No basis for finding the Logging Order to be invalid

Case no. BS-26847/2021-HJR
Judgment delivered on Wednesday 30 March 2022

Foreningen imod Ulovlig Logning (The Association Against Illegal Surveillance)
vs.
Nick Hækkerup, Minister for Justice, the Ministry of Justice

The 2006 Logging Order contained, among other things, provisions on the duty of telecommunications organisations to log certain information about their users’ telecommunications for use in criminal cases.

According to the Association Against Illegal Surveillance, the Logging Order was in conflict with EU law and the European Convention on Human Rights.

The case concerned two main issues: Firstly, whether the Logging Order was fully or partly invalid or inapplicable, and secondly, whether the Ministry of Justice had failed to fulfil its duty to bring the Danish logging rules in compliance with EU law as quickly as possible.

As regards the first main issue, the Supreme Court held that there was no basis for holding that the Logging Order – or certain provisions of the Order – was generally and universally invalid/inapplicable irrespective of the circumstances. The Court noted in this connection that Danish courts can make a finding that the Logging Order is invalid/inapplicable in respect of specific legal matters, to the extent that application of the Order would be contrary to EU law or the European Convention on Human Rights. Against this background, the Court dismissed the claims against the Ministry of Justice for invalidity and inapplicability.

In response to the second main issue, the Supreme Court held that the Association had no legal interest in bringing an action concerning this issue. The Supreme Court gave importance to the fact that the claim concerned only circumstances that could possibly be put forward in support of a hypothetical claim that had not been raised, and that examining such claim would not in itself have any bearing on the Association’s legal rights.

The High Court had reached the same conclusion.