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Abstract:
This article considers the judgment of the ECJ in Ireland v Parliament and Council (C-301/06) [2009] 2 C.M.L.R. 37, which confirmed the appropriateness of art.95 EC as the legal basis for the adoption of the Directive 2006/24 (Data Retention Directive). It examines whether the approach taken by the Court (i.e. that the contested Directive concerns the functioning of the internal market) contributed to the resolution of the “centre of gravity” of ex art.95 EC (now 114 TFEU) and the borderline between the former Community (first) and third pillars. The analysis in the article leads to the conclusion that harmonisation of the length of time that telecom operators and internet providers must retain data, along with other measures regarding the prosecution of crime, entailed a great shift in the balance of competence between the Community and the Member States. This trend has been further complemented by the ratification of the Treaty of Lisbon, which has brought former third pillar provisions under a common general legal framework. Finally, the article focuses upon the fundamental rights implications of the judgment, asking, in particular, whether the use of data in the pursuit of justice entails a disproportionate interference with the right to privacy.
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