Case Prokuratuur: Proportionality and the Independence of Authorities in Data Retention

Abstract

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(1), 199-210 | European Forum Insight of 11 June 2021 | (Table of Contents) I. Facts of the case. - II. Directive on privacy and electronic communications. - III. Overview of the existing case-law regarding data retention. - IV. Highlights of the CJEU judgment. - V. Commentary. | (Abstract) Records of electronic communication metadata allow detailed conclusions about habits of daily life, such as places of residence, activities carried out, or social relations. This data can therefore be useful in criminal investigations. The CJEU elaborated in case Prokuratuur (case C-746/18 ECLI:EU:C:2021:152) on the conditions of access to such data. The court interpreted art. 15(1) of the Directive 2002/58/EC on privacy and electronic communications and ruled that access to traffic and location data may be provided to combat severe crime or to prevent serious public security threats. This interference with the fundamental rights enshrined in arts 7 and 8 of the Charter of Fundamental Rights when accessing traffic and location data is grave, regardless of the period granted for data access or the amount of data requested. The prosecution of less serious crimes can therefore not justify such intervention. According to Estonian law, the Public Prosecutor's Office has the task of conducting the criminal investigation and, if necessary, initiating prosecution in court. Consequently, it cannot be regarded as an independent authority to decide on access to traffic and location data for criminal investigations. As a basis for the presentation and discussion of the Prokuratuur decision by the CJEU, the facts of the case are briefly outlined before previous case law regarding data retention is summarised.

Keywords

• data retention
• principle of proportionality
• independent authority
• evidence
• fundamental rights
• data protection