Irish Court allows Data Retention Law to be challenged in ECJ

By EDRi · May 19, 2010

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Deutsch: [Irisches Gericht lässt Vorratsdatenspeicherung vom EuGH prüfen |]

Recently, the Irish High Court ruled in favour of EDRi-member Digital Rights
Ireland (DRI) allowing the civil liberties campaign group to challenge the
EU Data Retention Directive at the European Court of Justice (ECJ). This is
the result of four years of work by the legal team of the group.

In its action introduced in 2008 against the Ministers for Communications
and Justice, the Garda Commissioner and the State, DRI claimed the
defendants had illegally processed and stored data related to DRI and other
mobile phone users contrary to Irish and European law. Also involved in the
case was the Human Rights Commission (HRC) as adviser to the court on legal

DRI claimed the European data retention directive was in breach of
fundamental rights under the EU treaties, the European Convention on Human
Rights and the Charter of Fundamental Rights.

The Irish court ruled that, in this matter, a reference to the ECJ was
required and appropriate at the current stage of the proceedings.

Justice McKechnie noted that “the matters pleaded in this case do raise
issues of significant public importance. Given the rapid advance of current
technology it is of great importance to define the legitimate legal limits
of modern surveillance techniques used by governments. Without sufficient
legal safeguards the potential for abuse and unwaranted invasion of privacy
is obvious. That is not to say that this is the case here, but the potential
is in my opinion so great that a greater scrutiny of the proposed
legislation is certainly merited,” and decided that Digital Rights Ireland
had the right to contest whether the provisions of the data retention
directive “violate citizen’s rights to privacy and communications”.

Ireland is thus following other European countries that have lately
questioned the constitutionality of the European directive, such as Germany,
Hungary, Bulgaria and Romania.

The decision of the Irish High Court gives ECJ the opportunity to decide
whether the Data retention Directive is lawful or not. Article 8 of the
European Convention on Human Rights related the right to privacy will
probably be the base of the challenge. The answer of the ECJ on the matter
will very much depend on the questions prepared by the Irish Court. DRI had
suggested a form of questions to be submitted in its Statement of Claim but
the High Court needed more suggestions. The questions are part of the Order
of the Court making the reference to the ECJ that should be received by
every EU Member State.

“To avoid a defeat before the European Court of Justice the European
Commission must propose swift amendments to the unconstitutional data
retention directive. The EU-wide compulsion to collect communications data
is outdated and must be repealed. Blanket data retention has proven to be
superfluous, harmful or unconstitutional in many states across Europe and
the world, such as Germany, Austria, Belgium, Greece, Romania, Sweden and
Canada. These states prosecute crime just as effectively using targeted
instruments, such as the internationally agreed Convention on Cybercrime,”
stated Sandra Mamitzsch of the German Working Group on Data Retention.

The High Court will determine in about. 3 weeks the precise text of the
questions to be referred to the ECJ. Once this is done the case is formally
referred and it will probably take about two years to get a hearing in the
ECJ. Every Member State of the EU has a right to intervene and be heard in
the matter.

Data Retention Challenge: Judgement re Preliminary Reference, Standing,
Security for Costs – High Court decision (5.05.2010)

High Court decision on our data retention challenge (5.05.2010)

European court to rule on data storage law (6.05.2010)

Digital Rights Ireland Data Retention Case (10.05.2010)

Digital Rights Ireland no longer a voice in the wilderness (6.05.2010)

EDRi-gram: Digital Rights Ireland Challenge to Data Retention (2.08.2006)