Reference for a preliminary ruling from the Supreme Court (Ireland) made on 25 March 2020 – G.D. v The Commissioner of the Garda Síochána, Minister for Communications, Energy and Natural Ressources, Attorney General

(Case C-140/20)

Language of the case: English

Referring court

Supreme Court (Ireland)

Parties to the main proceedings

Plaintiff/Respondent: G.D.

Defendants/Appellants: Commissioner of the Garda Síochána, Minister for Communications, Energy and Natural Resources and Attorney General

Questions referred

Is a general/universal data retention regime - even subject to stringent restrictions on retention and access - per se contrary to the provisions of Article 15 of Directive 2002/58/EC1 , as interpreted in light of the Charter?

In considering whether to grant a declaration of inconsistency of a national measure implemented pursuant to Directive 2006/24/EC2 , and making provision for a general data retention regime (subject to the necessary stringent controls on retention and/or in relation to access), and in particular in assessing the proportionality of any such regime, is a national court entitled to have regard to the fact that data may be retained lawfully by service providers for their own commercial purposes, and may be required to be retained for reasons of national security excluded from the provisions of Directive 2002/58/EC?

In assessing, in the context of determining the compatibility with European Union law and in particular with Charter Rights of a national measure for access to retained data, what criteria should a national court apply in considering whether any such access regime provides the required independent prior scrutiny as determined by the Court of Justice in its case law? In that context can a national court, in making such an assessment, have any regard to the existence of ex post judicial or independent scrutiny?

In any event, is a national court obliged to declare the inconsistency of a national measure with the provisions of Article 15 of the Directive 2002/58/EC, if the national measure makes provision for a general data retention regime for the purpose of combating serious crime, and where the national court has concluded, on all the evidence available, that such retention is both essential and strictly necessary to the achievement of the objective of combating serious crime?

If a national court is obliged to conclude that a national measure is inconsistent with the provisions of Article 15 of Directive 2002/58/EC, as interpreted in the light of the Charter, is it entitled to limit the temporal effect of any such declaration, if satisfied that a failure to do so would lead to “resultant chaos and damage to the public interest” (in line with the approach taken, for example, in R (National Council for Civil Liberties) v Secretary of State for Home Department and Secretary of State for Foreign Affairs [2018] EWHC 975, at para. 46)?

May a national court invited to declare the inconsistency of national legislation with Article 15 of the Directive 2002/58/EC, and/or to disapply this legislation, and/or to declare that the application of such legislation had breached the rights of an individual, either in the context of proceedings commenced in order to facilitate an argument in respect of the admissibility of evidence in criminal proceedings or otherwise, be permitted to refuse such relief in respect of data retained pursuant to the national provision enacted pursuant to the obligation under Article 288 TFEU to faithfully introduce into national law the provisions of a directive, or to limit any such declaration to the period after the declaration of invalidity of the Directive 2006/24/EC issued by the CJEU on the 8th day of April, 2014?

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1 Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (OJ 2002, L 201, p. 37).

2 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 or of public communications networks and amending Directive 2002/58/EC (OJ 2006, L 105, p. 54).