CHAPTER 5: LEGAL CONSTRAINTS
prevention, investigation, detection and prosecution of criminal offences ... To
this end, Member States may, inter alia, adopt legislative measures providing
for the retention of data for a limited period justified on the grounds laid down in
this paragraph.”
Digital Rights Ireland
5.63.
The CJEU has had, until recently, less opportunity than the ECtHR to pronounce upon
the law of investigatory powers.84 But as the court entrusted with the interpretation of
the EU Charter, a document which has the potential to be construed in a more
expansive manner than the ECHR, its judgments in this area may prove in the long
run to be at least as significant.
5.64.
Of particular importance is the judgment of the Grand Chamber of the CJEU in Digital
Rights Ireland, a successful challenge to the validity of the EU’s Data Retention
Directive.85
5.65.
The EU Data Retention Directive, harmonising the various responses by Member
States to Article 15(1) of the e-Privacy Directive, required service providers to retain
data generated for billing purposes concerning use of telephone, internet and email
services for between six and 24 months. The scope of the data in question was broad
and included data necessary to identify a sender and recipient, date, time and
duration, type, equipment of communication and the location of mobile phone calls.
Those data were to be held, beyond the period of time when a service provider might
need them, in order to assist in the investigation and prevention of serious crime. The
service provider was required to make data available, on request, to the police and
security services. The implementing legislation in the UK required service providers
to keep that data for 12 months.86
5.66.
Largely uncontroversial in the UK, the Data Retention Directive evoked strong feelings
in other parts of Europe, culminating in the presentation of mass petitions and a
number of constitutional challenges to its implementation.87
5.67.
The CJEU acknowledged that data retained under the Directive could be valuable.
Thus:
84
85
86
87
(a)
It noted “the growing importance of means of electronic communication”, and
described data retained under the Directive as “a valuable tool for criminal
investigations” which afforded the authorities “additional opportunities to shed
light on serious crime”.
(b)
The fight against serious crime, “in particular against organised crime and
terrorism”, was itself described as “of the utmost importance in order to ensure
Though see Joined Cases 46/87 and 227/88 Hoechst AG v Commission EU:C:1989:337 (law of search)
and Case C-550/07P Akzo Nobel v Commission EU:C:2010:512 (legal professional privilege).
Joined Cases C-293/12 and C-594/12 Digital Rights Ireland and Seitlinger and others
ECLI:EU:C:2014:238.
The Data Retention (EC Directive) Regulations 2009 (SI 859/2009) s5.
See 8.56-8.57 below.
86