Tele2 Sverige AB v. Post-och telestryrelsen and Secretary of State for the Home Department v. Tom Watson and Others, Joined Cases C-203/15 and C-698/15, CJEU (Grand Chamber), 21 December 2016

Prohibition to retain personal data of subscribers or registered users of communications services in a general and indiscriminate manner for the purpose of fighting crime. Sufficient seriousness of criminal offences as a criterion which justifies interference with the fundamental rights recognised by Articles 7 and 8 of the Charter.

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications)
Art. 7 EUCFR
Art. 8 EUCFR 
Art. 11 EUCFR
Art. 52 EUCFR

1. Article 15(1) of Directive 2002/58, read in the light of Articles 7 and 8 and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding member States from requiring providers of electronic communications services to retain – for the purpose of fighting crime – all traffic and location data of all subscribers or registered users in a general and indiscriminate manner. Such an obligation is not proportionate to the general interest of combating crime and it cannot be regarded as necessary in a democratic society. 

2. Article 15(1) of Directive 2002/58 allows a Member State to permit, as a preventive measure, the targeted retention of traffic and location data of users of electronic communications services for the purpose of fighting serious crime. However, they must ensure that data retention is limited to what is strictly necessary with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the retention period adopted.

3. Article 15(1) of Directive 2002/58 must be interpreted as meaning that access of the competent authorities to the data retained by providers of electronic communications services has to be restricted to fighting serious crime only, since this operation allows drawing precise conclusions concerning the private lives of the persons whose data have been retained. Indeed, the objective pursued by the authorities must be proportionate to the seriousness of the interference with the fundamental rights recognized by Articles 7 and 8 of the Charter. Moreover, the decision to implement such a measure must be subject to prior review by a court or an independent administrative authority, and the data concerned have to be retained within the EU territory.

(Requests for a preliminary ruling concerning the interpretation of Article 15(1) of Directive 2002/58).