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Opposition in the EU
Multi-Level Polity
Legal Mobilization against
the Data Retention
Directive
Stefan Thierse
Sanja Badanjak
Opposition in the EU Multi-Level Polity
 Stefan Thierse · Sanja Badanjak

Opposition in the EU
Multi-Level Polity
Legal Mobilization against the Data
Retention Directive
Stefan Thierse Sanja Badanjak
Institute of European Studies Edinburgh Law School
University of Bremen University of Edinburgh
Bremen, Germany Edinburgh, UK

ISBN 978-3-030-47161-3 ISBN 978-3-030-47162-0 (eBook)

https://doi.org/10.1007/978-3-030-47162-0

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer
Nature Switzerland AG 2021
This work is subject to copyright. All rights are solely and exclusively licensed by the
Publisher, whether the whole or part of the material is concerned, specifically the rights
of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on
microfilms or in any other physical way, and transmission or information storage and
retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology
now known or hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc.
in this publication does not imply, even in the absence of a specific statement, that such
names are exempt from the relevant protective laws and regulations and therefore free for
general use.
The publisher, the authors and the editors are safe to assume that the advice and informa-
tion in this book are believed to be true and accurate at the date of publication. Neither
the publisher nor the authors or the editors give a warranty, expressed or implied, with
respect to the material contained herein or for any errors or omissions that may have been
made. The publisher remains neutral with regard to jurisdictional claims in published maps
and institutional affiliations.

Cover illustration: © Harvey Loake

This Palgrave Pivot imprint is published by the registered company Springer Nature
Switzerland AG
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
 Preface

This book originated as a conference paper that we first prepared for the
3rd Annual General Conference of the European Political Science Associ-
ation (EPSA) in Barcelona in 2013. At the time, we were both Ph.D.
candidates. Stefan was working on a dissertation that sought to grasp
opposition in the European Parliament, a legislature that lacks a clear
government-opposition divide. The Data Retention Directive (DRD) had
already inspired a case study on contestation in legislative decision-making
in his Master thesis. Sanja’s dissertation dealt with the Europeanization of
party systems. Our shared interest in understanding opposition at the EU
level motivated us to write a paper on the numerous legal and consti-
tutional challenges against the DRD. We found this a striking example
of mobilization against an EU legislative act that spurred constitutional
challenges and contributed to the formation of data privacy movements
and new parties in numerous countries across the continent. Subsequent
versions of the paper were presented at the 2015 triannual conference
of the German Political Science Association (DVPW) in Duisburg and in
smaller colloquia, receiving encouraging input. However, the paper met
the fate of many works in progress and ended up in our drawers as the
both of us took on new positions and turned to new research agendas.
Fortunately, both authors were approached in 2018 with the offer
to submit a manuscript proposal for the Pivot imprint in response to
other publications. We seized the opportunity and recalled an unfinished
piece of work. To our benefit, the topic had never lost its relevance, as

v
vi PREFACE

legislation on blanket data retention kept resurfacing, and legal battles

continued even after the landmark ruling in Digital Rights Ireland. This
book is the result of an idea that has been able to mature, and we are
thankful for the opportunity to finally have it published.
For both the intellectual and financial support in conducting research
for this book, we wish to extend our gratitude. Stefan acknowledges
generous support in the form of a research grant by the Strategic Research
Fund (grant number SFF – F 2017/1259-6) at Heinrich Heine Univer-
sity of Düsseldorf. The proposal for this grant was developed as part of
a short-term research fellowship awarded by the Jean Monnet Centre of
Excellence of the University of Antwerp (ACTORE) in March and April
2017. Discussions with Jan Beyers, Peter Bursens, Dirk de Bièvre, Patricia
Popelier, Frederik Heylen, Inger Baller, Iskander de Bruycker, Evelien
Willems and Wouter Vandenhole proved immensely helpful and inspiring
in an early phase. At a later stage, once the project was approved, Britta
Rehder, Katharina van Elten and Florian Spohr provided vital input with
regard to connecting our research to the literature on legal mobilization
and social movements. Last but not least, we thank our interview respon-
dents, who dedicated their time and effort to answering all of our ques-
tions and provided invaluable insight and first-hand information on the
subject matter.

Bremen, Germany Stefan Thierse

Edinburgh, UK Sanja Badanjak
 Contents

1 Introduction 1
References 8

2 The Never-Ending Story of Data Retention in the EU 11

2.1 Why Is Data Retention Controversial? 12
2.2 EU and Harmonization of Data Retention Rules 15
2.3 The Judicial Demise of the DRD 18
2.3.1 Why Was the DRD Illegal? 19
2.4 After Data Retention, More Data Retention? 21
References 27

3 Conceptualizing Opposition in the EU Multi-Level

Polity 29
3.1 Revisiting the Concept of Political Opposition 30
3.2 Opposition in a Multi-Level Polity 35
References 41

4 Constitutional Review as Political and Legal

Opportunity Structure 47
4.1 Opportunity Structures 47
4.2 Legal and Political Opportunity Structures 49
4.3 Constitutional Review as an Opportunity Structure 51

vii
viii CONTENTS

4.3.1 The Constitutional Complaint in Comparative

Perspective 55
4.3.2 The Impact of Constitutional Complaints 58
4.3.3 The Mobilizing and Participatory Function
of Constitutional Complaints 62
4.4 The Constitutional Complaint and Preliminary
References—Access to the European Court of Justice? 63
References 70

5 Legal Mobilization as an Oppositional Strategy: From

Individual Activation to Collective Action 75
5.1 Legal Mobilization and the Importance of Legal
Frames 76
5.2 Legal Mobilization: From Individual Activation
to Collective Action 78
5.2.1 Legal Mobilization as Individual Action 78
5.2.2 Individual Motivation to Mobilize the Law 81
5.2.3 Legal Mobilization and the Role of Policy
Entrepreneurship 83
5.2.4 Legal Mobilization as a Phenomenon
of Collective Action 86
5.3 Legal Mobilization and Venue-Shopping 90
5.4 Conclusion: From Legal Mobilization to Opposition 92
References 94

