Opinion of the Advocate General — ECLI:EU:C:2008:194
Date: 2008-04-03
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Citizenship of the Union;Right of entry and residence;Right of establishment;Approximation of laws;Anti-discrimination;Fundamental rights;Non-discrimination on grounds of nationality;Data protection
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Approximation of laws – Protection of individuals with regard to the processing of personal data – Directive 95/46 – Scope (European Parliament and Council Directive 95/46, Art. 3(2)) 2. Approximation of laws – Protection of individuals with regard to the processing of personal data – Directive 95/46 (Art. 12(1) EC; European Parliament and Council Directive 95/46, Art. 7(e)) 3. Community law – Principles – Equal treatment – Discrimination on grounds of nationality – System for processing personal data (Art. 12 EC) 1. Article 3(2) of Directive 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data expressly excludes from its scope of application, inter alia, the processing of personal data concerning public security, defence, State security and the activities of the State in areas of criminal law. It follows that, while the processing of personal data for the purposes of the application of the legislation relating to the right of residence and for statistical purposes falls within the scope of application of Directive 95/46, the position is otherwise where the objective of processing those data is connected with the fight against crime. (see paras 44-45) 2. A system for processing personal data relating to Union citizens who are not nationals of the Member State concerned, putting in place a central register of foreign nationals and having as its object the provision of support to the national authorities responsible for the application of the law relating to the right of residence does not satisfy the requirement of necessity laid down by Article 7(e) of Directive 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, interpreted in the light of the prohibition on any discrimination on grounds of nationality, unless: – it contains only the data which are necessary for the application by those authorities of that legislation, and – its centralised nature enables that legislation to be more effectively applied as regards the right of residence of Union citizens who are not nationals of that Member State. It is for the national court to ascertain whether those conditions are satisfied. Having regard to the objective of Directive 95/46 of ensuring an equivalent level of protection in all Member States, the concept of necessity laid down by Article 7(e) of the directive cannot have a meaning which varies between the Member States. It follows that what is at issue is a concept which has its own independent meaning in Community law. As regards the use of a central register of foreign nationals for the purpose of the application of the legislation relating to the right of residence, it is necessary for a Member State, within the meaning of Article 7(e), to have the relevant particulars and documents available to it in order to ascertain, within the framework laid down under the applicable Community legislation, whether a right of residence in its territory exists in relation to a national of another Member State and to establish that there are no grounds which would justify a restriction on that right. It follows that the use of a register for the purpose of providing support to the authorities responsible for the application of the legislation relating to the right of residence is, in principle, legitimate and, having regard to its nature, compatible with the prohibition of discrimination on grounds of nationality laid down by Article 12(1) EC. However, such a register must not contain any information other than what is necessary for that purpose. In that regard, as Community law presently stands, the processing of personal data contained in the documents referred to in Articles 8(3) and 27(1) of Directive 2004/38 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 No 1612/68 and repealing Directives 64/221, 68/360, 72/194, 73/148, 75/34, 75/35, 90/364, 90/365 and 93/96 must be considered to be necessary, within the meaning of Article 7(e) of Directive 95/46, for the application of the legislation relating to the right of residence. With respect to the necessity that a centralised register be available in order to meet the requirements of the authorities responsible for the application of the legislation relating to the right of residence, even if it were to be assumed that decentralised registers such as district population registers contain all the data which are relevant for the purposes of allowing the authorities to undertake their duties, the centralisation of those data could be necessary, within the meaning of Article 7(e) of Directive 95/46, if it contributes to the more effective application of that legislation as regards the right of residence of Union citizens who wish to reside in a Member State of which they are not nationals. The storage and processing of personal data containing individualised personal information in such a register for statistical purposes cannot, on any basis, be considered to be necessary within the meaning of Article 7(e) of Directive 95/46. While Community law has not excluded the power of Member States to adopt measures enabling the national authorities to have an exact knowledge of population movements affecting their territory, the exercise of that power does not, of itself, mean that the collection and storage of individualised personal information is necessary. It is only anonymous information that requires to be processed in order for such an objective to be attained. (see paras 52, 58-59, 62-63, 65-68, operative part 1) 3. Article 12(1) EC must be interpreted as meaning that it precludes the putting in place by a Member State, for the purpose of fighting crime, of a system for processing personal data specific to Union citizens who are not nationals of that Member State. The principle of non-discrimination, which has its basis in Articles 12 EC and 43 EC, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way. Such treatment may be justified only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the objective being legitimately pursued. While it is true that the objective of fighting crime is a legitimate one, it cannot be relied on in order to justify the systematic processing of personal data when that processing is restricted to the data of Union citizens who are not nationals of the Member State concerned. The fight against crime necessarily involves the prosecution of crimes and offences committed, irrespective of the nationality of their perpetrators. It follows that, as regards a Member State, the situation of its nationals cannot, as regards the objective of fighting crime, be different from that of Union citizens who are not nationals of that Member State and who are resident in its territory. Therefore, a difference in treatment between those nationals and those Union citizens which arises by virtue of the systematic processing of personal data relating only to Union citizens who are not nationals of the Member State concerned for the purposes of fighting crime constitutes discrimination which is prohibited by Article 12(1) EC. (see paras 75, 77-81, operative part 2)