Interpretation of the Directive on Privacy and Electronic Communications (Directive 2002/58/EC) as amended by Directive 2009/136/EC.

In this judgement, (which came from a request for a preliminary ruling from the Provincial Court, Tarragona, Spain), the Court confirmed that national authorities’ access, in connection with a criminal investigation, to personal data retained by providers of electronic communications services comes within the scope of the directive. Also, access to data for the purpose of identifying the owners of SIM cards activated with a stolen mobile telephone, such as surnames, forenames and if required addresses, constitutes an interference with their fundamental rights enshrined in the Charter of Fundamental Rights of the European Union (articles 8 and 9). Notwithstanding this, the Court ruled that this interference is not sufficiently serious to entail access being restricted to the Spanish police in the area of prevention, investigation, detection and prosecution of criminal offences, to the objective of fighting serious crime.

In essence, the Court stated that it was permissible for the Spanish Police to have access to the requested data as this was not a ‘serious’ interference with the fundamental rights of the persons whose data is concerned as the data requested (surname, forename etc.) did not allow precise conclusions to be drawn in respect of their private lives. The access to data was justified by the objective of preventing, investigating, detecting and prosecuting ‘criminal offences’ generally, without it being necessary that those offences be defined as ‘serious’. Hence the ‘serious’ threshold need not be reached in order to justify access to such limited data so long as the purpose for the access to such data was to prevent, investigate, detect or prosecute a criminal offence.

The earlier joined cases of C-203/15 and C-698/15 (‘Tele2 Sverige and Watson) can be distinguished from this case. In these cases, the Court ruled that only the objective of fighting serious crime permitted public authorities to gain access to a wider amount of data which when taken as a whole could allow precise conclusions to be drawn by the authorities as regards the private lives of the persons whose data is concerned. A proportionality test was applied. Such precise conclusions about their private lives could not be gained by the authorities in the present case because only a limited amount of data was requested.

 

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