6 Legal Mobilization Against the Data Retention

Directive—Opportunity Structures, Actors
and Strategies 99
6.1 Empirical Strategy 100
6.2 Challenging Data Retention Before
the Courts—Evidence from a Comparative
Case Study 102
6.2.1 Ireland 102
6.2.2 Germany 108
6.2.3 Czech Republic 117
6.2.4 Austria 120
6.3 Conclusion 124
References 132
 CONTENTS ix

7 Opposition in the Multi-Level Polity: Prospects

and Implications 137
References 143

Annex 145

Index 149
 Abbreviations

AG Advocate General
ALDE Alliance of Liberals and Democrats for Europe
BGBl Bundesgesetzblatt
BVerfG Bundesverfassungsgericht
BVerwG Bundesverwaltungsgericht
CFR Charter of Fundamental Rights of the European Union
CJEU Court of Justice of the European Union
DRD Data Retention Directive
DRI Digital Rights Ireland
DRIPA Data Retention and Investigatory Powers Act of 2014 (UK)
EC European Commission
ECB European Central Bank
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
EDRi European Digital Rights Campaign
EFF Electronic Frontier Foundation
EP European Parliament
EPP European People’s Party
EU European Union
FCC Federal Constitutional Court (Germany)
FRA Fundamental Rights Agency
GG Grundgesetz (Germany)
IMEI International Mobile Equipment Identity
INGO International Non-Governmental Organization
IP Internet Protocol
ISP Internet Service Provider

xi
xii ABBREVIATIONS

ISPA Internet Service Providers Association of Ireland

JHA Justice and Home Affairs
LOS Legal Opportunity Structure
MEP Member of the European Parliament
NGO Non-Governmental Organization
POS Political Opportunity Structure
S&D Progressive Alliance of Socialists and Democrats
StGG Staatsgrundgesetz (Austria)
TFEU Treaty on the Functioning of the European Union
U.S. United States
ÚS Ústavní Soud (Czech Constitutional Court)
VfGH Verfassungsgerichtshof (Austrian Constitutional Court)
 List of Tables

Table 4.1 Constitutional review in the EU Member States 53

Table 4.2 Access to constitutional review in selected EU Member
States 54
Table A.1 List of interviews 145

xiii
 CHAPTER 1

Introduction

Abstract This introductory chapter presents the main argument and

outline of the book. Our main point of contention is the common
depiction of the EU as a political system bereft of an organized, insti-
tutionalized opposition. We argue that the multi-level setting of the EU
requires a contextually adequate concept and a careful consideration of
alternative sites at which opposition comes to bear on the political process.
We extend recent contributions to reinvigorating research on opposi-
tion by linking research on social movements and legal mobilization. In
particular, we consider a specific venue appropriate to serve oppositional
objectives: Member State constitutional courts.

Keywords Opposition · Multi-level polity · Legal mobilization · Social

movements · Constitutional courts

The European Union (EU) has been qualified as a case of “governance

without opposition” (Neunreither, 1998). This verdict can hardly be
disputed if we apply the benchmark of a parliamentary democracy. The
EU system of government does not feature a central government that is
formed and continuously supported by a majority in the European Parlia-
ment (EP). Even though elections to the EP have become more impor-
tant in determining the leadership of the European Commission, which
is part of the EU’s executive branch, the EU is far from a parliamentary

© The Author(s) 2021 1

S. Thierse and S. Badanjak, Opposition in the EU Multi-Level Polity,
https://doi.org/10.1007/978-3-030-47162-0_1
2 S. THIERSE AND S. BADANJAK

system of government characterized by a clear-cut government-opposition

dualism (Decker & Sonnicksen, 2011). At the same time, and somewhat
paradoxically, there is agreement that the EU, despite the absence of a
structured parliamentary opposition, offers abundant opportunities for
political opposition (Helms, 2008; Mair, 2007). Although not a state,
the EU is a political system which makes collectively binding decisions in
an ever-growing number of policy fields. Opposition can thus be directed
both at the EU polity in the sense of fundamental or anti-system opposi-
tion, or against the policies which originate at the EU level. According
to conventional wisdom, the predominance of opposition against the
EU political system is a direct result of the lack of means to organize
and exercise opposition within the system, directed against specific policy
decisions. As Peter Mair (2007, p. 7) has noted,

we emphatically lack the right to organize opposition within the system.

We lack the capacity to do so, and, above all, we lack an arena in which to
do it. Once we cannot organize opposition in the EU, we are then almost
forced to organize opposition to the EU. To be critical of the policies
promulgated by Brussels is therefore to be critical of the polity; to object
to the process is therefore to object to the product.

It is from this vantage point that a considerable part of the extant

literature has equated the “politics of opposition” with Euroscepticism
and populism (Sitter, 2001; Szczerbiak & Taggart, 2008; Van Biezen
& Wallace, 2013). More recent contributions share with the Euroscep-
ticism literature the bias towards parties as privileged agents of political
opposition (Franzmann, 2019; Garritzmann, 2017). In turn, research
putting social movements and interest groups center-stage has by and
large ignored the opposition concept, operating instead with categories
such as contentious politics, political conflict, protest, or outside lobbying,
to name just a few. However, a few studies have sought to bridge the
gap between institutionalized and non-institutionalized politics under the
rubric of opposition, advancing the notion of opposition as multiple,
shifting alliances between parties in parliament and extra-parliamentary
actors such as social movements and interest groups (Brack & Wein-
blum, 2011; Crespy & Parks, 2017).1 While these works are meritorious
for emancipating the concept of opposition from its reduction to parlia-
mentary minorities aspiring to government alternation and do stress the
plurality of opposition as ever new configurations of actors that policy
 1 INTRODUCTION 3

