Data retention appeal

By Judith Crosbie

Date: 24/05/06

Ireland and Slovakia are to appeal against the EU directive on data retention at the European Court of Justice (ECJ), a blow for a hard-fought attempt to harmonise this sensitive area of justice law.

Both countries voted against the directive when it came before justice ministers last February. But as the proposal was passed through qualified majority voting, they could not prevent it from being adopted.

The directive compels telecoms firms to keep data on phone calls and internet use for up to two years to help police fight organised crime and terrorism. It states that data retention is "a necessary and effective investigative tool for law enforcement".

The directive was introduced by the European Commission using Article 95 of the EC treaty which refers to the functioning of the internal market.

But Ireland and Slovakia contend that the directive's purpose was not primarily about the internal market but law enforcement and do not believe the Commission had the right to introduce it in this manner.

"We believe that provision for data retention should have been made by way of a framework decision under the third pillar. This is an important legal question which needs to be clarified," said a spokesman for the Irish government. Under the third pillar - covering justice and home affairs - most decisions are taken by unanimity.

Both countries insist that they do not oppose data retention in principle. Ireland has a tougher law on data retention which forces firms to keep phone and internet data for up to three years.

The appeal could make use of a recommendation given by the ECJ's advocate-general last November over a challenge to a Council of Ministers and Commission decision to transfer airline passenger data to the US authorities. This decision also made use of Article 95 and the recommendation states that to transfer data for the purposes of fighting terrorism or organised crime was beyond the article's scope. The advocate-general recommended the decision should be annulled by the court. The ECJ is to deliver its final verdict on 30 May.

Article anticipates a ruling at the European Court of Justice on the legality of the EU's Directive on data retention, expected for 30 May 2006. Ireland and Slovakia were appealing against the EU directive arguing that the matter should have to be dealt with under the third pillar of Justice and Home Affairs rather than on a proposal by the European Commission and according to the first pillar Community method.

European Commission: PreLex: COM(2005) 438 final, Proposal for a Directive ... on the retention of data processed in connection with the provision of public electronic communication services ... http://ec.europa.eu/prelex/detail_dossier.cfm?CL=en&ReqId=0&DocType=COM&DocYear=2005&DocNum=0438

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