# C_2020279EN.01003001.xml

| 24.8.2020 | EN | Official Journal of the European Union | C 279/30 |
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24.8.2020

EN

Official Journal of the European Union

C 279/30

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Request for a preliminary ruling from the Verwaltungsgericht Wiesbaden (Germany) lodged on 27 May 2020 — OC v Bundesrepublik Deutschland

(Case C-222/20)

(2020/C 279/42)

Language of the case: German

Referring court

Verwaltungsgericht Wiesbaden

Parties to the main proceedings

Applicant: OC

Defendant: Bundesrepublik Deutschland

Questions referred

| 1. | Are Article 21 and Article 67(2) TFEU to be interpreted as meaning that they preclude national legislation (in this case, Paragraph 2(3) of the Gesetz über die Verarbeitung von Fluggastdaten zur Umsetzung der Richtlinie (EU) 2016/681 of 6 June 2017 (Law on the Processing of Passenger Name Record (PNR) Data for the purpose of transposing Directive (EU) 2016/681 [BGBl (Federal Law Gazette) I, p. 1484], as amended by Article 2 of the Law of 6 June 2017, BGBl I, p. 1484), (‘the FlugDaG’), that provides, in application of the flexibility clause in Article 2(1) of Directive (EU) 2016/681 (1) (‘the PNR Directive’), for air carriers to transfer comprehensive data on every single passenger of also intra-EU flights to the passenger information units (PIUs) established by the Member States where, except for the flight booking, the data are retained without justification and used for automated comparison against databases and profiles, after which they must be retained? |
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1.

Are Article 21 and Article 67(2) TFEU to be interpreted as meaning that they preclude national legislation (in this case, Paragraph 2(3) of the Gesetz über die Verarbeitung von Fluggastdaten zur Umsetzung der Richtlinie (EU) 2016/681 of 6 June 2017 (Law on the Processing of Passenger Name Record (PNR) Data for the purpose of transposing Directive (EU) 2016/681 [BGBl (Federal Law Gazette) I, p. 1484], as amended by Article 2 of the Law of 6 June 2017, BGBl I, p. 1484), (‘the FlugDaG’), that provides, in application of the flexibility clause in Article 2(1) of Directive (EU) 2016/681 (1) (‘the PNR Directive’), for air carriers to transfer comprehensive data on every single passenger of also intra-EU flights to the passenger information units (PIUs) established by the Member States where, except for the flight booking, the data are retained without justification and used for automated comparison against databases and profiles, after which they must be retained?

| 2. | Does it follow from Article 7 and Article 8 of the Charter of Fundamental Rights of the European Union that the national legislation transposing point (9) of Article 3 of the PNR Directive, read in conjunction with Annex II to the Directive, (in this case: Paragraph 4(1) of the FlugDaG) has to enumerate each of the relevant provisions of national criminal law for each of the offences listed in the PNR Directive? |
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2.

Does it follow from Article 7 and Article 8 of the Charter of Fundamental Rights of the European Union that the national legislation transposing point (9) of Article 3 of the PNR Directive, read in conjunction with Annex II to the Directive, (in this case: Paragraph 4(1) of the FlugDaG) has to enumerate each of the relevant provisions of national criminal law for each of the offences listed in the PNR Directive?

| 3. | Are Article 7 and Article 8 of the Charter of Fundamental Rights of the European Union to be interpreted as meaning that they preclude domestic legislation of a Member State (in this case, Paragraph 6(4) of the FlugDaG) that allows the authorities of that Member State, inasmuch as they perform prosecution-related tasks, to process the PNR data transferred for purposes other than the prevention, detection, investigation and prosecution of terrorist offences and serious crime where findings, including in the light of additional information, give cause to suspect another specific offence? |
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3.

