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Slovenia / Constitutional Court / U-I-65/13-19

Information Commissioner of the Republic of Slovenia National Assembly of the Republic of Slovenia

Policy area:
Information society
Deciding Body type:
National Court/Tribunal
Deciding Body:
Slovenia / Constitutional Court of the Republic of Slovenia
Type:
Decision
Decision date:
03/07/2014

Key facts of the case:

The Information Commissioner (hereinafter referred to as the applicant) (Informacijski pooblaščenec) requested a review of the constitutionality of Articles 162 through 169 of the Electronic Communications Act (hereinafter referred to as the ECA-1) (Zakon o elektronskih komunikacijah, ZEKom), which entered into force on 15 January 2013. By the challenged provisions the Republic of Slovenia transposed into its legal order Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (hereinafter referred to as the Data Retention Directive). For the purposes determined by the law regulating criminal proceedings, the law regulating the functioning of the Slovene Intelligence and Security Agency (Slovenska obveščevalno-varnostna agencija, SOVA), and the law regulating the defence of the state (the first paragraph of Article 162 of the ECA-1), the challenged regulation imposed on providers of publicly available electronic communications services and public communications networks the obligation to retain certain traffic, location, and other data necessary for the identification of an individual (Article 164 of the ECA-1). Such data were to be retained for 14 months (for data regarding publicly available telephone services) or 8 months (for other data) following the date of communication.

Key legal question raised by the Court:

The fundamental allegation brought forward by the applicant was that, on the basis of the Data Retention Directive, Republic of Slovenia imposed on service providers the obligation to retain as a precautionary measure the traffic and location data of all users, i.e. regardless of whether the users themselves gave rise to reasons for such an interference with their rights. The applicant argued that the precautionary retention of data entailed inadmissible interferences with several fundamental rights provided by the Constitution of the Republic of Slovenia (Ustava Republike Slovenije, URS) (for example, the rights regarding the protection of personal data and communication privacy).

Outcome of the case:

The Court decided as follows:

1. Articles 162, 163, 164, 165, 166, 167, 168, and 169 of the Electronic Communications Act (Official Gazette RS, Nos. 109/12 and 110/13) are abrogated.
2. Following the publication of this Decision in the Official Gazette of the Republic of Slovenia, the service providers referred to in the first paragraph of Article 163 of the Electronic Communications Act must immediately destroy all data that they are retaining on the basis of the challenged provisions.