Questions for European Court of Justice to answer in Graham Dwyer case

The Court of Justice of the European Union could take up to two years to decide on issues referred to it by the Supreme Court over Ireland’s regime on data retention and accessibility.
Questions for European Court of Justice to answer in Graham Dwyer case

Chief Justice Frank Clarke said were ‘three central questions of European Union law which arise on this appeal’.
Chief Justice Frank Clarke said were ‘three central questions of European Union law which arise on this appeal’.

The Court of Justice of the European Union could take up to two years to decide on issues referred to it by the Supreme Court over Ireland’s regime on data retention and accessibility.

In its ruling delivered in Waterford, the Supreme Court panel decided by six-to-one to refer the issue back to the CJEU, hinging on what Chief Justice Frank Clarke said were “three central questions of European Union law which arise on this appeal”.

The judgment said a system of universal but limited retention of telephony data is not incompatible with European Union law and that evidence tendered in the High Court in these proceedings led to the conclusion that the investigation and prosecution of serious crimes would, in many cases, be impossible without access to such data.

“Such access can only be possible if the data is retained in the first place,” the Chief Justice said. “I note in the judgment that you cannot access that which has not been retained.”

It also said that even though universal limited retention of telephony data may be permissible in principle, “there must be a particularly robust access system in place which conforms with the case law of the Court of Justice which in turn specifies that there must be independent prior permission given for such access. I express the view that the Irish access regime does not meet that standard not least because of the fact that, albeit access permission is granted by a separate unit within the force, such permission is nonetheless granted from within An Garda Síochána so that there is insufficient independent review in advance of the need for access.”

Thirdly, it said “on the question of whether, on a national court finding that a measure such as the 2011 Act is inconsistent with European Union law, the court concerned has the power to decide that any such invalidity should only be prospective from the date of its judgment, I express the view that national courts do have such power. I also express the view that, in the event that a national court has such power, it would be appropriate to exercise it in this case in favour of not regarding the relevant aspects of the 2011 Act as having been invalid until the date of this judgment.

“I do so principally because the 2011 act was actually enacted by the Oireachtas precisely because it was required by European Union law as it appeared at the time and in circumstances where Ireland had been the subject of successful infringement proceedings brought by the European Commission before the Court of Justice itself arising out of the failure of Ireland to introduce legislation such as the 2011 act.”

Privately, some digital rights experts believe the CJEU has already made its views clear in relation to some of those issues and that the Irish regime of data retention and accessibility does not meet the standard already outlined by the EU court in a previous judgement.

In the judgment the Supreme Court panel said:

“The question is as to whether such a course of action is open to this court in the event of a finding of inconsistency with EU law being made, together, of course, with the question of whether it would be appropriate, in the circumstances of this case, to reach a conclusion to defer the effect of such a determination in the event that this court has, as a matter of European Union law, the power to make such a decision.”

The judgment also outlined how there were considerations such as whether there were different experiences within member states of “pervasive scrutiny on the part of police authorities” and given that “it remains open to member states to choose a higher standard of protection of the privacy rights involved and a correspondingly less effective regime of retention and access”.

However, digital experts have said Ireland’s current regime does not even meet the baseline required in other member states.

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