The Irish Challenge to the Data Retention Directive

Elaine Fahey, Dublin Institute of Technology

Document Type Conference Paper

SLS EU & Competition Section, 16th September 2008


This paper reflects on the background and merits of the forthcoming Irish challenge to the first pillar legal base of the Data Retention Directive in C-301/06 Ireland v. Council and European Parliament1 and attempts to place the case in a wider context, that of the relationship between Ireland and Europe. The paper considers, in particular, the nature of Irish practice with regard to litigating at European level and considers the low number of preliminary references from Irish courts to the Court of Justice and the historically low level of intervention of Government in cases before Court of Justice, despite the extraordinary composition of the Irish Supreme Court. Issues as to States litigating at European level and the “repeat player factor” in European litigation are analysed. The role that competence or legal base challenges plays in the dynamic of European relations is reflected on. The caselaw of the Court of Justice on competence and legal base generally has evolved considerably in recent times and the changes wrought by the Treaty of Lisbon are discussed briefly. The paper suggests that legal scholarship benefits from considering the dynamic between States and institutional actors before the Court of Justice and seeks to outline how legal scholarship could be enriched by drawing on political science themes in analysing challenges to the legal base of secondary Community law by Member State challenges.