Case number

C–492/22 PPU

Case name

CJ (Décision de remise différée en raison de poursuites pénales)

Document

Judgment ECLI:EU:C:2022:964

Date

08/12/2022

Source of the question referred for a preliminary ruling

Rechtbank Amsterdam (District Court, Amsterdam, Netherlands)

Name of the parties

CJ

Subject matter

Area of freedom, security and justice; judicial cooperation in criminal matters; European Arrest Warrant

Key words

CJ –  Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA –– Determination of the competent judicial authorities – Decision to postpone surrender adopted by a body not having the status of executing judicial authority – Expiry of the time limits provided for surrender – Consequences –Keeping the requested person in detention for the purposes of criminal proceedings in the executing Member State – Charter of Fundamental Rights of the European Union – Right of the accused person to appear in person at his trial

Question referred for a preliminary ruling

‘(1)      Do Articles 12 and 24(1) of Framework Decision [2002/584], read in conjunction with Article 6 of the [Charter], preclude a requested person, whose surrender for the purpose of executing a custodial sentence was definitively authorised but has been postponed ‘so that he or she may be prosecuted in the executing Member State … for an act other than that referred to in the European arrest warrant’, from being detained for the duration of that criminal prosecution in order to execute the European arrest warrant?

(2)      (a)      Is the decision to exercise the power to postpone surrender provided for in Article 24(1) of Framework Decision [2002/584] a decision on the execution of the European arrest warrant which, pursuant to Article 6(2) of Framework Decision [2002/584], read in conjunction with recital 8 thereof, must be taken by the executing judicial authority?

(b)      If so, does the fact that that decision was taken without the intervention of an executing judicial authority within the meaning of Article 6(2) of Framework Decision [2002/584] have the consequence that the requested person may no longer be detained for the purpose of executing the European arrest warrant issued against him?

(3)      (a)      Does Article 24(1) of Framework Decision [2002/584], read in conjunction with Articles 47 and 48 of the [Charter], preclude the surrender of the requested person for the purpose of a criminal prosecution in the executing Member State for the sole reason that, upon request, the requested person does not wish to waive his right to be present at that criminal prosecution ?

(b)      If so, which factors should the executing judicial authority then take into account when deciding whether to postpone the actual surrender?’

Decision

1.      Article 24(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009,

must be interpreted as meaning that:

the decision to postpone a surrender referred to in that provision constitutes a decision on the execution of the European arrest warrant which, pursuant to Article 6(2) of that framework decision, must be taken by the executing judicial authority. Where such a decision has not been taken by that authority and the time limits referred to in Article 23(2) to (4) of that framework decision have expired, the person who is the subject of a European arrest warrant must be released, in accordance with Article 23(5) of that same framework decision.

2.      Article 12 and Article 24(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, read in conjunction with Article 6 of the Charter of Fundamental Rights of the European Union,

must be interpreted as:

not precluding a person who is the subject of a European arrest warrant, whose surrender to the authorities of the issuing Member State has been postponed for the purposes of a criminal prosecution instituted against him or her in the executing Member State, from being kept in detention on the basis of the European arrest warrant whilst the criminal prosecution is being conducted.

3.      Article 24(1) of Framework 2002/584, as amended by Framework Decision 2009/299, read in conjunction with the second and third paragraphs of Article 47 and Article 48(2) of the Charter of Fundamental Rights

must be interpreted as:

not precluding the postponement of the surrender of a person who is the subject of a European arrest warrant, for the purposes of a criminal prosecution instituted against that person in the executing Member State, solely on the ground that that person has not waived their right to appear in person before the courts seised in connection with that prosecution.

Case number

C–241/21

Case name

Politsei– ja Piirivalveamet (Placement en rétention – Risque de commettre une infraction pénale)

Document

Judgment ECLI:EU:C:2022:753

Date

06/10/2022

Source of the question referred for a preliminary ruling

Riigikohus (Supreme Court, Estonia)

Name of the parties

I. L. v Politsei– ja Piirivalveamet

Subject matter

Area of freedom, security and justice; asylum policy: detention

Key words

I.L. – Return of illegally staying third–country nationals  – Detention – Grounds for detention – General criterion based on the risk that the effective enforcement of the removal would be compromised – Risk that the person concerned would commit a criminal offence – Consequences of the establishment of the offence and the imposition of a penalty – Complication of the removal process – Charter of Fundamental Rights of the European Union – Restriction of the fundamental right to liberty – Requirement of a legal basis – Requirements of clarity, predictability and accessibility – Protection against arbitrariness

Question referred for a preliminary ruling

‘Is the first sentence of Article 15(1) of [Directive 2008/115] to be interpreted as meaning that Member States may detain a third–country national who, while at liberty prior to removal, presents a real risk of committing a criminal offence the establishment and punishment of which is likely to complicate the removal process considerably?’

Decision

Article 15(1) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third–country nationals,

must be interpreted as not permitting a Member State to order the detention of an illegally staying third–country national solely on the basis of a general criterion based on the risk that the effective enforcement of the removal would be compromised, without satisfying one of the specific grounds for detention provided for and clearly defined by the legislation implementing that provision in national law.

Case number

C–704/20

Case name

Staatssecretaris van Justitie en Veiligheid (Examen d’office de la rétention)

Document

Judgment ECLI:EU:C:2022:858

Date

08/11/2022

Source of the question referred for a preliminary ruling

Raad van State (Council of State, Netherlands) (in Case C–704/20) and Rechtbank Den Haag, zittingsplaats 's–Hertogenbosch (District Court, The Hague, sitting in ’s‑Hertogenbosch, Netherlands) (in Case C–39/21)

Name of the parties

Staatssecretaris van Justitie en Veiligheid v C, B (C–704/20)X v Staatssecretaris van Justitie en Veiligheid (C–39/21)

Subject matter

Area of freedom, security and justice; asylum policy; border control; legality of detention measures

Key words

X – Asylum policy – Third–country nationals – Detention – Right to liberty – Lawfulness of detention – Control – Test – Effective remedy

Question referred for a preliminary ruling

Joined Cases:  Case C–704/20:
‘Does [EU] law, more particularly Article 15(2) of [Directive 2008/115] and Article 9 of [Directive 2013/33], read in conjunction with Article 6 of the [Charter], require a court of its own motion (ex officio) to assess whether all the conditions pertaining to detention have been met, including those where the foreign national has not disputed that compliance occurred, despite having had the opportunity to do so?’
in Case  C–39/21
‘(1)      Having regard to Article 47 of [the Charter], read in conjunction with Article 6 of the Charter and Article 53 of the Charter and in the light of Article 15(2)(b) of [Directive 2008/115], Article 9(3) of [Directive 2013/33] and Article 28(4) of [Regulation No 604/2013], are the Member States permitted to structure the judicial procedure for challenging the detention of a foreign national ordered by the authorities in such a way as to prohibit the courts from carrying out an ex officio review and assessment of all aspects of the lawfulness of the detention and, where a court finds of its own motion that the detention is unlawful, from ordering that the unlawful detention be ended and the foreign national released immediately? If the [Court] finds that such national legislation is incompatible with EU law, does that then also mean that, if the foreign national applies to the court for his or her release, that court is always required to carry out an active and thorough ex officio review and assessment of all the facts and factors relevant to the lawfulness of the detention measure concerned?

(2)      Having regard to Article 24(2) of the Charter, read in conjunction with Article 3(9) of [Directive 2008/115], Article 21 of [Directive 2013/33] and Article 6 of [Regulation No 604/2013], does the answer to Question 1 differ if the foreign national detained by the authorities concerned is a minor?

(3)      Does the right to an effective remedy guaranteed by Article 47 of the Charter, read in conjunction with Article 6 of the Charter and Article 53 of the Charter and in the light of Article 15(2)(b) of [Directive 2008/115], Article 9(3) of [Directive 2013/33] and Article 28(4) of [Regulation No 604/2013], mean that, where a foreign national requests a court of any instance to end the detention measure to which he or she has been subject and order his or her release, that court must give an adequate substantive statement of reasons for any decision on that request, if the remedy is otherwise structured in the same manner as it is in this Member State? If the Court of Justice considers a national legal practice in which the court of second, and therefore highest, instance may confine itself to ruling without giving any substantive reasons to be incompatible with EU law, having regard to the way in which the legal remedy is otherwise structured in this Member State, does that then mean that such a power for the court of second and therefore highest instance in asylum and ordinary immigration cases must also be regarded as being incompatible with EU law, in the light of the vulnerable position of the foreign national, the considerable importance of immigration procedures and the fact that, in contrast to all other administrative procedures, in terms of legal protection, those procedures contain the same weak procedural guarantees for the foreign national as the detention procedure? Having regard to Article 24(2) of the Charter, are the answers to these questions different if the foreign national challenging a decision of the authorities concerning matters of immigration law is a minor?’

Decision

Article 15(2) and (3) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third–country nationals, Article 9(3) and (5) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection, and Article 28(4) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third–country national or a stateless person, read in conjunction with Articles 6 and 47 of the Charter of Fundamental Rights of the European Union,

must be interpreted as meaning that a judicial authority’s review of compliance with the conditions governing the lawfulness of the detention of a third–country national which derive from EU law must lead that authority to raise of its own motion, on the basis of the material in the file brought to its attention, as supplemented or clarified during the adversarial proceedings before it, any failure to comply with a condition governing lawfulness which has not been invoked by the person concerned.

Case number

C–653/19 PPU

Case name

Spetsializirana prokuratura

Document

Judgment ECLI:EU:C:2019:1024

Date

28/11/2019

Source of the question referred for a preliminary ruling

Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria)

Name of the parties

DK Interested party: Spetsializirana prokuratura,

Subject matter

Area of freedom, security and justice; judicial cooperation in criminal cases; detention

Key words

DK – Judicial cooperation in criminal matters – Strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings –Burden of proof – Continuation of the detention on remand pending trial of an accused person

Question referred for a preliminary ruling

‘Is a national law that, during the trial stage of criminal proceedings, requires a change in circumstances as a condition for granting the defence’s application for the release of the accused person from detention, consistent with Article 6 and recital 22 of Directive 2016/343 and with Articles 6 and 47 of the [Charter]?’

Decision

Article 6 of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, and Articles 6 and 47 of the Charter of Fundamental Rights of the European Union do not apply to a national law that makes the release of a person held in detention on remand pending trial conditional on that person establishing the existence of new circumstances justifying that release.

Case number

C–649/19

Case name

Spetsializirana prokuratura (Déclaration des droits)

Document

Judgment ECLI:EU:C:2021:75

Date

28/01/2021

Source of the question referred for a preliminary ruling

Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria)

Name of the parties

Spetsializirana prokuratura v IR

Subject matter

Area of freedom, security and justice; judicial cooperation in criminal cases; illicit trade in cigarettes

Key words

IR – Right to information in criminal proceedings – Letter of Rights on arrest – Right to be informed of the accusation – Right of access to the materials of the case – Person arrested on the basis of a European arrest warrant in the executing Member State

Question referred for a preliminary ruling

‘(1)      Do the rights of an accused person under Article 4 (in particular the right under Article 4(3)), Article 6(2) and Article 7(1) of Directive 2012/13 apply to an accused person who has been arrested on the basis of a European arrest warrant?

(2)      If the first question is answered in the affirmative: Is Article 8 of Framework Decision 2002/584 to be interpreted as meaning that it allows the content of a European arrest warrant to be amended with regard to the form specified in the annex, in particular the insertion of new text into that form, in relation to the rights of the requested person against the judicial authorities of the issuing Member State to challenge the validity of the national arrest warrant and of the European arrest warrant?

(3)      If the second question is answered in the negative: Is it compatible with recital 12 and Article 1(3) of Framework Decision 2002/584, [Article 4, Article 6(2) and Article 7(1)] of [Directive 2012/13], and Articles 6 and 47 of the Charter if a European arrest warrant is issued in strict compliance with the form set out in the annex (that is to say without informing the requested person about his rights against the issuing judicial authority) and the issuing judicial authority informs him about the rights to which he is entitled and sends him the relevant documents immediately after that authority becomes aware of the arrest?

(4)      If there are no other legal means for safeguarding the rights of a person arrested on the basis of a European arrest warrant under Article 4 [(in particular the right under Article 4(3))], Article 6(2) and Article 7(1) of [Directive 2012/13], is Framework Decision 2002/584 valid?’

Decision

1.      Article 4 (in particular Article 4(3)), Article 6(2) and Article 7(1) of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings must be interpreted as meaning that the rights referred to therein do not apply to persons who are arrested for the purposes of the execution of a European arrest warrant.

2.      The examination of the third and fourth questions referred for a preliminary ruling has revealed nothing that is capable of affecting the validity of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, in the light of Articles 6 and 47 of the Charter of Fundamental Rights of the European Union.

Case number

C–752/18

Case name

Deutsche Umwelthilfe

Document

Judgment ECLI:EU:C:2019:1114

Date

19/12/2019

Source of the question referred for a preliminary ruling

Bayerischer Verwaltungsgerichtshof ((Higher Administrative Court of Bavaria, Germany)

Name of the parties

Deutsche Umwelthilfe eV v Freistaat Bayern

Subject matter

Environment; ambient air quality and cleaner air for Europe; administrative cooperation

Key words

Deutsche Umwelthilfe – Environment –Charter of Fundamental Rights of the European Union – Atmospheric pollution – Ambient air quality – Air quality plan – Limit values for nitrogen dioxide – Obligation to adopt appropriate measures to ensure that any exceedance period is very short – Obligation on the national courts to take any necessary measure – Refusal of a regional government to comply with an injunction – Coercive detention contemplated in respect of senior political representatives or senior officials of the region concerned – Effective judicial protection – Right to liberty of the person – Legal basis – Proportionality

Question referred for a preliminary ruling

‘Are

–        the requirement laid down in the second subparagraph of Article 4(3) [TEU], according to which the Member States must take any appropriate measure to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the European Union,

–        the principle of effective implementation of EU law by the Member States, which is established in, inter alia, Article 197(1) [TFEU],

–        the right to an effective remedy guaranteed by the first paragraph of Article 47 of the [Charter],

–        the obligation devolving on the Contracting States to ensure effective remedies in environmental matters, which arises from the first sentence of Article 9(4) of the [Aarhus Convention],

–        the obligation devolving on the Member States to ensure effective legal protection in the fields covered by EU law, which is established in the second subparagraph of Article 19(1) TEU,

to be interpreted as meaning that a German court is entitled – and possibly even obliged – to impose coercive detention on office holders involved in the exercise of the official authority … of a German Federal Land in order thereby to enforce the obligation of that Federal Land to update an air quality plan, within the meaning of Article 23 of Directive [2008/50], with specific minimum content if that Federal Land has been ordered, by way of a final judgment, to carry out an update having that specific minimum content, and

–        the Federal Land has been threatened with and subjected to financial penalties on several occasions without success,

–        threats of financial penalties and the imposition of financial penalties do not result in a significant persuasive effect even if higher amounts than before are threatened and imposed, for the reason that the payment of penalties does not involve actual losses for the Federal Land against which a final judgment has been given, but rather, in this respect, there is merely a transfer of the amount imposed in each case from one accounting item within the Land’s budget to another accounting item within the Land’s budget,

–        the Federal Land against which a final judgment has been given has stated to the courts and publicly – inter alia before parliament via its most senior political office–holder – that it will not fulfil the judicially imposed obligations in connection with air quality planning,

–        while national law does in principle provide for the instrument of coercive detention for the purpose of enforcing judicial decisions, case–law of the national constitutional court precludes the application of the relevant provision to a situation of the nature involved here, and

–        for a situation of the nature involved here, national law does not provide for coercive instruments that are more expedient than threats and imposition of financial penalties but are less invasive than detention, and recourse to such coercive instruments does not come into consideration from a substantive point of view either?’

Decision

EU law, in particular the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in circumstances in which a national authority persistently refuses to comply with a judicial decision enjoining it to perform a clear, precise and unconditional obligation flowing from EU law, in particular from Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe, it is incumbent upon the national court having jurisdiction to order the coercive detention of office holders involved in the exercise of official authority where provisions of domestic law contain a legal basis for ordering such detention which is sufficiently accessible, precise and foreseeable in its application and provided that the limitation on the right to liberty, guaranteed by Article 6 of the Charter of Fundamental Rights, that would result from so ordering complies with the other conditions laid down in that regard in Article 52(1) of the Charter. On the other hand, if there is no such legal basis in domestic law, EU law does not empower that court to have recourse to such a measure.

