Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
2. Directive 2006/24/EC of the European Parliament and of the Council, whose implementation the
challenged provisions serve to the extent that they concern the prosecution of criminal offences, was
adopted by the Council on the basis of Article 95 EC against the votes of Ireland and Slovakia (see
Council document 6598/06 ADD 1 of 27 February 2006, p. 4), after the European Parliament had rejected
an initiative for a Draft Framework Decision (see Council document 8958/04 of 28 April 2004) by the
French Republic, Ireland, Sweden and Great Britain on the retention of telecommunications data which
relied on Article 31.1 letter c and Article 34.2 letter b of the Treaty on European Union in its version
applicable until the entry into force of the Treaty of Lisbon (hereinafter: Treaty on European Union, old
version) (see European Parliament document P 6 TA[2005]0348).
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a) The Directive takes up the considerations that telecommunications traffic data are a valuable tool in
the prosecution of criminal offences, in particular in the areas of organised crime and terrorism (see
Recitals 7 to 10 of Directive 2006/24/EC) and that several Member States have adopted legislation
providing for the retention of such data whose provisions vary considerably (see Recital 5 of Directive
2006/24/EC). It works on the assumption that the legal and technical differences created thereby present
obstacles to the internal market for electronic telecommunications, since service providers are faced with
different requirements regarding the types of data to be retained and the periods of retention (see Recital
6 of Directive 2006/24/EC).
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b) The validity of Directive 2006/24/EC is doubted regarding its compatibility with the fundamental rights
of the European Community (see Klesczewski, in: Festschrift für Gerhard Fezer zum 70. Geburtstag ,
2008, p. 19 (24-25); Klug/Reif, Recht der Datenverarbeitung – RDV 2008, p. 89 (91 et seq.); Rusteberg,
Verwaltungsblätter für Baden-Württemberg – VBlBW 2007, p. 171 (176); Westphal, Europäische
Zeitschrift für Wirtschaftsrecht – EuZW 2006, p. 555 (558 -559); Zöller, Goltdammer’s Archiv für Strafrecht
– GA 2007, p. 393 (410 et seq.); Advocate General Kokott, opinion delivered on 18 July 2007 – Case C275/06 –, ECR 2008, I-271 (276), marginal no. 82 – Promusicae –) as well as regarding the foundation on
which the European Union bases its competence (see Gitter/Schnabel, MultiMedia und Recht 2007, p. 411
(412-413); Jenny, Computer und Recht – CR 2008, p. 282 (285); Klesczewski, in: Festschrift für Gerhard
Fezer zum 70. Geburtstag , 2008, p. 19 (22 et seq.); Klug/Reif, RDV 2008, p. 89 (91); LeutheusserSchnarrenberger, Zeitschrift für Rechtspolitik – ZRP 2007, p. 9 (11 et seq); Rusteberg, VBlBW 2007,
p. 171 (173-174); Westphal, EuZW 2006, p. 555 (557-558); Zöller, GA 2007, p. 393 (407-408)).
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By its judgment of 10 February 2009, the Court of Justice of the European Communities rejected an
action for annulment under Article 230 EC brought by Ireland (see ECJ, judgment of 10 February 2009 –
Case C-301/06 –), which relied on the main or predominant purpose of the Directive being to facilitate the
prosecution of criminal offences and its only permissible legal base therefore being the provisions of the
EC Treaty, old version, on police and judicial cooperation, which require unanimity, in particular Article 30,
Article 31.1 letter c and Article 34.2 letter b of the EC Treaty, old version (see action of 6 July 2006 –
Case C-301/06 –, OJ C 237 of 30 September 2006, p. 5). In its judgment, the Court of Justice explicitly
stated that the action did not relate to any possible infringement of fundamental rights of the Community
(see ECJ, judgment of 10 February 2009 – Case C-301/06 –, marginal no. 57).
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c) According to Article 1.1 of Directive 2006/24/EC, the Directive aims to harmonise Member States’
provisions concerning the obligations of the providers of publicly available electronic communications
services or of public communications networks with respect to the retention of telecommunications data, in
order to ensure that the data are available for the purpose of the investigation, detection and prosecution
of serious crime, as defined by each Member State in its national law. On the occasion of the adoption of
the Directive, the Council declared that in defining "serious crime", the Member States shall have due
regard to the crimes listed in Article 2.2 of the Council Framework Decision of 13 June 2002 on the
European arrest warrant and the surrender procedures between Member States (2002/584/JI) (OJ L 190
of 18 July 2002, p. 1) and crime involving telecommunication (see Council document 6598/06 ADD 1,
p. 4). The Directive does not contain provisions on the use of the data for duties involving the warding off
of dangers or intelligence-service duties.
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