Tuesday the European Court of Justice held a hearing concerning the validity and proportionality of the EU directive 2006/24 on mandatory blanket retention of all communications data. A person who participated in the hearing reports on their impression.
My sense of the day:
First: it was great that the Irish and Austrian challenges were joined. It gave the cases added weight, gave us three lawyers rather than one speaking directly against the Directive, and also allowed us to tackle the Directive from several different angles.
Second, we were before a grand chamber – 15 judges – signifying that the ECJ was giving this case some significance from the outset.
Third, the Irish Human Rights Commission spoke before the ECJ and were given a very attentive hearing. They expressed concern about the possibility that there would be a gap in protection if the Directive were upheld – i.e. that we might have a situation where protections against abuse would only be in national law, not at EU level – and when pressed by the court on the issue they said that they considered the Directive itself to be disproportionate. This was a big step from their perspective – their role is primarily advisory, not to take sides – and I think it carried some weight with the Court as an independent and impartial human rights body.
Fourth, the advocates for the member states made some very surprising points which helped us. For example, one claimed that the Directive required ISPs to store the URLs you visit – but the Commission was tripped up in confusion by it and couldn’t answer to the court whether it was correct or not. One said that Austria had no position on the question of proportionality (!) and went on to say that the ECJ would of course have to take into account the recent PRISM revelations (!!). One said that the statistics in this area were so patchy as to be completely unreliable – effectively overlooking the fact that the Court had asked for statistics to support the use of data retention. Another said that internet use opens one up to profiling anyway so data retention is not a particularly big issue (!). One tripped up on the question of transfer of data outside the EU and in effect ended up highlighting the PRISM issue. Other state advocates delivered arguments which were very bland in nature – there was little engagement with the issues bar mere assertion that data retention is necessary because we say it is.
Fifth, the advocates for the Parliament, Council and Commission were given some very difficult questioning on the fundamental issues regarding protection of human rights and how this is divided between the EU and the member states. This is obviously a wider issue than data retention per se but the ECJ appeared willing to tackle it – something which would probably be in our favour.
Sixth, the Advocate General picked up on a point regarding the correct test of proportionailty to use – i.e. do we assess this as being proportionate for law enforcement aims (a lenient test) or do we assess it as to whether it is a proportionate way of harmonising commercial activity in telecoms (a much harder test). Digital Rights said that it had to be assessed as an internal market measure as that was the legal basis of the directive. In short – is it really a sufficient basis for the Directive that it makes Vodafone’s life easier by harmonising the rules in the various countries where it operates? The Advocate General picked up on this point and seemed to accept this approach, while counsel for the institutions had no real response to his questioning on this. In effect the Advocate General said that the Directive must pass two tests of proportionality – it must be proportionate in its assistance of law enforcement and also proportionate in its market harmonisation function. The implication is that if it is an excessive reaction to the need for market harmonisation then it would fall even though it might be proportionate if it were a stand alone third pillar measure. He also suggested that a law such as this should have a sunset clause, something which the institutions had no answer for.
Finally, the fact that the EDPS was invited to take part was I think useful, and the EDPS advocate was clear in stating the views of the EDPS that this was disproportionate.
In summary, I think the day went very well indeed for civil liberties. It is always impossible to predict what a court will do, but I am hopeful for a positive outcome based on what we saw.
The next date for your diary is November 7th when we get the opinion of the Advocate General. The full judgment is I believe probably 12 weeks after that, or thereabouts.
Finally, a special word of thanks for the lawyers who presented the civil rights cases so well. Yesterday was a major hearing on the most fundamental of human rights issues before the highest court in Europe, sitting in grand chamber. Very few lawyers ever make it to the ECJ, let alone on an issue of such significance. Frank Callanan, Fergal Crehan, Simon McGarr, Gerald Otto and Ewald Scheucher all deserve our respect and our thanks – and also all those others (too many to name here) who contributed to their work.
Update of 15/07/2013:
Monika Ermert has published another good report on the hearing.
The information and views set out in this post are those of the author and do not necessarily reflect the opinion of the Working Group on Data Retention (AK Vorrat).
