Freedoms
Article 6 of the Charter: Right to liberty and security
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: (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. |
Article 7 of the Charter: Respect for private and family life
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 (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?’ (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 (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 (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? (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? [(b)] From that perspective, how must the exceptions laid down in Article 8(2)(a) and (e) of Directive 95/46 be interpreted, when they apply to the operator of a search engine, in the light of its specific responsibilities, powers and capabilities? In particular, may such an operator refuse a request for de–referencing, if it establishes that the links at issue lead to content which, although comprising data falling within the categories listed in Article 8(1), is also covered by the exceptions laid down by Article 8(2) of the directive, in particular points (a) and (e)? [(c)] Similarly, when the links subject to the request for de–referencing lead to processing of personal data carried out solely for journalistic purposes or for those of artistic or literary expression, on which basis, in accordance with Article 9 of Directive 95/46, data within the categories mentioned in Article 8(1) and (5) of the directive may be collected and processed, must the provisions of Directive 95/46 be interpreted as allowing the operator of a search engine, on that ground, to refuse a request for de–referencing? (3) If Question 1 should be answered in the negative: [(a)] Which specific requirements of Directive 95/46 must be met by the operator of a search engine, in view of its responsibilities, powers and capabilities? [(b)] When the operator establishes that the web pages at the end of the links subject to the request for de–referencing comprise data whose publication on those pages is unlawful, must the provisions of Directive 95/46 be interpreted as: – requiring the operator of a search engine to remove those links from the list of results displayed following a search made on the basis of the name of the person making the request; or – meaning only that it is to take that factor into consideration in assessing the merits of the request for de–referencing, or – meaning that this factor has no bearing on the assessment it is to make? Furthermore, if that factor is not irrelevant, how is the lawfulness of the publication on web pages of the data at issue which stem from processing falling outside the territorial scope of Directive 95/46 and, accordingly, of the national laws implementing it to be assessed? (4) Irrespective of the answer to be given to Question 1: [(a)] whether or not publication of the personal data on the web page at the end of the link at issue is lawful, must the provisions of Directive 95/46 be interpreted as: – requiring the operator of a search engine, when the person making the request establishes that the data in question have become incomplete or inaccurate, or are no longer up to date, to grant the corresponding request for de–referencing; – more specifically, requiring the operator of a search engine, when the person making the request shows that, having regard to the conduct of the legal proceedings, the information relating to an earlier stage of those proceedings is no longer consistent with the current reality of his situation, to de–reference the links to web pages comprising such information? [(b)] Must Article 8(5) of Directive 95/46 be interpreted as meaning that information relating to the investigation of an individual or reporting a trial and the resulting conviction and sentencing constitutes data relating to offences and to criminal convictions? More generally, does a web page comprising data referring to the convictions of or legal proceedings involving a natural person fall within the ambit of those provisions?’ |
Decision | 1. The provisions of Article 8(1) and (5) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that the prohibition or restrictions relating to the processing of special categories of personal data, mentioned in those provisions, apply also, subject to the exceptions provided for by the directive, to the operator of a search engine in the context of his responsibilities, powers and capabilities as the controller of the processing carried out in connection with the activity of the search engine, on the occasion of a verification performed by that operator, under the supervision of the competent national authorities, following a request by the data subject. 2. The provisions of Article 8(1) and (5) of Directive 95/46 must be interpreted as meaning that the operator of a search engine is in principle required by those provisions, subject to the exceptions provided for by the directive, to accede to requests for de–referencing in relation to links to web pages containing personal data falling within the special categories referred to by those provisions. Article 8(2)(e) of Directive 95/46 must be interpreted as meaning that, pursuant to that article, such an operator may refuse to accede to a request for de–referencing if he establishes that the links at issue lead to content comprising personal data falling within the special categories referred to in Article 8(1) but whose processing is covered by the exception in Article 8(2)(e) of the directive, provided that the processing satisfies all the other conditions of lawfulness laid down by the directive, and unless the data subject has the right under Article 14(a) of the directive to object to that processing on compelling legitimate grounds relating to his particular situation. The provisions of Directive 95/46 must be interpreted as meaning that, where the operator of a search engine has received a request for de–referencing relating to a link to a web page on which personal data falling within the special categories referred to in Article 8(1) or (5) of Directive 95/46 are published, the operator must, on the basis of all the relevant factors of the particular case and taking into account the seriousness of the interference with the data subject’s fundamental rights to privacy and protection of personal data laid down in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, ascertain, having regard to the reasons of substantial public interest referred to in Article 8(4) of the directive and in compliance with the conditions laid down in that provision, whether the inclusion of that link in the list of results displayed following a search on the basis of the data subject’s name is strictly necessary for protecting the freedom of information of internet users potentially interested in accessing that web page by means of such a search, protected by Article 11 of the Charter. 3. The provisions of Directive 95/46 must be interpreted as meaning that – first, information relating to legal proceedings brought against an individual and, as the case may be, information relating to an ensuing conviction are data relating to ‘offences’ and ‘criminal convictions’ within the meaning of Article 8(5) of Directive 95/46, and – second, the operator of a search engine is required to accede to a request for de–referencing relating to links to web pages displaying such information, where the information relates to an earlier stage of the legal proceedings in question and, having regard to the progress of the proceedings, no longer corresponds to the current situation, in so far as it is established in the verification of the reasons of substantial public interest referred to in Article 8(4) of Directive 95/46 that, in the light of all the circumstances of the case, the data subject’s fundamental rights guaranteed by Articles 7 and 8 of the Charter of Fundamental Rights of the European Union override the rights of potentially interested internet users protected by Article 11 of the Charter. |
Case number | C–473/16 |
Case name | F |
Document | Judgment ECLI:EU:C:2018:36 |
Date | 25/01/2018 |
Source of the question referred for a preliminary ruling | Szegedi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Szeged, Hungary) |
Name of the parties | F v Bevándorlási és Állampolgársági Hivatal |
Subject matter | An area of freedom, security and justice; asylum policy; border control – refusal of asylum applications |
Key words | F – Charter of Fundamental Rights of the European Union – Respect for private and family life – Standards for granting refugee status or subsidiary protection status – Fear of persecution on grounds of sexual orientation – Assessment of facts and circumstances – Recourse to an expert’s report – Psychological tests |
Question referred for a preliminary ruling | ‘(1) In the light of Article 1 of the [Charter], must Article 4 of Directive [2011/95] be interpreted as not precluding a forensic psychologist’s expert opinion based on projective personality tests from being sought and evaluated, in relation to [Lesbian, Gay, Bisexual, Transsexual and Intersexed (‘LGBTI’)] applicants for asylum, when, in order to formulate that opinion, no questions are asked about the sexual habits of the applicant for asylum and that applicant is not subject to a physical examination? (2) If the expert opinion referred to in question 1 may not be used as proof, must Article 4 of Directive [2011/95] be interpreted, in the light of Article 1 of the [Charter], as meaning that when the asylum application is based on persecution on grounds of sexual orientation, neither the national administrative authorities nor the courts have any possibility of examining, by expert methods, the truthfulness of the claims of the applicant for asylum, irrespective of the particular characteristics of those methods?’ |
Decision | 1. Article 4 of Directive 2011/95/EC 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 it does not preclude the authority responsible for examining applications for international protection, or, where an action has been brought against a decision of that authority, the courts or tribunals seised, from ordering that an expert’s report be obtained in the context of the assessment of the facts and circumstances relating to the declared sexual orientation of an applicant, provided that the procedures for such a report are consistent with the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union, that that authority and those courts or tribunals do not base their decision solely on the conclusions of the expert’s report and that they are not bound by those conclusions when assessing the applicant’s statements relating to his sexual orientation. 2. Article 4 of Directive 2011/95, read in the light of Article 7 of the Charter of Fundamental Rights, must be interpreted as precluding the preparation and use, in order to assess the veracity of a claim made by an applicant for international protection concerning his sexual orientation, of a psychologist’s expert report, such as that at issue in the main proceedings, the purpose of which is, on the basis of projective personality tests, to provide an indication of the sexual orientation of that applicant. |
Case number | C–207/16 |
Case name | Ministerio Fiscal |
Document | Judgment ECLI:EU:C:2018:788 |
Date | 02/10/2018 |
Source of the question referred for a preliminary ruling | Audiencia Provincial de Tarragona (Provincial Court, Tarragona, Spain) |
Name of the parties | Ministerio Fiscal, |
Subject matter | Personal data protection; Information and communication technologies;Telecommunications; refusal of access to personal data by the criminal police |
Key words | Ministerio Fiscal – Electronic communications – Processing of personal data – Confidentiality of electronic communications – Protection – Charter of Fundamental Rights of the European Union – Data processed in connection with the provision of electronic communications services – Access of national authorities to the data for the purposes of an investigation – Threshold of seriousness of an offence capable of justifying access to the data |
Question referred for a preliminary ruling | ‘(1) Can the sufficient seriousness of offences, as a criterion which justifies interference with the fundamental rights recognised by Articles 7 and 8 of the [Charter], be determined taking into account only the sentence which may be imposed in respect of the offence investigated, or is it also necessary to identify in the criminal conduct particular levels of harm to individual and/or collective legally protected interests? (2) If it were in accordance with the constitutional principles of the European Union, used by the Court of Justice in its judgment [of 8 April 2014, Digital Rights Ireland and Others, C‑293/12 and C‑594/12, EU:C:2014:238] as standards for the strict review of [Directive 2002/58], to determine the seriousness of the offence solely on the basis of the sentence which may be imposed, what should the minimum threshold be? Would it be compatible with a general provision setting a minimum of three years’ imprisonment?’ |
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 and 8 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that the access of public authorities to data for the purpose of identifying the owners of SIM cards activated with a stolen mobile telephone, such as the surnames, forenames and, if need be, addresses of the owners, entails interference with their fundamental rights, enshrined in those articles of the Charter of Fundamental Rights, which is not sufficiently serious to entail that access being limited, in the area of prevention, investigation, detection and prosecution of criminal offences, to the objective of fighting serious crime. |
Case number | C–203/15 |
Case name | Tele2 Sverige |
Document | Judgment ECLI:EU:C:2016:970 |
Date | 21/12/2016 |
Source of the question referred for a preliminary ruling | Request by Kammarrätten i Stockholm (Administrative Court of Appeal, Stockholm, Sweden) (Case C–203/15) and Court of Appeal (England & Wales) (Civil Division) (Case C–698/15) |
Name of the parties | Tele2 Sverige AB v Post– och telestyrelsen and Secretary of State for the Home Department v Tomu Watsonu and Others |
Subject matter | Personal data protection; information and communication technologies; telecommunications; data storage |
Key words | Tele2 Sverige – Electronic communications – Processing of personal data – Confidentiality of electronic communications – Protection – Charter of Fundamental Rights of the European Union – National legislation – Providers of electronic communications services – Obligation relating to the general and indiscriminate retention of traffic and location data – National authorities – Access to data – No prior review by a court or independent administrative authority – Compatibility with EU law |
Question referred for a preliminary ruling | Joined Cases: C–203/15 (2) If the answer to question 1 is in the negative, may the retention nevertheless be permitted where: (a) access by the national authorities to the retained data is determined as [described in paragraphs 19 to 36 of the order for reference], and (b) data protection and security requirements are regulated as [described in paragraphs 38 to 43 of the order for reference], and (c) all relevant data is to be retained for six months, calculated as from the day when the communication is ended, and subsequently erased as [described in paragraph 37 of the order for reference]?’ (2) Does [the Digital Rights judgment] expand the scope of Articles 7 and/or 8 of [the Charter] beyond that of Article 8 of the European Convention of Human Rights … as established in the jurisprudence of the European Court of Human Rights …?’ |
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 which, for the purpose of fighting crime, provides for general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication. 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 governing the protection and security of traffic and location data and, in particular, access of the competent national authorities to the retained data, where the objective pursued by that access, in the context of fighting crime, is not restricted solely to fighting serious crime, where access is not subject to prior review by a court or an independent administrative authority, and where there is no requirement that the data concerned should be retained within the European Union. 3. The second question referred by the Court of Appeal (England & Wales) (Civil Division) is inadmissible. |
Case number | C–539/14 |
Case name | Sánchez Morcillo and Abril García |
Document | Order ECLI:EU:C:2015:508 |
Date | 16/07/2015 |
Source of the question referred for a preliminary ruling | Audiencia Provincial de Castellón (Spain) |
Name of the parties | Juan Carlos Sánchez Morcillo and María del Carmen Abril García v Banco Bilbao Vizcaya Argentaria, SA |
Subject matter | Consumer protection; unfair terms; objection to foreclosure on the basis of a mortgage on their home. |
Key words | Morcillo and Garcia – Charter of Fundamental Rights of the European Union – Consumer contracts – Mortgage loan contract – Unfair terms – Mortgage enforcement proceedings – Right of appeal |
Question referred for a preliminary ruling | ‘Must Article 7(1) of [Directive 93/13], read in conjunction with Articles 47, 34(3) and 7 of the [Charter] be interpreted as precluding a procedural provision of the kind laid down in Article 695(4) of [the amended LEC], applicable to appeals against a decision determining the outcome of an objection to enforcement proceedings in relation to mortgaged or pledged goods, which allows an appeal to be brought only against an order terminating the proceedings, disapplying an unfair term or rejecting an objection based on an unfair term, the immediate consequence of which is that more legal remedies on appeal are available to the seller or supplier seeking enforcement than to the consumer against whom enforcement is sought?’ |
Decision | Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in conjunction with Articles 47, 34(3) and 7 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding a national provision of the kind at issue in the main proceedings, by which the consumer, as a mortgage debtor against whom enforcement proceedings are brought, may bring an appeal against the decision rejecting his objection to the enforcement only when the court of first instance has not upheld an objection based on the unfairness of the contractual term upon which the enforcement is based even though the sellers or suppliers may, by contrast, appeal against any decision terminating proceedings regardless of the ground of objection on which that decision is based. |
Case number | C–419/14 |
Case name | WebMindLicenses |
Document | Judgment ECLI:EU:C:2015:832 |
Date | 17/12/2015 |
Source of the question referred for a preliminary ruling | Fővárosi Közigazgatási és Munkaügyi bíróság (Administrative and Labour Court, Budapest, Hungary) |
Name of the parties | WebMindLicenses kft v Nemzeti Adó– és Vámhivatal Kiemelt Adó– és Vám Főigazgatóság |
Subject matter | Freedom to provide services – Harmonisation of tax legislation; assessment of value added tax for large taxable persons |
Key words | WebMindLicenses – Value added tax – Place of supply of electronically supplied services – Artificial fixing of that place by means of an arrangement not reflecting economic reality – Abuse of rights – Charter of Fundamental Rights of the European Union – Rights of the defence – Right to be heard – Use by the tax authorities of evidence obtained without the taxable person’s knowledge in the context of a parallel criminal procedure that has not been concluded – Interception of telecommunications and seizure of emails |
Question referred for a preliminary ruling | ‘(1) Under Articles 2(1)(c), 24(1) and 43 of [the VAT Directive], in order to identify the person supplying the service for the purposes of VAT, when examining whether the transaction is fictitious, has no real financial or commercial content and is intended only to secure a tax advantage, is it relevant for the purposes of interpretation that, in the circumstances of the main proceedings, the manager and 100% owner of the commercial company which grants the licence is the natural person who created the know–how transferred by means of the licensing agreement? (2) If the answer to question 1 is in the affirmative, when applying Articles 2(1)(c), 24(1) and 43 of the VAT Directive and assessing whether there is an abusive practice, is it relevant that this natural person exercises or may exercise influence informally over the running of the commercial company which acquired the licence and over the decisions of that company? For the purposes of that interpretation, might it be relevant that the creator of the know–how participates or may participate directly or indirectly, by advising professionally or offering advice on the development and exploitation of the know–how, in taking business decisions relating to the supply of the service based on that know–how? (3) In the circumstances of the main proceedings and in the light of the considerations set out in question 2, in order to identify the person supplying the service for the purposes of VAT is it relevant, in addition to the analysis of the underlying contractual transaction, that the creator of the know–how, as a natural person, exercises influence, or decisive influence, or issues directions regarding the way in which the service based on that know–how is supplied? (4) If the answer to question 3 is in the affirmative, when determining the extent of that influence and those directions, what circumstances can be taken into account, or, more specifically, on the basis of what criteria may it be found that a decisive influence is exercised over the supply of the service and that the real financial content of the underlying transaction was for the benefit of the undertaking granting the licence? (5) In the circumstances of the main proceedings, in considering whether a tax advantage has been gained, is it relevant when analysing the relations between the traders and the persons involved in the transaction that the taxable persons who took part in the contested contractual transaction, which is intended to avoid tax, are legal persons, when the tax authority of a Member State attributes the adoption of strategic and operational decisions on exploitation to a natural person? If so, must account be taken of the Member State in which that natural person took those decisions? In circumstances such as those obtaining in the present case, if it can be found that the contractual position of the parties is not decisive, is it relevant for the purpose of interpretation that subcontractors carry out the management of the technical instruments, staff and financial transactions necessary for the supply of the internet–based service at issue here? (6) If it can be established that the terms of the licensing agreement do not reflect real financial content, do the reclassification of the contractual terms and the restoration of the situation which would have obtained if the transaction involving the abusive practice had not taken place imply that the tax authority of the Member State may make a different decision as to the Member State of supply and, therefore, the place where the tax is payable, even though the company which acquired the licence paid the tax payable in the Member State where it is established and in accordance with the legal requirements laid down in that Member State? (7) Must Articles 49 TFEU and 56 TFEU be interpreted as meaning that a contractual arrangement such as that at issue in the main proceedings, under which a company which is a taxable person in a Member State makes available by means of a licensing agreement the know–how and operating right for the supply of services providing adult content through interactive internet–based communication technology to an undertaking which is a taxable person in another Member State, in circumstances where the burden of VAT of the Member State of residence of the company which acquired the licence is more advantageous as regards the service transferred, is contrary to those articles and may represent an abuse of freedom of establishment and the freedom to supply services? (8) In circumstances such as those obtaining in the present case, what significance must be attached to the tax advantage which may be presumed to arise and to the commercial considerations taken into account by the company which grants the licence? In that connection and more specifically, is it relevant for the purposes of interpretation that the 100% owner and manager of the commercial company which grants the licence is the natural person who originally created the know–how? (9) In analysing abusive conduct may circumstances such as those of the main proceedings, for instance the technical and infrastructure data relating to the setting up and performance of the service which is the subject of the transaction at issue and the preparation and staff available to the company which grants the licence to supply the service in question, be taken into account and, if so, what significance do they have? (10) In the situation analysed in the present case, must Articles 2(1)(c), 24(1), 43 and 273 of the VAT Directive, in conjunction with Article 4(3) TEU and Article 325 TFEU, be interpreted as meaning that, in the interests of the proper observance of the obligation of the Member States of the European Union to collect the total amount of VAT effectively and exactly and prevent the loss to the public coffers entailed by tax evasion and avoidance across the borders of the Member States, in the case of a transaction for the supply of services and in order to identify the person supplying the service, the tax authority of the Member State, at the evidence–gathering stage of the administrative tax procedure and in order to clarify the facts, is entitled to admit data, information and evidence, and, therefore, records of intercepted communication, obtained without the knowledge of the taxable person by the investigating body of the tax authority in the context of a criminal procedure and to use them as a basis for its assessment of the tax implications, and that, for its part, the administrative court hearing the action brought against the administrative decision of the tax authority of the Member State is entitled to carry out an assessment of those matters as evidence, while examining the legality of that evidence? (11) In the situation analysed in the present case, must Articles 2(1)(c), 24(1), 43 and 273 of the VAT Directive, in conjunction with Article 4(3) TEU and Article 325 TFEU, be interpreted as meaning that, in the interests of the proper observance of the obligation of the Member States of the European Union to collect the total amount of VAT effectively and exactly and compliance with the obligation of the Member States to guarantee observance of the obligations imposed on the taxable person, the discretion with regard to the means available to the tax authority of the Member State includes the option for it to use evidence obtained initially for the purpose of criminal proceedings to prevent tax avoidance, including where national law itself does not allow the obtaining of information without the knowledge of the person concerned in the context of an administrative procedure to prevent tax avoidance, or subjects it in the context of criminal proceedings to guarantees which are not provided for in the administrative tax proceedings, recognising at the same time the right of the administrative authority to act in accordance with the principle of the freedom of evidence? (12) Does Article 8(2) of the [European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’)], in conjunction with Article 52(2) of the Charter, prevent recognition that the tax authority of the Member State has the authority described in questions 10 and 11, or, in the circumstances of the present case, can it be considered justified, in order to combat tax avoidance, to use in the context of an administrative tax procedure conclusions drawn from information obtained without the knowledge of the person concerned, with a view to the effective collection of tax and for the sake of the ‘financial well–being of the country’? (13) If the answer to questions 10 to 12 is that the tax authority of the Member State may use such evidence in the administrative procedure, is the tax authority of the Member State required, in order to guarantee the effectiveness of the right to good administration and the rights of the defence pursuant to Articles 7, 8, 41 and 48 of the Charter, in conjunction with Article 51(1) of the Charter, to hear the taxable person in the course of the administrative procedure, to guarantee him access to the conclusions suggested by the information obtained without his knowledge and to respect the purpose for which the data appearing in the evidence were obtained, or, in that context, does the fact that the information collected without the knowledge of the person concerned is intended solely for an investigation of a criminal nature prevent from the outset the use of such evidence? (14) In the event that evidence is obtained and used in breach of Articles 7, 8, 41 and 48 of the Charter, in conjunction with Article 47 of the Charter, is the right to an effective remedy satisfied by national legislation under which the challenging in judicial proceedings of the procedural legality of decisions given in tax matters can succeed and result in the setting aside of the decision only if, according to the circumstances of the case, there is the possibility in practice that the contested decision would have been different if the procedural error had not occurred and if, moreover, that defect affected the substantive legal position of the applicant, or do the procedural errors made in that way have to be taken into account in a wider context, regardless of the influence that the procedural error which infringes the Charter has on the outcome of the proceedings? (15) Does the effectiveness of Article 47 of the Charter require that, in a procedural situation such as the present, the administrative court hearing the action against the administrative decision of the tax authority of the Member State may review the legality of the obtaining of evidence collected for the purpose of criminal proceedings without the knowledge of the person concerned in the context of criminal proceedings, in particular when the taxable person against whom the criminal proceedings have been brought in parallel has not been able to have knowledge of that documentation or contest its legality before a court? (16) Also having regard to question 6, must [Regulation No 904/2010], in the light, in particular, of recital 7 in its preamble, according to which, for the purposes of collecting the tax owed, Member States should cooperate to help ensure that VAT is correctly assessed and, in order to do so, they must not only monitor the correct application of tax owed in their own territory, but should also provide assistance to other Member States for ensuring the correct application of tax relating to activity carried out on their own territory but owed in another Member State, be interpreted as meaning that, in a situation where the facts are as in the present case, the tax authority of the Member State which discovers the tax debt must make a request to the tax authority of the Member State in which the taxable person was subject to a tax inspection and complied with its obligation to pay tax? (17) If the answer to question 16 is in the affirmative and the decisions adopted by the tax authority of the Member State are challenged before a court and are found to be unlawful in procedural terms on that ground, in other words, on the basis of failure to obtain information and the absence of a request, what action should the court hearing the action against the administrative decisions adopted by the tax authority of the Member State take, having regard also to the considerations set out in question 14?’ |
Decision | 1. EU law must be interpreted as meaning that, in order to determine whether, in circumstances such as those of the main proceedings, a licensing agreement concerning the making available of know–how enabling operation of a website by which interactive audiovisual services were supplied, concluded with a company established in a Member State other than that in which the company granting the licence is established, arose from an abuse of rights designed to benefit from the fact that the rate of value added tax applicable to those services was lower in that other Member State, the fact that the manager and sole shareholder of the latter company was the creator of that know–how, that that same person exercised influence or control over the development and exploitation of that know–how and over the supply of the services which were based on it and that management of the financial transactions, staff and technical instruments necessary for the supply of those services was carried out by subcontractors, and the reasons which may have led the company granting the licence to make the know–how at issue available to a company established in that other Member State instead of exploiting it itself, do not appear decisive in themselves. It is incumbent upon the referring court to analyse all the circumstances of the main proceedings in order to determine whether that agreement constituted a wholly artificial arrangement concealing the fact that the services at issue were not actually supplied by the company acquiring the licence, but were in fact supplied by the company granting it, examining in particular whether the establishment of the place of business or fixed establishment of the company acquiring the licence was not genuine, whether that company, for the purpose of engaging in the economic activity concerned, did not possess an appropriate structure in terms of premises and human and technical resources and whether it did not engage in that economic activity in its own name and on its own behalf, under its own responsibility and at its own risk. 2. EU law must be interpreted as meaning that, if an abusive practice is found which has resulted in the place of supply of services being fixed in a Member State other than the Member State where it would have been fixed in the absence of that abusive practice, the fact that value added tax has been paid in that other Member State in accordance with its legislation does not preclude an adjustment of that tax in the Member State in which the place where those services have actually been supplied is located. 3. Council Regulation (EU) No 904/2010 of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax must be interpreted as meaning that the tax authorities of a Member State which are examining whether value added tax is chargeable in respect of supplies of services that have already been subject to that tax in other Member States are required to send a request for information to the tax authorities of those other Member States when such a request is useful, or even essential, for determining that value added tax is chargeable in the first Member State. 4. EU law must be interpreted as not precluding, for the purposes of the application of Article 4(3) TEU, Article 325 TFEU and Articles 2, 250(1) and 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, the tax authorities from being able, in order to establish the existence of an abusive practice concerning value added tax, to use evidence obtained without the taxable person’s knowledge in the context of a parallel criminal procedure that has not yet been concluded, by means, for example, of the interception of telecommunications and seizure of emails, provided that the obtaining of that evidence in the context of the criminal procedure and its use in the context of the administrative procedure do not infringe the rights guaranteed by EU law. In circumstances such as those of the main proceedings, by virtue of Articles 7, 47 and 52(1) of the Charter of Fundamental Rights of the European Union it is incumbent upon the national court which reviews the legality of the decision founded on such evidence adjusting value added tax to verify, first, whether the interception of telecommunications and seizure of emails were means of investigation provided for by law and were necessary in the context of the criminal procedure and, secondly, whether the use by the tax authorities of the evidence obtained by those means was also authorised by law and necessary. It is incumbent upon that court, furthermore, to verify whether, in accordance with the general principle of observance of the rights of the defence, the taxable person had the opportunity, in the context of the administrative procedure, of gaining access to that evidence and of being heard concerning it. If the national court finds that the taxable person did not have that opportunity or that that evidence was obtained in the context of the criminal procedure, or used in the context of the administrative procedure, in breach of Article 7 of the Charter of Fundamental Rights of the European Union, it must disregard that evidence and annul that decision if, as a result, the latter has no basis. That evidence must also be disregarded if the national court is not empowered to check that it was obtained in the context of the criminal procedure in accordance with EU law or cannot at least satisfy itself, on the basis of a review already carried out by a criminal court in an inter partes procedure, that it was obtained in accordance with EU law. |
Case number | C–362/14 |
Case name | Schrems |
Document | Judgment ECLI:EU:C:2015:650 |
Date | 06/10/2015 |
Source of the question referred for a preliminary ruling | High Court (Ireland) |
Name of the parties | Maximillian Schrems v Data Protection Commissioner |
Subject matter | Protection of personal data; information and communication technologies; telecommunications; transfer of personal data of its users to the United States and storage on servers located there |
Key words | Schrems – Personal data – Protection of individuals with regard to the processing of such data – Charter of Fundamental Rights of the European Union –Transfer of personal data to third countries – Transfer of personal data to the United States – Inadequate level of protection – Validity – Complaint by an individual whose data has been transferred from the European Union to the United States – Powers of the national supervisory authorities |
Question referred for a preliminary ruling | ‘(1) Whether in the course of determining a complaint which has been made to an independent office holder who has been vested by statute with the functions of administering and enforcing data protection legislation that personal data is being transferred to another third country (in this case, the United States of America) the laws and practices of which, it is claimed, do not contain adequate protections for the data subject, that office holder is absolutely bound by the Community finding to the contrary contained in [Decision 2000/520] having regard to Article 7, Article 8 and Article 47 of [the Charter], the provisions of Article 25(6) of Directive [95/46] notwithstanding? (2) Or, alternatively, may and/or must the office holder conduct his or her own investigation of the matter in the light of factual developments in the meantime since that Commission decision was first published?’ |
Decision | 1. Article 25(6) 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 amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, read in the light of Articles 7, 8 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a decision adopted pursuant to that provision, such as Commission Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/46 on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce, by which the European Commission finds that a third country ensures an adequate level of protection, does not prevent a supervisory authority of a Member State, within the meaning of Article 28 of that directive as amended, from examining the claim of a person concerning the protection of his rights and freedoms in regard to the processing of personal data relating to him which has been transferred from a Member State to that third country when that person contends that the law and practices in force in the third country do not ensure an adequate level of protection. 2. Decision 2000/520 is invalid. |
Case number | C–148/13 |
Case name | A |
Document | Judgment ECLI:EU:C:2014:2406 |
Date | 02/12/2014 |
Source of the question referred for a preliminary ruling | Raad van State (Netherlands) |
Name of the parties | A and Others v Staatssecretaris van Veiligheid en Justitie |
Subject matter | Area of freedom, security and justice; asylum policy; border control – Sexual orientation; refusal of an application for international protection |
Key words | A– Area of freedom, security and justice – Minimum standards for granting refugee status or subsidiary protection status – Assessment of facts and circumstances – Methods of assessment – Acceptance of certain types of evidence – Extent of the competent national authority’s powers – Fear of persecution on grounds of sexual orientation – Differences between, on the one hand, the limitations that apply to the verification of statements and documentary or other evidence as regards the declared sexual orientation of an applicant for asylum and, on the other hand, those that apply to the verification of those elements as regards other grounds for persecution – Minimum standards in respect of procedures in Member States for granting and withdrawing refugee status –Requirements for a personal interview – Charter of Fundamental Rights of the European Union –Human dignity – Respect for private and family life |
Question referred for a preliminary ruling | ‘What limits do Article 4 of [Directive 2004/83] and [the Charter], in particular Articles 3 and 7 thereof, impose on the method of assessing the credibility of a declared sexual orientation, and are those limits different from the limits which apply to assessment of the credibility of the other grounds of persecution and, if so, in what respect?’ |
Decision | Article 4(3)(c) of Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted and Article 13(3)(a) of Directive 2005/85/EC of 1 December 2005, on minimum standards on procedures in Member States for granting and withdrawing refugee status, must be interpreted as precluding, in the context of the assessment by the competent national authorities, acting under the supervision of the courts, of the facts and circumstances concerning the declared sexual orientation of an applicant for asylum, whose application is based on a fear of persecution on grounds of that sexual orientation, the statements of that applicant and the documentary and other evidence submitted in support of his application being subject to an assessment by those authorities, founded on questions based only on stereotyped notions concerning homosexuals.
Article 4 of Directive 2004/83, read in the light of Article 7 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding, in the context of that assessment, the competent national authorities from carrying out detailed questioning as to the sexual practices of an applicant for asylum.
Article 4 of Directive 2004/83, read in the light of Article 1 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding, in the context of that assessment, the acceptance by those authorities of evidence such as the performance by the applicant for asylum concerned of homosexual acts, his submission to ‘tests’ with a view to establishing his homosexuality or, yet, the production by him of films of such acts.
