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Germany / Higher Administrative Court North Rhine-Westphalia / 13 B 238/17

Bavarian internet service provider (ISP) v Federal Network Agency (Bundesnetzagentur)

Deciding Body type:
National Court/Tribunal
Deciding Body:
Higher Administrative Court North Rhine-Westphalia
Decision date:

Key facts of the case: 

An internet serive provider based in Munich had requested the Administrative Court Cologne (Verwaltungsgericht Köln) to issue an interim injunction (while waiting for the decision on the legal complaint that was submitted simultaneously) against the legal obligation of the ISP to retain telecommunication data according to section 113a and 113b of the Telecommunication Act (Telekommunikationsgesetz) that was adopted in 2015 and is to be implemented since 1 July 2017. After the reqest was rejected by the Administrative Court on 25 January 2017, arguing that the no rights of the ISP itself were violated, the ISP lodged a complaint against this decision with the Higher Administrative Court. The ISP argued that the data retention regime violates national constitutional law and EU law, in particular in the light of the recent EJC decision Tele2 Sverige and Watson, as it provides for the blanket retention of telecommunication data from almost all customers. This would violate the privacy and data protection rights of the ISP as well as its freedom to conduct business because of the significant costs for implementing the data retention regime.

Outcome of the case: 

Arguing that the relevant provisions of the Telecommunication Act for the blanket retention of telecommunication data violate articles 7, 8, 11 and 52 (1) of the Charter, the Higher Administrative Court decided that the obligation to implement data retention is lacking a legal basis which is in line with EU law. Thus, an infringement of the freedom to conduct business (article 16 of the Charter) is not justified. Consequently, the court ruled that the ISP is not obliged to retain telecommunication data until the Administrative Court Cologne decides the legal complaint that was lodged by the ISP along with the request for issuing an interim injunction.