The effect of Court of Justice of the European Union case-law on national data retention regimes and judicial cooperation in the EU : criminal justice across borders

At the beginning of 2017, the College of Eurojust initiated a project designed to assess the impact on judicial cooperation in criminal matters within the European Union (EU) of the judgment of the Court of Justice of the European Union (CJEU) in Joined Cases C-203/15 and C-698/15, Tele2 Sverige and Watson. The project aimed to get an overview of the legal frameworks in the Member States relating to the retention of traffic and location data, along with the access to such retained data by law enforcement and judicial authorities. It also included practitioners' views on the impact of the CJEU judgment on cross-border investigations and prosecutions. The outcome of this mapping exercise was presented in the first report on data retention regimes in Europe. One of the findings of this report was that '... the data retention legislative framework has either been changed, is currently being reviewed and/or has been subject to developing judicial precedent in a significant number of countries ...'. Given the continuous legislative developments and differences in national data retention regimes, it was concluded at the time that the developments and the potential impact of the CJEU judgment, both on a national level and in the area of judicial cooperation in criminal matters, should be further monitored. Case-law has also evolved in the meantime, as the CJEU has rendered new judgments in relation to data retention. After several years of monitoring relevant developments, it was decided in 2023 to perform another impact assessment with a view to preparing a second report. Similarly to the first report, a questionnaire was sent to the European Judicial Cybercrime Network (EJCN) for this purpose. The analysis of the replies to the questionnaire is presented in the current report, which gives an update on the topic of data retention, including practitioners' views on the matter. As the first report did, it aims to provide an overview of data retention regimes in the Member States and serve as an experience-based contribution to the assessment of the impact of the CJEU rulings on cross-border judicial cooperation in criminal matters.