THE HIGH COURT
2006 No. 3785P

Between

DIGITAL RIGHTS IRELAND LIMITED

Plaintiff

And

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

Defendants

UPDATE (16/7/2008)

1. Judge McKechnie has reserved judgment on the remaining issues before the Court.

2.The Plaintiff has asked the Court to refer the issue of the validity of Directive 2006/24/EC to the ECJ. The State had brought this question to the ECJ. (The hearing began in the ECJ the very morning the Motions opened before Judge McKechnie). The Plaintiff endorses the State case but goes further; it says the Directive is not valid, not simply on procedural grounds, but on substantive grounds of breach of human rights and the fundamental law of the EU. This is a very important difference between the State and the Plaintiff on the Directive point.

3. The State had asked the Court to deny locus standi to the Plaintiff and, in default of success on that request, asked that the Court order the Plaintiff to furnish security for costs to the State. Judgement on these points has also been reserved.

4. At time of writing, no reply has been received from Hans-Gert Pottering, the President of the EU Parliament to the letter McGarr Solicitors sent to him.

THE HIGH COURT
2006 No. 3785P

Between

DIGITAL RIGHTS IRELAND LIMITED

Plaintiff

And

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

Defendants

UPDATE (27/6/2008)

Digital Rights Ireland Ltd. has taken a case against the Irish Government as seen HERE.

DRI has brought an application to the High Court to seek a ruling from the ECJ on an EU law issue. The state has responded with its motion challenging DRI’s right to bring the proceedings. The Irish Human Rights Commission has applied for leave to make submissions in the proceedings. These Motions will (it is believed) be heard in the High Court on 1st July 2008. See the letter to Dr. Hans-Gert Pöttering for the context for this.

Our Ref;EMcG Your Ref; 24th June 2008

Dr. Hans-Gert Pöttering
President,
European Parliament,
Paul Henri Spaak building
Brussels

Dear President,

1. I am the lawyer for Digital Rights Ireland Ltd. (“DRI�). DRI is a corporate body established to protect and vindicate the civil and human rights of mobile phone users in Ireland. DRI has issued proceedings in the Irish High Court to challenge the validity of aspects of Ireland’s data retention legislation. (“The DRI proceedings�).

2. I write to you, as a matter of urgency, because an aspect of that legislation is the subject matter of proceedings between, inter alia, Ireland and the European Parliament in the European Court of Justice. (C-301/06: Ireland v Council and Parliament “The ECJ proceedings�) Those proceedings are now listed for hearing on 1st July 2008.

3. As you probably know, the Irish High Court is empowered to rule on the validity of European Union law, where the matter is acte clair. DRI is seeking, among other things, a ruling or rulings from the High Court on the validity of Directive 2006/24/EC.

4. Because, in the opinion of DRI, that matter is not acte clair, DRI has requested a reference by the High Court to the European Court of Justice on the validity of Directive 2006/24/EC.

5. DRI understands that the validity of Directive 2006/24/EC is the issue in the ECJ proceedings.

6. However, DRI perceives that DRI and Ireland do not agree as to why Directive 2006/24/EC is invalid. Ireland, it is understood, believes it is invalid because it was adopted at a meeting of the Council of Ministers following a vote against it by Ireland. Ireland is of the view (as is DRI) that Ireland’s vote was a veto vote. Ireland believes this because the subject matter for decision in the Council of Ministers was a “Third Pillar� issue. Unanimity is required for such issues; there was none.

7. DRI believes that the grounds of invalidity of Directive 2006/24/EC are wider than that. Ireland does not agree, it appears, (given certain actions and expressions of view of Ireland).

8. DRI believes that the basis for a determination of the invalidity of Directive 2006/24/EC, by the European Court of Justice, is a very important matter. DRI wishes to ensure that the European Court of Justice has the benefit of a full examination of all the reasons why Directive 2006/24/EC is invalid.

9. DRI will shortly obtain a hearing by the High Court of its application for a reference to the ECJ. It is opposed by Ireland in its pleadings. Ireland has also objected to the High Court hearing submissions from the Irish Human Rights Commission on the issues that DRI has brought to the Court.

10. What is now clear is that, failing intervention, the hearing of the ECJ proceedings on 1st July 2008 will precede the DRI proceedings in the High Court in Dublin. That means that the ECJ will be deprived of the full examination of the reasons why Directive 2006/24/EC is invalid.

11. If DRI is successful in Dublin it will be anxious to ensure its proceedings, under the High Court reference, are heard before or at the same time as the ECJ proceedings. The European Parliament is a respondent in the ECJ proceedings. It is open to the EP to apply to the ECJ for an adjournment of those proceedings pending the outcome of the DRI proceedings in Dublin.

12. I write to you to ask you to procure the making of that application to the ECJ.

13. The benefits will be substantial, legally and politically. The perception of the European Union as a legal institution will be enhanced. The opportunity for the ECJ to rule on what is a human rights issue will be secured. The anxiety of the European Parliament to protect human rights will be demonstrated.

14. DRI’s objectives are supported by groups across Europe including: Privacy International, the European Foundation for a Free Information Infrastructure, the Czech civil rights group Iuridicum Remedium, Digital Rights (Denmark), the Belgian Liga voor de Mensenrechten (“League for Human Rightsâ€?), Electronic Frontier Finland, the UK Open Rights Group, the Italian group, ALCEI (“Electronic Frontiers Italyâ€?), the French IRIS, the Internet Society – Bulgaria, German groups netzwerk Neue Medien (“New Media networkâ€?) and FITUG (Förderverein Informationstechnik und Gesellschaft e.V.), and the Austrian groups VIBE!AT (“Austrian Association for Internet Usersâ€?) and Quintessenz.

