Citizens' rights

Case number

C-650/13

Case name

Delvigne

Document

Judgment ECLI:EU:C:2015:648

Date

06/10/2015

Source of the question referred for a preliminary ruling

Tribunal d’instance de Bordeaux (France)

Name of the parties

Thierry Delvigne v Commune de Lesparre Médoc and Préfet de la Gironde

Subject matter

Citizenship of the Union; right to vote

Key words

Delvigne - Charter of Fundamental Rights of the European Union - European Parliament - Elections - Right to vote - Citizenship of the European Union - Retroactive effect of the more lenient criminal law - National legislation providing for the deprivation of the right to vote in the case of a criminal conviction by a final judgment delivered before 1 March 1994

Question referred for a preliminary ruling

‘(1)      Is Article 49 of the Charter … to be interpreted as preventing a provision of national law from maintaining a ban, which, moreover, is indefinite and disproportionate, on allowing persons convicted before the entry into force of a more lenient criminal law, namely, Law No 94-89 of 1 February 1994, to receive a lighter penalty?

(2)      Is Article 39 of the Charter …, applicable to elections to the European Parliament, to be interpreted as precluding the Member States of the European Union from making provision for a general, indefinite and automatic ban on exercising civil and political rights, in order to avoid creating any inequality of treatment between nationals of the Member States?’

Decision

Article 39(2) and the last sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, which excludes, by operation of law, from those entitled to vote in elections to the European Parliament persons who, like the applicant in the main proceedings, were convicted of a serious crime and whose conviction became final before 1 March 1994.

Case number

C-673/20

Case name

Préfet du Gers and Institut national de la statistique and des études économiques

Document

Judgment ECLI:EU:C:2022:449

Date

09/06/2022

Source of the question referred for a preliminary ruling

Tribunal judiciaire d’Auch (Court of Auch, France)

Name of the parties

EP v Préfet du Gers, Institut national de la statistique et des études économiques (INSEE), interested party Maire de Thoux

Subject matter

Union citizenship; removal from the electoral roll

Key words

EP – Citizenship of the Union – National of the United Kingdom of Great Britain and Northern Ireland residing in a Member State – Right to vote and to stand as a candidate in municipal elections in the Member State of residence –Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community – Consequences of the withdrawal of a Member State from the Union – Removal from the electoral roll in the Member State of residence – Validity of Decision (EU) 2020/135

Question referred for a preliminary ruling

‘(1)      Must Article 50 [TEU] and the [Withdrawal Agreement] be interpreted as revoking the [Union] citizenship of [United Kingdom] nationals who, before the end of the transition period, have exercised their right to freedom of movement and freedom to settle freely in the territory of another Member State, in particular for those who have lived in the territory of another Member State for more than 15 years and are subject to the [United Kingdom] 15-year rule, thus depriving them of any right to vote.

(2)      If so, is the combination of Articles 2, 3, 10, 12 and 127 of the Withdrawal Agreement, recital 6 of its preamble, and Articles 18, 20 and 21 [TFEU] to be regarded as having allowed those [United Kingdom] nationals to retain, without exception, the rights to EU citizenship which they enjoyed before the withdrawal of their country from the European Union?

(3)      If the answer to Question 2 is in the negative, is the Withdrawal Agreement not invalid in part in so far as it infringes the principles underlying EU identity, and, in particular, Articles 18, 20 and 21 [TFEU], and also Articles 39 and [40] of [the Charter], and does it not infringe the principle of proportionality, in that it contains no provision permitting them to retain those rights without exception?

(4)      In any event, is Article 127(1)(b) of the Withdrawal Agreement not invalid in part in so far as it infringes Articles 18, 20 and 21 [TFEU], and also Articles 39 and 40 of [the Charter], in that it deprives Union citizens who have exercised their right to freedom of movement and freedom to settle freely in the United Kingdom of the right to vote and to stand as candidates in municipal elections in that country and, if the General Court and the Court of Justice interpret them in the same way as the Conseil d’État (Council of State, France), does that infringement not extend to [United Kingdom] nationals who have exercised their freedom of movement and their freedom to settle freely in the territory of another Member State for more than 15 years and are subject to the [United Kingdom] 15-year rule, thus depriving them of any right to vote?’

