Data retention directive "invalid"

[Francis Davey]

2014-04-08 16:52 GMT+01:00 Roland Perry <lists at internetpolicyagency.com>:

> From another list:
>
> "There is no automatic annulment of the national legislation on data
> retention, it is up to the member states to abrogate or modify their
> rules"
>
> <http://radiobruxelleslibera.wordpress.com/2014/04/08/the-annulment-of-
> the-data-retention-directive-and-the-messy-consequences-on-national-
> legislations/>
>

But uninteresting to our discussion. It is discussing whether _as a matter
of EU law_ transposition measures are void after the finding of invalidity
of a directive they transpose.

But the effect of UK or English law is likely to be more important. This is
because the regulations were made under s.2(2) powers. As far as I can see
this means that the invalidity of the directive means that the regulations
are invalid ab initio. If (on the other hand) the rules on data retention
had been made by UK Act of Parliament, then they would not have depended on
a directive to be valid and so would not be void in the same way.

(Of course - and this is a different discussion - the UK might be prevented
by other laws, such as the data protection directive or the CFR, from
passing such an Act and then it might be possible to have it disapplied
under the Factortame principle).

Someone pointed me to: http://dare.uva.nl/document/102647 which comes to
the same conclusion.

-- 
Francis Davey
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