21st May 2022

Arguments continue on eve of data retention D-day

With less than 24 hours left before the European Parliament's almost certain approval of a new directive on data retention, some MEPs have questioned its compatibility with the European Convention of Human Rights.

Conservative and socialist members, together making up a majority of votes in the European Parliament, have agreed to vote in favour of a European Commission law on data retention on Wednesday (14 December).

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  • Polish police want to keep internet traffic records for up to 15 years (Photo: OLAF)

EU justice ministers already adopted the bill earlier this month, in a bid to help police keep tabs on criminals and terrorists via phone and internet records.

The debate on data-retention has gone on for a year and a half, but in the end the bill could be one of the most quickly adopted directives in EU history, with only three months' time between its formal proposal and adoption.

In breach of human rights?

Some MEPs meeting for a final debate in Strasbourg before voting on Wednesday questioned whether the directive is compatible with the European Convention on Human Rights, however.

The convention sets out to protect privacy and states that data should not be retained for any "more than necessary."

"If the necessity cannot be absolutely secured, MEPs are encouraged to vote against its basic foundations, it is a constitutional scandal", EPP-ED member Charlotte Cederschiold said.

The new EU law will, if adopted, grant national law enforcement authorities access to lists of telephone calls, SMS or internet connections for fixed periods between six and 12 months, but it does not state an upper time limit for storage.

Poland has announced it wants to store data for up to 15 years, with several MEPs using the Polish example to underline how member states might violate the convention.

The commisison said it had made sure that no part of the proposed directive is in breach of any of the EU founding treaties or conventions.

EU competence question

An equally complicated legal issue for EU lawmakers is to decide whether the data retention law can be adopted under the EU's so-called third pillar or not.

Third pillar decisions are made by majority between member state governments, the commission and parliament, but security decisions are usually made by consensus under the so-called first pillar including member states alone.

Irish justice minister Michael McDowell has said Ireland intends to take the EU to the European Court of Justice (ECJ) over data retention, arguing that he regards the matter as an issue for member states only, and that Ireland should have been allowed to retain its veto.

Liberal MEP Alexander Alvaro said last week that he believes national courts may also challenge the legislation, with the German high court likely to "question very strongly if this is in line with its constitution."

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