Decision

1.      Articles 9 and 50 TEU and Articles 20 to 22 TFEU, read in conjunction with the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, which was adopted on 17 October 2019 and entered into force on 1 February 2020, must be interpreted as meaning that, as of the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union, on 1 February 2020, nationals of that State who exercised their right to reside in a Member State before the end of the transition period no longer enjoy the status of citizen of the Union, nor, more specifically, by virtue of Article 20(2)(b) TFEU and Article 22 TFEU, the right to vote and to stand as a candidate in municipal elections in their Member State of residence, including where they are also deprived, by virtue of the law of the State of which they are nationals, of the right to vote in elections held by that State.

2.      The examination of the third and fourth questions referred for a preliminary ruling has not revealed any factor capable of affecting the validity of Council Decision (EU) 2020/135 of 30 January 2020 on the conclusion of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community.

Case number

C-113/19

Case name

Luxaviation

Document

Order ECLI:EU:C:2020:228

Date

26/03/2020

Source of the question referred for a preliminary ruling

Cour administrative (Higher Administrative Court, Luxembourg)

Name of the parties

Luxaviation SA v Ministre de l'Environnement

Subject matter

Environment; pollution; surrender of 2015 CO2 emission allowances

Key words

Luxaviation - Environment - Scheme for greenhouse gas emission allowance trading - Directive 2003/87/EC - Penalty for excess emissions - No exculpatory cause in the event of actual holding of non-surrendered allowances, unless force majeure - No possibility of varying the amount of the penalty - Proportionality - Principle of the protection of legitimate expectations

Question referred for a preliminary ruling

‘(1)      Is Article 12(3) of Directive 2003/87, which provides that Member States must ensure the surrender by their operators of the allowances issued, to be interpreted, in conjunction with Article 41 of the [Charter of Fundamental Rights of the European Union (‘the Charter’)], which enshrines the principle of sound administration, as requiring the competent national authority to carry out individual monitoring of surrender obligations, before the deadline of 30 April of the year concerned, where that same administration is responsible for monitoring a small number of operators, in this case 25 operators at national level?

(2)      (a)      Should it be considered that an incomplete allowance surrender operation, like the one in the present case, in which the operator relied on the receipt of electronic confirmation that the transfer procedure had been finalised, could reasonably have generated in the mind of the operator acting in good faith a legitimate expectation that it had completed the surrender operation provided for in Article 6(2)(e) of Directive 2003/87?

(b)      Bearing in mind the answer given to the second question, can the legitimacy of that expectation be presumed to be more firmly established in the mind of an operator acting in good faith if, during the previous surrender, it was voluntarily contacted by the national administration in order to remind it, a few days before expiry of the time limits laid down in Article 6(2)(e) of Directive 2003/87, that the allowance surrender procedure had not yet been completed, thereby allowing that operator reasonably to assume that it had met its surrender obligations for the current year in the absence of any direct contact by that same administration the following year?

(c)      In the light of the answers given to the two previous questions, whether analysed individually or together, can the principle of protection of legitimate expectations be interpreted as constituting a case of force majeure partially or wholly exempting the operator acting in good faith from the penalty provided for in Article 16(3) of Directive 2003/87?

(3)      (a)      Does Article 49(3) of the Charter, which enshrines the principle of proportionality, preclude the fixing of a flat-rate fine to penalise non-surrender of emissions allowances, as provided for in Article 16(3) of Directive 2003/87, where that provision does not allow the imposition of a penalty proportionate to the infringement committed by the operator?

(b)      If the answer to the previous question is in the negative, must the principle of equal treatment enshrined in Article 20 of the Charter, the general principle of good faith and the principle “fraus omnia corrumpit” be interpreted as precluding - as regards the flat-rate penalty to be imposed pursuant to Article 16(3) of Directive 2003/87, to which the publication provided for in Article 20(7) [of the Law of 23 December 2004] is automatically added - an operator acting in good faith, which is simply negligent and which furthermore believed that it had fulfilled its obligations to surrender emissions allowances by the relevant deadline of 30 April, from being treated in the same way as an operator which behaved fraudulently?

(c)      If the answer to the previous question is in the negative, is the application of the flat-rate penalty, without any possibility of a variation by the national court, other than in cases of force majeure, [and] the automatic penalty of publication consistent with Article 47 of the Charter, which guarantees the existence of an effective remedy?

