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On 10 February 2009 the European Court of Justice (ECJ) decided that the data retenion directive was correctly adopted on the basis of the EC Treaty as it relates predominantly to the functioning of the internal market.
This was the conclusion of the court in the suit that Ireland, supported by Slovakia, started against the European Parliament asking the Court of Justice to annul the directive grounds of inappropriate legal basis. Ireland sustained that the directive could not be based on Article 95 EC since its "centre of gravity" does not concern the functioning of the internal market but rather the investigation, detection and prosecution of crime, and that measures of this kind ought therefore to have been adopted on the basis of the articles of the EU Treaty related to police and judicial cooperation in criminal matters.
The Court decided that it was necessary to adopt the directive on the basis of Article 95 EC. It underlined that the data retention directive amended the provisions of the directive on the protection of privacy in the electronic communications sector, which is itself based on Article 95 EC. At the same time, the Court found that the provisions of the directive are essentially limited to the activities of service providers and do not govern access to data or the use thereof by the police or judicial authorities of the Member States. The measures provided for by the directive do not, in themselves, involve intervention by the police or law-enforcement authorities of the Member States.
But the Court did not tackle the intriquate issue of the privacy because "the action brought by Ireland relates solely to the choice of legal basis and not to any possible infringement of fundamental rights arising from interference with the exercise of the right to privacy contained in Directive 2006/24."
This also means that the Court could have a future case based on the privacy breach of the Data Retention Directive, reffered from a national court. Such a case could be the one started by EDRi-member Digital Rights Ireland or the German Constitutional case initiated by the German Working Group on Data Retention.
The Working Group has already stated, after the ECJ decision, that they remain confident that future action on privacy grounds would be succesfull: "The ruling only concerns the formal matter of the correct legal basis and does not address the violation of human rights by the unwarranted registration of the entire population's telecommunications behaviour and movements", commented Werner Hülsmann of the Working Group. "The 34 000 plaintiffs in the German suit against data retention have applied to the German Constitutional Court to seek a separate ruling by the European Court of Justice on the compatibility of data retention with human rights."
Case Ireland vs European Parliament (10.02.2009)
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=reche...
The data retention directive is founded on an appropriate legal basis
(10.02.2009)
http://curia.europa.eu/en/actu/communiques/cp09/aff/cp090011en.pdf
After ruling on data retention: activists remain confident (10.02.2009)
http://www.vorratsdatenspeicherung.de/content/view/298/1/lang,en/