The Federal Commissioner for Data Protection and Freedom of Information

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Bonn/Berlin, 7 October 2020

Press release 24/2020

The BfDI criticises plans for data retention

The Federal Commissioner for Data Protection and Freedom of Information (BfDI), Professor Ulrich Kelber, calls on the Federal Government to recognise the European Court of Justice’s (ECJ) judgment on data retention as a limit for future laws: It is incomprehensible that one year prior to the Bundestag elections, upcoming laws in the field of telecommunications, which contradict the ECJ’s line, are planned in a fast track procedure. During its Council Presidency, Germany should rather work towards ensuring that no new rules on data retention are created at European level. This applies in particular to the ePrivacy Regulation currently under discussion.

For years, the BfDI has criticised the groundless data retention and sees his criticism as confirmed by the ECJ’s judgment. With this groundbreaking judgment, the groundless and blanket retention of traffic and location data documenting who has spoken on the phone to whom, when, for how long and from where, is declared incompatible with European law.

At the same time, the ECJ clarifies that data retention is still possible under certain conditions in order to prevent serious criminal offences and to ensure national security. However, the respective national order for data retention must be limited in time and subject to effective review by a court or an independent administrative authority.

With regard to future legislative proposals, the European and the German legislators should be guided by the ECJ’s judgment. The parties should also take into account the ruling in their electoral programmes for next year’s Bundestag elections.