15. I am ready to furnish any further details or information you may wish to have. The Chairman of DRI and I will readily travel to meet you if you require.

16. For obvious reasons the matter is urgent and I await hearing from you by return.

Yours Faithfully,

____________________
Edward McGarr
McGarr Solicitors

THE HIGH COURT
2006 No. 3785P

Between

DIGITAL RIGHTS IRELAND LIMITED

Plaintiff

And

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

Defendants

The Department of Justice has published the draft Statutory Instrument whereby Ireland proposes to transpose Directive 2006/24/EC into Irish law. See HERE.

The Irish Times is critical of the contents of the draft and doubtful as to its legality.

See HERE.

Christine Lagarde, the French finance minister is on record as saying that France will use the presidency of the Council of Ministers in the EU to, effectively, change Ireland’s low corporate tax rate.

The Irish Government says this cannot happen: Ireland has a veto and will use it, therefore the Irish position is safe.

Mr. Barroso has made placatory noises on the same issue. (In fact he has started the process of undermining the Irish “veto”).

What is the reality?

It is to be found in the occasion when Ireland used its veto and was ignored.

This happened on 15th March 2006. The issue was the adoption by the Council of Ministers of what became Directive 2006/24/EC. Ireland voted against its adoption, casting a veto thereby. Ireland’s veto was effective if, as was Ireland’s view, the issue fell within “the 3rd Pillar�. Otherwise it was not.

The issue was driven by Charles Clarke, the UK minister. His brief in the UK was police and security. He tied the issue to the bombing of London. Issues such as that are 3rd Pillar issues. The Council adopted the proposal as a 1st Pillar issue, basing it on Article 95 of the EC Treaty. Ireland disagrees with this and its opinion is shared by the European Data Protection Supervisor.

Ireland has challenged the legal base for the adoption of Directive 2006/24/EC in the European Court of Justice. The case is pending. If Ireland is successful the Directive will be struck down.

(Mr. Barroso was president of the Commission in 2006).

Surely tax is more important than privacy?

Wrong question.

In 2006 the question was, is Ireland more important than the UK?

Now the question is, is Ireland more important than France?

Words matter.

Mr. Barroso’s definition of a veto is not a veto in Europe. Therefore it is not a veto.

I do not think anyone ever defined “3rd Pillar” and we now see the consequences of allowing woolly speech where precision was required.

THE HIGH COURT
2006 No. 3785P

Between

DIGITAL RIGHTS IRELAND LIMITED

Plaintiff

And

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

Defendants

UPDATE (18/2/2008)

1. There are currently three Motions before the High Court. They are, currently, appearing in Court 1 Distillery Church St. Dublin 7.

2. The first motion (in time) is the Motion of the Irish Human Rights Commission for leave to appear as amicus curiae.

3. The second motion (in time) is a motion from the State challenging, firstly, the locus standi of the Plaintiff to bring the proceedings and secondly seeking an order directing the Plaintiff to provide security for costs.

4. The third motion (in time) is a motion from the Plaintiff seeking, firstly directions as to the trial of the issues and secondly seeking an order of reference to the European Court of Justice.

5. These motions have been adjourned to 10th March 2008 for the purposes of deciding the time and order of trial of the issues arising on the Motions.

Ireland’s report card does not read well in the Privacy International “2007 International Privacy Ranking�:-

Systemic failure to uphold safeguards.

See HERE for the report.

It lists the following remarks on Ireland:

1. No explicit right to privacy in constitution, Supreme Court has seen an implicit right in Article 40.3.1

2. Comprehensive privacy law, with broad exemptions for security, tax, and combating crime; misuse of data is also criminalized

3. Improvements in the law went into effect in 2007

4. High Court imposed safeguards on the disclosure of identity of suspected file-sharers

5. One of the longest data retention regimes in Europe; currently pursuing legal action on this issue to ensure the government has the ability to uphold its retention regime

6. Planning Automatic Number Plate Recognition

7. Extensive data matching and use of unique identifiers

8. While the Garda are prohibited from collecting personal identification numbers from nationals, they may do so in relation to non-EU nationals

9. A public services card is being developed

10. No plans for fingerprints in biometric passports

Digital Rights Ireland report HERE on the ranking and make provision for emailing the Minister for Justice, Equality and Law Reform to query what he is doing on the issues raised.

THE HIGH COURT
2006 No. 3785P

Between

DIGITAL RIGHTS IRELAND LIMITED

Plaintiff

And

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

Defendants

20th December 2007

1. The High Court (Clarke J.) has adjourned the application of the Irish Human Rights Commission (seeking leave to be heard in the proceedings as amicus curiae) to 28th January 2008.

2. The Defendants have indicated they intend to challenge the locus standi of the Plaintiff to bring the proceedings. (Locus standi is a concept referring to the interest of the party or the right of the party to litigate the proceedings).

THE HIGH COURT
2006 No. 3785P

Between

DIGITAL RIGHTS IRELAND LIMITED

Plaintiff

And

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

Defendants

UPDATE (14/12/2007)

The Motion of the Irish Human Rights Commission for leave to appear as amicus curiae was adjourned to Monday 17th December 2007.

THE HIGH COURT
2006 No. 3785P

Between

DIGITAL RIGHTS IRELAND LIMITED

Plaintiff

And

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

Defendants

UPDATE

The Plaintiff has received notice from the Irish Human Rights Commission of the intention of the Commission to apply to the High Court by Motion on 10th December 2007 for liberty to appear as amicus curiae in the proceedings.