Tomorrow morning (8 januari), the European Parliament legal services will release its long-awaited study on the Court of Justice of the EU’s ruling on the Data Retention Directive. Access obtained a copy of the document, which concludes that the EU’s powers to legislate on data retention matters are now limited....

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Following last year’s ruling, the Civil Liberties Committee of the European Parliament (LIBE) requested an opinion from Legal Services to determine its impact on national laws establishing data retention and other existing international agreements that include data retention schemes such Passenger Name Records agreements (PNR) and the Terrorist Finance Tracking Programme (TFTP).

PNR agreements authorises the transfer of passenger flight data between different states where that data can be stored for up to 15 years for the purposes of combating terrorism and serious crime. The EU has signed such agreements with the United States, Canada, and Australia, and is currently in the process of negotiating an EU-wide PNR system.

The Terrorist Financing Tracking Program is an international agreement concluded between the EU and the US which gives authorities access to the SWIFT database, the world’s biggest financial database located in Belgium, for the prevention, investigation, detection, and prosecution of conduct pertaining to terrorism or terrorist financing.

In the study to be released tomorrow (8 januari), the European Parliament legal services indicates that these agreements, while controversial, are still valid as they benefit from "presumption of legality". However, the report then adds “That said, the ‘presumption’ of legality of EU acts can also be rebutted and so it cannot be excluded, at this stage, that any other EU act could suffer the same fate as the data retention Directive”. ...

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This report brings needed clarity on the legality of data retention practices - at a time when the EU is negotiating new legislation such as the EU PNR, and is about to renegotiate existing agreements such as the EU-Canada PNR, the EU-US PNR and the TFTP agreements.

2015 is turning out to be the year of data retention in Europe. It is now up to us all - activists, civil society groups, lawyers, lawmakers - to ensure that any proposal put forward is both in line with the EU Charter of Fundamental Rights and the principles of proportionality and necessity. 

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