decisions, they fail to consider a key site of action where opposition

becomes visible in organizational terms and can achieve impact on public
policy: constitutional courts.
In this book, we build on the premise that in order to pin down and
understand opposition in the EU multi-level polity, we need to turn to
alternative venues where political conflict is resolved and policy decisions
become subject to deliberation and scrutiny, and alternative agents that
perform essential functions of any political opposition: exercise control,
voice public criticism and present alternatives. As regards alternative sites
of opposition, we propose that constitutional and high courts in the EU
Member States offer an opportunity structure that allows for a contin-
uation of the political process in the legal sphere. As for alternative
agents, we focus on social movements and public interest groups. This
book extends recent advances in research on opposition in the EU by
considering the ways in which constitutional challenges initiated by social
movement organizations (SMOs) and public interest groups contribute to
forming alliances between citizens, movements and parties and imposing
constraints on the exercise of political power by governments. The ques-
tions guiding our research are: Why do public interest groups and social
movement organizations take recourse to constitutional litigation? Under
what circumstances can constitutional complaints, which are an individual
extraordinary legal remedy, be transformed into an instrument of collective
action and mobilization?
In addressing these questions, we integrate several strands of liter-
ature to develop a concept of political opposition that is appropriate
to the context of the EU as a multi-level polity characterized by frag-
mentation and separation of political power. First, our research connects
to comparative constitutional law and politics. As political scientists, we
remain attached to a perspective of “constitutional courts and law as
a form of politics by other means” (Hirschl, 2009, p. 825) that harks
back to the works of scholars such as Martin Shapiro (1963) or Robert
Dahl (1968 [1966]). For several reasons, the focus on (constitutional)
courts is a promising venue to explore opposition in the EU: To begin
with, courts are veto players by virtue of their competence to assess the
conformity of acts by the executive and legislative branches with constitu-
tional principles (constitutional review) and the power to revoke acts that
violate constitutional law. Furthermore, constitutional review can be acti-
vated not only by political actors, but also by private citizens. Although
constitutional complaints are not available in all EU Member States (see
4 S. THIERSE AND S. BADANJAK

Chapter 4) and while the instrument is subject to a number of prereq-

uisites and qualifications, it is nevertheless an important opportunity that
expands the range of actors that can invoke constitutional principles to
put a check on the exercise of political power. Finally, national constitu-
tional courts are linked to the Court of Justice of the European Union
(CJEU) in a European network that also includes the European Court of
Human Rights (ECtHR).2 This network builds on mutual cooperation
between the courts and, analogous to the concept of multi-level gover-
nance, escapes conventional state-centric categories of supremacy and
subordination (Voßkuhle, 2009, p. 8). Within this network, preliminary
references, a catalyst of the EU legal order originally employed primarily
by lower courts, are used increasingly also by national constitutional
courts when adjudicating on matters that touch on both constitutional
and EU law. While individuals face formidable obstacles in gaining legal
standing before the CJEU, the sole body competent to invalidate acts
of the EU for violation of EU law and fundamental rights, preliminary
references by constitutional courts open up an alternative channel for
individuals seeking to activate judicial review by the CJEU.
A second strand of research this book connects to is the literature on
legal mobilization. The pioneering work by Stuart Scheingold (2004) has
laid the theoretical foundations for a vision of litigation and rights-based
claims as a strategy to advocate social and policy change. Rejecting a
mechanistic notion of rights, legal redress and litigation, this literature
stresses the contingent value of rights as resources that must be exploited
by the bearers of rights, transformed into justiciable entitlements with
the aid of legal experts, validated by judges and defended against rivaling
interpretations and countermobilization outside the legal arena. Partic-
ularly pertinent for our research are those contributions that treat legal
mobilization as a phenomenon of collective action and a strategy of social
movements and public interest groups (Berry, 1977; Burstein, 1991;
Cichowski, 2007; Handler, 1978; Hilson, 2002; McCann, 2016). Litiga-
tion strategies have traditionally been portrayed as a tool for marginalized
groups that lack regular access to the centers of political decision-making
(Cortner, 1968, p. 287). This relates to the notion of opposition as
being the ‘alternative mover of politics’ that is in a minority position.
However, litigation that is aimed at effectuating policy change is by no
means a unique selling point of public interest groups and social move-
ments advocating the interests of those that ‘do not have a lobby’. Indeed,
wealthy corporations may likewise litigate in order to influence policy
 1 INTRODUCTION 5

decisions that negatively impact on their material interests. However,

collective legal mobilization is qualitatively different. Where legal mobi-
lization becomes a collective endeavor that involves coordinated action
by numerous actors across multiple arenas, we will most likely see litiga-
tion being embedded in a wider “repertoire of contention” (Alimi, 2015)
targeted at creating public awareness: press conferences, information
campaigns, demonstrations and street rallies or petitions.
(Contentious) collective action, coordination, mobilization, opportu-
nity structure(s) and resources are key concepts in the social movement
literature, the third strand of scholarship that informs our research (Della
Porta & Diani, 2015; McAdam, McCarthy, & Zald, 2008; Tarrow, 2011).
We thus build on recent contributions to the study of political opposition
which have adopted a movement-centric perspective and point to the
importance of linkages between parliamentary and extra-parliamentary
actors for influencing public policy. Indeed, a central tenet of the legal
mobilization literature is that a support structure composed of both extra-
parliamentary actors such as rights-advocacy groups and parliamentary
actors such as ‘movement-friendly’ legislators is a necessary condition to
exploit the opportunities associated with rights and the access to judicial
review and to help enforce judicial decisions ‘on the ground’ (Epp, 2008).
We therefore second Goldstone’s (2003, p. 8) argument that “[s]ocial
movement activity and conventional political activity are different but
parallel approaches to influencing political outcomes, often drawing on
the same actors, targeting the same bodies, and seeking the same goals”.
This book innovates on existing research on legal mobilization and
social movements in three ways: First, it explores legal mobilization before
constitutional courts of four selected European countries: Austria, the
Czech Republic, Germany and Ireland.3 In the extant literature, there is
little research on the use of constitutional litigation by organized interests
and social movements apart from the context of the U.S. political system.4
Second, we focus on legal mobilization via constitutional complaints,
a procedure that provides access to constitutional review for individ-
uals. With few exceptions, the political implications of the constitutional
complaint procedure have gone largely unnoticed by social scientists. The
few studies that consider constitutional complaints from a comparative
perspective have all been conducted by legal scholars (Brunner, 2002;
Dannemann, 1994; Visser, 2015). Third, we explicitly consider the condi-
tions under which litigation before domestic (constitutional) courts is
provoked by, and in turn impacts on decisions taken at the EU level.
6 S. THIERSE AND S. BADANJAK

