Opinion of the Advocate General — ECLI:EU:C:2021:939
Date: 2021-11-18
Language of the case: German
Subject matter: Principles, objectives and tasks of the Treaties;Telecommunications;Fundamental rights;Data protection;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
29 October 2019 
Referring court: 
Bundesverwaltungsgericht (Germany) 
Date of the decision to refer: 
25 September 2019 
Applicant and respondent in the appeal on a point of law: 
SpaceNet AG 
Defendant and appellant in the appeal on a point of law: 
Federal Republic of Germany 
  
Subject matter of the main proceedings 
Action seeking a declaration that SpaceNet is not obliged to store the 
telecommunications traffic data — listed in Paragraph 113b(3) of the 
Telekommunikationsgesetz (Law on telecommunications, ‘the TKG’) — of its 
customers to whom it provides internet access. 
Subject matter and legal basis of the reference 
Interpretation of EU law, in particular Article 15(1) of Directive 2002/58, and the 
Tele2 Sverige and Watson and Others judgment; Article 267 TFEU. 
Question referred 
In the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental 
Rights of the European Union, on the one hand, and of Article 6 of the Charter of 
Fundamental Rights of the European Union and Article 4 of the Treaty on 
European Union, on the other hand, is Article 15 of Directive 2002/58/EC to be 
EN 
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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 
– that obligation does not require a specific reason in terms of location, time or 
region, 
– the following data are the subject of the storage obligation in the provision 
of publicly available telephone services — including the transmission of 
short messages, multimedia messages or similar messages and unanswered 
or unsuccessful calls: 
– 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, 
– 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, 
– information regarding the service used, if different services can be 
used in the context of the telephone service, 
– and also, in the case of mobile telephone services 
– the International Mobile Subscriber Identity of the calling and 
called parties, 
– the international identifier of the calling and called terminal 
equipment, 
– 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, 
– the designations of the cells that were used by the calling and 
called parties at the beginning of the call, 
– in the case of internet telephone services, the Internet Protocol 
addresses of the calling and the called parties and allocated user IDs, 
– the following data are the subject of the storage obligation in the provision 
of publicly available internet access services: 
– the Internet Protocol address allocated to the subscriber for internet 
use, 
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– a unique identifier of the connection via which the internet use takes 
place, as well as an allocated user ID, 
– 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, 
– in the case of mobile use, the designation of the cell used at the start of 
the internet connection, 
– the following data must not be stored: 
– the content of the communication, 
– data regarding the internet pages accessed, 
– data from electronic mail services, 
– data underlying links to or from specific connections of persons, 
authorities and organisations in social or ecclesiastical spheres, 
– the retention period is four weeks for location data, that is to say, the 
designation of the cell used, and ten weeks for the other data, 
– effective protection of retained data against risks of misuse and against any 
unlawful access to that data is ensured, and 
– the retained data may be used only to prosecute particularly serious criminal 
offences and to prevent a specific threat to life and limb or a person’s 
freedom or to the continued existence of the Federal Republic or of a 
Federal 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? 
Provisions of EU law cited 
Charter of Fundamental Rights of the European Union (‘the Charter’), Articles 6, 
7, 8, 11 and 52 
Treaty on European Union (‘TEU’), Articles 4 and 6 
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 (‘Directive 2002/58’), 
Articles 5, 6, 8, 9, in particular Article 15; recital 11 
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Provisions of national law cited 
Telekommunikationsgesetz (Law on telecommunications, ‘the TKG’), first 
sentence of Paragraph 113a(1) (‘Obliged parties’), Paragraph 113b (‘Obligations 
to store traffic data’), Paragraph 113c (‘Use of data’), Paragraph 113d (‘Ensuring 
the security of data’), Paragraph 113e (‘Logging’ [by the obliged party of access 
to stored data]), Paragraph 113f (‘Catalogue of requirements’ [in relation to 
technical precautions and other measures]), Paragraph 99(2) (‘Individual 
connection evidence’, bodies exempted from recognition in individual connection 
evidence) 
Strafprozessordnung (Code of Criminal Procedure, ‘the StPO’), 
Paragraph 100g(2) (‘Collection of traffic data’ pursuant to Paragraph 113b of the 
TKG) 
Case-law of the Court of Justice cited 
Judgment of the Court of Justice of the European Union of 21 December 2016, 
Tele2 Sverige and Watson and Others, C-203/15 and C-698/15, EU:C:2016:970 
(‘Tele2 Sverige and Watson and Others judgment’) 
Judgment of 8 April 2014, Digital Rights Ireland and Seitlinger and Others, 
C-293/12 and C-594/12, EU:C:2014:238 (‘Digital Rights Ireland and Others 
judgment’) 
Opinion 1/15 of 26 July 2017, EU:C:2017:592 
In addition: Judgments of 29 July 2019, Funke Medien (C-469/17, 
EU:C:2019:623); of 9 March 1978, Simmenthal (106/77, EU:C:1978:49); of 
3 May 2005, Berlusconi and Others (C-387/02, C-391/02 and C-403/02, 
EU:C:2005:270); of 22 June 2010, Melki and Abdeli (C-188/10 and C-189/10, 
EU:C:2010:363); of 18 September 2014, Vueling Airlines (C-487/12, EU:C: 
2014:2232). 
