Data retention : an internal market or a criminal law matter?

Abstract

This paper addresses the problem of adopting EU measures on criminal law matters based on Article 114 TFEU (former Article 95 TEC), which confers on the EU a competence to adopt measures aimed at the approximation of the Member States’ laws and regulations for purposes of “the establishment and functioning of the Internal Market”. Using EU data retention legislation as an example, the piece demonstrates that the EU legislators are using market-making as a pretext for adopting legal harmonisation measures in numerous areas which are otherwise off-limits to EU harmonisation efforts, and the Court of Justice of the European Union is exceedingly lenient in upholding such measures. The piece argues that the choice of Article 114 as a legal basis for legal harmonisation results in the EU’s ‘competence creep’ that, given the Court’s position, can only be stopped by amending the text of the Article.