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3rd Oct 2022

EU data law hits set-back in Germany

  • Civil liberty groups say the EU data retention directive violates privacy rights (Photo: Matthew Kenwrick)

Germany’s new justice minister, Heiko Maas, wants to delay turning the EU's controversial data retention directive into German law.

His announcement, made in an interview with German weekly Der Spiegel on Sunday (5 January), comes amid legal action by the European Commission and despite the fact two leading parties in Germany's grand coalition want to go ahead.

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Maas hails from the centre-left SPD party, which wants to postpone it.

But German Chancellor Angela Merkel’s centre-right Christian Democratic Union (CDU) faction and its sister party, the Bavarian Christian Social Union (CSU), want to transpose the 2006 EU law.

The directive allows governments and intelligence agencies to track the movements, meetings, phone and Internet use of every EU citizen by forcing operators to set up separate databases specifically for police access. The data is retained from anywhere between six months to two years.

Germany's constitutional court in 2010 declared the German mandatory data retention law to be in breach of the German charter.

The rejection sparked legal action by the commission, which took Berlin to EU's the Luxembourg-based Court of Justice two years later.

The EU court’s verdict is due out in the next few months.

If it backs Brussels, the commission wants to slap a penalty payment of €315,036.54 for each day after the court ruling until Germany falls into line.

Maas says the court must first deliver its verdict before any decision is made, but the CDU and CSU want to turn into national law right away.

A spokesperson at AK Vorrat, a German NGO against data retention, described the CDU/CSU stance as a tactic to outmanoeuvre the court whatever the outcome.

“This is something we are opposing because when there is a new German law made, before the court’s decision, and then the court rejects the whole directive on the European level, the German law would still be there,” the spokesperson told this website.

The CDU/CSU, he says, claim their position does not contradict the German constitutional court's 2010 decision. He says the parties want to improve upon the law in compliance to court's verdict.

But AK Vorrat says the directive is an excessive invasion into personal privacy and does not prevent terrorism or crime.

Germany’s telecom operators already collect data for billing purposes, which are then reportedly accessed by the police.

Malte Spitz, a German politician and privacy advocate, says police collected the phone and location data of several hundred thousand people during an anti-Nazi demonstration in Dresden in February 2011.

There is a chance the court may rule against the EU law.

Pro-rights groups scored a major victory against the directive in December when the court’s advocate general slammed it for violating fundamental rights.

EU judges often rule in favour of the advocate general’s non-binding opinions.

German Green MEP Jan Philip Albrecht, in a statement, following the advocate’s opinion, described it as a breakthrough for civil liberties and said Germany’s government and the commission’s support of the directive is “embarrassing."

The German debate on data retention predates the EU law.

The Bundestag had already rejected a separate German law on data retention before the EU introduced its own version. Germany’s then justice minister Brigitte Zypries was in favour.

With the Bundestag opposing the law, the justice minister is said to have pushed Brussels to propose the EU-wide legislation.

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