Tuesday

28th Mar 2017

Legal blow to opponents of data retention bill

The European Court of Justice advocate general on Tuesday (14 October) delivered a blow to member states hoping to overturn an EU law on harmonising telephone and internet data retention rules, saying the case is an internal market matter, not a justice and home affairs issue.

The directive - which was approved by a qualified majority of EU states in February 2006 - sets a time period of six months to two years during which telecom operators are to keep phone and internet data, in the name of fighting terrorism and crime and increasing security.

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Irish telecoms operators and internet service providers currently face tougher rules and must keep the data for up to three years, according to the Irish Times.

Consequently, Ireland, backed in its position by Slovakia, wanted the rules to be subject to justice and home affairs provisions, rather than to internal market ones.

In the realm of justice and home affairs, a unanimity of member states is needed for directives to be approved, whereas a qualified majority of EU countries is sufficient to pass an internal market one.

But EU advocate general Yves Bot on Tuesday "invite[d] the court to dismiss the action, taking the view that the directive was correctly based on the EC Treaty," a court press release reads.

Mr Bot estimates that the bill "does not contain any provisions liable to come within the notion of 'police and judicial co-operation in criminal matters'," and is primarily an internal market issue.

"As regards Ireland's argument that the sole or main purpose of the directive is the investigation, detection and prosecution of serious crime, the advocate general … considers that the mere fact that the directive refers to such an objective is not sufficient for a finding that it is an act falling within the area covered by police and judicial co-operation in criminal matters," according to the court's press release.

The advocate general's opinion is not binding on the court, but is however adhered to by the ECJ in around 80 percent of all cases. A date for the ECJ's ruling has not been set at this stage.

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