Data retention directive "invalid"

[Caspar Bowden (lists)]

On 08/04/14 19:06, Francis Davey wrote:
>
> 2014-04-08 16:52 GMT+01:00 Roland Perry 
> <lists at internetpolicyagency.com <mailto: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/
>     <http://radiobruxelleslibera.wordpress.com/2014/04/08/the-annulment-of-%0Athe-data-retention-directive-and-the-messy-consequences-on-national-%0Alegislations/>>
>
>
> 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.

This likely relevant but not a quick or easy read

https://www.whatdotheyknow.com/request/qcs_opinion_on_data_retention_in

Caspar
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