Thus, we analyze the interactions between the CJEU and constitutional

courts and their joint capacity to provide protection of fundamental rights
and rein in Member State governments that are at once legislators at the
EU level and executives implementing EU legislation at the national level.
In the following, we investigate legal mobilization against a partic-
ular piece of legislation: the EU Directive on Data Retention (DRD),
which obliged Member States to introduce blanket retention of telecom-
munications data by providers for the purpose of criminal prosecution.
In many respects, the DRD represents an extreme case, which makes it a
convenient candidate for exploring causal mechanisms (see Chapter 6).
The DRD is one of the few events in which mobilization against an
EU policy decision took place concurrently in several EU Member States
and to some extent even entailed cross-border collaboration of move-
ment activists, qualifying it as a rare example of transnational protest. In
addition, data retention schemes have been challenged before courts in a
majority of Member States. To date, constitutional courts in ten Member
States have examined the constitutionality of blanket data retention
provisions.5 Within the countries we focus on, constitutional challenges
were initiated and organized by SMOs and public interest groups. In
two countries—Germany and Austria—the constitutional complaints were
backed by tens of thousands of citizens acting as litigants against the
national implementing acts. In two countries—Ireland and Austria—high
or constitutional courts filed motions for preliminary rulings to the CJEU
that led to the annulment of the DRD.6 In subsequent rulings, the
judges in Luxembourg reaffirmed the invalidity of a general, unfounded,
blanket retention of communication data.7 The decisions were widely
interpreted as raising the profile of the CJEU as a privacy-friendly,
rights-activist court. At the same time, this position has been met with
reluctance by several Member States, which fear that a rigid application
of existing CJEU case law will tie their hands in giving law enforcement
and intelligence agencies the tools necessary to guarantee national secu-
rity. Altogether, the DRD delivers ample empirical material to explore the
complexity and intricacy of political opposition via legal mobilization in
the EU multi-level polity.
The book proceeds as follows: Chapter 2 sets the scene for the subse-
quent empirical analysis of legal mobilization in the EU Member States.
After explaining the main controversies around data retention, we briefly
present the key elements of the DRD and the considerations that led
to the invalidation of the DRD by the CJEU in Digital Rights Ireland.
 1 INTRODUCTION 7

Chapter 3 develops a concept of political opposition appropriate for the

institutional context of the EU as a political system characterized by
complexity, fragmentation, and separation of powers. Chapter 4 analyzes
the potential of constitutional review as an opportunity structure for advo-
cacy, mobilization and policy change. In particular, we focus on variation
in the access requirements to constitutional review for private individuals,
drawing on the distinction between systems with concentrated and diffuse
constitutional review. Chapter 5 explores the linkage between collective
legal mobilization and opposition. Legal mobilization is conceptualized as
a mechanism that at once expands political conflict beyond the confines
of the parliamentary arena and is geared towards resolving conflict by
enlisting constitutional courts in the struggle for policy change. Collective
legal mobilization via constitutional complaints is subject to precondi-
tions, which begs the question: How can an individual legal remedy be
transformed into an instrument of mobilization and participation? This
question is addressed in more detail in Chapter 6, which investigates the
actors, strategies and outcomes of legal mobilization against the DRD and
national implementing legislation. Chapter 7 summarizes our findings,
expounds theoretical and practical implications of our study and discusses
avenues for future research.

Notes
1. The distinction between social movements, social movement organizations
(SMOs) and (public) interest groups has been notoriously fuzzy, reflecting
a general tendency of conceptual conflation in the study of organized inter-
ests (Beyers, Eising, & Maloney, 2009; Jordan, Halpin, & Maloney, 2004).
We will revisit this aspect in Chapter 3 when dealing with the agency of
political opposition.
2. For reasons of space, the ECtHR will not be considered in detail in this
book (but see, for instance, Madsen, 2007).
3. For the particularity of the case of Ireland, see Chapter 4.
4. For the case of Germany, see Gawron and Schäfer (1976). For the case
of constitutional litigation in a non-Western, non-liberal context, see Chua
(2017).
5. Council of the European Union (2019). Data retention—Situation
in Member States (No. WK 3103/2019 INIT). Brussels, 6 March
2019. Retrieved from http://data.consilium.europa.eu/doc/document/
ST-9663-2019-INIT/en/pdf. Accessed on 15 February 2020.
6. Case C-293/12—Digital Rights Ireland and Seitlinger and Others, Judg-
ment of 8 April 2014, ECLI:EU:C:2014:238.
8 S. THIERSE AND S. BADANJAK

7. Joined cases C-203/15 and C-698/15, Tele2 Sverige AB/Post-

Och Telestyrelsen and Secretary of State for the Home Depart-
ment/Tom Watson et al., CJEU judgment of 21 December 2016.
ECLI:EU:C:2016:970.

