Ireland loses in the ECJ on data protection

[He3]

Anyone who thinks that it is always easy to say where the competences of the EU end and those of the States begin might have a look at this judgment.

Ireland had requested the Court to annul Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ 2006 L 105, p. 54), on the ground that it was not adopted on an appropriate legal basis.

Link

Extract from the Findings of the Court

''56 It must be noted at the outset that the question of the areas of competence of the European Union presents itself differently depending on whether the competence in issue has already been accorded to the European Union in the broad sense or has not yet been accorded to it. In the first hypothesis, it is a question of ruling on the division of areas of competence within the Union and, more particularly, on whether it is appropriate to proceed by way of a directive based on the EC Treaty or by way of a framework decision based on the EU Treaty. By contrast, in the second hypothesis, it is a question of ruling on the division of areas of competence between the Union and the Member States and, more particularly, on whether the Union has encroached on the latters’ areas of competence. The present case comes under the first of those two hypotheses.

57 It must also be stated that 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.

58 Ireland, supported by the Slovak Republic, contends that Directive 2006/24 cannot be based on Article 95 EC since its ‘centre of gravity’ does not concern the functioning of the internal market. The sole objective of the directive, or at least its principal objective, is, it is contended, the investigation, detection and prosecution of crime.

59 That argument cannot be accepted.

60 According to the Court’s settled case-law, the choice of legal basis for a Community measure must rest on objective factors which are amenable to judicial review, including in particular the aim and the content of the measure (see Case C-440/05 Commission v Council [2007] ECR I‑9097, paragraph 61 and the case-law cited).''

We get to pay the costs, again...

[euroboy]

Anyone who thinks that it is always easy to say where the competences of the EU end and those of the States begin might have a look at this judgment. .

This case isn't about the competences of the EU or its infringement on competences of the member states. No-one is arguing that the EU has overstepped its mark. The case is about a legal technicality over which treaty article forms the base for legislation, which determines which decision making procedure is used.

Ireland took the case because it disputed the legal basis for the Directive. Persumably because it was unhappy with the decision-making procedure stipulated by the legal root, in this case Art 95 ECT. Not knowing the details of the case, Ireland probably wanted the Directive to be subject to unanimity so that it could veto it, or use the threat of a veto to get its way.

The Court ruled that the proper legal basis from which the Directive finds its legality is Art 95, dealing with the internal market.

[He3]

The Court took the trouble to discuss the competence issue at the outset of its conclusion. It did not do so for fun. The specific case made by Ireland about the legal basis may well have been made for the reason you suppose - in which case Ireland thought it had power to stop something, when it did not: (in)competence.

[euroboy]

The Court took the trouble to discuss the competence issue at the outset of its conclusion. It did not do so for fun. The specific case made by Ireland about the legal basis may well have been made for the reason you suppose - in which case Ireland thought it had power to stop something, when it did not: (in)competence.

In any case, Ireland didnt bring the case on the basis that the EU didnt have the competence. The ECJ raised the competence issue to point out how it approached the question because Ireland argued that the directive should be brought under a IG pillar. .

[He3]

The German Federal Constitutional Court is wrestling with related issues currently.

The central concern of Germany’s highest court is whether the democratisation of EU institutions, as promised in the Lisbon Treaty, has kept pace with the transfer of powers to Brussels it demands. Consequently, the first day of the hearing was concerned largely with the EU’s principle of subsidiarity.

Several judges posed pointed questions of government counsel, asking if the transfer of competences from member states to Brussels automatically brought benefits to citizens and, if so, how these benefits were gauged.

Some judges are known to be concerned about this process, in particular that the treaty’s proposed criminal justice provisions contradict existing German constitutional standards.

German constitutional court hears arguments for and against Lisbon - The Irish Times - Wed, Feb 11, 2009

[lostexpectation]

ireland brought the case cos it wanted to keep the data longer then others

[keepitreal]

ireland brought the case cos it wanted to keep the data longer then others

Agreed and it wants to pursue some very anti democratic policies on DR:

Wrong route on data retention - The Irish Times - Wed, Feb 11, 2009

[He3]

ireland brought the case cos it wanted to keep the data longer then others

That's cos our authorities care more about you.

[They do, don't they?]

[He3]

Ireland's argument went something like:
"But, but, but ..we have a veto."

and the Court said 'Oh no you don't', and they all came home a little wiser.

[brio910]

To those who say it is not about competence, look at these:

32 Ireland adds that Directive 2002/58 could be amended by another directive, but the Community legislature is not competent to use an amending directive adopted on the basis of Article 95 EC in order to incorporate into Directive 2002/58 provisions falling outside the competence conferred on the Community under the first pillar. The obligations designed to ensure that data are available for the investigation, detection and prosecution of criminal offences fall within an area which may only be the subject of a measure based on Title VI of the EU Treaty. The adoption of such an instrument would not affect the provisions of Directive 2002/58 within the meaning of Article 47 EU. If the verb ‘affect’, which is used in that article, were to be properly construed, it would be necessary to interpret it as not precluding a random or incidental overlap of unimportant and secondary subject matter between instruments of the Community and those of the Union.

33 The Slovak Republic supports Ireland’s position. It takes the view that Article 95 EC cannot serve as the legal basis for Directive 2006/24, since the latter’s main objective is not to eliminate barriers and distortions in the internal market. The directive’s purpose, it submits, is to harmonise the retention of personal data in a manner which goes beyond commercial objectives in order to facilitate action by the Member States in the area of criminal law and, for that reason, it cannot be adopted under Community competence.

34 According to the Slovak Republic, the retention of personal data to the extent required by Directive 2006/24 amounts to an extensive interference in the right of individuals to privacy as provided for by Article 8 of the ECHR. It is questionable whether such far-reaching interference may be justified on economic grounds, in this case the enhanced functioning of the internal market. The adoption of an act outside the scope of Community competence, the primary and undisguised purpose of which is the fight against crime and terrorism, would be a more appropriate solution, providing a more proportionate justification for interference with the right of individuals to protection of their privacy.

35 The Parliament submits that Ireland is being selective in its interpretation of the provisions of Directive 2006/24. Recitals 5 and 6 in the preamble thereto, it argues, make it clear that the main or predominant purpose of that directive is to eliminate obstacles to the internal market for electronic communications services, while recital 25 confirms that the access to and use of the retained data for law-enforcement purposes fall outside the scope of Community competence."

Howza