Data privacy battle plays out before European court
As Snowden revelations put retention and use of data in the spotlight, case will determine whether European directive is legal
In its questions sent to the parties in the case, the ECJ phrased the issue this way: “Did the European Union legislature achieve ... a proper balance of the requirements bound up with the protection of fundamental rights and the public interest objective at issue ... ?”
What happens next?
After this week’s hearing, the ECJ will consider the submissions of the various parties. In the coming months, an advocate general will then write up a preliminary opinion on behalf of the court.
The ECJ may accept that opinion – and usually does – but it is open to it to overrule an advocate general’s opinion.
What are the possible outcomes?
There are two.
1) The ECJ could uphold the existing European data retention directive. The DRI case will then return to the High Court, which will determine whether Ireland’s specific implementation of data retention is constitutional.
Several other EU countries – including Germany, Romania and Hungary – have struck down their State’s implementation of the data retention directive.
2) The court could strike down the European directive. The High Court would still need to assess the constitutionality of Irish data retention legislation, but that legislation would no longer have the force or mandate of a European directive behind it.
Ireland, like many other EU countries, had its own data retention laws (passed in 2005) before the EU Directive existed.
If the EU directive is struck down, new legislation would almost certainly have to be drawn up because of its wide-ranging privacy impact and the need for law enforcement to have clear permissions to access data. If the High Court ultimately finds the Irish law is unconstitutional, then it too will be thrown out and new Oireachtas legislation will need to be prepared, for the same reasons.