The
Directive requires member states of the EU to pass into law an
obligation for telecoms providers to retain phone, email and web
traffic data for up to two years. Opposed by civil rights groups,
the Directive was passed in order to help states to combat crime
and terrorism.
The Irish Government, though, says that the technical process
used to pass the Directive was one designed for trade and that it
should have been passed through a process designed for security
matters. That process is tougher, requiring a unanimous vote rather
than a majority one.
"Ireland submits that the choice of Article 95 of the Treaty
establishing the European Community ('TEC') as the legal basis for
[the] Directive is fundamentally flawed," says its submission to
the European Court of Justice. "It is primarily Ireland's case that
the purpose of the Directive is to facilitate the investigation,
detection and prosecution of serious crime, including
terrorism."
"Ireland has indicated that reliance upon Article 95 TEC as the
legal basis for the Directive is wholly inappropriate and
unsustainable," says its case. "It is established that measures
based upon Article 95 TEC must have as their "centre of gravity"
the approximation of national laws to benefit the functioning of
the internal market. The provisions of the Directive are concerned
with combating serious crime and are not intended to address any
defects in the internal market."
The action is by Ireland against the Council of the European
Union and the European Parliament. The Irish government wants the
court to undo the passing of the Directive.
"The applicant claims that the Court should annul Directive
2006/24/EC of the European Parliament and of the Council of 15
March 2006 on the retention of data generated or processed in
connection with the provision of publicly available electronic
communications services …on the grounds that it was not adopted on
an appropriate legal basis," says its case.
The Directive is already the subject of a legal challenge from
Ireland. Barrister TJ McIntyre has launched a legal challenge in
the Irish High Court to Ireland's data retention laws and also
wants the Irish courts to refer a separate case to the European
Court of Justice.
As chairman of Digital Rights Ireland, McIntyre could find
himself pursuing a case against the government in the Irish courts
but alongside the government in Europe.
"We're challenging the domestic law on national constitutional
grounds and the EU Directive and we're hoping for a preliminary
reference to Luxembourg to assess the validity of the Directive,"
McIntyre told OUT-LAW. "If we're successful it will strike down the
Data Retention Directive and that will invalidate a lot of the data
retention laws across Europe. We're hoping that there will be a
knock on effect. A ruling on the human rights case would be very
persuasive for national courts."
