EUROPE: THE RISE AND THE FALL OF CRIMINAL INVESTIGATIONS BASED ON THE RETENTION OF ELECTRONIC COMMUNICATIONS DATA

After the terrorist attacks in Madrid and London, national and European authorities conjured themselves to combat and prosecute terrorism and organized crime effectively through different legislative initiatives, including the retention of telecommunications data as one of the overriding instruments to provide security for States and facilitate prevention, investigation and prosecution of terrorism and other forms of serious crime. A decade later, this regime focused on the preventive retention of traffic and location data and other digital information with a view to being used in criminal and intelligence investigations is being demolished by the ECJ, owing to the excessive interference in the fundamental rights set out in EU Law. This paper analyses the interpretative criteria provided for by ECJ case-law, identifies the strengths and weaknesses of Spanish legislation on the retention of electronic communications data, and points out to the legislator the way forward to comply with European guidelines and to ensure the compatibility of the Spanish legal reform with European Union law, in particular in the area of protection of the right to privacy and the protection of personal data.