Adieu and Farewell to the Data Retention Directive

Anita PicAnita Davies

The European Union is all too often portrayed as a creature defined by over-regulation – be it the infamous “bendy banana” rules or the great chocolate debate. It is easy (and sometimes politically convenient) to forget that the EU and CJEU can serve to protect individuals from overt (and covert) state regulation. As of a CJEU decision this week to annul the Data Retention Directive (2006/24/EC), it will be very difficult for the Home Secretary, Teresa May, to push through the Communications Data Bill (also known as the “Snooper’s Charter”).

The bill was abandoned in May 2013 following opposition from the Lib Dems, but has shown signs of resurfacing. The bill would give police and security services access, without a warrant, to details of all online communication in the UK – such as the time, duration, originator and recipient, and the location of the device from which it was made. The bill depends however, on operators being obliged to store customers’ details and records. The data retention directive obliged companies to retain data and information of citizens using electronic communications networks – but now that it has been annulled the responsibility of operators to retain data is far more ambiguous.

The CJEU decision resulted from proceedings taking place in Ireland and Austria – where challenges had been mounted regarding the legality of national legislative and administrative measures concerning the retention of data. The Court ruled on Wednesday that the purpose of the Data Retention Directive, i.e. ensuring that communications data was available in order to investigate and fight serious crime, was compatible with the European Rights framework. However, the Directive itself entailed a wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data (Articles 7 and 8 of the CFREU), without that interference being limited to what was strictly necessary.

The Court noted that the data being retained enabled:

“very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them” [§27].

Given the potential conclusions the Court found that:

“The EU legislation in question must lay down clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards so that the persons whose data have been retained have sufficient guarantees to effectively protect their personal data against the risk of abuse and against any unlawful access and use of that data” [§54].

The Directive lacked such precise rules and appropriate safeguards.

In particular the Court objected to the fact that the Directive did not discriminate between individuals. The Directive covers all individuals, all means of electronic communication and all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime. The Directive also fails (somewhat surprisingly given its purpose) to define the notion of “serious crime”. The Court found that the data retention period (6 to 24 months) was too generic and that the Directive did not require that the data be retained within the EU itself. Continue reading

HC and Sanneh – ‘genuine enjoyment’ does not include social welfare

BlogPhotoDr Iyiola Solanke

What does ‘genuine enjoyment’ of citizenship rights actually mean? This idea was first introduced by the CJEU in Zambrano, where that Court held it would deprive child EU citizens of the ‘genuine enjoyment’ of the rights associated with EU citizenship if their parents or primary carers were compelled to leave the EU. This idea of compulsion has been propelled to the fore in HC and Sanneh, to the extent of perhaps eclipsing the notion of ‘genuine enjoyment.’

Zambrano arose less than 10 years after the case of Chen and has become equally seminal in the development of the substance of EU citizenship. Whereas in Chen, the Chinese (thus non-EU) parents had taken their child born in Ireland to Wales, thus making Baby Catherine a migrant EU citizen,  in Zambrano the children born to Columbian (thus non-EU) parents were stationary – they had not moved from their state of birth – but were nonetheless accorded EU citizenship rights. As there was no migration to engage EU law, the new idea of ‘genuine enjoyment’ was introduced to perform this function. The CJEU decided in Zambrano that refusal to provide a residence and work permit would compel parental departure from the EU and thus undermine the ‘genuine enjoyment’ of EU citizenship rights by the child; the refusal was therefore contrary to EU law.

Before anybody could get too excited about the potential of this idea, Dereci and McCarthy clarified that compulsion related solely to practical consequences. The rupture of strong emotional and psychological ties within the family would not demonstrate compulsion to leave – diminution of the enjoyment of family life does not engage Zambrano rights. Nonetheless, Zambrano gave birth to two new important statuses in EU law: the ‘Zambrano carer’ and the ‘Zambrano citizen.’ The latter refers to a non-migrant minor EU citizen; the former to the primary carer of such a citizen.  A Zambrano carer –  by definition a non-EU citizen, in practice mostly female and predominantly black[1] –  derives crucial rights of residence in order to effect the ‘genuine enjoyment’ of the rights of Zambrano citizens. This status of ‘Zambrano carer’ has since its introduction become extremely valuable to mothers, who would otherwise struggle to gain residence rights without relying on their partners. For some, such as HC[2], this liberates them from domestic violence.  For others who may be abandoned, like Sanneh[3], it provides a lifeline preventing expulsion to unhappy lives elsewhere. Continue reading

