The Advocate-General of the European Court of Justice, CJUE, found on Thursday that Belgium’s law on privacy and electronic communication is incompatible with the EU Charter of Fundamental Rights.
The law, promulgated on 29 May 2016, regulates the collection and retention of data by the providers of networks and electronic services. It replaced an early one that was rescinded by the Constitutional Court for incompatibility with the protection of privacy.
It determines, among other things, the cases in which operators and suppliers need to retain personal data and give State authorities access to such data within the framework of the fight against various types of crime.
However, Belgian associations such as Avocats.be – the order of French- and German-language bars-, the Ligue des Droits Humains and Academie fiscal, an association that defends accountants and taxpayers, feel the law goes too far. They say it would impinge on the professional secrecy of attorneys, oblige accountants and tax professionals to disclose their clients of, and, more generally, run counter to respect for privacy and other basic freedoms.
After the associations asked the Constitutional Court to rescind the law, Belgium’s highest jurisdiction requested the opinion of the CJUE. Ahead of the decision of the European Court, Advocate-General Manuel Campos Sánchez-Bordona was called upon to give his opinion.
The Advocate-General found that the Belgian law covers not only cases of suspected terrorism and serious crime, but also investigations into other offences. He noted that even if access to stored data is governed by precisely regulated guarantees, operators and suppliers are subject, in this case, too, to a “general and indiscriminate” obligation, that applies in a permanent and continuous manner, to conserve traffic and localization data, “which is incompatible with the Charter.”
While recognizing the interest of an obligation to retain data for national security and crime-fighting, he advocated “limited and discriminate retention” and “limited access to that data.”
The advice of the Advocate-General is not binding for the CJUE, but the Court usually follows it. Should the CJUE rule that the Belgian law is incompatible with EU legislation, and if Belgium’s Constitutional Court rescinds the law, it could remain in effect until it is amended.