Professional Documents
Culture Documents
PDF Opposition in The Eu Multi Level Polity Legal Mobilization Against The Data Retention Directive Stefan Thierse Ebook Full Chapter
PDF Opposition in The Eu Multi Level Polity Legal Mobilization Against The Data Retention Directive Stefan Thierse Ebook Full Chapter
https://textbookfull.com/product/insurance-distribution-
directive-a-legal-analysis-pierpaolo-marano/
https://textbookfull.com/product/eu-agencies-legal-and-political-
limits-to-the-transformation-of-the-eu-administration-1st-
edition-chamon/
https://textbookfull.com/product/single-payer-healthcare-reform-
grassroots-mobilization-and-the-turn-against-establishment-
politics-in-the-medicare-for-all-movement-lindy-s-f-hern/
https://textbookfull.com/product/conceptions-in-the-code-how-
metaphors-explain-legal-challenges-in-digital-times-1st-edition-
stefan-larsson/
Opposition In Discourse The Construction of
Oppositional Meaning Lesley Jeffries
https://textbookfull.com/product/opposition-in-discourse-the-
construction-of-oppositional-meaning-lesley-jeffries/
https://textbookfull.com/product/legal-risks-in-eu-law-
interdisciplinary-studies-on-legal-risk-management-and-better-
regulation-in-europe-1st-edition-emilia-miscenic/
https://textbookfull.com/product/data-protection-law-in-the-eu-
roles-responsibilities-and-liability-brendan-van-alsenoy/
https://textbookfull.com/product/footprints-of-feist-in-european-
database-directive-a-legal-analysis-of-ip-law-making-in-
europe-1st-edition-indranath-gupta-auth/
https://textbookfull.com/product/the-eu-general-data-protection-
regulation-gdpr-a-commentary-christopher-kuner/
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
© 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.
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
1 Introduction 1
References 8
vii
viii CONTENTS
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
xiii
CHAPTER 1
Introduction
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
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
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.
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
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.
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.
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.
Language: English
From
Dickens
Holly
Berries
From
Dickens ·
Copyright
DeWolfe Fiske & Co
Boston · 1898 ·
First Day.
Dickens.
Mr. Pecksniff.
Martin Chuzzlewit.
Sam Weller.
Second Day.
Pickwick.
Charles Cheeryble.
Mr. Jarndyce.
Dickens.
Third Day.
Pickwick Papers.
Martin Chuzzlewit.
Haunted Man.
Little Dorrit.
Bleak House.
Martin Chuzzlewit.
Oliver Twist.
Fifth Day.
Battle of Life.
Haunted Man.
Little Dorrit.
Pickwick Papers.
Seventh Day.
Barnaby Rudge.
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.
Little Dorrit.
Eighth Day.
Pickwick Papers.
Stagg.
Pickwick Papers.