A Constitutionalist Critique of the Objective Character of the Infringement Proceedings and a Case for a “Constitutional Defence”: A Lesson from the Non-Implementation of the Data Retention Directive

• Main Author: Samo Bardutzky
• Format: Article
• Language: English
• Published: University of Ljubljana, Faculty of Law 2019-12-01
• Series: Zbornik Znanstvenih Razprav
• Subjects: traffic data; retention; directive 2006/24/ec; infringement of eu law; fine
• Online Access: http://www.pf.uni-lj.si/media/zzr.2019.eu.bardutzky.pdf

The article explores the implications of the (non)implementation of Directive 2006/24/EC, which regulated the compulsory retention of traffic data. The central problem is whether the Member States should suffer financial burdens because they have not imple-mented the directive due to constitutional concerns. In the case of mandatory retention of traffic data, this problem is especially severe, as the constitutional objection that has been developed in some Member States have proved to be justified. Despite the con-cerns, the Commission was consistent in ensuring the implementation of the Directive. The article presents the characteristics of the court procedure for violation of EU law in the event of non-implementation of a directive and its objective nature, which prevents the Member States from arguing legal, financial or practical obstacles to implementation. In cases where obstacles are of constitutional nature, the author proposes the creation of a constitutional defence, which would prevent the imposition of financial sanctions in the event of non-implementation of the directive, while preserving the duty of the Member States to comply with the acquis.