Wednesday, June 20, 2012

Digital Rights Ireland Case: CJEU vs. Data Retention

So after two years of waiting for the Irish preliminary reference concerning the constitutionality of the date retention directive, we finally got it. The case C-293/12 Digital Rights Ireland could be, lets hope, very positive landmark ruling in the field of privacy in the digital age. The filled questions are so far not published on the Curia website, but from the background information compatibility with art. 7, 8 and 11 of EU Charter are being expected as questions. The e-comm blog mentions following questions:

1. ls the restriction on the rights of the Plaintiff in respect of its use of mobile telephony arising from the requirements of Articles 3, 4, and 6 of Directive 2006/24/EC incompatible with Article 5.4 TEU in that it is disproportionate and unnecessary or inappropriate to achieve the legitimate aims of:
(a) Ensuring that certain data are available for the purposes of investigation, detection and prosecution of serious crime?
(b) Ensuring the proper functioning of the internal market of the European Union?

2. Specifically,
(i) Is Directive 2006/24/BC compatible with the right of citizens to move and reside freely within the territory of Member States laid down in Article 21 TFEU?
(ii) Is Directive 2006/24/EC compatible with the right to privacy laid down in Article 7 of the Charter and Article 8 ECHR?
(iii) Is Directive 2006/24/EC compatible with the right to the protection of personal data laid down in Article 8 of the Charter?
(iv) ls Directive 2006/24/EC compatible with the right to freedom of expression laid down in Article 11 of  the Charter and Article 10 ECHR?
(v) Is Directive 2006/24/EC compatible with the right to Good Administration laid down in Article 41 of the Charter?

3. To what extent do the Treaties - and specifically the principle of loyal cooperation laid down in Article 4.3 of the Treaty on European Union - require a national court to inquire into, and assess, the compatibility of the national implementing measures for Directive 2006/24/EC with the protections afforded by the Charter of Fundamental Rights, including Article 7 thereof (as informed by Article 8 of the ECHR)?

It is interesting to note, that during the same week, Austrian activists supported by almost 12.000 people, filled also its constitutional complaint before Austrian Constitutional Court (Verfassungsgericht - VfGH).

1 comment:

Anonymous said...

I have been following this case since early 2010, I am delighted to see that it is finally being presented before the relevant courts and that the relevant questions are being asked. Looking forward to continuing to follow the case on this site.