
Contents
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1 Introduction 1 Introduction
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2 The First Data Retention and the Judgment of the BVerfG 2 The First Data Retention and the Judgment of the BVerfG
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3 The Second Data Retention 3 The Second Data Retention
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4 The Legal Proceedings Against the Second Data Retention 4 The Legal Proceedings Against the Second Data Retention
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4.1 Types of action and scopes of review 4.1 Types of action and scopes of review
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4.2 Development of the proceedings 4.2 Development of the proceedings
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4.2.1 Proceedings before the BVerfG 4.2.1 Proceedings before the BVerfG
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4.2.2 Proceedings before the administrative courts and the CJEU 4.2.2 Proceedings before the administrative courts and the CJEU
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4.2.3 The final judgments of the BVerwG 4.2.3 The final judgments of the BVerwG
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5 Status of the Political Debate in Germany 5 Status of the Political Debate in Germany
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6 Conclusion and Outlook 6 Conclusion and Outlook
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7 Data Retention in Germany: Not a Never-ending Story After All?
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Published:February 2025
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Abstract
For a long time, the dispute over data retention in Germany seemed like a never-ending story. The legislator twice enacted legal provisions on data retention, both of which were overturned in court proceedings after a short time. The focus of the legal dispute, however, shifted between these proceedings. The Federal Constitutional Court (Bundesverfassungsgericht—BVerfG) nullified the first set of provisions on data retention on the grounds that they infringed German fundamental rights, although they were mandated by the Data Retention Directive. In contrast, the successful proceedings against the second data retention, which is based on a regulatory decision by the German legislator, primarily invoked European Union law. Data retention thus forms a benchmark case for the Europeanisation of the protection of fundamental rights in Germany. The legal policy discussion on data retention seems to have focused on a few individual issues recently. There is currently an opportunity to pacify the debate on data retention in Germany, although the effects of the recent La Quadrature du Net ‘II’ judgment of the CJEU remain to be seen.
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