Judgment Approved by the court for handing down.
Davis & Ors v SSHD
telecommunications services and thereby amounts in itself to an
interference with the exercise of the applicant’s rights under
Art.8 irrespective of any measures actually taken against them.”
85.
In paragraphs 58 and 59 of Digital Rights Ireland the Court was not indicating that
communications data can only be retained if they relate to particular geographical
areas, or to particular individuals likely to be involved in serious crime. It was
identifying the width of the Directive, which imposed no limits on the power to retain.
But the Court was not, as we read the judgment, purporting to lay down any particular
limitations on that power, as opposed to conditions of access. To have done so would,
apart from being to some extent impracticable, have been inconsistent with the
Court’s clear conclusion in paragraph 44 of the judgment that “the retention of data
for the purpose of allowing the competent national authorities to have possible access
to those data…..genuinely satisfies an objective of general interest.”
86.
Counsel for the Secretary of State reminded us that in Ireland v European Parliament
and Council the CJEU had held that the provisions of the Data Retention Directive
were “essentially limited to the activities of service providers”, and did not govern or
seek to harmonise provisions on access to data or the use thereof by the police or
judicial authorities of the Member States, such matters being excluded from the
Directive (paragraphs 80 and 83). Accordingly, Mr Eadie submitted, it is beyond the
scope of EU law to lay down minimum provisions for a data access regime, and in
Digital Rights Ireland the CJEU cannot have been intending to do so.
87.
We do not know whether the CJEU in Digital Rights Ireland agreed with all that their
predecessors had said about the Data Retention Directive in Ireland v Parliament. The
previous decision is referred to and considered in detail in the Opinion of Advocate
General Cruz Villalón in Digital Rights Ireland (see paragraphs 42-46, 81-88, 121 &
124). Yet in the judgment of the Court it is not even mentioned. It seems to us quite
extraordinary that in the second case to consider (albeit in different respects) the
validity of the same Directive the CJEU said nothing about its reasoning in the first
such case, decided only five years earlier.
88.
What is clear, however, is that in Digital Rights Ireland the CJEU held that the
Directive was invalid; that it infringed the principle of proportionality in the light of
Articles 7, 8 and 52(1) of the Charter; and that it failed to provide sufficient
safeguards against unlawful access to and use of retained data by public authorities.
Paragraphs 57-59 of the judgment concern retention; but paragraphs 60-67 of the
judgment concern access. Mr Eadie did not submit that the latter are simply to be
discarded or ignored. It was not clear to us how, on the Secretary of State’s case,
those paragraphs of the judgment are to be treated.
89.
The solution to the conundrum, in our view, and the ratio of Digital Rights Ireland, is
that legislation establishing a general retention regime for communications data
infringes rights under Articles 7 and 8 of the EU Charter unless it is accompanied by
an access regime (laid down at national level) which provides adequate safeguards for
those rights.
Was the Court laying down any (and if so what) specific minimum requirements for
compatibility with EU law?