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Justice minister tries to further delay snoop silo laws in Germany

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Germany might further delay its implementation of the Data Retention Directive despite facing potential financial penalties of more than €300,000 for each day it fails to transpose it into national law, according to media reports.

The Cabinet plans to revisit the topic at a 22 January meeting in an attempt to avoid fines, and is in agreement about its implementation, but German justice minister Heiko Mass (interview in German) has said that he wants to wait for the CJEU to rule in the case before deciding what action to take.

According to a report by the EU Observer, the judgment of the CJEU is expected within the next few months.

The country previously implemented the 2006 Directive, but a court in the country ruled in 2010 that it was incompatible with fundamental German laws. That action prompted the European Commission to initiate legal action against Germany over its failure to put in place alternative new national legislation to implement the EU laws.

The Commission referred Germany to the Court of Justice of the EU (CJEU) in May 2012 and has asked the Court to impose a fine of €315,036.54 for each day Germany fails to implement the Directive.

Under the Directive telecoms and other electronic communications firms are required to retain identifying details of phone calls and emails, such as the traffic and location, to help the police detect and investigate serious crimes. The details exclude the content of those communications.

The Directive was established in 2006 to make it a requirement for telecoms and other electronic communications companies to retain the personal data for a period determined by national governments of between six months and two years. The Commission decided to regulate following terrorist attacks in Madrid in 2004 and London in 2005.

However, a challenge against the legitimacy of the Directive has been separately brought before the CJEU by digital rights campaigners in Ireland. They claim that the Directive is incompatible with fundamental EU rights.

In December a legal adviser to the CJEU offered his non-binding opinion on the case. Advocate General Pedro Cruz Villalón recommended that the CJEU rule that the Directive be deemed to be incompatible with the EU's Charter of Fundamental Rights. Cruz Villalón said that there are insufficient safeguards written into the Directive to ensure privacy rights are respected.

He said that it is possible, under the framework, "to create a both faithful and exhaustive map of a large portion of a person’s conduct strictly forming part of his private life, or even a complete and accurate picture of his private identity" and that therefore there is a risk that data collected could be used for "unlawful purposes which are potentially detrimental to privacy or, more broadly, fraudulent or even malicious".

The Advocate General said that the Directive should have set out controls around the access to data and how that data is used and further found that an upper limit of two years on the length of time telecoms and other electronic communications companies could be obliged to retain data under the framework was not proportionate. The maximum time that member states should be allowed to force telecoms and other electronic communications companies to hold onto data collected should be less than one year, he advised.

Cruz Villalón said that the aims of the Directive were "perfectly legitimate", according to the CJEU's statement, and said that the laws, although invalid, should stand until replacement provisions are adopted.

Copyright © 2013, Out-Law.com

Out-Law.com is part of international law firm Pinsent Masons.

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