The High Court has refused Digital Rights Ireland Limited’s application to have European Union law issues in its data-retention challenge tried as a preliminary matter. It also refused the company’s alternative request for a reference to the Court of Justice of the European Union (CJEU).
In a judgment delivered on 19 July 2017, Ms Justice Costello said the applications concerned how the case should proceed, not the merits of the challenge. She made no finding on whether the Irish data-retention legislation was valid.
Digital Rights Ireland alleges that the defendants unlawfully controlled, processed and stored communications data relating to the company, its members and other mobile phone users. The proceedings began in 2006 and have since been amended to reflect changes in legislation, including the Communications (Retention of Data) Act 2011.
The company argued that CJEU decisions in Digital Rights Ireland and Tele2/Watson established that indiscriminate data retention was prohibited and that Irish law failed to meet EU law requirements. It sought a preliminary trial of the EU law issues or, alternatively, a CJEU ruling on the validity of domestic legislation requiring retention beyond telecommunications providers’ commercial needs.
The defendants opposed a separate preliminary trial. They said the relevant facts were not agreed and that they intended to present evidence, including on the necessity and proportionality of the measures, how access requests were handled, and what data providers retained for commercial reasons. They also argued that the proposed issue was not precisely defined and overlapped with other legal and factual questions in the case.
Justice Costello concluded that the case could not properly be decided without evidence. She also found that the proposed preliminary issue was insufficiently precise, would not dispose of the remaining claims, and was unlikely to save time or costs. The company had accepted that a further hearing would still be required even if it succeeded on the preliminary issue.
The judge said a CJEU reference might be considered by the trial judge after relevant evidence had been heard, if clarification proved necessary. At this stage, she was not satisfied that a reference was required to decide the proceedings. She refused the reliefs sought and dismissed the notice of motion. The underlying challenge remained for later determination.