Data Retention Directive Incompatible With Fundamental Rights According To EU Court Of Justice's Advocate General

from the not-quite-what-we'd-hoped-for dept

Almost exactly a year ago, we wrote about two important cases before Europe's highest court, the Court of Justice of the European Union (ECJ). They both involved the European Union's Data Retention Directive, which obliges telecoms companies to retain metadata about their customers -- now an even more contentious issue in the wake of Edward Snowden's leaks. One case was from Ireland, brought by Digital Rights Ireland, which needs donations to carry on its great work, and the other from the Austrian digital rights group AKVorrat (which probably also needs support.)

As is usual, before the ECJ makes its ruling, the court's Advocate General offers an opinion. It's not binding, but it's generally taken into account, and is often indicative of how the court will find. Here's what the Advocate General has just published:

In his Opinion delivered today, Advocate General Pedro Cruz Villalón, takes the view that the Data Retention Directive is as a whole incompatible with the requirement, laid down by the Charter of Fundamental Rights of the European Union, that any limitation on the exercise of a fundamental right must be provided for by law. According to the Advocate General, the Directive constitutes a serious interference with the fundamental right of citizens to privacy, by laying down an obligation on the providers of telephone or electronic communications services to collect and retain traffic and location data for such communications.

Specifically, he says that from the retained data it is possible to create a detailed and thus intrusive picture of someone's private life, and also notes that by storing this information, there is an increased risk it will fall into the wrong hands, causing damage to the privacy of the person concerned. Because of the seriousness of its incompatibility with fundamental European rights, the Directive should have spelt out key details, rather than leaving it to the Member States of the EU to interpret the rules as they thought best. He also found that:

the Data Retention Directive is incompatible with the principle of proportionality in that it requires Member States to ensure that the data are retained for a period whose upper limit is set at two years.

According to the Advocate General, there is no reason why the upper limit should not be set at just one year. Unfortunately, despite these serious flaws, he did not suggest that the Directive should be rescinded. Instead:

the Advocate General proposes, after weighing up the various competing interests, that the effects of a finding that the Directive is invalid should be suspended pending adoption by the EU legislature of the measures necessary to remedy the invalidity found to exist, but such measures must be adopted within a reasonable period.

In other words, the Advocate General seems to think the problems are fixable, provided the EU adopts suitable measures to address the issues he has raised.

That makes the current opinion something of a mixed bag. On the plus side, it has clearly found that the Data Retention Directive in its present form is incompatible with fundamental European rights; but against that, the Advocate General not only suggested that the problems could be rectified, but even explained how that might be achieved.

The full Opinion is, of course, much more complex than the rough summary above, and experts will argue over what the details might mean for data retention in Europe. In any case, what counts is the final judgement of the ECJ, which may have views that differ from the Advocate General's Opinion in important ways. At least we are now closer to finding out.

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Filed Under: court of justice, data retention, ecj, eu, fundamental rights, privacy

EU Commissioner Reveals He Will Simply Ignore Any Rejection Of ACTA By European Parliament Next Week

from the democracy,-what's-that? dept

The day before the EU's International Trade committee (INTA) recommended that the European Parliament should reject ACTA, the EU commissioner with responsibility for the treaty, Karel De Gucht, had given a speech to its members, trying to win them over. Although it was short, it turns out to be highly revealing about the European Commission's future ACTA strategy. Here's what he said:

If you decide for a negative vote before the European Court rules, let me tell you that the Commission will nonetheless continue to pursue the current procedure before the Court, as we are entitled to do. A negative vote will not stop the proceedings before the Court of Justice.

That is, whatever happens next week, the European Commission will wait for the European Court of Justice (ECJ) to rule on whether ACTA is compatible with EU law. If it is found to be incompatible, De Gucht admits that rather than accept this ruling, the European Commission will try to find some trick to circumvent it:

If the Court questions the conformity of the agreement with the Treaties we will assess at that stage how this can be addressed.

This implicitly confirms that the referral was simply a way to buy time, rather than an honest question about ACTA's legality.

Even assuming the ECJ rules eventually that ACTA is compatible, there could still be a problem if, in the meantime, the European Parliament has voted not to ratify it. Here's what De Gucht says he would do in that case:

First, I would consider proposing some clarifications to ACTA. For example on enforcement in the digital environment. We could look at this in the light of the discussions you will have had on legislative proposals which the European Commission is set to put before the Parliament and the Council. Or for example, we could seek to clarify further the meaning of 'commercial scale'.

Remember that ACTA is now signed, and cannot be altered; so De Gucht is instead trying to fob off European politicians with this vague idea of "clarifications" -- as if more vagueness could somehow rectify the underlying problems of an already dangerously-vague treaty. That's clearly just a sop; here's the real plan:

Second, once we will have identified and discussed these possible clarifications, I would intend to make a second request for consent to the European Parliament. Whether the Parliament will consider it under this legislature or the subsequent one, will be for you to decide.

This is an extraordinary admission. De Gucht says that even if the European Parliament unequivocally refuses to ratify ACTA next week, he will simply ignore that result, and re-submit it at a later date.

In other words, De Gucht won't accept the idea that the European electorate, through their representatives in the European Parliament, might possibly want to reject something they were not allowed to know about until late in the negotiating process, and to which they were unable to provide any meaningful input. In his view, ACTA must be passed, and ACTA will be passed -- whatever anyone else thinks about it.

Let's hope that the members of the European Parliament bear in mind this undisguised contempt for the democratic process in Europe -- and for them -- when it comes to voting on ACTA next week, and any time thereafter it might be re-presented to them under De Gucht's shameful plans.

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Filed Under: acta, ecj, european commission, european union, karel de gucht