Digital Signature Lawfulness for Funeral Leave Policy in European Union

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foreign [Music] [Music] [Music] hi everyone and welcome to this podcast that would be dedicated to the ruling digital rights Island Section 3 deals with European criminal law in our seminars in our conferences we cover topics such as traveling human beings fight against cyber crime money laundering defense rights victims rights so on so forth in 2022 era turns 30. and to Mark its 30th Anniversary we thought of launching a very special podcast Series 30 years of era thirsty cases of the court of justice of the European Union in this podcast as I said we will focus on the ruling digital rights Ireland ruling of April 2014 where the court of justice in Luxembourg invalidated unknown the EU data retention directive of 2006 which required private providers to retain or a considerable period electronic communication metadata for law enforcement purposes the court considered that such that retention obligations went beyond what was strictly necessary and violating the charter of fundamental rights of the European Union in many member states having a National Data retention regime this has now been challenged before the respective constitutional courts in this podcast we will scrutinize the significance of these Landmark judgment and we will do so by asking few key questions to David fennelin Irish Barrister and assistant professor School of Law Trinity College Dublin enjoy the podcast laviero thank you so much for the invitation to join you for this podcast um it's a pleasure to participate in this particular um program before answering your questions I should say at the outset that digital rights Ireland is a case in which I was involved as Council on behalf of Ireland and indeed I've been involved in a number of the subsequent cases that followed at digital rights Ireland so I'd be limited and careful in what I say in that regard today and I'm speaking today in a purely personal capacity and I won't address any of the pending litigation but let's talk about digital rights Ireland and in particular your first question as to why this judgment is important and digital rights Ireland really is a landmark in the development of EU law in the era of the charter the charter as you know took effect um full legal effect in 2009 with the coming into force of the Lisbon treaty and in the Judgment of digital rights Ireland we really see the impact of this new legal effect of the charter in that judgment the court examined the validity of the data retention directive this directive obliged member states to require telecommunications service providers to retain telecommunications metadata that is the subscriber traffic and location data not importantly the content of electronic communications so that this data would be available if required in appropriate cases for the purposes of fighting serious crime including terrorism and in the Court's Judgment of the age of April 2014 the court examines the validity of that directive by reference to the Charter of fundamental rights the court recognized that data retention served an important public interest in the fight against serious crime but it considered that the directive in the form it had been adopted constituted a very serious and far-reaching interference with fundamental rights and for that reason the court said that it had to assess the directive in a very strict Manner and the discretion of the EU legislature was limited and looking at this directives the court said because of its generalized nature and because of the absence of appropriate safeguards built into the directive in respect of access to telecommunications data the directive constituted a disproportionate interference with the rights to privacy and data protection guaranteed under article 7 and 8 of the charter fundamental rights and on that basis the court of justice declared the directive invalid now while in a number of earlier cases the court had stripped down individual provisions of EU legislation by reference to the Charter Digital rights Ireland was the first case in which the court of justice struck down an entire directive an entire piece of EU legislation on the basis of the charter rights and for that reason it represents a landmark in the development of EU constitutional law and in later years we've seen some of the implications of that and status of the digital rights Ireland judgment so laviero in digital rights Ireland what we see is a particularly robust interpretation of the charter fundamental rights and the digital rights Ireland judgment has been cited regularly in the Court's subsequent case law and indeed by national courts in the area of EU law not only in the area of data privacy and so on but also far beyond that what is significant about digital rights Ireland for the development of EU law and EU fundamental rights law I would say is that in that judgment the court applies a very strict standard of review or scrutiny of EU measures which interfere with the rights to privacy and data protection now that's saying strict scrutiny is not necessarily evidence evident across the board when we see how the court approaches the charter of fundamental rights but it is represents I would say the high point of the Court's Charter fundamental rights jurisprudence and it's been an area which the court itself has laid particular emphasis in um over the past decade and so to give you one high profile example of the effect of um digital rights Ireland and its contribution to the development of EU law Beyond data retention if we look at the area of international data transfers we see that contribution in a very Vivid and dramatic way following the Court's judgment in digital rights Ireland in a number of references from the Irish courts the court of justice has been called upon to examine the validity of EU U.S data transfer Arrangements in the shremes 1 and trim's two cases and in the Court's judgments in those cases we see the court applying the same very strict standard of review um in assessing the commission decisions allowing such transfers and many of the same substantive principles and safeguards that are recognized explicitly in the digital rights Ireland being employed in this