Irish Court allows Data Retention Law to be challenged in ECJ
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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 matters.
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)