(d)      If the answer to the previous question is in the negative, is it the case that the ratification of a financial penalty fixed on the basis of the EU legislature’s intention thus expressed [and] the automatic penalty of publication, without the involvement of the principle of proportionality, except in the case of force majeure as strictly interpreted, amounts to an abdication by the national court before the supposed intention of the EU legislature and to an improper lack of judicial review in the light of Article 47 and Article 49(3) of the Charter?

(e)      Bearing in mind the answer given to the previous question, is it the case that the lack of judicial review by the national court of the flat-rate penalty provided for in Article 16(3) of Directive 2003/87 [and] the automatic penalty of publication provided for in Article 20(7) [of the Law of 23 December 2004] amounts to shutting off essentially fruitful channels of communication between the [Court] and the national Supreme Courts under the influence of a pre-determined solution endorsed by the [Court], except in the case of force majeure as strictly viewed, which means that the national Supreme Court, which can only ratify the penalty once it is deemed that force majeure has not been established, is unable to enter into an effective dialogue?

(4)      Bearing in mind the answers given to the previous questions, can the concept of force majeure be interpreted as taking into account the individual hardship of an operator acting in good faith where payment of the flat-rate penalty provided for in Article 16(3) of Directive 2003/87 [and] the automatic penalty of publication provided for in Article 20(7) [of the Law of 23 December 2004] constitute a considerable financial risk and loss of credit which could lead to its staff being made redundant or even bankruptcy?’

Decision

1.      Articles 20 and 47 and Article 49(3) of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding there being no possibility for the flat-rate penalty provided for in Article 16(3) of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009, to be varied by a national court.

2.      Article 41 of the Charter of Fundamental Rights of the European Union must be interpreted as not applying to the issue of whether it is obligatory for Member States, and not merely optional for them, to introduce warning, reminder and advance-surrender mechanisms allowing operators acting in good faith to be fully informed of their surrender obligation and thus not to run any risk of a penalty under Article 16(3) of Directive 2003/87, as amended by Directive 2009/29.

3.      The principle of the protection of legitimate expectations must be interpreted as not precluding the imposition of the penalty provided for in Article 16(3) of Directive 2003/87, as amended by Directive 2009/29, in a situation where the competent authorities did not warn the operator prior to the expiry of the time limit for surrender, whereas they had done so, without being obliged to, the previous year.

4.      It is for the referring court to assess whether the concept of ‘circumstances constituting force majeure’, within the meaning of paragraph 31 of the judgment of 17 October 2013, Billerud Karlsborg and Billerud Skärblacka (C‑203/12, EU:C:2013:664), applies to a situation such as that at issue in the main proceedings.

Case number

C-78/16

Case name

Pesce and Others

Document

Judgment ECLI:EU:C:2016:428

Date

09/06/2016

Source of the question referred for a preliminary ruling

Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy)

Name of the parties

Giovanni Pesce and Others and Presidenza del Consiglio dei Ministri and Others

Subject matter

Agriculture and fisheries; phytosanitary legislation; plant health protection; spread of Xylella in Italy and its eradication

Key words

Pesce - Plants - Protection of plant health - Directive 2000/29/EC - Protection against the introduction into and spread within the European Union of organisms harmful to plants or plant products - Implementing Decision (EU) 2015/789 - Measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa (Wells and Raju) -Obligation to remove host plants immediately, regardless of their health status, within a radius of 100 meters around the infected plants - Validity - Principle of proportionality - Precautionary principle - Obligation to state reasons - Right to compensation

Question referred for a preliminary ruling

‘(1)      Do Directive 2000/29/EC …, in particular [Article] 11(3) [to Article] 13c(7), and [Article] 16(1) [to] (3) and (5) thereof, and the principles of proportionality, logic and reasonableness preclude the application of Article 6(2) and (4) of Implementing Decision [2015/789], as implemented in the Italian legal order by Article 8(2) and (4) of the Decree of [19 June 2015], in so far as it requires that host plants, regardless of their health status, be immediately removed within a radius of 100 metres around the plants which have been tested and found to be infected by the specified organism, and at the same time provides that the Member State is to carry out appropriate phytosanitary treatments prior to the removal of plants referred to in paragraph 2 against the vectors of the specified organism and plants that may host those vectors and that those treatments may include, as appropriate, removal of plants?

