[cooperation-wg] Data Retention Directive considered harmful

yes, I agree on the wave of uncertainty starting from eh ECJ decision, but we cannot do against: the annulment decision of the ECJ does not affect directly the transposing national legislations. The national legislation become ineffective (not void!) as far as they contravene the principles laid down by the ECJ, and this is an evaluation to be made on a case by case basis. Do not forget: the ECJ DID NOT declare that data retention is per se incompatible with EU law. By contrast, ECJ annulled the directive because the way data retention was imposed was not justified. It follows from that thatathat a national legislation may survive as long as it fit the ECJ principles.

I assume that most of the national data retention legislation do not fit the principles laid down by the ECJ ruling. Unless the local government or parliament take a prompt initiative (repealing or modifying that legislation), this matter remains uncertain: whether such legislation are not effective any longer, this is a matter to be declared by a national courts. A plenty of scenarios can emerge:

- consumers using ISPs because they retian their data in violation of privacy law;
- people challenging public authorities taking actions against them on the basis of data retained on the basis of the annulled directive
- ISP sued by publci authoriuties because they do not retina data any longer 

and so on….

By the way, the last news from the wise Nordic countries

Telenor, Tele2 in Sweden to delete retained customer data
Tuesday 15 April 2014 | 12:16 CET | News
Telenor's Swedish unit Bredbandsbolaget and Tele2 Sweden announced separately that they have stopped storing customer data, after the European Court of Justice recently declared the EU Data Protection Directive invalid. Both operators said they would start erasing customer information that they have already saved. Tele2 said it has come to the conclusion that continuing to keep the data would be illegal. It said that it looks forward to discussions with the justice department and other authorities on how it can continue to support law enforcement agencies without compromising its customers' privacy. 

  






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Innocenzo Genna
Genna Cabinet Sprl 
1050 Bruxelles - Belgium

Skype: 	innonews
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Email: 	inno at innogenna.it

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Il giorno 14/apr/2014, alle ore 15:10, Nick Hilliard <nick at inex.ie> ha scritto:

> On 08/04/2014 12:47, Innocenzo Genna wrote:
>> My 2 cents on the messy consequences upon nation al legislation.
>> 
>> There is no automatic annulment of the national legislation on data
>> retention, it is up to the member states to abrogate or modify their rules:
> 
> Yes, but it creates an immediate long term problem for all of the national
> legislation and leaves it all open to be contested in the courts.  In the
> case of Ireland, it would be extraordinary for the High Court to dismiss
> the opinions of the ECJ, particularly as they believed there was sufficient
> grounds to refer the original Digital Rights Ireland complaint to the ECJ
> in the first place.  It will be interesting to see the final ruling.
> 
> Nick
> 
> 

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