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Netherlands / District Court The Hague / C/09/480009 / KG ZA 14/1575

Foundation Privacy First and others v The Netherlands (Ministries of Economic Affairs and Security and Justice)

Policy area:
Information society
Deciding Body type:
National Court/Tribunal
Type:
Decision
Decision date:
11/03/2015

Key facts of the case:

This case is about objections to the Act on the Retention of Telecommunication Data. As the European Court of Justice has found the Directive on Data Retention invalid on the basis of the Charter, among other instruments, according to the claimants,the Dutch Act above mentioned, which is an almost literal implementation of the Directive, should be declared inapplicable (Dutch Courts cannot declare that an Act of Parliament is invalid, due to Constitutional provisions, so it continues to exist). According to the claimants, the current retention of data of among other innocent Dutch citizens is in conflict with the right to privacy, the right to the protection of personal data and the freedom of expression. The President of the District Court holds that the duty to retain telecommunication data is, indeed, an infringement of these provisions. However, such an infringement may be justified and proportional. The District Court judges the question whether the infringement is strictly necessary. It is clear that a limitation of the retention of data cannot easily be imagined in the context of the effective prosecution of heavy criminals. But it will be very difficult to make a difference between a first offender and citizens who are not suspected at all. Therefore, there should be strict safeguards. There is no independent authority which controls the requirements in terms of protection and safeguards when service providers retain data outside the territory of the European Union, and there are some smaller ones which do so. Moreover, Dutch authorities have access to the data also in the case of offences, such as the theft of a bicycle. There are no provisions that see to it that access to the data is really limited to what is strictly necessary of the combat of (only) serious crimes. Moreover, access is not subject to prior independent approval by, for example, a court. EU law (for example the Charter) has been applied and implemented in Dutch law on the basis of judicial precedent. This entails that when the Court decides that the Act is inapplicable, EU law provisions prevail, but the inapplicable national Act it will continue to exist. This decision will also be followed in possible subsequent cases, as this judgment has become the core of Dutch law in this area, replacing the provisions of the Act.

Outcome of the case:

The Court ruled that the Act on the Retention of Telecommunication Data is inapplicable because it is in conflict with the right to privacy and the right to the protection of personal data. The District Court judges that there is an infringement of these rights. It is clear that a limitation of the retention of data cannot easily be imagined in the context of the effective prosecution of heavy criminals. But it will be very difficult to make a difference between a first offender and citizens who are not suspected at all. Therefore, there should be strict safeguards. There is no independent authority which controls the requirements in terms of protection and safeguards when service providers retain data outside the territory of the European Union, and there are some smaller ones which do so. Moreover, Dutch authorities have access to the data also in the case of offences, such as the theft of a bicycle. There are no provisions that see to it that access to the data is really limited to what is strictly necessary of the combat of (only) serious crimes. Moreover, access is not subject to prior independent approval by, for example, a court.