(2)      Does Directive 2000/29 …, in particular Article 16(1) thereof, preclude, in particular by use of the phrase ‘necessary measures to eradicate, or if that is impossible, inhibit the spread of the harmful organisms concerned’, the application of Article 6(2) of Decision [2015/789], as implemented in the Italian legal order by Article 8(2) of the Decree of [19 June 2015], in so far as it provides for the immediate removal of host plants, regardless of their health status, within a radius of 100 metres around the plants which have been tested and found to be infected?

(3)      Do Articles 16(1) [to] (3) and (5) of Directive 2000/29 … and the principles of proportionality and logic and the right to due process preclude an interpretation of Article 6(2) and (4) of Implementing Decision [2015/789] - as implemented in the Italian legal order by Article 8(2) and (4) of the Decree of [19 June 2015] - to the effect that the eradication measure referred to in Article 6(2) can be imposed [prior to the application of] the preventive measures provided for in Articles 6(3) and (4) and independently of their application?

(4)      Do the precautionary principle and the principles of adequacy and proportionality preclude the application of Article 6(2) [to] (4) of Implementing Decision [2015/789], as implemented in the Italian legal order by Article 8(2) and (4) of the Decree of [19 June 2015], in so far as it imposes measures to eradicate host plants within a radius of 100 metres around the plants which have been found to be infected by the organism [Xylella], without adequate scientific evidence … to demonstrate with certainty the causal relationship between the presence of the organism and the desiccation of the plants deemed to be infected?

(5)      Do the second paragraph of Article 296 TFEU and Article 41 of the Charter of Fundamental Rights of the European Union [‘the Charter’] preclude the application of Article 6(2) and (4) of Implementing Decision [2015/789], in so far as it provides for the immediate removal of the hosts plants, regardless of their health status, within a radius of 100 metres around the plants which have been tested and found to be infected, since it fails to provide an adequate statement of reasons?

(6)      Do the principles of adequacy and proportionality preclude the application of Implementing Decision [2015/789] - as implemented in the Italian legal order by the Decree of [19 June 2015] - which provides measures for the removal of host plants, regardless of their health status, of plants known to be infected by the specified organism, and of plants showing symptoms indicating possible infection by the organism [Xylella], or suspected of being infected by that organism, without providing for any form of compensation for the owners not responsible for the spread of the organism in question?’

Decision

The examination of the questions referred has not revealed any factors capable of affecting the validity of Article 6(2)(a) of Commission Implementing Decision (EU) 2015/789 of 18 May 2015 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa (Wells et al.), in relation to Council Directive 2000/29/EC of 8 May 2000 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community, as amended by Council Directive 2002/89/EC of 28 November 2002, read in the light of the precautionary principle and the principle of proportionality, and regard being had to the obligation to state reasons laid down in Article 296 TFEU and Article 41 of the Charter of Fundamental Rights of the European Union.

Case number

C-141/12

Case name

Y.S. and Others

Document

Judgment ECLI:EU:C:2014:2081

Date

17/07/2014

Source of the question referred for a preliminary ruling

In Joined Cases C‑141/12 and C‑372/12: Rechtbank Middelburg and Raad van State (Netherlands)

Name of the parties

YS v Minister voor Immigratie, Integratie en Asiel in Minister voor Immigratie, Integratie en Asiel in M and S

Subject matter

Protection of personal data; right of access; direct copy of an administrative document

Key words

Y.S. - Protection of individuals with regard to the processing of personal data - Directive 95/46/EC - Concept of ‘personal data’ - Scope of the right of access of a data subject - Data relating to the applicant for a residence permit and legal analysis contained in an administrative document preparatory to the decision - Charter of Fundamental Rights of the European Union

Question referred for a preliminary ruling

1.      Are the data reproduced in the minute concerning the data subject and which relate to the data subject personal data within the meaning of Article 2(a) of [Directive 95/46]?

2.      Does the legal analysis included in the minute constitute personal data within the meaning of the aforementioned provision?

3.      If the Court of Justice confirms that the data described above are personal data, should the processor/government body grant access to those personal data pursuant to Article 12 of [Directive 95/46] and Article 8(2) of the Charter?

