• The EU legislature had acted ultra vires (or beyond its powers) in adopting Directive 2006/24 (the Data Retention Directive), because they had went beyond the limits imposed by the principle of proportionality, enshrined in Articles 7, 8 and 52 (1) of the EU Charter on Fundamental Rights.

Facts of the case:

  • The EU legislature adopted Directive 2006/24, also known as the Data Retention Directive.
  • This directive required telecommunications companies to retain the data of their customers in order to prevent crime, and to aid in the investigations relating to the national security of Member states.
  • The applicant challenged whether this directive was legitimate against a number of rights in the EU Charter of Fundamental Rights, including:
  • Article 7 (the right to privacy)
    • Article 8 (the right to protection of personal data)
    • Article 52 (1) (the requirement for proportionality and necessity in incurring upon on of those rights)

Issue in C-293/12 and C-594/12 Digital Rights Ireland et al

  • The issue in this case was simple: whether the Data Retention Directive was valid, or whether it was in breach of Articles 7 and 8, whilst not maintaining a degree of proportionality and necessity under Article 52 (1).

The CJEU held:

  • The directive was deemed invalid because the legislature had exceeded the limits of proportionality in incurring on rights enshrined in the EU Charter of Fundamental Rights.

The CJEU specifically stated:

  • Inter alia says, with respect to proportionality: [65] “It follows from the above that Directive 2006/24 does not lay down clear and precise rules governing the extent of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter. It must therefore be held that Directive 2006/24 entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely circumscribed by provisions to ensure that it is actually limited to what is strictly necessary.”
  • [69] “Having regard to all the foregoing considerations, it must be held that, by adopting Directive 2006/24, the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter.”

Editor’s notes

  • This is a great example of the division of power within the EU. Most legal systems have divisions of power, for example in England and Wales we have (i) Parliament, (ii) the government and (iii) the judiciary. In the EU, whilst the lines are perhaps blurred between the Commission, the legislature and the Courts of Justice at times, this case presents a strong example of the courts exercising a traditional responsibility that courts so often have.
  • Moreover, this case is a strong example of (a) the proportionality test that exists throughout the European Union, and also (b) the Charter of Fundamental Rights in action.