Resumen de Recalibrating data retention in the EU
Data retention has been subject of extensive and fierce discussions amongst practitioners, policy makers, civil society and academia in the EU and its Member States for many years – often coined as a clash between liberty and security. Through its jurisprudence, the Court of Justice of the EU (‘CJEU’) attempts to find a balance between the fundamental rights and freedoms at stake. This article provides a legal analysis of the jurisprudence of the CJEU on data retention, from the Decision in Digital Rights Ireland/Seitlinger to the most recent Decisions in the Cases Privacy Int., Quadrature du Net and H.K. v. Prokuratuur. It observes that while the CJEU has reconfirmed its previous jurisprudence on data retention, it widely opens the door to a variety of exceptions. The analysis covers the implications of the most recent jurisprudence of the CJEU from a legal and practical angle and seeks to establish whether, on the basis of its findings, it is indeed possible to apply these exceptions in practice. Given the link with data retention, the current state of play of the negotiations on the e-Privacy Regulation between the European Parliament, Council and Commission is briefly reflected. The article concludes that the latest jurisprudence of the CJEU does not put an end to the ongoing discussions on data retention but that there is a need for a recalibrated solution by way of a common legislative approach, at least on a set of definitions and basic notions at EU level. This could provide for the desired added value and the necessary legal certainty for all stakeholders involved, also given the increasing number of cross-border investigations and prosecutions in the EU and the fact that service providers are established all over Europe and the rest of the world.