Case number

C–492/18 PPU

Case name

TC

Document

Judgment ECLI:EU:C:2019:108

Date

12/02/2019

Source of the question referred for a preliminary ruling

Rechtbank Amsterdam (District Court, Amsterdam, Netherlands)

Name of the parties

Execution of the European arrest warrant issued in respect of TC

Subject matter

Area of freedom, security and justice: judicial cooperation in criminal cases; police cooperation; European Arrest Warrant

Key words

TC – Judicial cooperation in criminal matters – European arrest warrant –Keeping a person in detention –Time limits for adoption of the decision to execute the European arrest warrant – National legislation providing for automatic suspension of detention 90 days after arrest – Interpretation in conformity with EU law – Suspension of time limits – Charter of Fundamental Rights of the European Union –Right to liberty and security – Differing interpretations of national legislation – Clarity and predictability

Question referred for a preliminary ruling

‘In a case in which:

–        the executing Member State has transposed Article 17 of [Framework Decision 2002/584] in such a way that the detention pending surrender of the requested person must in all cases be suspended once the 90–day period for taking a final decision on the execution of the European arrest warrant has expired and

–        the courts of that Member State have interpreted domestic law as meaning that the decision period is suspended as soon as the executing judicial authority decides to refer a question to the Court of Justice for a preliminary ruling or to await the reply to a question referred for a preliminary ruling by another executing judicial authority or to postpone the decision on surrender owing to a real danger of inhuman or degrading detention conditions in the issuing Member State,

does the maintenance of the detention pending surrender of a requested person who represents a flight risk once that detention has continued for more than 90 days after that person’s arrest contravene Article 6 of the [Charter]?’

Decision

Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States must be interpreted as precluding a national provision, such as that at issue in the main proceedings, which lays down a general and unconditional obligation to release a requested person arrested pursuant to a European arrest warrant as soon as a period of 90 days from that person’s arrest has elapsed, where there is a very serious risk of that person absconding and that risk cannot be reduced to an acceptable level by the imposition of appropriate measures.

Article 6 of the Charter of Fundamental Rights of the European Union must be interpreted as precluding national case–law which allows the requested person to be kept in detention beyond that 90–day period, on the basis of an interpretation of that national provision according to which that period is suspended when the executing judicial authority decides to refer a question to the Court of Justice of the European Union for a preliminary ruling, or to await the reply to a request for a preliminary ruling made by another executing judicial authority, or to postpone the decision on surrender on the ground that there could be, in the issuing Member State, a real risk of inhuman or degrading detention conditions, in so far as that case–law does not ensure that that national provision is interpreted in conformity with Framework Decision 2002/584 and entails variations that could result in different periods of continued detention.

Case number

C–467/18

Case name

Rayonna prokuratura Lom

Document

Judgment ECLI:EU:C:2019:765

Date

19/09/2019

Source of the question referred for a preliminary ruling

Rayonen sad Lukovit (District Court, Lukovit, Bulgaria)

Name of the parties

Criminal proceedings against EP

Subject matter

Area of freedom, security and justice; judicial cooperation in criminal cases; admission of an EP to a special ward of a psychiatric hospital

Key words

EP – Judicial cooperation in criminal matters –Charter of Fundamental Rights of the European Union – National legislation authorising, on therapeutic and safety grounds, the committal to a psychiatric hospital of persons who, in a state of insanity, have committed acts representing a danger to society – Right to information about rights – Right of access to a lawyer – Right to an effective remedy – Presumption of innocence – Vulnerable persons

Question referred for a preliminary ruling

‘(1)      Do the present proceedings for an order for the adoption of compulsory medical measures, constituting a form of State compulsion in relation to persons who, according to the findings of the Public Prosecutor’s Office, have committed an act representing a danger to society, fall within the scope of Directive [2012/13] and Directive [2013/48]?

(2)      Do the Bulgarian procedural provisions governing the special procedure for an order for the adoption of compulsory medical measures provided for in Article 427 et seq. of the Code of Criminal Procedure, under which a court is not empowered to refer the proceedings back to the Public Prosecutor’s Office with the instruction to rectify the procedural errors committed in the course of the pre–trial procedure, but can either grant the application for an order for the adoption of compulsory medical measures or reject it, constitute an effective remedy, within the meaning of Article 12 of Directive 2013/48 and Article 8 of Directive 2012/13 read in conjunction with Article 47 of the Charter, which confers on the person concerned the right to challenge before a court any infringements of their rights which may have been committed in the course of the pre–trial procedure?

(3)      Are Directive 2012/13 and Directive 2013/48 applicable to (pre–trial) criminal proceedings in the case where the national law, that is to say the Code of Criminal Procedure, does not recognise the legal concept of ‘suspect’ and the Public Prosecutor’s Office does not formally regard the person in question as a defendant during the pre–trial procedure, since, on the assumption that the homicide forming the subject of the investigations was committed by that person in a state of mental disorder such as to exclude criminal responsibility, it closes criminal proceedings without informing the person concerned and applies to the court for an order for the adoption of compulsory medical measures against that person?

(4)      Is a person in relation to whom compulsory medical treatment has been applied for to be regarded as being ‘suspected’ within the meaning of Article 2(1) of Directive 2012/13 and Article 2(3) of Directive 2013/48 in the case where, in the course of the first inspection of the crime scene and the initial investigative measures at the home of the victim and her son, a police officer, after identifying traces of blood on the son’s body, questioned him about his reasons for killing his mother and taking her body out into the street and, after the son had answered those questions, handcuffed him? If so, must the person in question be provided with information pursuant to Article 3(1) in conjunction with (2) of Directive 2012/13 even at that stage, and how are the particular needs of that person to be taken into account, pursuant to paragraph 2, when information is provided to him in such circumstances, that is to say where the police officer was aware that the person in question suffered from a psychiatric disorder?

(5)      Are national rules such as those at issue, which effectively allow a person to be deprived of his liberty by being committed to a psychiatric hospital under a procedure provided for in the Health Law (a precautionary compulsory measure ordered where there is evidence that the person concerned suffers from a mental illness and is at risk of committing a criminal offence, but not where an offence has already been committed), compatible with Article 3 of Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence, in the case where the real reason for initiating the procedure is the offence on account of which criminal proceedings have been brought against the person committed for treatment, and does this circumvent the right, on arrest, to a fair trial which must satisfy the conditions laid down in Article 5(4) of the [ECHR], that is to say a trial in which the court is empowered to review not only compliance with the rules of procedure but also the suspicion justifying the arrest and the lawfulness of the objective pursued by that measure, the court being obliged to carry out such a review in the case where the person in question was arrested under the procedure laid down in the Code of Criminal Procedure?

(6)      Does the concept of the presumption of innocence in Article 3 of Directive 2016/343 also include the presumption that persons lacking criminal responsibility by reason of mental disorder did not commit the offence representing a danger to society of which they are accused by the Public Prosecutor’s Office, until such time as proof to the contrary is established in accordance with the rules of procedure (in criminal proceedings, with due regard for the rights of the defence)?

(7)      Do national rules which confer on the adjudicating court different powers in relation to the examination as to the lawfulness of the pre–trial procedure which it must carry out ex officio, depending on whether:

(a)      the court examines an indictment from the Public Prosecutor’s Office in which the latter maintains that a particular person of unsound mind has committed homicide (Article 249(1) in conjunction with (4) of the Code of Criminal Procedure), or

(b)      the court examines an application from the Public Prosecutor’s Office in which the latter maintains that the person concerned has committed homicide but that act does not constitute a criminal offence because the perpetrator suffers from a psychiatric disorder, and by which it seeks a court order for the imposition by the State of compulsory treatment,

afford vulnerable persons an effective remedy as stipulated in Article 13 in conjunction with Article 12 of Directive 2013/48 and Article 8(2) in conjunction with Article 3(2) of Directive 2012/13, and are the various powers available to the court depending on the nature of the procedure, the latter being itself dictated by whether the mental health of the person identified as the perpetrator is such as to render him criminally responsible, compatible with the principle of non–discrimination laid down in Article 21(1) of the Charter?’

Decision

1.      Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, and Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, must be interpreted as applying to judicial proceedings, such as those provided for by the national legislation at issue in the main proceedings, which authorise, on therapeutic and safety grounds, the committal to a psychiatric hospital of persons who, in a state of insanity, have committed acts representing a danger to society. Directive 2012/13 must be interpreted as meaning that persons suspected of having committed a criminal offence must be informed as soon as possible of their rights from the moment when they are subject to suspicions which justify, in circumstances other than an emergency, the restriction of their liberty by the competent authorities by means of coercive measures and, at the latest, before they are first officially questioned by the police.

2.      Article 47 of the Charter of Fundamental Rights of the European Union, Article 8(2) of Directive 2012/13 and Article 12 of Directive 2013/48 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides for judicial proceedings authorising, on therapeutic and safety grounds, the committal to a psychiatric hospital of persons who, in a state of insanity, have committed acts representing a danger to society, where that legislation does not enable the court with jurisdiction to verify that the procedural rights covered by those directives were respected in proceedings prior to those before that court, which were not subject to such judicial review.

3.      Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, and Article 51(1) of the Charter of Fundamental Rights must be interpreted as meaning that neither that directive nor that provision of the Charter of Fundamental Rights applies to judicial proceedings for the committal to a psychiatric hospital for therapeutic purposes, such as those provided for in Article 155 et seq. of the Zakon za zdraveto (Health Law), at issue in the main proceedings, on the ground that there is a risk that, in view of his state of health, the person concerned represents a danger to himself or others.

4.      The principle of the presumption of innocence referred to in Article 3 of Directive 2016/343 must be interpreted as requiring, in judicial proceedings for the committal to a psychiatric hospital, on therapeutic and safety grounds, of persons who, in a state of insanity, have committed acts representing a danger to society, such as that at issue in the main proceedings, that the Public Prosecutor’s Office provides proof that the person whose committal is sought is the perpetrator of acts deemed to constitute such a danger.

Case number

C–60/16

Case name

Khir Amayry

Document

Judgment ECLI:EU:C:2017:675

Date

13/09/2017

Source of the question referred for a preliminary ruling

Kammarrätten i Stockholm – Migrationsöverdomstolen (Administrative Court of Appeal for Immigration Matters, Stockholm, Sweden)

Name of the parties

Mohammad Khir Amayry v Migrationsverket

Subject matter

Area of freedom, security and justice; asylum policy; detention

Key words

Amayry – Determination of the Member State responsible for examining an application for international protection lodged in one of the Member States by a third–country national –Detention for the purposes of transfer of an applicant for international protection to the Member State responsible – Deadline for carrying out the transfer – Maximum period of detention – Calculation – Request to take charge accepted before the detention – Suspension of the implementation of the transfer decision

Question referred for a preliminary ruling

‘(1)      If an [applicant for international protection] is not in detention at the time when the Member State responsible agrees to take charge of him but is detained at a later date – on the ground that only then is the assessment made that there is a significant risk that the person will abscond – may the time limit of six weeks in Article 28(3) of the [Dublin III] Regulation … be calculated in such a situation from the day on which the person is detained or is it to be calculated from another time and, if so, when?

(2)      Does Article 28 of the [Dublin III] Regulation preclude, in a situation where an [applicant for international protection] is not in detention at the time when the Member State responsible agrees to take charge of him, the application of national rules which, in Sweden, mean that an alien may not be kept in detention pending [transfer] for longer than 2 months, if there are no serious reasons for detaining him for a longer period, and if there are such serious reasons, the alien may be kept in detention for a maximum of 3 months or, if it is probable that [the transfer] will take longer due to a lack of cooperation from the alien or it takes time to obtain the necessary documents, a maximum of 12 months?

(3)      If [a transfer] procedure is recommenced when an appeal or a review no longer has suspensive effect (see Article 27(3) [of the Dublin III Regulation]), does a new period of six weeks for implementation of the transfer start to run or is there a deduction to be made, for example, of the number of days the person has already spent in detention after the Member State responsible agreed to take charge of him or take him back?

(4)      Is it of any importance whether the [applicant for international protection] who appealed against a transfer decision has not himself applied for the implementation of the transfer decision to be suspended pending the result of the appeal (see Article 27(3)(c) and (4) [of the Dublin III Regulation])?’

Decision

1.      Article 28 of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third–country national or a stateless person, read in conjunction with Article 6 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that:

–        it does not preclude national legislation, such as that at issue in the main proceedings, which provides that, where the detention of an applicant for international protection begins after the requested Member State has accepted the take charge request, that detention may be maintained for no longer than two months, provided, first, that the duration of the detention does not go beyond the period of time which is necessary for the purposes of that transfer procedure, assessed by taking account of the specific requirements of that procedure in each specific case and, second, that, where applicable, that duration is not to be longer than six weeks from the date when the appeal or review ceases to have suspensive effect; and

–        it does preclude national legislation, such as that at issue in the main proceedings, which allows, in such a situation, the detention to be maintained for 3 or 12 months during which the transfer could be reasonably carried out.

2.      Article 28(3) of the Dublin III Regulation must be interpreted as meaning that the number of days during which the person concerned was already detained after a Member State has accepted the take charge or take back request need not be deducted from the six week period established by that provision, from the moment when the appeal or review no longer has suspensive effect.

3.      Article 28(3) of the Dublin III Regulation must be interpreted as meaning that the six week period beginning from the moment when the appeal or review no longer has suspensive effective, established by that provision, also applies when the suspension of the execution of the transfer decision was not specifically requested by the person concerned.

Case number

C–18/16

Case name

K.

Document

Judgment ECLI:EU:C:2017:680

Date

14/09/2017

Source of the question referred for a preliminary ruling

Rechtbank Den Haag zittingsplaats Haarlem (District Court, The Hague, sitting in Haarlem, Netherlands)

Name of the parties

K. v Staatssecretaris van Veiligheid en Justitie

 Subject matter

Area of freedom, security and justice; asylum policy; border control; detention

Key words

K. – Standards for the reception of applicants for international protection – Right to remain in a Member State during the examination of the application – Detention – Verification of identity or nationality – Determination of the elements on which the application for international protection is based – Validity – Charter of Fundamental Rights of the European Union – Restriction – Proportionality

Question referred for a preliminary ruling

‘Is the first subparagraph of Article 8(3)(a) and (b) of Directive 2013/33 valid in the light of Article 6 of the Charter:

(1)      in a situation where a third–country national is detained under the first subparagraph of Article 8(3)(a) and (b) of that directive and, under Article 9 of Directive 2013/32, has the right to remain in a Member State until a decision on his asylum application has been made at first instance, and

(2)      given the Explanation relating to the Charter of Fundamental Rights that the limitations which may legitimately be imposed on the rights in Article 6 of the Charter may not exceed those permitted by the ECHR in the wording of Article 5(1)(f), and the interpretation by the European Court of Human Rights of the latter provision in, inter alia, the judgment of 22 September 2015, Nabil and Others v.Hungary (CE:ECHR:2015:0922JUD006211612), that the detention of an asylum–seeker is contrary to the aforementioned Article 5(1)(f) if such detention was not imposed with a view to deportation?’

Decision

Consideration of point (e) of the first subparagraph of Article 8(3) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection has disclosed no factor of such a kind as to affect the validity of that provision in the light of Articles 6 and 52(1) and (3) of the Charter of Fundamental Rights of the European Union.

Case number

C–601/15 PPU

Case name

J.N.