4.      In that context, may the data subject rely directly on Article 41(2)(b) of the Charter, and if so, must the phrase “while respecting the legitimate interests of confidentiality [in decision-making]” included therein be interpreted in such a way that the right of access to the minute may be refused on that ground?

5.      When the data subject requests access to the minute, should the processor/government body provide a copy of that document in order to do justice to the right of access?’

Decision

1.      Article 2(a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that the data relating to an applicant for a residence permit contained in an administrative document, such as the ‘minute’ at issue in the main proceedings, setting out the grounds that the case officer puts forward in support of the draft decision which he is responsible for drawing up in the context of the procedure prior to the adoption of a decision concerning the application for such a permit and, where relevant, the data in the legal analysis contained in that document, are ‘personal data’ within the meaning of that provision, whereas, by contrast, that analysis cannot in itself be so classified.

2.      Article 12(a) of Directive 95/46 and Article 8(2) of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that an applicant for a residence permit has a right of access to all personal data concerning him which are processed by the national administrative authorities within the meaning of Article 2(b) of that directive. For that right to be complied with, it is sufficient that the applicant be in possession of a full summary of those data in an intelligible form, that is to say a form which allows that applicant to become aware of those data and to check that they are accurate and processed in compliance with that directive, so that he may, where relevant, exercise the rights conferred on him by that directive.

3.      Article 41(2)(b) of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the applicant for a residence permit cannot rely on that provision against the national authorities.

Case number

Case number

Document

Date

Source of the question referred for a preliminary ruling

Name of the parties

Subject matter

Key words

Questions referred for a preliminary ruling

Decision

Case number

C-337/15 P

Case name

European Ombudsman v Staelen

Document

Judgment ECLI:EU:C:2017:256

Date

04/04/2017

Source of the question referred for a preliminary ruling

European Ombudsman

Name of the parties

European Ombudsman v Claire Staelen

Subject matter

European Ombudsman; damages action

Key words

Staelen - Non-contractual liability of the European Union - Handling by the European Ombudsman of a complaint concerning the management of a list of suitable candidates in an open competition - Breaches of the duty to act diligently - Concept of a ‘sufficiently serious breach’ of a rule of EU law - Non-material damage - Loss of confidence in the office of the European Ombudsman

Question referred for a preliminary ruling

By this appeal, the European Ombudsman asks the Court to set aside in part the judgment of the General Court of the European Union of 29 April 2015, Staelen v Ombudsman (T‑217/11, ‘the judgment under appeal’, EU:T:2015:238), by which the General Court upheld in part the action brought by Ms Claire Staelen seeking compensation for the damage she claimed to have suffered as a result of the Ombudsman’s handling of her complaint concerning mismanagement by the European Parliament of the list of suitable candidates in Open Competition EUR/A/151/98, on which she appeared as a successful candidate (‘the list of suitable candidates’).

Decision

1.      Declares the application made by Ms Claire Staelen in her response for the European Ombudsman to be ordered to pay her compensation in the amount of EUR 50 000 inadmissible;

2.      Sets aside points 1, 3 and 4 of the operative part of the judgment of the General Court of the European Union of 29 April 2015, Staelen v Ombudsman (T‑217/11, EU:T:2015:238);

3.      Orders the European Ombudsman to pay Ms Claire Staelen compensation in the amount of EUR 7 000;

4.      Orders Ms Claire Staelen to bear her own costs and to pay those incurred by the European Ombudsman in relation to the cross-appeal, dismissed by order of 29 June 2016, Ombudsman v Staelen (C‑337/15 P, not published, EU:C:2016:670);

5.      Orders the European Ombudsman to bear her own costs and to pay those incurred by Ms Claire Staelen in relation both to the proceedings at first instance and to the main appeal.

