The Eu’S Information Retentivity Directive: Fighting Dorsum Against Majority Surveillance Inward The Eu’S Courtroom Of Justice
November 28, 2018
Edit
I’m writing this postal service on ‘The Day We Fight Back’ against volume surveillance. So it seems a suitable hateful solar daytime to comment (a fleck belatedly) on the Advocate-General’s thought from final Dec on the validity of the EU’s information retentiveness Directive (Directive 2006/24; Cases C-293/12 Digital Rights and C-594/12 Seitlinger).
Overall context
These cases, referred from the Irish Gaelic as well as Austrian courts, acquaint the Court of Justice of the European Union (CJEU) alongside its best run a peril yet to deliver an iconic judgment relating to the EU’s Charter of Fundamental Rights. The Test-Achats judgment of 2011, concerning the invalidity of European Union rules permitting insurance discrimination betwixt men as well as women, just didn’t total to such a judgment, resulting every bit it did inward higher auto insurance rates for women drivers without much analysis of the key issues past times the CJEU.
This fourth dimension around, the CJEU is aware that: the constitutional courts of FRG as well as Romania conduct hold criticised the Directive on cardinal rights grounds; the European Court of Human Rights is dubious close volume surveillance (cf the S as well as Marper judgment); as well as at that spot is considerable populace job concern across the European Union close volume surveillance, inward special inward the electrical flow context of revelations close spying past times American safety agencies.
As for the Directive itself, it requires Member United States to compel telecom as well as Internet access providers to proceed records of all telephone calls, Internet job as well as electrochemical cell location information for at to the lowest degree vi months, alongside no existent fixed upper limit, then the constabulary tin access those records for the purposes of investigations into serious crime. (There is a nominal two-year upper bound for keeping this data, but Member United States tin proceed inward house whatever higher limits that they already applied, or inquire the Commission for the ability to laid novel higher limits inward house if they didn’t already apply them). Other European Union laws giving Member United States an selection to require that telecom providers proceed such information for other reasons were unaffected. Overall, every bit I pointed out at the time, ‘Member United States could insist on (or at to the lowest degree request) the retentiveness of whatever type of information for whatever type of safety move for whatever catamenia at all’.
Furthermore, the Directive laid no safeguards every bit regards the job of that information which manufacture was required to retain. This was because the Directive had to bound itself to regulation of the telecoms industry, due to its ‘internal market’ legal base of operations (upheld past times the CJEU inward Case C-301/06 Ireland v EP as well as Council), then it couldn’t regulate what constabulary forces did alongside the information when they got it.
While it is possible that this volume surveillance may attention inward the prosecution of offense or the prevention of terrorism, that does non automatically excuse it. No doubtfulness at that spot is less offense inward totalitarian states, but democratic states withdraw to strike a remainder betwixt freedom as well as security. According to the long-standing illustration law of the European Court of Human Rights, targeted surveillance is alone acceptable if the law inward enquiry is real precise as well as sets out detailed safeguards for the persons concerned. This must for certain apply a fortiori to laws such every bit this Directive, which furnish for volume surveillance – if indeed such surveillance tin always endure justified at all.
The Advocate-General’s opinion
The thought takes every bit its starting signal (correctly) that the information retentiveness Directive interferes alongside the rights to privacy as well as information protection (Articles vii as well as 8 of the Charter). So the focus of the illustration is whether such interference tin endure justified. Article 52(1) of the Charter allows restriction of Charter rights where those restrictions are provided for past times law, honor the essence of the rights, as well as are proportionate to protecting a populace involvement recognised past times European Union law or the rights of others. Here at that spot is clearly a populace interest, then the Advocate-General examines the other facets of the test.
He concludes that the European Union Directive is non ‘prescribed past times law’, inside the pregnant of that phrase laid out inward the jurisprudence of the European Court of Human Rights. The crucial job hither is the quality of the law laid out inward the Directive. In particular, it is non sufficiently precise every bit regards the limitation on Charter rights, as well as it does non laid out guarantees for job of the data.
This raises an number specific to the nature of the human relationship betwixt the European Union as well as its Member States. Since Directives must endure applied past times Member United States inward their national law, it could potentially endure left to the Member States to furnish for such precise details concerning the interference alongside Charter rights when they transpose the Directive. It would endure possible for the CJEU to clarify farther what such rules must address, every bit it has inward a line of illustration law concerning interference alongside privacy rights justified past times the protection of intellectual belongings (ie downloads of music, et al, inward breach of copyright).
The Advocate-General rejects that possibility hither – as well as quite rightly. The departure is that the information retentiveness Directive requires the Member United States to interfere alongside Charter rights, whereas the legislation at number inward the other cases just permits them to produce so. In such a illustration the European Union must for certain deportment a important role of the responsibleness – if non the whole responsibleness – for satisfying the ‘quality of law’ test. This would endure consistent alongside the illustration law of the European Court of Human Rights inward the Bosphorus Airways v Ireland case, as well as the draft European Union accession understanding for the ECHR, which both distinguish betwixt cases where the European Union requires its Member United States to act, as well as where it simply permits them to produce so.
Yet on this point, at that spot is about other complication arising from the nature of European Union law. Before the entry into forcefulness of the Treaty of Lisbon, the legal social club of the Union was divided into 3 so-called ‘pillars’. While the internal marketplace was role of the start pillar (Community law), constabulary cooperation was role of the 3rd pillar (policing as well as criminal law). So a Directive based on the internal marketplace could non address issues relating to constabulary cooperation, as well as this Directive does not. That was exactly why the CJEU rejected the Irish Gaelic government’s challenge to the Directive inward 2009.
To address this problem, the Advocate-General suggests that the European Union should at to the lowest degree conduct hold agreed about guarantees informally. But this would non endure expert enough, every bit non-binding guarantees would non satisfy the ‘quality of law’ test. The European Union could, however, conduct hold adopted a 3rd pillar ‘Framework Decision’ setting out such guarantees earlier the Treaty of Lisbon; as well as instantly it tin laid them out inward the shape of a Directive.
Finally, the Advocate-General concludes that the Directive is also disproportionate, since at that spot is non a expert plenty argue for the maybe unlimited catamenia of retaining personal data. Yet it must endure pointed out that Member States’ ability to retain existing national laws allowing for longer periods of information retentiveness is built into the internal marketplace rules of the Treaty. To disable the application of those provisions, the Court of Justice would conduct hold to dominion that the Charter took priority over the Treaty (ie, other European Union top dog law).
Conclusions
These cases give the chance to the CJEU to add together a lot of flesh to the bones of the rules concerning interference alongside Charter rights – inward special the application of the ‘quality of law’ test, which the CJEU has non referred to at all before. The difficulties created past times the previous sectionalization of European Union law into pillars, as well as the special rules laid out inward the internal marketplace provisions of the Treaties, must also endure addressed. Yet inward lite of the overall context of these cases, the established jurisprudence of the European Court of Human Rights, as well as the strong thought of the Advocate-General, it would simply endure shocking if the Court of Justice did non either dominion the Directive invalid, or at the real to the lowest degree lay downwardly detailed rules which Member United States conduct hold to follow when applying it.
[update: the CJEU gave its ruling inward Apr 2014. For give-and-take of the judgment run into here.]
Barnard & Peers: chapter ix