References
Alimi, E. Y. (2015). Repertoires of contention. In D. Della Porta & M. Diani
(Eds.), The Oxford handbook of social movements (pp. 410–421). Oxford:
Oxford University Press.
Berry, J. M. (1977). Lobbying for the people: The political behavior of public interest
groups. Princeton Legacy Library. Princeton, NJ: Princeton University Press.
Beyers, J., Eising, R., & Maloney, W. (2009). Researching interest group politics
in Europe and elsewhere: Much we study, little we know? West European
Politics, 31(6), 1103–1128.
Brack, N., & Weinblum, S. (2011). “Political opposition”: Towards a renewed
research agenda. Interdisciplinary Political Studies, 1(1), 69–79.
Brunner, G. (2002). Der Zugang des Einzelnen zur Verfassungsgerichtsbarkeit
im europäischen Raum. In P. Häberle (Ed.), Jahrbuch des öffentlichen Rechts
der Gegenwart (pp. 191–256). Tübingen: J.C.B. Mohr.
Burstein, P. (1991). Legal mobilization as a social movement tactic: The struggle
for equal employment opportunity. American Journal of Sociology, 96(5),
1201–1225.
Chua, L. J. (2017). Collective litigation and the constitutional challenges to
decriminalizing homosexuality in Singapore. Journal of Law and Society,
44(3), 433–455.
Cichowski, R. A. (2007). The European court and civil society: Litigation,
mobilization and governance. Cambridge, UK and New York: Cambridge
University Press.
Cortner, R. (1968). Strategies and tactics of litigants in constitutional cases.
Journal of Public Law, 17 (2), 287–307.
Crespy, A., & Parks, L. (2017). The connection between parliamentary and
extra-parliamentary opposition in the EU: From ACTA to the financial crisis.
Journal of European Integration, 39(4), 453–467.
Dahl, R. A. (Ed.). (1968 [1966]). Political oppositions in western democracies.
New Haven and London: Yale University Press.
Dannemann, G. (1994). Constitutional complaints: The European perspective.
The International and Comparative Law Quarterly, 43(1), 142–153.
Decker, F., & Sonnicksen, J. (2011). An alternative approach to European
Union democratization: Re-examining the Direct Election of the Commission
President. Government and Opposition, 46(2), 168–191.
 1 INTRODUCTION 9

Della Porta, D., & Diani, M. (Eds.). (2015). The Oxford handbook of social
movements. Oxford: Oxford University Press.
Epp, C. R. (2008). The rights revolution: Lawyers, activists, and supreme courts
in comparative perspective (4th ed.). Chicago: University of Chicago Press.
Franzmann, S. T. (2019). Extra-parliamentary opposition within a transforming
political space: The AfD and FDP under Merkel III between 2013 and 2017.
German Politics, 28(3), 332–349.
Garritzmann, J. L. (2017). How much power do oppositions have? Comparing
the opportunity structures of parliamentary oppositions in 21 democracies.
The Journal of Legislative Studies, 23(1), 1–30.
Gawron, T., & Schäfer, R. (1976). Justiz und organisierte Interessen in der BRD.
In P. Kielmansegg (Ed.), Politische Vierteljahresschrift Sonderheft: 7/1976.
Legitimationsprobleme Politischer Systeme: Tagung der Deutschen Vereinigung
für Politische Wissenschaft in Duisburg, Herbst 1975 (pp. 217–269). Opladen:
Westdeutscher Verlag.
Goldstone, J. A. (2003). Introduction: Bridging institutionalized and nonin-
stitutionalized politics. In J. A. Goldstone (Ed.), States, parties, and social
movements (pp. 1–24). New York: Cambridge University Press.
Handler, J. F. (1978). Social movements and the legal system: A theory of law
reform and social change. New York: Academic Press.
Helms, L. (2008). Parliamentary opposition and its alternatives in a transnational
regime: The European Union in perspective. The Journal of Legislative Studies,
14(1/2), 212–235.
Hilson, C. (2002). New social movements: The role of legal opportunity. Journal
of European Public Policy, 9(2), 238–255.
Hirschl, R. (2009). The realist turn in comparative constitutional politics.
Political Research Quarterly, 62(4), 825–833.
Jordan, G., Halpin, D., & Maloney, W. (2004). Defining interests: Disam-
biguation and the need for new distinctions. British Journal of Politics and
International Relations, 6(2), 195–212.
Madsen, M. R. (2007). From Cold War instrument to supreme European Court:
The European Court of Human Rights at the crossroads of international and
national law and politics. Law & Social Inquiry, 32(1), 137–159.
Mair, P. (2007). Political opposition and the European Union. Government and
Opposition, 42(1), 1–17.
McAdam, D., McCarthy, J. D., & Zald, M. N. (Eds.). (2008). Cambridge studies
in comparative politics: Comparative perspectives on social movements: Polit-
ical opportunities, mobilizing structures, and cultural framings (9. printing).
Cambridge: Cambridge University Press.
McCann, M. W. (Ed.). (2016). International library of essays in law and society:
Law and social movements. London and New York: Routledge.
10 S. THIERSE AND S. BADANJAK

Neunreither, K. (1998). Governance without opposition: The case of the

European Union. Government and Opposition, 33(4), 419–441.
Scheingold, S. A. (2004). The politics of rights: Lawyers, public policy, and political
change (2nd ed.). Ann Arbor: University of Michigan Press.
Shapiro, M. (1963). Political jurisprudence. Kentucky Law Journal, 52, 294–345.
Sitter, N. (2001). The politics of opposition and European integration in Scan-
dinavia: Is Euroscepticism a government-opposition dynamic? West European
Politics, 24(4), 22–39.
Szczerbiak, A., & Taggart, P. A. (Eds.). (2008). Opposing Europe? The compara-
tive party politics of Euroscepticism. Oxford: Oxford University Press.
Tarrow, S. G. (2011). Power in movement: Social movements and contentious poli-
tics (3rd ed.). Cambridge studies in comparative politics. Cambridge and New
York: Cambridge University Press.
Van Biezen, I., & Wallace, H. (2013). Old and new oppositions in contemporary
Europe. Government and Opposition, 48(3), 289–313.
Visser, M. d. (2015). Constitutional review in Europe: A comparative anal-
ysis. European and national constitutional law series: Volume 1. Oxford: Hart
Publishing.
Voßkuhle, A. (2009). Der europäische Verfassungsgerichtsverbund (Trans State
Working Papers No. 106). Bremen: Sfb 597 „Staatlichkeit im Wandel“.
 CHAPTER 2

The Never-Ending Story of Data Retention

in the EU

Abstract This chapter stages the case of the EU Data Retention Directive
and its transposition into national law. First, we describe the practice of
data retention and its implications for individual citizens, followed by an
overview of how the directive came into being. We explain why its adop-
tion was contested, discussing both substantive and procedural reasons for
contestation. We examine the transposition in the EU Member States and
the implementation deficits, which themselves gave rise to legal proceed-
ings. The chapter concludes with a summary of the key points of the
CJEU rulings which invalidated the EU data retention scheme, taking
into account the ruling’s impact on subsequent Member State legislation
in the area of telecommunication data retention, and the current state of
play concerning data retention in the EU.