Document

Judgment ECLI:EU:C:2016:84

Date

15/02/2016

Source of the question referred for a preliminary ruling

Raad van State (Council of State, Netherlands)

Name of the parties

J. N. v Staatssecretaris van Veiligheid en Justitie

Subject matter

Area of freedom, security and justice; asylum policy; border control; detention

Key words

N. – Urgent preliminary ruling procedure – Standards for the reception of applicants for international protection –Lawful residence – Right to remain in a Member State – Directive 2013/33/EU) – Detention – Protection of national security or public order – Validity – Charter of Fundamental Rights of the European Union – Limitation – Proportionality

Question referred for a preliminary ruling

‘Is point (e) of the first subparagraph of Article 8(3) of Directive 2013/33 valid in the light of Article 6 of the Charter:

(1)      in a situation where a third–country national has been detained pursuant to point (e) of the first subparagraph of Article 8(3) of that directive and, under Article 9 of Directive 2013/32, has the right to remain in a Member State until a decision on his asylum application has been made at first instance, and

(2)      in view of the Explanations relating to the Charter that the limitations which may legitimately be imposed on the rights in Article 6 of the Charter may not exceed those permitted by the ECHR in the wording of Article 5(1)(f) thereof, and in the light of the interpretation by the European Court of Human Rights of the latter provision in, inter alia, Nabil and Others v. Hungary, no. 62116/12, § 38, 22 September 2015, according to which the detention of an asylum seeker is contrary to the aforementioned Article 5(1)(f) if such detention was not imposed with a view to removal?’

Decision

Consideration of point (e) of the first subparagraph of Article 8(3) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection has disclosed no factor of such a kind as to affect the validity of that provision in the light of Articles 6 and 52(1) and (3) of the Charter of Fundamental Rights of the European Union.

Case number

C–237/15 PPU

Case name

Lanigan

Document

Judgment ECLI:EU:C:2015:474

Date

16/07/2015

Source of the question referred for a preliminary ruling

High Court (Ireland) 

Name of the parties

Minister for Justice and Equality v Francis Lanigan

Subject matter

Area of freedom, security and rights; judicial cooperation in criminal matters; police cooperation; European Arrest Warrant

Key words

Lanigan – Charter of Fundamental Rights of the European Union– Right to liberty and security – Police and judicial cooperation in criminal matters –European arrest warrant – Obligation to execute the European arrest warrant  – Keeping the requested person in detention – Surrender decision– Time–limits and detailed procedure for the decision on execution – Consequences of a failure to observe the time–limits

Question referred for a preliminary ruling

‘(1)      What is the effect of a failure to observe the time–limits stipulated in Article 17 of the Framework Decision … read in conjunction with the provisions of Article 15 of the … Framework Decision?

(2)      Does failure to observe the time–limits stipulated in Article 17 of the Framework Decision … give rise to rights on the part of an individual who has been held in custody pending a decision on his/her surrender for a period in excess of those time periods?’

Decision

Articles 15(1) and 17 of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that the executing judicial authority remains required to adopt the decision on the execution of the European arrest warrant after expiry of the time–limits stipulated in Article 17.

Article 12 of that Framework Decision, read in conjunction with Article 17 thereof and in the light of Article 6 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding, in such a situation, the holding of the requested person in custody, in accordance with the law of the executing Member State, even if the total duration for which that person has been held in custody exceeds those time–limits, provided that that duration is not excessive in the light of the characteristics of the procedure followed in the case in the main proceedings, which is a matter to be ascertained by the national court. If the executing judicial authority decides to bring the requested person’s custody to an end, that authority is required to attach to the provisional release of that person any measures it deems necessary so as to prevent him from absconding and to ensure that the material conditions necessary for his effective surrender remain fulfilled for as long as no final decision on the execution of the European arrest warrant has been taken.

Case number

C–146/14 PPU

Case name

Mahdi

Document

Judgment ECLI:EU:C:2014:1320

Date

05/06/2014

Source of the question referred for a preliminary ruling

Administrativen sad Sofija–grad (Bulgaria)

Name of the parties

Bashir Mohamed Ali Mahdi

Subject matter

Area of freedom, security and justice; asylum policy; border control; return of illegally staying third–country nationals

Key words

Mahdi – Visas, asylum, immigration and other policies related to free movement of persons –Return of illegally staying third–country nationals  – Detention – Extension of detention – Obligations of the administrative or judicial authority – Review by a judicial authority – Third–country national without identity documents – Obstacles to implementation of a removal decision – Refusal of the embassy of the third country concerned to issue an identity document enabling the third–country national to be returned – Risk of absconding – Reasonable prospect of removal – Lack of cooperation – Whether the Member State concerned is under an obligation to issue a temporary document relating to the status of the person concerned

Question referred for a preliminary ruling

‘(1)      Is Article 15(3) and (6) of Directive 2008/115, in conjunction with Articles 6 and 47 of the Charter, concerning the right to a judicial review and effective judicial protection, to be interpreted as meaning that:

(a)      where an administrative authority is obliged under the national law of a Member State to conduct a monthly review of detention without there being an express obligation to adopt an administrative measure and where it has to submit to the court ex officio a list of third–country nationals detained beyond the statutorily prescribed maximum length of the initial detention owing to obstacles to removal, the administrative authority is obliged, on the expiry of the period laid down in the individual decision to detain for the first time, either to adopt an express detention review measure having regard to the grounds for an extension of detention provided for under EU law or to release the person in question;

(b)      where the national law of the Member State in question provides for the courts to have the power, on the expiry of the maximum period for initial detention laid down under national law, to order an extension of the period of detention for removal purposes, to replace detention with a less coercive measure or to order the release of the third–country national, the court is obliged, in a situation such as that in the main proceedings, to examine the legality of a detention review measure that gives the legal and factual reasons for the need to extend the period of detention and the length thereof by deciding on the merits on the continuation of detention, its replacement or the release of the person in question;

(c)      it permits the court, having regard to the grounds for an extension of detention provided for under EU law, to examine the legality of a detention review measure that only gives reasons for which the decision to remove a third–country national cannot be implemented, by deciding the merits of the dispute in a decision on the continuation of detention, its replacement or the release of the person in question solely on the basis of facts stated and evidence adduced by the administrative authority and facts and objections stated by the third‑country national?

(2)      Is Article 15(1) and (6) of Directive 2008/115 to be interpreted, in a situation such as that obtaining in the main proceedings, as meaning that the autonomous reason for extending detention provided for under national law, namely that ‘the person in question … [has] no identity documents’, is permissible from the point of view of EU law as subsumable under both cases mentioned in Article 15(6) of the directive where, under the national law of the Member State, because of those circumstances it can be assumed that there is reason to believe that the person in question will attempt to circumvent implementation of the removal decision, which in turn presents a risk of absconding within the meaning of the law of that Member State?

(3)      Are paragraphs 1(a) and (b) and 6 of Article 15 of Directive 2008/115, in conjunction with recitals 2 and 13 in the preamble to the directive with regard to respect for the fundamental rights and dignity of third–country nationals and the application of the principle of proportionality, to be interpreted in a situation such as that obtaining in the main proceedings as permitting the conclusion that there is a reasonable risk of absconding owing to the fact that the person in question has no identity documents, has crossed the state boundary illegally and has said that he will not return to his country of origin, even though he has previously completed a statement as to his voluntary return and provided correct details of his identity, when these circumstances fall within the concept of a ‘risk of absconding’ in the case of the addressee of a return decision within the meaning of the directive, which is defined under national law as reason to believe, based on the facts, that the person in question will attempt to circumvent implementation of the return decision?

(4)      Are paragraphs 1(a) and (b), 4 and 6 of Article 15 of Directive 2008/115, in conjunction with recitals 2 and 13 in the preamble to the directive with regard to respect for the fundamental rights and dignity of third–country nationals and the application of the principle of proportionality, to be interpreted in a situation such as that obtaining in the main proceedings as meaning that:

(a)      the third–country national does not demonstrate cooperation in the preparation of implementation of the decision to return him to his country of origin if he states verbally to an embassy official of that country that he does not wish to return to his country of origin even though he has previously completed a statement as to his voluntary return and provided correct details of his identity, and there are delays in obtaining the necessary documentation from the third country and there is a reasonable prospect of implementation of the return decision, if in these circumstances the embassy of that country does not issue the document necessary for the person in question to travel to his country of origin even though it has confirmed that person’s identity;

(b)      in the event of the release of a third–country national on account of the absence of a reasonable prospect of implementation of a removal decision where that third–country national has no identity documents, has crossed the state border illegally and states that he does not wish to return to his country of origin, it is to be assumed that the Member State is under an obligation to issue a temporary document on the status of the person in question if the embassy of the country of origin does not in these circumstances issue the document required for the person in question to travel to his country of origin even though it has confirmed that person’s identity?’

Decision

1.      Article 15(3) and (6) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third–country nationals, read in the light of Articles 6 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that any decision adopted by a competent authority, on expiry of the maximum period allowed for the initial detention of a third–country national, on the further course to take concerning the detention must be in the form of a written measure that includes the reasons in fact and in law for that decision.

2.      Article 15(3) and (6) of Directive 2008/115 must be interpreted as meaning that the ‘supervision’ that has to be undertaken by a judicial authority dealing with an application for extension of the detention of a third–country national must permit that authority to decide, on a case–by–case basis, on the merits of whether the detention of the third–country national concerned should be extended, whether detention may be replaced with a less coercive measure or whether the person concerned should be released, that authority thus having power to take into account the facts stated and evidence adduced by the administrative authority which has brought the matter before it, as well as any facts, evidence and observations which may be submitted to the judicial authority in the course of the proceedings.

3.      Article 15(1) and (6) of Directive 2008/115 must be interpreted as precluding national legislation such as that at issue in the main proceedings, pursuant to which an initial six–month period of detention may be extended solely because the third–country national concerned has no identity documents. It is for the referring court alone to undertake an individual assessment of the facts and circumstances of the case in question in order to determine whether a less coercive measure may be applied effectively to that third–country national or whether there is a risk of him absconding.

4.      Article 15(6)(a) of Directive 2008/115 must be interpreted as meaning that a third–country national who, in circumstances such as those in issue in the main proceedings, has not obtained an identity document which would have made it possible for him to be removed from the Member State concerned may be regarded as having demonstrated a ‘lack of cooperation’ within the meaning of that provision only if an examination of his conduct during the period of detention shows that he has not cooperated in the implementation of the removal operation and that it is likely that that operation lasts longer than anticipated because of that conduct, a matter which falls to be determined by the referring court.

5.      Directive 2008/115 must be interpreted as meaning that a Member State cannot be obliged to issue an autonomous residence permit, or other authorisation conferring a right to stay, to a third–country national who has no identity documents and has not obtained such documentation from his country of origin, after a national court has released the person concerned on the ground that there is no longer a reasonable prospect of removal within the meaning of Article 15(4) of that directive. However, that Member State must, in such a case, provide the third–country national with written confirmation of his situation.

Case number

C–69/21

Case name

Staatssecretaris van Justitie en Veiligheid (Éloignement – Cannabis thérapeutique)

Document

Judgment ECLI:EU:C:2022:913

Date

22/11/2022

Source of the question referred for a preliminary ruling

Rechtbank Den Haag (District Court, The Hague, Netherlands)

Name of the parties

X v Staatssecretaris van Justitie en Veiligheid

Subject matter

Area of freedom, security and justice  – asylum policy, border control; the legality of the return process

Key words

X – Asylum policy – Charter of Fundamental Rights of the European Union – Prohibition – Inhuman or degrading treatment – Respect – Private and family life – Protection – Removal, expulsion or extradition – Right of residence – Medical grounds – Standards and procedures – Member States – Illegal return – Third country nationals – Serious illness – Treatment – Pain relief – Country of origin – Removal

Question referred for a preliminary ruling

‘(1)            Can a significant increase in pain intensity due to a lack of medical treatment, while the clinical picture remains unchanged, constitute a situation which is contrary to Article 19(2) of the [Charter], read in conjunction with Article 1 of the Charter and Article 4 of the Charter, if no postponement of the departure obligation resulting from [Directive 2008/115] is permitted?

(2)      Is the setting of a fixed period within which the consequences of the lack of medical treatment must materialise in order to constitute a medical obstacle to an obligation to return resulting from [Directive 2008/115] compatible with Article 4 of the Charter, read in conjunction with Article 1 of the Charter? If the setting of a fixed period is not contrary to EU law, is a Member State then permitted to set a general period that is the same for all possible medical conditions and all possible medical consequences?

(3)      Is a determination that the consequences of expulsion should be assessed solely in terms of whether, and under what conditions, the foreign national can travel, compatible with Article 19(2) of the Charter, read in conjunction with Article 1 of the Charter and Article 4 of the Charter, and with [Directive 2008/115]?

(4)      Does Article 7 of the Charter, read in conjunction with Article 1 of the Charter and Article 4 of the Charter, and in the light of [Directive 2008/115], require that the medical condition of the foreign national and the treatment he is undergoing in the Member State be assessed when determining whether private life considerations should result in permission to stay being granted? Does Article 19(2) of the Charter, read in conjunction with Article 1 of the Charter and Article 4 of the Charter, and in the light of [Directive 2008/115], require that private life and family life, as referred to in Article 7 of the Charter, be taken into account when assessing whether medical problems may constitute an obstacle to expulsion?’

Decision

1.      Article 5 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third–country nationals, read in conjunction with Articles 1 and 4 of the Charter of Fundamental Rights of the European Union as well as Article 19(2) thereof must be interpreted as precluding a return decision from being taken or a removal order from being made in respect of a third–country national who is staying illegally on the territory of a Member State and suffering from a serious illness, where there are substantial grounds for believing that the person concerned would be exposed, in the third–country to which he or she would be removed, to a real risk of a significant, permanent and rapid increase in his or her pain, if he or she were returned, on account of the only effective analgesic treatment being prohibited in that country. A Member State may not lay down a strict period within which such an increase must be liable to materialise in order to preclude that return decision or that removal order.

2.      Article 5 and Article 9(1)(a) of Directive 2008/115, read in conjunction with Articles 1 and 4 of the Charter of Fundamental Rights as well as Article 19(2) thereof

must be interpreted as precluding the consequences of the removal order in the strict sense on the state of health of a third–country national from being taken into account by the competent national authority solely in order to examine whether he or she is able to travel.

3.      Directive 2008/115, read in conjunction with Article 7, as well as Article 1 and 4 of the Charter of Fundamental Rights must be interpreted as:

–        meaning that it does not require the Member State on whose territory a third–country national is staying illegally to grant that national a right of residence where he or she cannot be the subject of a return decision or a removal order because there are substantial grounds for believing that he or she would be exposed, in the receiving country, to a real risk of a rapid, significant and permanent increase in the pain caused by the serious illness from which he or she suffers;

–        the state of health of that national and the care he or she receives on that territory, on account of that illness, must be taken into account, together with all the other relevant factors, by the competent national authority when it examines whether the right to respect for the private life of that national precludes him or her being the subject of a return decision or a removal order;

 –        the adoption of such a decision or measure does not infringe that right on the sole ground that, if he or she were returned to the receiving country, that national would be exposed to the risk that his or her state of health deteriorates, where such a risk does not reach the severity threshold required under Article 4 of the Charter.

Case number

C–19/21

Case name

Staatssecretaris van Justitie en Veiligheid (Refus de prise en charge d’un mineur égyptien non accompagné)

Document

Judgment ECLI:EU:C:2022:605

Date

01/08/2022

Source of the question referred for a preliminary ruling

Rechtbank Den Haag zittingsplaats Haarlem (District Court, The Hague, sitting in Haarlem, Netherland)

Name of the parties

I, S v Staatssecretaris voor Justitie en Veiligheid

Subject matter

Area of freedom, security and justice; asylum policy; refusal of an application for admission

Key words

I, S – Criteria and mechanisms for determining the Member State responsible for examining an application for international protection  – Unaccompanied minor with a relative legally present in another Member State – Refusal by that Member State of that minor’s take charge request – Right to an effective remedy of that minor or of that relative against the refusal decision – Charter of Fundamental Rights of the European Union – Best interests of the child

Question referred for a preliminary ruling

‘(1)      Must Article 27 of the [Dublin III Regulation] be interpreted as requiring the requested Member State, whether or not in conjunction with Article 47 of the Charter, to provide the applicant residing in the requesting Member State and seeking transfer pursuant to Article 8 (or Article 9 or 10) of the [Dublin III Regulation], or the applicant’s family member referred to in Article 8, 9 or 10 of the [Dublin III Regulation], with an effective remedy before a court or tribunal against the refusal of the request to take charge?

