Thread by @ronanlupton

The CJEU hears a case entitled G.D. tomorrow involving the retention of call data, under the Communications (Retention of Data) Act, 2011.

This 2011 Act mandates the retention of raw telephone call data for a period of 2 years; and
Internet metadata for a period of 1 year.
It replaced section 63 of the Criminal Justice (Terrorist Offences) Act 2005 which mandated retention for 3 years in time.

The 2011 Act, was a piece of primary legislation debated fully in the Oireachtas, with noted principles and policies that was designed inter alia to give effect to the Data Retention Enforcement Directive 2006/24/EC.

Primary legislation, owing to the fact that at the time of drafting for transposition, amendments to the Constitution in or around Articles 29.4 concerning the Lisbon Treaty were not enacted yet, and due to quite old case law concerning secondary legislation enabling offences.

Concern also arose around s.3 of the European Communities Act, 1972 concerning the creation and investigation of indictable offences. Dail/Seanad debates indicated that this might be an issue.

A "Serious Offence" here is codified here in the Bail Act, 1997 and is an offence for which a person of full capacity and not previously convicted may be punished by a term of imprisonment for a term of 5 years or by a more severe penalty.

This is an important point as concerns arose over smaller offences/regulatory offences at the time and accessing retained data.

Moving on, the DRED 2006/24/EC was annulled by the CJEU based upon another case referred by Ireland in Digital Rights Ireland v Ireland - McKechnie J: courts.ie/acc/alfresco/0…
CJEU Judgment: curia.europa.eu/juris/document…
AG Opinion - Cruz Villalón: curia.europa.eu/juris/document…

The judgments giving rise to the hearing tomorrow are:
1. High Court - O'Connor J:courts.ie/acc/alfresco/3…
2. High Court - O'Connor: courts.ie/acc/alfresco/1…
3. Supreme Court - Clarke CJ: courts.ie/view/judgments…

The questions referred by the Supreme Court are six in number and concern mostly Article 15 of Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector.

The questions are here: curia.europa.eu/juris/document…
The background is set out in the Supreme Court Article 267 Reference Order, here:curia.europa.eu/juris/showPdf.…

This is a case of significance in the communications and law enforcement sphere for a number of significant and relative self-explanatory reasons. I suggest having kept an eye on this for some years, that TEU Article 6 might be the place where the answers eventually emerge.

As with any TFEU Art 267 Preliminary Reference Procedure, the referring court will ultimately resolve the issues before it. The Supreme Court judgment rendered by Clarke CJ is notable for certain case references to what the court might do once the six questions are answered.