Proportionality overrides unlimited surveillance. The German Constitutional Court Judgment on data retention. CEPS Liberty and Security in Europe, May 18, 2010

摘要

The Data Retention Directive, demanding the retention of telecommunications data for a period of six months up to two years, was adopted on 15 March 2006. Since then, this seemingly straightforward directive has generated quite an impressive number of court judgments. They range from the European Court of Justice (ECJ) to the administrative (e.g. Germany and Bulgaria) and constitutional courts (e.g. Romania) of some member states. It is the judgment of the German Constitutional Court, delivered on 2 March 2010, which has particularly caught the attention of commentators: civil society, lawyers, journalists and politicians. In the judgment, the court says ‘No’ to the German implementation laws of the Data Retention Directive. This paper highlights some of the key features of the ruling and its main similarities and divergences with similar judgments. Given the relevance of the issues at stake, the judgment is then contextualized in the wider framework of EU data processing and protection debates, offering elements of reflection for further discussion.