Case law: Ireland v. Parliament and Council (data retention)
The purpose of this new series is to show actually how the relevant law should be applied in order to properly balance the right to free access of public information, free flow of information and the right to Privacy and Personal Data protection.
The series will balance both the applicability of Data Protection law in the private and public sector, focusing mostly on the Directive 95/46/EC (private sector) and Regulation 45/2001/EC (rights to data protection of individuals working with/for EU Institutions and bodies).
C-301/06, Ireland v. Parliament and Council (data retention directive), 10.2.2009
Action for annulment of Directive 2006/24/EC on the retention of electronic communication data on ground that it was not adopted on appropriate legal basis (Article 95 TEC), amending Directive 2002/58 (also based on Article 95).
Appropriate legal basis for data retention directive: Court rejected Ireland’s argument that sole or principal objective of directive is investigation, detection and prosecution of crime. Article 95(1) TEC provides Council is to adopt measures for approximation of provisions laid down by law, Reg. or administrative action in MSs which have objective of establishment and functioning of internal market. May be used where disparities exist (or likely to exist in future) between national rules which obstruct fundamental freedoms or create distortions of competition and thus have direct effect on functioning of internal market. Premise of Directive was to harmonize disparities between national provisions governing retention of data by service providers, particularly regarding nature of data retained and periods of data retention. Apparent that differences were liable to have direct impact on functioning of internal market which would become more serious with passage of time.
Article 47 TEU provides that none of provisions of TEC may be affected by provision of TEU, in order to safeguard building of acquis communautaire. Insofar as Directive 2006/24 comes within scope of Community powers, it could not be based on provision of TEU without infringing Article 47. Directive 2006/24 provisions are limited to activities of service providers and do not govern access to data or use thereof by police or judicial authorities of the MSs. They are designed to harmonise national laws on obligation to retain data, categories of data to be retained, periods of retention of data, DP and data security, and conditions for data storage. They do not involve intervention by police or law enforcement authorities of MSs, nor access, use or exchange by them. Thus Directive 2006/24 relates predominantly to functioning of internal market.
Credits and acknowledgment go to Laraine Laudati, OLAF DPO.
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