# C_2022424EN.01000301.xml

| 7.11.2022 | EN | Official Journal of the European Union | C 424/3 |
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7.11.2022

EN

Official Journal of the European Union

C 424/3

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Judgment of the Court (Grand Chamber) of 20 September 2022 (requests for a preliminary ruling from the Cour de cassation — France) — Criminal proceedings against VD (C-339/20), SR (C-397/20)

(Joined Cases C-339/20 and C-397/20) (1)

(References for a preliminary ruling - Single Market for financial services - Market abuse - Insider dealing - Directive 2003/6/EC - Article 12(2)(a) and (d) - Regulation (EU) No 596/2014 - Article 23(2)(g) and (h) - 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 - Directive 2002/58/EC - Article 15(1) - Charter of Fundamental Rights of the European Union - Articles 7, 8 and 11 and Article 52(1) - 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)

(2022/C 424/03)

Language of the case: French

Referring court

Cour de cassation

Parties in the main proceedings

VD (C-339/20), SR (C-397/20)

Operative part of the judgment

| 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. |
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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. |
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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.

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(1)  OJ C 359, 26.10.2020.

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