Matrix seminar – EU law and immigration

Ten days ago Aidan and Raza Husain QC spoke at the last of Matrix’s series of evening seminars on EU law as it applies to domestic practice areas.  The session was devoted to immigration law.  For those who are interested, here is Aidan’s paper on Free movement of EU citizens within the EU.  As we all know, the concept of citizenship has been explored in numerous judgments of the CJEU since the concept was introduced into EU law by the Treaty of Maastricht.  Aidan discusses the rights held by EU citizens with particular reference to the Charter of Fundamental Rights, touching on various topical issues including prisoner voting rights (which, as he makes clear, is not just an ECHR issue) and access to legal aid.

Watch out for the second paper, on EU asylum and refugee status law, next week.

The EU Fundamental Rights Charter, the European Commission and the Council of Ministers: checking the ‘Charter checklists’. Part 2.

John Morijn

Therefore it is noteworthy and of potentially wider practical significance that the European Commission and the Council of Ministers have recently published documents and adopted conclusions about how they intend to make use of the Charter. In particular, each of them has drawn up its own Charter checklist. Although this is a step to be applauded in principle, since it may help give the Charter the permanent prominent place in Brussels and capitals it legally requires, each of these checklists may need some double-checking. Part 1 looked at the checklist of the Commission, Part 2 looks at the checklist of the Council.

Council

In response to the Commission Strategy, the Council adopted several conclusions. It announced that it will aim to ensure that legislative proposals cleared by it will be worthy of a ‘fundamental rights label’. It also developed guidelines on the ‘methodological steps to be taken to check fundamental rights compatibility at the Council’s preparatory bodies’, intended to ensure this for both the legislative proposals proposed at EU level as well as for Member States proposed amendments. The ‘efficacy’ of these methodological guidelines was rather prematurely underlined already just days after they were actually published. As far as relevant they read as follows:

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The EU Fundamental Rights Charter, the European Commission and the Council of Ministers: checking the ‘Charter checklists’. Part 1.

John Morijn

Upon entry into force of the Lisbon Treaty the EU Charter of Fundamental Rights became legally binding. EU institutions, agencies and bodies, as well as EU Member States when they implement Union law are now bound as a matter of Union law to comply with the Charter (art. 51). That this has been the situation since 1 December 2009 is clear to everybody. What consequences it will have in practice, particularly in EU legislative practice, is still largely an open question.

The transformation of the Charter from ‘new kid on the block’ to ‘new kit for the block’ is gradually shaping up, however. The Court of Justice now gives the Charter its place next to the other legal sources of human rights, such as the ECHR. This judicial use of the Charter has been regularly assessed. What has been happening with the Charter in Brussels and the capitals in the stages prior to judicial review is less clear. In fact it is far from unlikely that, particularly in the capitals, so far very little has been happening with the Charter. The ‘new kit’ requires some authoritative instructions regarding its modes d’emploi.

Therefore it is noteworthy and of potentially wider practical significance that the European Commission and the Council of Ministers have recently published documents and adopted conclusions about how they intend to make use of the Charter. In particular, each of them has drawn up its own Charter checklist. Although this is a step to be applauded in principle, since it may help give the Charter the permanent prominent place in Brussels and capitals it legally requires, each of these checklists may need some double-checking.

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Application of EU Rights Charter – AG’s Opinion, by Rosalind English

This post first appeared on the UK Human Rights Blog and is reproduced here with permission and thanks. 

Rosalind English

NS v Secretary of State for the Home Department (Principles of Community law) [2011] EUECJ C-493/10 (22 September 2011) - read opinion

The Common European Asylum System was designed to establish a fair and effective distribution of the burden on the asylum systems of the EU Member States. Regulation No 343/2003 was passed in order to introduce a clear and workable method for determining which single Member State is responsible for determining any given asylum application lodged within the European Union. The measure was also intended to prevent forum shopping by asylum seekers.

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