Rétention des données : la Commission sévèrement critiquée par le superviseur européen

Mr. Hustinx presented his opinion on the Commission proposal to the Parliament’s Civil Liberties, Justice and Home Affairs Committee  on 26 September 2005 in Strasbourg. Before, he presented it to the press in Brussels. Mr. Hustinx’s main points were the following: 

• The proposal is more balanced and more precise than the Council’s draft framework decision. But "any proposal at this time should ensure respect for the European Convention on Human Rights  and the case law of the European Court for Human Rights. If that is not the case, then it's not just unacceptable but illegal."
• The proposal has a profound impact on privacy and the protection of personal data. It must therefore be examined whether it is balanced and proportional. Balance is very strictly defined - the proposal has to be at the same time proportionate, effective and adequate. 
• The British Presidency has started providing some evidence on the need for the data. This evidence is, however, far from being sufficient. 'Need' as required by the law goes beyond relevance for law enforcement, in particular if it involves an invasion into all citizens’ private life.  In the light of this consideration, the present proposal fails to demonstrate a 'need' for data retention.
• It must be made clear in the proposal that it will at all times refer only to traffic data, and that the content of communications will not be recorded.
• The proposal also needs to be much more clear to make sure that the data gets deleted once it is no longer 'needed'.
• On a positive note, the proposal puts the controversial issue of data retention into the codecision procedure, in which the Parliament has much more of a say. "For too long this subject has been discussed under circumstances which were far from adequate." However, any amendments - in particular to the annex, which contains a list of the kinds of data to be retained - should be decided in directives also, and not in an untransparent comitology procedure, as the proposal foresees.   
• More details are needed as to implementation at member state level. Who are the competent authorities that will have access to the data? It should be kept in mind that any data that is made accessible to law enforcement agencies will most likely also be accessible to secret services. Safeguards to limit access to the data must therefore be even stricter.
• The draft directive's provisions on data retention periods also need to be more precise. The retention period of one year envisaged in the Commission draft already stresses the proportionality principle whereby "a time limit beyond one year would be disproportionate".