Advocate General Cruz Villalon on the Data Retention Directive

Advocate General Cruz Villalon has on 12 December 2013 delivered his opinion in a higly controversial case C‑293/12 and C‑594/12 on the Directive 2006/24/EC of the European Parliament and that of Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC. He concluded that said Directive;  

is as a whole incompatible with Article 52(1) of the Charter of Fundamental Rights of the European Union, since the limitations on the exercise of fundamental rights which that directive contains because of the obligation to retain data which it imposes are not accompanied by the necessary principles for governing the guarantees needed to regulate access to the data and their use (para. 159)

and added :

Article 6 of Directive 2006/24 is incompatible with Articles 7 and 52(1) of the Charter of Fundamental Rights of the European Union in that it requires Member States to ensure that the data specified in Article 5 of that directive are retained for a period whose upper limit is set at two years (para. 159).

The dilemma between protecting national security and the protection of fundamental rights of individuals to privacy does not fall between genuines dilemmas. It is actually not a dilemma. States can only protect national security in a manner that does not interfere unlawfully in the fundamental rights of individuals. Arbitrary interference of state and non-state bodies in the privacy of the individuals are illegal and in breach of the European Convention and the EU Charter.

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