Article 4(3) of Directive 2004/83 and Article 13(3)(a) of Directive 2005/85 must be interpreted as precluding, in the context of that assessment, the competent national authorities from finding that the statements of the applicant for asylum lack credibility merely because the applicant did not rely on his declared sexual orientation on the first occasion he was given to set out the ground for persecution. |
Case number | C–101/13 |
Case name | U |
Document | Judgment ECLI:EU:C:2014:2249 |
Date | 02/10/2014 |
Source of the question referred for a preliminary ruling | Verwaltungsgerichtshof Baden–Württemberg (Germany) |
Name of the parties | U v Stadt Karlsruhe |
Subject matter | Area of freedom, security and justice; asylum policy; border control; refusal to show change of surname in passport |
Key words | U – Document 9303 of the International Civil Aviation Organisation (ICAO), Part 1 – Minimum security standards for passports and travel documents issued by the Member States – Machine readable passport – Inclusion of the birth name on the personal data page of the passport – Name to appear in a form not liable to give rise to confusion |
Question referred for a preliminary ruling | ‘(1) In accordance with the Annex to [Regulation No 2252/2004,] must the way in which the personal data page of machine readable passports is issued by the Member States satisfy all the compulsory specifications of Part 1 [of Document 9303 of the ICAO]? (2) If, in accordance with the Law on names of a Member State, a person’s name comprises his first name[s] and surname, are the Member States also entitled, in accordance with the Annex to Regulation (EC) No 2252/2004, in conjunction with Point 8.6 of Section IV of Part 1 [of ICAO Document 9303], to enter the name at birth as a primary identifier in Field 6 of the machine readable personal data page of the passport? (3) If, in accordance with the Law on names of a Member State, a person’s name comprises his first name[s] and surname, are the Member States also entitled, in accordance with the Annex to Regulation (EC) No 2252/2004, in conjunction with Point 8.6 of Section IV of Part 1 [of ICAO Document 9303], to enter the name at birth as a secondary identifier in Field 7 of the machine readable personal data page of the passport? (4) If either the second or third question is answered in the affirmative: is a Member State, in accordance with whose Law on names a person’s name comprises his first name[s] and surname, required, on the basis of the protection afforded to a person’s name under Article 7 of the [Charter of Fundamental Rights of the European Union (‘the Charter’)] and Article 8 [of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950], to state, in the relevant caption of the machine readable personal data page of a passport, that the name at birth is also entered in that field? (5) If the fourth question is answered in the negative: by reason of the protection afforded to a person’s name under Article 7 of the Charter and Article 8 of the European Convention of Human Rights and Fundamental Freedoms, is a Member State, in accordance with whose Law on names a person’s name comprises his first name[s] and surname and under whose Law on passports the fields on the machine readable personal data page of a passport are also to be given in English and French and in Field 6 of that page the name at birth is also to be provided on a separate line, preceded by the abbreviation ‘geb.’ of the word ‘geboren’ (born), also required to provide a translation in English and French of the abbreviation ‘geb.’? (6) If, in accordance with the Law on names of a Member State, a person’s name comprises his first name[s] and surname, are the Member States entitled, in accordance with the annex to Regulation (EC) No 2252/2004, in conjunction with point 8.6 of Section IV of Part I [of ICAO Document 9303], to enter the name at birth as an optional item of personal data in Field 13 of the machine readable personal data page of the passport?’ |
Decision | 1. The Annex to Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States, as amended by Regulation (EC) No 444/2009 of the European Parliament and of the Council of 6 May 2009 must be interpreted as requiring the machine readable personal data page of passports issued by the Member States to satisfy all the compulsory specifications provided for by Part 1 of Document 9303 of the International Civil Aviation Organisation (ICAO). 2. The Annex to Regulation No 2252/2004, as amended by Regulation No 444/2009, read in conjunction with International Civil Aviation Organisation Document 9303, Part 1, must be interpreted, where the law of a Member State provides that a person’s name comprises his forenames and surname, as not precluding that State from being entitled nevertheless to enter the birth name either as a primary identifier in Field 06 of the machine readable personal data page of the passport or as a secondary identifier in Field 07 of that page or in a single field composed of Fields 06 and 07. 3. The Annex to Regulation No 2252/2004, as amended by Regulation No 444/2009, read in conjunction with the provisions of International Civil Aviation Organisation Document 9303, Part 1, Section IV, point 8.6, must be interpreted, where the law of a Member State provides that a person’s name comprises his forenames and surname, as precluding that State from being entitled to enter the birth name as an optional item of personal date in Field 13 of the machine readable personal data page of the passport. 4. The Annex to Regulation No 2252/2004, as amended by Regulation No 444/2009, read in conjunction with International Civil Aviation Organisation Document 9303, Part 1, must be interpreted, in the light of Article 7 of the Charter, as meaning that, where a Member State whose law provides that a person’s name comprises his forenames and surname chooses nevertheless to include the birth name of the passport holder in Fields 06 and/or 07 of the machine readable personal data page of the passport, that State is required to state clearly in the caption of those fields that the birth name is entered there. |
Case number | C–131/12 |
Case name | Google Spain and Google |
Document | Judgment ECLI:EU:C:2014:317 |
Date | 13/05/2014 |
Source of the question referred for a preliminary ruling | Audiencia Nacional (Spain) |
Name of the parties | Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mariu Costeji Gonzálezu |
Subject matter | Personal data protection; information and communication technologies; telecommunications; internet; measures for the withdrawal of personal data |
Key words | Google Spain – Protection of individuals with regard to the processing of such data – Material and territorial scope – Internet search engines – Processing of data contained on websites – Searching for, indexing and storage of such data – Responsibility of the operator of the search engine – Establishment on the territory of a Member State – Extent of that operator’s obligations and of the data subject’s rights – Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | ‘1. With regard to the territorial application of Directive [95/46] and, consequently, of the Spanish data protection legislation: (a) must it be considered that an ‘establishment’, within the meaning of Article 4(1)(a) of Directive 95/46, exists when any one or more of the following circumstances arise: – when the undertaking providing the search engine sets up in a Member State an office or subsidiary for the purpose of promoting and selling advertising space on the search engine, which orientates its activity towards the inhabitants of that State, or – when the parent company designates a subsidiary located in that Member State as its representative and controller for two specific filing systems which relate to the data of customers who have contracted for advertising with that undertaking, or – when the office or subsidiary established in a Member State forwards to the parent company, located outside the European Union, requests and requirements addressed to it both by data subjects and by the authorities with responsibility for ensuring observation of the right to data protection, even where such collaboration is engaged in voluntarily? (b) Must Article 4(1)(c) of Directive 95/46 be interpreted as meaning that there is ‘use of equipment … situated on the territory of the said Member State’: – when a search engine uses crawlers or robots to locate and index information contained in web pages located on servers in that Member State, or – when it uses a domain name pertaining to a Member State and arranges for searches and the results thereof to be based on the language of that Member State? (c) Is it possible to regard as a use of equipment, in the terms of Article 4(1)(c) of Directive 95/46, the temporary storage of the information indexed by internet search engines? If the answer to that question is affirmative, can it be considered that that connecting factor is present when the undertaking refuses to disclose the place where it stores those indexes, invoking reasons of competition? (d) Regardless of the answers to the foregoing questions and particularly in the event that the Court … considers that the connecting factors referred to in Article 4 of [Directive 95/46] are not present: must Directive 95/46 … be applied, in the light of Article 8 of the [Charter], in the Member State where the centre of gravity of the conflict is located and more effective protection of the rights of … Union citizens is possible? 2. As regards the activity of search engines as providers of content in relation to Directive 95/46 …: (a) in relation to the activity of [Google Search], as a provider of content, consisting in locating information published or included on the net by third parties, indexing it automatically, storing it temporarily and finally making it available to internet users according to a particular order of preference, when that information contains personal data of third parties: must an activity like the one described be interpreted as falling within the concept of ‘processing of … data’ used in Article 2(b) of Directive 95/46? (b) If the answer to the foregoing question is affirmative, and once again in relation to an activity like the one described: must Article 2(d) of Directive 95/46 be interpreted as meaning that the undertaking managing [Google Search] is to be regarded as the ‘controller’ of the personal data contained in the web pages that it indexes? (c) In the event that the answer to the foregoing question is affirmative: may the [AEPD], protecting the rights embodied in [Article] 12(b) and [subparagraph (a) of the first paragraph of Article 14] of Directive 95/46, directly impose on [Google Search] a requirement that it withdraw from its indexes an item of information published by third parties, without addressing itself in advance or simultaneously to the owner of the web page on which that information is located? (d) In the event that the answer to the foregoing question is affirmative: would the obligation of search engines to protect those rights be excluded when the information that contains the personal data has been lawfully published by third parties and is kept on the web page from which it originates? 3. Regarding the scope of the right of erasure and/or the right to object, in relation to the ‘derecho al olvido’ (the ‘right to be forgotten’), the following question is asked: must it be considered that the rights to erasure and blocking of data, provided for in Article 12(b), and the right to object, provided for by [subparagraph (a) of the first paragraph of Article 14] of Directive 95/46, extend to enabling the data subject to address himself to search engines in order to prevent indexing of the information relating to him personally, published on third parties’ web pages, invoking his wish that such information should not be known to internet users when he considers that it might be prejudicial to him or he wishes it to be consigned to oblivion, even though the information in question has been lawfully published by third parties?’ |
Decision | 1. Article 2(b) and (d) 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 are to be interpreted as meaning that, first, the activity of a search engine consisting in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference must be classified as ‘processing of personal data’ within the meaning of Article 2(b) when that information contains personal data and, second, the operator of the search engine must be regarded as the ‘controller’ in respect of that processing, within the meaning of Article 2(d). 2. Article 4(1)(a) of Directive 95/46 is to be interpreted as meaning that processing of personal data is carried out in the context of the activities of an establishment of the controller on the territory of a Member State, within the meaning of that provision, when the operator of a search engine sets up in a Member State a branch or subsidiary which is intended to promote and sell advertising space offered by that engine and which orientates its activity towards the inhabitants of that Member State. 3. Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, in order to comply with the rights laid down in those provisions and in so far as the conditions laid down by those provisions are in fact satisfied, the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful. 4. Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, when appraising the conditions for the application of those provisions, it should inter alia be examined whether the data subject has a right that the information in question relating to him personally should, at this point in time, no longer be linked to his name by a list of results displayed following a search made on the basis of his name, without it being necessary in order to find such a right that the inclusion of the information in question in that list causes prejudice to the data subject. As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name. However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question. |
Case number | C–356/11 |
Case name | O. and S. |
Document | Judgment ECLI:EU:C:2012:776 |
Date | 06/12/2012 |
Source of the question referred for a preliminary ruling | Korkein hallinto–oikeus (Finland) |
Name of the parties | O. and S. v Maahanmuuttovirasto and Maahanmuuttovirasto v L. |
Subject matter | Citizenship of the Union; immigration policy, rights of entry and residence – Area of freedom, security and justice: asylum policy; refusals of residence permit applications on the grounds of family reunification |
Key words | O. and S. – Right to family reunification − Union citizens who are minor children living with their mothers, who are third country nationals, in the territory of the Member State of which the children are nationals – Permanent right of residence in that Member State of the mothers who have been granted sole custody of the Union citizens – Change in composition of the families following the mothers’ remarriage to third country nationals and the birth of children of those marriages who are also third country nationals – Applications for family reunification in the Member State of origin of the Union citizens – Refusal of the right of residence to the new spouses on the ground of lack of sufficient resources – Right to respect for family life – Taking into consideration of the children’s best interests |
Question referred for a preliminary ruling | Joined Cases: C–356/11 2. If the answer to Question 1 is in the negative, must the effect of Article 20 TFEU be assessed differently if the third country national who does not have a residence permit, his spouse, and the child who is in the custody of the spouse and has Union citizenship live together?’ 2. If the answer to Question 1 is in the negative, must the effect of Article 20 TFEU be assessed differently if the third country national who does not have a residence permit, and does not live in Finland, and his spouse have a child, in their joint custody and living in Finland, who is a third country national?’ |
Decision | Article 20 TFEU must be interpreted as not precluding a Member State from refusing to grant a third country national a residence permit on the basis of family reunification where that national seeks to reside with his spouse, who is also a third country national and resides lawfully in that Member State and is the mother of a child from a previous marriage who is a Union citizen, and with the child of their own marriage, who is also a third country national, provided that such a refusal does not entail, for the Union citizen concerned, the denial of the genuine enjoyment of the substance of the rights conferred by the status of citizen of the Union, that being for the referring court to ascertain. Applications for residence permits on the basis of family reunification such as those at issue in the main proceedings are covered by Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification. Article 7(1)(c) of that directive must be interpreted as meaning that, while Member States have the faculty of requiring proof that the sponsor has stable and regular resources which are sufficient to maintain himself and the members of his family, that faculty must be exercised in the light of Articles 7 and 24(2) and (3) of the Charter of Fundamental Rights of the European Union, which require the Member States to examine applications for family reunification in the interests of the children concerned and also with a view to promoting family life, and avoiding any undermining of the objective and the effectiveness of that directive. It is for the referring court to ascertain whether the decisions refusing residence permits at issue in the main proceedings were taken in compliance with those requirements. |
Case number | C–93/09 |
Case name | Volker und Markus Schecke and Eifert |
Document | Judgment ECLI:EU:C:2010:662 |
Date | 09/11/2010 |
Source of the question referred for a preliminary ruling | Verwaltungsgericht Wiesbaden (Germany) |
Name of the parties | Volker und Markus Schecke GbR (C–92/09) and Hartmut Eifert v Land Hessen (C–93/09) |
Subject matter | Protection of personal data; Agriculture and fisheries; publication of beneficiaries of funds |
Key words | Schecke – Protection of natural persons with regard to the processing of personal data – Publication of information on beneficiaries of agricultural aid – Validity of the provisions of European Union law providing for that publication and laying down detailed rules for such publication – Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | Joined Cases C– 92/09 and C–93/09: 2. Is … Regulation … No 259/2008 … (a) invalid, or (b) valid by reason only of the fact that Directive 2006/24 … is invalid? If the provisions mentioned in the first and second questions are valid: 3. Must the second indent of Article 18(2) of Directive 95/46 … be interpreted as meaning that publication in accordance with … Regulation … No 259/2008 … may be effected only following implementation of the procedure – in lieu of notification to a supervisory authority – established by that article? 4. Must Article 20 of Directive 95/46 … be interpreted as meaning that publication in accordance with … Regulation … No 259/2008 … may be effected only following exercise of the prior check required by national law in that case? 5. If the fourth question is answered in the affirmative: Must Article 20 of Directive 95/46 … be interpreted as meaning that no effective prior check has been performed, if it was effected on the basis of a register established in accordance with the second indent of Article 18(2) of that directive which lacks an item of information prescribed? 6. Must Article 7 – and in this case, in particular, subparagraph (e) – of Directive 95/46 … be interpreted as precluding a practice of storing the IP addresses of the users of a homepage without their express consent?’ |
Decision | 1. Articles 42(8b) and 44a of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy, as amended by Council Regulation (EC) No 1437/2007 of 26 November 2007, and Commission Regulation (EC) No 259/2008 of 18 March 2008 laying down detailed rules for the application of Regulation No 1290/2005 as regards the publication of information on the beneficiaries of funds deriving from the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD) are invalid in so far as, with regard to natural persons who are beneficiaries of EAGF and EAFRD aid, those provisions impose an obligation to publish personal data relating to each beneficiary without drawing a distinction based on relevant criteria such as the periods during which those persons have received such aid, the frequency of such aid or the nature and amount thereof. 2. The invalidity of the provisions of European Union law mentioned in paragraph 1 of this operative part does not allow any action to be brought to challenge the effects of the publication of the lists of beneficiaries of EAGF and EAFRD aid carried out by the national authorities on the basis of those provisions during the period prior to the date on which the present judgment is delivered. 3. The second indent of Article 18(2) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as not placing the personal data protection official under an obligation to keep the register provided for by that provision before an operation for the processing of personal data, such as that resulting from Articles 42(8b) and 44a of Regulation No 1290/2005, as amended by Regulation No 1437/2007, and from Regulation No 259/2008, is carried out. 4. Article 20 of Directive 95/46 must be interpreted as not imposing an obligation on the Member States to make the publication of information resulting from Articles 42(8b) and 44a of Regulation No 1290/2005, as amended by Regulation No 1437/2007, and from Regulation No 259/2008 subject to the prior checks for which that Article 20 provides. |
Article 8 of the Charter: Protection of personal data
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–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–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 (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?’ (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 (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 (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? (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–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–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? [(b)] From that perspective, how must the exceptions laid down in Article 8(2)(a) and (e) of Directive 95/46 be interpreted, when they apply to the operator of a search engine, in the light of its specific responsibilities, powers and capabilities? In particular, may such an operator refuse a request for de–referencing, if it establishes that the links at issue lead to content which, although comprising data falling within the categories listed in Article 8(1), is also covered by the exceptions laid down by Article 8(2) of the directive, in particular points (a) and (e)? [(c)] Similarly, when the links subject to the request for de–referencing lead to processing of personal data carried out solely for journalistic purposes or for those of artistic or literary expression, on which basis, in accordance with Article 9 of Directive 95/46, data within the categories mentioned in Article 8(1) and (5) of the directive may be collected and processed, must the provisions of Directive 95/46 be interpreted as allowing the operator of a search engine, on that ground, to refuse a request for de–referencing? (3) If Question 1 should be answered in the negative: [(a)] Which specific requirements of Directive 95/46 must be met by the operator of a search engine, in view of its responsibilities, powers and capabilities? [(b)] When the operator establishes that the web pages at the end of the links subject to the request for de–referencing comprise data whose publication on those pages is unlawful, must the provisions of Directive 95/46 be interpreted as: – requiring the operator of a search engine to remove those links from the list of results displayed following a search made on the basis of the name of the person making the request; or – meaning only that it is to take that factor into consideration in assessing the merits of the request for de–referencing, or – meaning that this factor has no bearing on the assessment it is to make? Furthermore, if that factor is not irrelevant, how is the lawfulness of the publication on web pages of the data at issue which stem from processing falling outside the territorial scope of Directive 95/46 and, accordingly, of the national laws implementing it to be assessed? (4) Irrespective of the answer to be given to Question 1: [(a)] whether or not publication of the personal data on the web page at the end of the link at issue is lawful, must the provisions of Directive 95/46 be interpreted as: – requiring the operator of a search engine, when the person making the request establishes that the data in question have become incomplete or inaccurate, or are no longer up to date, to grant the corresponding request for de–referencing; – more specifically, requiring the operator of a search engine, when the person making the request shows that, having regard to the conduct of the legal proceedings, the information relating to an earlier stage of those proceedings is no longer consistent with the current reality of his situation, to de–reference the links to web pages comprising such information? [(b)] Must Article 8(5) of Directive 95/46 be interpreted as meaning that information relating to the investigation of an individual or reporting a trial and the resulting conviction and sentencing constitutes data relating to offences and to criminal convictions? More generally, does a web page comprising data referring to the convictions of or legal proceedings involving a natural person fall within the ambit of those provisions?’ |
Decision | 1. The provisions of Article 8(1) and (5) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that the prohibition or restrictions relating to the processing of special categories of personal data, mentioned in those provisions, apply also, subject to the exceptions provided for by the directive, to the operator of a search engine in the context of his responsibilities, powers and capabilities as the controller of the processing carried out in connection with the activity of the search engine, on the occasion of a verification performed by that operator, under the supervision of the competent national authorities, following a request by the data subject. 2. The provisions of Article 8(1) and (5) of Directive 95/46 must be interpreted as meaning that the operator of a search engine is in principle required by those provisions, subject to the exceptions provided for by the directive, to accede to requests for de–referencing in relation to links to web pages containing personal data falling within the special categories referred to by those provisions. Article 8(2)(e) of Directive 95/46 must be interpreted as meaning that, pursuant to that article, such an operator may refuse to accede to a request for de–referencing if he establishes that the links at issue lead to content comprising personal data falling within the special categories referred to in Article 8(1) but whose processing is covered by the exception in Article 8(2)(e) of the directive, provided that the processing satisfies all the other conditions of lawfulness laid down by the directive, and unless the data subject has the right under Article 14(a) of the directive to object to that processing on compelling legitimate grounds relating to his particular situation. The provisions of Directive 95/46 must be interpreted as meaning that, where the operator of a search engine has received a request for de–referencing relating to a link to a web page on which personal data falling within the special categories referred to in Article 8(1) or (5) of Directive 95/46 are published, the operator must, on the basis of all the relevant factors of the particular case and taking into account the seriousness of the interference with the data subject’s fundamental rights to privacy and protection of personal data laid down in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, ascertain, having regard to the reasons of substantial public interest referred to in Article 8(4) of the directive and in compliance with the conditions laid down in that provision, whether the inclusion of that link in the list of results displayed following a search on the basis of the data subject’s name is strictly necessary for protecting the freedom of information of internet users potentially interested in accessing that web page by means of such a search, protected by Article 11 of the Charter. 3. The provisions of Directive 95/46 must be interpreted as meaning that – first, information relating to legal proceedings brought against an individual and, as the case may be, information relating to an ensuing conviction are data relating to ‘offences’ and ‘criminal convictions’ within the meaning of Article 8(5) of Directive 95/46, and – second, the operator of a search engine is required to accede to a request for de–referencing relating to links to web pages displaying such information, where the information relates to an earlier stage of the legal proceedings in question and, having regard to the progress of the proceedings, no longer corresponds to the current situation, in so far as it is established in the verification of the reasons of substantial public interest referred to in Article 8(4) of Directive 95/46 that, in the light of all the circumstances of the case, the data subject’s fundamental rights guaranteed by Articles 7 and 8 of the Charter of Fundamental Rights of the European Union override the rights of potentially interested internet users protected by Article 11 of the Charter. |
Case number | C–207/16 |
Case name | Ministerio Fiscal |
Document | Judgment ECLI:EU:C:2018:788 |
Date | 02/10/2018 |
Source of the question referred for a preliminary ruling | Audiencia Provincial de Tarragona (Provincial Court, Tarragona, Spain) |
Name of the parties | Ministerio Fiscal, |
Subject matter | Personal data protection; Information and communication technologies;Telecommunications; refusal of access to personal data by the criminal police |
Key words | Ministerio Fiscal – Electronic communications – Processing of personal data – Confidentiality of electronic communications – Protection – Charter of Fundamental Rights of the European Union – Data processed in connection with the provision of electronic communications services – Access of national authorities to the data for the purposes of an investigation – Threshold of seriousness of an offence capable of justifying access to the data |
Question referred for a preliminary ruling | ‘(1) Can the sufficient seriousness of offences, as a criterion which justifies interference with the fundamental rights recognised by Articles 7 and 8 of the [Charter], be determined taking into account only the sentence which may be imposed in respect of the offence investigated, or is it also necessary to identify in the criminal conduct particular levels of harm to individual and/or collective legally protected interests? (2) If it were in accordance with the constitutional principles of the European Union, used by the Court of Justice in its judgment [of 8 April 2014, Digital Rights Ireland and Others, C‑293/12 and C‑594/12, EU:C:2014:238] as standards for the strict review of [Directive 2002/58], to determine the seriousness of the offence solely on the basis of the sentence which may be imposed, what should the minimum threshold be? Would it be compatible with a general provision setting a minimum of three years’ imprisonment?’ |
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 and 8 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that the access of public authorities to data for the purpose of identifying the owners of SIM cards activated with a stolen mobile telephone, such as the surnames, forenames and, if need be, addresses of the owners, entails interference with their fundamental rights, enshrined in those articles of the Charter of Fundamental Rights, which is not sufficiently serious to entail that access being limited, in the area of prevention, investigation, detection and prosecution of criminal offences, to the objective of fighting serious crime. |
Case number | C–203/15 |
Case name | Tele2 Sverige |
Document | Judgment ECLI:EU:C:2016:970 |
Date | 21/12/2016 |
Source of the question referred for a preliminary ruling | Request by Kammarrätten i Stockholm (Administrative Court of Appeal, Stockholm, Sweden) (Case C–203/15) and Court of Appeal (England & Wales) (Civil Division) (United Kingdom) (civilni oddelek), (Case C–698/15) |
Name of the parties | Tele2 Sverige AB v Post– och telestyrelsen and Secretary of State for the Home Department v Tomu Watsonu and Others |
Subject matter | Personal data protection; information and communication technologies; telecommunications; data storage |
Key words | Tele2 Sverige – Electronic communications – Processing of personal data – Confidentiality of electronic communications – Protection – Charter of Fundamental Rights of the European Union – National legislation – Providers of electronic communications services – Obligation relating to the general and indiscriminate retention of traffic and location data – National authorities – Access to data – No prior review by a court or independent administrative authority – Compatibility with EU law |
Question referred for a preliminary ruling | Joined Cases: C–203/15 (2) If the answer to question 1 is in the negative, may the retention nevertheless be permitted where: (a) access by the national authorities to the retained data is determined as [described in paragraphs 19 to 36 of the order for reference], and (b) data protection and security requirements are regulated as [described in paragraphs 38 to 43 of the order for reference], and (c) all relevant data is to be retained for six months, calculated as from the day when the communication is ended, and subsequently erased as [described in paragraph 37 of the order for reference]?’ (2) Does [the Digital Rights judgment] expand the scope of Articles 7 and/or 8 of [the Charter] beyond that of Article 8 of the European Convention of Human Rights … as established in the jurisprudence of the European Court of Human Rights …?’ |
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 which, for the purpose of fighting crime, provides for general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication. 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 governing the protection and security of traffic and location data and, in particular, access of the competent national authorities to the retained data, where the objective pursued by that access, in the context of fighting crime, is not restricted solely to fighting serious crime, where access is not subject to prior review by a court or an independent administrative authority, and where there is no requirement that the data concerned should be retained within the European Union. 3. The second question referred by the Court of Appeal (England & Wales) (Civil Division) is inadmissible. |
Case number | C–362/14 |
Case name | Schrems |
Document | Judgment ECLI:EU:C:2015:650 |
Date | 06/10/2015 |
Source of the question referred for a preliminary ruling | High Court (Ireland) |
Name of the parties | Maximillian Schrems v Data Protection Commissioner |
Subject matter | Protection of personal data; information and communication technologies; telecommunications; transfer of personal data of its users to the United States and storage on servers located there |
Key words | Schrems – Personal data – Protection of individuals with regard to the processing of such data – Charter of Fundamental Rights of the European Union –Transfer of personal data to third countries – Transfer of personal data to the United States – Inadequate level of protection – Validity – Complaint by an individual whose data has been transferred from the European Union to the United States – Powers of the national supervisory authorities |
Question referred for a preliminary ruling | ‘(1) Whether in the course of determining a complaint which has been made to an independent office holder who has been vested by statute with the functions of administering and enforcing data protection legislation that personal data is being transferred to another third country (in this case, the United States of America) the laws and practices of which, it is claimed, do not contain adequate protections for the data subject, that office holder is absolutely bound by the Community finding to the contrary contained in [Decision 2000/520] having regard to Article 7, Article 8 and Article 47 of [the Charter], the provisions of Article 25(6) of Directive [95/46] notwithstanding? (2) Or, alternatively, may and/or must the office holder conduct his or her own investigation of the matter in the light of factual developments in the meantime since that Commission decision was first published?’ |
Decision | 1. Article 25(6) 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 amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, read in the light of Articles 7, 8 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a decision adopted pursuant to that provision, such as Commission Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/46 on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce, by which the European Commission finds that a third country ensures an adequate level of protection, does not prevent a supervisory authority of a Member State, within the meaning of Article 28 of that directive as amended, from examining the claim of a person concerning the protection of his rights and freedoms in regard to the processing of personal data relating to him which has been transferred from a Member State to that third country when that person contends that the law and practices in force in the third country do not ensure an adequate level of protection. 2. Decision 2000/520 is invalid. |
Case number | C–141/12 |
Case name | Y.S. and Others |
Document | Judgment ECLI:EU:C:2014:2081 |
Date | 17/07/2014 |
Source of the question referred for a preliminary ruling | In Joined Cases made by Rechtbank Middelburg (C–141/12) and Raad van State (C–372/12) (Netherlands) |
Name of the parties | YS v Minister voor Immigratie, Integratie en Asiel and Minister voor Immigratie, Integratie en Asiel v M and S |
Subject matter | Protection of personal data; right of access; direct copy of an administrative document |
Key words | Y.S. – Protection of individuals with regard to the processing of personal data – Concept of ‘personal data’ – Scope of the right of access of a data subject – Data relating to the applicant for a residence permit and legal analysis contained in an administrative document preparatory to the decision – Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | In Joined Cases: C–141/12 2. Does the legal analysis included in the minute constitute personal data within the meaning of the aforementioned provision? 3. If the Court of Justice confirms that the data described above are personal data, should the processor/government body grant access to those personal data pursuant to Article 12 of [Directive 95/46] and Article 8(2) of the Charter? 4. In that context, may the data subject rely directly on Article 41(2)(b) of the Charter, and if so, must the phrase ‘while respecting the legitimate interests of confidentiality [in decision–making]’ included therein be interpreted in such a way that the right of access to the minute may be refused on that ground? 5. When the data subject requests access to the minute, should the processor/government body provide a copy of that document in order to do justice to the right of access?’ 2. Should the words ‘right of access’ in Article 8(2) of [the Charter] be interpreted to mean that there is a right to a copy of documents in which personal data have been processed, or is it sufficient if there is provision of a full summary, in an intelligible form, of the personal data that have undergone processing in the documents concerned within the meaning of the second indent of Article 12(a) of [Directive 95/46]? 3. Is Article 41(2)(b) of [the Charter] also addressed to the Member States of the European Union in so far as they are implementing EU law within the meaning of Article 51(1) of that Charter? 4. Does the consequence that, as a result of the granting of access to ‘minutes’, the reasons why a particular decision is proposed are no longer recorded therein, which is not in the interests of the internal undisturbed exchange of views within the public authority concerned and of orderly decision–making, constitute a legitimate interest of confidentiality within the meaning of Article 41(2)(b) of [the Charter]? 5. Can a legal analysis, as set out in a ‘minute’, be regarded as personal data within the meaning of Article 2(a) of [Directive 95/46]? 6. Does the protection of the rights and freedoms of others, within the meaning of Article 13(1)(g) of [Directive 95/46] …, also cover the interest in an internal undisturbed exchange of views within the public authority concerned? If the answer to that is in the negative, can that interest then be covered by Article 13(1)(d) or (f) of that directive?’ |
Decision | 1. Article 2(a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that the data relating to an applicant for a residence permit contained in an administrative document, such as the ‘minute’ at issue in the main proceedings, setting out the grounds that the case officer puts forward in support of the draft decision which he is responsible for drawing up in the context of the procedure prior to the adoption of a decision concerning the application for such a permit and, where relevant, the data in the legal analysis contained in that document, are ‘personal data’ within the meaning of that provision, whereas, by contrast, that analysis cannot in itself be so classified. 2. Article 12(a) of Directive 95/46 and Article 8(2) of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that an applicant for a residence permit has a right of access to all personal data concerning him which are processed by the national administrative authorities within the meaning of Article 2(b) of that directive. For that right to be complied with, it is sufficient that the applicant be in possession of a full summary of those data in an intelligible form, that is to say a form which allows that applicant to become aware of those data and to check that they are accurate and processed in compliance with that directive, so that he may, where relevant, exercise the rights conferred on him by that directive. 3. Article 41(2)(b) of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the applicant for a residence permit cannot rely on that provision against the national authorities. |
Case number | C–131/12 |
Case name | Google Spain and Google |
Document | Judgment ECLI:EU:C:2014:317 |
Date | 13/05/2014 |
Source of the question referred for a preliminary ruling | Audiencia Nacional (Spain) |
Name of the parties | Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mariu Costeji Gonzálezu |
Subject matter | Personal data protection; information and communication technologies; telecommunications; internet; measures for the withdrawal of personal data |
