The Irish Human Rights Commission (IHRC) noted the Opinion of the Advocate General of the Court of Justice of the European Union yesterday that the European Directive that requires European telecommunications providers to store details of all electronic communications for between six months to two years is not compatible with the Charter of Fundamental Rights of the European Union.
The IHRC was third party intervenor before the Court of Justice in Luxembourg at which it made written and oral submissions. The hearing was on foot of a referral from the Irish High Court in the proceedings Digital Rights Ireland v The Minister for Communications, Marine and Natural Resources and others ("Digital Rights") on the extent to which a national court is required by EU Treaties to inquire into and assess the compatibility of the implementing measures under an EU Directive with the EU Charter of Fundamental Rights in a case concerning the right to privacy.
The case will now return to the High Court for further consideration.
ENDS/
For further information, please contact, Fidelma Joyce, IHRC, Tel: 01 8589601, Mob: 087 7834939
Notes to Editor
The Advocate General’s Opinion states:
"In light of the foregoing considerations, I propose that the Court should answer the questions referred by the High Court in Case C-293/12 and the Verfassungsgerichtshof in Case C-594/12 as follows:
(1) 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 or of public communications networks and amending Directive 2002/58/EC is as a whole incompatible with Article 52(1) of the Charter of Fundamental Rights of the European Union, since the limitations on the exercise of fundamental rights which that directive contains because of the obligation to retain data which it imposes are not accompanied by the necessary principles for governing the guarantees needed to regulate access to the data and their use.
(2) Article 6 of Directive 2006/24 is incompatible with Articles 7 and 52(1) of the Charter of Fundamental Rights of the European Union in that it requires Member States to ensure that the data specified in Article 5 of that directive are retained for a period whose upper limit is set at two years."
The text of the Charter of Fundamental Rights was originally agreed in 2000, but was not given full legal effect until 1 December 2009, as part of the Lisbon Treaty and binds all the institutions of the European Union and Member States when they are implementing EU law.
Article 267 of the Treaty on the Functioning of the European Union (TFEU), allows a national Court or Tribunal to make a preliminary reference to the Court of Justice of the European Union in relation to the interpretation of EU law. The decision of the Court of Justice is then binding on the national court and must be applied in the domestic proceedings accordingly.
Under section 8(h) of the Human Rights Commission Act, 2000, the IHRC may, at the discretion of the High Court or the Supreme Court, appear as amicus curiae in proceedings that involve or are concerned with the human rights of any person. The IHRC had already intervened in the case before the High Court.