27/07/2023, 22:38 CURIA - Documents 24 By judgments of 20 April 2018, the Verwaltungsgericht Köln (Administrative Court, Cologne) held that SpaceNet and Telekom Deutschland were not required to retain the traffic data relating to the telecommunications, referred to in Paragraph 113b(3) of the TKG, of the customers to whom they provide internet access and that Telekom Deutschland was also not required to retain the traffic data relating to the telecommunications, referred to in the first and second sentences of Paragraph 113b(2) of the TKG, of customers to whom it provides publicly available telephone services. That court considered, in the light of the judgment of 21 December 2016, Tele2 Sverige and Watson and Others (C‑203/15 and C‑698/15, EU:C:2016:970), that that retention obligation was contrary to EU law. 25 The Federal Republic of Germany brought appeals on a point of law against those judgments before the Bundesverwaltungsgericht (Federal Administrative Court, Germany), the referring court. 26 The referring court considers that the question whether the retention obligation imposed by the combined provisions of Paragraph 113a(1) and Paragraph 113b of the TKG is contrary to EU law depends on the interpretation of Directive 2002/58. 27 In that respect, the referring court states that the Court has already established definitively, in the judgment of 21 December 2016, Tele2 Sverige and Watson and Others (C‑203/15 and C‑698/15, EU:C:2016:970), that rules governing the retention of traffic and location data and access to those data by national authorities fall, in principle, within the scope of Directive 2002/58. 28 It also states that the retention obligation at issue in the main proceedings, since it limits the rights deriving from Article 5(1), Article 6(1) and Article 9(1) of Directive 2002/58, could be justified only on the basis of Article 15(1) of that directive. 29 In that respect, it notes that it follows from the judgment of 21 December 2016, Tele2 Sverige and Watson and Others (C‑203/15 and C‑698/15, EU:C:2016:970), that Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter, must be interpreted as precluding national legislation which, for the purpose of fighting crime, provides for the general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication. 30 According to the referring court, like the national legislation at issue in the cases which gave rise to that judgment, the national legislation at issue in the main proceedings does not require any reason for the retention of the data or any link between the data retained and a criminal offence or a risk to public security. That national legislation requires the general retention, without a reason, and without any distinction in terms of personal, temporal or geographical factors, of the majority of the traffic data relating to telecommunications. 31 The referring court considers, however, that it cannot be ruled out that the retention obligation at issue in the main proceedings may be justified under Article 15(1) of Directive 2002/58. 32 In the first place, it notes that, contrary to the national legislation at issue in the cases that gave rise to the judgment of 21 December 2016, Tele2 Sverige and Watson and Others (C‑203/15 and C‑698/15, EU:C:2016:970), the national legislation at issue in the main proceedings does not require the retention of all telecommunications traffic data of all subscribers and users in relation to all means of electronic communications. Not only is the content of communications excluded from the retention obligation, but data relating to websites visited, the data from electronic mail services and the data underlying social or religious communications to or from certain lines cannot be retained, as is apparent from Paragraph 113b(5) and (6) of the TKG. 33 In the second place, that court indicates that Paragraph 113b(1) of the TKG provides for a retention period of 4 weeks for location data and 10 weeks for traffic data, whereas Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58 (OJ 2006 L 105, p. 54), on which the national legislation at issue in the cases that gave rise to the judgment of 21 December 2016, Tele2 Sverige and Watson and Others (C‑203/15 and C‑698/15, EU:C:2016:970), were based, provided for a retention period of between six months and two years. https://curia.europa.eu/juris/document/document_print.jsf;jsessionid=A4432EEFFE3535A201E714AE6441EE66?mode=DOC&pageIndex=1&docid=265881… 9/28