Key words | Google Spain – Protection of individuals with regard to the processing of such data – Material and territorial scope – Internet search engines – Processing of data contained on websites – Searching for, indexing and storage of such data – Responsibility of the operator of the search engine – Establishment on the territory of a Member State – Extent of that operator’s obligations and of the data subject’s rights – Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | ‘1. With regard to the territorial application of Directive [95/46] and, consequently, of the Spanish data protection legislation: (a) must it be considered that an ‘establishment’, within the meaning of Article 4(1)(a) of Directive 95/46, exists when any one or more of the following circumstances arise: – when the undertaking providing the search engine sets up in a Member State an office or subsidiary for the purpose of promoting and selling advertising space on the search engine, which orientates its activity towards the inhabitants of that State, or – when the parent company designates a subsidiary located in that Member State as its representative and controller for two specific filing systems which relate to the data of customers who have contracted for advertising with that undertaking, or – when the office or subsidiary established in a Member State forwards to the parent company, located outside the European Union, requests and requirements addressed to it both by data subjects and by the authorities with responsibility for ensuring observation of the right to data protection, even where such collaboration is engaged in voluntarily? (b) Must Article 4(1)(c) of Directive 95/46 be interpreted as meaning that there is ‘use of equipment … situated on the territory of the said Member State’: – when a search engine uses crawlers or robots to locate and index information contained in web pages located on servers in that Member State, or – when it uses a domain name pertaining to a Member State and arranges for searches and the results thereof to be based on the language of that Member State? (c) Is it possible to regard as a use of equipment, in the terms of Article 4(1)(c) of Directive 95/46, the temporary storage of the information indexed by internet search engines? If the answer to that question is affirmative, can it be considered that that connecting factor is present when the undertaking refuses to disclose the place where it stores those indexes, invoking reasons of competition? (d) Regardless of the answers to the foregoing questions and particularly in the event that the Court … considers that the connecting factors referred to in Article 4 of [Directive 95/46] are not present: must Directive 95/46 … be applied, in the light of Article 8 of the [Charter], in the Member State where the centre of gravity of the conflict is located and more effective protection of the rights of … Union citizens is possible? 2. As regards the activity of search engines as providers of content in relation to Directive 95/46 …: (a) in relation to the activity of [Google Search], as a provider of content, consisting in locating information published or included on the net by third parties, indexing it automatically, storing it temporarily and finally making it available to internet users according to a particular order of preference, when that information contains personal data of third parties: must an activity like the one described be interpreted as falling within the concept of ‘processing of … data’ used in Article 2(b) of Directive 95/46? (b) If the answer to the foregoing question is affirmative, and once again in relation to an activity like the one described: must Article 2(d) of Directive 95/46 be interpreted as meaning that the undertaking managing [Google Search] is to be regarded as the ‘controller’ of the personal data contained in the web pages that it indexes? (c) In the event that the answer to the foregoing question is affirmative: may the [AEPD], protecting the rights embodied in [Article] 12(b) and [subparagraph (a) of the first paragraph of Article 14] of Directive 95/46, directly impose on [Google Search] a requirement that it withdraw from its indexes an item of information published by third parties, without addressing itself in advance or simultaneously to the owner of the web page on which that information is located? (d) In the event that the answer to the foregoing question is affirmative: would the obligation of search engines to protect those rights be excluded when the information that contains the personal data has been lawfully published by third parties and is kept on the web page from which it originates? 3. Regarding the scope of the right of erasure and/or the right to object, in relation to the ‘derecho al olvido’ (the ‘right to be forgotten’), the following question is asked: must it be considered that the rights to erasure and blocking of data, provided for in Article 12(b), and the right to object, provided for by [subparagraph (a) of the first paragraph of Article 14] of Directive 95/46, extend to enabling the data subject to address himself to search engines in order to prevent indexing of the information relating to him personally, published on third parties’ web pages, invoking his wish that such information should not be known to internet users when he considers that it might be prejudicial to him or he wishes it to be consigned to oblivion, even though the information in question has been lawfully published by third parties?’ |
Decision | 1. Article 2(b) and (d) 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 are to be interpreted as meaning that, first, the activity of a search engine consisting in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference must be classified as ‘processing of personal data’ within the meaning of Article 2(b) when that information contains personal data and, second, the operator of the search engine must be regarded as the ‘controller’ in respect of that processing, within the meaning of Article 2(d). 2. Article 4(1)(a) of Directive 95/46 is to be interpreted as meaning that processing of personal data is carried out in the context of the activities of an establishment of the controller on the territory of a Member State, within the meaning of that provision, when the operator of a search engine sets up in a Member State a branch or subsidiary which is intended to promote and sell advertising space offered by that engine and which orientates its activity towards the inhabitants of that Member State. 3. Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, in order to comply with the rights laid down in those provisions and in so far as the conditions laid down by those provisions are in fact satisfied, the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful. 4. Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, when appraising the conditions for the application of those provisions, it should inter alia be examined whether the data subject has a right that the information in question relating to him personally should, at this point in time, no longer be linked to his name by a list of results displayed following a search made on the basis of his name, without it being necessary in order to find such a right that the inclusion of the information in question in that list causes prejudice to the data subject. As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name. However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question. |
Case number | C–93/09 |
Case name | Volker und Markus Schecke and Eifert |
Document | Judgment ECLI:EU:C:2010:662 |
Date | 09/11/2010 |
Source of the question referred for a preliminary ruling | Verwaltungsgericht Wiesbaden (Germany) |
Name of the parties | Volker und Markus Schecke GbR (C–92/09) and Hartmut Eifert v Land Hessen (C–93/09) |
Subject matter | Protection of personal data; Agriculture and fisheries; publication of beneficiaries of funds |
Key words | Schecke – Protection of natural persons with regard to the processing of personal data – Publication of information on beneficiaries of agricultural aid – Validity of the provisions of European Union law providing for that publication and laying down detailed rules for such publication – Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | Joined Cases C– 92/09 and C–93/09: 2. Is … Regulation … No 259/2008 … (a) invalid, or (b) valid by reason only of the fact that Directive 2006/24 … is invalid? If the provisions mentioned in the first and second questions are valid: 3. Must the second indent of Article 18(2) of Directive 95/46 … be interpreted as meaning that publication in accordance with … Regulation … No 259/2008 … may be effected only following implementation of the procedure – in lieu of notification to a supervisory authority – established by that article? 4. Must Article 20 of Directive 95/46 … be interpreted as meaning that publication in accordance with … Regulation … No 259/2008 … may be effected only following exercise of the prior check required by national law in that case? 5. If the fourth question is answered in the affirmative: Must Article 20 of Directive 95/46 … be interpreted as meaning that no effective prior check has been performed, if it was effected on the basis of a register established in accordance with the second indent of Article 18(2) of that directive which lacks an item of information prescribed? 6. Must Article 7 – and in this case, in particular, subparagraph (e) – of Directive 95/46 … be interpreted as precluding a practice of storing the IP addresses of the users of a homepage without their express consent?’ |
Decision | 1. Articles 42(8b) and 44a of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy, as amended by Council Regulation (EC) No 1437/2007 of 26 November 2007, and Commission Regulation (EC) No 259/2008 of 18 March 2008 laying down detailed rules for the application of Regulation No 1290/2005 as regards the publication of information on the beneficiaries of funds deriving from the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD) are invalid in so far as, with regard to natural persons who are beneficiaries of EAGF and EAFRD aid, those provisions impose an obligation to publish personal data relating to each beneficiary without drawing a distinction based on relevant criteria such as the periods during which those persons have received such aid, the frequency of such aid or the nature and amount thereof. 2. The invalidity of the provisions of European Union law mentioned in paragraph 1 of this operative part does not allow any action to be brought to challenge the effects of the publication of the lists of beneficiaries of EAGF and EAFRD aid carried out by the national authorities on the basis of those provisions during the period prior to the date on which the present judgment is delivered. 3. The second indent of Article 18(2) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as not placing the personal data protection official under an obligation to keep the register provided for by that provision before an operation for the processing of personal data, such as that resulting from Articles 42(8b) and 44a of Regulation No 1290/2005, as amended by Regulation No 1437/2007, and from Regulation No 259/2008, is carried out. 4. Article 20 of Directive 95/46 must be interpreted as not imposing an obligation on the Member States to make the publication of information resulting from Articles 42(8b) and 44a of Regulation No 1290/2005, as amended by Regulation No 1437/2007, and from Regulation No 259/2008 subject to the prior checks for which that Article 20 provides. |
Article 9 of the Charter: Right to marry and right to found a family
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Article10 of the Charter: Freedom of thought, conscience and religion
Case number | C–336/19 |
Case name | Centraal Israëlitisch Consistorie van België and Others |
Document | Judgment ECLI:EU:C:2020:1031 |
Date | 17/12/2020 |
Source of the question referred for a preliminary ruling | Grondwettelijk Hof (Constitutional Court, Belgium) |
Name of the parties | Centraal Israëlitisch Consistorie van België e.a. and Others v LI and Others |
Subject matter | Agriculture; culture; ritual slaughter |
Key words | LI – Protection of animals at the time of killing – Obligation to stun animals before they are killed – Derogation in the context of ritual slaughter –Power of Member States to adopt national rules aimed at ensuring more extensive protection of animals in the case of ritual slaughter – Interpretation – National legislation requiring, in the case of ritual slaughter, stunning which is reversible and cannot cause death –– Charter of Fundamental Rights of the European Union – Freedom of religion – Freedom to manifest religion – Limitation – Proportionality – Lack of consensus among the Member States of the European Union – Discretion afforded to Member States – Principle of subsidiarity – Validity – Differing treatment of ritual slaughter and the killing of animals during hunting or recreational fishing activities and cultural or sporting events – No discrimination |
Question referred for a preliminary ruling | ‘(1) Should point (c) of the first subparagraph of Article 26(2) of [Regulation No 1099/2009] be interpreted as meaning that Member States are permitted, by way of derogation from … Article 4(4) of that regulation and with a view to promoting animal welfare, to adopt rules such as those contained in the decree [at issue in the main proceedings], rules which provide, on the one hand, for a prohibition on the slaughter of animals without stunning that also applies to the slaughter carried out in the context of a religious rite and, on the other hand, for an alternative stunning procedure for the slaughter carried out in the context of a religious rite, based on reversible stunning and on the requirement that the stunning should not result in the death of the animal? (2) If the first question referred for a preliminary ruling is to be answered in the affirmative, does point (c) of the first subparagraph of Article 26(2) of Regulation No 1099/2009, in the interpretation referred to in the first question, infringe Article 10(1) of the [Charter]? (3) If the first question referred for a preliminary ruling is to be answered in the affirmative, does point (c) of the first subparagraph of Article 26(2) read in conjunction with Article 4(4) of Regulation No 1099/2009, in the interpretation referred to in the first question, infringe Articles 20, 21 and 22 of the [Charter], since, in the case of the killing of animals by particular methods prescribed by religious rites, provision is only made for a conditional exception to the obligation to stun the animal (Article 4(4), read in conjunction with Article 26(2) [of that regulation]), whereas in the case of the killing of animals during hunting and fishing and during sporting and cultural events, for the reasons stated in the recitals of the regulation, the relevant provisions stipulate that those activities do not fall within the scope of the regulation, or are not subject to the obligation to stun the animal when it is killed (Article 1(1), second subparagraph, and Article 1(3) [of that regulation])?’ |
Decision | 1. Point (c) of the first subparagraph of Article 26(2) of Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing, read in the light of Article 13 TFEU and Article 10(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding legislation of a Member State which requires, in the context of ritual slaughter, a reversible stunning procedure which cannot result in the animal’s death. 2. The examination of the third question referred for a preliminary ruling has disclosed nothing capable of affecting the validity of point (c) of the first subparagraph of Article 26(2) of Regulation No 1099/2009. |
Case number | C–804/18 |
Case name | WABE |
Document | Judgment ECLI:EU:C:2021:594 |
Date | 15/7/2021 |
Source of the question referred for a preliminary ruling | In Joined Cases: Arbeitsgericht Hamburg (Labour Court, Hamburg, Germany) (C–804/18) and Bundesarbeitsgericht (Federal Labour Court, Germany) (C–341/19) |
Name of the parties | IX v WABE eV (C–804/18) and MH Müller Handels GmbH v MJ (C–341/19) |
Subject matter | Employment and social policy; prohibition of discrimination on grounds of religion or belief; prohibition of the wearing of conspicuous and large political, philosophical or religious symbols |
Key words | WABE – Equal treatment in employment and occupation – Prohibition of discrimination on the grounds of religion or belief – Internal rule of a private undertaking prohibiting the wearing of any visible political, philosophical or religious sign or the wearing of conspicuous, large–sized political, philosophical or religious signs in the workplace – Direct or indirect discrimination – Proportionality – Balancing the freedom of religion and other fundamental rights – Legitimacy of the policy of neutrality adopted by the employer – Need to establish economic loss suffered by the employer |
Question referred for a preliminary ruling | Joined Cases: C–804/18: (2) Does a unilateral instruction from the employer prohibiting the wearing of any visible sign of political, ideological or religious beliefs constitute indirect discrimination on the grounds of religion and/or gender, within the meaning of Article 2(1) and Article 2(2)(b) of Directive [2000/78], against a female employee who, due to her Muslim faith, wears a headscarf? In particular: (a) Can [indirect] discrimination on the grounds of religion and/or gender be justified under Directive [2000/78] by the employer’s subjective wish to pursue a policy of political, ideological and religious neutrality even where the employer thereby seeks to meet the subjective wishes of his customers? (b) Do Directive [2000/78] and/or the fundamental right of freedom to conduct a business under Article 16 of the [Charter] in view of Article 8(1) of Directive [2000/78] preclude a national regulation according to which, in order to protect the fundamental right of freedom of religion, a ban on religious clothing may be justified not simply on the basis of an abstract capacity to endanger the neutrality of the employer, but only on the basis of a sufficiently specific risk, in particular of a specifically threatened economic disadvantage for the employer or an affected third party?’ (2) If Question 1 is answered in the negative: (a) Is Article 2(2)(b) of Directive [2000/78] to be interpreted as meaning that the rights derived from Article 10 of the [Charter] and from Article 9 [ECHR] may be taken into account in the examination of whether established indirect unequal treatment on grounds of religion is unjustifiable on the basis of an internal rule of a private undertaking which prohibits the wearing of prominent, large–sized signs of religious, political or other philosophical beliefs? (b) Is Article 2(2)(b) of Directive [2000/78] to be interpreted as meaning that national rules of constitutional status which protect freedom of religion may be taken into account as more favourable provisions within the meaning of Article 8(1) of Directive [2000/78] in the examination of whether established indirect unequal treatment on grounds of religion is justifiable on the basis of an internal rule of a private undertaking which prohibits the wearing of prominent, large–sized signs of religious, political or other philosophical beliefs? (3) If Questions 2(a) and 2(b) are answered in the negative: In the examination of an instruction based on an internal rule of a private undertaking which prohibits the wearing of prominent, large–sized signs of religious, political or other philosophical beliefs, must national rules of constitutional status which protect freedom of religion be set aside because of primary EU law, even where primary EU law, such as, for example, Article 16 of the [Charter], recognises national laws and practices?’ |
Decision | 1. Article 1 and Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that an internal rule of an undertaking, prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace, does not constitute, with regard to workers who observe certain clothing rules based on religious precepts, direct discrimination on the grounds of religion or belief, for the purpose of that directive, provided that that rule is applied in a general and undifferentiated way. 2. Article 2(2)(b) of Directive 2000/78 must be interpreted as meaning that a difference of treatment indirectly based on religion or belief, arising from an internal rule of an undertaking prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace, may be justified by the employer’s desire to pursue a policy of political, philosophical and religious neutrality with regard to its customers or users, provided, first, that that policy meets a genuine need on the part of that employer, which it is for that employer to demonstrate, taking into consideration, inter alia, the legitimate wishes of those customers or users and the adverse consequences that that employer would suffer in the absence of that policy, given the nature of its activities and the context in which they are carried out; secondly, that that difference of treatment is appropriate for the purpose of ensuring that the employer’s policy of neutrality is properly applied, which entails that that policy is pursued in a consistent and systematic manner; and, thirdly, that the prohibition in question is limited to what is strictly necessary having regard to the actual scale and severity of the adverse consequences that the employer is seeking to avoid by adopting that prohibition. 3. Article 2(2)(b)(i) of Directive 2000/78 must be interpreted as meaning that indirect discrimination on the grounds of religion or belief resulting from an internal rule of an undertaking prohibiting, at the workplace, the wearing of visible signs of political, philosophical or religious beliefs with the aim of ensuring a policy of neutrality within that undertaking can be justified only if that prohibition covers all visible forms of expression of political, philosophical or religious beliefs. A prohibition which is limited to the wearing of conspicuous, large–sized signs of political, philosophical or religious beliefs is liable to constitute direct discrimination on the grounds of religion or belief, which cannot in any event be justified on the basis of that provision. 4. Article 2(2)(b) of Directive 2000/78 must be interpreted as meaning that national provisions protecting the freedom of religion may be taken into account as more favourable provisions, within the meaning of Article 8(1) of that directive, in examining the appropriateness of a difference of treatment indirectly based on religion or belief. |
Case number | C–25/17 |
Case name | Jehovan todistajat |
Document | Judgment ECLI:EU:C:2018:551 |
Date | 10.7.2018 |
Source of the question referred for a preliminary ruling | Korkein hallinto–oikeus (Supreme Administrative Court, Finland) |
Name of the parties | Tietosuojavaltuutettu,intervening parties: Jehovan todistajat – uskonnollinen yhdyskunta |
Subject matter | Personal data protection and free movement of data; door–to–door collection and processing of personal data |
Key words | Jehovan – Protection of individuals with regard to the processing of personal data – Data collected and processed by the members of a religious community in the course of their door–to–door preaching – Definition of a ‘personal data filing system’ – Definition of a ‘controller’ of the processing of personal data – Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | ‘(1) Must the exceptions to the scope of [Directive 95/46] laid down in Article 3(2), first and second indents, thereof be interpreted as meaning that the collection and other processing of personal data carried out by the members of a religious community in connection with door–to–door preaching fall outside the scope of that directive? When assessing the applicability of [Directive 95/46], what significance is to be given, on one hand, to the fact that it is the religious community and its congregations which organise the preaching activity in the course of which the data is collected and, on the other, to the fact this also concerns the personal religious practice of the members of a religious community? (2) Must the definition of a ‘filing system’ in Article 2(c) of … Directive [95/46], examined in the light of recitals 26 and 27 of that directive, be interpreted as meaning that, taken as a whole, the personal data (consisting of names and addresses and other information about and characteristics of a person) collected otherwise than by automatic means in connection with the door–to–door preaching described above (a) does not constitute such a filing system, because the data does not include specific lists or data sheets or any other comparable search method as provided for in the definition laid down in the [Law No 523/1999], or (b) does constitute such a filing system, because, taking account of its intended purpose, the information required for later use may in practice be searched easily and without unreasonable expense in accordance with [Law No 523/1999]? (3) Must the phrase ‘alone or jointly with others determines the purposes and means of the processing of personal data’ appearing in Article 2(d) of … Directive [95/46] be interpreted as meaning that a religious community that organises an activity in the course of which personal data is collected (in particular, by allocating areas in which the activity is carried out among the various preachers, supervising the activity of those preachers and keeping a list of individuals who do not wish the preachers to visit them) may be regarded as a controller, in respect of the processing of personal data carried out by its members, even if the religious community claims that only the individual members who engage in preaching have access to the data that they gather? (4) Must Article 2(d) of Directive [95/46] be interpreted to the effect that in order for a religious community to be considered a controller it must have taken other specific measures, such as giving written instructions or orders directing the collection of data, or is it sufficient that that religious community can be regarded as having de facto control of its members’ activities? It is necessary to answer Questions 3 and 4 only if, on the basis of the answers to Questions 1 and 2, [Directive 95/46] is applicable. It is necessary to answer Question 4 only if, on the basis of Question 3, the application of Article 2(d) of [Directive 95/46] to the Community cannot be regarded as being excluded. |
Decision | 1. Article 3(2) 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, read in the light of Article 10(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that the collection of personal data by members of a religious community in the course of door–to–door preaching and the subsequent processing of those data does not constitute either the processing of personal data for the purpose of activities referred to in Article 3(2), first indent, of that directive or the processing of personal data carried out by a natural person in the course of a purely personal or household activity, within the meaning of Article 3(2), second indent, thereof. 2. Article 2(c) of Directive 95/46 must be interpreted as meaning that the concept of a ‘filing system’, referred to by that provision, covers a set of personal data collected in the course of door–to–door preaching, consisting of the names and addresses and other information concerning the persons contacted, if those data are structured according to specific criteria which, in practice, enable them to be easily retrieved for subsequent use. In order for such a set of data to fall within that concept, it is not necessary that they include data sheets, specific lists or other search methods. 3. Article 2(d) of Directive 95/46, read in the light of Article 10(1) of the Charter of Fundamental Rights, must be interpreted as meaning that it supports the finding that a religious community is a controller, jointly with its members who engage in preaching, for the processing of personal data carried out by the latter in the context of door–to–door preaching organised, coordinated and encouraged by that community, without it being necessary that the community has access to those data, or to establish that that community has given its members written guidelines or instructions in relation to the data processing. |
Case number | C–426/16 |
Case name | Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others |
Document | Judgment ECLI:EU:C:2018:335 |
Date | 29/5/2018 |
Source of the question referred for a preliminary ruling | Nederlandstalige rechtbank van eerste aanleg Brussel (Court of First Instance (Dutch–speaking), Brussels, Belgium) |
Name of the parties | Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen VZW and Others v Vlaamse Gewest, intervening parties Global Action in the Interest of Animals (GAIA) VZW, |
Subject matter | Agriculture and fisheries – veterinary legislation; ritual slaughter |
Key words | Liga von Moskeen – Protection of animals at the time of killing – Particular methods of slaughter prescribed by religious rites – Muslim Feast of Sacrifice – Charter of Fundamental Rights of the European Union – Freedom of religion – Respect for national customs with regard to religious rite |
Question referred for a preliminary ruling | ‘Is Article 4(4) of [Regulation No 1099/2009], read in conjunction with Article 2(k) thereof, invalid due to the infringement of Article 9 of [the ECHR], Article 10 of the [Charter] and/or Article 13 [TFEU], in that it provides that animals may be slaughtered in accordance with special methods required by religious rites without being stunned only if such slaughter takes place in a slaughterhouse falling within the scope of [Regulation No 853/2004], whereas there is insufficient capacity in the Vlaams Gewest (Flemish Region) to meet the annual demand for the ritual slaughter of unstunned animals on the occasion of the … Feast of Sacrifice, and the costs of converting temporary slaughter establishments, approved and monitored by the authorities, into slaughterhouses falling within the scope of [Regulation No 853/2004], do not appear relevant to achieving the objectives pursued of animal welfare and public health and do not appear proportionate thereto?’ |
Decision | Examination of the question has not disclosed any issues capable of affecting the validity of Article 4(4) of Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing, read together with Article 2(k) thereof, having regard to Article 10 of the Charter of Fundamental Rights of the European Union and Article 13 TFEU. |
Case number | C–71/11 |
Case name | Y and Z |
Document | Judgment ECLI:EU:C:2012:518 |
Date | 5/9/2012 |
Source of the question referred for a preliminary ruling | Bundesverwaltungsgericht (Germany) |
Name of the parties | Bundesrepublik Deutschland v Y and Z |
Subject matter | Area of freedom, security and justice – Asylum policy |
Key words | Y and Z – Minimum standards for determining who qualifies for refugee status or for subsidiary protection status – Classification as a ‘refugee’– Definition of ‘acts of persecution’ – Religion as ground for persecution – Connection between the reasons for persecution and the acts of persecution – Pakistani nationals who are members of the Ahmadiyya religious community – Acts by the Pakistani authorities designed to prohibit the manifestation of a person’s religion in public – Acts sufficiently serious for the person concerned to have a well‑founded fear of being persecuted on account of his religion – Individual assessment of the facts and circumstances |
Question referred for a preliminary ruling | ‘1. Is Article 9(1)(a) of [the] Directive … to be interpreted as meaning that not every interference with religious freedom which infringes Article 9 of the ECHR constitutes an act of persecution within the meaning of [the former provision], and that a severe violation of religious freedom as a basic human right arises only if the core area of that religious freedom is adversely affected? 2. If Question 1 is to be answered in the affirmative: (a) Is the core area of religious freedom limited to the profession and practice of faith in the areas of the home and neighbourhood, or can there be an act of persecution, within the meaning of Article 9(1)(a) of [the] Directive …, also in cases where, in the country of origin, the observance of faith in public gives rise to a risk to life, physical integrity or freedom and the applicant accordingly abstains from such practice? (b) If the core area of religious freedom can also comprise the public observance of certain religious practices: – Does it suffice in that case, in order for there to be a severe violation of religious freedom, that the applicant feels that such observance of his faith is indispensable in order for him to preserve his religious identity, – or is it further necessary that the religious community to which the applicant belongs should regard that religious observance as constituting a central part of its doctrine, – or can further restrictions arise as a result of other circumstances, such as the general conditions in the country of origin? 3. If Question 1 is to be answered in the affirmative: Is there a well–founded fear of persecution, within the meaning of Article 2(c) of [the] Directive …, if it is established that the applicant will carry out certain religious practices – other than those falling within the core area – after returning to the country of origin, even though they will give rise to a risk to his life, physical integrity or freedom, or can the applicant reasonably be expected to abstain from such practices?’ |
Decision | 1. Articles 9(1)(a) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that: – not all interference with the right to freedom of religion which infringes Article 10(1) of the Charter of Fundamental Rights of the European Union is capable of constituting an ‘act of persecution’ within the meaning of that provision of the Directive; – there may be an act of persecution as a result of interference with the external manifestation of that freedom, and – for the purpose of determining whether interference with the right to freedom of religion which infringes Article 10(1) of the Charter of Fundamental Rights of the European Union may constitute an ‘act of persecution’, the competent authorities must ascertain, in the light of the personal circumstances of the person concerned, whether that person, as a result of exercising that freedom in his country of origin, runs a genuine risk of, inter alia, being prosecuted or subject to inhuman or degrading treatment or punishment by one of the actors referred to in Article 6 of Directive 2004/83. 2. Article 2(c) of Directive 2004/83 must be interpreted as meaning that the applicant’s fear of being persecuted is well founded if, in the light of the applicant’s personal circumstances, the competent authorities consider that it may reasonably be thought that, upon his return to his country of origin, he will engage in religious practices which will expose him to a real risk of persecution. In assessing an application for refugee status on an individual basis, those authorities cannot reasonably expect the applicant to abstain from those religious practices. |
Article 11 of the Charter: Freedom of expression and information
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–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–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–555/19 |
Case name | Fussl Modestraße Mayr |
Document | Judgment ECLI:EU:C:2021:89 |
Date | 3/2/2021 |
Source of the question referred for a preliminary ruling | Landgericht Stuttgart (Regional Court, Stuttgart, Germany) |
Name of the parties | Fussl Modestraße Mayr GmbH v SevenOne Media GmbH and Others |
Subject matter | Free movement of persons and services; freedom to provide services; television advertising only at regional level |
Key words | Fussl – Provision of audiovisual media services – Freedom to provide services – Equal treatment –Charter of Fundamental Rights of the European Union – Audiovisual commercial communication – National legislation prohibiting television broadcasters from inserting in their programmes broadcast throughout the national territory television advertisements whose broadcasting is limited to a regional level |
Question referred for a preliminary ruling | ‘(1) Are Article Article 4(1) of Directive 2010/13 …, the principle of equal treatment under EU law and the rules under Article 56 TFEU on freedom to provide services to be interpreted as meaning that they preclude a provision in national law that prohibits the regional broadcasting of advertising on broadcasting programmes authorised for the entire Member State? (2) Is Question 1 to be assessed differently if the national law allows statutory rules pursuant to which the regional broadcasting of advertising can be permitted by law and, in that case, is permitted with an – additionally required – official permit? (3) Is Question 1 to be assessed differently if no use is actually made of the possibility of permitting regional advertising as described in Question 2 and regional advertising is therefore prohibited in its entirety? (4) Having regard to Article 10 of the [ECHR] and the case–law of the European Court of Human Rights, is Article 11 of the Charter of Fundamental Rights of the European Union, particularly the principle of pluralism of the media, to be interpreted as meaning that it precludes a national provision such as that described in Questions 1, 2 and 3?’ |
Decision | Article 4(1) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (‘the Audiovisual Media Services Directive’) and Article 11 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding national legislation which prohibits television broadcasters from inserting in their programmes broadcast throughout the national territory television advertising whose broadcasting is limited to a regional level; Article 56 TFEU must be interpreted as not precluding such national legislation, provided that it is suitable for securing the attainment of the objective of protecting media pluralism at regional and local level which it pursues and does not go beyond what is necessary to attain that objective, which it is for the referring court to ascertain; Article 20 of the Charter of Fundamental Rights must be interpreted as not precluding such national legislation, provided that it does not give rise to unequal treatment between national television broadcasters and internet advertising providers as regards the broadcasting of advertising at regional level, which it is for the referring court to ascertain. |
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 (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 (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? (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–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–516/17 |
Case name | Spiegel Online |
Document | Judgment ECLI:EU:C:2019:625 |
Date | 29/07/2019 |
Source of the question referred for a preliminary ruling | Bundesgerichtshof (Federal Court of Justice, Germany) |
Name of the parties | Spiegel Online GmbH v Volkerju Becku, |
Subject matter | Freedom to provide services; right of establishment; information society – copyright and related rights; harmonised intellectual property rights |
Key words | Spiegel – Copyright and related rights – Information Society – Harmonisation of certain aspects of copyright and related rights – Exceptions and limitations – Reporting of current events – Quotations – Use of hyperlinks – Lawfully making available to the public – Charter of Fundamental Rights of the European Union – Freedom of expression and of information |
Question referred for a preliminary ruling | ‘(1) Do the provisions of EU law on the exceptions or limitations [to copyright] laid down in Article 5(3) of Directive 2001/29 allow any discretion in terms of implementation in national law? (2) In what manner are the fundamental rights of the Charter of Fundamental Rights of the European Union to be taken into account when determining the scope of the exceptions or limitations provided for in Article 5(3) of Directive 2001/29 to the exclusive right of authors to reproduce (Article 2(a) of Directive 2001/29) and to communicate to the public their works, including the right to make their works available to the public (Article 3(1) of Directive 2001/29)? (3) Can the fundamental rights of freedom of information (second sentence of Article 11(1) of the Charter) or freedom of the press (Article 11(2) of the Charter) justify exceptions or limitations to the exclusive rights of authors to reproduce (Article 2(a) of Directive 2001/29) and communicate to the public their works, including the right to make their works available to the public (Article 3(1) of Directive 2001/29), beyond the exceptions or limitations provided for in Article 5(3) of Directive 2001/29? (4) Is the making available to the public of copyright–protected works on the web portal of a media organisation to be excluded from consideration as the reporting of current events not requiring permission as provided for in Article 5(3)(c), second case, of Directive 2001/29, because it was possible and reasonable for the media organisation to obtain the author’s consent before making his works available to the public? (5) Is there no publication for quotation purposes under Article 5(3)(d) of Directive 2001/29 if quoted textual works or parts thereof are not inextricably integrated into the new text – for example, by way of insertions or footnotes – but are made available to the public on the Internet by means of a link in [Portable Document Format (PDF)] files which can be downloaded independently of the new text? (6) In determining when a work has already been lawfully made available to the public within the meaning of Article 5(3)(d) of Directive 2001/29, should the focus be on whether that work in its specific form was published previously with the author’s consent?’ |
Decision | 1. Article 5(3)(c), second case, and (d) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as not constituting measures of full harmonisation of the scope of the exceptions or limitations which they contain. 2. Freedom of information and freedom of the press, enshrined in Article 11 of the Charter of Fundamental Rights of the European Union, are not capable of justifying, beyond the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29, a derogation from the author’s exclusive rights of reproduction and of communication to the public, referred to in Article 2(a) and Article 3(1) of that directive respectively. 3. In striking the balance which is incumbent on a national court between the exclusive rights of the author referred to in Article 2(a) and in Article 3(1) of Directive 2001/29 on the one hand, and, on the other, the rights of the users of protected subject matter referred to in Article 5(3)(c), second case, and (d) of that directive, the latter of which derogate from the former, a national court must, having regard to all the circumstances of the case before it, rely on an interpretation of those provisions which, whilst consistent with their wording and safeguarding their effectiveness, fully adheres to the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union. 4. Article 5(3)(c), second case, of Directive 2001/29 must be interpreted as precluding a national rule restricting the application of the exception or limitation provided for in that provision in cases where it is not reasonably possible to make a prior request for authorisation with a view to the use of a protected work for the purposes of reporting current events. 5. Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that the concept of ‘quotations’, referred to in that provision, covers a reference made by means of a hyperlink to a file which can be downloaded independently. 6. Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that a work has already been lawfully made available to the public where that work, in its specific form, was previously made available to the public with the rightholder’s authorisation or in accordance with a non–contractual licence or statutory authorisation. |
Case number | C–469/17 |
Case name | Funke Medien NRW |
Document | Judgment ECLI:EU:C:2019:623 |
Date | 29/07/2019 |
Source of the question referred for a preliminary ruling | Bundesgerichtshof (Federal Court of Justice, Germany) |
Name of the parties | Funke Medien NRW GmbH v Bundesrepublik Deutschland |
Subject matter | Copyright and related rights – Information society – Harmonisation of certain aspects of copyright and related rights |
Key words | Funke Medien – Copyright and related rights – Information Society – Harmonisation of certain aspects of copyright and related rights – Reproduction right – Communication to the public – Exceptions and limitations – Charter of Fundamental Rights of the European Unio |
