The European Court of Justice (ECJ) has dismissed a challenge by the Irish Government that the Data Retention Directive was adopted on an incorrect legal basis. The ruling means that new data retention obligations for Irish communications service providers are likely to be introduced later this year.

The Directive provides that Member States must adopt legislation requiring communications service providers to retain phone and internet usage records for between 6 and 24 months.

The Directive was adopted in January 2006 on the legal basis that its core objective is to improve the functioning of the internal market. The Irish Government argued that the Directive relates to police and judicial cooperation in criminal matters. The ECJ rejected Ireland’s challenge on the basis that the Directive is limited to the activities of communications service providers, that it does not govern access to data or the use of data by the police or judicial authorities of Member States and that it excludes issues which fall within the domain of police and judicial cooperation in criminal matters.

As a result of the decision, Ireland must now implement the Directive. Accordingly, a Bill to transpose the Directive, the Communications (Retention of Data) Bill, is expected to be published by mid 2009.

A separate challenge to the implementation of the Directive in Ireland by Digital Rights Ireland is currently before the High Court. Digital Rights Ireland, an organisation established to promote civil rights in the digital age, is challenging the Directive on the basis that that it infringes the rights to privacy and freedom of expression and is seeking that the case be referred to the ECJ.