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18th Nov 2018

EU court to deliver judgement on data retention

  • The data retention law has been the focus of strong critiism by civil liberties groups (Photo: EUobserver)

The EU's highest court is on Tuesday (10 February) to deliver judgment on a case that will determine the fate of the bloc's controversial data retention law.

Judges at the European Court of Justice in Luxembourg are deciding on whether the law, which allows telecom operators to keep EU citizens' phone and internet data for up to two years, can be allowed to continue.

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The case concerns a technicality rather than the substance of the law, which has been the focal point of strong criticism by civil liberties groups.

Ireland took the case before the court arguing that it had been made on the wrong legal premiss.

Dublin says the law should have been subject to an intergovernmental agreement between member states, requiring unanimity.

An early attempt by a group of member states, including Ireland, to get the law onto EU books through the unanimity route - under the police and judicial affairs category where member states have the final say and are not bound by European parliamentary scrutiny - failed.

The European Commission intervened to make the law using the good functioning of the bloc's internal market as justification, a legal route that requires parliament to agree but only a qualified majority of governments.

The legislation then passed through the Brussels channels and was approved by European Parliament in late 2005.

The court's decision will be keenly watched by Ireland and civil liberties groups.

If the judge agrees that the legal basis for making the law was false, then governments will have to go back to the drawing board.

This would be welcomed by data privacy groups but governments have claimed that the law is key to their fight against terrorism.

Should the court decide that Ireland's claim is wrong, then the law will remain in place and Ireland, whose rules say that telecom operators should keep personal data for up to three years, may have to change its own law.

At the time, Dublin decided to go to court because it feared that a precedent could be set whereby other decisions in police and judicial legislation are introduced by co-decision with MEPs rather than by unanimity - a sore point for the country which tried to maintain its distance from common EU-decision making in this area.

But in an indication of the how the court is likely to decide, the advocate general in autumn rejected Ireland's case saying that imposing a standard methodology for data retention helped the market for telecoms services, justifying its current legal basis.

The advocate general's opinion is generally maintained in the final court decision.

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