Question referred for a preliminary ruling | ‘(1) Do the provisions of Union law on the exclusive right of authors to reproduce (Article 2(a) of Directive 2001/29) and publicly communicate their works, including the right to make works available to the public (Article 3(1) of Directive 2001/29), and the exceptions or limitations to these rights (Article 5(2) and (3) of Directive 2001/29) allow any latitude in terms of implementation in national law? (2) In which way are the fundamental rights of the [Charter] to be taken into account when ascertaining the scope of the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29 to the exclusive right of authors to reproduce (Article 2(a) of Directive 2001/29) and publicly communicate their works, including the right to make works available to the public (Article 3(1) of Directive 2001/29)? (3) Can the fundamental rights of freedom of information (second sentence of Article 11(1) of the Charter) or freedom of the media (Article 11(2) of the Charter) justify exceptions or limitations to the exclusive rights of authors to reproduce (Article 2(a) of Directive 2001/29) and publicly communicate their works, including the right to make works available to the public (Article 3(1) Directive 2001/29), beyond the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29?’ |
Decision | 1. Article 2(a) and Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as constituting measures of full harmonisation of the scope of the exceptions or limitations which they contain. Article 5(3)(c), second case, and (d) of Directive 2001/29 must be interpreted as not constituting measures of full harmonisation of the scope of the relevant exceptions or limitations. 2. Freedom of information and freedom of the press, enshrined in Article 11 of the Charter of Fundamental Rights of the European Union, are not capable of justifying, beyond the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29, a derogation from the author’s exclusive rights of reproduction and of communication to the public, referred to in Article 2(a) and Article 3(1) of that directive respectively. 3. In striking the balance which is incumbent on a national court between the exclusive rights of the author referred to in Article 2(a) and in Article 3(1) of Directive 2001/29 on the one hand, and, on the other, the rights of the users of protected subject matter referred to in Article 5(3)(c), second case, and (d) of that directive, the latter of which derogate from the former, a national court must, having regard to all the circumstances of the case before it, rely on an interpretation of those provisions which, whilst consistent with their wording and safeguarding their effectiveness, fully adheres to the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union. |
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? [(b)] From that perspective, how must the exceptions laid down in Article 8(2)(a) and (e) of Directive 95/46 be interpreted, when they apply to the operator of a search engine, in the light of its specific responsibilities, powers and capabilities? In particular, may such an operator refuse a request for de–referencing, if it establishes that the links at issue lead to content which, although comprising data falling within the categories listed in Article 8(1), is also covered by the exceptions laid down by Article 8(2) of the directive, in particular points (a) and (e)? [(c)] Similarly, when the links subject to the request for de–referencing lead to processing of personal data carried out solely for journalistic purposes or for those of artistic or literary expression, on which basis, in accordance with Article 9 of Directive 95/46, data within the categories mentioned in Article 8(1) and (5) of the directive may be collected and processed, must the provisions of Directive 95/46 be interpreted as allowing the operator of a search engine, on that ground, to refuse a request for de–referencing? (3) If Question 1 should be answered in the negative: [(a)] Which specific requirements of Directive 95/46 must be met by the operator of a search engine, in view of its responsibilities, powers and capabilities? [(b)] When the operator establishes that the web pages at the end of the links subject to the request for de–referencing comprise data whose publication on those pages is unlawful, must the provisions of Directive 95/46 be interpreted as: – requiring the operator of a search engine to remove those links from the list of results displayed following a search made on the basis of the name of the person making the request; or – meaning only that it is to take that factor into consideration in assessing the merits of the request for de–referencing, or – meaning that this factor has no bearing on the assessment it is to make? Furthermore, if that factor is not irrelevant, how is the lawfulness of the publication on web pages of the data at issue which stem from processing falling outside the territorial scope of Directive 95/46 and, accordingly, of the national laws implementing it to be assessed? (4) Irrespective of the answer to be given to Question 1: [(a)] whether or not publication of the personal data on the web page at the end of the link at issue is lawful, must the provisions of Directive 95/46 be interpreted as: – requiring the operator of a search engine, when the person making the request establishes that the data in question have become incomplete or inaccurate, or are no longer up to date, to grant the corresponding request for de–referencing; – more specifically, requiring the operator of a search engine, when the person making the request shows that, having regard to the conduct of the legal proceedings, the information relating to an earlier stage of those proceedings is no longer consistent with the current reality of his situation, to de–reference the links to web pages comprising such information? [(b)] Must Article 8(5) of Directive 95/46 be interpreted as meaning that information relating to the investigation of an individual or reporting a trial and the resulting conviction and sentencing constitutes data relating to offences and to criminal convictions? More generally, does a web page comprising data referring to the convictions of or legal proceedings involving a natural person fall within the ambit of those provisions?’ |
Decision | 1. The provisions of Article 8(1) and (5) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that the prohibition or restrictions relating to the processing of special categories of personal data, mentioned in those provisions, apply also, subject to the exceptions provided for by the directive, to the operator of a search engine in the context of his responsibilities, powers and capabilities as the controller of the processing carried out in connection with the activity of the search engine, on the occasion of a verification performed by that operator, under the supervision of the competent national authorities, following a request by the data subject. 2. The provisions of Article 8(1) and (5) of Directive 95/46 must be interpreted as meaning that the operator of a search engine is in principle required by those provisions, subject to the exceptions provided for by the directive, to accede to requests for de–referencing in relation to links to web pages containing personal data falling within the special categories referred to by those provisions. Article 8(2)(e) of Directive 95/46 must be interpreted as meaning that, pursuant to that article, such an operator may refuse to accede to a request for de–referencing if he establishes that the links at issue lead to content comprising personal data falling within the special categories referred to in Article 8(1) but whose processing is covered by the exception in Article 8(2)(e) of the directive, provided that the processing satisfies all the other conditions of lawfulness laid down by the directive, and unless the data subject has the right under Article 14(a) of the directive to object to that processing on compelling legitimate grounds relating to his particular situation. The provisions of Directive 95/46 must be interpreted as meaning that, where the operator of a search engine has received a request for de–referencing relating to a link to a web page on which personal data falling within the special categories referred to in Article 8(1) or (5) of Directive 95/46 are published, the operator must, on the basis of all the relevant factors of the particular case and taking into account the seriousness of the interference with the data subject’s fundamental rights to privacy and protection of personal data laid down in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, ascertain, having regard to the reasons of substantial public interest referred to in Article 8(4) of the directive and in compliance with the conditions laid down in that provision, whether the inclusion of that link in the list of results displayed following a search on the basis of the data subject’s name is strictly necessary for protecting the freedom of information of internet users potentially interested in accessing that web page by means of such a search, protected by Article 11 of the Charter. 3. The provisions of Directive 95/46 must be interpreted as meaning that – first, information relating to legal proceedings brought against an individual and, as the case may be, information relating to an ensuing conviction are data relating to ‘offences’ and ‘criminal convictions’ within the meaning of Article 8(5) of Directive 95/46, and – second, the operator of a search engine is required to accede to a request for de–referencing relating to links to web pages displaying such information, where the information relates to an earlier stage of the legal proceedings in question and, having regard to the progress of the proceedings, no longer corresponds to the current situation, in so far as it is established in the verification of the reasons of substantial public interest referred to in Article 8(4) of Directive 95/46 that, in the light of all the circumstances of the case, the data subject’s fundamental rights guaranteed by Articles 7 and 8 of the Charter of Fundamental Rights of the European Union override the rights of potentially interested internet users protected by Article 11 of the Charter. |
Case number | C–203/15 |
Case name | Tele2 Sverige |
Document | Judgment ECLI:EU:C:2016:970 |
Date | 21/12/2016 |
Source of the question referred for a preliminary ruling | Request by Kammarrätten i Stockholm (Administrative Court of Appeal, Stockholm, Sweden) (Case C–203/15) and Court of Appeal (England & Wales) (Civil Division) (United Kingdom) (civilni oddelek), (Case C–698/15) |
Name of the parties | Tele2 Sverige AB v Post– och telestyrelsen and Secretary of State for the Home Department v Tomu Watsonu and Others |
Subject matter | Personal data protection; information and communication technologies; telecommunications; data storage |
Key words | Tele2 Sverige – Electronic communications – Processing of personal data – Confidentiality of electronic communications – Protection – Charter of Fundamental Rights of the European Union – National legislation – Providers of electronic communications services – Obligation relating to the general and indiscriminate retention of traffic and location data – National authorities – Access to data – No prior review by a court or independent administrative authority – Compatibility with EU law |
Question referred for a preliminary ruling | Joined Cases: C–203/15 (2) If the answer to question 1 is in the negative, may the retention nevertheless be permitted where: (a) access by the national authorities to the retained data is determined as [described in paragraphs 19 to 36 of the order for reference], and (b) data protection and security requirements are regulated as [described in paragraphs 38 to 43 of the order for reference], and (c) all relevant data is to be retained for six months, calculated as from the day when the communication is ended, and subsequently erased as [described in paragraph 37 of the order for reference]?’ (2) Does [the Digital Rights judgment] expand the scope of Articles 7 and/or 8 of [the Charter] beyond that of Article 8 of the European Convention of Human Rights … as established in the jurisprudence of the European Court of Human Rights …?’ |
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 which, for the purpose of fighting crime, provides for general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication. 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 governing the protection and security of traffic and location data and, in particular, access of the competent national authorities to the retained data, where the objective pursued by that access, in the context of fighting crime, is not restricted solely to fighting serious crime, where access is not subject to prior review by a court or an independent administrative authority, and where there is no requirement that the data concerned should be retained within the European Union. 3. The second question referred by the Court of Appeal (England & Wales) (Civil Division) is inadmissible. |
Case number | C–293/12 |
Case name | Digital Rights Ireland and Seitlinger and Others |
Document | Judgment ECLI:EU:C:2014:238 |
Date | 08/04/2014 |
Source of the question referred for a preliminary ruling | In Joined Cases High Court (Ireland) (C–293/12) and Verfassungsgerichtshof (Austria) (C–594/12) |
Name of the parties | Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and Others, and Kärntner Landesregierung and Others |
Subject matter | Personal data protection; Information and telecommunications technologies; Data storage |
Key words | Electronic communications – Publicly available electronic communications services or public communications networks services – Retention of data generated or processed in connection with the provision of such services – Validity –Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | Joined Cases: C–203/15 ‘1. Is the restriction on the rights of the [p]laintiff in respect of its use of mobile telephony arising from the requirements of Articles 3, 4 … and 6 of Directive 2006/24/EC incompatible with [Article 5(4)] TEU in that it is disproportionate and unnecessary or inappropriate to achieve the legitimate aims of: (a) Ensuring that certain data are available for the purposes of investigation, detection and prosecution of serious crime? and/or (b) Ensuring the proper functioning of the internal market of the European Union? 2. Specifically, (i) Is Directive 2006/24 compatible with the right of citizens to move and reside freely within the territory of the Member States laid down in Article 21 TFEU? (ii) Is Directive 2006/24 compatible with the right to privacy laid down in Article 7 of the [Charter of Fundamental Rights of the European Union (‘the Charter’)] and Article 8 ECHR? (iii) Is Directive 2006/24 compatible with the right to the protection of personal data laid down in Article 8 of the Charter? (iv) Is Directive 2006/24 compatible with the right to freedom of expression laid down in Article 11 of the Charter and Article 10 ECHR? (v) Is Directive 2006/24 compatible with the right to [g]ood [a]dministration laid down in Article 41 of the Charter? 3. To what extent do the Treaties – and specifically the principle of loyal cooperation laid down in [Article 4(3) TEU] – require a national court to inquire into, and assess, the compatibility of the national implementing measures for [Directive 2006/24] with the protections afforded by the [Charter], including Article 7 thereof (as informed by Article 8 of the ECHR)?’ ‘1. Concerning the validity of acts of institutions of the European Union: Are Articles 3 to 9 of [Directive 2006/24] compatible with Articles 7, 8 and 11 of the [Charter]? 2. Concerning the interpretation of the Treaties: (a) In the light of the explanations relating to Article 8 of the Charter, which, according to Article 52(7) of the Charter, were drawn up as a way of providing guidance in the interpretation of the Charter and to which regard must be given by the Verfassungsgerichtshof, must [Directive 95/46] and Regulation (EC) No 45/2001 of the European Parliament and of the Council [of 18 December 2000] on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data [OJ 2001 L 8, p. 1] be taken into account, for the purposes of assessing the permissibility of interference, as being of equal standing to the conditions under Article 8(2) and Article 52(1) of the Charter? (b) What is the relationship between ‘Union law’, as referred to in the final sentence of Article 52(3) of the Charter, and the directives in the field of the law on data protection? (c) In view of the fact that [Directive 95/26] and Regulation … No 45/2001 contain conditions and restrictions with a view to safeguarding the fundamental right to data protection under the Charter, must amendments resulting from subsequent secondary law be taken into account for the purpose of interpreting Article 8 of the Charter? (d) Having regard to Article 52(4) of the Charter, does it follow from the principle of the preservation of higher levels of protection in Article 53 of the Charter that the limits applicable under the Charter in relation to permissible restrictions must be more narrowly circumscribed by secondary law? (e) Having regard to Article 52(3) of the Charter, the fifth paragraph in the preamble thereto and the explanations in relation to Article 7 of the Charter, according to which the rights guaranteed in that article correspond to those guaranteed by Article 8 of the [ECHR], can assistance be derived from the case–law of the European Court of Human Rights for the purpose of interpreting Article 8 of the Charter such as to influence the interpretation of that latter article?’ |
Decision | Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC is invalid |
Article 12 of the Charter: Freedom of assembly and of association
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. |
Article 13 of the Charter: Freedom of the arts and sciences
Case number | C–66/18 |
Case name | European Commission v Hungary (Enseignement supérieur) |
Document | Judgment ECLI:EU:C:2020:792 |
Date | 06/10/2020 |
Source of the question referred for a preliminary ruling | European Commission Action |
Name of the parties | European Commission v Hungary |
Subject matter | Freedom to provide services; right of establishment Failure of a State to fulfil its obligations; National higher education |
Key words | Hungary – Failure of a Member State to fulfil obligations – Admissibility – Jurisdiction of the Court – General Agreement on Trade in Services – Market access – Schedule of specific commitments – Requirement of authorisation – National treatment – Service provider having its seat in a third country – National legislation of a Member State imposing conditions for the supply of higher education services within its territory – Requirement relating to the conclusion of an international treaty with the State in which the provider has its seat – Requirement relating to the provision of education in the State in which the provider has its seat – Modification of conditions of competition to the benefit of national providers – Justification – Public order – Prevention of deceptive practices – Freedom of establishment –Services in the internal market – Freedom to provide services – Existence of a restriction – Justification – Overriding reason in the public interest – Public order – Prevention of deceptive practices – High quality of the education – Charter of Fundamental Rights of the European Union – Academic freedom – Freedom to found educational establishments – Freedom to conduct a business |
Question referred for a preliminary ruling | By its application, the European Commission requests that the Court: – declare that, by requiring foreign higher education institutions situated outside the European Economic Area (EEA) to conclude an international agreement as a prerequisite for providing education services, pursuant to Article 76(1)(a) of Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény (Law No CCIV of 2011 on national higher education) (Magyar Közlöny 2011/165), as amended by Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény módosításáról szóló 2017. évi XXV. törvény (Law No XXV of 2017 amending Law No CCIV of 2011 on national higher education), adopted by the Hungarian Parliament on 4 April 2017 (Magyar Közlöny 2017/53) (‘the Law on higher education’), Hungary has failed to fulfil its obligations under Article XVII of the General Agreement on Trade in Services (‘the GATS’), in Annex 1B to the Agreement establishing the World Trade Organisation (WTO), signed in Marrakesh and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986–1994) (OJ 1994 L 336, p. 1) (‘the Agreement establishing the WTO’); – declare that, by requiring foreign higher education institutions to offer higher education in their country of origin, pursuant to Article 76(1)(b) of the Law on higher education, Hungary has failed to fulfil its obligations under Article 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36), and, in any event, under Articles 49 and 56 TFEU and Article XVII of the GATS; – declare that, by imposing the abovementioned measures, pursuant to Article 76(1)(a) and (b) of the Law on higher education (‘the measures at issue’), Hungary has failed to fulfil its obligations under Article 13, Article 14(3) and Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’); and – order Hungary to pay the costs. |
Decision | 1. Declares that, by adopting the measure provided for in Article 76(1)(a) of Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény (Law No CCIV of 2011 on national higher education), as amended by Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény módosításáról szóló 2017. évi XXV. törvény (Law No XXV of 2017 amending Law No CCIV of 2011 on national higher education), which makes the exercise, in Hungary, of teaching activities leading to a qualification by foreign higher education institutions situated outside the European Economic Area subject to the condition that the Government of Hungary and the government of the State in which the institution concerned has its seat have agreed to be bound by an international treaty, Hungary has failed to fulfil its obligations under Article XVII of the General Agreement on Trade in Services, in Annex 1B to the Agreement establishing the World Trade Organisation, signed in Marrakesh and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986–1994); 2. Declares that, by adopting the measure provided for in Article 76(1)(b) of Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény (Law No CCIV of 2011 on national higher education), as amended by Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény módosításáról szóló 2017. évi XXV. törvény (Law No XXV of 2017 amending Law No CCIV of 2011 on national higher education), which makes the exercise, in Hungary, of the activities of foreign higher education institutions subject to the condition that they offer higher education in the State in which they have their seat, Hungary has failed, in so far as that provision applies to higher education institutions which have their seat in a third country member of the World Trade Organisation, to fulfil its obligations under Article XVII of the General Agreement on Trade in Services, in Annex 1B to the Agreement establishing the World Trade Organisation, signed in Marrakesh and approved by Decision 94/800, and, in so far as the provision applies to higher education institutions having their seat in another Member State, to fulfil its obligations under Article 49 TFEU and Article 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market; 3. Declares that, by adopting the measures provided for in Article 76(1)(a) and (b) of Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény (Law No CCIV of 2011 on national higher education), as amended by Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény módosításáról szóló 2017. évi XXV. törvény (Law No XXV of 2017 amending Law No CCIV of 2011 on national higher education), Hungary has failed to fulfil its obligations under Article 13, Article 14(3) and Article 16 of the Charterof Fundamental Rights of the European Union; 4. Orders Hungary to pay the costs. |
Case number | C–476/17 |
Case name | Pelham and Others |
Document | Judgment ECLI:EU:C:2019:624 |
Date | 29/07/2019 |
Source of the question referred for a preliminary ruling | Bundesgerichtshof (Federal Court of Justice, Germany) |
Name of the parties | Pelham GmbH and Others v Ralfu Hütterju and Florianu Schneider–Eslebnu |
Subject matter | Right of establishment; freedom to provide services: Intellectual, industrial and commercial property – copyright and related rights; rhythmic sequence taken from a phonogram |
Key words | Pelham – Copyright and related rights – Information Society – Harmonisation of certain aspects of copyright and related rights – Sampling – Phonogram producer – Reproduction right – Reproduction ‘in part’ – Exceptions and limitations – Quotations – Distribution right – Fundamental rights – Charter of Fundamental Rights of the European Union – Freedom of the arts |
Question referred for a preliminary ruling | ‘(1) Is there an infringement of the phonogram producer’s exclusive right under Article 2(c) of Directive 2001/29 to reproduce its phonogram if very short audio snatches are taken from its phonogram and transferred to another phonogram? (2) Is a phonogram which contains very short audio snatches transferred from another phonogram a copy of the other phonogram within the meaning of Article 9(1)(b) of Directive 2006/115? (3) Can the Member States enact a provision which – in the manner of Paragraph 24(1) of [the UrhG] – inherently limits the scope of protection of the phonogram producer’s exclusive right to reproduce (Article 2(c) of Directive 2001/29) and to distribute (Article 9(1)(b) of Directive 2006/115) its phonogram in such a way that an independent work created in free use of its phonogram may be exploited without the phonogram producer’s consent? (4) Can it be said that a work or other subject matter is being used for quotation purposes within the meaning of Article 5(3)(d) of Directive 2001/29 if it is not evident that another person’s work or another person’s subject matter is being used? (5) Do the provisions of EU law on the reproduction right and the distribution right of the phonogram producer (Article 2(c) of Directive 2001/29 and Article 9(1)(b) of Directive 2006/115) and the exceptions or limitations to those rights (Article 5(2) and (3) of Directive 2001/29 and the first paragraph of Article 10(2) of Directive 2006/115) allow any latitude in terms of implementation in national law? (6) In what way are the fundamental rights set out in [the Charter] to be taken into account when ascertaining the scope of protection of the exclusive right of the phonogram producer to reproduce (Article 2(c) of Directive 2001/29) and to distribute (Article 9(1)(b) of Directive 2006/115) its phonogram and the scope of the exceptions or limitations to those rights (Article 5(2) and (3) of Directive 2001/29 and the first paragraph of Article 10(2) of Directive 2006/115)?’ |
Decision | 1. Article 2(c) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must, in the light of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that the phonogram producer’s exclusive right under that provision to reproduce and distribute his or her phonogram allows him to prevent another person from taking a sound sample, even if very short, of his or her phonogram for the purposes of including that sample in another phonogram, unless that sample is included in the phonogram in a modified form unrecognisable to the ear. 2. Article 9(1)(b) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be interpreted as meaning that a phonogram which contains sound samples transferred from another phonogram does not constitute a ‘copy’, within the meaning of that provision, of that phonogram, since it does not reproduce all or a substantial part of that phonogram. 3. A Member State cannot, in its national law, lay down an exception or limitation, other than those provided for in Article 5 of Directive 2001/29, to the phonogram producer’s right provided for in Article 2(c) of that directive. 4. Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that the concept of ‘quotations’, referred to in that provision, does not extend to a situation in which it is not possible to identify the work concerned by the quotation in question. 5. Article 2(c) of Directive 2001/29 must be interpreted as constituting a measure of full harmonisation of the corresponding substantive law. |
Article 14 of the Charter: Right to education
Case number | C–66/18 |
Case name | European Commission v Hungary (Enseignement supérieur) |
Document | Judgment ECLI:EU:C:2020:792 |
Date | 06/10/2020 |
Source of the question referred for a preliminary ruling | European Commission Action |
Name of the parties | European Commission v Hungary |
Subject matter | Freedom to provide services; right of establishment Failure of a State to fulfil its obligations; National higher education |
Key words | Hungary – Failure of a Member State to fulfil obligations – Admissibility – Jurisdiction of the Court – General Agreement on Trade in Services – Market access – Schedule of specific commitments – Requirement of authorisation – National treatment – Service provider having its seat in a third country – National legislation of a Member State imposing conditions for the supply of higher education services within its territory – Requirement relating to the conclusion of an international treaty with the State in which the provider has its seat – Requirement relating to the provision of education in the State in which the provider has its seat – Modification of conditions of competition to the benefit of national providers – Justification – Public order – Prevention of deceptive practices – Freedom of establishment –Services in the internal market – Freedom to provide services – Existence of a restriction – Justification – Overriding reason in the public interest – Public order – Prevention of deceptive practices – High quality of the education – Charter of Fundamental Rights of the European Union – Academic freedom – Freedom to found educational establishments – Freedom to conduct a business |
Question referred for a preliminary ruling | By its application, the European Commission requests that the Court: – declare that, by requiring foreign higher education institutions situated outside the European Economic Area (EEA) to conclude an international agreement as a prerequisite for providing education services, pursuant to Article 76(1)(a) of Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény (Law No CCIV of 2011 on national higher education) (Magyar Közlöny 2011/165), as amended by Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény módosításáról szóló 2017. évi XXV. törvény (Law No XXV of 2017 amending Law No CCIV of 2011 on national higher education), adopted by the Hungarian Parliament on 4 April 2017 (Magyar Közlöny 2017/53) (‘the Law on higher education’), Hungary has failed to fulfil its obligations under Article XVII of the General Agreement on Trade in Services (‘the GATS’), in Annex 1B to the Agreement establishing the World Trade Organisation (WTO), signed in Marrakesh and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986–1994) (OJ 1994 L 336, p. 1) (‘the Agreement establishing the WTO’); – declare that, by requiring foreign higher education institutions to offer higher education in their country of origin, pursuant to Article 76(1)(b) of the Law on higher education, Hungary has failed to fulfil its obligations under Article 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36), and, in any event, under Articles 49 and 56 TFEU and Article XVII of the GATS; – declare that, by imposing the abovementioned measures, pursuant to Article 76(1)(a) and (b) of the Law on higher education (‘the measures at issue’), Hungary has failed to fulfil its obligations under Article 13, Article 14(3) and Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’); and – order Hungary to pay the costs. |
Decision | 1. Declares that, by adopting the measure provided for in Article 76(1)(a) of Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény (Law No CCIV of 2011 on national higher education), as amended by Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény módosításáról szóló 2017. évi XXV. törvény (Law No XXV of 2017 amending Law No CCIV of 2011 on national higher education), which makes the exercise, in Hungary, of teaching activities leading to a qualification by foreign higher education institutions situated outside the European Economic Area subject to the condition that the Government of Hungary and the government of the State in which the institution concerned has its seat have agreed to be bound by an international treaty, Hungary has failed to fulfil its obligations under Article XVII of the General Agreement on Trade in Services, in Annex 1B to the Agreement establishing the World Trade Organisation, signed in Marrakesh and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986–1994); 2. Declares that, by adopting the measure provided for in Article 76(1)(b) of Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény (Law No CCIV of 2011 on national higher education), as amended by Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény módosításáról szóló 2017. évi XXV. törvény (Law No XXV of 2017 amending Law No CCIV of 2011 on national higher education), which makes the exercise, in Hungary, of the activities of foreign higher education institutions subject to the condition that they offer higher education in the State in which they have their seat, Hungary has failed, in so far as that provision applies to higher education institutions which have their seat in a third country member of the World Trade Organisation, to fulfil its obligations under Article XVII of the General Agreement on Trade in Services, in Annex 1B to the Agreement establishing the World Trade Organisation, signed in Marrakesh and approved by Decision 94/800, and, in so far as the provision applies to higher education institutions having their seat in another Member State, to fulfil its obligations under Article 49 TFEU and Article 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market; 3. Declares that, by adopting the measures provided for in Article 76(1)(a) and (b) of Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény (Law No CCIV of 2011 on national higher education), as amended by Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény módosításáról szóló 2017. évi XXV. törvény (Law No XXV of 2017 amending Law No CCIV of 2011 on national higher education), Hungary has failed to fulfil its obligations under Article 13, Article 14(3) and Article 16 of the Charterof Fundamental Rights of the European Union; 4. Orders Hungary to pay the costs. |
Article 15 of the Charter: Freedom to choose an occupation and right to engage in work
Case number | C–190/16 |
Case name | Fries |
Document | Judgment ECLI:EU:C:2017:513 |
Date | 05/07/2017 |
Source of the question referred for a preliminary ruling | Bundesgerichtshof (Federal Labour Court, Germany) |
Name of the parties | Werner Fries v Lufthansa CityLine GmbH |
Subject matter | Air transport; age discrimination; aircraft operation |
Key words | Fries –Air transport – Holders of a pilot’s licence who have attained the age of 65 prohibited from acting as pilots of aircraft engaged in commercial air transport – Validity – Charter of Fundamental Rights of the European Union – Freedom of occupation – Equal treatment – Discrimination on grounds of age – Commercial air transport – Concept |
Question referred for a preliminary ruling | ‘1. Is FCL.065(b) in Annex I to Commission Regulation (EU) No 1178/2011 compatible with the prohibition of discrimination on grounds of age under Article 21(1) of the Charter? 2. Is FCL.065(b) in Annex I to Regulation No 1178/2011 compatible with Article 15(1) of the Charter, according to which everyone has the right to engage in work and to pursue a freely chosen or accepted occupation? 3. If the first and second questions are answered in the affirmative: (a) Are so–called ferry flights operated by an air carrier carrying no passengers, cargo or mail also covered by the term ‘commercial air transport’ within the meaning of FCL.065(b) [in Annex I] or the definition of that term [set out] in FCL.010 in Annex I to Regulation No 1178/2011? (b) Are training and the conducting of examinations in which a pilot over the age of 65 remains in the cockpit of the aircraft as a non–flying crew member covered by the term ‘commercial air transport’ within the meaning of FCL.065(b) [in Annex I] or the definition of that term [set out] in FCL.010 in Annex I to Regulation No 1178/2011?’ |
Decision | 1. Consideration of the first and second questions has revealed nothing that might affect the validity of point FCL.065(b) in Annex I to Commission Regulation (EU) No 1178/2011 of 3 November 2011 laying down technical requirements and administrative procedures related to civil aviation aircrew pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council, in the light of Article 15(1) and Article 21(1) of the Charter of Fundamental Rights of the European Union. 2. Point FCL.065(b) in Annex I to Regulation No 1178/2011 must be interpreted as prohibiting the holder of a pilot’s licence who has attained the age of 65 neither from acting as a pilot in ferry flights, operated by an air carrier carrying no passengers, cargo or mail, nor from working as an instructor and/or examiner on board an aircraft, without being part of the flight crew. |
Article 16 of the Charter: Freedom to conduct a business
Case number | C–353/20 |
Case name | Skeyes |
Document | Judgment ECLI:EU:C:2022:423 |
Date | 02/06/2022 |
Source of the question referred for a preliminary ruling | Tribunal de l’entreprise du Hainaut, division de Charleroi (Companies Court, Hainaut, Charleroi Division, Belgium) |
Name of the parties | Skeyes v Ryanair DAC |
Subject matter | Freedom to provide services; air transport |
Key words | Skeyes Air transport – Air traffic services provider – Decision to close airspace – Exercise of the powers of a public authority – Airspace user – Airlines – Right of appeal against a decision to close airspace – Freedom to provide services in the field of transport – Charter of Fundamental Rights of the European Union – Freedom to conduct a business – Right to an effective remedy |
Question referred for a preliminary ruling | ‘(1) Must Regulation No 550/2004, in particular Article 8 thereof, be interpreted as meaning that it authorises the Member States to remove from review by the courts of that Member State any alleged failures to fulfil the obligation to provide services by the air traffic services provider, or must the provisions of [Regulation No 550/2004] be interpreted as meaning that they require the Member States to provide an effective remedy against any such alleged breaches, account being taken of the nature of the services to be provided? (2) Must Regulation No 550/2004, inasmuch as it states that ‘the provision of air traffic services, as envisaged by this Regulation, is connected with the exercise of the powers of a public authority, which are not of an economic nature justifying the application of the Treaty rules on competition’, be interpreted as precluding not only the rules on competition per se, but also any other rules applicable to public undertakings active on a market for goods and services which have an indirect effect on competition, such as those prohibiting hindrances to the freedom to conduct business and to provide services?’ |
Decision | 1. Article 8 of Regulation (EC) No 550/2004of the European Parliament and of the Council of 10 March 2004 on the provision of air navigation services in the single European sky, as amended by Regulation (EC) No 1070/2009 of the European Parliament and of the Council of 21 October 2009, read in conjunction with Article 2(4) of Regulation (EC) No 549/2004 of the European Parliament and of the Council of 10 March 2004 laying down the framework for the creation of the single European sky (‘the framework Regulation’), as amended by Regulation No 1070/2009, and in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as conferring on airspace users, such as airlines, the right to an effective remedy before the national courts against the air traffic services provider in order to submit to judicial review any alleged failures by the latter to fulfil its obligation to provide services. 2. Regulation No 550/2004, as amended by Regulation No 1070/2009, read in the light of recital 5 thereof and of Article 58(1) TFEU and Article 16 of the Charterof Fundamental Rights, must be interpreted as precluding application of the rules on competition laid down in the FEU Treaty to the provision of air navigation services connected with the exercise of the powers of a public authority, such as those provided for by that regulation, but as not precluding application of the rules of the FEU Treaty and of that Charter relating to the rights and freedoms of airspace users, such as those connected with the freedom to provide services in the field of transport and the freedom to conduct a business. |
Case number | C–124/20 |
Case name | Bank Melli Iran |
Document | Judgment ECLI:EU:C:2021:1035 |
Date | 21/12/2021 |
Source of the question referred for a preliminary ruling | Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court, Hamburg, Germany) |
Name of the parties | Bank Melli Iran v Telekom Deutschland GmbH |
Subject matter | Free movement of capital; trade policy; regulation of trade with third countries; US sanctions on Iran's nuclear programme |
Key words | Bank Melli Iran – Commercial policy – Protection against the effects of the extraterritorial application of legislation adopted by a third country – Restrictive measures taken by the United States of America against Iran – Secondary sanctions adopted by that third country preventing persons from engaging, outside its territory, in commercial relationships with certain Iranian undertakings – Prohibition on complying with such a law – Exercise of the right of ordinary termination |
Question referred for a preliminary ruling | ‘(1) Does the first paragraph of Article 5 of Regulation No 2271/96 only apply where the United States issues an administrative or judicial order directly or indirectly against an EU economic operator, within the meaning of Article 11 of that regulation, or does it suffice for that article to apply that the action of the EU economic operator seeks to comply with secondary sanctions, even in the absence of such an order? (2) If the answer to the first question is that the second alternative applies, does the first paragraph of Article 5 of Regulation No 2271/96 preclude the interpretation of national law as meaning that the party giving notice of termination may terminate any continuing obligation with a contracting party included in [the SDN list] held by the US Office of Foreign Assets Control, and thus announce a termination owing to wishing to comply with sanctions [imposed by the United States …], – without having to show and prove in civil proceedings that the reason for termination was not in any event a wish to comply with those sanctions? (3) If the second question is answered in the affirmative, must ordinary termination in breach of the first paragraph of Article 5 of Regulation No 2271/96 necessarily be regarded as ineffective or can the purpose of the regulation be satisfied through other penalties, such as a fine? (4) If the answer to the third question is that the first alternative applies, having regard to Articles 16 and 52 of [the Charter], on the one hand, and the possibility of granting an exemption under the second paragraph of Article 5 of Regulation No 2271/96, on the other, does that apply even where maintaining the business relationship with the listed contracting party would expose the EU operator to considerable economic losses on the US market (in this case: 50% of group turnover)?’ |
