The Directive requires member states of the EU to pass into law an obligation for telecoms providers to retain phone, email and web traffic data for up to two years. Opposed by civil rights groups, the Directive was passed in order to help states to combat crime and terrorism.
The Irish Government, though, says that the technical process used to pass the Directive was one designed for trade and that it should have been passed through a process designed for security matters. That process is tougher, requiring a unanimous vote rather than a majority one.
"Ireland submits that the choice of Article 95 of the Treaty establishing the European Community ('TEC') as the legal basis for [the] Directive is fundamentally flawed," says its submission to the European Court of Justice. "It is primarily Ireland's case that the purpose of the Directive is to facilitate the investigation, detection and prosecution of serious crime, including terrorism."
"Ireland has indicated that reliance upon Article 95 TEC as the legal basis for the Directive is wholly inappropriate and unsustainable," says its case. "It is established that measures based upon Article 95 TEC must have as their "centre of gravity" the approximation of national laws to benefit the functioning of the internal market. The provisions of the Directive are concerned with combating serious crime and are not intended to address any defects in the internal market."
The action is by Ireland against the Council of the European Union and the European Parliament. The Irish government wants the court to undo the passing of the Directive. "The applicant claims that the Court should annul Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services …on the grounds that it was not adopted on an appropriate legal basis," says its case.
The Directive is already the subject of a legal challenge from Ireland. Barrister TJ McIntyre has launched a legal challenge in the Irish High Court to Ireland's data retention laws and also wants the Irish courts to refer a separate case to the European Court of Justice.
As chairman of Digital Rights Ireland, McIntyre could find himself pursuing a case against the government in the Irish courts but alongside the government in Europe.
"We're challenging the domestic law on national constitutional grounds and the EU Directive and we're hoping for a preliminary reference to Luxembourg to assess the validity of the Directive," McIntyre told OUT-LAW. "If we're successful it will strike down the Data Retention Directive and that will invalidate a lot of the data retention laws across Europe. We're hoping that there will be a knock on effect. A ruling on the human rights case would be very persuasive for national courts."