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EU Rule of Law Report: Data Retention is a blind spot

European Parliament Freedom, democracy and transparency Press releases

Today, the European Union Commission will publish the annual Rule of Law Report. According to MEP and civil rights activist Patrick Breyer (Pirate Party, Greens/EFA Group in the EU Parliament), the European Union has a serious rule of law problem with disrespecting the rulings of the EU Court of Justice on the issue of bulk collection and retention of location and communications data of the entire population.

In May 2022, the EU’s highest court reaffirmed its fundamental ruling from October 2020, according to which the storage of citizens’ telephone and internet data without any reason is only permissible in limited exceptional cases. In general, the Court has made it illegal to retain citizen’s communications data by default. Patrick Breyer explains:

“We see a dangerous cycle in which governments use all sorts of tricks to keep illegal mass surveillance going. In doing so, they disrespect rulings of the highest courts. The rule of law in the EU and the fundamental rights of citizens suffer from the surveillance greed of governments and law enforcement agencies. The EU Commission is standing idly by. The persistent violation of fundamental rights, circumvention of case-law, pressuring of judges and ignorance of facts is an attack on the rule of law we need to stop. The EU Commission now finally needs to do its job and start enforcing the landmark rulings, instead of plotting to bring back data retention.”

EU Commission in charge

The EU Commission ignored a 2020 European Union Parliament resolution calling for infringement proceedings against member states that maintain illegal data retention regimes. Instead, the EU Commission has been working on new plans for data retention, and in 2021 it proposed to governments some possible ways of de facto re-establishing mass surveillance in a way that, on paper, appears to respect the Courts’ requirements.

The new generation of mass surveillance

Even only this year, two new data retention laws were passed which do not comply with the CJEU jurisprudence. Denmark and Belgium took up the EU Commission’s suggestions, and passed laws this year to maintain blanket data retention. Patrick Breyer explains:

“We see a dangerous cycle in which governments use all sorts of tricks to keep illegal mass surveillance going. In doing so, they disrespect rulings of the highest courts. The rule of law in the EU and the fundamental rights of citizens suffer from the surveillance greed of governments and law enforcement agencies. The EU Commission is standing idly by. The persistent violation of fundamental rights, circumvention of case-law, pressuring of judges and ignorance of facts is an attack on the rule of law we need to stop. The EU Commission now finally needs to do its job and start enforcing the landmark rulings, instead of plotting to bring back data retention.”