Keywords Data Retention Directive · Transposition · Court of Justice of

the European Union · Implementation · Preliminary reference procedure

Insofar as it has kept coming back to the legislative agenda across the
European Union’s (EU) Member States, regulation of data retention has
been rather similar to the undead one may see in horror movies. The
legislation had its heyday with the adoption of the Data Retention Direc-
tive (Directive 2006/24/EC, hereinafter DRD)1 only to be struck down

© The Author(s) 2021 11

S. Thierse and S. Badanjak, Opposition in the EU Multi-Level Polity,
https://doi.org/10.1007/978-3-030-47162-0_2
12 S. THIERSE AND S. BADANJAK

and meet its demise at the hand of the Court of Justice of the Euro-
pean Union (CJEU), followed by continuing returns to the legislative
agenda in the Member States, waiting in the shadows at the EU level, with
regular speculation concerning its return. Additionally, most of the EU
Member States still keep some form of data retention legislation on the
books, prompting concern from human rights organizations, including
the EU Fundamental Rights Agency (FRA) (European Union Agency for
Fundamental Rights, 2019), and leading to a continuous stream of court
cases in national and international courts. Data retention keeps resur-
facing on the agenda—and we expect that it will continue to do so for
the foreseeable future.
In this chapter, we focus on the history of contestation over data reten-
tion and provide an overview of the attempt to regulate the matter at the
EU level, as well as the challenges to the DRD before national courts
and the CJEU. We particularly focus on the various challenges to the
directive, the manner in which it was proclaimed invalid by the CJEU,
and the current state of play concerning data retention regulations in EU
Member States. Before delving into the history and the discussion of the
current states, we outline the core of the challenge to individual rights,
and privacy in particular, that was posed by the DRD.

2.1 Why Is Data Retention Controversial?

Most mobile phone and internet users are aware that their use of these
technologies exposes some of their personal information to the service
providers. For the most part, we agree to surrender some of our personal
information in exchange for the benefits of instant communication and
the added ease of movement this affords us. In this context, data retention
refers to a set of practices by communications companies by which they
find themselves in possession of data concerning their users. These are
data concerning usage characteristics, rather than data about the content
of communications. For example, a telecommunications company may
have information on device location, times when calls and text messages
are received or made, phone numbers of persons with whom one is
communicating, and the like.
The telecommunications companies may track the usage of their
services for two primary purposes: billing and infrastructure monitoring.2
For example, it is core to their business that they are able to ascertain
how many phone calls are made from a particular phone and to which
 2 THE NEVER-ENDING STORY OF DATA RETENTION IN THE EU 13

(kinds of) numbers. Calls to specific numbers may be discounted or free,

while calls to other numbers may carry a premium price. Additionally,
knowing the location of the user may be relevant to the operators’ ability
to monitor the quality of their service and implement repairs as needed.
For example, if the number of calls from and to a certain area suddenly
drops, this may indicate a fault of the infrastructure. These data may need
to be kept by the service providers for a longer period of time—to allow
for customers’ complaints to be dealt with over a certain period of time
or to enforce payment. This is not just the case with data concerning
phone calls, but also concerning internet use. One’s IP (internet protocol)
address is recorded, as are the websites visited, user information for those
we communicate with, email addresses to which emails are sent and those
from which emails are received. Note that none of this entails the reten-
tion of content of communications, though the content can often be
inferred with ease. Nonetheless, most users would find this type of data
retention reasonable—and most do agree to such terms of service. While
one may be uncomfortable with the amount of personal information that
the telecoms and internet service providers (ISPs) have, the intrusion to
one’s personal information becomes particularly serious when there is a
possibility that these data will be shared beyond the relationship of the
user and service provider—as is the case when the data are shared with
law enforcement agencies. Additionally, because of the extent of cooper-
ation in police and judicial matters in the EU, the data may be shared
beyond one’s own country, with the law enforcement agencies across the
EU.
Why is data retention seen as such a useful tool for investigations? Even
if the content of communication is unknown or unavailable, the usage
data may easily be used to establish the patterns of one’s movements and
interactions with others. The core idea of legislating the terms of data
retention was to make these data available to the various law enforce-
ment agencies across the EU, followed by the aim of creating a level
playing field for the telecom operators across the EU. Data retention to
a certain set of standards (such as data type, quality, and length of time
for which the data are stored) is not free, and there is a concern about
some Member States increasing the costs that the telecoms and ISPs are
incurring. Telecommunications companies were already storing such data
for internal purposes, such as business analytics or billing. However, the
requirements placed on them by the directive were to keep such data
14 S. THIERSE AND S. BADANJAK

