific time limit.

Introduction

These two 85-page judgments of the Grand Chamber follow up to its case law on the retention of and access to personal data in the area of electronic communications. Such case law includes the landmark Tele2 Sverige and Watson judgment in which the Grand Chamber held that Member States could not impose on providers of electronic communications services an obligation of general and indiscriminate retention of both traffic and location data. This particular judgment has caused concerns in some Member States, which consider that they may have been deprived of an instrument regarded as necessary for the purposes of safeguarding national security and combating crime including terrorism.2

The Court sat in the Grand Chamber of fifteen judges, which includes both the President and the Vice-President of the Court as well as three Presidents of Chambers of five Judges, pursuant to Article 16(2) and (3) of the Statute of the Court and Article 27 of the Rules of Procedure of the Court.3 The fact that the Grand Chamber is composed of senior Judges of the Court shows the importance of these four cases.

Judge Rapporteur Thomas von Danwitz was also Judge Rapporteur in the cases of Digital Rights,4 Schrems I5 and II,6 Tele2 and Watson,7 Ministerio Fiscal8 as well as in the opinion about the agreement on Passenger Name Record data between the EU and Canada.9 The Commission, the governments of fifteen Member States and the government of Norway submitted written observations. The Grand Chamber asked questions to the parties ahead of the hearing. The latter took place on both 9 and 10 September 2019. The European Data Protection Supervisor,10 the Commission and the sixteen governments made verbal submissions before the Grand Chamber.

Section snippets

Relevant law

Article 15(1) of e-Privacy Directive 2002/58/EC on privacy and electronic communications (e-Privacy Directive) gives Member States an option to retain data in the electronic communications sector. This provision sets out that traffic and location data may both be exceptionally retained for a limited period on the basis of a specific legislative measure taken by Member States. The retention is only allowed when it “constitutes a necessary, appropriate and proportionate measure within a

Procedural background of the cases

Proceedings were brought before the British Investigatory Powers Tribunal,12 the French Council of State13 and the Belgian Constitutional Court14 about the lawfulness of legislation adopted by certain Member States in these areas, laying down in particular an obligation for providers of electronic

Opinion of Advocate General Manuel Campos Sánchez-Bordona dated 15 January 2020

Advocate General Manuel Campos Sánchez–Bordona delivered three different opinions17 in the four cases. He first clarified the applicability of the e-Privacy Directive to the area at hand. Regarding its scope, the Advocate General submitted that the Directive excludes from its application “activities which are intended to safeguard national security and undertaken by

Judgments of the Grand Chamber dated 6 October 2020

The Grand Chamber rendered two judgments on the basis of the three opinions of Advocate General Campos Sánchez–Bordona. These complex and technical judgments both require a careful analysis.

Comments

Regarding the applicable procedure, the British Investigatory Powers Tribunal, the French Council of State and the Belgian Constitutional Court are now tasked with disposing of the four cases in accordance with the two judgments of the Grand Chamber which legally bind them.

Conclusion

In these two landmark judgments, the Grand Chamber endeavoured to reach the proper balance140 between the requirements to fight against serious crime including terrorism and to safeguard national security and the requirements to respect private life and protect personal metadata. The Grand Chamber has already

Declaration of Competing Interest

None.

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1

Joined Cases 511/18, C-512/18 and 520/18 La Quadrature du Net and Others [2020] paras 168 and 177.

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