German data retention is not compatible with EU law. The European Court of Justice (ECJ) ruled on Tuesday in Luxembourg that the communication data of all citizens should not be stored without cause. Limited data storage is only permitted under certain strict conditions, it said. Likewise, the Court ruled that French data retention against abuse of power was inadmissible.
In the event of a serious current or foreseeable threat to national security, traffic and location data should generally be stored temporarily, the ECJ explained. To protect national security, fight serious crime and prevent serious threats to public security, telecom providers may be required to store certain data for a limited period of time, it said. The federal government has already announced that it intends to reform the regulation.
The background to the judgment is a legal dispute between the Federal Network Agency and the Internet provider SpaceNet and Telekom, which are opposing the storage obligation in the Telecommunications Act. The Federal Network Agency had already put this regulation on hold in 2017 after the Münster Higher Administrative Court decided that SpaceNet should not be obliged to store the data. That was a few days before the new rule was supposed to go into effect.
The verdict holds further potential for disputes for the traffic light coalition. Because in the coalition negotiations, the FDP had pushed with power for an agreement to move away from data retention. The Greens are also critical of this instrument. Federal Minister of the Interior Nancy Faeser takes a different position. The SPD politician recently emphasized at the annual reception of the security authorities that the police and the Office for the Protection of the Constitution need state-of-the-art powers of intervention.
In the coalition agreement between the SPD, the Greens and the FDP last fall, a wording that left many questions unanswered finally ended up. There it says: “In view of the current legal uncertainty, the forthcoming judgment of the European Court of Justice and the resulting security policy challenges, we will design the regulations on data retention in such a way that data can be stored in a legally secure, event-related manner and by judicial decision.”
