Joined Cases C-201/15 and C-698/15
Thoughts about the nature and history of the ECJ and now the CJEU are inevitably prompted by the judgment delivered today by the Grand Chamber and its relationship to the Brexit process. The judgment is in the case concerning the compatibility of the Data Retention and Regulatory Powers Act (DRIPA) with EU law. The issues had been referred by the Court of Appeal in appeals from the Divisional Court judgment in judicial reviews brought by Peter Brice and Geoffrey Lewis; and by MPs Tom Watson and David Davies. The latter ceased to be a party to the case on becoming Secretary of State for Exiting the European Union. His willingness, before the referendum, to invoke the jurisdiction of the principal EU court in an attack on UK legislation undoubtedly felt a little uncomfortable before the referendum result. And of course a desire to escape from the jurisdiction of the CJEU now appears likely to be a major driver of the shape of Brexit, making the seeming irony greater.
The Court of Appeal reference was heard together, in Luxembourg, with one from Sweden. The Divisional Court had held that it was bound by an earlier CJEU judgment in Digital Rights (C-293/12 & C-594/12) to hold that certain aspects of DRIPA breached EU law. The Court of Appeal expressed doubts about this and made the Reference. The nature of the doubts entertained by the Court of Appeal can be summarised by saying that it did not accept that criticisms made by the CJEU of the Data Retention Directive amounted to mandatory requirements of EU law that had to be met by domestic as well as EU legislation.
The hearing of the References on 12th April in Luxembourg was a remarkable occasion for the Court. Normally, the oral stage of the procedure is short, with the total hearing over in something like an hour and a half. On this occasion, the Court sat for a very full day, not rising until well after 5 pm. The UK advocates were at one stage concerned about missing the last flight back to City Airport. The reason for the length of the hearing was the simple number and concerns of the parties and member states who wished to play a role. The Court was a Grand Chamber of 15 judges; in the UK litigation the Law Society and Open Rights Group and Privacy International intervened; the Commission made submissions; and there were contributions of some sort from 15 member states as well as the UK and Sweden. As explained briefly below, one effect of this wide representation was to illuminate the very different perspectives that different histories and culture brought to the sensitive area of privacy rights.
On 19th July 2016 the Advocate General delivered an Opinion essentially to the same effect as the Divisional Court judgment. His comments during the course of the hearing, and indeed questions for the UK Government, had suggested to me a sympathy with the perspective that the Court in Digital Rights had indeed meant precisely what it said – and the same can be said about observations made by some of the judges, in particular the President.
The Grand Chamber of the CJEU has now confirmed the approach. In marked contrast with comments made by the Court of Appeal during argument and the doubts expressed in its judgment, the CJEU has held:-
(i) That the mass retention of data can only be justified in the interests of fighting serious crime
(ii) That access can as a general rule only be granted to the data of individuals suspected of planning, committing or having committed a serious crime or being implicated in such a crime; although in terrorist situations access to the data of other persons might be granted (see paragraph 119) and
(iii) Access to the data should be subject to prior authorisation either by a court or by an independent administrative body except in cases of “validly established” urgency (see paragraph 120).
Having watched the hearing in action, it does seem to me that the firmness of these conclusions, in contrast to the approach of the Court of Appeal, arose because of different cultural and historical perspectives the diverse participants in the hearing brought to it. In London, the Court had been sympathetic to an apparently forceful perspective urged by the government to the effect that the initial retention of data had to be wide and go beyond the data of those known to be criminals, since one could not know in advance what data would be relevant, what might indeed establish innocence or help discover the whereabouts of a missing person. But in Luxembourg the CJEU appears to have firmly set its face against this line of thought. As it explained in paragraph 104 of the judgment, the effect of an indiscriminate approach is to make retention the rule “whereas the system put in place by [the e-privacy Directive] requires the retention of data to be the exception.”
One does not to reflect much about even relatively recent history – say of East Germany and the Stasi – to understand a deep suspicion and concern that would have been felt by many in that Luxembourg courtroom about mass surveillance.
Many on the leave side of the argument think of the CJEU court as profoundly undemocratic. It has undoubtedly had its problems. Some will consider that this particular judgment is misconceived. But it is also possible to feel a real sadness about the demise, in UK cultural life, of one of the forums in which diverse traditions are brought together to forge common solutions.