(2)      If the answer to the first question is in the negative and Article 27 of the [Dublin III Regulation] does not provide a basis for an effective remedy, must Article 47 of the Charter – read in conjunction with the fundamental right to family unity and the best interests of the child (as laid down in Articles 8 to 10 and recital 19 of the [Dublin III Regulation]) – be interpreted as requiring the requested Member State to provide the applicant residing in the requesting Member State and seeking transfer pursuant to [Articles 8 to 10)] of the [Dublin III Regulation] or the [relative] of the applicant referred to in [that provision], with an effective remedy before a court or tribunal against the refusal of the request to take charge?

(3)      If Question [1] or Question [2] (second part) is answered in the affirmative, in what way and by which Member State should the requested Member State’s decision to refuse the request and the right to appeal against it be communicated to the applicant or the applicant’s [relative]?’

Decision

Article 27(1) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third–country national or a stateless person, read in conjunction with Articles 7, 24 and 47 of the Charter of Fundamental Rights of the European Union,

must be interpreted as meaning that:

it requires a Member State to which a take charge request has been made, based on Article 8(2) of that regulation, to grant a right to a judicial remedy against its refusal decision to the unaccompanied minor, within the meaning of Article 2(j) of that regulation, who applies for international protection, but not to the relative of that minor, within the meaning of Article 2(h) of that regulation.

Case number

C–709/20

Case name

The Department for Communities in Northern Ireland

Document

Judgment ECLI:EU:C:2021:602

Date

15/07/2021

Source of the question referred for a preliminary ruling

Appeal Tribunal for Northern Ireland (United Kingdom)

Name of the parties

CG v The Department for Communities in Northern Ireland

Subject matter

Union citizenship; non–discrimination on grounds of nationality; refusal of social assistance

Key words

CG –  Citizenship of the Union – National of a Member State without an activity residing in the territory of another Member State on the basis of national law – Non–discrimination based on nationality – Conditions for obtaining a right of residence for more than three months –Social assistance – Concept – Equal treatment – Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland – Transition period – National provision excluding Union citizens with a right of residence for a fixed period under national law from social assistance – Charter of Fundamental Rights of the European

Question referred for a preliminary ruling

‘1.      ‘Is Regulation 9(3)[d](i) of the [2016 Universal Credit Regulations], which was inserted by [the 2019 Social Security Regulations], which excludes from entitlement to social security benefits [EU citizens] with a domestic right of residence (Limited Leave to Remain) [in this case ‘pre–settled status’ under Appendix EU] unlawfully discriminatory (either directly or indirectly) pursuant to Article 18 [TFEU] and inconsistent with the [United Kingdom’s] obligations under the European Communities Act 1972?

2.      If the answer to question 1 is in the affirmative, and Regulation 9(3)[d](i) of the [2016 Universal Credit Regulations] is held to be indirectly discriminatory, is [that provision] justified pursuant to Article 18 [TFEU] and inconsistent with the [United Kingdom’s] obligations under the European Communities Act 1972?’

Decision

Article 24 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 not precluding the legislation of a host Member State which excludes from social assistance economically inactive Union citizens who do not have sufficient resources and to whom that State has granted a temporary right of residence, where those benefits are guaranteed to nationals of the Member State concerned who are in the same situation.

However, provided that a Union citizen resides legally, on the basis of national law, in the territory of a Member State other than that of which he or she is a national, the national authorities empowered to grant social assistance are required to check that a refusal to grant such benefits based on that legislation does not expose that citizen, and the children for which he or she is responsible, to an actual and current risk of violation of their fundamental rights, as enshrined in Articles 1, 7 and 24 of the Charter of Fundamental Rights of the European Union. Where that citizen does not have any resources to provide for his or her own needs and those of his or her children and is isolated, those authorities must ensure that, in the event of a refusal to grant social assistance, that citizen may nevertheless live with his or her children in dignified conditions. In the context of that examination, those authorities may take into account all means of assistance provided for by national law, from which the citizen concerned and her children are actually entitled to benefit.

Case number

C–694/20

Case name

Orde van Vlaamse Balies and Others

Document

Judgment ECLI:EU:C:2022:963

Date

08/12/2022

Source of the question referred for a preliminary ruling

Grondwettelijk Hof (Constitutional Court, Belgium)

Name of the parties

Orde van Vlaamse Balies, IG, Belgian Association of Tax Lawyers, CD, JU v Vlaamse Regering,

Subject matter

Administrative cooperation in the field of taxation; automatic data exchange

Key words

CD –  JU – Administrative cooperation in the field of taxation – Mandatory automatic exchange of information in relation to reportable cross–border arrangements –Validity – Legal professional privilege of the lawyer – Exemption from the reporting obligation for the benefit of lawyer–intermediaries subject to legal professional privilege – Obligation on that lawyer–intermediary to notify any other intermediary who is not his or her client of that intermediary’s reporting obligations –Charter of Fundamental Rights of the European Union

Question referred for a preliminary ruling

‘Does Article 1(2) of [Directive 2018/822] infringe the right to a fair trial as guaranteed by Article 47 of the [Charter] and the right to respect for private life as guaranteed by Article 7 of the [Charter], in that the new Article 8ab(5) which it inserted in [Directive 2011/16], provides that, where a Member State takes the necessary measures to give intermediaries the right to waiver from filing information on a reportable cross–border arrangement where the reporting obligation would breach the legal professional privilege under the national law of that Member State, that Member State is obliged to require the intermediaries to notify, without delay, any other intermediary or, if there is no such intermediary, the relevant taxpayer, of their reporting obligations, in so far as the effect of that obligation is to oblige a lawyer acting as an intermediary to share with another intermediary, not being his [or her] client, information which he [or she] obtains in the course of the essential activities of his [or her] profession, namely, representing or defending clients in legal proceedings and giving legal advice, even in the absence of pending legal proceedings?’

Decision

Article 8ab(5) of Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC, as amended by Council Directive (EU) 2018/822 of 25 May 2018, is invalid in the light of Article 7 of the Charter of Fundamental Rights of the European Union, in so far as the Member States’ application of that provision has the effect of requiring a lawyer acting as an intermediary, within the meaning of Article 3(21) of that directive, as amended, where he or she is exempt from the reporting obligation laid down in paragraph 1 of Article 8ab of that directive, as amended, on account of the legal professional privilege by which he or she is bound, to notify without delay any other intermediary who is not his or her client of that intermediary’s reporting obligations under paragraph 6 of that Article 8ab.

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. v 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–483/20

Case name

Commissaire général aux réfugiés and aux apatrides (Unité familiale – Protection déjà accordée)

Document

Judgment ECLI:EU:C:2022:103

Date

22/02/2022

Source of the question referred for a preliminary ruling

Conseil d’État (Belgium)

Name of the parties

XXXX v Commissaire général aux réfugiés et aux apatrides

 Subject matter

Area of freedom, security and justice; common asylum policy; border control; rejection of an application for international protection

Key words

XXXX – Common policy on asylum – Common procedures for granting and withdrawing international protection –– Inadmissibility of an application for international protection lodged in a Member State by a third–country national who has obtained refugee status in another Member State, where the minor child of that third–country national, who is a beneficiary of subsidiary protection status, resides in the first Member State – Charter of Fundamental Rights of the European Union – Right to respect for family life – Best interests of the child – Charter of Fundamental Rights due to the inadmissibility of the application for international protection –– Obligation on the Member States to ensure the family unity of beneficiaries of international protection is maintained

Question referred for a preliminary ruling

Common policy on asylum – Common procedures for granting and withdrawing international protection – Directive 2013/32/EU – Article 33(2)(a) – Inadmissibility of an application for international protection lodged in a Member State by a third–country national who has obtained refugee status in another Member State, where the minor child of that third–country national, who is a beneficiary of subsidiary protection status, resides in the first Member State – Charter of Fundamental Rights of the European Union – Article 7 – Right to respect for family life – Article 24 – Best interests of the child – No infringement of Articles 7 and 24 of the Charter of Fundamental Rights due to the inadmissibility of the application for international protection – Directive 2011/95/EU – Article 23(2) – Obligation on the Member States to ensure the family unity of beneficiaries of international protection is maintained

Decision

Article 33(2)(a) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, read in the light of Article 7 and Article 24(2) of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding a Member State from exercising the option available to it under that provision to refuse to grant an application for international protection on the ground that it is inadmissible because the applicant has already been granted refugee status by another Member State, where that applicant is the father of a child who is an unaccompanied minor who has been granted subsidiary protection in the first Member State, without prejudice, nevertheless, to the application of Article 23(2) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third–country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted.

Case number

C–460/20

Case name

Google (Déréférencement d’un contenu prétendument inexact)

Document

Judgment ECLI:EU:C:2022:962

Date

08/12/2022

Source of the question referred for a preliminary ruling

Bundesgerichtshof (Federal Court of Justice, Germany)

Name of the parties

TU, RE v Google LLC

Subject matter

Protection of personal data; removal from search hits

Key words

TU, RE – Protection of natural persons with regard to the processing of personal data –  Operator of an internet search engine – Research carried out on the basis of a person’s name – Displaying a link to articles containing allegedly inaccurate information in the list of search results – Displaying, in the form of thumbnails, photographs illustrating those articles in the list of results of an image search – Request for de–referencing made to the operator of the search engine – Weighing–up of fundamental rights – Charter of Fundamental Rights of the European Union – Obligations and responsibilities of the operator of the search engine in respect of processing a request for de–referencing – Burden of proof on the person requesting de–referencing

Question referred for a preliminary ruling

‘(1)      Is it compatible with the data subject’s right to respect for private life (Article 7 of the [Charter]) and to protection of personal data (Article 8 of the Charter) if, within the context of the weighing–up of conflicting rights and interests arising from Articles 7, 8, 11 and 16 of the Charter, within the scope of the examination of his [or her] request for de–referencing brought against the data controller of an internet search engine, pursuant to Article 17(3)(a) of [the GDPR], when the link, the de–referencing of which [that person] is requesting, leads to content that includes factual claims and value judgments based on factual claims the truth of which is denied by the data subject, and the lawfulness of which depends on the question of the extent to which the factual claims contained in that content are true, the national court also concentrates conclusively on the issue of whether the data subject could reasonably seek legal protection against the content provider, for instance by means of interim relief, and thus at least provisional clarification on the question of the truth of the content displayed by the search engine data controller could be provided?

(2)      In the case of a request for de–referencing made against the data controller of an internet search engine, which in a name search searches for photos of natural persons which third parties have introduced into the internet in connection with the person’s name, and which displays the photos which it has found in its search results as preview images (thumbnails), within the context of the weighing–up of the conflicting rights and interests arising from Articles 7, 8, 11 and 16 of the Charter pursuant to Article 12(b) and [point (a) of the first paragraph of Article 14] of Directive [95/46 or] Article 17(3)(a) of [the GDPR], should the context of the original third–party publication be conclusively taken into account, even if the third–party website is linked by the search engine when the preview image is displayed but is not specifically named, and the resulting context is not shown with it by the internet search engine?’

Decision

1.      Article 17(3)(a) 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 within the context of the weighing–up exercise which is to be undertaken between the rights referred to in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, on the one hand, and those referred to in Article 11 of the Charter of Fundamental Rights, on the other hand, for the purposes of examining a request for de–referencing made to the operator of a search engine seeking the removal of a link to content containing claims which the person who submitted the request regards as inaccurate from the list of search results, that de–referencing is not subject to the condition that the question of the accuracy of the referenced content has been resolved, at least provisionally, in an action brought by that person against the content provider.

2.      Article 12(b) and point (a) of the first paragraph of Article 14 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, as well as Article 17(3)(a) of Regulation 2016/679

must be interpreted as meaning that in the context of the weighing–up exercise which is to be undertaken between the rights referred to in Articles 7 and 8 of the Charter of Fundamental Rights, on the one hand, and those referred to in Article 11 of the Charter of Fundamental Rights, on the other hand, for the purposes of examining a request for de–referencing made to the operator of a search engine seeking the removal from the results of an image search carried out on the basis of the name of a natural person of photographs displayed in the form of thumbnails representing that person, account must be taken of the informative value of those photographs regardless of the context of their publication on the internet page from which they are taken, but taking into consideration any text element which accompanies directly the display of those photographs in the search results and which is capable of casting light on the informative value of those photographs.

Case number

C–339/20

Case name

VD

Document

Judgment ECLI:EU:C:2022:703

Date

20/9/2022

Source of the question referred for a preliminary ruling

Cour de cassation (Court of Cassation, France)

Name of the parties

Criminal proceedings against VD (C–339/20) and SR (C–397/20)

Subject matter

Right of establishment – financial services; insider dealing and market abuse

Key words

VD –Single Market for financial services – Market abuse – Insider dealing –Supervisory and investigatory powers of the Autorité des marchés financiers (AMF) – General interest objective seeking to protect the integrity of financial markets in the European Union and public confidence in financial instruments – Option open to the AMF to require the traffic data records held by an operator providing electronic communications services – Processing of personal data in the electronic communications sector – Charter of Fundamental Rights of the European Union – Confidentiality of communications – Restrictions – Legislation providing for the general and indiscriminate retention of traffic data by operators providing electronic communications services – Option for a national court to restrict the temporal effects of a declaration of invalidity in respect of provisions of national law that are incompatible with EU law – Precluded

Question referred for a preliminary ruling

‘(1)      Do Article 12(2)(a) and (d) of Directive [2003/6] and Article 23(2)(g) and (h) of Regulation [No 596/2014], which replaced that directive from 3 July 2016, read in the light of recital 65 of that regulation, not imply that, account being taken of the covert nature of the information exchanged and the fact that the potential subjects of investigation are members of the general public, the national legislature must be able to require electronic communications operators to retain connection data on a temporary but general basis in order to enable the administrative authority referred to in Article 11 of [Directive 2003/6] and Article 22 of [Regulation No 596/2014], in the event of the emergence of grounds for suspecting certain persons of being involved in insider dealing or market manipulation, to require the operator to surrender existing records of traffic data in cases where there are reasons to suspect that the records so linked to the subject matter of the investigation may prove relevant to the production of evidence of the actual commission of the breach, to the extent, in particular, that they offer a means of tracing the contacts established by the persons concerned before the suspicions emerged?

(2)      If the answer … [to the first question] is such as to prompt the Cour de cassation (Court of Cassation) to form the view that the French legislation on the retention of connection data is not consistent with EU law, could the effects of that legislation be temporarily maintained in order to avoid legal uncertainty and to enable data previously collected and retained to be used for one of the objectives of that legislation?

(3)      May a national court temporarily maintain the effects of legislation enabling the officials of an independent administrative authority responsible for investigating market abuse to obtain access to obtain connection data without prior review by a court or another independent administrative authority?’

Decision

1.      Article 12(2)(a) and (d) of Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) and Article 23(2)(g) and (h) of Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6 and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC, read in conjunction with Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, and read in the light of Articles 7, 8 and 11 and of Article 52(1) of the Charter of Fundamental Rights of the European Union

must be interpreted as precluding legislative measures which, as a preventive measure, in order to combat market abuse offences including insider dealing, provide for the general and indiscriminate retention of traffic data for a year from the date on which they were recorded.

2.      European Union law must be interpreted as precluding a national court from restricting the temporal effects of a declaration of invalidity which it is required to make, under national law, with respect to provisions of national law which, first, require operators providing electronic communications services to retain generally and indiscriminately traffic data and, second, allow such data to be submitted to the competent financial authority, without prior authorisation from a court or independent administrative authority, owing to the incompatibility of those provisions with Article 15(1) of Directive 2002/58, as amended by Directive 2009/136, read in the light of the Charter of Fundamental Rights of the European Union. The admissibility of evidence obtained pursuant to provisions of national law that are incompatible with EU law 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.

