Blog Post

The agenda of the European Court of Justice has just listed Tuesday, October 14 for the Advocate General’s opinion on the State’s challenge to the Data Retention Directive. This won’t be a final decision – the Advocate General gives an opinion which is merely advisory and the court is not bound by it. In most cases, however, the court will follow the broad approach of the Advocate General.

What’s the significance of the State’s challenge? Here’s what we said about it before:

On the plus side, the challenge will certainly delay implementation of the Directive, and stands a very good chance of striking it down in its entirety. There is a very strong case that the passing of the Directive was flawed.

On the minus side, the challenge is purely procedural. The Government agrees with the principle of spying on every citizen – it merely alleges that the wrong legal mechanism was chosen. According to the Government, the measure should have been passed by unanimous agreement of all the member states – not by a majority voting procedure. We agree – the directive is clearly an attempt to deal with matters of criminal law that are reserved to the member states, and the fundamental rights of Irish citizens should not be set aside by the majority vote of other EU states. But we’re disappointed that the Government shows no interest in asserting the right to privacy of Irish citizens. The result is that the European Court of Justice, when it eventually deals with the case, will only be hearing about procedure – not privacy.

Obviously we hope that the Government’s challenge will succeed in invalidating the Directive. Whatever the outcome of their case, however, our own challenge to data retention – where we raise these privacy issues about Irish law as well as the Directive – will continue.

(Thanks to Joris van Hoboken for pointing out that the Opinion had been timetabled.)