Advocate General Asks EU Court of Justice WHAT?

The Advocate General of the Court of Justice of the European Union recently announced that it had delivered an opinion in connection with a number of proceedings calling for a preliminary ruling in cases involving Ireland and Austria. In Ireland, the owner of a mobile phone submits that the Irish authorities have unlawfully processed, retained and exercised control over data related to its communications. In Austria, three cases brought by the Province of Carinthia have alleged the Austrian Law on telecommunications is contrary to the Austrian Constitution.

Essentially, the top EU legal advocate is asking the EU court NOT to enforce a bad law so the legislature is afforded a chance to fix it. Seriously? That is like asking the U.S. Supreme Court not to strike down discriminatory laws and give Congress a chance to fix them. Seriously?

Without belaboring the technical details of these cases, the Advocate General’s opinion essentially asks the EU Court of Justice to hold off rendering any decision that might declare the EU Data Retention Directive invalid, and urges this delay in order to permit the EU legislature to correct the Data Retention Directive – which requires communications providers to record and maintain consumer metadata. Curiously, just six months ago (June 2013), this same Court of Justice imposed a €3 million fine upon the member nation, Sweden, for failure to adopt the data retention law. That decision found that the delay of almost five years in coming into compliance has interfered with “the proper functioning of the internal market.”

According to the Advocate General, the Data Retention Directive doesn’t provide adequate privacy protections consistent with the EU’s Charter of Fundamental Rights, because it forces electronic communications service providers, not any government or public authorities, to collect and retain traffic and location data. This data, it is pointed out, is not under the control of any government or public authority, but of the providers themselves. Would it be possible “to create a both faithful and exhaustive map of a large portion of a person’s conduct strictly forming part of his private life, or even a complete and accurate picture of his private identity”? A statement from the Court of Justice says indeed it may, and the Advocate General is concerned this type of data may be subject to abuse, may be used for unlawful or unauthorized purposes, and is inconsistent with the individual’s right to privacy under the EU Charter of Fundamental Rights.

Because the directive doesn’t merely harmonize the laws of member states – but actually imposes an obligation of data retention – the Advocate General argues that the Court of Justice, rather than completely invalidating the directive, should hold off rendering any decision and afford the legislature an opportunity to correct the apparent incompatibilities. You can read the entire Opinion of the Advocate General online (or download the Opinion) [PDF] and decide for yourself.

While the wheels of justice may grind exceedingly slowly, it is unclear whether any court, including the Court of Justice, can delay or refrain from enforcing existing law and regulation or ruling on validity or invalidity simply because there is a disagreement as to its propriety or perception of impropriety. Indeed, even if the legislature chooses to take action, there is no guarantee the resulting legislation or modification will be any better, nor would it or should it be retroactively applied to facts and parties that gave rise to the instant cases. THAT might be inconsistent with virtually every principle of law and justice, as well as the system of checks and balances in our respective governments.

Making the law better is always the objective, and courts have always retained authority to determine if any particular law or regulation goes beyond permissible Constitutional or Charter boundaries – but not the authority to withhold the dispensing of judicial rulings or justice on a case-by-case basis so another branch of government can fix a perceived problem. Perhaps if the Court of Justice invalidated the allegedly bad law, it actually might give everyone a fresh opportunity to get it right and be more careful about doing so.

Questions about data protection, collection or retention, privacy, compliance with applicable law and regulation – Rimon has a multi-jurisdictional team of dedicated professionals around the world who can advise; assist in developing compliance programs, policies and training; and assist clients in responding to data breaches, claims of privacy violations, and regulatory inquiries and challenges. As always, if you want to know more, please contact me, Joe Rosenbaum, or any of the Rimon attorneys with whom you regularly work.