Mr. Simon McGarr:

That is a core point. If it were the case that what Ireland had done was somehow very different from what Romania had done, then the finding of the European Court of Justice would have referred to this, given it is meant to be applicable to all nations in the EU, not merely in respect of one case, but in terms of setting principles beyond the particular facts of a case. When the former Minister, Deputy Noonan, was asked questions about this in the Dáil by Deputy Catherine Murphy, he presented the position that Ireland was different from Romania because our position was based on legislation and the Romanian transfer was not based on legislation. I thought that was a very surprising position for him to take given the judgment sets out what the Romanian legislation is. The judgment has a heading entitled "The Legislation" which sets out that legislation. There was controlling legislation, just as there is here. There was also an inter-agency protocol, as there is here between the Department of Social Protection and the Department of Public Expenditure and Reform, and we mirror that relationship very closely in the way that we handle that data sharing between Romania and here.

Even though the assertion was made in the Dáil that we were different because we had legislation and Romania did not, the judgment itself refers to the Romanian legislation, so there was no difference on that basis. Therefore, to meet that point, it is concerning that I find there are these positions that have been taken, not by Deputy Carey but by the State agencies, which appear to be based on either misreadings or misunderstandings as to the meaning of the legislation but also in respect of the actual facts in the judgment. As I said, the Romanian Government had a piece of legislation and we know this because the judgment goes into describing the terms of it, it quotes from it and it then sets out why that legislation was not sufficient, given there was also a protocol between the two agencies which dealt with the detail of what would be transferred, and so on. What we have is a piece of legislation and a separate protocol - a memorandum of understanding - which sets out exactly the same thing. In European law terms it is a data processing agreement. Therefore, we very much mirror the Romanian experience.