The European Union's Data Retention Directive was not procedurally flawed and should not be repealed, an Advocate General to the European Court of Justice (ECJ) has said. Ireland's argument that the law was wrongly adopted has been rejected.
The Data Retention Directive orders all EU member states to pass laws telling telecoms companies to keep records of phone and internet use for between six and 24 months.
Though it has not objected to the substance of the Directive, Ireland objected to the way in which it was adopted and asked the ECJ, Europe's highest court, to repeal it. An Advocate General's opinion is only advisory, but is followed in around 80% of cases by the ECJ itself.
The Directive was passed so that the records of phone calls and other telecoms activity would be available for use by the authorities when investigating crime. The UK, France and Sweden proposed the measure and said that it should be used in particular to investigate terrorism offences.
Ireland argued that the European Union cannot pass Directives in areas of crime and security. EU countries can agree to co-ordinate laws on those areas, but European Commission-crafted Directives cannot be the vehicle for that, it argued.
Ireland said that to base the Data Retention Directive on the EC Treaty via a Directive was wrong, and that it should have been adopted via specific measures designed for issues of crime, security and justice. That area of government is collected together for EU purposes and called the third pillar.
The EU has reduced responsibilities for issues in the third pillar because of its origins as an economic, and not political, organisation.
"It is established that measures based on [the EC Treaty] must have as their centre of gravity the harmonisation of national laws in order to improve the functioning of the internal market," said the opinion produced by Advocate General Yves Bot, explaining Ireland's position. "The provisions of [the Directive] concern the fight against serious crime and are not intended to address defects in the internal market."
Ireland said that any action in relation to data retention for crime prevention should have been taken under the third pillar, based on the EU Treaty and not the EC Treaty.
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