CJEU and Data Retention: Still in Search of Legal Certainty

Ever since the Court of Justice of the EU has annulled the Data Retention Directive in Digital Rights Ireland, there has been legal uncertainty about the compatibility of national data retention laws with the EU Charter and the e-Privacy Directive, despite a long series of judgments following Digital Rights Ireland. Most recently, on 5 April 2022, the Court reaffirmed its case law in the Irish Dwyer case (C-140/20). With several other preliminary rulings still pending, this contribution will focus on the continuing uncertainties regarding data retention, notwithstanding the Court’s highly detailed and strongly guiding rulings, and the weak spots in the current case-law based approach.