Swedish ruling on the Tele2 Data retention case

 

The Administrative Court of Appeal in Stockholm has recently annulled the decision of the Swedish Post and Telecom Authority (PTS), requiring the internet service provider Tele2 to retain information of data flows for law enforcement purposes.

Back in April 2014, Tele2 informed PTS that it ceased to retain electronic communication data considering that it was not obliged to do so because the Court of Justice of the European Union (CJEU) in its Digital Rights decision (in Joined Cases C‑293/12 and C‑594/12) invalidated the data retention directive (2006/24/EC). On June 27th 2014, PTS ordered Tele2 to retain electronic communication data of its customers for law enforcement purposes.

Tele2 challenged PTS’ order with the Administrative Court in Stockholm, which dismissed Tele2’s action. The court explained that the Digital Rights decision only invalidated the data retention directive, not the Swedish legislation implementing it. A separate assessment of the Swedish legislation was therefore conducted by the Court, which found that the Swedish legislation concerned did not violate the relevant Swedish, EU and international legal instruments.

Tele2 appealed the decision to the Administrative Court of Appeal in Stockholm. The court was not of the same opinion as PTS and the Administrative Court, but found that the legal terrain was too uncertain to base a ruling upon. Therefore, the court requested a preliminary ruling by the CJEU. The CJEU found in its decision C-203/15 and C-698/15 that the Swedish legislation concerned violated directive 2002/58/EC and the Charter of Fundamental Rights of the European Union. The main reason was that the Swedish legislation concerned required data retention of all information, no matter what kind of information it was, what mean of communication used or what individual concerned. This general and indiscriminate obligation to retain electronic communication data was not considered proportionate when making an overall assessment considering the law enforcement purpose of the retention.

Considering the CJEUs judgement, the Administrative Court of Appeal in Stockholm did not have any choice but to deem the Swedish legislation concerned invalid. Consequently, the PTS’ decision delivered on June 27th 2014 was annulled.

See decision: ”Kammarrätten bifaller överklagandet och upphäver Post-och telestyrelsens beslut den 27 juni 2014 att förelägga Tele2 Sverige AB att lagra trafikuppgifter m.m. för brottsbekämpande ändamål.”

For further information, please contact Ida Häggström or Vencel Hodák.