longer than they would have otherwise and to make them available to
law enforcement organizations for the purpose of criminal prosecution.
In the context of terrorism prevention, the use for such data is clear. By
learning an individual’s phone number, one may also be able to learn who
else they are in contact with, what their social network looks like, which
areas they visit, what their routine movements are, without even glancing
at the text of a single text message or listening in on the contents of
a phone call. Feiler (2010) notes some examples of how very specific
(often personal) information can be inferred from traffic and location
data: many calls to a cardiologist during working hours may be indica-
tive of one’s health situation and an increased number of late-night calls
to a pizza delivery service from a location like the Pentagon can indi-
cate that the employees are dealing with a crisis that does not allow
them to leave their posts. A blanket policy of allowing access to all
retained data to law enforcement agencies would also mean that there
was no distinguishing between (suspected) criminals and other citizens,
the data on whom then also became readily available. In short, everyone’s
activity and movement (or at least everyone using telecommunication
devices) are recorded, and these data are stored by the telecommunica-
tions companies; however, the extent of the data retained, the time limits
for retention, and availability of such data to law enforcement agencies
were either left at the telecoms’ discretion or were the subject of national
legislation. And this precisely became the main point of contention: indis-
criminate data retention essentially amounts to the abandonment of the
presumption of innocence and a substantial infringement of the right to
privacy and informational self-determination. Besides, the effectiveness
and targeting of blanket data retention is questionable. Given that there
are many ways to avoid the trappings of data retention, particularly by
using multiple layers of encryption in online communications or cheap
mobile phones with no contractual obligations, it would appear that the
data retention would primarily affect those who are not particularly keen
to hide the context (nor the content) of their communications.3 Crim-
inals and terrorists could thus apply strategies that reduce the clarity of
analysis of retained data.
Nevertheless, regulating data retention was considered by EU member
states as a tool that could potentially be used in fighting organized
crime and terrorism. Given the onus placed on the telecommunications
companies, it is possible that at some point there would have been a
move towards regulating the relationships between the telecoms and
 2 THE NEVER-ENDING STORY OF DATA RETENTION IN THE EU 15

national authorities at the European level, with the aim of levelling the
playing field. However, the matter was first brought to the EU decision-
making process as a result of the member states’ concern for internal and
European security.

2.2 EU and Harmonization

of Data Retention Rules
Currently, most EU countries have in place some form of legislation
that regulates the manner in which law enforcement agencies are able
to access and use the retained data from telecommunications companies
and ISPs. While some EU countries, such as Ireland, had own legislation
in place (Chapter 6), and some were planning to introduce such legisla-
tion,4 others began to regulate data retention only after it was mandated
by the DRD. The path and pace of implementing data retention provi-
sions at the EU level were greatly affected by the violent terrorist attacks
in the early 2000s, creating a sense of urgency and necessity of a European
response to these security challenges.
Shortly after the terrorist attacks on the World Trade Center in New
York on 11 September 2001, the Justice and Home Affairs (JHA) Council
declared communication data a useful instrument for preventing, inves-
tigating and prosecuting organized crime. At that point, data retention
was only being implemented by some of the member states, most promi-
nently Ireland and the United Kingdom. The data retention framework
in Ireland had already been challenged in national courts. Following the
bombings on the Madrid metro system on 11 March 2004, the Council
proposed that the security infrastructure in the EU be enhanced. Member
State governments envisaged a multi-pronged approach that focused on
enhancing existing mechanisms and facilitating exchange of information
among law enforcement agencies across Member States. Retention of data
from electronic communication was proposed as an area to be explored
for future legislating, alongside the exchanges of information on convic-
tions for terrorist offences, cross-border hot pursuit, the creation of a
European register on convictions and disqualifications, and a database on
forensic material. The Council explicitly stated that “priority should be
given to the proposals under the retention of communication traffic data
and exchange of information on convictions with a view to adoption by
June 2005.”5
16 S. THIERSE AND S. BADANJAK

The JHA ministers of France, Ireland, the United Kingdom (UK)

and Sweden proposed a framework decision on harmonizing the require-
ments for the retention of communication data by service providers. The
data were to be exchanged among law enforcement agencies subject to
a request for mutual assistance. A heated dispute between the EP and
the Council about the appropriate legal basis ensued. The position of the
Council was that, as a matter that really aimed at resolving an issue in
the field of JHA, it would need to be decided in the former third pillar,
subject to a unanimous decision in the Council without consent by the
EP.
Ultimately, the EP prevailed with its interpretation that the harmoniza-
tion of data retention requirements fell in the competence of Art. 95 TEC
(now Art. 114 TFEU). The reasoning was that, as a matter that regulates
the responsibilities of companies which routinely engage in cross-border
activity, and which affects competitiveness, it was really related to the
single market, even if there are JHA elements to the issue. This viewpoint
was shared by the legal services of both the Commission and the Council,
and the process continued with the Art. 95 as the legal basis (Granger and
Irion 2014). This meant that the co-decision procedure applied, granting
the EP co-legislating power and providing for qualified majority voting in
the Council.
While the Commission was in the process of drafting a proposal for
a directive, London witnessed suicide attacks on its metro systems on 7
July 2005. The British government, holding the Council presidency in
the second half of 2005, pushed for quick adoption of a directive regu-
lating data retention. As it was clear that the measure would not be able
to garner unanimity in the Council, the Presidency and the Commis-
sion were content to continue with the proposed directive on the basis
of co-decision. However, the Council never officially withdrew its frame-
work decision, apparently to build up pressure on the EP (Ripoll Servent,
2013). The proposal was also the topic of an Opinion issued by the
European Data Protection Supervisor,6 who found the proposal to lack
detailed safeguards for the protection of fundamental rights, particularly
the right to privacy.
In what was one of the most fiercely contested and quickest legislative
acts ever adopted in the EU, a majority in the EP and the Council agreed
in December 2005 on a directive that provided for retention of commu-
nication data (telephone and internet) for a period of between six and
24 months for the purpose of investigating, detecting and prosecuting
 2 THE NEVER-ENDING STORY OF DATA RETENTION IN THE EU 17