Case number

Case number

Document

Date

Source of the question referred for a preliminary ruling

Name of the parties

Subject matter

Key words

Questions referred for a preliminary ruling

Decision

Case number

C-490/20

Case name

Stolichna obshtina, rayon „Pancharevo“

Document

Judgment ECLI:EU:C:2021:1008

Date

14/12/2021

Source of the question referred for a preliminary ruling

Administrativen sad Sofia-grad (Administrative Court of the City of Sofia, Bulgaria)

Name of the parties

V. М. А. and Stolichna obshtina, rayon „Pancharevo“

Subject matter

Union citizenship; prohibition of discrimination on grounds of nationality; same-sex parenthood; refusal to issue a birth certificate for a child

Key words

V.M.A.  – Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Child born in the host Member State of her parents – Birth certificate issued by that Member State mentioning two mothers in respect of that child – Refusal by the Member State of origin of one of those two mothers to issue a birth certificate for the child in the absence of information as to the identity of the child’s biological mother – Possession of such a certificate being a prerequisite for the issue of an identity card or a passport – Persons of the same sex not recognised as parents under the national legislation of that Member State of origin

Question referred for a preliminary ruling

(1)      Must Article 20 TFEU and Article 21 TFEU and Articles 7, 24 and 45 of the [Charter] be interpreted as meaning that the Bulgarian administrative authorities to which an application for a document certifying the birth of a child of Bulgarian nationality in another Member State of the [European Union] was submitted, which had been certified by way of a Spanish birth certificate in which two persons of the female sex are registered as mothers without specifying whether one of them, and if so, which of them, is the child’s biological mother, are not permitted to refuse to issue a Bulgarian birth certificate on the grounds that the applicant refuses to state which of them is the child’s biological mother?

(2)      Must Article 4(2) TEU and Article 9 of the [Charter] be interpreted as meaning that respect for the national identity and constitutional identity of the Member States of the European Union means that those Member States have a broad discretion as regards the rules for establishing parentage? Specifically:

Must Article 4(2) TEU be interpreted as allowing Member States to request information on the biological parentage of the child?

Must Article 4(2) TEU in conjunction with Article 7 and Article 24(2) of the Charter be interpreted as meaning that it is essential to strike a balance of interests between, on the one hand, the national identity and constitutional identity of a Member State and, on the other hand, the best interests of the child, having regard to the fact that, at the present time, there is neither a consensus as regards values nor, in legal terms, a consensus about the possibility of registering as parents on a birth certificate persons of the same sex without providing further details of whether one of them, and if so, which of them, is the child’s biological parent? If this question is answered in the affirmative, how could that balance of interests be achieved in concrete terms?

(3)      Is the answer to Question 1 affected by the legal consequences of [the Withdrawal Agreement] in that one of the mothers listed on the birth certificate issued in another Member State is a United Kingdom national whereas the other mother is a national of an EU Member State, having regard in particular to the fact that the refusal to issue a Bulgarian birth certificate for the child constitutes an obstacle to the issue of an identity document for the child by an EU Member State and, as a result, may impede the unlimited exercise of her rights as [a Union] citizen?

(4)      If the first question is answered in the affirmative: does EU law, in particular the principle of effectiveness, oblige the competent national authorities to derogate from the model birth certificate [which is one of the model civil status certificates] applicable [at a national level]?’

Decision

Article 4(2) TEU, Articles 20 and 21 TFEU and Articles 7, 24 and 45 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 4(3) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, must be interpreted as meaning that, in the case of a child, being a minor, who is a Union citizen and whose birth certificate, issued by the competent authorities of the host Member State, designates as that child’s parents two persons of the same sex, the Member State of which that child is a national is obliged (i) to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and (ii) to recognise, as is any other Member State, the document from the host Member State that permits that child to exercise, with each of those two persons, the child’s right to move and reside freely within the territory of the Member States.

Case number

C-817/19

Case name

Ligue des droits humains

Document

Judgment ECLI:EU:C:2022:491

Date

21/06/2022

Source of the question referred for a preliminary ruling

Cour constitutionnelle (Constitutional Court, Belgium)

Name of the parties

Ligue des droits humains ASBL and Conseil des ministres

Subject matter

Protection of personal data - Area of freedom, security and justice; judicial cooperation in civil matters ; use of Passenger Name Record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime –  Asylum policy – Transport

Key words

Ligue – Processing of personal data – Passenger Name Record (PNR) data – Regulation (EU) 2016/679 – Directive (EU) 2016/681 – Use of PNR data of air passengers of flights operated between the European Union and third countries – Power to include data of air passengers of flights operated within the European Union – Automated processing of those data – Retention period – Fight against terrorist offences and serious crime – Validity – Charter of Fundamental Rights of the European Union – National legislation extending the application of the PNR system to other transport operations within the European Union – Freedom of movement within the European Union – Charter of Fundamental Rights

Question referred for a preliminary ruling

‘(1)      Is Article 23 of [the GDPR], read in conjunction with Article 2(2)(d) of that regulation, to be interpreted as applying to national legislation such as the [Law of 25 December 2016], which transposes [the PNR Directive] as well as [the API Directive] and Directive [2010/65]?