Case number

C–184/20

Case name

Vyriausioji tarnybinės etikos komisija

Document

Judgment ECLI:EU:C:2022:601

Date

01/08/2022

Source of the question referred for a preliminary ruling

Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania)

Name of the parties

OT v Vyriausioji tarnybinės etikos komisija, third party: Fondas ‘Nevyriausybinių organizacijų informacijos ir paramos centras

Subject matter

Protection of personal data; declaration of privacy interests

Key words

OT – Protection of natural persons with regard to the processing of personal data – Charter of Fundamental Rights of the European Union – Processing necessary for compliance with a legal obligation to which the controller is subject – Objective of public interest – Proportionality – Processing of special categories of personal data – National legislation requiring publication on the internet of data contained in the declarations of private interests of natural persons working in the public service or of heads of associations or establishments receiving public funds – Prevention of conflicts of interest and of corruption in the public sector

Question referred for a preliminary ruling

‘(1)      Must the condition laid down in [point (e) of the first subparagraph of Article 6(1)] of the [GDPR] that processing [of the personal data] is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, with regard to the requirements laid down in Article 6(3) of [that regulation], including the requirement that the Member State law must meet an objective of public interest and be proportionate to the legitimate aim pursued, and also with regard to Articles 7 and 8 of the Charter, be interpreted as meaning that national law may not require the disclosure of declarations of private interests and their publication on the website of the controller (the [Chief Ethics Commission]), thereby providing access to those data to all individuals who have access to the internet?

(2)      Must the prohibition of the processing of special categories of personal data established in Article 9(1) of the [GDPR], regard being had to the conditions established in Article 9(2) of [that regulation], including the condition established in point (g) thereof that processing [of the personal data] must be necessary for reasons of substantial public interest, on the basis of EU or Member State law which must be proportionate to the aim pursued, must respect the essence of the right to data protection and must provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject, be interpreted, also with regard to Articles 7 and 8 of the Charter, as meaning that national law may not require the disclosure of data relating to declarations of private interests which may disclose personal data, including data which make it possible to determine a person’s political views, trade union membership, sexual orientation and other personal information, and their publication on the website of the controller (the [Chief Ethics Commission]), providing access to those data to all individuals who have access to the internet?’

Decision

1.      Article 7(c) 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 and point (c) of the first subparagraph of Article 6(1) and Article 6(3) 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), read in the light of Articles 7, 8 and 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation that provides for the publication online of the declaration of private interests that any head of an establishment receiving public funds is required to lodge, in so far as, in particular, that publication concerns name–specific data relating to his or her spouse, cohabitee or partner, or to persons who are close relatives of the declarant, or are known by him or her, liable to give rise to a conflict of interests, or concerns any transaction concluded during the last 12 calendar months the value of which exceeds EUR 3 000.

2.      Article 8(1) of Directive 95/46 and Article 9(1) of Regulation 2016/679 must be interpreted as meaning that the publication, on the website of the public authority responsible for collecting and checking the content of declarations of private interests, of personal data that are liable to disclose indirectly the sexual orientation of a natural person constitutes processing of special categories of personal data, for the purpose of those provisions.

Case number

C–140/20

Case name

Commissioner of An Garda Síochána

Document

Judgment ECLI:EU:C:2022:258

Date

05/04/2022

Source of the question referred for a preliminary ruling

Supreme Court (Ireland) 

Name of the parties

G. D. v The Commissioner of the Garda Síochána and Others

Subject matter

Personal data protection; information and communication technologies; telecommunications; data storage

Key words

G.D. – Processing of personal data in the electronic communications sector – Confidentiality of the communications – Providers of electronic communications services – General and indiscriminate retention of traffic and location data – Access to retained data – Subsequent court supervision– Charter of Fundamental Rights of the European Union – Possibility for a national court to restrict the temporal effect of a declaration of the invalidity of national legislation that is incompatible with EU law – Excluded

Question referred for a preliminary ruling

‘(1)      Is a general/universal data retention regime – even subject to stringent restrictions on retention and access – per se contrary to the provisions of Article 15 of Directive [2002/58], interpreted in the light of the Charter?

(2)      In considering whether to grant a declaration of inconsistency of a national measure implemented pursuant to Directive [2006/24], and making provision for a general data retention regime (subject to the necessary stringent controls on retention and/or in relation to access), and in particular in assessing the proportionality of any such regime, is a national court entitled to have regard to the fact that data may be retained lawfully by service providers for their own commercial purposes, and may be required to be retained for reasons of national security excluded from the provisions of Directive [2002/58]?

(3)      In assessing, in the context of determining the compatibility with [EU] law and in particular with Charter Rights of a national measure for access to retained data, what criteria should a national court apply in considering whether any such access regime provides the required independent prior scrutiny as determined by the Court of Justice in its case–law? In that context, can a national court, in making such an assessment, have any regard to the existence of ex post judicial or independent scrutiny?

(4)      In any event, is a national court obliged to declare the inconsistency of a national measure with the provisions of Article 15 of [Directive 2002/58], if the national measure makes provision for a general data retention regime for the purpose of combating serious crime, and where the national court has concluded, on all the evidence available, that such retention is both essential and strictly necessary to the achievement of the objective of combating serious crime?

(5)      If a national court is obliged to conclude that a national measure is inconsistent with the provisions of Article 15 of Directive [2002/58], as interpreted in the light of the Charter, is it entitled to limit the temporal effect of any such declaration, if satisfied that a failure to do so would lead to ‘resultant chaos and damage to the public interest’ (in line with the approach taken, for example, in R (National Council for Civil Liberties) v Secretary of State for Home Department and Secretary of State for Foreign Affairs [2018] EWHC 975, at paragraph 46)?

(6)      May a national court invited to declare the inconsistency of national legislation with Article 15 of [Directive 2002/58], and/or to disapply this legislation, and/or to declare that the application of such legislation had breached the rights of an individual, either in the context of proceedings commenced in order to facilitate an argument in respect of the admissibility of evidence in criminal proceedings or otherwise, be permitted to refuse such relief in respect of data retained pursuant to the national provision enacted pursuant to the obligation under Article 288 TFEU to faithfully introduce into national law the provisions of a directive, or to limit any such declaration to the period after the declaration of invalidity of [Directive 2006/24] issued by the [judgment of 8 April 2014, Digital Rights Ireland and Others (C‑293/12 and C‑594/12, EU:C:2014:238)]?’

Decision

1.      Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding legislative measures which, as a preventive measure for the purposes of combating serious crime and preventing serious threats to public security, provide for the general and indiscriminate retention of traffic and location data. However, that Article 15(1), read in the light of Articles 7, 8, 11 and 52(1) of the Charter of Fundamental Rights, does not preclude legislative measures that provide, for the purposes of safeguarding national security, combating serious crime and preventing serious threats to public security, for

–        the targeted retention of traffic and location data which is limited, on the basis of objective and non–discriminatory factors, according to the categories of persons concerned or using a geographical criterion, for a period that is limited in time to what is strictly necessary, but which may be extended;

–        the general and indiscriminate retention of IP addresses assigned to the source of an internet connection for a period that is limited in time to what is strictly necessary;

–        the general and indiscriminate retention of data relating to the civil identity of users of electronic communications systems; and

–        recourse to an instruction requiring providers of electronic communications services, by means of a decision of the competent authority that is subject to effective judicial review, to undertake, for a specified period of time, the expedited retention of traffic and location data in the possession of those service providers,

provided that those measures ensure, by means of clear and precise rules, that the retention of data at issue is subject to compliance with the applicable substantive and procedural conditions and that the persons concerned have effective safeguards against the risks of abuse.

2.      Article 15(1) of Directive 2002/58, as amended by Directive 2009/136, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights, must be interpreted as precluding national legislation pursuant to which the centralised processing of requests for access to data, which have been retained by providers of electronic communications services, issued by the police in the context of the investigation or prosecution of serious criminal offences, is the responsibility of a police officer, who is assisted by a unit established within the police service which has a degree of autonomy in the exercise of its duties, and whose decisions may subsequently be subject to judicial review.

3.      EU law must be interpreted as precluding a national court from limiting the temporal effects of a declaration of invalidity which it is bound to make, under national law, with respect to national legislation imposing on providers of electronic communications services the general and indiscriminate retention of traffic and location data, owing to the incompatibility of that legislation with Article 15(1) of Directive 2002/58, as amended by Directive 2009/136, read in the light of the Charter of Fundamental Rights. The admissibility of evidence obtained by means of such retention 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.

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 v Conseil des ministres

Subject matter

Protection of personal data – Area of freedom, security and justice; judicial cooperation in civil cases; 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 – 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

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.

Case number

C–793/19

Case name

SpaceNet

Document

Judgment ECLI:EU:C:2022:702

Date

20/09/2022

Source of the question referred for a preliminary ruling

Bundesverwaltungsgericht (Federal Administrative Court, Germany)

Name of the parties

Bundesrepublik Deutschlandrepresented by the Bundesnetzagentur für Elektrizität, Gas, Telekommunikation, Post und Eisenbahnen v SpaceNet AG (C–793/19), Telekom Deutschland GmbH (C–794/19),

Subject matter

Personal data protection; information and communication technologies; telecommunications; data storage

Key words

SpaceNet – Processing of personal data in the electronic communications sector – Confidentiality of communications – Providers of electronic communications services – General and indiscriminate retention of traffic and location data – Charter of Fundamental Rights of the European Union

Question referred for a preliminary ruling

‘In the light of Articles 7, 8 and 11 and Article 52(1) of the [Charter], on the one hand, and of Article 6 of the [Charter] and Article 4 [TEU], on the other hand, is Article 15 of Directive [2002/58] to be interpreted as precluding national legislation which obliges providers of publicly available electronic communications services to retain traffic and location data of end users of those services where:

(1)      that obligation does not require a specific reason in terms of location, time or region,

(2)      the following data are the subject of the retention obligation in the provision of publicly available telephone services – including the transmission of SMS, multimedia messages or similar messages and unanswered or unsuccessful calls:

(a)      the telephone number or other identifier of the calling and called parties as well as, in the case of call switching or forwarding, of every other line involved,

(b)      the date and time of the start and end of the call or – in the case of the transmission of a short message, multimedia message or similar message – the times of dispatch and receipt of the message, and an indication of the relevant time zone,

(c)      information regarding the service used, if different services can be used in the context of the telephone service,

(d)      and also, in the case of mobile telephone services

(i)      the International Mobile Subscriber Identity of the calling and called parties,

(ii)      the international identifier of the calling and called terminal equipment,

(iii)      in the case of pre–paid services, the date and time of the initial activation of the service, and an indication of the relevant time zone,

(iv)      the designations of the cells that were used by the calling and called parties at the beginning of the call,

(e)      in the case of internet telephone services, the Internet Protocol addresses of the calling and the called parties and allocated user IDs,

(3)      the following data are the subject of the retention obligation in the provision of publicly available internet access services:

(a)      the Internet Protocol address allocated to the subscriber for internet use,

(b)      a unique identifier of the connection via which the internet use takes place, as well as an allocated user ID,

(c)      the date and time of the start and end of the internet use at the allocated Internet Protocol address, and an indication of the relevant time zone,

(d)      in the case of mobile use, the designation of the cell used at the start of the internet connection,

(4)      the following data must not be retained:

(a)      the content of the communication,

(b)      data regarding the internet pages accessed,

(c)      data from electronic mail services,

(d)      data underlying links to or from specific connections of persons, authorities and organisations in social or ecclesiastical spheres,

(5)      the retention period is 4 weeks for location data, that is to say, the designation of the cell used, and 10 weeks for the other data,

(6)      effective protection of retained data against risks of abuse and against any unlawful access to those data is ensured, and

(7)      the retained data may be used only to prosecute particularly serious criminal offences and to prevent a specific threat to a person’s physical integrity, life or freedom or to the continued existence of the Federal Republic or of a Land, with the exception of the Internet Protocol address allocated to a subscriber for internet use, the use of which data is permissible in the context of the provision of inventory data information for the prosecution of any criminal offence, maintaining public order and security and carrying out the tasks of the intelligence services?’

Decision

Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights of the European Union,

must be interpreted as meaning that:

it precludes national legislative measures which provide, on a preventative basis, for the purposes of combating serious crime and preventing serious threats to public security, for the general and indiscriminate retention of traffic and location data;

it does not preclude legislative measures that:

–        allow, for the purposes of safeguarding national security, recourse to an instruction requiring providers of electronic communications services to retain, generally and indiscriminately, traffic and location data in situations where the Member State concerned is confronted with a serious threat to national security that is shown to be genuine and present or foreseeable, where the decision imposing such an instruction is subject to effective review, either by a court or by an independent administrative body whose decision is binding, the aim of that review being to verify that one of those situations exists and that the conditions and safeguards which must be laid down are observed, and where that instruction may be given only for a period that is limited in time to what is strictly necessary, but which may be extended if that threat persists;

–        provide, for the purposes of safeguarding national security, combating serious crime and preventing serious threats to public security, for the targeted retention of traffic and location data which is limited, on the basis of objective and non–discriminatory factors, according to the categories of persons concerned or using a geographical criterion, for a period that is limited in time to what is strictly necessary, but which may be extended;

–        provide, for the purposes of safeguarding national security, combating serious crime and preventing serious threats to public security, for the general and indiscriminate retention of IP addresses assigned to the source of an internet connection for a period that is limited in time to what is strictly necessary;

–        provide, for the purposes of safeguarding national security, combating crime and safeguarding public security, for the general and indiscriminate retention of data relating to the civil identity of users of electronic communications systems;

–        allow, for the purposes of combating serious crime and, a fortiori, safeguarding national security, recourse to an instruction requiring providers of electronic communications services, by means of a decision of the competent authority that is subject to effective judicial review, to undertake, for a specified period of time, the expedited retention of traffic and location data in the possession of those service providers,

provided that those measures ensure, by means of clear and precise rules, that the retention of data at issue is subject to compliance with the applicable substantive

Case number

C–768/19

Case name

Bundesrepublik Deutschland (Membre de la famille)

Document

Judgment ECLI:EU:C:2021:709

Date

09/09/2021

Source of the question referred for a preliminary ruling

Bundesverwaltungsgericht (Federal Administrative Court, Germany)

Name of the parties

Bundesrepublik Deutschland v SE

Subject matter

Area of freedom, security and justice; asylum policy; family reunification with their son

Key words

SE – Common policy on asylum and subsidiary protection – Concept of ‘family member’ – Adult applying for international protection on the basis of his or her family relationship with a minor who has already been granted subsidiary protection – Relevant date for assessing ‘minor’ status

Question referred for a preliminary ruling

‘(1)      In the case of an applicant for asylum who, before the point at which the age of majority is reached by his child, by way of whom a family existed in the country of origin and to whom subsidiary protection status was granted, following the attainment of majority, on the basis of an application for protection filed before the age of majority was reached (‘the beneficiary of protection’), entered the host Member State of the beneficiary of protection and also made an application for international protection there (‘the applicant for asylum’), and in the case of a national provision which, in relation to the granting of a right to be granted subsidiary protection, that right being derived from the beneficiary of subsidiary protection, makes reference to Article 2(j) of Directive [2011/95], is the point in time at which the decision on the asylum application of the applicant for asylum is taken or an earlier point in time to be taken into account for the question as to whether the beneficiary of protection is a ‘minor’ within the meaning of Article 2(j) of Directive [2011/95], such as the point in time at which

(a)      the beneficiary of protection was granted subsidiary protection status,

(b)      the applicant for asylum made his asylum application,

(c)      the applicant for asylum entered the host Member State, or

(d)      the beneficiary of protection made his asylum application?

(2)      In the event

(a)      that the point in time at which the application is made is decisive:

Is the request for protection expressed in writing, verbally or in any other way and made known to the national authority responsible for the asylum application (request for asylum) or the formal application for international protection to be taken as the basis in this respect?

(b)      that the point in time at which the applicant for asylum enters the territory or the point in time at which he makes the asylum application is decisive:

Is it also significant whether, at that point in time, the decision on the application for protection of the beneficiary of protection who was subsequently recognised as being a beneficiary of subsidiary protection had not yet been taken?

(3)      (a)      What requirements are to be imposed in the situation described in Question 1 in order for the applicant for asylum to be a ‘family member’ [third indent of Article 2(j)] of Directive [2011/95] who is present ‘in the same Member State in relation to the application for international protection’ in which the person who was granted international protection is present and by way of whom the family ‘already’ existed ‘in the country of origin’? Does this require, in particular, that family life between the beneficiary of protection and the applicant for asylum within the meaning of Article 7 of the Charter has been resumed in the host Member State, or is the mere simultaneous presence of the beneficiary of protection and the applicant for asylum in the host Member State sufficient in this respect? Is a parent a family member even if, depending on the circumstances of the individual case, entry into the territory was not intended for the purpose of actually assuming responsibility within the meaning of the third indent of Article 2(j) of Directive [2011/95] for a beneficiary of international protection who is still a minor and unmarried?

