Joined cases C-698/15 R (Watson, Brice & Lewis) v Secretary of State for the Home Department and C-203/15 Tele 2 Sverige AB v Post- och Telestyrelsen

The Grand Chamber of the Court of Justice of the European Union has ruled that national legislation which provides for “general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication” is prohibited by EU law.

Following a high profile hearing in April in which 10 Member State governments made oral submissions, the Court today handed down its judgment in this landmark challenge to Member States’ data retention and access laws.

The case relates to Member States' laws that require telecoms companies to store data about individuals so that they can be accessed by intelligence and law enforcement agencies. These data include information about telephone calls made or received, messages and emails sent and received, the information tracking the movements of individuals, subscriber data and IP addresses. In 2014, the CJEU’s Digital Rights Ireland judgment ruled that the EU’s ‘data retention’ Directive 2006/24/EC, which required telecoms companies to store such data for up to 2 years, was contrary to Article 7 and 8 of the EU Charter of Fundamental Rights (“CFR”). This judgment gave rise to a considerable degree of uncertainty amongst Member States as to whether and if so how the Charter applies to Member State laws.

In the two joined cases, the Court of Justice was been asked to rule on the application of the e-privacy Directive (2002/58) and Articles 7 and 8 on Member States’ data retention and data access regimes. Consistent with the Opinion of its Advocate General, handed down in July, the Court concluded that “general and indiscriminate retention” was a “very far-reaching” and “particularly serious” interference with Articles 7 and 8 CFR (at [100]).  It concluded that such retention must be restricted to “fighting serious crime” (at [115]), access to retained data should be “subject to prior review by a court or an independent administrative authority” except in cases of “validly established urgency” (at [120]), the affected persons should be notified that access has been given to their retained data “as soon as that notification is no longer liable to jeopardise the investigations being undertaken by those authorities” (at [121]) and the relevant data “should be retained within the European Union” (at [122]).

The judgment is available here.

 Dinah Rose QC, Ben Jaffey and Iain Steele acted for the claimant, Tom Watson MP.

 Tom Hickman acted for the Law Society of England and Wales (intervening).

 Ravi Mehta was junior counsel for Open Rights Group and Privacy International (intervening).