# C_2018408EN.01003901.xml

| 12.11.2018 | EN | Official Journal of the European Union | C 408/39 |
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12.11.2018

EN

Official Journal of the European Union

C 408/39

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Request for a preliminary ruling from the Cour constitutionnelle (Belgium) lodged on 2 August 2018 — Ordre des barreaux francophones et germanophone, Académie Fiscale ASBL, UA, Liga voor Mensenrechten ASBL, Ligue des Droits de l’Homme ASBL, VZ, WY, XX v Conseil des ministres

(Case C-520/18)

(2018/C 408/52)

Language of the case: French

Referring court

Cour constitutionnelle

Parties to the main proceedings

Applicants: Ordre des barreaux francophones et germanophone, Académie Fiscale ASBL, UA, Liga voor Mensenrechten ASBL, Ligue des Droits de l’Homme ASBL, VZ, WY, XX

Defendant: Conseil des ministres

Questions referred

| 1. | Must Article 15(1) of Directive 2002/58/EC, (1) read in conjunction with the right to security, guaranteed by Article 6 of the Charter of Fundamental Rights of the European Union, and the right to respect for personal data, as guaranteed by Articles 7, 8 and 52(1) of the Charter of Fundamental Rights of the European Union, 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/EC, generated or processed by them in the context of the supply of those services, national legislation whose objective is not only the investigation, detection and prosecution of serious criminal offences but also the safeguarding of national security, the defence of the territory and of public security, the investigation, detection and prosecution of offences other than serious crime or the prevention of the prohibited use of electronic communication systems, or the attainment of another objective identified by Article 23(1) of Regulation (EU) 2016/679 (2) and which, furthermore, is subject to specific guarantees in that legislation in terms of data retention and access to those data? |
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1.

Must Article 15(1) of Directive 2002/58/EC, (1) read in conjunction with the right to security, guaranteed by Article 6 of the Charter of Fundamental Rights of the European Union, and the right to respect for personal data, as guaranteed by Articles 7, 8 and 52(1) of the Charter of Fundamental Rights of the European Union, 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/EC, generated or processed by them in the context of the supply of those services, national legislation whose objective is not only the investigation, detection and prosecution of serious criminal offences but also the safeguarding of national security, the defence of the territory and of public security, the investigation, detection and prosecution of offences other than serious crime or the prevention of the prohibited use of electronic communication systems, or the attainment of another objective identified by Article 23(1) of Regulation (EU) 2016/679 (2) and which, furthermore, is subject to specific guarantees in that legislation in terms of data retention and access to those data?

| 2. | Must Article 15(1) of Directive 2002/58/EC, in conjunction with Articles 4, 7, 8, 11 and 52(1) of the Charter of Fundamental Rights of the European Union, 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/EC, 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 8 of the Charter, consisting in providing for 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? |
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2.

Must Article 15(1) of Directive 2002/58/EC, in conjunction with Articles 4, 7, 8, 11 and 52(1) of the Charter of Fundamental Rights of the European Union, 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/EC, 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 8 of the Charter, consisting in providing for 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 answers to the first or the second question, the Cour constitutionnelle (Constitutional Court) 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 on the collection and retention of data in the electronic communications sector 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? |
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3.

If, on the basis of the answers to the first or the second question, the Cour constitutionnelle (Constitutional Court) 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 on the collection and retention of data in the electronic communications sector 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?

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(1)  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) (OJ 2002 L 201, p. 37).

(2)  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) (OJ 2016 L 119, p. 1).

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