Ireland’s challenge to a law requiring storage of telephone and I...

incorrectly based on treaty provisions dealing with the internal market instead of on those covering police and judicial cooperation in criminal cases, the ECJ said. Bot’s non-binding opinion said retention of traffic data places a significant financial burden on e-communications services providers proportionate to the amount of data they must store and the period for which it must be held. If national rules aren’t harmonized, providers will face different costs across Europe, which could create a barrier to the free movement of electronic communications services and hamper the internal market in those services, Bot said. The mere fact that the directive’s main purpose is to investigate and prosecute serious crime isn’t enough for it to fall within the area covered by police and judicial cooperation in criminal matters, he said. The duty to hold traffic data does not involve any direct law enforcement participation, nor does it standardize national rules regarding either access to the information or its exchange between police agencies, placing it outside the scope of measures dealing with law enforcement cooperation, Bot said. Therefore, it could not have been enacted under the provisions claimed by Ireland, he said. The nation’s action was limited to formal issues and didn’t address the fact that “registering the telecommunications behaviour and movements of the entire EU population in the absence of any reasonable suspicion is clearly disproportionate and violates human rights,” said the German Working Group on Data Retention, an association of civil rights and privacy activists and Internet users. If the ECJ follows Bot’s opinion, it will have to consider the directive’s compatibility with human rights in a second case likely to be filed by the German Federal Constitutional Court, the working group said. A suit by more than 34,000 citizens challenging Germany’s data retention law is pending in that court, which is expected to rule shortly on a request for a preliminary injunction, it said. The application is directed primarily against storing of Internet access, anonymizing services and e-mail data, which takes effect Jan. 1, it said. The constitutional court will likely issue a judgment after the ECJ decides on the human rights issues, the working group said. The advocate general’s opinion is a “setback for the plaintiffs,” said German telecommunications lawyer Axel Spies. Although the judges will make the final decision, an advocate general’s opinion “can have a significant bearing on final rulings,” he said.