(b)      If Question 3(a) is to be answered to the effect that family life between the beneficiary of protection and the applicant for asylum within the meaning of Article 7 of the Charter must have been resumed in the host Member State, is the point in time at which it resumed significant? In that regard, must account be taken, in particular, of whether family life was re–established within a certain period of time after the applicant for asylum entered the territory, or at the point in time at which the applicant for asylum makes the asylum application or at a point in time at which the beneficiary of protection was still a minor?

(4)      Does the status of an applicant for asylum as a family member within the meaning of the third indent of Article 2(j) of Directive [2011/95] end when the beneficiary of protection reaches the age of majority and the associated responsibility for a person who is a minor and unmarried ceases to exist? In the event that this is answered in the negative: Does this status as a family member (and the associated rights) continue to exist indefinitely beyond that point in time or does it cease to exist after a certain period of time (if so: what period of time?) or upon the occurrence of certain events (if so: which events?)?’

Decision

1.      The third indent of Article 2(j) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third–country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted must be interpreted as meaning that, where an applicant for asylum, who has entered the territory of the host Member State in which his unmarried minor child is present, intends to derive from the subsidiary protection status obtained by that child the right to asylum under legislation of that Member State which grants such a right to persons falling within the scope of the third indent of Article 2(j) of Directive 2011/95, the relevant date for assessing whether the beneficiary of that protection is a ‘minor’, within the meaning of that provision, for the purposes of deciding on the application for international protection lodged by that applicant for asylum, is the date on which the latter submitted, where appropriate informally, his or her application for asylum.

2.      The third indent of Article 2(j) of Directive 2011/95, read in conjunction with Article 23(2) of that directive and Article 7 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that the concept of ‘family member’ does not require an effective resumption of family life between the parent of the beneficiary of international protection and his or her child.

3.      The third indent of Article 2(j) of Directive 2011/95, read in conjunction with Article 23(2) thereof, must be interpreted as meaning that the rights which family members of a beneficiary of subsidiary protection derive from the subsidiary protection status obtained by their child, in particular the benefits referred to in Articles 24 to 35 thereof, continue to exist after that beneficiary reaches the age of majority, for the duration of the period of validity of the residence permit granted to them, in accordance with Article 24(2) of that directive.

Case number

C–645/19

Case name

Facebook Ireland and Others

Document

Judgment ECLI:EU:C:2021:483

Date

15/06/2021

Source of the question referred for a preliminary ruling

Hof van beroep te Brussel (Court of Appeal, Brussels, Belgium)

Name of the parties

Facebook Ireland Limited and Others v Gegevensbeschermingsautoriteit

Subject matter

Personal data protection; cross–border data processing

Key words

Facebook – Protection of natural persons with regard to the processing of personal data – Charter of Fundamental Rights of the European Union – Cross–border processing of personal data – ‘One–stop shop’ mechanism – Sincere and effective cooperation between supervisory authorities – Competences and powers – Power to initiate or engage in legal proceedings

Question referred for a preliminary ruling

‘(1)      Should Article 55(1), Articles 56 to 58 and Articles 60 to 66 of [Regulation 2016/679], read together with Articles 7, 8 and 47 of the [Charter], be interpreted as meaning that a supervisory authority which, pursuant to national law adopted in implementation of Article 58(5) of that regulation, has the competence to initiate or engage in legal proceedings before a court in its Member State against infringements of that regulation cannot exercise that competence in connection with cross–border data processing if it is not the lead supervisory authority for that cross–border data processing?

(2)      Does the answer to the first question referred differ if the controller of that cross–border data processing does not have its main establishment in that Member State but does have another establishment there?

(3)      Does the answer to the first question referred differ if the national supervisory authority initiates the legal proceedings against the main establishment of the controller in respect of the cross‑border data processing rather than against the establishment in its own Member State?

(4)      Does the answer to the first question referred differ if the national supervisory authority had already initiated the legal proceedings before the date on which [Regulation 2016/679] entered into force (25 May 2018)?

(5)      If the first question referred is answered in the affirmative, does Article 58(5) of [Regulation 2016/679] have direct effect, meaning that a national supervisory authority can rely on that provision to initiate or continue legal proceedings against private parties even if Article 58(5) of [Regulation 2016/679] has not been specifically transposed into the legislation of the Member States, notwithstanding the requirement to do so?

(6)      If questions (1) to (5) are answered in the affirmative, could the outcome of such proceedings prevent the lead supervisory authority from making a contrary finding when the lead supervisory authority investigates the same or similar cross–border processing activities in accordance with the mechanism laid down in Articles 56 and 60 of [Regulation 2016/679]?’

Decision

1.      Article 55(1), Articles 56 to 58 and Articles 60 to 66 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), read together with Articles 7, 8 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a supervisory authority of a Member State which, under the national legislation adopted in order to transpose Article 58(5) of that regulation, has the power to bring any alleged infringement of that regulation to the attention of a court of that Member State and, where necessary, to initiate or engage in legal proceedings, may exercise that power in relation to an instance of cross‑border data processing even though it is not the ‘lead supervisory authority’, within the meaning of Article 56(1) of that regulation, with respect to that data processing, provided that that power is exercised in one of the situations where Regulation 2016/679 confers on that supervisory authority a competence to adopt a decision finding that such processing is in breach of the rules contained in that regulation and that the cooperation and consistency procedures laid down by that regulation are respected.

2.      Article 58(5) of Regulation 2016/679 must be interpreted as meaning that, in the event of cross–border data processing, it is not a prerequisite for the exercise of the power of a supervisory authority of a Member State, other than the lead supervisory authority, to initiate or engage in legal proceedings, within the meaning of that provision, that the controller or processor with respect to the cross–border processing of personal data against whom such proceedings are brought has a main establishment or another establishment on the territory of that Member State.

3.      Article 58(5) of Regulation 2016/679 must be interpreted as meaning that the power of a supervisory authority of a Member State, other than the lead supervisory authority, to bring any alleged infringement of that regulation to the attention of a court of that Member State and, where appropriate, to initiate or engage in legal proceedings, within the meaning of that provision, may be exercised both with respect to the main establishment of the controller which is located in that authority’s own Member State and with respect to another establishment of that controller, provided that the object of the legal proceedings is a processing of data carried out in the context of the activities of that establishment and that that authority is competent to exercise that power, in accordance with the terms of the answer to the first question referred.

4.      Article 58(5) of Regulation 2016/679 must be interpreted as meaning that, where a supervisory authority of a Member State which is not the ‘lead supervisory authority’, within the meaning of Article 56(1) of that regulation, has brought a legal action, the object of which is an instance of cross–border processing of personal data, before 25 May 2018, that is, before the date when that regulation became applicable, that action may, from the perspective of EU law, be continued on the basis of the provisions 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, which remains applicable in relation to infringements of the rules laid down in that directive committed up to the date when that directive was repealed. That action may, in addition, be brought by that authority with respect to infringements committed after that date, on the basis of Article 58(5) of Regulation 2016/679, provided that that action is brought in one of the situations where, exceptionally, that regulation confers on a supervisory authority of a Member State which is not the ‘lead supervisory authority’ a competence to adopt a decision finding that the processing of data in question is in breach of the rules contained in that regulation with respect to the protection of the rights of natural persons as regards the processing of personal data, and that the cooperation and consistency procedures laid down by that regulation are respected, which it is for the referring court to determine.

5.      Article 58(5) of Regulation 2016/679 must be interpreted as meaning that that provision has direct effect, with the result that a national supervisory authority may rely on that provision in order to bring or continue a legal action against private parties, even where that provision has not been specifically implemented in the legislation of the Member State concerned.

Case number

C–402/19

Case name

CPAS de Seraing

Document

Judgment ECLI:EU:C:2020:759

Date

30/09/2020

Source of the question referred for a preliminary ruling

Cour du Travail de Liège (Higher Labour Court, Liège, Belgium)

Name of the parties

LM v Centre public d'action sociale de Seraing

Subject matter

Area of freedom, security and justice; asylum policy, border control; social assistance withdrawn

Key words

LM – CPAS – Area of freedom, security and justice – Return of illegally staying third–country nationals – Parent of an adult child suffering from a serious illness – Return decision – Judicial remedy – Automatic suspensory effect – Safeguards pending return – Basic needs – Charter of Fundamental Rights of the European Union

Question referred for a preliminary ruling

‘Does point 1 of the first subparagraph of Article 57(2) of the Organic Law of 8 July 1976 on public social welfare centres infringe Articles 5 and 13 of Directive 2008/115/EC, read in the light of Articles 19(2) and 47 of the Charter of Fundamental Rights of the European Union, and Article 14(1)(b) of that directive and Articles 7 and 12 of the Charter of Fundamental Rights of the European Union as interpreted by … the judgment [of 18 December 2014, Abdida (C‑562/13, EU:C:2014:2453)]:

–        first, in so far as it results in depriving a third–country national, staying illegally on the territory of a Member State, of provision, in so far as possible, for his basic needs pending resolution of the action for suspension and annulment that he has brought in his own name as the representative of his child, who was at that time a minor, against a decision ordering them to leave the territory of a Member State;

–        where, second, on the one hand, that child who has now come of age suffers from a serious illness and the enforcement of that decision may expose that child to a serious risk of grave and irreversible deterioration in her state of health and, on the other, the presence of that parent alongside his daughter who has now come of age is considered to be imperative by the medical professional given that she is particularly vulnerable as a result of her state of health (recurrent sickle cell crises and the need for surgery in order to prevent paralysis)?’

Decision

Articles 5, 13 and 14 of Directive 2008/115 of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third–country nationals, read in the light of Article 7, Article 19(2) and Articles 21 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation which does not provide, as far as possible, for the basic needs of a third–country national to be met where:

–        that national has appealed against a return decision made in respect of him or her;

–        the adult child of that third–country national is suffering from a serious illness;

–        the presence of that third–country national with that adult child is essential;

–        an appeal was brought on behalf of that adult child against a return decision taken against him or her, the enforcement of which may expose that adult child to a serious risk of grave and irreversible deterioration in his or her state of health, and

–        that third–country national does not have the means to meet his or her needs himself or herself.

Case number

C–245/19

Case name

État luxembourgeois (Droit de recours contre une demande d’information en matière fiscale)

Document

Judgment ECLI:EU:C:2020:795

Date

06/10/2020

Source of the question referred for a preliminary ruling

Cour administrative (Higher Administrative Court, Luxembourg) 

Name of the parties

État luxembourgeois v B and Others

Subject matter

Administrative cooperation in the field of taxation; assessment; exchange of information

Key words

Etat – Administrative cooperation in the field of taxation – Decision ordering that information be provided to the competent authority of a Member State, acting in response to a request for exchange of information from the competent authority of another Member State – Person holding the information the production of which is ordered by the competent authority of the first Member State – Taxpayer concerned by the investigation giving rise to the request from the competent authority of the second Member State – Third parties with whom that taxpayer maintains legal, banking, financial or, more broadly, economic relations – Judicial protection – Charter of Fundamental Rights of the European Union – Right to an effective remedy –Limitation – Legal basis – Respect for the essence of the right to an effective remedy – Existence of a remedy enabling the individuals in question to obtain an effective review of all the relevant issues of fact and of law, as well as effective judicial protection of the rights guaranteed to them by EU law – Objective of general interest recognised by the Union – Combating international tax fraud and tax evasion – Proportionality – Whether the information referred to in the information order is ‘foreseeably relevant’ – Judicial review – Scope – Personal, temporal and material factors to be taken into consideration

Question referred for a preliminary ruling

Joined Cases: C–245/19
‘(1)      Must Articles 7 [and] 8 and [Article] 52(1) of [the Charter], whether or not read in conjunction with Article 47 [thereof], be interpreted as precluding … legislation of a Member State which, in the context of the procedure for the exchange of information on request established in particular with a view to the implementation of [Directive 2011/16], excludes [recourse to] any remedy, in particular a judicial [action], on the part of a third party holding information, to challenge a decision by which the competent authority of that Member State requires that third party to communicate information to it for the purposes of implementing a request for exchange of information received from another Member State?

(2)      If the answer to the first question is in the affirmative, must Article 1(1) and Article 5 of Directive 2011/16 be interpreted, if necessary taking account of the evolving nature of the interpretation of Article 26 of [the Organisation for Economic Cooperation and Development (OECD) Model Tax Convention on Income and on Capital], as meaning that a request for exchange of information, and a consequent information order from the competent authority of the requested Member State, satisfy the condition that there is not a manifest lack of foreseeable relevance where the requesting Member State states the identity of the taxpayer concerned, the period covered by the investigation in the requesting Member State and the identity of the holder of the information in question, [although] seeking information concerning contracts and the associated invoices and payments which are unspecified, but which are defined by criteria concerning, first, the fact that the contracts were concluded by the identified holder of the information, secondly, their applicability to the tax years covered by the investigation by the authorities in the requesting State and, thirdly, their [connection] with the identified taxpayer concerned?’
in Case –246/19
‘(1)      Must Articles 7 [and] 8 and [Article] 52(1) of [the Charter], whether or not read in conjunction with Article 47 [thereof], be interpreted as precluding … legislation of a Member State which, in the context of the procedure for the exchange of information on request established in particular with a view to the implementation of [Directive 2011/16], excludes [recourse to] any remedy, in particular a judicial [action], on the part of the taxpayer concerned by [an] investigation in [another Member State] and [an affected] third party, to challenge a decision by which the competent authority of [the first] Member State requires a holder of information to communicate information to it for the purposes of implementing a request for exchange of information received from [that other] Member State?

(2)      If the answer to the first question is in the affirmative, must Article 1(1) and Article 5 of Directive 2011/16 be interpreted, if necessary taking account of the evolving nature of the interpretation of Article 26 of the OECD Model Tax Convention [on Income and on Capital], as meaning that a request for exchange of information, and a consequent information order from the competent authority of the requested Member State, satisfy the condition that there is not a manifest lack of foreseeable relevance where the requesting Member State states the identity of the taxpayer concerned, the period covered by the investigation in the requesting Member State and the identity of the holder of the information in question, [although] seeking information concerning bank accounts and financial assets which are unspecified, but which are defined by criteria concerning, first, the fact that they are owned by an identified holder of information, secondly, their applicability to the tax years covered by the investigation by the authorities in the requesting State and, thirdly, their [connection] with the identified taxpayer concerned?’

Decision

1.      Article 47 of the Charter of Fundamental Rights of the European Union, read in conjunction with Articles 7 and 8 and Article 52(1) thereof, must be interpreted as:

–        precluding legislation of a Member State implementing the procedure for the exchange of information on request established by Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC, as amended by Council Directive 2014/107/EU of 9 December 2014, which prevents a person holding information from bringing an action against a decision by which the competent authority of that Member State orders that person to provide it with that information, with a view to following up on a request for exchange of information made by the competent authority of another Member State, and as

–        not precluding such legislation from preventing the taxpayer concerned, in that other Member State, by the investigation giving rise to that request for exchange of information and the third parties concerned by the information in question from bringing actions against that decision.

2.      Article 1(1) and Article 5 of Directive 2011/16, as amended by Directive 2014/107, must be interpreted as meaning that a decision by which the competent authority of a Member State orders a person holding information to provide it with that information, with a view to following up on a request for exchange of information made by the competent authority of another Member State, is to be considered, taken together with that request, as concerning information which is not manifestly devoid of any foreseeable relevance where it states the identity of the person holding the information in question, that of the taxpayer concerned by the investigation giving rise to the request for exchange of information, and the period covered by that investigation, and where it relates to contracts, invoices and payments which, although not specifically identified, are defined by criteria relating, first, to the fact that they were concluded or carried out by the person holding the information, secondly, to the fact that they took place during the period covered by that investigation and, thirdly, to their connection with the taxpayer concerned.

