AG says no to Irish data retention challenge

Jeremy Phillips

Earlier this week the Advocate General of the European Court of Justice gave his Opinion in Case C‑301/06 Ireland v European Parliament, Council of the European Union. Ireland sought to annul Directive 2006/24 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58, on the ground that it was not adopted on an appropriate legal basis. The basis of its legal challenge was that

“the choice of Article 95 of the Treaty establishing the European Community (“TEC”) as the legal basis for Directive 2006/24/EC (“the Directive”) is fundamentally flawed. …[N]either Article 95 TEC nor any other provision of the TEC can provide a proper legal basis for the Directive. …[T]he sole or, alternatively, the main or predominant purpose of the Directive is to facilitate the investigation, detection and prosecution of serious crime, including terrorism. In those circumstances, … the only permissible legal base for the measures contained in the Directive is Title VI of the Treaty on European Union (“TEU”), in particular Articles 30, 31(1)(c) and 34(2)(b)”.

The Advocate General is advising the Court to dismiss the Irish challenge. In a 135-paragraph explanation, the AG notes (among other things)

“84. … the retention of data by the providers of electronic communications services represents a significant financial burden on them, and … that burden is proportionate to the amount of data to be retained and the retention period. The costs concerned are attributable not only to the upgrading of the technology required to retain and archive the data in a secure manner, but also to the maintenance and operation of systems allowing the retention of data.

85. It follows that, in the absence of harmonisation, a provider of electronic communications services would be faced with costs related to the retention of data which differ according to the Member State in which he wishes to provide those services. Such differences may constitute obstacles to the free movement of electronic communications services between the Member States and may therefore create obstacles to the establishment and functioning of the internal market in electronic communications. They may, in particular, slow down the cross-border development of new electronic communications services which are regularly introduced in the information society. They may also give rise to distortions in competition between undertakings operating on the electronic communications market”.

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