(2)      Is Annex I to [the PNR Directive] compatible with Articles 7, 8 and 52(1) of [the Charter], given that the data it refers to are very wide in scope – particularly the data referred to in paragraph 18 of Annex I to [that directive], which go beyond the data referred to in Article 3(2) of [the API Directive] – and also given that, taken together, they may reveal sensitive information, and thus go beyond what is “strictly necessary”?

(3)      Are paragraphs 12 and 18 of Annex I to [the PNR Directive] compatible with Articles 7, 8 and 52(1) of [the Charter], given that, having regard to the word “including”, the data referred to in those paragraphs are given by way of example and not exhaustively, such that the requirement for precision and clarity in rules which interfere with the right to respect for private life and the right to protection of personal data is not satisfied?

(4)      Are Article 3(4) of [the PNR Directive] and Annex I to that directive compatible with Articles 7, 8 and 52(1) of [the Charter], given that the system of generalised collection, transfer and processing of passenger data established by those provisions relates to any person using the mode of transport concerned, regardless of whether there is any objective ground for considering that that person may present a risk to public security?

(5)      Is Article 6 of [the PNR Directive], read in conjunction with Articles 7, 8 and 52(1) of [the Charter], to be interpreted as precluding national legislation such as the contested law, which includes, among the purposes for which PNR data are processed, [monitoring] activities within the remit of the intelligence and security services, thus treating that purpose as an integral part of the prevention, detection, investigation and prosecution of terrorist offences and serious crime?

(6)      Is Article 6 of [the PNR Directive] compatible with Articles 7, 8 and 52(1) of [the Charter], given that the advance assessment for which it provides, which is made by comparing passenger data against databases and pre-determined criteria, applies to such data in a systematic and generalised manner, regardless of whether there is any objective ground for considering that the passengers concerned may present a risk to public security?

(7)      Can the expression “another national authority competent under national law” in Article 12(3) of [the PNR Directive] be interpreted as including the PIU created by the Law of 25 December 2016, which would then have power to authorise access to PNR data after six months had passed, for the purposes of ad hoc searches?

(8)      Is Article 12 of [the PNR Directive], read in conjunction with Articles 7, 8 and 52(1) of [the Charter], to be interpreted as precluding national legislation such as the contested law which provides for a general data retention period of five years, without making any distinction in terms of whether the advance assessment indicated that the passengers might present a risk to public security?

(9)      (a)      Is [the API Directive] compatible with Article 3(2) [TEU] and Article 45 of [the Charter], given that the obligations for which it provides apply to flights within the European Union?

(b)      Is [the API Directive], read in conjunction with Article 3(2) [TEU] and Article 45 of [the Charter], to be interpreted as precluding national legislation such as the contested law which, for the purposes of combating illegal immigration and improving border controls, authorises a system of collection and processing of data relating to passengers “travelling to, from or transiting through Belgian territory”, which may indirectly involve a re-establishment of internal border controls?

(10)      If, on the basis of the answers to the preceding questions, the Cour constitutionnelle (Constitutional Court) concludes that the contested law, which transposes, inter alia, [the PNR Directive], fails to fulfil one or more of the obligations arising under the provisions referred to in those questions, would it be open to it to maintain the effects of the [Law of 25 December 2016], on a temporary basis, in order to avoid legal uncertainty and enable the data hitherto collected and retained to continue to be used for the purposes envisaged by the law?’

