Data retention directive has the correct legal basis

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On 10 February 2009 the European Court of Justice (ECJ) decided that the
data retenion directive was correctly adopted on the basis of the EC Treaty
as it relates predominantly to the functioning of the internal market.

This was the conclusion of the court in the suit that Ireland, supported by
Slovakia, started against the European Parliament asking the Court of
Justice to annul the directive grounds of inappropriate legal basis. Ireland
sustained that the directive could not be based on Article 95 EC since its
“centre of gravity” does not concern the functioning of the internal market
but rather the investigation, detection and prosecution of crime, and that
measures of this kind ought therefore to have been adopted on the basis of
the articles of the EU Treaty related to police and judicial cooperation in
criminal matters.

The Court decided that it was necessary to adopt the directive on the basis
of Article 95 EC. It underlined that the data retention directive amended
the provisions of the directive on the protection of privacy in the
electronic communications sector, which is itself based on Article 95 EC. At
the same time, the Court found that the provisions of the directive are
essentially limited to the activities of service providers and do not govern
access to data or the use thereof by the police or judicial authorities of
the Member States. The measures provided for by the directive do not, in
themselves, involve intervention by the police or law-enforcement
authorities of the Member States.

But the Court did not tackle the intriquate issue of the privacy because
“the action brought by Ireland relates solely to the choice of legal basis
and not to any possible infringement of fundamental rights arising from
interference with the exercise of the right to privacy contained in
Directive 2006/24.”

This also means that the Court could have a future case based on the privacy
breach of the Data Retention Directive, reffered from a national court. Such
a case could be the one started by EDRi-member Digital Rights Ireland or the
German Constitutional case initiated by the German Working Group on Data
Retention.

The Working Group has already stated, after the ECJ decision, that they
remain confident that future action on privacy grounds would be succesfull:
“The ruling only concerns the formal matter of the correct legal basis and
does not address the violation of human rights by the unwarranted
registration of the entire population’s telecommunications behaviour and
movements”, commented Werner Hülsmann of the Working Group. “The 34 000
plaintiffs in the German suit against data retention have applied to the
German Constitutional Court to seek a separate ruling by the European Court
of Justice on the compatibility of data retention with human rights.”

Case Ireland vs European Parliament (10.02.2009)
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-301/06

The data retention directive is founded on an appropriate legal basis
(10.02.2009)
http://curia.europa.eu/en/actu/communiques/cp09/aff/cp090011en.pdf

After ruling on data retention: activists remain confident (10.02.2009)
http://www.vorratsdatenspeicherung.de/content/view/298/1/lang,en/