The opinion was issued at the request of courts in Sweden and the UK, where Tele2 Sweden and a group of individuals in the UK filed appeals against national legislation on data retention. Many countries have continued to require operators to save certain metadata on customer communications for law enforcement purposes, even after the EU directive was overturned. The advocate general, whose opinion is not binding, said the fight against serious crime is a public interest that may justify such laws.
To make them compatible with EU law, the national laws must offer "adequate protection against arbitrary interference", be focused on fighting only serious crimes and not other criminal or legal offences, respect the EU Charter of Fundamental Rights, and be proportionate, with no other possible measures for meeting the objective of fighting serious crime. Furthermore, such laws must respect the conditions set out in the
EU court's original decision, as regards access to the data, the period of retention and the protection and security of the data, in order to limit the interference with the fundamental rights to what is strictly necessary, the advocate general said.
His opinion is used as advice to the full EU court, which must still take a final decision in the case before it goes back to the national courts.
Tele2 Sweden said it expects an in-depth examination of the Swedish data retention regulations, following the findings by the European Union advocate general. He said that there are shortcomings in a majority of points in Swedish rules. Tele2 said the domestic rules contradict basic liberties and rights set out by the European Union’s charter of rights.
Chief legal counsel Stefan Backman said Tele2 is looking forward to the final EU court ruling but hopes that regardless of that ruling, there will be a significantly more balanced data retention system in Sweden, taking into account customer privacy and law enforcement agencies’ interests alike. The advocate’s criticism alone should be enough to justify a thorough review of the current system, Backman said.
