Comparative law paper on data retention regulation in a sample of EU Member States

Within the context of the SURVEILLE project, which offers a legal and ethical analysis of issues surrounding the use of surveillance technologies in the three phases of countering serious crime (prevention, investigation and prosecution) at the national as well as at the EU level, this deliverable focuses on the use of retained data in the fight against serious crime. This research aims at conducting a comparative study of the use of retained data within selected national jurisdictions for the purpose of investigating and prosecuting serious crime. The authors are testing in this paper a hypothesis, which is used to describe a trend underlying a current evolution in this domain. The hypothesis relates to the so-called catalysing effect of serious crime on the increasing use of data retention for the purpose of investigating and prosecuting serious crime. The catalysing effect of serious crime on the use of such a measure is amplified by the fact that the Data Retention Directive leaves a wide discretion to Member States and that the implementing legislation broadens the scope of application of data retention both regarding offences and authorities involved. Thus, the access of data retained by the private sector for investigation purposes and the subsequent use for prosecution purposes has been studied in nine EU Member States, namely Belgium, France, Germany, Italy, the Netherlands, Poland, Romania, Spain and the United Kingdom. The comparative analysis of these case studies allow us to highlight potential differences in those legal provisions that regulate the retention and subsequent use of information between European Member States with an authoritarian past and Member States without such a past. The human rights dimension is the normative background of the project as a whole, and thus of the present work.

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