Two emerging principles of EU internet law: A comparative analysis of the prohibitions of general data retention and general monitoring obligations

Abstract

EU law prohibits the imposition of general data retention obligations and of general monitoring obligations. While both prohibitions are rooted in secondary EU law, the CJEU has over the past years shaped them to a high extent, often by construing them in the light of the relevant fundamental rights. This article analyses the two prohibitions in conjunction. Their scope and nature differ in some respects, which explains and justifies some of the differences apparent in the CJEU's case law. However, other differences are less easily explained and seem to point to a partially divergent approach. The combined analysis not only contributes to a better understanding of each of the two prohibitions and the case law relating thereto; it also provides indications as to how the respective lines of case law might develop in the future and it could help inform the decisions that the EU co-legislators are making concerning both prohibitions. In the process, the article tracks the emergence of these two prohibitions as general principles of EU internet law .