Summary

On 15 March 2006, the European Parliament and Council adopted directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks. By this directive, providers of publicly available electronic communications services or of public communications networks were required to retain traffic and location data for periods of not less than six months and not more than two years from the date of the communication. Riigikogu transposed the directive by supplementing the Electronic Communications Act with a couple of new provisions. Amendments to the Act entered into force on 17 December 2007.

In its judgment in joined cases Digital Rights Ireland, the European Court of Justice (ECJ) repealed the directive on 8 April 2014, finding that the directive disproportionately restricted Articles 7 and 8 of the Charter of Fundamental Rights of the EU that provide for the protection of private life and personal data.

Declaring a directive invalid does not mean that the national legal instrument of the state transposing the directive is automatically null and void. This is because: “A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods” (third paragraph of TFEU’s Article 288). Hence, the legislator of a state may, at least theoretically, transpose a European Union directive in a way that ensures the proportionality of an infringement of a fundamental right. Estonia is among the states in which, almost two years after the ECJ judgment, the provisions transposed from the repealed directive are still valid.

The article analyses the impact of the ECJ judgment on the relevant provisions of the Electronic Communications Act in the light of the Charter of Fundamental Rights of the EU and the Constitution. Furthermore, the principles of data protection in the EU are clarified, the judgment of the ECJ is analysed, and the responses of the constitutional and higher courts of the member states are described.