You may or may not be aware that the EU commission has announced yesterday that it will take Germany to court over the country’s failure to transpose the data retention directive into national law. The commission also proposed that the ECJ should impose a fine of € 315 036.54 per day on Germany. And no, I have no idea where the 54 cent come from, in case you wanted to ask that question.
While this sounds serious, infringement procedures are rather common. The commission’s press release specifically mentions Austria and Sweden, who also failed to implement the directive. Moreover, the commission alone initiated several hundred infringement cases in every single of the last fifteen years, on top of thousands of complaints by third parties.
What makes the recent case unusual is its domestic background: First, Germany agreed to the original directive, which regulates the retention of traffic and location data, in 2006. In 2010, however, Germany’s powerful Federal Constitutional Court declared the German law that implemented the directive unconstitutional and therefore null and void, which chimes with last week’s seminar session on the perpetual conflict between European law and the German idea of constitutional review. The commission is used to this kind of trouble with the Germans and was prepared to wait a year or two for the Germans to draw up and vote on a constitutional implementation of the directive.
But, to use the rather indignant phrase from the commission’s statement the “German authorities have not indicated how and when they will adopt new legislation that fully complies with the Directive”. More specifically, the government cannot make up its mind. The home office, led by the centre-right CSU, complains that Germany must fulfil its obligations and urgently needs a law that implements the directive. The ministry of justice, which is controlled by the liberal FDP, blankly refuses to draw up such a bill, claiming that data retention is ineffective, and that the EU will soften up the current directive anyway. Yesterday’s sole comment from the ministry was that they “were not surprised” by the commission’s move. And so, Germany remains on its collision course because of a deadlock within the coalition.
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