Tempus fugit …..

Where does the time go? It seems only just a few weeks ago that we were discussing the ramifications of the proposal for a European Data Retention Directive. The reality is that this was now five years ago and the major discussions took place during the UK Presidency of the European Union in the second half of 2005.

We are now fast approaching the date set within the Directive for the European Commission to report to the European Parliament and the Council on the working of the Directive and its impact on the economic operators and consumers. The date for the submission of the evaluation is 15th September 2010 - just 6 months away now. As a result of the evaluation, the Commission will determine whether it is necessary to amend the provisions, particularly in relation to the nature of the data to be retained and the period of retention. The results of evaluation must be made public.

In the background to the imminent evaluation there are some interesting developments and it is clear that the Directive has not yet been applied across all member states of the European Union.

On March 2nd, the German Constitutional Court ruled that the implementation of the Directive in Germany was in contravention of the German Constitution. Der Spiegel reported on Wednesday 3rd March that the Court had ruled that data collected and retained under the (now unconstitutional) law was to be deleted with immediate effect and that strict controls were to be brought into place before the law could be re-introduced. The case has taken some two years to progress but was brought as a class action on behalf of some 35,000 German citizens who argued that the new law went too far.

The court agreed and said that there was insufficient clarity in the reasons for the retention of data and that there were insufficient safeguards on the data once retained. A key point here is that the Constitutional Court has struck down the German implementation of the Data Retention Directive, not the Directive itself. The German government must now look at the decision of the Court and consider the safeguards that must be put into place before it can draft a new law and introduce that. It is certain that there will now be intense public scrutiny.

Belgium also faces an interesting period, particularly as it is scheduled to take over the rotating Presidency later in the year and will be ‘in the hot seat’ when the evaluation of the Directive is due to be presented. The transposition of the Directive into national (Belgian) law has taken some time and there has been considerable and vocal opposition to the Government proposals. The proposals went much further than provided for within the Directive including banking data and use of the data beyond what may be determined as ’serious crime’. The Belgian proposals also called for the retention of data at the maximum period (24 months) provided for within the Directive. The initial proposals attracted a negative response from the Belgian data protection agency, an almost unheard of situation - although that eventually was turned around to a more positive response when the proposals were watered down time scales pulled back to a more standard 12 months.

The Belgian proposals have not yet completed the parliamentary process. In the last couple of months, Belgian ministers have been trying to reach consensus with stakeholder groups to see if they can bring forward a new law before June. That is an important date - the rotating Presidency comes to Belgium on 1st July and the government wants to prevent the country from critiscism about their failure to implement whilst they are also supposed to be leading discussions on evaluation.

It is clear that some Belgian politicians had been awaiting the outcome of the case before the German constitutional court. That is now clear - it remains to be seen how this may affect the Belgian transposition.