Decision | 1. The first paragraph of Article 5 of Council Regulation (EC) No 2271/96 of 22 November 1996 protecting against the effects of the extra–territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom, as amended by Regulation (EU) No 37/2014 of the European Parliament and of the Council of 15 January 2014, and by Commission Delegated Regulation (EU) 2018/1100 of 6 June 2018, which amended the Annex to Regulation No 2271/96, must be interpreted as prohibiting persons referred to in Article 11 of Regulation No 2271/96, as amended, from complying with the requirements or prohibitions laid down in the laws specified in the annex to that regulation, even in the absence of an order directing compliance issued by the administrative or judicial authorities of the third countries which adopted those laws. 2. The first paragraph of Article 5 of Regulation No 2271/96, as amended by Regulation No 37/2014 and Delegated Regulation 2018/1100, must be interpreted as not precluding a person referred to in Article 11 of that regulation, as amended, who does not have an authorisation within the meaning of the second paragraph of Article 5 of that regulation, as amended, from terminating contracts concluded with a person on the Specially Designated Nationals and Blocked Persons List, without providing reasons for that termination. Nevertheless, the first paragraph of Article 5 of the same regulation, as amended, requires that, in civil proceedings relating to the alleged infringement of the prohibition laid down in that provision, where all the evidence available to the national court suggests prima facie that a person referred to in Article 11 of Regulation No 2271/96, as amended, complied with the laws specified in the annex to that regulation, as amended, without having an authorisation in that respect, it is for that same person to establish to the requisite legal standard that his or her conduct was not intended to comply with those laws. 3. Regulation No 2271/96, as amended by Regulation No 37/2014 and Delegated Regulation 2018/1100, in particular Articles 5 and 9 thereof, read in the light of Article 16 and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding the annulment of the termination of contracts effected by a person referred to in Article 11 of that regulation, as amended, in order to comply with the requirements or prohibitions based on the laws specified in the annex to that regulation, as amended, even though that person does not have an authorisation, within the meaning of the second paragraph of Article 5 of the same regulation, as amended, provided that that annulment does not entail disproportionate effects for that person having regard to the objectives of Regulation No 2271/96, as amended, consisting in the protection of the established legal order and the interests of the European Union in general. In that assessment of proportionality, it is necessary to weigh in the balance the pursuit of those objectives served by the annulment of the termination of a contract effected in breach of the prohibition laid down in the first paragraph of Article 5 of that regulation, as amended, and the probability that the person concerned may be exposed to economic loss, as well as the extent of that loss, if that person cannot terminate his or her commercial relationship with a person included in the list of persons covered by the secondary sanctions at issue resulting from the laws specified in the annex to that regulation, as amended. |
Case number | C–223/19 |
Case name | YS (Occupational pensions of managerial staff) |
Document | Judgment ECLI:EU:C:2020:753 |
Date | 24/09/2020 |
Source of the question referred for a preliminary ruling | Landesgericht Wiener Neustadt (V) |
Name of the parties | YS v NK AG |
Subject matter | Employment and social policy; equal treatment in employment and occupation; deduction of the amount from the occupational pension paid by and the contractually agreed valorisation of the occupational pension for 2018 |
Key words | YS – Equal treatment in employment and occupation – Prohibition of indirect discrimination on grounds of age or sex – Justifications – National legislation providing for an amount to be withheld from pensions paid directly to their recipients by undertakings in which the State has a majority participation and for the cancellation of the indexation of the amount of those pensions – Charter of Fundamental Rights of the European Union – Applicability – Discrimination on grounds of property – Infringement of the freedom of contract – Infringement of the right to property –– Right to an effective remedy |
Question referred for a preliminary ruling | ‘1. Does the scope of [Directive 79/7/EEC] and/or of [Directive 2006/54] include legislation of a Member State if the effect of that legislation is that the former employer is to withhold sums of money from a considerably higher proportion of men entitled to an occupational pension than from women entitled to an occupational pension when those occupational pensions are paid out and those sums may be freely used by the former employer, and are such provisions discriminatory within the meaning of those directives? 2. Does the scope of [Directive 2000/78] include legislation of a Member State that discriminates on the ground of age because the financial burden is borne exclusively by older people who are entitled under private law to the benefits of an occupational pension that was agreed as a ‘direct defined benefit pension’, whereas young and relatively young people who have entered into occupational pension contracts are not financially burdened? 3. Are the provisions of the [Charter], in particular the prohibitions of discrimination laid down in Articles 20 and 21 of the Charter, to be applied to occupational pensions even if the Member State’s legislation does not cover forms of discrimination as prohibited pursuant to [Directives 79/7, 2000/78 and 2006/54]? 4. Are Article 20 et seq. [of the Charter] to be interpreted as precluding legislation of a Member State that implements Union law within the meaning of Article 51 [of the Charter] and that discriminates, on grounds of sex, age, property or on other grounds, such as, for example, on the basis of the former employer’s current ownership, against persons entitled under private law to an occupational pension as compared with other persons entitled to an occupational pension, and does the [Charter] prohibit such forms of discrimination? 5. Are national rules that place only a small group of people who are contractually entitled to an occupational pension in the form of a direct defined benefit pension under an obligation to make financial payments to their former employer also discriminatory on the basis of property within the meaning of Article 21 [of the Charter] if they cover only people with relatively large occupational pensions? 6. Is Article 17 [of the Charter] to be interpreted as precluding legislation of a Member State that provides for expropriatory intervention, directly by law and without compensation, in an agreement relating to an occupational pension in the form of a ‘direct defined benefit pension’ entered into between two private parties to the detriment of a former employee of a company that has made provision for the payment of the occupational pension and is not experiencing financial difficulties? 7. Does a statutory obligation on the part of the former employer of a person entitled to an occupational pension not to pay out parts of the agreed remuneration (of the agreed occupational pension) represent, as an infringement of freedom of contract, an interference with the employer’s right to property? 8. Is Article 47 [of the Charter] to be interpreted as precluding legislation of a Member State that expropriates directly by law and makes no provision for any challenge to the expropriation other than by way of a claim against the beneficiary of the expropriation (the former employer and the debtor under the pension contract) for damages and reimbursement of the expropriated sum of money?’ |
Decision | 1. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation must be interpreted as meaning that the scope of those directives includes provisions of the law of a Member State pursuant to which (i) part of the amount of the occupational pension which the employer is contractually bound to pay directly to its former employee must be withheld at source by that employer and (ii) the contractually agreed indexation of the amount of that benefit is ineffective. 2. Article 5(c) and Article 7(1)(a)(iii) of Directive 2006/54 must be interpreted as not precluding legislation of a Member State pursuant to which the recipients of a pension that a State–controlled undertaking is contractually bound to pay them directly and that exceeds certain thresholds set in that legislation are deprived of (i) an amount withheld from the part of that pension exceeding one of those thresholds and (ii) the benefit of a contractually agreed indexation of that pension, even though the percentage of former workers the amount of whose occupational pension has been affected by that legislation is considerably higher among male former workers coming within the scope of that legislation than among female former workers coming within its scope, provided that those consequences are justified by objective factors wholly unrelated to any discrimination based on sex, which it is for the referring court to verify. 3. Article 2(1) and (2)(b) of Directive 2000/78 must be interpreted as not precluding legislation of a Member State pursuant to which recipients of a pension that a State–controlled undertaking is contractually bound to pay them directly and that exceeds certain thresholds set in that legislation are deprived of (i) an amount withheld from the part of that pension exceeding one of those thresholds and (ii) the benefit of a contractually agreed indexation of that pension, on the sole ground that that legislation affects only recipients above a certain age. 4. Articles 16, 17, 20 and 21 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding legislation of a Member State pursuant to which recipients of a pension that a State–controlled undertaking is contractually bound to pay them directly and that exceeds certain thresholds set in that legislation are deprived of (i) an amount withheld from the part of that pension exceeding one of those thresholds and (ii) the benefit of a contractually agreed indexation of that pension. 5. Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding a Member State’s failure to provide, in its legal system, for a free–standing legal remedy for, primarily, an examination of whether national provisions implementing that right are compatible with EU law, provided that it is possible for such examination to take place indirectly. |
Case number | C–798/18 |
Case name | Federazione nazionale delle imprese elettrotecniche ed elettroniche (Anie) and Others |
Document | Judgment ECLI:EU:C:2021:280 |
Date | 15/04/2021 |
Source of the question referred for a preliminary ruling | Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) |
Name of the parties | In Joined Cases: Federazione nazionale delle imprese elettrotecniche ed elettroniche (Anie) and Others v Ministero dello Sviluppo Economico and Gestore dei servizi energetici (GSE) SpA (C–798/18), and Athesia Energy Srl and Others v Ministero dello Sviluppo Economico and Gestore dei servizi energetici (GSE) SpA (C–799/18) |
Subject matter | Environment, sustainable development and climate; renewable energy; amendment of the incentive tariffs for electricity production from photovoltaic power plants and the rules for their payment |
Key words | Federazione nazionalle – Environment – Charter of Fundamental Rights of the European Union – Principles of legal certainty and of the protection of legitimate expectations – Energy Charter Treaty – Applicability – Promotion of the use of energy from renewable sources – Production of electricity from solar photovoltaic installations – Alteration of a support scheme |
Question referred for a preliminary ruling | ‘Does EU law preclude the application of a provision of national law, such as that in Article 26(2) and (3) of [Decree–Law No 91/2014], which significantly reduces or delays the payment of incentives already granted by law and defined on the basis of corresponding agreements concluded by undertakings generating electrical energy by means of photovoltaic conversion with [GSE], a public company responsible for that process? In particular, is that provision of national law compatible with the general principles of EU law relating to legitimate expectation, legal certainty, sincere cooperation and effectiveness, with Articles 16 and 17 of the [Charter], with Directive [2009/28] and with the rules governing support schemes laid down in that directive, and with Article 216(2) TFEU, in particular in relation to the [Energy Charter]?’ |
Decision | Subject to verifications to be carried out by the referring court taking into account all the relevant factors, Article 3(3)(a) of Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, and Articles 16 and 17 of the Charter of Fundamental Rights of the European Union, read in the light of the principles of legal certainty and of the protection of legitimate expectations, must be interpreted as not precluding national legislation which provides for the reduction or delay of the payment of incentives for energy produced by solar photovoltaic installations which were previously granted by administrative decisions and confirmed by special agreements concluded between the operators of those installations and a public company, where that legislation concerns incentives for which provision has previously been made but which are not yet due. |
Case number | C–686/18 |
Case name | Adusbef and Others |
Document | Judgment ECLI:EU:C:2020:567 |
Date | 16/07/2020 |
Source of the question referred for a preliminary ruling | Consiglio di Stato (Council of State, Italy) |
Name of the parties | OC e.a. and Others v Banca d'Italia and Others |
Subject matter | Free movement of capital; state aid; economic and monetary policy; ECB; acts adopted by the Bank of Italy in the context of its task of prudential supervision of Italian popular banks. |
Key words | Adusbef – Admissibility – Free movement of capital – State aid – Charter of Fundamental Rights of the European Union – Freedom to conduct a business – Right to property – Prudential requirements applicable to credit institutions and investment firms – Prudential supervision of credit institutions – Conferral of specific tasks on the European Central Bank (ECB) – Regulatory technical standards for Own Funds requirements for institutions – National regulation imposing an asset threshold on people’s banks established as cooperative societies and allowing the right to redeem shares by the withdrawing shareholder to be limited |
Question referred for a preliminary ruling | ‘(1) Do Article 29 of [Regulation No 575/2013], Article 10 of [Delegated Regulation No 241/2014], and Articles 16 and 17 of the Charter …, with reference to Article 6(4) of [Regulation No 1024/2013], preclude a national provision such as that introduced by Article 1 of Decree–Law No 3/2015 … which imposes an asset threshold above which a people’s bank must be converted into a company limited by shares, setting that limit at EUR 8 billion? Furthermore, do the abovementioned unified European parameters preclude a national provision which, if a people’s bank is converted into a company limited by shares, makes it possible for that company to defer or limit, including for an indefinite period, redemption of the shares held by the withdrawing shareholder? (2) Do Articles 3 and 63 et seq. TFEU, on competition in the internal market and free movement of capital, preclude a national provision such as that introduced by Article 1 of Decree–Law No 3/2015 … which limits the exercise of cooperative banking activities within a given asset limit, requiring the bank concerned to be converted into a company limited by shares if it should exceed that limit? (3) Do Article 107 et seq. TFEU on State aid preclude a national provision such as that introduced by Article 1 of Decree–Law No 3/2015 …, which requires a people’s bank to be converted into a company limited by shares if it exceeds a certain asset threshold (set at EUR 8 billion), establishing restrictions on the redemption of the shares held by the shareholder in the event of withdrawal, to avoid the possible liquidation of the converted bank? (4) Do the combined provisions of Article 29 of Regulation … No 575/2013 and Article 10 of Delegated Regulation … No 241/2014 preclude a national provision such as that introduced by Article 1 of Decree–Law No 3/2015 …, as interpreted by the Corte costituzionale (Constitutional Court) in Judgment No 99/2018, which permits a people’s bank to defer redemption for an unlimited period and to limit the associated amount in full or in part? (5) Where, in its interpretation, the Court of Justice holds that European legislation is compatible with the interpretation asserted by the opposing parties, can the Court of Justice assess the lawfulness, in European terms, of Article 10 of [Delegated Regulation No 241/2014], in the light of Articles 16 and 17 of the Charter …, supplemented, also in the light of Article 52(3) of that Charter … and the case–law of the European Court of Human Rights on Article 1 of the First Additional Protocol to the [European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Paris on 20 March 1952]?’ |
Decision | 1. Article 29 of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012, Article 10 of Commission Delegated Regulation (EU) No 241/2014 of 7 January 2014 supplementing Regulation (EU) No 575/2013 with regard to regulatory technical standards for Own Funds requirements for institutions and Articles 16 and 17 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding legislation of a Member State which prohibits people’s banks established in that Member State from refusing the redemption of capital instruments but which allows those banks to defer, for an unlimited period, the redemption of the shares held by the withdrawing shareholder and to limit the amount to be redeemed in full or in part, provided that the limitations on redemption imposed when exercising that option do not go beyond what is necessary, in the light of the prudential situation of the banks concerned, in order to ensure that the capital instruments they issue qualify as Common Equity Tier 1 instruments, having regard, in particular, to the matters referred to in Article 10(3) of Delegated Regulation No 241/2014, which is a matter for the referring court to ascertain. 2. Article 63 et seq. TFEU must be interpreted as not precluding legislation of a Member State that sets an asset threshold on the exercise of banking activities by people’s banks established in that Member State as limited liability cooperative societies above which those banks must be converted into companies limited by shares, reduce their assets to below that threshold or be liquidated, provided that that legislation is appropriate for securing attainment of the general interest objectives pursued and does not exceed what is necessary to attain them, which is a matter for the referring court to ascertain. |
Case number | C–66/18 |
Case name | European Commission v Hungary (Enseignement supérieur) |
Document | Judgment ECLI:EU:C:2020:792 |
Date | 06/10/2020 |
Source of the question referred for a preliminary ruling | European Commission Action |
Name of the parties | European Commission v Hungary |
Subject matter | Freedom to provide services; right of establishment Failure of a State to fulfil its obligations; National higher education |
Key words | Hungary – Failure of a Member State to fulfil obligations – Admissibility – Jurisdiction of the Court – General Agreement on Trade in Services – Market access – Schedule of specific commitments – Requirement of authorisation – National treatment – Service provider having its seat in a third country – National legislation of a Member State imposing conditions for the supply of higher education services within its territory – Requirement relating to the conclusion of an international treaty with the State in which the provider has its seat – Requirement relating to the provision of education in the State in which the provider has its seat – Modification of conditions of competition to the benefit of national providers – Justification – Public order – Prevention of deceptive practices – Freedom of establishment –Services in the internal market – Freedom to provide services – Existence of a restriction – Justification – Overriding reason in the public interest – Public order – Prevention of deceptive practices – High quality of the education – Charter of Fundamental Rights of the European Union – Academic freedom – Freedom to found educational establishments – Freedom to conduct a business |
Question referred for a preliminary ruling | By its application, the European Commission requests that the Court: – declare that, by requiring foreign higher education institutions situated outside the European Economic Area (EEA) to conclude an international agreement as a prerequisite for providing education services, pursuant to Article 76(1)(a) of Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény (Law No CCIV of 2011 on national higher education) (Magyar Közlöny 2011/165), as amended by Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény módosításáról szóló 2017. évi XXV. törvény (Law No XXV of 2017 amending Law No CCIV of 2011 on national higher education), adopted by the Hungarian Parliament on 4 April 2017 (Magyar Közlöny 2017/53) (‘the Law on higher education’), Hungary has failed to fulfil its obligations under Article XVII of the General Agreement on Trade in Services (‘the GATS’), in Annex 1B to the Agreement establishing the World Trade Organisation (WTO), signed in Marrakesh and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986–1994) (OJ 1994 L 336, p. 1) (‘the Agreement establishing the WTO’); – declare that, by requiring foreign higher education institutions to offer higher education in their country of origin, pursuant to Article 76(1)(b) of the Law on higher education, Hungary has failed to fulfil its obligations under Article 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36), and, in any event, under Articles 49 and 56 TFEU and Article XVII of the GATS; – declare that, by imposing the abovementioned measures, pursuant to Article 76(1)(a) and (b) of the Law on higher education (‘the measures at issue’), Hungary has failed to fulfil its obligations under Article 13, Article 14(3) and Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’); and – order Hungary to pay the costs. |
Decision | 1. Declares that, by adopting the measure provided for in Article 76(1)(a) of Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény (Law No CCIV of 2011 on national higher education), as amended by Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény módosításáról szóló 2017. évi XXV. törvény (Law No XXV of 2017 amending Law No CCIV of 2011 on national higher education), which makes the exercise, in Hungary, of teaching activities leading to a qualification by foreign higher education institutions situated outside the European Economic Area subject to the condition that the Government of Hungary and the government of the State in which the institution concerned has its seat have agreed to be bound by an international treaty, Hungary has failed to fulfil its obligations under Article XVII of the General Agreement on Trade in Services, in Annex 1B to the Agreement establishing the World Trade Organisation, signed in Marrakesh and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986–1994); 2. Declares that, by adopting the measure provided for in Article 76(1)(b) of Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény (Law No CCIV of 2011 on national higher education), as amended by Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény módosításáról szóló 2017. évi XXV. törvény (Law No XXV of 2017 amending Law No CCIV of 2011 on national higher education), which makes the exercise, in Hungary, of the activities of foreign higher education institutions subject to the condition that they offer higher education in the State in which they have their seat, Hungary has failed, in so far as that provision applies to higher education institutions which have their seat in a third country member of the World Trade Organisation, to fulfil its obligations under Article XVII of the General Agreement on Trade in Services, in Annex 1B to the Agreement establishing the World Trade Organisation, signed in Marrakesh and approved by Decision 94/800, and, in so far as the provision applies to higher education institutions having their seat in another Member State, to fulfil its obligations under Article 49 TFEU and Article 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market; 3. Declares that, by adopting the measures provided for in Article 76(1)(a) and (b) of Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény (Law No CCIV of 2011 on national higher education), as amended by Nemzeti felsőoktatásról szóló 2011. évi CCIV. törvény módosításáról szóló 2017. évi XXV. törvény (Law No XXV of 2017 amending Law No CCIV of 2011 on national higher education), Hungary has failed to fulfil its obligations under Article 13, Article 14(3) and Article 16 of the Charterof Fundamental Rights of the European Union; 4. Orders Hungary to pay the costs. |
Case number | C–277/16 |
Case name | Polkomtel |
Document | Judgment ECLI:EU:C:2017:989 |
Date | 20/12/2017 |
Source of the question referred for a preliminary ruling | Sąd Najwyższy (Supreme Court, Poland) |
Name of the parties | Polkomtel sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej |
Subject matter | Information and communication technologies; telecommunications; public mobile network pricing |
Key words | Polkomtel – Common regulatory framework for electronic communications networks and services – Operator designated as having significant market power – Price control – Obligations imposed by national regulatory authorities – Obligation to ensure cost orientation of prices – Prices set below the costs incurred by the operator concerned for the provision of voice call termination services on mobile networks – Charter of Fundamental Rights of the European Union – Freedom to conduct a business – Proportionality |
Question referred for a preliminary ruling | ‘(1) Must Article 13 of the Access Directive, in conjunction with Article 8(4) thereof,, in their original wording, be interpreted as meaning that, where an obligation in regard to cost orientation of prices is imposed on an operator with significant market power, the [NRA] may, in order to promote efficiency and sustainable competition, set the price for the service covered by that obligation below the level of the costs of supplying that service that are incurred by the operator, verified by the [NRA] and regarded as costs attributable to that service? (2) Must Article 13(3) of the Access Directive, in conjunction with Article 8(4) thereof, in their original wording, read in combination with Article 16 of the [Charter], be interpreted as meaning that the [NRA] may impose on an operator obliged to orientate prices to costs an obligation to set the price annually on the basis of the most up–to–date data on costs and submit the price thus set, together with a cost justification, to the [NRA] for verification before that price becomes applicable in trade? (3) Must Article 13(3) of the Access Directive, in its original wording, read in combination with Article 16 of the [Charter], be interpreted as meaning that the [NRA] may request the operator required to orientate prices to costs to adjust the price only where that operator first sets the amount of the price independently and starts to apply it, or also where the operator applies the price at the amount set previously by the [NRA] but it follows from the cost justification for the subsequent reporting period that the price set previously by the [NRA] is above the level of costs incurred by the operator?’ |
Decision | 1. Article 8(4) and Article 13 of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (‘the Access Directive’) must be interpreted as meaning that, where an obligation in regard to cost orientation of prices is imposed by a national regulatory authority on an operator, designated as having significant market power on a specific market, that national regulatory authority may, in order to promote efficiency and sustainable competition, set the prices of the services covered by such an obligation below the level of the costs incurred by that operator to provide them, if those costs are higher than the costs of an efficient operator, which is for the referring court to verify. 2. Article 8(4) and Article 13(3) of Directive 2002/19, read in combination with Article 16 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a national regulatory authority may require an operator, designated as having significant market power on a specific market and under an obligation in regard to cost orientation of prices, to set its prices annually on the basis of the most up–to–date data and to submit those prices to it for verification together with justification before they become applicable, provided that such obligations are based on the nature of the problem identified, are proportionate and are justified in the light of the objectives laid down in Article 8 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), which is for the referring court to verify. 3. Article 13(3) of Directive 2002/19 must be interpreted as meaning that, where an obligation in regard to cost orientation of prices has been imposed on an operator on the basis of Article 13(1) of that directive, that operator may be required to adjust its prices before or after it has started to apply them. |
Case number | C–680/15 |
Case name | Asklepios Kliniken |
Document | Judgment ECLI:EU:C:2017:317 |
Date | 27/04/2017 |
Source of the question referred for a preliminary ruling | Bundesarbeitsgericht (Federal Labour Court, Germany) |
Name of the parties | Asklepios Kliniken Langen–Seligenstadt GmbH v Ivanu Felji and Asklepios Dienstleistungsgesellschaft mbH v Vittorii Graf |
Subject matter | Employment and social policy; protection of workers' rights; implementation of collective agreements |
Key words | Asklepios Kliniken – Transfer of undertakings – Safeguarding of employees’ rights – Contract of employment – Legislation of a Member State authorising the incorporation of clauses referring to collective labour agreements after the date of the transfer – Effects with regard to the transferee |
Question referred for a preliminary ruling | ‘(1) (a) Does Article 3 of Directive [2001/23] preclude a provision of national law which provides that, in the event of a transfer of an undertaking or business, all conditions of employment agreed between the transferor and the employee, individually and in the exercise of their freedom of contract, in the contract of employment transfer to the transferee unaltered, as if he had himself agreed them in an individual contract with the employee, where national law provides for both consensual and unilateral adjustments by the transferee? (b) If Question 1[(a)] is answered in the affirmative, either generally or for a defined group of individually agreed conditions of employment in the employment contract between the transferor and employee: does the application of Article 3 of Directive 2001/23 have the effect that certain terms of the contract of employment between the transferor and the employee which have been agreed in the exercise of freedom of contract are to be excluded from being transferred unaltered to the transferee, and are to be adjusted simply by reason of the transfer of the undertaking or business? (c) If, according to the Court of Justice’s answers to [Question 1(a) and (b)], an individual provision which has been agreed in an individual contract, under which certain provisions in a collective agreement are, dynamically and in the exercise of freedom of contract, incorporated into the employment contract, is not transferred unaltered to the transferee: (i) does this apply also where neither the transferor nor the transferee is party to a collective agreement or is affiliated to such a party, that is, where, even prior to the transfer of the undertaking or business, the provisions in the collective agreement would not have been applicable to the employment relationship with the transferor in the absence of the term referring to them in the agreement made, in the exercise of freedom of contract, in the contract of employment? (ii) if [Question 1(c)(i)] is to be answered in the affirmative: does this apply also if the transferor and the transferee are undertakings within the same group? (2) Does Article 16 of [the Charter] preclude a national provision enacted to implement Directive [77/187] or Directive [2001/23] which provides that, in the event of a transfer of an undertaking or a business, the transferee is bound by the conditions of employment agreed individually and in the exercise of their freedom of contract by the transferor with the employee as if he had agreed them himself, even if these conditions incorporate certain provisions of a collective agreement, which would not otherwise apply to the employment contract, into the employment contract dynamically, in so far as national law provides for both consensual and unilateral adjustments by the transferee?’ |
Decision | Article 3 of Council Directive 2001/23/EC on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses and Article 16 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in the case of a transfer of a business, the continued observance of the rights and obligations of the transferor arising from a contract of employment, extends to the clause which the transferor and the worker agreed pursuant to the principle of freedom of contract, pursuant to which their employment relationship is governed not only by the collective agreement in force on the date of the transfer, but also by agreements subsequent to the transfer and which supplement it, amend it or replace it, if the national law provides for the possibility for the transferee to make adjustments both consensually and unilaterally. |
Case number | C–201/15 |
Case name | AGET Iraklis |
Document | Judgment ECLI:EU:C:2016:972 |
Date | 21/12/2016 |
Source of the question referred for a preliminary ruling | Symvoulio tis Epikrateias (Council of State, Greece) |
Name of the parties | Anonymi Geniki Etairia Tsimenton Iraklis (AGET Iraklis) v Ypourgos Ergasias, Koinonikis Asfalisis kai Koinonikis Allilengyis |
Subject matter | Employment and social policy; collective redundancies |
Key words | Aget Iraklis – Approximation of the laws of the Member States relating to collective redundancies – Freedom of establishment – Charter of Fundamental Rights of the European Union – Freedom to conduct a business – National legislation conferring upon an administrative authority the power to oppose collective redundancies after assessing the conditions in the labour market, the situation of the undertaking and the interests of the national economy – Acute economic crisis – Particularly high national unemployment rate |
Question referred for a preliminary ruling | ‘1. Is a national provision, such as Article 5(3) of Law No 1387/1983, which lays down as a condition in order for collective redundancies to be effected in a specific undertaking that the administrative authorities must authorise the redundancies in question on the basis of criteria as to (a) the conditions in the labour market, (b) the situation of the undertaking and (c) the interests of the national economy, compatible with Directive 98/59 in particular and, more generally, Articles 49 and 63 TFEU? 2. If the answer to the first question is in the negative, is a national provision with the aforementioned content compatible with Directive 98/59 in particular and, more generally, Articles 49 and 63 TFEU if there are serious social reasons, such as an acute economic crisis and very high unemployment?’ |
Decision | 1. Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as not precluding, in principle, national legislation, such as that at issue in the main proceedings, under which, if there is no agreement with the workers’ representatives on projected collective redundancies, an employer can effect such redundancies only if the competent national public authority which must be notified of the projected collective redundancies does not adopt, within the period prescribed by that legislation and after examining the documents in the file and assessing the conditions in the labour market, the situation of the undertaking and the interests of the national economy, a reasoned decision not to authorise some or all of the projected redundancies. The position is different, however, if – a matter which is, as the case may be, for the referring court to ascertain – in the light of the three assessment criteria to which that legislation refers and of the specific application of them by the public authority, subject to review by the courts having jurisdiction, that legislation proves to have the consequence of depriving the provisions of that directive of their practical effect. Article 49 TFEU must be interpreted as precluding, in a situation such as that at issue in the main proceedings, national legislation such as that referred to in the first sentence of the first paragraph of this point. 2. The fact that the context in a Member State may be one of acute economic crisis and a particularly high unemployment rate is not such as to affect the answers set out in point 1 of this operative part. |
Case number | C–134/15 |
Case name | Lidl |
Document | Judgment ECLI:EU:C:2016:498 |
Date | 30/06/2016 |
Source of the question referred for a preliminary ruling | Sächsisches Oberverwaltungsgericht (Higher Administrative Court of the Land of Saxony, Germany) |
Name of the parties | Lidl GmbH & Co. KG v Freistaat Sachsen |
Subject matter | Agriculture and fisheries; eggs and poultry; marketing standards for poultrymeat; labelling obligations |
Key words | Lidl – Agriculture – Common organisation of the markets – Marketing standards – Fresh pre–packaged poultrymeat – Obligation to indicate the total price and the price per weight unit on the pre–packaging or on a label attached thereto – Charter of Fundamental Rights of the European Union – Freedom to conduct a business – Proportionality – Non–discrimination |
Question referred for a preliminary ruling | ‘(1) Is Article 5(4)(b) of [Regulation No 543/2008] compatible with the first subparagraph of Article 6(1) of the TEU read in conjunction with Article 15(1) and Article 16 of the Charter? (2) Is Article 5(4)(b) of Regulation No 543/2008 compatible with the second subparagraph of Article 40(2) TFEU?’ |
Decision | 1. Consideration of the first question referred has not disclosed any factor of such a kind as to affect the validity of Article 5(4)(b) of Commission Regulation (EC) No 543/2008 of 16 June 2008 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 as regards the marketing standards for poultry meat, in the light of the freedom to conduct a business, as provided by Article 16 of the Charter of Fundamental Rights of the European Union. 2. Consideration of the second question referred has not disclosed any factor of such a kind as to affect the validity of Article 5(4)(b) of Regulation No 543/2008 in the light of the principle of non–discrimination referred to in the second subparagraph of Article 40(2) TFEU. |
Article 17 of the Charter: Right to property
Case number | C–659/20 |
Case name | Ministerstvo životního prostředí (Perroquets Ara hyacinthe) |
Document | Judgment ECLI:EU:C:2022:642 |
Date | 08/09/2022 |
Source of the question referred for a preliminary ruling | Nejvyšší správní soud (Supreme Administrative Court, Czech Republic) |
Name of the parties | ET v Ministerstvo životního prostředí |
Subject matter | Environment; wild fauna and flora; granting of an exemption from the prohibition of commercial activities for five specimens of the hyacinth macaw (Anodorhynchus hyacinthinus). |
Key words | ET – Protection of species of wild fauna and flora by regulating trade therein – Concept of ‘specimens of animal species that are born and bred in captivity’ – Concept of ‘breeding stock’ – Establishment of the breeding stock – Controlled ancestry |
Question referred for a preliminary ruling | ‘(1) Does ‘breeding stock’, as defined by Regulation [No 865/2006], include specimens that are the parents of specimens bred by a given breeder, even though that breeder never owned or kept them? (2) If the answer to the first question is that such parent specimens do not constitute a part of the breeding stock, are competent bodies authorised to verify, in examining compliance with the condition set in Article 54(2) of [Regulation No 865/2006], consisting of the establishment of stock legally and, at the same time, in a manner not detrimental to the survival of wild specimens, the origin of those parent specimens and to infer on that basis whether the breeding stock has been established in accordance with the rules set out in Article 54(2) of the regulation? (3) In examining compliance with the condition set out in Article 54(2) of [Regulation No 865/2006], consisting of the establishment of stock legally and, at the same time, in a manner not detrimental to the survival of wild specimens, can further circumstances of the case be taken into consideration (in particular, good faith in the transfer of the specimens and the legitimate expectation that trading in their potential offspring will be permitted, and potentially also the less stringent legislation applicable in the Czech Republic prior to the country’s accession to the European Union)?’ |
Decision | 1. Article 1(3) of Commission Regulation (EC) No 865/2006 of 4 May 2006 laying down detailed rules concerning the implementation of Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein, must be interpreted as meaning that the concept of ‘breeding stock’, within the meaning of that provision, does not include the ancestors of specimens bred in a breeding operation which have never been owned or kept by that operation. 2. Article 54(2) of Regulation No 865/2006, read in conjunction with Article 17 of the Charter of Fundamental Rights of the European Union and the principle of protection of legitimate expectations, must be interpreted as precluding a specimen, kept by a breeder, of a species of animal referred to in Annex A to Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein, from being regarded as having been born and bred in captivity, within the meaning of Article 8(3) of that regulation, where the ancestors of that specimen, which do not form part of the breeding stock of that breeder, were acquired by a third party before the entry into force of those regulations in a manner which is detrimental to the survival of the species concerned in the wild. |
Case number | C–238/20 |
Case name | Sātiņi–S |
Document | Judgment ECLI:EU:C:2022:57 |
Date | 27/01/2022 |
Source of the question referred for a preliminary ruling | Augstākā tiesa (Senāts) (Supreme Court, Latvia) |
Name of the parties | SIA ‘Sātiņi–S’ v Dabas aizsardzības pārvalde |
Subject matter | Environment – Aid granted by governments |
Key words | Satini – Right to property – Compensation for the damage caused to aquaculture by protected wild birds in a Natura 2000 area – Compensation less than the damage actually suffered – State aid – Concept of ‘advantage’ – Conditions – De minimis rule |
Question referred for a preliminary ruling | ‘(1) Does the right to fair compensation for limits on the right to property that is guaranteed by Article 17 of the [Charter] allow the compensation awarded by a State for the losses caused to aquaculture in a Natura 2000 rea by protected birds, in accordance with the [‘Birds’] Directive, to be significantly less than the losses actually suffered? (2) Does the compensation awarded by a State for the losses caused to aquaculture in a Natura 2000 area by protected birds, in accordance with the [‘Birds’] Directive, constitute State aid within the meaning of Articles 107 and 108 TFEU? (3) If the answer to the second question is in the affirmative, is the de minimis aid limit of EUR 30 000 laid down in Article 3(2) of [Regulation No 717/2014] applicable to compensation such as that at issue in the dispute in the main proceedings?’ |
Decision | 1. Article 17 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding the compensation granted by a Member State for the losses suffered by an economic operator as a result of the protective measures applicable in a Natura 2000 area under Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds being significantly less than the damage actually incurred by that operator. 2. Article 107(1) TFEU must be interpreted as meaning that compensation granted by a Member State for the losses suffered by an economic operator as a result of the protective measures applicable in a Natura 2000 network area under Directive 2009/147 confers an advantage capable of constituting ‘State aid’ for the purposes of that provision, where the other conditions relating to such a classification are satisfied. 3. Article 3(2) of Regulation (EU) No 717/2014 of 27 June 2014 on the application of Articles 107 and 108 [TFEU] to de minimis aid in the fishery and aquaculture sector must be interpreted as meaning that, in a case where the compensation such as that described in point 2 of this operative part fulfils the conditions of Article 107(1) TFEU, the de minimis ceiling of EUR 30 000, provided for in that Article 3(2) of Regulation No 717/2014, is applicable to that compensation. |
