Answer given by Ms Malmström on behalf of the Commission
The Commission is aware of the point of view of civil society and data protection authorities that were among the parties that were consulted in the course of the evaluation of the Data Retention Directive. Their answers to the questionnaire are published alongside those of other stakeholders.
Moreover, the Commission took also due note of the report of the Article 29 Working Party on the Protection of Personal Data that it adopted during its meeting of 13 July 2010, which assesses the level of compliance of telecommunications and Internet service providers with their obligations under national legislation implementing the e‑Privacy Directive 2002/58/EC and the Data Retention Directive.
The Commission agrees that it is necessary to fully assess the effectiveness of Data Retention for law enforcement, and to establish the nexus between the use of data obtain under the directive and law enforcement results achieved. On 27 July 2010, the Commission wrote a letter to all Member States and asked them to inform it about the number of convictions, acquittals, cases that were closed or that were discontinued, or crimes that were prevented over the last six months by using retained data.
In the Marper jurisprudence the European Court of Human Rights ruled that indefinite retention of certain sensitive personal data constitutes ‘a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society’.
The Data Retention Directive, however, requires that data are retained for a definitive amount of time (6 to 24 months), obliges to delete data after that period and forbids the retention of information about the content of communications.
In Recital 22 of the Data Retention Directive the legislator stated that the instrument respects the fundamental rights and observes the principles recognised, in particular, by the Charter of Fundamental Rights of the European Union, in particular by ensuring full compliance with citizens' fundamental rights to respect for private life and communications and to the protection of their personal data, as enshrined in Articles 7 and 8 of the Charter.
The Commission takes the view that the directive should be implemented by all Member States. Concerning the issue of optional application of the directive, the Commission is aware that proposals in this direction have been put forward by some stakeholders.
-  See http://ec.europa.eu/home-affairs/policies/police/police_data_evaluation_en.htm#part_1
-  Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), OJ L 201, 31.7.2002.
-  ECHR, S. and Michael Marper v United Kingdom, paragraph 116.
OJ C 243 E, 20/08/2011