“One final issue relates to the judicial relationship between Strasbourg and Luxembourg. Despite emphasising that the ECHR is not part of EU law, the Court relies on two recent cases from the ECtHR, perhaps seeking to emphasis the consistency in this area between the two courts – or perhaps seeking to put pressure on Strasbourg to hold the line as it faces a number of state surveillance cases on its own docket, many against the UK. The position of Strasbourg is significant for the UK. While many assume that the UK will maintain the GDPR after Brexit in the interests of ensuring equivalence, it could be that the EUCFR will no longer be applicable in the UK post-Brexit. For UK citizens, the ECHR then is the only route to challenge state intrusion into privacy. For those in the EU, data transfers to the UK post-Brexit could be challenged on the basis that the UK’s law is not sufficiently adequate compared to EU standards. This ruling – and the UK’s response to it, if any – could be a significant element in arguing that issue.”
The 21 December 2016 judgment in these important cases concerns the acceptability from a human rights perspective of national data retention legislation maintained even after the striking down of the Data Retention Directive in Digital Rights Ireland (Case C-293/12 and 594/12) (“DRI”) for being a disproportionate interference with the rights contained in Articles 7 and 8 EU Charter of Fundamental Rights (EUCFR).
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