The Timing of Dialogue: Slovenian Constitutional Court and the Data Retention Directive

On 3rd July 2014, the Slovenian Constitutional Court struck down Articles 162 – 169 of the Act on Electronic Communications (ZEKom-1) which regulate data retention and were adopted in order to implement the Directive 2006/24/EC. The case is of interest not so much for the legal argumentation presented in the judgment but because of the positioning of the Slovenian court in the Europe-wide judicial response to the Data Retention Directive. In that sense, it’s a contribution to the discussion on the role of an individual constitutional court in a multi-level network of courts, especially in cases when a number of constitutional or other high courts in the member states are seized with issues stemming from the same piece of legislation.

The Court was seized by the Information Commissioner (Informacijski pooblaščenec), an independent authority charged with the protection of personal data and access to documents on 5th March 2013. On 26th September 2013, the Constitutional Court stayed the proceedings until the decision of the Court of Justice of the EU in cases C-293/12 (Digital Rights Ireland) and C-594/12 (the referral by the Austrian Constitutional Court). It asserted that the Information Commissioner was de facto challenging the conformity of the Directive with the Charter of Fundamental Rights. The Slovenian Court, in the order with which it stayed the proceedings, first remarked that its own jurisdiction to review domestic measures implementing directive is not out of the question. However, the Court of Justice holds exclusive jurisdiction over the question of the validity of the Directive pursuant to Article 267/1/b of the TFEU ...

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