Case number | C–234/20 |
Case name | Sātiņi–S |
Document | Judgment ECLI:EU:C:2022:56 |
Date | 27/01/2022 |
Source of the question referred for a preliminary ruling | Augstākā tiesa (Senāts) (Supreme Court, Latvia) |
Name of the parties | Sātiņi–S’ SIA, intervening party:Lauku atbalsta dienests |
Subject matter | Agriculture and fisheries; prohibitions on planting American cranberry plantations on peatlands – Financing |
Key words | Satini S – European Agricultural Fund for Rural Development (EAFRD) – Support for rural development – Natura 2000 payments – Compensation for income foregone in agricultural and forest areas – Peat bogs – Prohibition of establishing plantations of cranberries – No compensation for damage – Charter of Fundamental Rights of the European Union – Right to property |
Question referred for a preliminary ruling | ‘(1) Must Article 30(6)(a) of [Regulation No 1305/2013] be interpreted as meaning that peat bogs are completely excluded from Natura 2000 payments? (2) If the reply to the first question is in the negative, are peat bogs included in agricultural or forest areas? (3) If the reply to the first question is in the negative, must Article 30 of Regulation No 1305/2013 be interpreted as meaning that a Member State may completely exclude peat bogs from Natura 2000 payments and that such national provisions are compatible with the compensatory aim of those payments established in Regulation No 1305/2013? (4) Must Article 30 of Regulation No 1305/2013 be interpreted as meaning that a Member State may restrict support payments for Natura 2000 areas by making support available only in connection with restrictions on a particular type of economic activity, for example, by limiting support in forest areas to forestry activities? (5) Must Article 30(1) of Regulation No 1305/2013, read together with Article 17 of the [Charter], be interpreted as meaning that someone is entitled to a Natura 2000 payment by virtue of his or her plans for a new economic activity if, when he or she acquired the property, he or she was already aware of the restrictions that applied to it?’ |
Decision | 1. Article 30(6)(a) of Regulation (EU) No 1305/2013 of the European Parliament and of the Council of 17 December 2013 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) and repealing Council Regulation (EC) No 1698/2005 must be interpreted as meaning that it does not exclude, in principle, peat bogs from Natura 2000 payments, in so far as those peat bogs are situated in Natura 2000 areas designated pursuant to Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora and to Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds, and fall within the concept of ‘agricultural area’ or ‘forest’, within the meaning of, respectively, points (f) and (r) of Article 2(1) or of Article 2(2) of Regulation No 1305/2013, which may thus be eligible for the payments referred to in Article 30(1) of that regulation as ‘Natura 2000 agricultural and forest areas’ within the meaning of Article 30(6)(a) thereof. 2. Article 30(6)(a) of Regulation No 1305/2013 must be interpreted as allowing a Member State to exclude from Natura 2000 payments, first, ‘Natura 2000 agricultural areas’ within the meaning of that provision, including, in that case, peat bogs which come within such areas and, second, and in accordance with Article 2(2) of Regulation No 1305/2013, peat bogs situated in Natura 2000 areas, which, in principle, come within the concept of ‘forest’, within the meaning of Article 2(1)(r) of that regulation, and thus of ‘Natura 2000 forest areas’ within the meaning of Article 30(6)(a) of that regulation. The latter provision must also be interpreted as permitting a Member State to limit such payments for Natura 2000 forest areas, including, where appropriate, peat bogs, to situations where the designation of those areas as ‘Natura 2000 areas’ has the effect of adversely affecting the exercise of a specific type of economic activity, in particular forestry. 3. Article 30 of Regulation No 1305/2013, read in conjunction with Article 17 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a Natura 2000 payment must not be granted to the owner of a peat bog that comes within the Natura 2000 network on the basis that a restriction has been made to an economic activity which may be carried out on such a peat bog, in particular the prohibition on planting cranberries, where, at the time when he or she acquired the immovable property concerned, the owner was aware of such restriction. |
Case number | C–83/20 |
Case name | BPC Lux 2 and Others |
Document | Judgment ECLI:EU:C:2022:346 |
Date | 05/05/2022 |
Source of the question referred for a preliminary ruling | Supremo Tribunal Administrativo (Supreme Administrative Court Portugal) |
Name of the parties | BPC Lux 2 Sàrl and Others v Banco de Portugal and Others |
Subject matter | Free movement of capital and free movement of payments; credit institutions; BES bank rescuing |
Key words | BPC – Banking union – Recovery and resolution of credit institutions and investment firms – Protection of shareholders and creditors – Partial implementation before expiry of the period for transposition – Transposition in stages – Charter of Fundamental Rights of the European Union – Right to property |
Question referred for a preliminary ruling | 1. Must EU law, in particular Article 17 of the [Charter of Fundamental Rights of the European Union] and Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council, and in particular Articles 36, 73 and 74 of that directive, be interpreted as precluding national legislation such as that set out above, which was applied through a resolution action consisting in the formation of a bridge bank and the separation of assets, and which, in partially transposing that directive before the deadline for transposition: (a) did not provide for a fair, prudent and realistic valuation of the assets and liabilities of the credit institution under resolution to be carried out before the resolution action was adopted; (b) did not provide for potential compensation based on the valuation referred to in point (a) to be paid to the institution under resolution or, where appropriate, to the holders of shares or other titles of ownership and which, instead, merely provided for any remaining proceeds from the sale of the bridge bank to be returned to the original credit institution or its insolvency estate; (c) did not establish that the shareholders of the institution under resolution were entitled to receive an amount not less than the amount it is calculated they would have received if the institution under resolution had been completely wound up under normal insolvency proceedings, and established such a safeguard mechanism only for creditors whose claims had not been transferred; and (d) did not provide for a separate valuation from that referred to in point (a) to be carried out in order to determine whether shareholders and creditors would have received more favourable treatment if the credit institution under resolution had entered into normal insolvency proceedings? 2. In the light of the case–law of the Court of Justice set out in the judgment of 18 December 1997, Inter–Environnement Wallonie, [Case C–129/96, which was subsequently confirmed by the Court], is national legislation such as that described in the present proceedings, which partially transposes Directive 2014/59/EU, liable seriously to compromise the result prescribed by the directive, particularly by Articles 36, 73 and 74 thereof, in the context of taking the resolution action? |
Decision | 1. Article 17(1) of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding national legislation, applicable in the context of a resolution action, which, in principle, ensures the economic neutrality of that action and consists in the formation of a bridge institution and an asset separation tool, and which does not expressly provide: for a fair, prudent and realistic valuation of the assets and liabilities of the institution under resolution to be carried out before the resolution action is adopted; for potential compensation based on the valuation referred to in the previous indent to be paid to the institution under resolution or, where appropriate, to the holders of shares or other titles of ownership; that shareholders of the institution under resolution are entitled to receive an amount not less than the amount it is calculated they would have received if the institution had been completely wound up under normal insolvency proceedings, such a safeguard mechanism being provided only for creditors whose claims have not been transferred; and for a separate valuation from that referred to in the first indent to be carried out in order to determine whether shareholders and creditors would have received more favourable treatment if the institution under resolution had entered into normal insolvency proceedings. 2. The transposition by a Member State in part, in national legislation relating to the resolution of credit institutions, of certain provisions of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC and Directives 2001/24/EC 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU and Regulations (EU) No 1093/2010 and (EU) No 648/2012 of the European Parliament and of the Council, before the expiry of the period prescribed for transposition of that directive is not, as a matter of principle, liable seriously to compromise the result prescribed by that directive, within the meaning of the judgment of 18 December 1997, Inter–Environment Wallonie (C–129/96, EU:C:1997:628). |
Case number | C–393/19 |
Case name | Okrazhna prokuratura – Haskovo and Apelativna prokuratura – Plovdiv |
Document | Judgment ECLI:EU:C:2021:8 |
Date | 14/01/2021 |
Source of the question referred for a preliminary ruling | Apelativen sad – Plovdiv (Court of Appeal, Plovdiv, Bulgaria) |
Name of the parties | Criminal proceedings against OM |
Subject matter | Free movement of goods and capital; judicial cooperation in criminal cases; confiscation of assets |
Key words | OM – Right to property – Charter of Fundamental Rights – Right to an effective remedy – Confiscation of crime–related proceeds, instrumentalities and property – Freezing and confiscation of instrumentalities and proceeds of crime in the European Union – National legislation providing for the confiscation, for the benefit of the State, of property used to commit the offence of smuggling – Property belonging to a third party acting in good faith |
Question referred for a preliminary ruling | ‘(1) Is Article 17(1) of the [Charter] to be interpreted as meaning that a national provision such as that pursuant to Article 242(8) of the [NK], according to which a means of transport used to commit aggravated smuggling which belongs to a third person who neither knew nor could or should have known that its employee was committing the offence must be confiscated for the benefit of the State, is unlawful on the grounds that it undermines the fair balance between the public interest and the need to protect the right to property? (2) Is Article 47 of the [Charter] to be interpreted as meaning that a national provision such as that pursuant to Article 242(8) of the [NK], according to which a means of transport owned by a person who is not the person who committed the offence can be confiscated without the owner being guaranteed direct access to the courts to state its case, is unlawful?’ |
Decision | 1. Article 2(1) of Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime–Related Proceeds, Instrumentalities and Property, read in the light of Article 17(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a national law which permits the confiscation of an instrumentality used to commit an aggravated smuggling offence where that property belongs to a third party acting in good faith. 2. Article 4 of Framework Decision 2005/212/JHA, read in the light of Article 47 of the Charter of Fundamental Rights, must be interpreted as precluding a national law which permits the confiscation, in the context of criminal proceedings, of property belonging to a person other than the person who committed the criminal offence, without the former being afforded an effective remedy. |
Case number | C–223/19 |
Case name | YS (Occupational pensions of managerial staff) |
Document | Judgment ECLI:EU:C:2020:753 |
Date | 24/09/2020 |
Source of the question referred for a preliminary ruling | Landesgericht Wiener Neustadt (V) |
Name of the parties | YS v NK AG |
Subject matter | Employment and social policy; equal treatment in employment and occupation; deduction of the amount from the occupational pension paid by and the contractually agreed valorisation of the occupational pension for 2018 |
Key words | YS – Equal treatment in employment and occupation – Prohibition of indirect discrimination on grounds of age or sex – Justifications – National legislation providing for an amount to be withheld from pensions paid directly to their recipients by undertakings in which the State has a majority participation and for the cancellation of the indexation of the amount of those pensions – Charter of Fundamental Rights of the European Union – Applicability – Discrimination on grounds of property – Infringement of the freedom of contract – Infringement of the right to property –– Right to an effective remedy |
Question referred for a preliminary ruling | ‘1. Does the scope of [Directive 79/7/EEC] and/or of [Directive 2006/54] include legislation of a Member State if the effect of that legislation is that the former employer is to withhold sums of money from a considerably higher proportion of men entitled to an occupational pension than from women entitled to an occupational pension when those occupational pensions are paid out and those sums may be freely used by the former employer, and are such provisions discriminatory within the meaning of those directives? 2. Does the scope of [Directive 2000/78] include legislation of a Member State that discriminates on the ground of age because the financial burden is borne exclusively by older people who are entitled under private law to the benefits of an occupational pension that was agreed as a ‘direct defined benefit pension’, whereas young and relatively young people who have entered into occupational pension contracts are not financially burdened? 3. Are the provisions of the [Charter], in particular the prohibitions of discrimination laid down in Articles 20 and 21 of the Charter, to be applied to occupational pensions even if the Member State’s legislation does not cover forms of discrimination as prohibited pursuant to [Directives 79/7, 2000/78 and 2006/54]? 4. Are Article 20 et seq. [of the Charter] to be interpreted as precluding legislation of a Member State that implements Union law within the meaning of Article 51 [of the Charter] and that discriminates, on grounds of sex, age, property or on other grounds, such as, for example, on the basis of the former employer’s current ownership, against persons entitled under private law to an occupational pension as compared with other persons entitled to an occupational pension, and does the [Charter] prohibit such forms of discrimination? 5. Are national rules that place only a small group of people who are contractually entitled to an occupational pension in the form of a direct defined benefit pension under an obligation to make financial payments to their former employer also discriminatory on the basis of property within the meaning of Article 21 [of the Charter] if they cover only people with relatively large occupational pensions? 6. Is Article 17 [of the Charter] to be interpreted as precluding legislation of a Member State that provides for expropriatory intervention, directly by law and without compensation, in an agreement relating to an occupational pension in the form of a ‘direct defined benefit pension’ entered into between two private parties to the detriment of a former employee of a company that has made provision for the payment of the occupational pension and is not experiencing financial difficulties? 7. Does a statutory obligation on the part of the former employer of a person entitled to an occupational pension not to pay out parts of the agreed remuneration (of the agreed occupational pension) represent, as an infringement of freedom of contract, an interference with the employer’s right to property? 8. Is Article 47 [of the Charter] to be interpreted as precluding legislation of a Member State that expropriates directly by law and makes no provision for any challenge to the expropriation other than by way of a claim against the beneficiary of the expropriation (the former employer and the debtor under the pension contract) for damages and reimbursement of the expropriated sum of money?’ |
Decision | 1. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation must be interpreted as meaning that the scope of those directives includes provisions of the law of a Member State pursuant to which (i) part of the amount of the occupational pension which the employer is contractually bound to pay directly to its former employee must be withheld at source by that employer and (ii) the contractually agreed indexation of the amount of that benefit is ineffective. 2. Article 5(c) and Article 7(1)(a)(iii) of Directive 2006/54 must be interpreted as not precluding legislation of a Member State pursuant to which the recipients of a pension that a State–controlled undertaking is contractually bound to pay them directly and that exceeds certain thresholds set in that legislation are deprived of (i) an amount withheld from the part of that pension exceeding one of those thresholds and (ii) the benefit of a contractually agreed indexation of that pension, even though the percentage of former workers the amount of whose occupational pension has been affected by that legislation is considerably higher among male former workers coming within the scope of that legislation than among female former workers coming within its scope, provided that those consequences are justified by objective factors wholly unrelated to any discrimination based on sex, which it is for the referring court to verify. 3. Article 2(1) and (2)(b) of Directive 2000/78 must be interpreted as not precluding legislation of a Member State pursuant to which recipients of a pension that a State–controlled undertaking is contractually bound to pay them directly and that exceeds certain thresholds set in that legislation are deprived of (i) an amount withheld from the part of that pension exceeding one of those thresholds and (ii) the benefit of a contractually agreed indexation of that pension, on the sole ground that that legislation affects only recipients above a certain age. 4. Articles 16, 17, 20 and 21 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding legislation of a Member State pursuant to which recipients of a pension that a State–controlled undertaking is contractually bound to pay them directly and that exceeds certain thresholds set in that legislation are deprived of (i) an amount withheld from the part of that pension exceeding one of those thresholds and (ii) the benefit of a contractually agreed indexation of that pension. 5. Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding a Member State’s failure to provide, in its legal system, for a free–standing legal remedy for, primarily, an examination of whether national provisions implementing that right are compatible with EU law, provided that it is possible for such examination to take place indirectly. |
Case number | C–798/18 |
Case name | Federazione nazionale delle imprese elettrotecniche ed elettroniche (Anie) and Others |
Document | Judgment ECLI:EU:C:2021:280 |
Date | 15/04/2021 |
Source of the question referred for a preliminary ruling | Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) |
Name of the parties | In Joined Cases: Federazione nazionale delle imprese elettrotecniche ed elettroniche (Anie) and Others v Ministero dello Sviluppo Economico and Gestore dei servizi energetici (GSE) SpA (C–798/18), and Athesia Energy Srl and Others v Ministero dello Sviluppo Economico and Gestore dei servizi energetici (GSE) SpA (C–799/18) |
Subject matter | Environment, sustainable development and climate; renewable energy; amendment of the incentive tariffs for electricity production from photovoltaic power plants and the rules for their payment |
Key words | Federazione nazionalle – Environment – Charter of Fundamental Rights of the European Union – Principles of legal certainty and of the protection of legitimate expectations – Energy Charter Treaty – Applicability – Promotion of the use of energy from renewable sources – Production of electricity from solar photovoltaic installations – Alteration of a support scheme |
Question referred for a preliminary ruling | ‘Does EU law preclude the application of a provision of national law, such as that in Article 26(2) and (3) of [Decree–Law No 91/2014], which significantly reduces or delays the payment of incentives already granted by law and defined on the basis of corresponding agreements concluded by undertakings generating electrical energy by means of photovoltaic conversion with [GSE], a public company responsible for that process? In particular, is that provision of national law compatible with the general principles of EU law relating to legitimate expectation, legal certainty, sincere cooperation and effectiveness, with Articles 16 and 17 of the [Charter], with Directive [2009/28] and with the rules governing support schemes laid down in that directive, and with Article 216(2) TFEU, in particular in relation to the [Energy Charter]?’ |
Decision | Subject to verifications to be carried out by the referring court taking into account all the relevant factors, Article 3(3)(a) of Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, and Articles 16 and 17 of the Charter of Fundamental Rights of the European Union, read in the light of the principles of legal certainty and of the protection of legitimate expectations, must be interpreted as not precluding national legislation which provides for the reduction or delay of the payment of incentives for energy produced by solar photovoltaic installations which were previously granted by administrative decisions and confirmed by special agreements concluded between the operators of those installations and a public company, where that legislation concerns incentives for which provision has previously been made but which are not yet due. |
Case number | C–686/18 |
Case name | Adusbef and Others |
Document | Judgment ECLI:EU:C:2020:567 |
Date | 16/07/2020 |
Source of the question referred for a preliminary ruling | Consiglio di Stato (Council of State, Italy) |
Name of the parties | OC e.a. and Others v Banca d'Italia and Others |
Subject matter | Free movement of capital; state aid; economic and monetary policy; ECB; acts adopted by the Bank of Italy in the context of its task of prudential supervision of Italian popular banks. |
Key words | Adusbef – Admissibility – Free movement of capital – State aid – Charter of Fundamental Rights of the European Union – Freedom to conduct a business – Right to property – Prudential requirements applicable to credit institutions and investment firms – Prudential supervision of credit institutions – Conferral of specific tasks on the European Central Bank (ECB) – Regulatory technical standards for Own Funds requirements for institutions – National regulation imposing an asset threshold on people’s banks established as cooperative societies and allowing the right to redeem shares by the withdrawing shareholder to be limited |
Question referred for a preliminary ruling | ‘(1) Do Article 29 of [Regulation No 575/2013], Article 10 of [Delegated Regulation No 241/2014], and Articles 16 and 17 of the Charter …, with reference to Article 6(4) of [Regulation No 1024/2013], preclude a national provision such as that introduced by Article 1 of Decree–Law No 3/2015 … which imposes an asset threshold above which a people’s bank must be converted into a company limited by shares, setting that limit at EUR 8 billion? Furthermore, do the abovementioned unified European parameters preclude a national provision which, if a people’s bank is converted into a company limited by shares, makes it possible for that company to defer or limit, including for an indefinite period, redemption of the shares held by the withdrawing shareholder? (2) Do Articles 3 and 63 et seq. TFEU, on competition in the internal market and free movement of capital, preclude a national provision such as that introduced by Article 1 of Decree–Law No 3/2015 … which limits the exercise of cooperative banking activities within a given asset limit, requiring the bank concerned to be converted into a company limited by shares if it should exceed that limit? (3) Do Article 107 et seq. TFEU on State aid preclude a national provision such as that introduced by Article 1 of Decree–Law No 3/2015 …, which requires a people’s bank to be converted into a company limited by shares if it exceeds a certain asset threshold (set at EUR 8 billion), establishing restrictions on the redemption of the shares held by the shareholder in the event of withdrawal, to avoid the possible liquidation of the converted bank? (4) Do the combined provisions of Article 29 of Regulation … No 575/2013 and Article 10 of Delegated Regulation … No 241/2014 preclude a national provision such as that introduced by Article 1 of Decree–Law No 3/2015 …, as interpreted by the Corte costituzionale (Constitutional Court) in Judgment No 99/2018, which permits a people’s bank to defer redemption for an unlimited period and to limit the associated amount in full or in part? (5) Where, in its interpretation, the Court of Justice holds that European legislation is compatible with the interpretation asserted by the opposing parties, can the Court of Justice assess the lawfulness, in European terms, of Article 10 of [Delegated Regulation No 241/2014], in the light of Articles 16 and 17 of the Charter …, supplemented, also in the light of Article 52(3) of that Charter … and the case–law of the European Court of Human Rights on Article 1 of the First Additional Protocol to the [European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Paris on 20 March 1952]?’ |
Decision | 1. Article 29 of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012, Article 10 of Commission Delegated Regulation (EU) No 241/2014 of 7 January 2014 supplementing Regulation (EU) No 575/2013 with regard to regulatory technical standards for Own Funds requirements for institutions and Articles 16 and 17 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding legislation of a Member State which prohibits people’s banks established in that Member State from refusing the redemption of capital instruments but which allows those banks to defer, for an unlimited period, the redemption of the shares held by the withdrawing shareholder and to limit the amount to be redeemed in full or in part, provided that the limitations on redemption imposed when exercising that option do not go beyond what is necessary, in the light of the prudential situation of the banks concerned, in order to ensure that the capital instruments they issue qualify as Common Equity Tier 1 instruments, having regard, in particular, to the matters referred to in Article 10(3) of Delegated Regulation No 241/2014, which is a matter for the referring court to ascertain. 2. Article 63 et seq. TFEU must be interpreted as not precluding legislation of a Member State that sets an asset threshold on the exercise of banking activities by people’s banks established in that Member State as limited liability cooperative societies above which those banks must be converted into companies limited by shares, reduce their assets to below that threshold or be liquidated, provided that that legislation is appropriate for securing attainment of the general interest objectives pursued and does not exceed what is necessary to attain them, which is a matter for the referring court to ascertain. |
Case number | C–501/18 |
Case name | Balgarska Narodna Banka |
Document | Judgment ECLI:EU:C:2021:249 |
Date | 25/03/2021 |
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 | BT v Balgarska Narodna Banka |
Subject matter | Right of establishment: freedom to provide services: credit institutions; claim for damages |
Key words | BT – Deposit–guarantee schemes – Concept of ‘unavailable deposit’ – Determination of unavailability of deposits – Competent authority – Depositor’s rights to compensation – Principle of primacy of Union law – European System of Financial Supervision – European Banking Authority (EBA) – Legal effects – Validity – Reorganisation and winding up of credit institutions – seventh indent – Concept of ‘reorganisation measures’ – Charter of Fundamental Rights of the European Union – Liability of Member States for breach of Union law – Conditions – Sufficiently serious breach of EU law – Procedural autonomy of Member States – Principle of sincere cooperation – Principles of equivalence and effectiveness |
Question referred for a preliminary ruling | ‘(1) Does it follow from the principles of EU law of equivalence and effectiveness that a national court is obliged to regard, of its own motion, an action as having been brought on the ground of a breach of an obligation arising from Article 4(3) of the Treaty on European Union (TEU) by a Member State if the action relates to the non–contractual liability of the Member State for losses arising from an infringement of EU law that were allegedly caused by an authority of a Member State, and – Article 4(3) TEU was not expressly specified as a legal basis in the application, but it is clear from the grounds for the action that the loss is asserted on the ground of an infringement of provisions of EU law; – the claim for damages was based on a national provision regarding State liability for losses that arise in the performance of administrative activity, and that liability is strict and was incurred under the following conditions: unlawfulness of a legal act, act or omission of an authority or official in the course of or in connection with the performance of administrative activity; material or non–material loss incurred; direct and immediate causal link between the loss and the unlawful conduct of the authority; – under the law of the Member State, the court must determine, of its own motion, the legal basis for State liability for the activity of the judicial authorities on the basis of the circumstances on which the action is based? (2) Does it follow from recital 27 of Regulation [No 1093/2010] that, under circumstances such as those of the main proceedings, the recommendation issued on the basis of Article 17(3) of the regulation, in which an infringement of EU law by the central bank of a Member State in connection with the deadlines for paying out guaranteed deposits to the depositors in the respective credit institution has been established: – confers on the depositors at that credit institution the right to invoke the recommendation before a national court in order to substantiate an action for damages on the ground of that infringement of EU law, if account is taken of the [EBA]’s express power to establish infringements of EU law, and if it is considered that the depositors are not, and cannot be, the addressees of the recommendation and the latter does not establish any direct legal consequences for them; – is valid, having regard to the requirement that the infringed provision must provide for clear and unconditional obligations, if consideration is given to the fact that point (i) of Article 1(3) of Directive [94/19], if it is interpreted in conjunction with recitals 12 and 13 of that directive, does not contain all the elements required to establish a clear and unconditional obligation for the Member States and does not confer direct rights on depositors, and taking account of the fact that that directive provides for only minimum harmonisation that does not cover the indications by means of which unavailable deposits are determined, and that the recommendation has not been substantiated by other clear and unconditional provisions of EU law in relation to those indications, in particular the assessment of the lack of liquidity and the current lack of prospects of payout; an existing obligation to order early intervention measures and to maintain the business activity of the credit institution; – in view of the subject matter, the deposit guarantee, and the power of the [EBA] to issue recommendations on the deposit guarantee scheme pursuant to Article 26(2) of Regulation [No 1093/2010], is valid in relation to the national central bank, which has no connection with the national deposit guarantee scheme and is not a competent authority pursuant to point [(iii)] of Article 4(2) of that regulation? (3) Having regard also to the current state of the EU law relevant to the main proceedings, does it follow from the judgments of the Court of Justice of the European Union of 12 October 2004, Paul and Others (C‑222/02, EU:C:2004:606, paragraphs 38, 39, 43 and 49 to 51), of 5 March 1996, Brasserie du pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 42 and 51), of 15 June 2000, Dorsch Consult v Council and Commission (C‑237/98 P, EU:C:2000:321, paragraph 19), and of 2 December 1971, Zuckerfabrik Schöppenstedt v Council (5/71, EU:C:1971:116 paragraph 11) that: (a) the provisions of Directive 94/19, particularly Article 7(6), confer on depositors the right to assert claims for compensation against a Member State for defective supervision regarding the credit institution that administers their deposits, and are those rights restricted to the guaranteed amount of the deposits or is the term ‘rights to compensation’ in that provision to be interpreted broadly? (b) the supervisory measures adopted by the central bank of a Member State to reorganise a credit institution, such as those in the main proceedings, including the suspension of payments, which are provided for, in particular, in the seventh indent of Article 2 of Directive [2001/24], constitute an unjustified and unreasonable infringement of the depositors’ right to property that incurs liability for losses arising from an infringement of EU law if, having regard to Article 116(5) of the Law on credit institutions and Article 4(2)(1) and Article 94(1)(4) of the Law on bank insolvency, the law of the respective Member State provides that contractual interest is calculated for the duration of the measures and the claims that exceed the guaranteed amount of the deposits can be satisfied in general insolvency proceedings, and provides that interest can be paid? (c) the requirements provided for in the national law of a Member State for non–contractual liability for losses arising from an act or omission in connection with the exercise by a Member State’s central bank of the supervisory powers covered by the scope of application of Article 65(1)(b) TFEU must not run counter to the requirements and principles of that liability that apply under EU law, specifically: the principle according to which actions for damages are independent of actions for annulment and the established illegality of a requirement under national law that a legal act or an omission on the basis of which compensation is sought must be annulled beforehand; the illegality of a requirement under national law regarding the culpability of authorities or officials for whose conduct compensation is sought; the requirement in respect of actions for damages to compensate for material harm whereby the plaintiff must have suffered actual and certain damage at the time the action was brought? (d) on the basis of the principle of EU law according to which actions for damages are independent of actions for annulment, the requirement that the relevant conduct of the authority be unlawful must be met, which is equivalent to the requirement under the national law of the Member State according to which the legal act or the omission on the basis of which compensation is sought, namely the measures to reorganise a credit institution, must be annulled, if consideration is given to the circumstances of the main proceedings and it is considered that: – these measures are not directed at the applicant, which is a depositor at a credit institution, and that it is not entitled under national law and in accordance with the national case–law to apply for the annulment of the individual decisions by means of which these measures were ordered, and that those decisions have become final; – EU law, specifically Directive 2001/24 in this area, does not impose an express obligation on the Member States to provide for the possibility of challenging the supervisory measures for the benefit of all creditors in order to establish the validity of the measures; – the law of a Member State does not provide for non–contractual liability for losses incurred due to lawful conduct on the part of authorities or officials? (e) In the event of an interpretation to the effect that, under the circumstances of the main proceedings, the requirement that the respective conduct of the authority be unlawful is not applicable to actions of depositors at a credit institution for compensation due to acts and omissions of the central bank of a Member State and, in particular, for the payment of interest for guaranteed deposits not having been paid out within the deadline and for the payment of deposits exceeding the guaranteed amount, which are brought to seek compensation for an infringement of Articles 63 to 65 and 120 TFEU, Article 3 TEU and Article 17 of the [Charter], are the requirements established by the Court of Justice of the European Union for non–contractual liability applicable to losses: – that arose due to lawful conduct on the part of an authority, specifically the three cumulative requirements, namely the existence of actual loss, a causal link between that loss and the act concerned, and the abnormal and special nature of the loss, particularly in the case of actions for the payment of interest for guaranteed deposits not being paid out within the deadline, or – in the domain of economic policy, particularly the requirement ‘only if there has been a sufficiently serious breach of a superior rule of law for the protection of individuals’, particularly in actions of depositors for the payment of deposits exceeding the guaranteed amount, which are asserted as a loss and to which the procedure provided for by national law is applicable, if account is taken of the wide discretion enjoyed by the Member States in connection with Article 65(1)(b) TFEU and the measures under Directive 2001/24 and if the circumstances pertaining to the credit institution and the person seeking compensation relate to only one Member State but the same provisions and the constitutional principle of equality before the law apply to all depositors? (4) Does it follow from the interpretation of Article 10(1) in conjunction with point (i) of Article 1(3) and Article 7(6) of Directive 94/19 and the legal considerations in the judgment of the Court of Justice of the European Union of 21 December 2016, Vervloet and Others (C‑76/15, EU:C:2016:975, paragraphs 82 to 84), that the scope of application of the provisions of the directive cover depositors – whose deposits were not repayable on the basis of contracts and statutory provisions during the period running from the suspension of payments of the credit institution to the withdrawal of its authorisation for banking business, and the respective depositor has not expressed that he or she seeks repayment, – who have agreed to a clause that provides for the guaranteed amount of the deposits to be paid out in accordance with the procedure governed in the law of a Member State, and specifically after the withdrawal of the authorisation of that credit institution that manages the deposits, and that requirement has been met, and – the aforementioned clause of the deposit contract has the force of law between the contracting parties under the law of the Member States? Does it follow from the provisions of that directive or from other provisions of EU law that the national court may not take such a clause in the deposit contract into consideration and may not examine the action of a depositor for the payment of interest due to failure to pay out the guaranteed amount of deposits within the deadline pursuant to that contract on the basis of the requirements for non–contractual liability for loss arising from an infringement of EU law and on the basis of Article 7(6) of Directive 94/19?’ |
