Judgment of the Court (Seventh Chamber) of 29 July 2010 – Commission v Austria

(Case C‑189/09)

Failure of a Member State to fulfil obligations – Directive 2006/24/EC – Respect for private life – Retention of data generated or processed in connection with the provision of electronic communications services – Failure to transpose within the prescribed period

1.                     Actions for failure to fulfil obligations – Disregard of the obligations imposed by a directive – Defences – Challenge to the lawfulness of the directive – Inadmissibility – Limits – Non-existent measure (Art. 226 EC, 227 EC, 230 EC and 232 EC) (see paras 15-16)

2.                     Member States – Obligations – Implementation of directives – Failure to fulfil obligations – National system pleaded as justification – Not permissible (Art. 226 EC) (see para. 18)

3.                     Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion (Art. 226 EC; European Parliament and Council Directive 2006/24) (see paras 19-22)

Re:

Failure of a Member State to fulfil obligations – Failure to adopt or communicate, within the prescribed period, the provisions necessary to comply with 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/EC (OJ 2006 L 105, p. 54).

Operative part

The Court:

1. Declares that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with 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/EC, the Republic of Austria has failed to fulfil its obligations under that directive;

2. Orders the Republic of Austria to pay the costs.