THE GOVERNMENT has lost the first round of a legal battle to overturn an EU law forcing member states to collect phone and internet records to fight terrorism.
The advocate general of the European Court of Justice (ECJ) said yesterday Ireland was wrong to contend that the data retention directive had been created under the wrong legal base - in essence that Ministers did not have a legal competence to pass the legislation which, Dublin said, should have been dealt with as an intergovernmental agreement.
The Government had argued the directive should not have been passed into law through the normal co-decision procedure because it dealt with police and judicial co-operation. It wanted the law to be agreed by national governments without the scrutiny of MEPs or the ECJ, which could hold governments to account.
But advocate general Yves Bot advised the court to dismiss Ireland's action because the directive was correctly adopted under the right legal procedure, as it didn't contain any provision relating to police and judicial co-operation in criminal matters.
Ireland has introduced a more draconian national law forcing telephone companies to store phone, internet and e-mail records of subscribers for three years. It may have to amend this law to comply with the EU directive, which sets a time period of between six and 18 months, if the advocate general's opinion is carried by Europe's highest court.
If the ECJ sides with Ireland the EU directive would be overturned, forcing a rethink of anti-terrorism laws. The ECJ follows the advocate general's opinion in about 80 per cent of cases.
The data retention directive aims to harmonise law in all 27 EU member states. It was promoted by Britain during its presidency of the EU in the second half of 2006 as the best practical way to fight terrorism and serious crime.
Britain argued that police forces needed to have ready access to a record of who contacted whom, and the time and location of calls.
Labour MEP Proinsias De Rossa described the advocate general's opinion as a major victory for democratic and transparent decision-making.
"The Government took this legal challenge in 2006 because it did not want the EU directive to be subject to amendment and approval by MEPs and to judicial review by the ECJ," he said.
"Ireland already has one of the most restrictive data retention regimes in Europe and, in 2004, alongside its British, French and Swedish counterparts, it sought to extend this policy to Europe as a whole through an intergovernmental decision. Such a measure would have left all decision-making in the hands of Ministers, with no role for MEPs, and no judicial review by the ECJ," he added.
Slovakia was the only other EU country to support Ireland in the case at the ECJ. Former minister for justice Michael McDowell took the legal case fearing it could set a precedent whereby other police and judicial legislation could be introduced via the co-decision procedure at EU level.