Case number

C–746/18

Case name

Prokuratuur (Conditions d’accès aux données relatives aux communications électroniques)

Document

Judgment ECLI:EU:C:2021:152

Date

02/03/2021

Source of the question referred for a preliminary ruling

Riigikohus (Supreme Court, Estonia) 

Name of the parties

Criminal proceedings against H. K.

Subject matter

Personal data protection; information and communication technologies; telecommunications

Key words

H.K. – Processing of personal data in the electronic communications sector  – Providers of electronic communications services – Confidentiality of the communications – Limitations – Charter of Fundamental Rights of the European Union – Legislation providing for the general and indiscriminate retention of traffic and location data by providers of electronic communications services – Access of national authorities to retained data for the purpose of investigations – Combating of crime in general – Authorisation given by the public prosecutor’s office – Use of data in criminal proceedings as evidence – Admissibility

Question referred for a preliminary ruling

‘(1)      Is Article 15(1) of Directive [2002/58], in conjunction with Articles 7, 8, 11 and 52(1) of the [Charter], to be interpreted as meaning that in criminal proceedings the access of State authorities to data making it possible to establish the source and destination, the date, the time, the duration and the type of the communication, the terminal used and the location of the mobile terminal used, in relation to a telephone or mobile telephone communication of a suspect, constitutes so serious an interference with the fundamental rights enshrined in those articles of the Charter that that access in the area of prevention, investigation, detection and prosecution of criminal offences must be restricted to the fighting of serious crime, regardless of the period to which the retained data to which the State authorities have access relate?

(2)      Is Article 15(1) of Directive [2002/58], on the basis of the principle of proportionality expressed in the judgment of [2 October 2018, Ministerio Fiscal (C‑207/16, EU:C:2018:788)], paragraphs 55 to 57, to be interpreted as meaning that, if the amount of data mentioned in the first question, to which the State authorities have access, is not large (both in terms of the type of data and in terms of its temporal extent), the associated interference with fundamental rights is justified by the objective of prevention, investigation, detection and prosecution of criminal offences generally, and that the greater the amount of data to which the State authorities have access, the more serious the criminal offences which are intended to be fought by the interference must be?

(3)      Does the requirement mentioned in the judgment of [21 December 2016, Tele2 (C‑203/15 and C‑698/15, EU:C:2016:970)], second point of the operative part, that the data access of the competent State authorities must be subject to prior review by a court or an independent administrative authority mean that Article 15(1) of Directive [2002/58] must be interpreted as meaning that the public prosecutor’s office which directs the pre–trial procedure, with it being obliged by law to act independently and only being bound by the law, and ascertains the circumstances both incriminating and exonerating the accused in the pre–trial procedure, but later represents the public prosecution in the judicial proceedings, may be regarded as an independent administrative authority?’

Decision

1.      Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation that permits public authorities to have access to a set of traffic or location data, that are liable to provide information regarding the communications made by a user of a means of electronic communication or regarding the location of the terminal equipment which he or she uses and to allow precise conclusions to be drawn concerning his or her private life, for the purposes of the prevention, investigation, detection and prosecution of criminal offences, without such access being confined to procedures and proceedings to combat serious crime or prevent serious threats to public security, and that is so regardless of the length of the period in respect of which access to those data is sought and the quantity or nature of the data available in respect of such a period.

2.      Article 15(1) of Directive 2002/58, as amended by Directive 2009/136, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights, must be interpreted as precluding national legislation that confers upon the public prosecutor’s office, whose task is to direct the criminal pre–trial procedure and to bring, where appropriate, the public prosecution in subsequent proceedings, the power to authorise access of a public authority to traffic and location data for the purposes of a criminal investigation.

Case number

C–511/18

Case name

La Quadrature du Net and Others

Document

Judgment ECLI:EU:C:2020:791

Date

06/10/2020

Source of the question referred for a preliminary ruling

Joined Cases: made by Conseil d'État (Council of State, France) (Cases C–511/18 and C–512/18), and Cour constitutionnelle (Constitutional Court, Belgium) (Case C–520/18),

Name of the parties

La Quadrature du Net and Others v Premier ministre and Others

Subject matter

Personal data protection; information and communication technologies; telecommunications

Key words

La Quadrature du Net – Processing of personal data in the electronic communications sector – Providers of electronic communications services – Hosting service providers and Internet access providers – General and indiscriminate retention of traffic and location data – Automated analysis of data – Real–time access to data – Safeguarding national security and combating terrorism – Combating crime – Confidentiality of electronic communications – Protection – Charter of Fundamental Rights of the European Union

Question referred for a preliminary ruling

Joined Cases: C–511/18
‘(1)      Is the general and indiscriminate retention obligation imposed on providers on the basis of the implementing provisions of Article 15(1) of [Directive 2002/58] to be regarded, against a background of serious and persistent threats to national security, and in particular the terrorist threat, as interference justified by the right to security guaranteed in Article 6 of the [Charter] and the requirements of national security, responsibility for which falls to the Member States alone pursuant to Article 4 [TEU]?

(2)      Is [Directive 2002/58], read in the light of the [Charter], to be interpreted as authorising legislative measures, such as the measures for the real–time collection of the traffic and location data of specified individuals, which, whilst affecting the rights and obligations of the providers of an electronic communications service, do not however require them to comply with a specific obligation to retain their data?

(3)      Is [Directive 2002/58], read in the light of the [Charter], to be interpreted as meaning that it is a prerequisite for the lawfulness of the procedures for the collection of connection data that the data subjects are informed whenever their being so informed is no longer liable to jeopardise the investigations being undertaken by the competent authorities, or may such procedures be regarded as lawful taking into account all the other existing procedural safeguards where those safeguards ensure that the right to a remedy is effective?’

and  C–512/18
‘(1)      Is the general and indiscriminate retention obligation imposed on providers on the basis of the implementing provisions of Article 15(1) of [Directive 2002/58] to be regarded, inter alia in the light of the safeguards and checks to which the collection and use of such connection data are then subject, as interference justified by the right to security guaranteed in Article 6 of the [Charter] and the requirements of national security, responsibility for which falls to the Member States alone pursuant to Article 4 [TEU]?

(2)      Are the provisions of [Directive 2000/31], read in the light of Articles 6, 7, 8 and 11 and Article 52(1) of the [Charter], to be interpreted as allowing a State to introduce national legislation requiring the persons, whose activity consists in offering access to online public communications services and the natural or legal persons who, even free of charge, and for provision to the public via online public communications services, store signals, writing, images, sounds or messages of any kind provided by recipients of those services, to retain the data capable of enabling the identification of anyone who has contributed to the creation of the content or some of the content of the services which they provide, so that a judicial authority may, where appropriate, require the communication of that data with a view to ensuring compliance with the rules on civil and criminal liability?
and C–520/18
‘(1)      Must Article 15(1) of [Directive 2002/58], read in conjunction with the right to security, guaranteed by Article 6 of the [Charter], and the right to respect for personal data, as guaranteed by Articles 7, 8 and 52(1) of the [Charter], be interpreted as precluding national legislation such as that at issue, which lays down a general obligation for operators and providers of electronic communications services to retain the traffic and location data within the meaning of [Directive 2002/58], generated or processed by them in the context of the supply of those services, national legislation whose objective is not only the investigation, detection and prosecution of serious criminal offences but also the safeguarding of national security, the defence of the territory and of public security, the investigation, detection and prosecution of offences other than serious crime or the prevention of the prohibited use of electronic communication systems, or the attainment of another objective identified by Article 23(1) of [Regulation 2016/679] and which, furthermore, is subject to specific safeguards in that legislation in terms of data retention and access to that data?

(2)      Must Article 15(1) of [Directive 2002/58], in conjunction with Articles 4, 7, 8, 11 and 52(1) of the [Charter], be interpreted as precluding national legislation such as that at issue, which lays down a general obligation for operators and providers of electronic communications services to retain the traffic and location data within the meaning of [Directive 2002/58], generated or processed by them in the context of the supply of those services, if the object of that legislation is, in particular, to comply with the positive obligations borne by the authority under Articles 4 and [7] of the Charter, consisting in the provision of a legal framework which allows the effective criminal investigation and the effective punishment of sexual abuse of minors and which permits the effective identification of the perpetrator of the offence, even where electronic communications systems are used?

(3)      If, on the basis of the answer to the first or the second question, the Cour constitutionnelle (Constitutional Court, Belgium) should conclude that the contested law fails to fulfil one or more obligations arising under the provisions referred to in these questions, might it maintain on a temporary basis the effects of [the Law of 29 May 2016] in order to avoid legal uncertainty and to enable the data previously collected and retained to continue to be used for the objectives pursued by the law?’

Decision

1.      Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding legislative measures which, for the purposes laid down in Article 15(1), provide, as a preventive measure, for the general and indiscriminate retention of traffic and location data. By contrast, Article 15(1) of Directive 2002/58, as amended by Directive 2009/136, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights, does not preclude legislative measures that:

–        allow, for the purposes of safeguarding national security, recourse to an instruction requiring providers of electronic communications services to retain, generally and indiscriminately, traffic and location data in situations where the Member State concerned is confronted with a serious threat to national security that is shown to be genuine and present or foreseeable, where the decision imposing such an instruction is subject to effective review, either by a court or by an independent administrative body whose decision is binding, the aim of that review being to verify that one of those situations exists and that the conditions and safeguards which must be laid down are observed, and where that instruction may be given only for a period that is limited in time to what is strictly necessary, but which may be extended if that threat persists;

–        provide, for the purposes of safeguarding national security, combating serious crime and preventing serious threats to public security, for the targeted retention of traffic and location data which is limited, on the basis of objective and non–discriminatory factors, according to the categories of persons concerned or using a geographical criterion, for a period that is limited in time to what is strictly necessary, but which may be extended;

–        provide, for the purposes of safeguarding national security, combating serious crime and preventing serious threats to public security, for the general and indiscriminate retention of IP addresses assigned to the source of an Internet connection for a period that is limited in time to what is strictly necessary;

–        provide, for the purposes of safeguarding national security, combating crime and safeguarding public security, for the general and indiscriminate retention of data relating to the civil identity of users of electronic communications systems;

–        allow, for the purposes of combating serious crime and, a fortiori, safeguarding national security, recourse to an instruction requiring providers of electronic communications services, by means of a decision of the competent authority that is subject to effective judicial review, to undertake, for a specified period of time, the expedited retention of traffic and location data in the possession of those service providers,

provided that those measures ensure, by means of clear and precise rules, that the retention of data at issue is subject to compliance with the applicable substantive and procedural conditions and that the persons concerned have effective safeguards against the risks of abuse.

2.      Article 15(1) of Directive 2002/58, as amended by Directive 2009/136, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights, must be interpreted as not precluding national rules which requires providers of electronic communications services to have recourse, first, to the automated analysis and real–time collection, inter alia, of traffic and location data and, second, to the real–time collection of technical data concerning the location of the terminal equipment used, where:

–        recourse to automated analysis is limited to situations in which a Member State is facing a serious threat to national security which is shown to be genuine and present or foreseeable, and where recourse to such analysis may be the subject of an effective review, either by a court or by an independent administrative body whose decision is binding, the aim of that review being to verify that a situation justifying that measure exists and that the conditions and safeguards that must be laid down are observed; and where

–        recourse to the real–time collection of traffic and location data is limited to persons in respect of whom there is a valid reason to suspect that they are involved in one way or another in terrorist activities and is subject to a prior review carried out either by a court or by an independent administrative body whose decision is binding in order to ensure that such real–time collection is authorised only within the limits of what is strictly necessary. In cases of duly justified urgency, the review must take place within a short time.

3.      Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), must be interpreted as not being applicable in the field of the protection of the confidentiality of communications and of natural persons as regards the processing of personal data in the context of information society services, such protection being governed by Directive 2002/58, as amended by Directive 2009/136, or by 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, as appropriate. Article 23(1) of Regulation 2016/679, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights, must be interpreted as precluding national legislation which requires that providers of access to online public communication services and hosting service providers retain, generally and indiscriminately, inter alia, personal data relating to those services.

4.      A national court may not apply a provision of national law empowering it to limit the temporal effects of a declaration of illegality, which it is bound to make under that law, in respect of national legislation imposing on providers of electronic communications services – with a view to, inter alia, safeguarding national security and combating crime – an obligation requiring the general and indiscriminate retention of traffic and location data that is incompatible with Article 15(1) of Directive 2002/58, as amended by Directive 2009/136, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights. Article 15(1), interpreted in the light of the principle of effectiveness, requires national criminal courts to disregard information and evidence obtained by means of the general and indiscriminate retention of traffic and location data in breach of EU law, in the context of criminal proceedings against persons suspected of having committed criminal offences, where those persons are not in a position to comment effectively on that information and that evidence and they pertain to a field of which

Case number

C–311/18

Case name

Facebook Ireland and Schrems

Document

Judgment ECLI:EU:C:2020:559

Date

16/07/2020

Source of the question referred for a preliminary ruling

High Court (Ireland)

Name of the parties

Data Protection Commissioner v Facebook Ireland Limited and Maximillian Schrems

Subject matter

Protection of personal data; transfer to a third country

Key words

Facebook Ireland – Protection of individuals with regard to the processing of personal data – Charter of Fundamental Rights of the European Union – Transfers of personal data to third countries for commercial purposes – Commission adequacy decision –Transfers subject to appropriate safeguards– Powers of the supervisory authorities – Processing of the data transferred by the public authorities of a third country for national security purposes – Assessment of the adequacy of the level of protection in the third country – Protective standard clauses on the transfer of personal data to third countries – Suitable safeguards provided by the data controller – Validity – Adequacy of the protection provided by the EU–US Privacy Shield – Validity – Complaint by a natural person whose data was transferred from the European Union to the United States

Question referred for a preliminary ruling

(1)      In circumstances in which personal data is transferred by a private company from a European Union (EU) Member State to a private company in a third country for a commercial purpose pursuant to [the SCC Decision] and may be further processed in the third country by its authorities for purposes of national security but also for purposes of law enforcement and the conduct of the foreign affairs of the third country, does EU law (including the Charter) apply to the transfer of the data notwithstanding the provisions of Article 4(2) TEU in relation to national security and the provisions of the first indent of Article 3(2) of Directive [95/46] in relation to public security, defence and State security?

(2)      (a)      In determining whether there is a violation of the rights of an individual through the transfer of data from the [European Union] to a third country under the [SCC Decision] where it may be further processed for national security purposes, is the relevant comparator for the purposes of [Directive 95/46]:

(i)      the Charter, the EU Treaty, the FEU Treaty, [Directive 95/46], the [European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950] (or any other provision of EU law); or

(ii)      the national laws of one or more Member States?

(b)      If the relevant comparator is (ii), are the practices in the context of national security in one or more Member States also to be included in the comparator?

(3)      When assessing whether a third country ensures the level of protection required by EU law to personal data transferred to that country for the purposes of Article 26 of [Directive 95/46], ought the level of protection in the third country be assessed by reference to:

(a)      the applicable rules in the third country resulting from its domestic law or international commitments, and the practice designed to ensure compliance with those rules, to include the professional rules and security measures which are complied with in the third country;

or

(b)      the rules referred to in (a) together with such administrative, regulatory and compliance practices and policy safeguards, procedures, protocols, oversight mechanisms and non–judicial remedies as are in place in the third country?

(4)      Given the facts found by the High Court in relation to US law, if personal data is transferred from the European Union to the United States under [the SCC Decision] does this violate the rights of individuals under Articles 7 and/or 8 of the Charter?

(5)      Given the facts found by the High Court in relation to US law, if personal data is transferred from the European Union to the United States under [the SCC Decision]:

(a)      does the level of protection afforded by the United States respect the essence of an individual’s right to a judicial remedy for breach of his or her data privacy rights guaranteed by Article 47 of the Charter?

If the answer to Question 5(a) is in the affirmative:

(b)      are the limitations imposed by US law on an individual’s right to a judicial remedy in the context of US national security proportionate within the meaning of Article 52 of the Charter and do not exceed what is necessary in a democratic society for national security purposes?

(6)      (a)      What is the level of protection required to be afforded to personal data transferred to a third country pursuant to standard contractual clauses adopted in accordance with a decision of the Commission under Article 26(4) [of Directive 95/46] in light of the provisions of [Directive 95/46] and in particular Articles 25 and 26 read in the light of the Charter?

