The Irish Human Rights Commission (IHRC) welcomes today’s Judgment of the Court of Justice of the European Union that the European Directive that requires European telecommunications providers to store details of all electronic communications for between six months to two years is invalid having regard to the Charter of Fundamental Rights of the European Union.
The IHRC was third party intervenor before the Court 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. Several constitutional actions before the Constitutional Court of Austria (Verfassungsgerichtshof) were also considered by the Court.
The Court of Justice’s ruling confirms the December 2013 Opinion of the Advocate General.
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 Court of Justice has found that 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 interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data.
On the question of whether this interference with the fundamental rights at issue is justified, the Court found that the retention of data required by the directive is not such as to adversely affect the essence of the fundamental rights to respect for private life and to the protection of personal data. This was so insofar as the directive a) does not permit the acquisition of knowledge of the content of the electronic communications as such and provides that service or network providers must respect certain principles of data protection and data security and b) the retention of data for the purpose of their possible transmission to the competent national authorities genuinely satisfies an objective of general interest, namely the fight against serious crime and, ultimately, public security.
Notwithstanding this, the Court found however that by adopting the Data Retention Directive, the EU legislature exceeded the limits imposed by compliance with the principle of proportionality. The wide ranging and particularly serious interference ofthe directive with the fundamental rights at issue is not sufficiently circumscribedto ensure that that interference is actually limited to what is strictly necessary. The lack of safeguards such as its generalised scope, lack of objective criterion (referring only to “serious crime” and imprecise duration) consequent risk of abuse and the absence of any requirement that the data be retained within the EU, all led the Court to its decision.
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. The Charter sets out the standards against which the Court of Justice assesses whether EU law is human rights compliant.
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. A third party intervention before the Court of Justice involves a similar intervention as that of an amicus curiae whereby the third party intervenor draws relevant matters (in the case of the IHRC relevant human rights principles and their application in domestic law) to the attention of the Court.
http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-04/cp140054en.pdf