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New judgment of the European Court of Justice on retention of personal data, waiting for the new European Regulation

  • 02/01/2017

Directive 2009/136/EC has amended Directive 2002/58/EC, on the processing of personal data and the protection of privacy in the electronic communications sector.

Such Directive prohibits a general and indiscriminate retention of traffic and location data.

With judgment of 21st December 2016 in cases C-203/15 and C-698/15, the European Court of Justice has explained that exceptions to such principle may be applied. Anyway, they have to be interpreted restrictively, as regards both retention and access to collected data.

In particular, Member States are allowed to provide for the targeted retention of data for the only purpose of fighting serious crime, provided that such measure be necessary and suitable. Furthermore, access to data retained by national authorities must be subject to a prior review by an independent authority.

Therefore, the Court has dismissed both the Swedish and the British national provisions, in that they do not provide that access to the retained data be allowed for the only purpose of fighting serious crime and they do not require a prior review by a court or an independent administrative authority.

With regard to this, the increase of online services, the risks for the rights of citizens and the security issues, have brought to a rethinking of the aforementioned legislation and to the enactment of Regulation no. 679 of 2016, on the protection of personal data, which will enter into force on 23rd May 2018.

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