Are Article 7 and Article 8 of the Charter of Fundamental Rights of the European Union to be interpreted as meaning that they preclude domestic legislation of a Member State (in this case, Paragraph 6(4) of the FlugDaG) that allows the authorities of that Member State, inasmuch as they perform prosecution-related tasks, to process the PNR data transferred for purposes other than the prevention, detection, investigation and prosecution of terrorist offences and serious crime where findings, including in the light of additional information, give cause to suspect another specific offence?

| 4. | Is the flexibility clause in Article 2(1) of the PNR Directive permitting national legislation (in this case, Paragraph 2(3) of the FlugDaG) that allows the PNR Directive to be applied to intra-EU flights also, meaning that PNR data are collected twice within the European Union (country of departure and country of arrival collect PNR data), compatible with Article 7 and Article 8 of the Charter of Fundamental Rights of the European Union in the light of the principle of data minimisation? |
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4.

Is the flexibility clause in Article 2(1) of the PNR Directive permitting national legislation (in this case, Paragraph 2(3) of the FlugDaG) that allows the PNR Directive to be applied to intra-EU flights also, meaning that PNR data are collected twice within the European Union (country of departure and country of arrival collect PNR data), compatible with Article 7 and Article 8 of the Charter of Fundamental Rights of the European Union in the light of the principle of data minimisation?

| 5. | If the PNR Directive does not infringe higher-ranking law (see order of the Verwaltungsgericht Wiesbaden (Administrative Court, Wiesbaden) of 13 May 2020, reference 6 K 805/19.WI) and is therefore applicable:






  (a) | Are Article 7(4) and (5) of the PNR Directive to be interpreted as meaning that they preclude domestic legislation of a Member State (in this case, Paragraph 6(4) of the FlugDaG) that allows the authorities of that Member State, inasmuch as they perform prosecution-related tasks, to process the PNR data transferred for purposes other than the prevention, detection, investigation and prosecution of terrorist offences and serious crime where findings, including in the light of further information, give cause to suspect another specific offence (so-called by-catch)? |
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5.

If the PNR Directive does not infringe higher-ranking law (see order of the Verwaltungsgericht Wiesbaden (Administrative Court, Wiesbaden) of 13 May 2020, reference 6 K 805/19.WI) and is therefore applicable:

(a)

Are Article 7(4) and (5) of the PNR Directive to be interpreted as meaning that they preclude domestic legislation of a Member State (in this case, Paragraph 6(4) of the FlugDaG) that allows the authorities of that Member State, inasmuch as they perform prosecution-related tasks, to process the PNR data transferred for purposes other than the prevention, detection, investigation and prosecution of terrorist offences and serious crime where findings, including in the light of further information, give cause to suspect another specific offence (so-called by-catch)?

| (b) | Is the practice of a Member State of including in the list of competent authorities under Article 7(1) of the PNR Directive an authority (in this case, the Bundesamt für Verfassungsschutz (Federal Office for the Protection of the Constitution)) which, under national law (in this case, Paragraph 5(1), read in conjunction with Paragraph 3(1), of the Gesetz über die Zusammenarbeit des Bundes und der Länder in Angelegenheiten des Verfassungsschutzes und das Bundesamt für Verfassungsschutz (Law on Cooperation between the Federal Government and the Federal Länder in Matters of the Protection of the Constitution and the Federal Office for the Protection of the Constitution)), does not have police powers due to the separation of powers required under domestic law, compatible with Article 7(2) of the PNR Directive? |
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(b)

Is the practice of a Member State of including in the list of competent authorities under Article 7(1) of the PNR Directive an authority (in this case, the Bundesamt für Verfassungsschutz (Federal Office for the Protection of the Constitution)) which, under national law (in this case, Paragraph 5(1), read in conjunction with Paragraph 3(1), of the Gesetz über die Zusammenarbeit des Bundes und der Länder in Angelegenheiten des Verfassungsschutzes und das Bundesamt für Verfassungsschutz (Law on Cooperation between the Federal Government and the Federal Länder in Matters of the Protection of the Constitution and the Federal Office for the Protection of the Constitution)), does not have police powers due to the separation of powers required under domestic law, compatible with Article 7(2) of the PNR Directive?

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(1)  Directive 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 (OJ 2016 L 119, p. 132).

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