Data retention, the EU Court sets stakes even in the case of serious crimes

It is forbidden to memorize in a preventive and undifferentiated way the information collected through mobile phones on traffic and position. National authorities can order targeted measures but only with the authorization of the judge 07 Apr 2022 Patrizia Licata Journalist

The European Court of Justice has confirmed that the preventive, generalized and undifferentiated storage, for the purpose of fighting serious crimes, of data relating to traffic and the location of people collected from mobile phones is not lawful. However, individual national authorities can arrange for rapid retention of data as soon as investigations into serious crime have begun. Furthermore, EU law does not preclude legislative measures that provide for cases of targeted data retention for the fight against serious crime and threats to national security. The Court of Justice (Cgue) expressed itself in this way (Judgment in case C-140/20) regarding the case of G.D. that, in March 2015, he was sentenced to life in prison for the murder of a woman in Ireland. In the appeal lodged against his conviction before the Court of Appeal of Ireland, the interested party criticized, in particular, the court of first instance for having erroneously admitted traffic data and data relating to traffic as evidence. location relating to telephone calls. Index of topics • The ruling of the EU Court • Serious crime is not the same as threats to national security • When data storage is possible • Permits quick storage during investigations • The “stakes” of the EU Court The ruling of the EU Court In order to contest the admissibility of such evidence in the criminal proceedings, G.D. filed, in parallel, a civil action in the High Court of Ireland, aimed at having certain provisions of the Irish law of 2011 which governs the retention of such data and access to them be declared invalid, alleging that that law violated the rights conferred on it by EU law. With a decision of 6 December 2018, the High Court upheld the argument of G.D. Ireland appealed this decision to the Supreme Court of Ireland, which in turn referred the case back to the EU Court of Justice.

First of all, the Court confirmed that EU law, in particular the directive on privacy and electronic communications, "precludes legislative measures which provide, as a precaution, for the generalized and undifferentiated storage of data relating to traffic and of location data relating to electronic communications, for the purpose of combating serious crimes ". In fact, the directive establishes the principle of prohibiting the storage of traffic and location data. The retention of such data therefore constitutes, on the one hand, a derogation from this prohibition of storage and, on the other hand, an interference with the fundamental rights to respect for private life and the protection of personal data, enshrined in Articles 7 and 8. Although the Directive on privacy and electronic communications allows Member States to limit these rights and obligations for purposes, in particular, to combat crime, such limitations must nevertheless respect, in particular, the principle of proportionality of the measures with respect to the objective. pursued. And the objective of the fight against serious crime, although fundamental, cannot in itself justify the fact that a generalized and undifferentiated conservation measure is considered necessary. Serious crime is not the same as national security threats In the same vein, the positive obligations of the Member States to establish rules that allow effective combating of crimes cannot justify interference as serious as those that national legislation providing for such conservation entails in the fundamental rights of almost the entire population, without the data of the interested parties being suitable for revealing a connection, at least indirectly, with the objective pursued. The Court rejects in particular the argument that particularly serious crime could be assimilated to a threat to national security which is real and current or foreseeable and which is capable of justifying, for a limited period, a generalized conservation measure and undifferentiated traffic data and location data. In fact, a threat of this kind is distinguished by the nature, gravity and specificity of the circumstances that constitute it, from the general and permanent risk represented by the occurrence of tensions or disturbances, even serious ones, of public security or from that of serious crimes. When data storage is possible By contrast, the Court secondly establishes and confirms