On January 7, 2015, the Luxembourg Ministry of Justice filed with the Chamber of Deputies bill n° 6763 (the Bill) modifying Article 67-1 of the Luxembourg Criminal Procedure Code (the Criminal Code) and Articles 5, 5-1 and 9 of the Act of May 30, 2005 laying down specific provisions for the protection of persons with regard to the processing of personal data in the electronic communications sector, as amended from time to time (the 2005 Privacy Act).
By so doing, the Luxembourg government aims to comply with the Court of Justice of the European Union (the ECJ) ruling of April 8, 2014, the so-called “Digital Rights”, in joint cases C-293/12 - Digital Rights Ireland and C-594/12 - Seitlinger and Others, whereby the ECJ has declared the Data Retention Directive 2006/24/EC to be invalid.
The Bill focuses on traffic data (Article 5 of the 2005 Privacy Act) and location data other than traffic data (Article 9 of the 2005 Privacy Act).
Firstly the Bill intends to amend the current access by the judicial authorities to retained data for the purposes of the investigation, detection and prosecution of criminal offences subject to a criminal or correctional penalty of at least one year of imprisonment. Now Articles 5 (1) (a) and 9 (1) (a) will refer to Article 67 -1 (4) of the Criminal Code where an exhaustive list of offences has been inserted.
Furthermore, the Bill proposes to amend Articles 5 (1) (b) and 9 (1) (b) by stating that service providers and operators must delete irrevocably and without any delay the retained data at the end of the 6 months retention period. Service providers and operators cannot keep anonymous data at the end of the retention data anymore.
The Bill also amends Articles 5 (6)- and 9 (6) of the 2005 Privacy Act by modifying the penalties to be imposed in case of breach of Article 5 (1) to 5 (5) and Article 9 (1) to 9 (5) o the 2005 Privacy Act. The penalty incurred will be now a sentence of six months to two years of imprisonment and/or a fine of between EUR 251 and EUR 125 000.
Finally, the Bill will oblige service providers and operators, through the amended Article 5-1, to store data on the territory of the European Union.
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