AG Outlines Data Categories Subject to EU Member States’ Retention Requirements

    Aug 10, 2016

    An opinion issued by the advocate general of the European Court of Justice (ECJ) on July 19 says that a general obligation to retain data imposed by member states may be compatible with European Union (EU) law, subject to strict requirements that safeguard individuals’ fundamental right to privacy and confidentiality.

    The opinion was issued in response to two cases that were referred to the ECJ by courts in Sweden and in the UK that sought to establish whether a general obligation on telecommunication service providers to retain data relating to electronic communications is compatible with EU law.

    “In today’s opinion, Advocate General Hefnrik Saugmandsgaard Øe first specifies the categories of data which are subject to the general obligations to retain data imposed in Sweden and in the UK,” the ECJ stated in a press release on the opinion. “It is for the national courts to determine, in the light of all the relevant characteristics of the national regimes, whether those requirements are satisfied.”

    Those requirements of a general obligation to retain data should include, the report recommends, legislative or regulatory authority that outlines the characteristics of accessibility, foreseeability, and adequate protection against arbitrary interference; an obligation to respect the right of privacy as specified in the EU Charter; a general interest objective in any interference with fundamental privacy rights; and proportionality to the objective of the fight against serious crime.

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