On Thursday, the Court of Justice of the EU ordered Sweden to pay a lump sum of €3 million for failure to transpose the EU’s Data Retention Directive (the “Directive”) into national law within the prescribed period. The Directive obliges electronic communications service providers to store information about communications for a period of 6 – 24 months in case they are needed by law enforcement authorities. The deadline for EU Member States to transpose the Directive had expired on September 15, 2007. In 2010, following an initial action brought by the European Commission, the Court held that Sweden had exceeded the time limit for adopting the laws, regulations and administrative provisions necessary to comply with the Directive.
In 2011, the Commission brought a subsequent action, asking the Court to order Sweden to pay a daily penalty for each day that Sweden delays in complying with that judgment. In March 2012, however, the Swedish Parliament adopted measures transposing the Directive into Swedish legislation. As a result, the Commission withdrew the request for a daily penalty payment, but maintained its claim regarding the payment of a lump sum.
In Thursday’s judgment, the Court held that it was necessary to order Sweden to make a lump sum payment as it had failed to fulfill its obligations under EU law. In particular, the Court considered the impact of Sweden’s failure on both public and private interests, especially in view of the Directive’s aim to ensure that electronics communications data are available for the purpose of the investigation, detection and protection of serious crime. In calculating the amount, the Court also considered the duration of the continuation of the infringement of over two years and the fact that Sweden was a first time “offender.”