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The Romanian Constitutional Court (CCR) announced on 7 October 2009 that it took the decision to consider unconstitutional the Romanian implementation of the data retention directive.

The Romanian data retention law has been in force since the beginning of 2009, but it received a lot of bad press reviews, as reported by EDRi-gram at the beginning of the year. Several NGOs declared that they would contest the law. An initial appeal of the civil society to the Ombudsman was not successful, since the Ombudsman did not consider the law as unconstitutional and therefore he declared that he would not ask the opinion of the Constitutional Court.

The case that was decided by the Constitutional Court in October 2008 was initiated by a Romanian NGO, Civil Society Commissariat, which sued its mobile operator for keeping the traffic data according to the new law on data retention 298/2008. The lawsuit brought to the Bucharest Tribunal was just a pretext to raise, during the trial, a motion for the law's unconstitutionality - so that CCR would give its opinion of the data retention law.

CCR has accepted the motion for law's unconstitutionality through decision 1258/2009, based on the breach of article 28 of the Romanian Constitution, which stipulates the secrecy of correspondence. Other articles invoked were articles 25, 26 and 30 which deal with freedom of movement, privacy and freedom of expression respectively.

Unfortunately, it could take some time to see the motivation of the CCR and therefore to asses the real potential of this breakthrough decision. It might take even one month to get the official text published in the Official Monitor. In any case, the decision of the CCR is final and can't be appealed.

The court is the only authority of constitutional jurisdiction in Romania, independent of any other public authority. It is formed by nine judges, appointed for a nine-year term. Its members are renewed by one third every three years. The court is known for its low number of cases admitted as unconstitutional. In 2008 there were only 18 cases fully admitted, out of almost 1400 motions raised in the regular courts.

The Ministry of Communication and Information Society was quick to declare that it informed the European Commission about the new situation and that they might re-draft the law in order to avoid the constitutionality issues. But the problems could be more complicated for the executive if the decision of the CCR declares unconstitutional the entire law or article 1 which stipulates the purpose of the law.

The decision also comes in a rather restless political and social period that might have influenced the CCR outcome and could further on have an impact on the way in which the Government will deal with this case. But for now, there is no stable government in place, with the former one being repealed by the Parliament on 13 October and a new one under formation these days.

Romanian constitution
http://www.cdep.ro/pls/dic/site.page?id=371

Romania's Constitutional Court Rules Data Storage Law Unconstitutional (8.10.2009)
http://www.mediafax.ro/english/romania-s-constitutional-court-rules-da...

Waw: Constitutional Court declared the law on data retention unconstitutional (only in Romanian, 8.10.2009)
http://legi-internet.ro/blogs/index.php/2009/10/08/lege-pastrarii-date...

Romanian authorities seek solutions for the data retention law (only in Romanian, 9.10.2009)
http://economie.hotnews.ro/stiri-telecom-6261206-autoritatile-romane-c...

Statistical situation of the Romanian Constitutional Court Acts
http://www.ccr.ro/statistics/pdf/en/sin09_2009.pdf

The Ombudsman will not address the CCR regarding the data retention law (only in Romanian, 10.02.2009)
http://www.ziare.com/actual/eveniment/02-10-2009/avocatul-poporului-nu...

EDRi-gram: Romania: Is really privacy a topic in the public debate? (28.01.2009)
http://www.edri.org/edri-gram/number7.2/romania-privacy-in-public-deba...