The Court of Justice of the European Union has again addressed the issue of connection data, reminding Ireland and France of the strict framework that must surround collection and use. EURACTIV France reports.
Connection data includes identifiers, IP addresses, names, associated addresses and lists of telephone antennas used, which certain national telecom operators must keep under their national regimes.
The Court of Justice in Luxembourg confirmed on Tuesday (5 April) that EU member states cannot impose a “general and indiscriminate retention of traffic and location data relating to electronic communications” as a preventive measure, even if it is used to fight “serious crime”. ”.
In this case, the Supreme Court of Ireland asked the Luxembourg judges for “clarifications”.
A breach of EU law
The EU court was asked to rule on the case after Graham Dwyer, sentenced in 2015 to life imprisonment for murder, won an appeal in 2018 after a court found that the use of the defendant’s mobile data in his trial had breached EU law.
The European Court thus reminded Ireland that it was not against the derogations from the prohibition of such storage provided for by the privacy and electronic communications directive when it was a question of combating “the great crime and the prevention of serious threats to public safety”. However, “the objective of combating serious crime […] cannot in itself justify such an invasion of privacy, he added.
The Supreme Court of Ireland will have to make its final decision in the light of these clarifications.
In its judgment, the European Court underlines the “constant case-law”. “While one might have expected the debate to be settled, the Court having endeavored to set out in detail, in consultation with the national courts, the reasons which, despite everything, justify the theses adopted, that does not seem to have been the case,” ruled the Advocate General in his conclusions of November 2021.
Irish Justice Minister Helen McEntee has “taken note of the CJEU’s judgment”, a spokesperson for the ministry told AFP, welcoming the fact that the judgment “will bring clarity to this important area so that we know what legislation is needed, and therefore help as many people as possible”. as far as possible, the work of the [Irish police] in the fight against crime and the carrying out of conclusive investigations”.
The decision also sends a message to France, confirming that the French justice system may not be able to withstand another challenge in EU courts, according to digital lawyer Alexandre Archambault.
In short, it is a new call to put an end to the “creative interpretations” that some member states, including France, have made on the issue, he told EURACTIV.
In April 2021, questioned by several associations on the compliance of the French legal system with EU case law, the French Council of State – the highest legal entity in the country – sought to “reconcile” respect for the right of the EU with the requirements of the French government in the fight against terrorism and crime. However, the government in Paris hinted to the judges that this was none of Brussels’ business.
The French “philosopher’s stone”
The country’s highest administrative court ruled that the widespread retention of metadata in France was justified by the existing and persistent threat to the country’s national security. It also found that the measure ensured national constitutional requirements to prevent breaches of public order.
He ordered the government to regularly reassess this threat to justify the existing regime and to ensure that the data is used by intelligence services as long as an independent authority authorizes it.
According to Théodore Christakis, professor of law at the University of Grenoble Alpes, the Council of State validated the The French “philosopher’s stone” which legitimizes the use of login data in the fight against serious crimes, because it was collected in the context of a broader threat to national security.
In a recent decision, the Court of Luxembourg indicated that it “still rejects the argument that the competent national authorities should be able to access, for the purposes of the fight against serious crime, the data […] who were retained […] in order to deal with a serious threat to national security.
“France will not be able to avoid” the reform of its system, according to Archambault. The country is “far from ticking all the boxes” listed by the CJEU, which include the definition of the purposes, the gravity of the infringements and the modulation of the effects over time, he added.
[Edited by Luca Bertuzzi/Alice Taylor]