serious crimes.7 The Member States were required to transpose the direc-
tive no later than 15 September 2007, with the possible option to extend
this deadline in the case of retention of data by ISPs. The preamble does
note that the Member States are to ensure that the implementing legis-
lation is in line with the fundamental rights of persons affected but sets
no criteria for what constitutes appropriate boundaries that the Member
States need to respect in that regard. The Member States are also required
to transpose the directive so that only competent national authorities are
able to access the retained data.8
In terms of retention itself, the telecoms and ISPs are only required to
retain the data they collect as part of their regular business, and the direc-
tive explicitly states that its aim is not to regulate technology used in the
telecommunications sector. However, the directive also lists the data that
are to be retained if the companies are recording them: for all participants
in telephone or internet communication, names, addresses, locations,
user IDs and phone numbers, date and time of communication, dura-
tion of communication, and any data that identifies the equipment used
(e.g., International Mobile Equipment Identity number, IMEI). Once
recorded, these data needed to be adequately protected, made available
in a format that is usable to the Member State authorities, and needed
to be destroyed after the expiration of the retention period. However,
this period could be extended when a country faced ‘particular circum-
stances,’ which required no more than notifying the Commission and
the other countries of the decision and the reasoning behind it. The
Member States were required to designate a public authority that would
independently monitor the application of the directive, and to report to
the Commission on the implementation statistics (e.g., requests for data,
requests granted, period between the moment when communication was
made and the request for the data). These would then be used by the
Commission in its drafting of an evaluation of the DRD’s application,
which it was to present to the EP and the Council by 15 September
2010, with the obligation to make this evaluation publicly available.
The DRD thus outlined the main aim of the legislation, and core
parameters which the Member State legislatures must follow. However,
in this case some of the parameters were quite broad. For instance, the
corridor of retention periods ranged from no less than six months to no
more than 24 months (Art. 6). Furthermore, the directive left the defini-
tion of what constitutes ‘serious crime’ and thus acceptable grounds for
data to be accessed by law enforcement agencies at the discretion of the
Another random document with
no related content on Scribd:
The Project Gutenberg eBook of Holly berries
from Dickens
This ebook is for the use of anyone anywhere in the United
States and most other parts of the world at no cost and with
almost no restrictions whatsoever. You may copy it, give it away
or re-use it under the terms of the Project Gutenberg License
included with this ebook or online at www.gutenberg.org. If you
are not located in the United States, you will have to check the
laws of the country where you are located before using this
eBook.

Title: Holly berries from Dickens

Author: Charles Dickens

Release date: October 12, 2023 [eBook #71858]

Language: English

Original publication: Boston: DeWolfe Fiske & Co, 1898

Credits: Carla Foust and the Online Distributed Proofreading

Team at https://www.pgdp.net (This file was produced
from images generously made available by The
Internet Archive)

*** START OF THE PROJECT GUTENBERG EBOOK HOLLY

BERRIES FROM DICKENS ***
 Holly
Berries

From
Dickens
 Holly
Berries
From
Dickens ·
 Copyright
DeWolfe Fiske & Co
Boston · 1898 ·
 First Day.

A good action is its own

reward.

Dickens.

The will to do well ... is the next

thing to having the power.

Mr. Pecksniff.

Forgiveness is a high quality,

 an exalted virtue.

Martin Chuzzlewit.

In love of home the love of

country has its rise.

Old Curiosity Shop.

Tears never yet wound up a clock or worked

a steam-engine.

Sam Weller.
 Second Day.

how me the man who says

anything against women,
as women, and I boldly declare,
he is not a man.

Pickwick.

Natural affection and instinct are the

most beautiful
of the Almighty’s works.

Charles Cheeryble.

It must be somewhere written that the

virtues of the mothers
shall occasionally be visited on the children,
as well as the sins of their fathers.

Mr. Jarndyce.

We can all do some good, if we will.

Dickens.
 Third Day.

n the cause of friendship ...

brave all dangers.

Pickwick Papers.

Let us be among the few who do their duty.

Martin Chuzzlewit.

Fortune will not bear chiding.

We must not reproach her, or she shuns us.

Old Curiosity Shop.

It is an undoubted fact that all remarkable

men have had
remarkable mothers.

Haunted Man.

Every man has his enemies.

Old Curiosity Shop.

 Fourth Day.

For Heaven’s sake

let us
examine sacredly
whether there is any
wrong entrusted
to us to set right.

Little Dorrit.

Surprises, like misfortunes,

 rarely come alone.

Dombey and Son.

What the poor are to the poor is little known

excepting to themselves and God.

Bleak House.

An honest man is one of the few great works

that can be seen for nothing.

Martin Chuzzlewit.

Thinking begets thinking.

Oliver Twist.
 Fifth Day.

t’s a world of sacred mysteries,

and the Creator only
knows what lies beneath the surface
of His lightest image.

Battle of Life.

There is hope for all who are softened

and penitent.
There is hope for all such.

Haunted Man.

What I want is frankness, confidence,

less conventionality,
and freer play of soul. We are so dreadfully
artificial.

Dombey and Son.

 Sixth Day.

Only time shall show us

whither each
traveler is bound.

Little Dorrit.

Women, the tenderest and most

fragile of all
God’s creatures, were the oftenest
superior to sorrow, adversity and distress.
 Pickwick Papers.

The consciousness that we possess the sympathy

and affection of one being,
when all others have deserted us, is a hold, a stay,
a comfort, in the deepest affliction,
which no wealth could purchase, or power bestow.

Pickwick Papers.
 Seventh Day.

Cheerfulness and content are great

beautifiers, and
are famous preservers of good looks.

Barnaby Rudge.

The sea has no appreciation of great men,

but knocks them about like small fry.

Bleak House.
 A joke is a very good thing ...
but when that joke is made at the expense of
feelings, I set my face against it.

Nicholas Nickleby.

There can be no confusion in following Him

and seeking no other footsteps.

Little Dorrit.
 Eighth Day.

here is no situation in life so bad

that it can’t be mended.

Pickwick Papers.

If the good deeds of human creatures

could be traced to their source, how beautifully
would even death appear;
for how much charity, mercy, and purified
affection would be seen to have
their own growth in dusty graves!

Old Curiosity Shop.

Use and necessity are good teachers—

the best of any.

Stagg.

Philosophers are only men in armour after all.

Pickwick Papers.