context and in those judgments the court invalidated first the Safe Harbor judgment in transform and secondly the Privacy Shield decision um in in shrem's too by reference to the same Charter fundamental rights Provisions that it relied upon in digital rights Ireland so that's just an example of that broader contribution and impact of the judgment on EU law more generally it's been one of the Striking features of the Court's jurisprudence under the charter fundamental rights turning then more specifically to the development of EU criminal justice that's a slightly more complicated story because the data retention directive even though it intervened in the field of Criminal Justice in a significant way was in fact an internal Market measure it was adopted under what was then article 95 of the treaty on the European communities but the directive and it's striking down have had serious implications for law enforcement and this has indeed led to a series of further references from National courts in the wake of the digital rights Ireland judgment seeking to tease out the effects of the Court's case law for National legislation and by extension National criminal proceedings and this brings us to one of the really interesting elements of the judgment and its afterlife if we can call it like that how does EU law and EU constitutional law manage or address the consequences of an entire piece of legislation an entire directive being struck down and because digital rights Ireland is the first time we see this happen it is also the first um case in which we see the implications of that fully being teased out and that indeed is an ongoing process What's significant in this regard is directives by their very nature require National Implement implementing or transposing measures in order to take effect in member state legal systems so the process of working out the consequences of the invalidity of directive are much more complicated than say would be the case in um in respect of the Striking down of a regulation which might be directly applicable and one practical implication when this touches on the area of Criminal Justice is what happens to ongoing criminal investigations and prosecutions and proceedings and in the context of data retention this has raised the question of evidence which is obtained under National legislation adopted in order to comply with the directives can that evidence which might be very significant in the investigation or prosecution of a particular serious crime be relied upon um in the proceedings in the trial criminal trial against the particular accused individual and the court of justice has addressed that to a certain extent so far and has been asked to address it further in some later cases and this is an issue of major importance and sensitivity it shows how measures such as the data retention directives can have a very significant and unforeseen impact in the field of Criminal Justice and it shows how the field of Criminal Justice in EU law is developing not only true measures directly adopted under the relevant treaty Provisions but also indirectly or more obliquely in ways such as this including through the very real impact of the charter of fundamental rights so laviero I've already touched a little bit upon the impact of the Judgment the digital rights Ireland and in your third question you've asked me what's its Major Impact being has it been forgotten has it been praised further developed or overturned and what can certainly be said is that the Judgment in digital rights Ireland has not been forgotten it has been widely recognized as a landmark as an important affirmation of the rights to privacy and data protection rights which have really come center stage in recent years so first and foremost the major impact of the Judgment has of course in a very direct way being in the field of data retention and I'll discuss that a little bit further in a few minutes but the impact of the Judgment extends far beyond this it is a critical reference point in the fields of privacy and data protection in Europe more generally and in the era of the gdpr with increased attention on data protection and privacy this is more important than ever so many of the substantive principles lay down in the digital rights Ireland judgments particularly regarding safeguards that are appropriate for data processing are of a much wider relevance Beyond data retention itself the considerations underpinning the Court's judgment are also relevant for the development for example of major databases which might be developed including in the fields of law enforcement so this is a very significant impact of the judgments Beyond its strict terms beyond the assessment of the data retention directive itself and more broadly the very strict approach to the assessment of limitations on the right to privacy and data protection affects how data Protection Law operates on a day-to-day level across the union and Beyond and that arguably is the real impact of the Judgment in digital rights Ireland some of the overarching principles that are rooted in the rights to privacy and data protection under the charter of fundamental rights affects all we do with personal data that falls within the scope of EU law whether it's under the gdpr whether it's under the law enforcement uh directive regime or otherwise so following the stroking down of the data retention directive and digital rights Ireland have been a long series of further references from National courts seeking to explore the implications of that judgment for National Data retention and access legislation with the data retention directive gone the focus turned to Article 15 of the e-privacy directive the only other provision of the EU law which addressed data retention this allowed member states to restrict the rights and obligations under the e-privacy directive for important public interest objectives such as safeguarding National Security fighting crime and so on but always subject to the proportionality and compatibility with fundamental rights and in the case law that has followed digital rights Ireland the court has been asked essentially whether National rules comply with this provision and a series of issues have Arisen in this regard first of all there have been issues about