Slow Irish attract the Commission’s ire

Jeremy Phillips

The European Court of Justice ruling in Case C-202/09 Commission of the European Communities v Ireland slipped by at the end of November without Datonomy noting it. It’s a very short ruling, in which the court dispensed with an Opinion from the Advocate General, and it contains no rocket science. According to the judgment on the Curia website,

“1 By its action, the Commission of the European Communities asks the Court to declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with 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/EC … or in any event by failing to communicate them to the Commission, Ireland has failed to fulfil its obligations under that directive.

2 … Directive 2006/24 aims to harmonise Member States’ provisions concerning the obligations of the providers of publicly available electronic communications services or of public communications networks with respect to the retention of certain data which are generated or processed by them, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law.

3 … the Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with that directive by no later than 15 September 2007 and forthwith to inform the Commission thereof.

4 On 27 November 2007, having received no information from Ireland as to the measures adopted by it in order to comply with Directive 2006/24, the Commission sent a letter of formal notice to that Member State inviting it, in accordance with Article 226 EC, to submit its observations.

5 In its reply … Ireland stated that the measures necessary for the transposition of Directive 2006/24 were in the process of being drawn up but that it was not yet in a position to notify the Commission of those measures.

6 … the Commission delivered a reasoned opinion inviting Ireland to take the measures necessary to comply with its obligations under Directive 2006/24 within two months of receipt of that opinion.

7 In response, Ireland stated … that legislative action was required for the transposition of that directive, and that this would not occur until the end of 2008 or the beginning of 2009.

8 Having received no further information from Ireland and having no evidence enabling it to conclude that the measures necessary for the transposition of Directive 2006/24 into national law had been taken, the Commission brought the present action.

9 … Ireland acknowledges that it has not yet fulfilled its obligation to transpose Directive 2006/24. It claims, however, that the legislative provisions for that transposition were published on 9 July 2009 and should be adopted during the autumn parliamentary session. Furthermore, Ireland requests the Court to suspend, for a period of 8 months from the date that defence was lodged, the infringement proceedings brought against it.

10 … according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes …

11 … a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations and time-limits laid down by a directive …

12 … it is common ground that, at the end of the period laid down in the reasoned opinion, Ireland had not adopted the measures necessary to transpose Directive 2006/24 into its national law.

13 Therefore, the Commission’s action must be regarded as well founded. …”.

The moral of the story is that, whatever the EU feels about data protection, it is becoming increasingly enthusiastic about compliance with Directives.

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