Once in Luxembourg and back again: data retention remains illegal

09/12/2023

Following the SpaceNet judgement of the European Court of Justice (ECJ) on data retention, the Federal Administrative Court (BVerwG) in Leipzig has now also made it clear that the German regulation on data retention without cause, across the board and for an unlimited period of time is in breach of EU law. The Federal Administrative Court thus followed the ECJ, which was formally to be expected, but is not automatic. Telecommunications providers such as SpaceNet AG are therefore still not required to retain data.

The now failed Telecommunications Act (Sections 175 para. 1 sentence 1, 176 TKG) stipulates that telecommunications providers must store traffic and location data without cause, across the board and undifferentiated in terms of personnel, time and geography. SpaceNet filed a lawsuit against this controversial surveillance instrument in 2016. Due to the fundamental nature of the decision, the proceedings went through all judicial instances up to the ECJ and back to the Federal Administrative Court.

According to the Federal Administrative Court in Leipzig, German data retention "does not fulfil the requirements of EU law simply because no objective criteria are defined that establish a connection between the data to be stored and the objective pursued."

Sebastian von Bomhard, CEO of SpaceNet AG, thinks this is a good thing: "The fact that data retention had to be overturned is important. The discussion about the law had blocked the focus on the essentials of how successful law enforcement can take place on the Internet while safeguarding fundamental rights. In line with the assessment of the Federal Administrative Court and the ECJ, SpaceNet AG did not oppose every method per se. There are sensible measures that can be taken on a case-by-case basis, are personalised, limited in time and place and can be reviewed by the judiciaryat any time .Former Justice Minister Sabine Leutheusser-Schnarrenberger had already recommended Quick Freeze as a sensible alternative."

BVerwG 6 C 6.22 - Judgement of 14 August 2023

You can find more on data retention and a chronicle here

space.net/data retention

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