Judgment Approved by the court for handing down.
Davis & Ors v SSHD
“This Directive aims to harmonise Member States’ provisions
concerning the obligations of the providers of publicly
available electronic communications services or of public
communications networks with respect to the retention of
certain data which are generated or processed by them, in order
to ensure that the data are available for the purpose of the
investigation, detection and prosecution of serious crime, as
defined by each Member State in its national law.”
32.
The Data Retention Directive specified the categories of data to be retained and
imposed certain requirements relating to the security and storage of retained data.
Article 6 imposed an obligation on each Member State to ensure that the specified
communications data were retained by telecommunications providers for periods of
not less than six months and not more than two years.
33.
Article 4 of the Data Retention Directive provided that:
“Member States shall adopt measures to ensure that data
retained in accordance with this Directive are provided only to
the competent national authorities in specific cases and in
accordance with national law. The procedures to be followed
and the conditions to be fulfilled in order to gain access to
retained data in accordance with necessity and proportionality
requirements shall be defined by each Member State in its
national law, subject to the relevant provisions of European
Union law or public international law, and in particular the
ECHR as interpreted by the European Court of Human Rights.”
Ireland v European Parliament and Council
34.
In Case C-301/06 Ireland v. European Parliament & Council (ECLI:EU:C:2009:68;
[2009] 2 CMLR 37) Ireland sought to argue before the CJEU that the Data Retention
Directive was invalid and that it could not properly have been based on former Article
95 EC, because its principal focus was not the functioning of the internal market but
the investigation, detection and prosecution of crime. That argument was rejected by
the Grand Chamber of the Court of Justice. The Court observed that:
“…the Community legislature may have recourse to Article 95
EC in particular where disparities exist between national rules
which are such as to obstruct the fundamental freedoms or to
create distortions of competition and thus have a direct effect
on the functioning of the internal market”.
35.
It found that Article 95 EC was the correct legal basis for the Data Retention
Directive, in particular because:
(a) “the differences between the various national rules adopted on the retention of
data relating to electronic communications were liable to have a direct impact on
the functioning of the internal market” and “such a situation justified the
Community legislature in pursuing the objective of safeguarding the proper
functioning of the internal market through the adoption of harmonised rules”;