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Europe court dismisses challenge to data retention directive

[JURIST] The European Court of Justice [official website] on Tuesday dismissed a challenge [case materials] to a European Commission [official website] directive [EC 2006/24 text] requiring telecommunication companies operating in European Union (EU) [official website] member countries to retain phone and email data for at least six months. The rule was designed to help law enforcement investigate gang, terrorism and other criminal activity, but Ireland challenged the directive, arguing that the it violates European Convention on Human Rights [text] Article 8 privacy protections and was inappropriately based on a section of the European Community Treaty (ECT) [Article 95 text] designed to facilitate trade rather than combat crime. Addressing only the question of whether the rule was appropriately based on the ECT's trade provision, the court held that the rule was valid because it standardized costs associated with retaining the data across the EU:

As is apparent ... the Community legislature started from the premiss [sic] that there were legislative and technical disparities between the national provisions governing the retention of data by service providers ...

... [I]t is apparent that 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 that it was foreseeable that that impact would become more serious with the passage of time.

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.
Slovakia joined Ireland in the challenge. Spain and the Netherlands joined the EC arguing in support of the directive.

The controversial rule was approved [press release, PDF; JURIST report] by EU justice and interior ministers in February 2006 after it was passed by the European Parliament [JURIST report] in December 2005. Its passage came only after a year and a half of debate [JURIST news archive] among the member states over privacy issues, during which Ireland and Slovakia expressed their intent to challenge the rule.

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