Decision | 1. Article 7(6) of Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit–guarantee schemes, as amended by Directive 2009/14/EC of the European Parliament and of the Council of 11 March 2009, must be interpreted as meaning that the depositor’s right to compensation which it provides for covers only the repayment, by the deposit–guarantee scheme, of deposits which are unavailable to that depositor, up to the amount laid down in Article 7(1a) of that directive, as amended by Directive 2009/14, following a finding of unavailability, by the competent national authority, of deposits held by the credit institution concerned, in accordance with Article 1(3)(i) of that directive, as amended by Directive 2009/14, so that Article 7(6) of that directive, as amended by Directive 2009/14, cannot establish, to the benefit of that depositor, a right to compensation for damage caused by the late repayment of the guaranteed amount of all his or her deposits or by inadequate supervision by the competent national authorities of the credit institution whose deposits have become unavailable. 2. The combined provisions of Article 1(3)(i), Article 7(6) and Article 10(1) of Directive 94/19, as amended by Directive 2009/14, must be interpreted as precluding national legislation or a contractual clause according to which a deposit made with a credit institution whose payments have been suspended are to become due only following the withdrawal, by the competent authority, of the banking licence issued to that institution and on condition that the depositor has expressly requested the repayment of that deposit. In accordance with the principle of primacy of Union law, any national court hearing an action for damages allegedly caused by the repayment of the guaranteed amount of such a deposit outside the period laid down in Article 10(1) of that directive, as amended by Directive 2009/14, is required to set aside such national legislation or such a contractual clause for the purposes of deciding that action. 3. Article 17(3) of Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC, read in the light of recital 27 thereof, must be interpreted as meaning that a national court must take into consideration a recommendation of the European Banking Authority adopted on the basis of that provision, with a view to resolving the dispute before it, in particular in the context of an action seeking to establish the liability of a Member State for damage caused to an individual as a result of the non–application or incorrect or insufficient application of Union law giving rise to the investigation procedure which led to the adoption of that recommendation. Individuals harmed by the breach of Union law established by such a recommendation, even if they are not the addressees of the recommendation, must be able to rely on it as a basis for establishing, before the competent national courts, the liability of the Member State concerned for the breach of Union law in question; Recommendation EBA/REC/2014/02 of the European Banking Authority of 17 October 2014 addressed to the Balgarska Narodna Banka (Bulgarian National Bank) and the Fund za garantirane na vlogovete v bankite (Bank Deposit Guarantee Fund) on the measures necessary to comply with Directive 94/19/EC is invalid, in so far as it equated the decision of the Balgarska Narodna Banka (Bulgarian National Bank) to place Korporativna targovska banka AD under special supervision and to suspend its obligations to a finding of unavailability of deposits, within the meaning of Article 1(3)(i) of Directive 94/19, as amended by Directive 2009/14. 4. Article 2, seventh indent, of Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions, read in the light of Article 17(1) and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a measure suspending payments applied by a national central bank to a credit institution as a reorganisation measure intended to preserve or restore the financial situation of that institution constitutes an unjustified and disproportionate interference with the exercise of the right of ownership of depositors with that institution if it does not respect the essential content of that right and if, having regard to the imminent risk of financial loss to which the depositors would have been exposed in the event of its bankruptcy, other less restrictive measures would have made it possible to achieve the same results, which is for the national court to verify. 5. Union law, in particular the principle of liability of the Member States for damage caused to individuals as a result of a breach of Union law, and the principles of equivalence and effectiveness, must be interpreted as meaning that: – it does not preclude national legislation which makes the right of individuals to obtain compensation for damage suffered as a result of a breach of Union law subject to the prior annulment of the administrative act or omission which caused the damage, provided that such annulment, even if required in respect of similar claims based on a breach of national law, is not in practice precluded or very limited; – it precludes national legislation which makes the right of individuals to obtain compensation for damage suffered as a result of a breach of Union law subject to the condition that the damage caused by the national authority in question be intentional; – it does not preclude national legislation which makes the right of individuals to obtain compensation for damage suffered as a result of a breach of Union law subject to the condition of proving actual and certain damage at the time when the action is brought, provided that that condition is not less favourable than those applicable to similar claims based on a breach of national law and is not so designed as to make it impossible or excessively difficult, having regard to the particular features of specific cases, to exercise such a right. 6. The principles of equivalence and effectiveness must be interpreted as meaning that they do not oblige a court ruling on a claim for damages formally based on a provision of national law relating to State liability for damage resulting from an administrative activity, but in support of which pleas in law alleging infringement of Union law as a result of such activity are raised, to regard that action of its own motion as being based on Article 4(3) TEU, in so far as that court is not prevented, by the applicable provisions of national law, to examine the pleas in law alleging infringement of Union law relied on in support of that action. |
Case number | C–235/17 |
Case name | Commission v Hungary (Usufruct Over Agricultural Land) |
Document | Judgment ECLI:EU:C:2019:432 |
Date | 21/05/2019 |
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; property rights; limitation of usufruct rights on agricultural and forestry land |
Key words | Hungary – Failure of a Member State to fulfil obligations – Free movement of capital – Charter of Fundamental Rights of the European Union – Right to property – National legislation extinguishing, without compensation, the rights of usufruct over agricultural and forestry land acquired by legal persons or by natural persons who cannot demonstrate a close family tie with the owner of the land |
Question referred for a preliminary ruling | In the form of order sought in its application, the Commission complains that Hungary has ‘restricted’ rights of usufruct over agricultural and forestry land (‘agricultural land’) in breach of EU law, in view of various provisions of national law that it mentions in the form of order sought. However, it follows both from the reasoned opinion and from the contents of the application itself and it is, moreover, common ground between the parties – as was confirmed by the submissions made at the hearing, which the Advocate General outlines in point 39 of his Opinion – that the restriction of rights of usufruct of which the Commission complains in the present case is, more specifically, the restriction arising as a result of the cancellation of those rights by Paragraph 108(1) of the 2013 Law on transitional measures. The other provisions of national law referred to in the form of order sought by the applicant are mentioned therein and in the application itself only as elements of the domestic legislative context of which Paragraph 108 forms part, those elements being essential for a full understanding of the scope of that provision. The Commission’s action thus seeks a declaration that, by adopting Paragraph 108(1) of the 2013 Law on transitional measures (‘the contested provision’) and thereby cancelling, by operation of law, rights of usufruct previously created over agricultural land in Hungary, as between persons who are not close members of the same family, Hungary has failed to fulfil its obligations under Articles 49 and 63 TFEU and Article 17 of the Charter. |
Decision | 1. Declares that, by adopting Paragraph 108(1) of mező– és erdőgazdasági földek forgalmáról szóló 2013. évi CXXII. törvénnyel összefüggő egyes rendelkezésekről és átmeneti szabályokról szóló 2013. évi CCXII. törvény (Law No CCXII of 2013 laying down various provisions and transitional measures concerning Law No CXXII of 2013 on transactions in agricultural and forestry land) and thereby cancelling, by operation of law, the rights of usufruct over agricultural and forestry land located in Hungary that are held, directly or indirectly, by nationals of other Member States, Hungary has failed to fulfil its obligations under Article 63 TFEU in conjunction with Article 17 of the Charter of Fundamental Rights of the European Union; 2. Orders Hungary to pay the costs. |
Case number | C–273/15 |
Case name | Ezernieki |
Document | Judgment ECLI:EU:C:2016:364 |
Date | 26/05/2016 |
Source of the question referred for a preliminary ruling | Augstākās tiesas Administratīvo lietu departaments (Supreme Court, Administrative Chamber, Latvia) |
Name of the parties | ZS ‘Ezernieki’ v Lauku atbalsta dienests |
Subject matter | Agriculture and fisheries; European Agricultural Guidance and Guarantee Fund (EAGGF); repayment of agri–environmental aid |
Key words | Ezernieki – Agriculture – European Agricultural Guidance and Guarantee Fund – Support for rural development – Recovery of undue payments – Increase of the area declared during the five–year commitment period above the threshold provided for – Replacement of the original commitment by a new commitment – Non–compliance by the beneficiary with the obligation to submit an annual application for payment of aid – National legislation requiring the repayment of all aid paid over several years – Principle of proportionality – Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | ‘(1) Is the application of the legal effects provided for in Article 71(2) of Regulation No 817/2004 to agri–environmental aid granted for the originally declared part of an area, in respect of which the prior conditions for grant of that aid were complied with for five years, compatible with the objective of Regulations Nos 1257/1999 and 817/2004 and with the principle of proportionality? (2) Must Article 17, in conjunction with Article 52, of the Charter be interpreted as meaning that the application of the legal effects provided for in Article 71(2) of Regulation No 817/2004 to agri–environmental aid granted for part of an area, in respect of which the prior conditions for grant of that aid were complied with for five years, is compatible with those articles? (3) Must Article 52 of the Charter be interpreted as meaning that it is permitted to refrain from applying the legal effects which a regulation and the provisions adopted by a Member State in accordance with that regulation regard as obligatory, if, in a specific case, there are special circumstances in the context of which the limitation concerned may be considered to be disproportionate? (4) In the light of the objective of Regulations Nos 1257/1999 and 817/2004 and the limits laid down therein on the discretion allowed to the Member States, is it acceptable for the court examining the substance of the case not to apply in its full scope Article 84 of Decree No 295, a provision which concerns the repayment of aid, where the application of that provision in the specific circumstances could lead to infringement of the principle of proportionality, as that principle is interpreted in the legal system of the Member State?’ |
Decision | Article 71(2) of Commission Regulation (EC) No 817/2004 of 29 April 2004 laying down detailed rules for the application of Council Regulation (EC) No 1257/1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF), must, in the light of the objective of Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations, as amended by Council Regulation (EC) No 1783/2003 of 29 September 2003, and of Regulation No 817/2004, in the light of the principle of proportionality and Articles 17 and 52 of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that it does not preclude national legislation, such as that at issue in the main proceedings, in accordance with which the beneficiary of aid granted in return for agri–environmental commitments covering several years is required to repay all of the aid already received, on the ground that he did not submit an annual application for payment of that aid for the last year of the five–year period of his commitments, where, first, that five–year period replaced an earlier period as a result of an increase in the area of his holding and, secondly, that beneficiary did not cease to fulfil his obligations relating to the use of the area declared prior to that increase. |
Case number | C–258/14 |
Case name | Florescu and Others |
Document | Judgment ECLI:EU:C:2017:448 |
Date | 13/06/2017 |
Source of the question referred for a preliminary ruling | Curtea de Apel Alba Iulia (Court of Appeal, Alba Iulia, Romania) |
Name of the parties | Eugenia Florescu and Others v Casa Judeţeană de Pensii Sibiu and Others |
Subject matter | Employment and social policy; equal treatment in employment and occupation; retirement pensions |
Key words | Florescu – Difficulties as regards the balance of payments of a Member State – Financial assistance from the European Union – Memorandum of Understanding concluded between the European Union and the Member State in receipt of the assistance – Social policy – Principle of equal treatment – National legislation prohibiting the combining of a public retirement pension with employment income from a professional activity carried out in a public institution – Different treatment of persons occupying posts whose term is laid down in the Constitution and of professional judges and law officer |
Question referred for a preliminary ruling | ‘(1) May [the Memorandum of Understanding] be regarded as an act, decision or communication having legal force within the meaning defined by the Court (judgments of 3 February 1976, Manghera and Others, 59/75, EU:C:1976:14, and of 20 March 1997, France v Commission, C‑57/95, EU:C:1997:164) and may it be interpreted by the Court? (2) If the answer is in the affirmative, is [the Memorandum of Understanding] to be interpreted as allowing the European Commission to require, for the purposes of reducing the effects of the economic crisis by reducing staff costs, the adoption of a national law which withdraws a person’s right to receive a contributory pension accrued in respect of over 30 years of contributions, which was legally established and received before that law came into force, on the ground that the person in question receives a salary for activity, carried out on the basis of an employment contract, other than the activity in respect of which he receives the pension? (3) Is [the Memorandum of Understanding] to be interpreted as allowing the European Commission to require, for the purposes of reducing the effects of the economic crisis, the adoption of a national law which completely and indefinitely withdraws a person’s right to receive a contributory pension accrued in respect of over 30 years of contributions, which was legally established and received before that law came into force, on the ground that the person in question receives a salary for activity, carried out on the basis of an employment contract, other than the activity in respect of which he receives the pension? (4) On a proper construction of the Memorandum [of Understanding] as a whole, and specifically of section (d) of point 5 thereof, which concerns reforming and improving the efficiency of the public administration, was it lawful for the European Commission to require, for the purposes of reducing the effects of the economic crisis, the adoption of a national law which barred retired officials of the public institutions from receiving a salary in addition to the pension? (5) Can Articles 17, 20, 21 and 47 of the Charter, Article 6 TEU, 110 TFEU, the principle of legal certainty derived from EU law and the case–law of the Court be interpreted as precluding a rule such as that set out in Article 21(2) of Law No 554/2004, which provides that, in the event of failure to observe the principle of the primacy of EU law, it is possible to revise decisions of national courts only in the context of administrative law proceedings and which does not allow decisions of national courts made in other areas (civil, criminal, commercial, and so on) to be revised in the event that [those] decisions are inconsistent with that principle? (6) Does Article 6 TEU preclude legislation of a Member State under which the payment of a professional judge’s pension, established on the basis of contributions made by that judge over more than 30 years of judicial service, is to be conditional upon the termination of his employment contract to teach law at university level? (7) Do Article 6 TEU, Article 17(1) of the Charter and the case–law of the Court preclude legislation which divests a magistrate pension holder of his right to receive a pension, even though that pension has been established on the basis of contributions made over more than 30 years, where judges have made and continue to make separate pension contributions in respect of their university teaching activities? (8) Do Article 6 TEU, and Article 2(2)(b) of Directive 2000/78, and the case–law of the Court preclude the Constitutional Court of a Member State from delivering a judgment by which, in exercise of its jurisdiction to review the constitutionality of a law, it establishes that only persons appointed for a fixed term have the right to combine a pension with a salary, thereby denying that right to professional judges, who are barred from receiving their pension, established on the basis of personal contributions made over more than 30 years, because they have retained a position teaching law at university level? (9) Do Article 6 TEU and the case–law of the Court preclude legislation which indefinitely makes the payment of a judge’s pension, established on the basis of contributions made over more than 30 years, conditional upon termination of university employment? (10) Do Article 6 TEU and the case–law of the Court preclude legislation which destroys the proper balance to be maintained between the protection of personal property, on the one hand, and general interest requirements, on the other, and which requires only one specific category of persons to lose their judicial pension by reason of the fact that they engage in university employment?’ |
Decision | 1. The Memorandum of Understanding between the European Community and Romania, concluded in Bucharest and Brussels on 23 June 2009, must be regarded as an act of an EU institution, within the meaning of Article 267 TFEU, which may be subject to interpretation by the Court of Justice of the European Union. 2. The Memorandum of Understanding between the European Community and Romania, concluded in Bucharest and Brussels on 23 June 2009, must be interpreted as meaning that it does not require the adoption of national legislation, such as that at issue in the main proceedings, which prohibits the combining of a net public–sector retirement pension with income from activities carried out in public institutions if the amount of the pension exceeds the amount of the average gross national salary on the basis of which the State social security budget was drawn up. 3. Article 6 TEU and Article 17 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which prohibits the combining of a net public–sector retirement pension with income from activities carried out in public institutions if the amount of that pension exceeds a certain threshold. 4. Article 2(2)(b) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as not applying to national legislation, such as that at issue in the main proceedings, which is interpreted as meaning that the prohibition on the combining of a net retirement pension with income from activities carried out in public institutions, laid down by the national legislation if the amount of the pension exceeds the amount of the national gross average salary on the basis of which the State social security budget was drawn up, applies to professional judges but not to persons occupying a post whose term is laid down in the national Constitution. |
Case number | C–416/10 |
Case name | Križan and Others |
Document | Judgment ECLI:EU:C:2013:8 |
Date | 15/01/2013 |
Source of the question referred for a preliminary ruling | Najvyšší súd Slovenskej republiky (Slovakia) |
Name of the parties | Jozef Križan and Others v Slovenská inšpekcia životného prostredia |
Subject matter | Environment; waste; pollution; landfill construction |
Key words | Križan – Annulment of a judicial decision – Referral back to the court concerned – Obligation to comply with the annulment decision – Reference for a preliminary ruling – Whether possible – Environment – Public participation in the decision–making process – Construction of a landfill site – Application for a permit – Trade secrets – Non–communication of a document to the public – Effect on the validity of the decision authorising the landfill site – Rectification – Assessment of the environmental impact of the project – Final opinion prior to accession of the Member State to the European Union – Effective legal remedy – Interim measures – Suspension of implementation – Annulment of the contested decision – Right to property – Interference |
Question referred for a preliminary ruling | ‘1. Does [European Union] law (specifically Article 267 TFEU) require or enable the supreme court of a Member State, of its own motion, to refer a question to the [Court of Justice] for a preliminary ruling even at a stage of proceedings where the constitutional court has annulled a judgment of the supreme court based in particular on the application of the [European Union legal] framework on environmental protection and imposed the obligation to abide by the constitutional court’s legal opinions based on breaches of the procedural and substantive constitutional rights of a person involved in judicial proceedings, irrespective of the [European Union law] dimension of the case concerned, that is, where in those proceedings the constitutional court, as the court of last instance, has not concluded that there is a need to refer a question to the [Court of Justice] for a preliminary ruling and has provisionally excluded the application of the right to an acceptable environment and the protection thereof in the case concerned? 2. Is it possible to fulfil the basic objective of integrated prevention as defined, in particular, in recitals 8, 9 and 23 in the preamble to and Articles 1 and 15 of Directive [96/61], and, in general, in the [European Union legal] framework on the environment, that is, pollution prevention and control involving the public in order to achieve a high level of environmental protection as a whole, by means of a procedure where, on commencement of an integrated prevention procedure, the public concerned is not guaranteed access to all relevant documents (Article 6 in conjunction with Article 15 of Directive [96/61]), especially the decision on the location of a structure (landfill site), and where, subsequently, at first instance, the missing document is submitted by the applicant on condition that it is not disclosed to other parties to the proceedings in view of the fact that it constitutes trade secrets: can it reasonably be assumed that the location decision (in particular its statement of reasons) will significantly affect the submission of suggestions, observations or the other comments? 3. Are the objectives of [Directive 85/337] met, especially in terms of the [European Union legal] framework on the environment, specifically the condition referred to in Article 2 that, before consent is given, certain projects will be assessed in the light of their environmental impact, if the original position of the Ministerstvo životného prostredia (Ministry of the Environment) issued in 1999 and terminating a past environmental impact assessment (EIA) procedure is prolonged several years later by a simple decision without a repeat EIA procedure; in other words, can it be said that a decision under [Directive 85/337], once issued, is valid indefinitely? 4. Does the requirement arising generally under Directive [96/61] (in particular the preamble and Articles 1 and 15a) for Member States to engage in the prevention and control of pollution by providing the public with fair, equitable and timely administrative or judicial proceedings in conjunction with Article 10a of Directive [85/337] and Articles 6 and 9(2) and (4) of the Aarhus Convention apply to the possibility for the public to seek the imposition of an administrative or judicial measure which is preliminary in nature in accordance with national law (for example, an order for the judicial suspension of enforcement of an integrated permit) and allows for the temporary suspension, until a final decision in the case, of the construction of an installation for which a permit has been requested? 5. Is it possible, by means of a judicial decision meeting the requirements of Directive [96/61] or Directive [85/337] or Article 9(2) and (4) of the Aarhus Convention, in the application of the public right contained therein to fair judicial protection within the meaning of Article 191(1) and (2) [TFEU], concerning European Union policy on the environment, to interfere unlawfully with an operator’s right of property in an installation as guaranteed, for example, in Article 1 of the Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, for example by revoking an applicant’s valid integrated permit for a new installation in judicial proceedings?’ |
Decision | 1. Article 267 TFEU must be interpreted as meaning that a national court, such as the referring court, is obliged to make, of its own motion, a request for a preliminary ruling to the Court of Justice of the European Union even though it is ruling on a referral back to it after its first decision was set aside by the constitutional court of the Member State concerned and even though a national rule obliges it to resolve the dispute by following the legal opinion of that latter court. 2. Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, as amended by Regulation (EC) No 166/2006 of the European Parliament and of the Council of 18 January 2006, must be interpreted as meaning that it: – requires that the public concerned have access to an urban planning decision, such as that at issue in the main proceedings, from the beginning of the authorisation procedure for the installation concerned, – does not allow the competent national authorities to refuse the public concerned access to such a decision by relying on the protection of the confidentiality of commercial or industrial information where such confidentiality is provided for by national or European Union law to protect a legitimate economic interest, and – does not preclude the possibility of rectifying, during the administrative procedure at second instance, an unjustified refusal to make available to the public concerned an urban planning decision, such as that at issue in the main proceedings, during the administrative procedure at first instance, provided that all options and solutions remain possible and that regularisation at that stage of the procedure still allows that public effectively to influence the outcome of the decision–making process, this being a matter for the national court to determine. 3. Article 15a of Directive 96/61, as amended by Regulation No 166/2006, must be interpreted as meaning that members of the public concerned must be able, in the context of the action provided for by that provision, to ask the court or competent independent and impartial body established by law to order interim measures such as temporarily to suspend the application of a permit, within the meaning of Article 4 of that directive, pending the final decision. 4. A decision of a national court, taken in the context of national proceedings implementing the obligations resulting from Article 15a of Directive 96/61, as amended by Regulation No 166/2006, and from Article 9(2) and (4) of the Convention on access to information, public participation in decision–making and access to justice in environmental matters, signed in Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005, which annuls a permit granted in infringement of the provisions of that directive is not capable, in itself, of constituting an unjustified interference with the developer’s right to property enshrined in Article 17 of the Charter of Fundamental Rights of the European Union. |
Article 18 of the Charter: Right to asylum
Case number | C–924/19 PPU |
Case name | Országos Idegenrendészeti Főigazgatóság Dél–alföldi Regionális Igazgatóság |
Document | Judgment ECLI:EU:C:2020:367 |
Date | 14/05/2020 |
Source of the question referred for a preliminary ruling | Szegedi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Szeged, Hungary) |
Name of the parties | FMS and Others v Országos Idegenrendészeti Főigazgatóság Dél–alföldi Regionális Igazgatóság and Országos Idegenrendészeti Főigazgatóság |
Subject matter | Area of freedom, security and justice; asylum policy; border control; rejection of asylum applications |
Key words | FMS – Asylum and immigration policy – Application for international protection – Grounds of inadmissibility – Subsequent applications – Border procedures – Detention – Whether lawful – Effective remedies – Detention – Whether lawful – Right to an effective remedy – Charter of Fundamental Rights of the European Union – Principle of primacy of EU law |
Question referred for a preliminary ruling | (1) [New ground of inadmissibility] Must the provisions on inadmissible applications in Article 33 of [Directive 2013/32] be interpreted as precluding a Member State’s legislation under which an application made in the context of the asylum procedure is inadmissible when the applicant reached Hungary via a country where he or she was not exposed to persecution or a risk of serious harm, or in which a sufficient degree of protection is guaranteed? (2) [Conduct of an asylum procedure] (a) Must Article 6 and Article 38(4) of [Directive 2013/32], and recital 34 thereof, which imposes an obligation to examine applications for international protection, read in the light of Article 18 of the Charter, be interpreted as meaning that the competent asylum authority of a Member State must ensure that the applicant has the opportunity to initiate the asylum procedure if it has not examined the substance of the application for asylum by relying on the ground of inadmissibility mentioned in [Question 1] and has subsequently ordered the return of the applicant to a third country which has however refused to readmit him or her [to its territory]? (b) If the answer to Question 2(a) is in the affirmative, what is the exact extent of that obligation? Does it imply an obligation guaranteeing the possibility to submit a new application for asylum, thereby excluding the negative consequences of subsequent applications referred to in Article 33(2)(d) and Article 40 of [Directive 2013/32], or does it imply the automatic start or conduct of the asylum procedure? (c) If the answer to Question 2(a) is in the affirmative, taking account also of Article 38(4) of [Directive 2013/32], can the Member State – the factual situation remaining unchanged – re–examine the inadmissibility of the application in the context of that new procedure (thereby giving it the possibility of applying any type of procedure provided for in Chapter III, for example reliance once again on a ground of inadmissibility) or must it examine the substance of the application for asylum in the light of the country of origin? (d) Does it follow from Article 33(1) and (2)(b) and (c) and Articles 35 and 38 of [Directive 2013/32], read in the light of Article 18 of the Charter, that readmission by a third country is one of the cumulative conditions for the application of a ground of inadmissibility, that is to say, for the adoption of a decision based on such a ground, or is it sufficient to verify that that condition is satisfied at the time of the enforcement of such a decision? (3) [Transit zone as a place of detention in the context of an asylum procedure] [Question 3 is relevant] if, in accordance with the answer to Question 2, an asylum procedure must be conducted. (a) Must Article 43 of [Directive 2013/32] be interpreted as precluding legislation of a Member State under which the applicant may be detained in a transit zone for more than four weeks? b) Must Article 2(h) of [Directive 2013/33], applicable pursuant to Article 26 of [Directive 2013/32], read in the light of Article 6 and Article 52(3) of the Charter, be interpreted as meaning that accommodation in a transit zone in circumstances such as those in the main proceedings (a zone which an applicant cannot lawfully leave on a voluntary basis regardless of his destination) for a period exceeding the four–week period referred to in Article 43 of [Directive 2013/32] constitutes detention? (c) Is the fact that the detention of the applicant for a period exceeding the four–week period referred to in Article 43 of [Directive 2013/32] takes place only because he cannot meet his needs (accommodation and food) due to a lack of material resources to cover those needs compatible with Article 8 of [Directive 2013/33], applicable pursuant to Article 26 of [Directive 2013/32]? (d) Is the fact that (i) accommodation which constitutes de facto detention for a period exceeding the four–week period referred to in Article 43 of [Directive 2013/32] has not been ordered by a detention order, (ii) no guarantee that the lawfulness of the detention and its continuation may be challenged before the courts has been provided, (iii) the de facto detention takes place without any examination of the necessity or proportionality of that measure, or whether there are any alternative measures and (iv) the exact duration of the de facto detention is not fixed, including the date on which it ends, compatible with Articles 8 and 9 of [Directive 2013/33], applicable pursuant to Article 26 of [Directive 2013/32]? (e) Can Article 47 of the Charter be interpreted as meaning that, when a manifestly unlawful detention is brought for consideration before a court of a Member State, that court may, as an interim measure, until the administrative proceedings come to an end, require the authority to designate for the benefit of the third–country national a place of stay outside the transit zone which is not a place of detention? (4) [Transit zone as place of detention in the context of an asylum procedure] [Question 4 is relevant] if, in accordance with the answer to Question 2, there is a need to conduct not an asylum procedure but a procedure within the field of competence of the Aliens Police: (a) Must recitals 17 and 24 and Article 16 of [Directive 2008/115], read in the light of Article 6 and Article 52(3) of the Charter, be interpreted as meaning that accommodation in a transit zone in circumstances such as those in the main proceedings (a zone which an applicant cannot lawfully leave on a voluntary basis regardless of his destination) constitutes deprivation of liberty for the purposes of those provisions? (b) Is the fact that the detention of an applicant, national of a third country, takes place solely because he is subject to a return order and cannot meet his needs (accommodation and food) due to a lack of material resources to cover those needs compatible with recital 16 and Article 15(1) of [Directive 2008/115], read in the light of Articles 6 and 52(3) of the Charter? (c) Is the fact that (i) accommodation which constitutes de facto detention has not been ordered by a detention order, (ii) no guarantee that the lawfulness of the detention and its continuation may be challenged before the courts has been provided and (iii) the de facto detention takes place without any examination of the necessity or proportionality of that measure, or whether there are any alternative measures, compatible with recital 16 and Article 15(2) of [Directive 2008/115], read in the light of Articles 6, 47 and Article 52(3) of the Charter? (d) Can Article 15(1) and (4) to (6) and recital 16 of [Directive 2008/115], read in the light of Articles 1, 4, 6 and 47 of the Charter, be interpreted as precluding detention from taking place without its exact duration being fixed, including the date on which it ends? (e) Can EU law be interpreted as meaning that, when a manifestly unlawful detention is brought for consideration before a court of a Member State, that court may, as an interim measure, until the administrative proceedings come to an end, require the authority to designate for the benefit of the third–country national a place of stay outside the transit zone which is not a place of detention? (5) [Effective judicial protection with regard to the decision amending the country of return] Must Article 13 of [Directive 2008/115], under which a third–country national is to be afforded an effective remedy to appeal against or seek review of ‘decisions related to return’, read in the light of Article 47 of the Charter, be interpreted as meaning that, where the remedy provided for under domestic law is not effective, a court must review the application lodged against the decision amending the country of origin at least once?’ |
Decision | 1. Article 13 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 Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding legislation of a Member State under which the amendment by an administrative authority of the country of destination stated in an earlier return decision can be contested by the third–country national concerned only by means of an action brought before an administrative authority, without a subsequent judicial review of the decision of that authority being guaranteed. In such a situation, the principle of primacy of EU law and the right to effective judicial protection, guaranteed by Article 47 of the Charter of Fundamental Rights, must be interpreted as requiring the national court dealing with an action contesting the legality, under EU law, of the return decision consisting in such an amendment of the country of destination to declare that it has jurisdiction to hear that action. 2. Article 33 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 must be interpreted as precluding national legislation which allows an application for international protection to be rejected as inadmissible on the ground that the applicant arrived on the territory of the Member State concerned via a State in which that person was not exposed to persecution or a risk of serious harm, within the meaning of the national provision transposing Article 15 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, or in which a sufficient degree of protection is guaranteed. 3. Directive 2013/32, read in conjunction with Article 18 of the Charter of Fundamental Rights of the European Union and the principle of sincere cooperation arising under Article 4(3) TEU must be interpreted as meaning that, when an application for asylum has been the subject of a rejection decision that was confirmed by a judicial decision that became final before the incompatibility of that rejection with EU law was found, the determining authority, within the meaning of Article 2(f) of Directive 2013/32, is not required to re–examine that application ex officio. Article 33(2)(d) of Directive 2013/32 must be interpreted as meaning that the existence of a judgment of the Court finding that national legislation which allows an application for international protection to be rejected as inadmissible on the ground that the applicant arrived on the territory of the Member State concerned via a State in which he or she was not exposed to persecution or to a risk of serious harm or in which a sufficient degree of protection is guaranteed is incompatible with EU law constitutes a new element relating to the examination of an application for international protection, within the meaning of that provision. Furthermore, that provision is not applicable to a subsequent application, within the meaning of Article 2(q) of that directive, where the determining authority finds that the definitive rejection of the earlier application is contrary to EU law. Such a finding must necessarily be made by that authority when that incompatibility arises from a judgment of the Court or was established, as an ancillary finding, by a national court. 4. Directive 2008/115 and 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 must be interpreted as meaning that the obligation imposed on a third–country national to remain permanently in a transit zone the perimeter of which is restricted and closed, within which that national’s movements are limited and monitored, and which he or she cannot legally leave voluntarily, in any direction whatsoever, appears to be a deprivation of liberty, characterised by ‘detention’ within the meaning of those directives. 5. Article 43 of Directive 2013/32 must be interpreted as not authorising the detention of an applicant for international protection in a transit zone for a period of more than four weeks. 6. Articles 8 and 9 of Directive 2013/33 must be interpreted as precluding, first, an applicant for international protection being detained on the sole ground that he or she is unable to provide for his or her needs; second, such detention taking place without a reasoned decision ordering the detention having first been adopted and without the necessity and proportionality of such a measure having been examined; and, third, there being no judicial review of the lawfulness of the administrative decision ordering the detention of that applicant. Conversely, Article 9 of that directive must be interpreted as not requiring Member States to set a maximum period for continuing detention provided that their national law guarantees that the detention lasts only so long as the ground on which it was ordered continues to apply and that the administrative procedures linked with that ground are carried out diligently. 7. Article 15 of Directive 2008/115 must be interpreted as precluding, first, a third–country national being detained for the sole reason that he or she is the subject of a return decision and is unable to provide for his or her needs; second, such detention taking place without a reasoned decision ordering detention having first been adopted and without the necessity and proportionality of such a measure having been examined; third, there being no judicial review of the lawfulness of the administrative decision ordering detention; and, fourth, such detention being capable of exceeding 18 months and being maintained when the removal arrangements are no longer in progress or are no longer being executed with due diligence. 8. The principle of primacy of EU law and the right to effective judicial protection, guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as requiring the national court, in the absence of a national provision providing for judicial review of the lawfulness of an administrative decision ordering the detention of applicants for international protection or of third–country nationals whose applications for asylum have been rejected, to declare that it has jurisdiction to rule on the lawfulness of such detention and permit that court to release the persons concerned immediately if it considers that such detention constitutes detention contrary to EU law. Article 26 of Directive 2013/33 must be interpreted as requiring that an applicant for international protection whose detention, which is held to be unlawful, has come to an end may rely, before the court with jurisdiction under national law, on his or her right to receive either a financial allowance enabling that applicant to house himself or herself, or housing in kind, as that court has, under EU law, the possibility to grant interim relief pending its final decision. The principle of primacy of EU law and the right to effective judicial protection, guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as requiring the national court, in the absence of a national provision providing for judicial review of the right to housing, within the meaning of Article 17 of Directive 2013/33, to declare that it has jurisdiction to hear and determine the action seeking to guarantee such a right. |
Case number | C–180/17 |
Case name | Staatssecretaris van Veiligheid en Justitie (suspensory effect of the appeal) |
Document | Judgment ECLI:EU:C:2018:775 |
Date | 26/09/2018 |
Source of the question referred for a preliminary ruling | Raad van State (Council of State, Netherlands) |
Name of the parties | X and Y v Staatssecretaris van Veiligheid en Justitie |
Subject matter | Area of freedom, security and justice; asylum policy; border control; suspensive effect of an appeal; refusal of an application for international protection |
Key words | X and Y – Common policy on asylum and subsidiary protection – Charter of Fundamental Rights of the European Union – Right to an effective remedy – Principle of non–refoulement – Decision rejecting an application for international protection and imposing an obligation to return – National legislation providing for a second level of jurisdiction – Automatic suspensory effect limited to the action at first instance |
Question referred for a preliminary ruling | ‘(1) Must Article 13 of Directive 2008/115, read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter, be interpreted as meaning that under EU law, if national law makes provision to that effect, in proceedings challenging a decision which includes a return decision within the meaning of Article 3(4) of Directive 2008/115, the legal remedy of an appeal has automatic suspensory effect where the third–country national claims that enforcement of the return decision would result in a serious risk of infringement of the principle of non–refoulement? In other words, in such a case, should the expulsion of the third–country national concerned be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the third–country national concerned being required to submit a separate request to that effect? (2) Must Article 46 of Directive 2013/32, read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter, be interpreted as meaning that, under EU law, if national law makes provision to that effect, in proceedings relating to the rejection of an application for the granting of international protection, the legal remedy of an appeal has automatic suspensory effect? In other words, in such a case, should the expulsion of an applicant be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the applicant concerned being required to submit a separate request to that effect? (3) In order for there to be such automatic suspensory effect, is it still relevant whether the application for international protection which prompted the procedures of bringing an action in law and a subsequent appeal has been rejected on one of the grounds mentioned in Article 46(6) of Directive 2013/32? Alternatively, does that requirement apply for all categories of asylum decisions as set out in that directive?’ |
