body: On 8 April 2014, the Court of Justice of the European Union (CJEU) [declared](http://curia.europa.eu/juris/document/document.jsf?text=&docid=150642&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=888650) the [2006/24/EC Data Retention Directive](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32006L0024) (DRD) invalid because it violated the rights guaranteed by Articles 7 & 8 of the [Charter of Fundamental Rights of the European Union](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012P/TXT). The CJEU's [press release (PDF link)](https://curia.europa.eu/jcms/upload/docs/application/pdf/2014-04/cp140054en.pdf) clarifies the retroactive effect of the invalidity in a footnote:
  
  
  
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  > Given that the Court has not limited the temporal effect of its judgment, the declaration of invalidity takes effect from the date on which the directive entered into force.
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  While the DRD entered into force in 2006, the Charter was only formally incorporated into the EU treaty framework on 1 December 2009. Though the Charter has existed since 2000, its legal status was [uncertain](https://en.wikipedia.org/wiki/Treaty_of_Lisbon#Fundamental_Rights_Charter) prior to incorporation.
  
  
  **How can the DRD be retroactively invalid prior to 1 December 2009 when the invalidity is based on the Charter incorporated on that date?**
  
  
  Trying to find the answer to this question led me down a number of related questions that may help, but I've not found a definitive answer to any:
  
  
  * Is the press release incorrect? When CJEU invalidates a statute without specifying date, does that really imply complete retroactivity? While this decision is silent about it, is there other case-law that might help here?
  * Has the Charter been determined to have legal force before its formal incorporation by the Treaty of Lisbon? Would that have been the presumably treaty-level force necessary to strike down a Directive?
  * Recital 22 of the DRD specifically cites compliance with Articles 7 & 8 of the Charter, but are recitals a sufficient basis for invalidating the Directive's substantive Articles? The CJEU decision quotes the recital, but doesn't explicitly make use of it in its *ratio decidendi*.
  
  
  
title: Is the invalidity of the Data Retention Directive completely retroactive and what are the implications w.r.t. the Charter of Fundamental Rights?