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CJEU: State obligation to retain data on providers of electronic communication services may be compatible with EU law

In its judgment in Digital Rights Ireland of 2014, the Court of Justice invalidated the Data Retention Directive on the grounds, first, that the general obligation to retain certain data imposed by that directive constituted serious interference with the fundamental rights to respect for private life and to the protection of personal data and, second, that the rules accordingly established were not limited to what was strictly necessary for the purpose of the fight against serious crime.

Following that judgment, two cases were referred to the Court on the general obligation imposed, in Sweden and in the UK, on telecommunication service providers to retain data relating to electronic communications. The Court accordingly had the opportunity to specify the interpretation to be given in a national context to the judgment in Digital Rights Ireland.

The day following the delivery of the judgment in Digital Rights Ireland, the telecommunications undertaking Tele2 Sverige notified the Swedish post and telecommunications authority of its decision to cease retaining the data and of its proposal to delete the data already registered (Case C-203/15). Swedish law requires providers of electronic communication services to retain certain personal data of their subscribers.

In Case C-698/15 Tom Watson, Peter Brice and Geoffrey Lewis brought actions against the British data retention rules, which authorise the Home Secretary to require public telecommunications operators to retain all communications data for a maximum period of 12 months, it being understood that the retention of the content of those communications is excluded.

In references for a preliminary ruling made by the Kammarrätten i Stockholm (Administrative Court of Appeal, Stockholm, Sweden) and the Court of Appeal (England and Wales) (Civil Division) (UK), the Court is requested to indicate whether a general obligation to retain data is compatible with EU law (in particular the Directive on privacy and electronic communications and certain provisions of the EU Charter of Fundamental Rights).

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