EU’s top lawyer backs telcos in dispute about personal data retention

20 July 2016 | Alan Burkitt-Gray


European Union’s advocate general says governments should require data retention only when fighting serious crime

The leading lawyer of the European Union (EU) has taken a firm stand against governments in member states demanding that telcos store long-term data about customers.

Henrik Saugmandsgaard Øe, the advocate general, said that laws should respect personal privacy and that long-term retention of data was justified only when it is needed to fight serious crime.

Though his opinion is only advisory, it is seen as significant as the Court of Justice of EU has two data retention cases before it, one involving the UK – which remains a member of the 28-nation EU until its exit negotiations are complete – and Sweden.

The court two years ago said that Ireland’s data retention directive “constituted serious interference with the fundamental rights to respect for private life and to the protection of personal data and, second, that the rules accordingly established were not limited to what was strictly necessary for the purpose of the fight against serious crime”.

Following that decision Tele2 Sweden said it would cease storing data and would delete data already registered. A second case was brought by a number of UK politicians against British data retention rules which authorise the government to require telcos to retain all communications metadata for a maximum period of 12 months.

Saugmandsgaard Øe said in his opinion a general obligation to retain data may be compatible with EU law, but subject to four strict requirements.
• There should be regulatory measures concerning accessibility, foreseeability and adequate protection against arbitrary interference;
• The obligation must respect the essence of the right to respect for private life and the right to the protection of personal data;
• Any interference with the fundamental rights should be in the pursuit of an objective in the general interest;
• The general obligation to retain data must be strictly necessary to the fight against serious crime, which means that no other measure or combination of measures could be as effective while at the same time interfering to a lesser extent with fundamental rights.


The advocate general said: “The general obligation to retain data must be proportionate, within a democratic society, to the objective of the fight against serious crime, which means that the serious risks engendered by that obligation within a democratic society must not be disproportionate to the advantages it offers in the fight against serious crime.”

The decision is likely to impact the investigatory powers bill, a draft law which is being considered by the UK parliament. Theresa May, the minister who was originally responsible for piloting the bill through parliament, is now the UK prime minister.