Decision | Article 46 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 and Article 13 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 18, 19(2) and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation which, whilst making provision for appeals against judgments delivered at first instance upholding a decision rejecting an application for international protection and imposing an obligation to return, does not confer on that remedy automatic suspensory effect even in the case where the person concerned invokes a serious risk of infringement of the principle of non–refoulement. |
Case number | C–175/17 |
Case name | Belastingdienst v Toeslagen (suspensory effect of the appeal) |
Document | Judgment ECLI:EU:C:2018:776 |
Date | 26/09/2018 |
Source of the question referred for a preliminary ruling | Raad van State (Council of State, Netherlands) |
Name of the parties | X v Belastingdienst/Toeslagen |
Subject matter | Area of freedom, security and justice; asylum policy; border control; suspensive effect of an appeal; reimbursement of subsidies for rent and health care |
Key words | X – Common policy on asylum and subsidiary protection – Charter of Fundamental Rights of the European Union – Right to an effective remedy – Principle of non–refoulement – Decision rejecting an application for asylum and imposing an obligation to return – National legislation providing for a second level of jurisdiction – Automatic suspensory effect limited to the action at first instance |
Question referred for a preliminary ruling | ‘(1) Must Article 13 of Directive 2008/115 …, read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter, be interpreted as meaning that under EU law, if national law makes provision to that effect, in proceedings challenging a decision which includes a return decision within the meaning of Article 3(4) of that directive, the legal remedy of an appeal has automatic suspensory effect where the third–country national claims that enforcement of the return decision would result in a serious risk of infringement of the principle of non–refoulement? In other words, in such a case, should the expulsion of the third–country national concerned be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the third–country national concerned being required to submit a separate request to that effect? (2) Must Article 39 of Directive 2005/85 …, read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter be interpreted as meaning that, under EU law, if national law makes provision to that effect, in proceedings relating to the rejection of an application for asylum within the meaning of Article 2 of that directive, the legal remedy of an appeal has automatic suspensory effect? In other words, in such a case, should the expulsion of the asylum–seeker concerned be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the asylum–seeker concerned being required to submit a separate request to that effect?’ |
Decision | Article 39 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, and Article 13 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 18, 19(2) and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation which, whilst making provision for appeals against judgments delivered at first instance upholding a decision rejecting an application for international protection and imposing an obligation to return, does not confer on that remedy automatic suspensory effect even in the case where the person concerned invokes a serious risk of infringement of the principle of non–refoulement. |
Case number | C–391/16 |
Case name | M (Revocation of refugee status) |
Document | Judgment ECLI:EU:C:2019:403 |
Date | 14/05/2019 |
Source of the question referred for a preliminary ruling | Request from the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic) in Case C‑391/16, and from the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings, Belgium) in Cases C‑77/17 and C‑78/17 |
Name of the parties | M v Ministerstvo vnitra and X., and X. v Commissaire général aux réfugiés et aux apatrides |
Subject matter | Area of freedom, security and justice; asylum policy; withdrawal of refugee status |
Key words | M – Area of freedom, security and justice – Asylum policy – International protection – Refugee status – Refusal to grant or revocation of refugee status in the event of danger to the security or the community of the host Member State – Validity – Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | Joined Cases: C–391/16 (2) If the answer to [the first question] is yes, is Article 14(5) of Directive 2011/95, thus interpreted, compatible with Article 18 of [the Charter] and Article 78(1) [TFEU], which provide, inter alia, that secondary EU legislation must comply with the Geneva Convention, the exclusion clause laid down in Article 1(F) of the Convention being exhaustively worded and requiring strict interpretation? (3) If the answer to [the first question] is no, must Article 14(5) of [Directive 2011/95] be interpreted as introducing a ground for refusing refugee status which is not provided for in the Geneva Convention, compliance with which is required by Article 18 of [the Charter] and Article 78(1) [TFEU]? (4) If the answer to [the third question] is yes, is Article 14(5) of [Directive 2011/95] compatible with Article 18 of [the Charter] and Article 78(1) [TFEU], which provide, inter alia, that secondary EU legislation must comply with the Geneva Convention, as it introduces a ground for refusing refugee status without any consideration of fear of persecution, as required by Article 1(A) of the Geneva Convention? (5) If the answer to [the first and third questions] is no, how can Article 14(5) of [Directive 2011/95] be interpreted in a manner consistent with Article 18 of [the Charter] and Article 78(1) [TFEU], which provide, inter alia, that secondary EU legislation must comply with the Geneva Convention?’ and case C–78/17 (2) If the answer to [the first question] is yes, is Article 14(4) of Directive 2011/95, thus interpreted, compatible with Article 18 of [the Charter] and Article 78(1) [TFEU], which provide, inter alia, that secondary EU legislation must comply with the Geneva Convention, the exclusion clause laid down in Article 1(F) of the Convention being exhaustively worded and requiring strict interpretation? (3) If the answer to [the first question] is no, must Article 14(4) of [Directive 2011/95] be interpreted as introducing a ground for withdrawing refugee status which is not provided for in the Geneva Convention, compliance with which is required by Article 18 of [the Charter] and Article 78(1) [TFEU]? (4) If the answer to [the third question] is yes, is Article 14(4) of [Directive 2011/95] compatible with Article 18 of [the Charter] and Article 78(1) [TFEU], which provide, inter alia, that secondary EU legislation must comply with the Geneva Convention, as it introduces a ground for withdrawing refugee status for which no provision is made in the Geneva Convention, and for which no basis can be found in the Convention? (5) If the answer to [the first and third questions] is no, how can Article 14(4) of [Directive 2011/95] be interpreted in a manner consistent with Article 18 of [the Charter] and Article 78(1) [TFEU], which provide, inter alia, that secondary EU legislation must comply with the Geneva Convention?’ |
Decision | Consideration of Article 14(4) to (6) 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, has disclosed no factor of such a kind as to affect the validity of those provisions in the light of Article 78(1) TFEU and Article 18 of the Charter of Fundamental Rights of the European Union. |
Case number | C–181/16 |
Case name | Gnandi |
Document | Judgment ECLI:EU:C:2018:465 |
Date | 19/06/2018 |
Source of the question referred for a preliminary ruling | Conseil d’État (Council of State, Belgium) |
Name of the parties | Sadikou Gnandi v État belge |
Subject matter | Area of freedom, security and justice; asylum policy; illegal residence |
Key words | Gnandi – Area of freedom, security and justice – Return of illegally staying third–country nationals – Concept of ‘illegal stay’ – Adoption of a return decision before resolution of an appeal against the decision of the determining authority rejecting the application for international protection – Charter of Fundamental Rights of the European Union – Principle of non–refoulement – Right to an effective remedy – Authorisation to remain in a Member State |
Question referred for a preliminary ruling | ‘Must Article 5 of Directive [2008/115], which requires Member States to respect the principle of non–refoulement when they are implementing that directive, and the right to an effective remedy provided for under Article 13(1) of that directive and under Article 47 of the [Charter] be interpreted as precluding the adoption of a return decision, as provided for under Article 6 of Directive [2008/115] and under Article 52/3(1) of the [Law of 15 December 1980] and Article 75(2) of the Royal Decree of 8 October 1981 on the entry to Belgian territory, stay, residence and removal of foreign nationals, immediately after the rejection of the asylum application by the [CGRA] and therefore before the legal remedies available against that rejection decision can be exhausted and before the asylum procedure can be definitively concluded?’ |
Decision | 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 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, and in the light of the principle of non–refoulement and the right to an effective remedy, enshrined in Article 18, Article 19(2) and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding the adoption of a return decision, under Article 6(1) of Directive 2008/115, in respect of a third–country national who has applied for international protection, immediately after the rejection of that application by the determining authority or together in the same administrative act, and thus before the conclusion of any appeal proceedings brought against that rejection, provided, inter alia, that the Member State concerned ensures that all the legal effects of the return decision are suspended pending the outcome of the appeal, that that applicant is entitled, during that period, to benefit from the rights arising under Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, and that he is entitled to rely on any change in circumstances that occurred after the adoption of the return decision which may have a significant bearing on the assessment of his situation under Directive 2008/115, and in particular under Article 5 thereof, those being matters for the referring court to determine |
Case number | C–411/10 |
Case number | N. S. and others |
Document | Judgment ECLI:EU:C:2011:865 |
Date | 21/12/2011 |
Source of the question referred for a preliminary ruling | In Joined Cases C–411/10 and C–493/10 from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) and High Court (Ireland) |
Name of the parties | |
Subject matter | Area of freedom, security and justice; asylum policy: safe country; sending asylum seekers back to Greece |
Key words | Asylum Policy – Principles –Fundamental rights –Implementation of European Union law –Prohibition of inhuman or degrading treatment –Common European Asylum System –Regulation (EC) No 343/2003 –Concept of ‘safe countries’ –Transfer of an asylum seeker to the Member State responsible –Obligation –Rebuttable presumption of compliance, by that Member State, with fundamental right |
Questions referred for a preliminary ruling | Joined case: C–411/10 If Question 1 is answered in the affirmative: (2) Is the duty of a Member State to observe EU fundamental rights (including the rights set out in Articles 1, 4, 18, 19(2) and 47 of the Charter) discharged where that State sends the asylum seeker to the Member State which Article 3(1) [of Regulation No 343/2003] designates as the responsible State in accordance with the criteria set out in Chapter III of the regulation (‘the responsible State’), regardless of the situation in the responsible State? (3) In particular, does the obligation to observe EU fundamental rights preclude the operation of a conclusive presumption that the responsible State will observe (i) the claimant’s fundamental rights under European Union law; and/ or (ii) the minimum standards imposed by Directives 2003/9 …, 2004/83 … and 2005/85 …? (4) Alternatively, is a Member State obliged by European Union law, and, if so, in what circumstances, to exercise the power under Article 3(2) of the Regulation to examine and take responsibility for a claim, where transfer to the responsible State would expose the [asylum] claimant to a risk of violation of his fundamental rights, in particular the rights set out in Articles 1, 4, 18, 19(2) and/or 47 of the Charter, and/or to a risk that the minimum standards set out in Directives [2003/9, 2004/83 and 2005/85] will not be applied to him? (5) Is the scope of the protection conferred upon a person to whom Regulation [No 343/2003] applies by the general principles of European Union law, and, in particular, the rights set out in Articles 1, 18 and 47 of the Charter wider than the protection conferred by Article 3 of the ECHR? (6) Is it compatible with the rights set out in Article 47 of the Charter for a provision of national law to require a court, for the purpose of determining whether a person may lawfully be removed to another Member State pursuant to Regulation [No 343/2003], to treat that Member State as a State from which the person will not be sent to another State in contravention of his rights pursuant to the [ECHR] or his rights pursuant to the [Geneva Convention] and [the 1967 Protocol]? (7) In so far as the preceding questions arise in respect of the obligations of the United Kingdom, are the answers to [the second to sixth questions] qualified in any respect so as to take account of the Protocol (No 30)?’ and case C–493/10 (2) If the answer is yes, and if the receiving Member State is found not to be in compliance with one or more of those provisions, is the transferring Member Sate obliged to accept responsibility for examining the application under Article 3(2) of … Regulation (EC) No 343/2003?’ |
Decision | 1. The decision adopted by a Member State on the basis of Article 3(2) of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third–country national, whether to examine an asylum application which is not its responsibility according to the criteria laid down in Chapter III of that Regulation, implements European Union law for the purposes of Article 6 TEU and/or Article 51 of the Charter of Fundamental Rights of the European Union. 2. European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union. Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Member States, including the national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision. Subject to the right itself to examine the application referred to in Article 3(2) of Regulation No 343/2003, the finding that it is impossible to transfer an applicant to another Member State, where that State is identified as the Member State responsible in accordance with the criteria set out in Chapter III of that regulation, entails that the Member State which should carry out that transfer must continue to examine the criteria set out in that chapter in order to establish whether one of the following criteria enables another Member State to be identified as responsible for the examination of the asylum application. The Member State in which the asylum seeker is present must ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, the first mentioned Member State must itself examine the application in accordance with the procedure laid down in Article 3(2) of Regulation No 343/2003. 3. Articles 1, 18 and 47 of the Charter of Fundamental Rights of the European Union do not lead to a different answer. 4. In so far as the preceding questions arise in respect of the obligations of the United Kingdom of Great Britain and Northern Ireland, the answers to the second to sixth questions referred in Case C–411/10 do not require to be qualified in any respect so as to take account of Protocol (No 30) on the application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom. |
Article 19 of the Charter: Protection in the event of removal, expulsion or extradition
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–897/19 PPU |
Case name | Ruska Federacija |
Document | Judgment ECLI:EU:C:2020:262 |
Date | 02/04/2020 |
Source of the question referred for a preliminary ruling | Vrhovni sud (Supreme Court, Croatia) |
Name of the parties | I. N., intervening parties Ruska Federacija |
Subject matter | Area of freedom, security and justice – Citizenship of the Union; non–discrimination on grounds of nationality |
Key words | I.N. – EEA Agreement – Non–discrimination – Freedom to provide services – Scope – Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis – Agreement on the surrender procedure between the Member States of the European Union and Iceland and Norway – Extradition to a third State of an Icelandic national – Protection of a Member State’s nationals against extradition – No equivalent protection for nationals of another State – Icelandic national who was granted asylum under national law before acquiring Icelandic citizenship – Restriction of freedom of movement – Justification based on the prevention of impunity – Proportionality – Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | ‘(1) Must Article 18 TFEU be interpreted as meaning that a Member State of the European Union which gives a ruling on the extradition to a third State of a national of a State that is not a Member State of the European Union but is a Member State of the Schengen area is required to inform that Member State of the Schengen area which granted nationality to that person of the extradition request? (2) If the answer to the preceding question is in the affirmative and the Member State of the Schengen area has requested the surrender of that person in order to conduct the proceedings in respect of which extradition is requested, must that person be surrendered to that State, in accordance with the [Agreement on the surrender procedure]?’ |
Decision | EU law, in particular Article 36 of the Agreement on the European Economic Area of 2 May 1992 and Article 19(2) of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, when a Member State, to which a national of a Member State of the European Free Trade Association (EFTA) – which is a party to the Agreement on the European Economic Area and with which the European Union has concluded a surrender agreement – has moved, receives an extradition request from a third State pursuant to the European Convention on Extradition, signed at Paris on 13 December 1957, and when that national was granted asylum by that EFTA State – before he or she acquired the nationality of that State – precisely on account of the criminal proceedings brought against him or her in the State which issued the request for extradition, it is for the competent authority of the requested Member State to verify that the extradition would not infringe the rights covered by Article 19(2) of the Charter of Fundamental Rights, the grant of asylum being a particularly substantial piece of evidence in the context of that verification. Before considering executing the request for extradition, the requested Member State is obliged, in any event, to inform that same EFTA State and, should that State so request, surrender that national to it, in accordance with the provisions of the surrender agreement, provided that that EFTA State has jurisdiction, pursuant to its national law, to prosecute that national for offences committed outside its national territory. |
Case number | C–233/19 |
Case name | CPAS de Liège |
Document | Judgment ECLI:EU:C:2020:757 |
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 | B. v Centre public d'action sociale de Líège |
Subject matter | Area of freedom, security and justice; asylum policy; withdrawal of social assistance |
Key words | B – CPAS – Area of freedom, security and justice – Return of illegally staying third–country nationals – Third–country national suffering from a serious illness – Return decision – Judicial remedy – Automatic suspensory effect – Conditions – Grant of social assistance – Charter of Fundamental Rights of the European Union) |
Question referred for a preliminary ruling | ‘Must Articles 5 and 13 of Directive 2008/115 … 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, read in the light of the judgment [of 18 December 2014, Abdida (C‑562/13, EU:C:2014:2453)], be interpreted as endowing with suspensive effect an appeal brought against a decision ordering a third–country national suffering from a serious illness to leave the territory of a Member State, in the case where the appellant claims that the enforcement of that decision is liable to expose him or her to a serious risk of grave and irreversible deterioration in his or her state of health: – without it being necessary to examine the appeal, its mere introduction being sufficient to suspend the enforcement of the decision ordering the third–country national to leave the territory of that Member State; or – following a marginal review as to whether there is an arguable complaint, lack of grounds for inadmissibility or whether the action brought before the Council for asylum and immigration proceedings is manifestly unfounded; or – following a full and comprehensive judicial review carried out by the labour courts in order to determine whether the enforcement of that decision is indeed liable to expose the appellant to a serious risk of grave and irreversible deterioration in his or her state of health?’ |
Decision | Articles 5 and 13 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 Article 19(2) and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a national court, hearing a dispute on social assistance, the outcome of which is linked to the possible suspension of the effects of a return decision taken in respect of a third–country national suffering from a serious illness, must hold that an action for annulment and suspension of that decision leads to automatic suspension of that decision, even though suspension of that decision does not result from the application of national legislation, where: – that action contains arguments seeking to establish that the enforcement of that decision would expose that third–country national to a serious risk of grave and irreversible deterioration in his or her state of health, which does not appear to be manifestly unfounded, and that – that legislation does not provide for any other remedy, governed by precise, clear and foreseeable rules, which automatically entail the suspension of such a decision. |
Case number | C–180/17 |
Case name | Staatssecretaris van Veiligheid en Justitie (suspensory effect of the appeal) |
Document | Judgment ECLI:EU:C:2018:775 |
Date | 26/09/2018 |
Source of the question referred for a preliminary ruling | Raad van State (Council of State, Netherlands) |
Name of the parties | X and Y v Staatssecretaris van Veiligheid en Justitie |
Subject matter | Area of freedom, security and justice; asylum policy; border control; suspensive effect of an appeal; refusal of an application for international protection |
Key words | X and Y – Common policy on asylum and subsidiary protection – Charter of Fundamental Rights of the European Union – Right to an effective remedy – Principle of non–refoulement – Decision rejecting an application for international protection and imposing an obligation to return – National legislation providing for a second level of jurisdiction – Automatic suspensory effect limited to the action at first instance |
Question referred for a preliminary ruling | ‘(1) Must Article 13 of Directive 2008/115, read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter, be interpreted as meaning that under EU law, if national law makes provision to that effect, in proceedings challenging a decision which includes a return decision within the meaning of Article 3(4) of Directive 2008/115, the legal remedy of an appeal has automatic suspensory effect where the third–country national claims that enforcement of the return decision would result in a serious risk of infringement of the principle of non–refoulement? In other words, in such a case, should the expulsion of the third–country national concerned be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the third–country national concerned being required to submit a separate request to that effect? (2) Must Article 46 of Directive 2013/32, read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter, be interpreted as meaning that, under EU law, if national law makes provision to that effect, in proceedings relating to the rejection of an application for the granting of international protection, the legal remedy of an appeal has automatic suspensory effect? In other words, in such a case, should the expulsion of an applicant be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the applicant concerned being required to submit a separate request to that effect? (3) In order for there to be such automatic suspensory effect, is it still relevant whether the application for international protection which prompted the procedures of bringing an action in law and a subsequent appeal has been rejected on one of the grounds mentioned in Article 46(6) of Directive 2013/32? Alternatively, does that requirement apply for all categories of asylum decisions as set out in that directive?’ |
Decision | Article 46 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 and Article 13 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 18, 19(2) and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation which, whilst making provision for appeals against judgments delivered at first instance upholding a decision rejecting an application for international protection and imposing an obligation to return, does not confer on that remedy automatic suspensory effect even in the case where the person concerned invokes a serious risk of infringement of the principle of non–refoulement. |
Case number | C–175/17 |
Case name | Belastingdienst v Toeslagen (suspensory effect of the appeal) |
Document | Judgment ECLI:EU:C:2018:776 |
Date | 26/09/2018 |
Source of the question referred for a preliminary ruling | Raad van State (Council of State, Netherlands) |
Name of the parties | X v Belastingdienst/Toeslagen |
Subject matter | Area of freedom, security and justice; asylum policy; border control; suspensive effect of an appeal; reimbursement of subsidies for rent and health care |
Key words | X – Common policy on asylum and subsidiary protection – Charter of Fundamental Rights of the European Union – Right to an effective remedy – Principle of non–refoulement – Decision rejecting an application for asylum and imposing an obligation to return – National legislation providing for a second level of jurisdiction – Automatic suspensory effect limited to the action at first instance |
Question referred for a preliminary ruling | ‘(1) Must Article 13 of Directive 2008/115 …, read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter, be interpreted as meaning that under EU law, if national law makes provision to that effect, in proceedings challenging a decision which includes a return decision within the meaning of Article 3(4) of that directive, the legal remedy of an appeal has automatic suspensory effect where the third–country national claims that enforcement of the return decision would result in a serious risk of infringement of the principle of non–refoulement? In other words, in such a case, should the expulsion of the third–country national concerned be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the third–country national concerned being required to submit a separate request to that effect? (2) Must Article 39 of Directive 2005/85 …, read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter be interpreted as meaning that, under EU law, if national law makes provision to that effect, in proceedings relating to the rejection of an application for asylum within the meaning of Article 2 of that directive, the legal remedy of an appeal has automatic suspensory effect? In other words, in such a case, should the expulsion of the asylum–seeker concerned be suspended during the period for lodging an appeal, or, if an appeal has been lodged, until a decision has been delivered on that appeal, without the asylum–seeker concerned being required to submit a separate request to that effect?’ |
Decision | Article 39 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, and Article 13 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 18, 19(2) and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation which, whilst making provision for appeals against judgments delivered at first instance upholding a decision rejecting an application for international protection and imposing an obligation to return, does not confer on that remedy automatic suspensory effect even in the case where the person concerned invokes a serious risk of infringement of the principle of non–refoulement. |
Case number | C–473/15 |
Case name | Peter Schotthöfer & Florian Steiner |
Document | Order ECLI:EU:C:2017:633 |
Date | 06/09/2017 |
Source of the question referred for a preliminary ruling | Bezirksgericht Linz (District Court, Linz, Austria) |
Name of the parties | Peter Schotthöfer & Florian Steiner GbR v Eugenu Adelsmayru |
Subject matter | Citizenship of the Union: rights of entry and residence; non–discrimination on grounds of nationality |
Key words | Schotthöfer – Steiner – Extradition of a national of a Member State of the European Union to a third State where he risks being subjected to the death penalty – Citizenship of the Union – Charter of Fundamental Rights of the European Union – Protection against extradition |
Question referred for a preliminary ruling | ‘(1) Is the principle of non–discrimination laid down in Article 18 TFEU to be interpreted as meaning that, where a Member State has laid down a provision in its legal system, such as Article 16(2) of the Basic Law of the Federal Republic of Germany, which prohibits the extradition of German citizens to non–Member States, the provision also applies to citizens of other Member States residing in the Member State at issue? (2) Are Articles 19(2) and 47 of [the Charter] to be interpreted as meaning that a Member State of the European Union must reject an application for extradition emanating from a non–Member State concerning an EU citizen residing in that Member State where the criminal proceedings from which the application for extradition arose and the decision rendered in absentia in the non–Member State did not respect the minimum standard of international law and the non–mandatory principles of the public order of the European Union (ordre public) or the right to a fair trial? (3) Lastly, is Article 50 of [the Charter] or the principle ne bis in idem secured in the case–law of the Court of Justice to be interpreted as precluding further prosecution by a non–Member State in the case of a first conviction in the non–Member State followed by the discontinuing of proceedings in a Member State of the European Union for lack of real grounds justifying prosecution? (4) In the event that one of the first three questions is answered in the affirmative, is, inter alia, Article 6 of [the Charter] (‘right to liberty’) to be interpreted as meaning that an EU citizen may not be held in custody for extradition where a non–Member State makes such an application for extradition?’ |
Decision | Article 19(2) of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that a request for extradition originating from a third country concerning a Union citizen who, in exercising his freedom of movement, leaves his Member State of origin in order to reside on the territory of another Member State, must be rejected by the latter Member State where that citizen runs a serious risk of being subjected to the death penalty in the event of extradition. |
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–181/16 |
Case name | Gnandi |
Document | Judgment ECLI:EU:C:2018:465 |
Date | 19/06/2018 |
Source of the question referred for a preliminary ruling | Conseil d’État (Council of State, Belgium) |
Name of the parties | Sadikou Gnandi v État belge |
Subject matter | Area of freedom, security and justice; asylum policy; illegal residence |
Key words | Gnandi – Area of freedom, security and justice – Return of illegally staying third–country nationals – Concept of ‘illegal stay’ – Adoption of a return decision before resolution of an appeal against the decision of the determining authority rejecting the application for international protection – Charter of Fundamental Rights of the European Union – Principle of non–refoulement – Right to an effective remedy – Authorisation to remain in a Member State |
Question referred for a preliminary ruling | ‘Must Article 5 of Directive [2008/115], which requires Member States to respect the principle of non–refoulement when they are implementing that directive, and the right to an effective remedy provided for under Article 13(1) of that directive and under Article 47 of the [Charter] be interpreted as precluding the adoption of a return decision, as provided for under Article 6 of Directive [2008/115] and under Article 52/3(1) of the [Law of 15 December 1980] and Article 75(2) of the Royal Decree of 8 October 1981 on the entry to Belgian territory, stay, residence and removal of foreign nationals, immediately after the rejection of the asylum application by the [CGRA] and therefore before the legal remedies available against that rejection decision can be exhausted and before the asylum procedure can be definitively concluded?’ |
Decision | 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 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, and in the light of the principle of non–refoulement and the right to an effective remedy, enshrined in Article 18, Article 19(2) and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding the adoption of a return decision, under Article 6(1) of Directive 2008/115, in respect of a third–country national who has applied for international protection, immediately after the rejection of that application by the determining authority or together in the same administrative act, and thus before the conclusion of any appeal proceedings brought against that rejection, provided, inter alia, that the Member State concerned ensures that all the legal effects of the return decision are suspended pending the outcome of the appeal, that that applicant is entitled, during that period, to benefit from the rights arising under Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, and that he is entitled to rely on any change in circumstances that occurred after the adoption of the return decision which may have a significant bearing on the assessment of his situation under Directive 2008/115, and in particular under Article 5 thereof, those being matters for the referring court to determine |
Case number | C–182/15 |
Case name | Petruhhin |
Document | Judgment ECLI:EU:C:2016:630 |
Date | 06/09/2016 |
Source of the question referred for a preliminary ruling | Augstākā tiesa (Supreme Court, Latvia) |
Name of the parties | Aleksei Petruhhin v Latvijas Republikas Ģenerālprokuratūra |
Subject matter | Citizenship of the Union: rights of entry and residence; Prohibition of discrimination on grounds of nationality; extradition request |
Key words | Petruhhin – Citizenship of the Union – Extradition to a third State of a national of a Member State who has exercised his right to freedom of movement – Scope of EU law – Protection of a Member State’s nationals against extradition – No protection for nationals of the other Member States – Restriction of freedom of movement – Justification based on the prevention of impunity – Proportionality – Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | ‘(1) Are the first paragraph of Article 18 TFEU and Article 21(1) TFEU to be interpreted as meaning that, in the event of extradition of a citizen of any Member State of the European Union to a non–Member State under an extradition agreement concluded between a Member State and a third country, the same level of protection must be guaranteed as is guaranteed to a citizen of the Member State in question? (2) In those circumstances, must the court of the Member State to which the request for extradition has been made apply the conditions for extradition of the Member State of which the person concerned is a citizen or that in which he has his habitual residence? (3) In cases in which extradition must be carried out without taking into consideration the specific level of protection established for the citizens of the State to which the request for extradition has been made, must the Member State to which the request for extradition has been made verify compliance with the safeguards established in Article 19 of the Charter, that is, that no one may be extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment? May such verification be limited to checking that the State requesting extradition is a party to the Convention against Torture or is it necessary to check the factual situation by taking into consideration the evaluation of that State carried out by the bodies of the Council of Europe?’ |
Decision | 1. Article 18 TFEU and Article 21 TFEU must be interpreted as meaning that, when a Member State to which a Union citizen, a national of another Member State, has moved receives an extradition request from a third State with which the first Member State has concluded an extradition agreement, it must inform the Member State of which the citizen in question is a national and, should that Member State so request, surrender that citizen to it, in accordance with the provisions 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, provided that that Member State has jurisdiction, pursuant to its national law, to prosecute that person for offences committed outside its national territory. 2. Where a Member State receives a request from a third State seeking the extradition of a national of another Member State, that first Member State must verify that the extradition will not prejudice the rights referred to in Article 19 of the Charter of Fundamental Rights of the European Union. |
Case number | C–239/14 |
Case name | Tall |
Document | Judgment ECLI:EU:C:2015:824 |
Date | 17/12/2015 |
Source of the question referred for a preliminary ruling | Tribunal du travail v Liègeu (Belgium) |
Name of the parties | Abdoulaye Amadou Tall v Centre public d’action sociale de Huy |
Subject matter | Area of freedom, security and justice; asylum policy; border control; withdrawal of social assistance |
Key words | Tall – Area of freedom, security and justice – Minimum standards on procedures in Member States for granting and withdrawing refugee status – Right to an effective remedy – Multiple asylum claims – Non–suspensory effect of an appeal against a decision of the competent national authority not to further examine a subsequent application for asylum – Social protection – Charter of Fundamental Rights of the European Union |
Question referred for a preliminary ruling | ‘According to Article 39/1 of the Law of 15 December 1980, read in conjunction with [the third subparagraph of Article 39/2(1), Article 39/76, point (d) of the second subparagraph of Article 39/82(4) and Article 57/6/2] of the same law, only appeals seeking annulment and suspension due to extreme urgency may be brought against a decision refusing to consider a multiple asylum claim. Given that in such an appeal the court does not have full jurisdiction to determine issues of fact and law, the appeal does not have suspensory effect and the applicant does not have the right of residence nor to material assistance while it is under consideration, are such appeals compatible with the requirements of Article 47 of the [Charter] and Article 39 of [Directive 2005/85] which lay down the right to an effective remedy?’ |
Decision | Article 39 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, read in the light of Articles 19(2) and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation which does not confer suspensory effect on an appeal brought against a decision, such as the one at issue in the main proceedings, not to further examine a subsequent application for asylum. |
Case number | C–562/13 |
Case name | Abdida |
Document | Judgment ECLI:EU:C:2014:2453 |
Date | 18/12/2014 |
Source of the question referred for a preliminary ruling | Cour du travail de Bruxelles (Belgium) |
Name of the parties | Centre public d’action sociale d’Ottignies–Louvain–La–Neuve v Moussi Abdidi |
Subject matter | Area, freedom, security and justice; asylum policy; border control; withdrawal of social assistance |
Key words | Abdida – Charter of Fundamental Rights of the European Union – Minimum standards for determining who qualifies for refugee status or subsidiary protection status – Person eligible for subsidiary protection – Torture or inhuman or degrading treatment or punishment of an applicant in the country of origin – More favourable standards – Applicant suffering from a serious illness – No appropriate treatment available in the country of origin – Return of illegally staying third–country nationals – Judicial remedy with suspensive effect – Safeguards pending return – Basic needs |
Question referred for a preliminary ruling | ‘(1) On a proper construction of [Directives 2004/83, 2005/85 and 2003/9], is a Member State which provides that a foreign national has the right to subsidiary protection for the purposes of Article 15(b) of [Directive 2004/83] if that person ‘suffers from an illness occasioning a real risk to his life or physical integrity or a real risk of inhuman or degrading treatment where there is no appropriate treatment in his country of origin’ under an obligation to: – provide for a remedy with suspensive effect in respect of the administrative decision refusing leave to remain and/or subsidiary protection, and ordering the person concerned to leave the territory of that State, – make provision under its social security or reception system for the basic needs of the person applying for subsidiary protection (other than his medical needs) to be met pending a ruling on his appeal against that administrative decision? (2) If the answer to Question 1 is in the negative, does [the Charter] – in particular, Articles 1 to 3 …, Article 4 …, Article 19(2) …, Articles 20 and 21… and/or Article 47 … of that Charter – place a Member State in course of transposing [Directives 2004/83, 2005/85 and 2003/9] into national law under an obligation to make provision for a remedy with suspensive effect and for the requisite means of meeting the basic needs referred to in Question 1?’ |
Decision | Articles 5 and 13 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, taken in conjunction with Articles 19(2) and 47 of the Charter of Fundamental Rights of the European Union and Article 14(1)(b) of that directive, are to be interpreted as precluding national legislation which: – does not endow with suspensive effect an appeal against a decision ordering a third country national suffering from a serious illness to leave the territory of a Member State, where the enforcement of that decision may expose that third country national to a serious risk of grave and irreversible deterioration in his state of health, and – does not make provision, in so far as possible, for the basic needs of such a third country national to be met, in order to ensure that that person may in fact avail himself of emergency health care and essential treatment of illness during the period in which that Member State is required to postpone removal of the third country national following the lodging of the appeal. |
Funded by the European Union. Views and opinions expressed are however those of the authors only and do not necessarily reflect those of the European Union or the Directorate General Justice and Consumers (DG JUST). Neither the European Union nor DG JUST can be held responsible for them.