Graham Dwyer’s route to the European Court of Justice

Our previous updates on this case have outlined the background which involved mobile phone records being admitted at Mr. Dwyer’s trial for murder. Civil proceedings before the High Court challenged the validity of a number of provisions of the Communications (Retention of Data) Act 2011, with the court delivering its judgement on the 6th of December 2018 and ruling that sections of the 2011 Act were incompatible with EU Law.

The state appealed the High Court judgement to the Supreme Court and that Court referred a number of questions to the European Court of Justice (ECJ) for a preliminary ruling. Written observations were lodged with the ECJ by the Belgian, Czech, Cypriot, Danish, Spanish, Estonian, Finnish, French, Netherlands, Polish, Portuguese and Swedish Governments and the European Commission. The Advocate General also dealt with two other cases along with the Irish case. The combined questions are summarised as:

· the lawfulness of a scheme of general and indiscriminate retention of data, of itself and in connection with the fight against serious crime

· the features required, where appropriate, of access to retained data

· the possible temporal limitation of the effects of any declaration of incompatibility with EU law of the national legislation in this field

Opinion of the Advocate General

In his Opinion, delivered on 18th November 2021, Advocate General Manuel Campos Sánchez-Bordona expressed the view that all those questions were answered in full in previous judgements, in particular, in La Quadrature du Net (6 October 2020)and o Prokuratuur (2 March 2021). He reiterated that the general and indiscriminate retention of traffic and location data relating to electronic communications is permitted only in the event of a serious threat to national security. He also emphasised, as in the judgment in La Quadrature du Net, that a national court cannot limit in time the effects of a declaration of illegality of domestic legislation incompatible with EU law.

What does this mean?

The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case.

Judgment by the ECJ will be given at a later date.

Source:

The Opinion of Advocate General Campos Santes-Bordona (18 November, 2021) can be found here.

The Court of Justice of the European Union PRESS RELEASE No 206/21can be found here.