The Federal Administrative Court has classified the data retention without cause as completely contrary to European law. The court in Leipzig announced on Thursday that the regulation may no longer be applied (case number: BVerwG 6 C 6.22 and BVerwG 6 C 7.22). The federal judges thus drew a line under years of discussions and uncertainties. The decision was based on complaints by two telecommunications companies against data retention.
The regulation in the Telecommunications Act for the storage of telephone numbers, IP addresses or the duration of connections "does not meet the requirements of Union law because no objective criteria are determined that establish a connection between the data to be stored and the goal pursued," according to this Federal Administrative Court.
The storage of traffic and location data is not strictly limited to the purpose of protecting national security. IP addresses may be stored to combat serious crime and prevent serious threats to public safety, but this is not so clearly defined in the Telecommunications Act.
The Federal Administrative Court followed the ECJ's guidelines with its rulings. The European Court of Justice dealt with data retention following a submission from the highest German administrative court. The regulation had not been applied since 2017 due to legal uncertainties.
According to the Luxembourg judgment, the communication data of all citizens may not be stored without reason; targeted and temporary storage of the data is only possible in the event of a serious threat to national security. According to the ECJ, it may also be possible to retain IP addresses to combat serious crime.
Federal Justice Minister Marco Buschmann said that with the Federal Administrative Court's decision it was now finally clear that data retention in Germany was "entirely unlawful and therefore inapplicable". “The current decisions are a clear mandate for us to quickly remove data retention from the law - and to further strengthen digital civil rights in our country,” said the FDP politician. He referred to the traffic light government's coalition agreement, according to which relevant data should only be stored "in a legally secure manner and based on a court order".