database and how it could practically be implemented. Are all those whose
data is contained in the BCD acquired pursuant to a s.94 Direction to be
notified, or all those the subject of an electronic search, or all those who
feature in data which is the subject of subsequent or targeted access?
(4)
65.
Retention of data within the European Union
There are uncertainties about this fourth Watson Requirement:
a. It would seem that it amounts to an absolute bar on transfer of data out
of the EU, because the foundation of this requirement is to be found in
DRI, where it was concluded that it should have been a requirement of
the data to be retained by reference to the Data Retention Directive, but
in particular because of the wording of paragraph 123 of Watson “the
national legislation must make provision for the data to be retained
within the European Union” and paragraph 125 the “requirement that
the data concerned should be retained within the European Union”.
However, the Claimant submits that it is not an absolute bar, because
of the interpolation of paragraph 123 between paragraphs 122 and 125.
That paragraph provides for there to be a review by an independent
authority of compliance with the level of protection guaranteed by EU
Law, and Mr de la Mare submitted that, by virtue of the reference to
Article 8(3) of the Charter, this was to be seen as an independent
authority supervising the transfer of data out of the European Union,
thus making the bar not absolute. It was however common ground
during the hearing that there was uncertainty.
Page 54