(b)      What are the matters to be taken into account in assessing whether the level of protection afforded to data transferred to a third country under [the SCC Decision] satisfies the requirements of [Directive 95/46] and the Charter?

(7)      Does the fact that the standard contractual clauses apply as between the data exporter and the data importer and do not bind the national authorities of a third country who may require the data importer to make available to its security services for further processing the personal data transferred pursuant to the clauses provided for in [the SCC Decision] preclude the clauses from adducing adequate safeguards as envisaged by Article 26(2) of [Directive 95/46]?

(8)      If a third country data importer is subject to surveillance laws that in the view of a data protection authority conflict with the [standard contractual clauses] or Article 25 and 26 of [Directive 95/46] and/or the Charter, is a data protection authority required to use its enforcement powers under Article 28(3) of [Directive 95/46] to suspend data flows or is the exercise of those powers limited to exceptional cases only, in light of recital 11 of [the SCC Decision], or can a data protection authority use its discretion not to suspend data flows?

(9)      (a)      For the purposes of Article 25(6) of [Directive 95/46], does [the Privacy Shield Decision] constitute a finding of general application binding on data protection authorities and the courts of the Member States to the effect that the United States ensures an adequate level of protection within the meaning of Article 25(2) of [Directive 95/46] by reason of its domestic law or of the international commitments it has entered into?

(b)      If it does not, what relevance, if any, does the Privacy Shield Decision have in the assessment conducted into the adequacy of the safeguards provided to data transferred to the United States which is transferred pursuant to the [SCC Decision]?

(10)      Given the findings of the High Court in relation to US law, does the provision of the Privacy Shield ombudsperson under Annex A to Annex III to the Privacy Shield Decision when taken in conjunction with the existing regime in the United States ensure that the US provides a remedy to data subjects whose personal data is transferred to the United States under the [SCC Decision] that is compatible with Article 47 of the Charter]?

(11)      Does the [SCC Decision] violate Articles 7, 8 and/or 47 of the Charter?’

Decision

1.      Article 2(1) and (2) 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 transfer of personal data for commercial purposes by an economic operator established in a Member State to another economic operator established in a third country, irrespective of whether, at the time of that transfer or thereafter, that data is liable to be processed by the authorities of the third country in question for the purposes of public security, defence and State security.

2.      Article 46(1) and Article 46(2)(c) of Regulation 2016/679 must be interpreted as meaning that the appropriate safeguards, enforceable rights and effective legal remedies required by those provisions must ensure that data subjects whose personal data are transferred to a third country pursuant to standard data protection clauses are afforded a level of protection essentially equivalent to that guaranteed within the European Union by that regulation, read in the light of the Charter of Fundamental Rights of the European Union. To that end, the assessment of the level of protection afforded in the context of such a transfer must, in particular, take into consideration both the contractual clauses agreed between the controller or processor established in the European Union and the recipient of the transfer established in the third country concerned and, as regards any access by the public authorities of that third country to the personal data transferred, the relevant aspects of the legal system of that third country, in particular those set out, in a non–exhaustive manner, in Article 45(2) of that regulation.

3.      Article 58(2)(f) and (j) of Regulation 2016/679 must be interpreted as meaning that, unless there is a valid European Commission adequacy decision, the competent supervisory authority is required to suspend or prohibit a transfer of data to a third country pursuant to standard data protection clauses adopted by the Commission, if, in the view of that supervisory authority and in the light of all the circumstances of that transfer, those clauses are not or cannot be complied with in that third country and the protection of the data transferred that is required by EU law, in particular by Articles 45 and 46 of that regulation and by the Charter of Fundamental Rights, cannot be ensured by other means, where the controller or a processor has not itself suspended or put an end to the transfer.

4.      Examination of Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EU of the European Parliament and of the Council, as amended by Commission Implementing Decision (EU) 2016/2297 of 16 December 2016 in the light of Articles 7, 8 and 47 of the Charter of Fundamental Rights has disclosed nothing to affect the validity of that decision.

5.      Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the EU–US Privacy Shield is invalid.

Case number

C–129/18

Case name

SM

Document

Judgment ECLI:EU:C:2019:248

Date

26/03/2019

Source of the question referred for a preliminary ruling

Supreme Court of the United Kingdom

Name of the parties

SM v Entry Clearance Officer, UK Visa Section

Subject matter

Union citizenship; non–discrimination; rights of entry and residence; not granted leave to enter the UK as the adopted child of a European Economic Area national

Key words

SM – Citizenship of the European Union – Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States – Family members of a citizen of the Union – ‘Direct descendant’ – Child in permanent legal guardianship under the Algerian kafala (provision of care) system – Other family members – Charter of Fundamental Rights of the European Union – Family life – Best interests of the child

Question referred for a preliminary ruling

‘(1)      Is a child who is in the permanent legal guardianship of a Union citizen or citizens, under kafala or some equivalent arrangement provided for in the law of his or her country of origin, a ‘direct descendant’ within the meaning of Article 2(2)(c) of Directive 2004/38?

(2)      Can other provisions in the Directive, in particular Articles 27 and 35, be interpreted so as to deny entry to such children if they are the victims of exploitation, abuse or trafficking or are at risk of such?

(3)      Is a Member State entitled to enquire, before recognising a child who is not the consanguineous descendant of [a citizen of the Union] as a direct descendant under Article 2(2)(c), into whether the procedure for placing the child in the guardianship or custody of that [citizen of the Union] was such as to give sufficient consideration to the best interests of that child?’

Decision

The concept of a ‘direct descendant’ of a citizen of the Union referred to in Article 2(2)(c) 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 not including a child who has been placed in the permanent legal guardianship of a citizen of the Union under the Algerian kafala system, because that placement does not create any parent–child relationship between them.

However, it is for the competent national authorities to facilitate the entry and residence of such a child as one of the other family members of a citizen of the Union pursuant to Article 3(2)(a) of that directive, read in the light of Article 7 and Article 24(2) of the Charter of Fundamental Rights of the European Union, by carrying out a balanced and reasonable assessment of all the current and relevant circumstances of the case which takes account of the various interests in play and, in particular, of the best interests of the child concerned. In the event that it is established, following that assessment, that the child and its guardian, who is a citizen of the Union, are called to lead a genuine family life and that that child is dependent on its guardian, the requirements relating to the fundamental right to respect for family life, combined with the obligation to take account of the best interests of the child, demand, in principle, that that child be granted a right of entry and residence in order to enable it to live with its guardian in his or her host Member State.

Case number

C–78/18

Case name

European Commission v Hungary

Document

Judgment ECLI:EU:C:2020:476

Date

18/06/2020

Source of the question referred for a preliminary ruling

European Commission Action

Name of the parties

European Commission v Hungary

Subject matter

Free movement of capital; action for failure of the State to fulfil its obligations; imposition of discriminatory, unjustified and unnecessary restrictions on foreign donations to Hungarian civil society organisations

Key words

Hungary – Admissibility – Free movement of capital – Existence of a restriction – Burden of proof – Indirect discrimination linked to the origin of the capital – Charter of Fundamental Rights of the European Union – Right to freedom of association – National rules imposing on associations receiving financial support sent from other Member States or from third countries legally binding obligations of registration, declaration and publication which can be enforced– Right to respect for private life – Right to the protection of personal data – National rules imposing the disclosure of information on persons providing financial support to associations and of the amount of that support – Justification – Overriding reason in the public interest – Transparency of the financing of associations – Public policy – Public security – Fight against money laundering, financing of terrorism and organised crime

Question referred for a preliminary ruling

The European Commission seeks a declaration from the Court that, by adopting the provisions of the a külföldről támogatott szervezetek átláthatóságáról szóló 2017. évi LXXVI. törvény (Law No LXXVI of 2017 on the Transparency of Organisations which receive Support from Abroad; ‘the Transparency Law’), which impose obligations of registration, declaration and publication on certain categories of civil society organisations directly or indirectly receiving support from abroad exceeding a certain threshold and which provide for the possibility of applying penalties to organisations that do not comply with those obligations, Hungary has introduced discriminatory, unjustified and unnecessary restrictions on foreign donations to civil society organisations, in breach of its obligations under Article 63 TFEU and Articles 7, 8 and 12 of the Charter of Fundamental Rights of the European Union (‘the Charter’)

Decision

1.      Declares that, by adopting the provisions of the a külföldről támogatott szervezetek átláthatóságáról szóló 2017. évi LXXVI. törvény (Law No LXXVI of 2017 on the Transparency of Organisations which receive Support from Abroad), which impose obligations of registration, declaration and publication on certain categories of civil society organisations directly or indirectly receiving support from abroad exceeding a certain threshold and which provide for the possibility of applying penalties to organisations that do not comply with those obligations, Hungary has introduced discriminatory and unjustified restrictions on foreign donations to civil society organisations, in breach of its obligations under Article 63 TFEU and Articles 7, 8 and 12 of the Charter of Fundamental Rights of the European Union;

2.      Orders Hungary to pay the costs;

3.      Orders the Kingdom of Sweden to bear its own costs.

Case number

C–623/17

Case name

Privacy International

Document

Judgment ECLI:EU:C:2020:790

Date

06/10/2020

Source of the question referred for a preliminary ruling

Investigatory Powers Tribunal (United Kingdom)

Name of the parties

Privacy International v Secretary of State for Foreign and Commonwealth Affairs and Others

Subject matter

Personal data protection; information and communication technologies; telecommunications; acquisition and use of mass communications data

Key words

Privacy International – Processing of personal data in the electronic communications sector – Providers of electronic communications services – General and indiscriminate transmission of traffic data and location data – Safeguarding of national security – Confidentiality of electronic communications – Protection – Charter of Fundamental Rights of the European Unio

Question referred for a preliminary ruling

‘In circumstances where:

(a)      the [security and intelligence agencies’] capabilities to use [bulk communications data] supplied to them are essential to the protection of the national security of the United Kingdom, including in the fields of counter–terrorism, counter–espionage and counter–nuclear proliferation;

(b)      a fundamental feature of the [security and intelligence agencies’] use of [bulk communications data] is to discover previously unknown threats to national security by means of non–targeted bulk techniques which are reliant upon the aggregation of [those data] in one place. Its principal utility lies in swift target identification and development, as well as providing a basis for action in the face of imminent threat;

(c)      the provider of an electronic communications network is not thereafter required to retain [the bulk communications data] (beyond the period of their ordinary business requirements), which [are] retained by the State (the [security and intelligence agencies]) alone;

(d)      the national court has found (subject to certain reserved issues) that the safeguards surrounding the use of [bulk communications data] by the [security and intelligence agencies] are consistent with the requirements of the ECHR; and

(e)      the national court has found that the imposition of the requirements specified in [paragraphs 119 to 125 of the judgment of 21 December 2016, Tele2 (C‑203/15 and C‑698/15, EU:C:2016:970)], if applicable, would frustrate the measures taken to safeguard national security by the [security and intelligence agencies], and thereby put the national security of the United Kingdom at risk;

(1)      Having regard to Article 4 TEU and Article 1(3) of [Directive 2002/58], does a requirement in a direction by a Secretary of State to a provider of an electronic communications network that it must provide bulk communications data to the [security and intelligence agencies] of a Member State fall within the scope of Union law and of [Directive 2002/58]?

(2)      If the answer to Question (1) is ‘yes’, do any of the [requirements applicable to retained communications data, set out in paragraphs 119 to 125 of the judgment of 21 December 2016, Tele2 (C‑203/15 and C‑698/15, EU:C:2016:970)] or any other requirements in addition to those imposed by the ECHR, apply to such a direction by a Secretary of State? And, if so, how and to what extent do those requirements apply, taking into account the essential necessity of the [security and intelligence agencies] to use bulk acquisition and automated processing techniques to protect national security and the extent to which such capabilities, if otherwise compliant with the ECHR, may be critically impeded by the imposition of such requirements?’

Decision

1.      Article 1(3), Article 3 and Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, read in the light of Article 4(2) TEU, must be interpreted as meaning that national legislation enabling a State authority to require providers of electronic communications services to forward traffic data and location data to the security and intelligence agencies for the purpose of safeguarding national security falls within the scope of that directive.

2.      Article 15(1) of Directive 2002/58, as amended by Directive 2009/136, read in the light of Article 4(2) TEU and Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation enabling a State authority to require providers of electronic communications services to carry out the general and indiscriminate transmission of traffic data and location data to the security and intelligence agencies for the purpose of safeguarding national security.

Case number

C–221/17

Case name

Tjebbes and Others

Document

Judgment ECLI:EU:C:2019:189

Date

12/03/2019

Source of the question referred for a preliminary ruling

Raad van State (Council of State, Netherlands)

Name of the parties

M. G. Tjebbes and Others v Minister van Buitenlandse Zaken

Subject matter

Citizenship of the Union; non–discrimination; loss of nationality; non–processing of national passport applications

Key words

Tiebbes – Citizenship of the European Union – Charter of Fundamental Rights of the European Union – Nationalities of a Member State and of a third country – Loss of the nationality of a Member State and of citizenship of the Union by operation of law – Consequences – Proportionality

Question referred for a preliminary ruling

‘Must Articles 20 and 21 TFEU, in the light of, inter alia, Article 7 of the [Charter], be interpreted – in view of the absence of an individual assessment, based on the principle of proportionality, with regard to the consequences of the loss of nationality for the situation of the person concerned from the point of view of EU law – as precluding legislation such as that in issue in the main proceedings, which provides:

(1)      that an adult, who is also a national of a third country, loses, by operation of law, the nationality of his or her Member State, and consequently loses citizenship of the Union, on the ground that, for an uninterrupted period of 10 years, that person had his or her principal residence abroad and outside the [Union], although there are possibilities for interrupting that 10–year period;

(2)      that under certain circumstances a minor loses, by operation of law, the nationality of his or her Member State, and consequently loses citizenship of the Union, as a consequence of the loss of the nationality of his or her parent, as referred to under (1) …?’

Decision

Article 20 TFEU, read in the light of Articles 7 and 24 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 provides under certain conditions for the loss, by operation of law, of the nationality of that Member State, which entails, in the case of persons who are not also nationals of another Member State, the loss of their citizenship of the Union and the rights attaching thereto, in so far as the competent national authorities, including national courts where appropriate, are in a position to examine, as an ancillary issue, the consequences of the loss of that nationality and, where appropriate, to have the persons concerned recover their nationality ex tunc in the context of an application by those persons for a travel document or any other document showing their nationality. In the context of that examination, the authorities and the courts must determine whether the loss of the nationality of the Member State concerned, when it entails the loss of citizenship of the Union and the rights attaching thereto, has due regard to the principle of proportionality so far as concerns the consequences of that loss for the situation of each person concerned and, if relevant, for that of the members of their family, from the point of view of EU law.

Case number

C–136/17

Case name

GC and Others

Document

Judgment ECLI:EU:C:2019:773

Date

24/09/2019

Source of the question referred for a preliminary ruling

Conseil d'État (Council of State, France)

Name of the parties

GC and Others v Commission nationale de l'informatique et des libertés (CNIL)

Subject matter

Personal data protection; information and communication technologies; telecommunications; internet search engines

Key words

GC – Personal data – Protection of individuals with regard to the processing of personal data contained on websites – Search engines on the internet – Processing of data appearing on websites – Applicability of those articles to operators of a search engine – Extent of that operator’s obligations with respect to those articles – Publication of data on websites solely for journalistic purposes or the purpose of artistic or literary expression – Effect on the handling of a request for de–referencing – Charter of Fundamental Rights of the European Union

Question referred for a preliminary ruling

‘(1)      Having regard to the specific responsibilities, powers and capabilities of the operator of a search engine, does the prohibition imposed on other controllers of processing data caught by Article 8(1) and (5) of Directive 95/46, subject to the exceptions laid down there, also apply to this operator as the controller of processing by means of that search engine?

(2)      If Question 1 should be answered in the affirmative:

[(a)]      Must Article 8(1) and (5) of Directive 95/46 be interpreted as meaning that the prohibition so imposed on the operator of a search engine of processing data covered by those provisions, subject to the exceptions laid down by that directive, would require the operator to grant as a matter of course the requests for de–referencing in relation to links to web pages concerning such data?