Decision

1.      Article 2(2)(d) and Article 23 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), must be interpreted as meaning that that regulation applies to the processing of personal data envisaged by national legislation intended to transpose, into domestic law, the provisions of Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data, those of Directive 2010/65/EU of the European Parliament and of the Council of 20 October 2010 on reporting formalities for ships arriving in and/or departing from ports of the Member States and repealing Directive 2002/6/EC and also those of Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime, in respect of, on the one hand, data processing operations carried out by private operators and, on the other hand, data processing operations carried out by public authorities covered, solely or in addition, by Directive 2004/82 or Directive 2010/65. By contrast, the said regulation does not apply to the data processing operations envisaged by such legislation which are covered only by Directive 2016/681 and are carried out by the passenger information unit (PIU) or by the authorities competent for the purposes referred to in Article 1(2) of that directive.

2.      Given that an interpretation of Directive 2016/681 in the light of Articles 7, 8 and 21 as well as Article 52(1) of the Charter of Fundamental Rights of the European Union ensures that that directive is consistent with those articles of the Charter of Fundamental Rights, the examination of Questions 2 to 4 and Question 6 referred for a preliminary ruling has revealed nothing capable of affecting the validity of the said directive.

3.      Article 6 of Directive 2016/681, read in the light of Articles 7 and 8 as well as Article 52(1) of the Charter of Fundamental Rights, must be interpreted as precluding national legislation which authorises passenger name record (PNR) data collected in accordance with that directive to be processed for purposes other than those expressly referred to in Article 1(2) of the said directive.

4.      Article 12(3)(b) of Directive 2016/681 must be interpreted as precluding national legislation pursuant to which the authority put in place as the passenger information unit (PIU) is also designated as a competent national authority with power to approve the disclosure of PNR data upon expiry of the period of six months after the transfer of those data to the PIU.

5.      Article 12(1) of Directive 2016/681, read in conjunction with Articles 7 and 8 as well as Article 52(1) of the Charter of Fundamental Rights, must be interpreted as precluding national legislation which provides for a general retention period of five years for PNR data, applicable indiscriminately to all air passengers, including those for whom neither the advance assessment under Article 6(2)(a) of that directive nor any verification carried out during the period of six months referred to in Article 12(2) of the said directive nor any other circumstance have revealed the existence of objective material capable of establishing a risk that relates to terrorist offences or serious crime having an objective link, even if only an indirect one, with the carriage of passengers by air.

6.      Directive 2004/82 must be interpreted as not applying to flights, whether scheduled or non-scheduled, carried out by an air carrier flying from the territory of a Member State and that are planned to land on the territory of one or more of the other Member States, without any stop-overs in the territory of a third country (intra-EU flights).

7.      EU law, in particular Article 2 of Directive 2016/681, read in the light of Article 3(2) TEU, Article 67(2) TFEU and Article 45 of the Charter of Fundamental Rights, must be interpreted as precluding:

–        national legislation which, in the absence of a genuine and present or foreseeable terrorist threat with which the Member State concerned is confronted, establishes a system for the transfer, by air carriers and tour operators, as well as for the processing, by the competent authorities, of the PNR data of all intra-EU flights and transport operations carried out by other means within the European Union, departing from, going to or transiting through that Member State, for the purposes of combating terrorist offences and serious crime. In such a situation, the application of the system established by Directive 2016/681 must be limited to the transfer and processing of the PNR data of flights and/or transport operations relating, inter alia, to certain routes or travel patterns or to certain airports, stations or seaports for which there are indications that are such as to justify that application. It is for the Member State concerned to select the intra-EU flights and/or the transport operations carried out by other means within the European Union for which there are such indications and to review regularly that application in accordance with changes in the circumstances that justified their selection, for the purposes of ensuring that the application of that system to those flights and/or those transport operations continues to be limited to what is strictly necessary, and

–        national legislation providing for such a system for the transfer and processing of those data for the purposes of improving external border controls and combating illegal immigration.

8.      EU law must be interpreted as precluding a national court from limiting the temporal effects of a declaration of illegality which it is bound to make under national law in respect of national legislation requiring carriers by air, by rail and by road as well as tour operators to transfer PNR data, and providing for the processing and retention of those data, in breach of the provisions of Directive 2016/681, read in the light of Article 3(2) TEU, Article 67(2) TFEU, Articles 7, 8 and 45 as well as Article 52(1) of the Charter of Fundamental Rights. The admissibility of the evidence thus obtained is, in accordance with the principle of procedural autonomy of the Member States, a matter for national law, subject to compliance, inter alia, with the principles of equivalence and effectiveness.

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