With a most recent decision the ECJ declares the Data Retention Directive 2006/24/EC invalid. Already in 2010 had the German Federal Constitutional Court declared the unwarranted retention of telecommunication data incompatible with the German Constitution. Accordingly, Germany stopped its national data retention requirements under the German Telecommunications Act (TKG) and was hesitant to implement the Directive. With the delays of national implementation, the German Federal Government may have been confronted with fines imposed by the European Commission. The ECJ adopted the German Federal Constitutional Court’s arguments stating that the Directive (like its former implementation into the German Telecommunications Act) would be disproportional. With the ECJ ruling, Germany’s (and the other member states’) obligation to implement the invalid Directive obviously became obsolete. The ruling will also prompt EU law makers to choose a different, compatible approach, should they still wish to regulate this area in the future.
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