the scope of the E privacy directive and the extent to which it extends into the fields of criminal law and national security which one under one of its earlier Provisions are said to fall outside its scope but the court in its judgments in Terry II and privacy International and quadrature Nash has very clearly said that the national rules in this area where they require the Telecommunications service providers to retain the relevant telecommunications metadata do indeed fall within the scope of EU law and they're not excluded from the scope of EU law by reason of the fact that they may be used for national security purposes and so on so this is very important when it comes to the competence of the union and raises broader constitutional questions about the division of competence between the union and the member states but for the present purposes the court has answered those questions very clearly in that respect that brings us to the substantive compliance of national legislation with a Euro and two major sets of issues arise in this regard the first dealing with the model of data retention is permissible or not under EU law and the second dealing with the safeguards that must attach to any data retention or access regime so let's take those in turn first what model of data attention if Annie is permissible as a matter of EU law and this was the subject of the Court's judgment in of the 21st of December 2016 in Telly to Watson references from the Swedish and the UK courts and in this judgment in this case the court said that while EU law precluded any generalized retention of telecommunications metadata but it's described as the general and indiscriminate retention of such data EU law did not preclude the targeted retention of telecommunications metadata whether that be by reference to geographical temporal or other factors now there the court is laying down a very specific solution or proposed model for data retention but it says could be compatible with Article 15 of the e-premacy directive the complication is that that model proposed by the court has been said by some not to be workable or effective in practice so for example the French consider last year in its ruling of the 21st of April 2021 said very clearly that a model of targeted retention would not simply not be effective for fighting serious crime or safeguarding national security the Irish Supreme Court reached a similar decision in a case which it subsequently referred to the court of justice and which is pending before the court and we knit the Court's later Judgment of October 2020 um in quadrature dunette and others the court maintained its position that only targeted retention um would be permissible in the context of the fight of Syria against serious crime however it said that in the context of the safeguarding National Security General retention could be permissible but subject to very strict conditions being satisfied so we see some development and Nuance in the case law but nonetheless a significant problem that remains there at least when it comes to the fight against serious crime and that's the subject of ongoing litigation before the court of justice and we await the further judgments of the court of justice on that issue so that's the first issue relating to the model of data retention the second issue then goes to the safeguards that must attach to any data retention and access regime and one of the strong points of the digital rights Ireland judgment was of course in articulating these safeguards that must be in place for example a requirement of Prior review of access by an independent administrative Authority or a court before the law enforcement authorities could access retained data and the court in its subsequent jurisprudence from Telly to operative quadrature to Nash and more recently Preparatory has affirmed and reaffirmed these principles and these safeguards and indeed developed them and Amplified them in certain respects in response to further questions from the national court so that's what we've seen in the developments in the case law and since digital rights Ireland so the developments in the Court's case law are also relevant for the developments in EU law more generally and what's striking in this field is that some many years on from the judgment and digital rights Ireland we have still not seen a full legislative response to the court of Justice's jurisprudence so for its part the EU legislature has not proposed any revised legislation which would be fully compatible with the Court's case law similarly at the national legislation while there have been many developments many proposals for new legislation many revised pieces of legislation adopted and so on nonetheless there remains this broader question as to whether any of the legislative models fully satisfy the requirements of the court of justice is case law and that comes back to the points I mentioned earlier in terms of the model that's been prescribed by the court in its jurisprudence particularly in its tele-2 and quadrature the next jurisprudence because in light of uh assessments such as that by the French Consulate the question arises as to whether any legislation could be enacted that would provide for an effective data retention regime that would be fully compatible with that model of targeted retention that's been proposed by the court so that's created a significant difficulty on the legislative side in the response to the Court's judgment and that's something that's the subject of ongoing litigation and debate indeed before parliaments as well as before National courts and I think in the coming years we'll see further developments and in that regard but it attests to the landmark stages of the digital rights Ireland judgment and the fact that its implications remain very relevant today and indeed remain to be fully worked out and even to this day so finally in one sentence what is to be learned from this case well in essence it is that the charter matters and the charger matters particularly in the protection of privacy and personal data in the digital age so laviero thank you so much for the invitation to join you for this podcast it's been a pleasure to participate and I look forward to joining you soon for another uh event at the Academy thank you