Brief summary of the facts and procedure 
1 The applicant, SpaceNet AG (‘the applicant’ or ‘SpaceNet’) provides publicly 
available internet access services. It opposes the obligation imposed on it by 
Paragraph 113a(1) in conjunction with Paragraph 113b of the TKG, as amended 
by the Law of 10 December 2015, to retain telecommunications traffic data of its 
customers as from 1 July 2017. 
2 At first instance, the Verwaltungsgericht (Administrative Court) ruled that 
SpaceNet is not obliged to store the telecommunications traffic data — listed in 
Paragraph 113b(3) of the TKG — of its customers to whom it provides internet 
access. The defendant, the Federal Republic of Germany (‘the defendant’), lodged 
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a leap-frog appeal on a point of law against the judgment of the Administrative 
Court. 
3 The appeal on a point of law will be successful only if the obligation, laid down in 
the aforementioned provisions of the TKG, of providers of publicly available 
telecommunications services (‘telecommunications providers’) to retain 
telecommunications traffic data does not infringe EU law. 
4 This obligation of telecommunications providers to store certain traffic data for a 
limited period of time was revised by the Gesetz zur Einführung einer 
Speicherpflicht und einer Höchstspeicherfrist für Verkehrsdaten (Law introducing 
a storage obligation and a maximum storage period for traffic data) of 
10 December 2015 (‘Law of 10 December 2015’). 
5 Such revision was necessary after a judgment of the Bundesverfassungsgericht 
(Federal Constitutional Court) from 2010 declared the previous provisions 
governing data retention to be null and void due to a violation of fundamental 
rights and, moreover, after Directive 2006/24, for the implementation of which 
those previous provisions had been enacted, was declared to be invalid by the 
Digital Rights Ireland and Others judgment in 2014. The Law of 10 December 
2015 is intended to close gaps in law enforcement and at the same time take 
account of the constitutional requirements and requirements of EU law arising 
from the aforementioned decisions. 
6 In order to answer the question whether the storage obligation laid down in 
Paragraph 113a(1) in conjunction with Paragraph 113b of the TKG infringes EU 
law, it is necessary for the Court of Justice to give an interpretation of Directive 
2002/58 and, in particular, to clarify how the Tele2 Sverige and Watson and 
Others judgment is to be understood. 
Brief summary of the basis for the reference 
7 The obligation to retain telecommunications traffic data laid down in the first 
sentence of Paragraph 113a(1) in conjunction with Paragraph 113b of the TKG 
restricts the scope of the rights provided for in Article 5(1), Article 6(1) and 
Article 9(1) of Directive 2002/58. 
8 It constitutes an interference with the confidentiality of electronic communications 
protected by the first sentence of Article 5(1) of the directive and is contrary to the 
principle, that, as a general rule, any person other than the users is prohibited from 
storing, without the consent of the user concerned, the traffic data related to 
electronic communications. 
9 In addition, it does not comply with the requirement under Article 6 of the 
directive that the processing and storage of traffic data are permitted only to the 
extent necessary and for the duration necessary for the billing and marketing of 
services and the provision of value added services. 
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10 In the event that location data other than traffic data, relating to users or 
subscribers of public communications networks or publicly available electronic 
communications services, can be processed, the first sentence of Article 9(1) of 
Directive 2002/58 provides that such data may only be processed when they are 
made anonymous, or with the consent of the users or subscribers to the extent and 
for the duration necessary for the provision of a value added service. The 
legislation also deviates from this requirement in so far as, pursuant to point 2 of 
Paragraph 113b(1) in conjunction with Paragraph 113b(4) of the TKG, the 
location data referred to in those provisions must also be stored. 
11 The restriction of the rights provided for in Article 5(1), Article 6(1) and 
Article 9(1) of Directive 2002/58/EC is justified only if Article 15(1) of Directive 
2002/58 can be relied on as a basis for the provisions of the first sentence of 
Paragraph 113a(1) in conjunction with Paragraph 113b of the TKG. 
12 Pursuant to that article, Member States may adopt legislative measures to restrict 
the scope of the rights and obligations provided for in Article 5, Article 6, 
Article 8(1), (2), (3) and (4), and Article 9 of the directive when such restriction 
constitutes a necessary, appropriate and proportionate measure within a 
democratic society to safeguard national security (i.e. State security), defence, 
public security, and the prevention, investigation, detection and prosecution of 
criminal offences or of unauthorised use of the electronic communication system, 
as referred to in Article 13(1) of Directive 95/46. To this end, Member States may, 
inter alia, adopt legislative measures providing for the retention of data for a 
limited period justified on the grounds laid down in this paragraph. All the 
measures referred to in that paragraph must be in accordance with the general 
principles of Community law, including those referred to in Article 6(1) and (2) of 
the Treaty on European Union (TEU). 
13 According to the statements of the Court of Justice in the Tele2 Sverige and 
Watson and Others judgment, particularly in paragraph 82 et seq. and 
paragraph 108 et seq. of that judgment, in order for national legislation on data 
retention pursuant to Article 15(1) of Directive 2002/58 to be permissible, there 
must be sufficient grounds for that legislation. This means that only those persons 
for whom there is evidence of a connection to serious criminal offences are 
covered, that there will be a limitation to the region, period of time and means of 
communication that are relevant to the reason for the data retention, and that only 
those data that are indispensable for the investigation of the crimes referred to are 
covered. 
14 The defendant’s view that the mere circumstance of using internet access or 
telephone services is to be regarded as a sufficient ground for the storage is clearly 
inconsistent with this. Nor is the assumption expressed in the Tele2 Sverige and 
Watson and Others judgment that any retention of data without a reason is 
generally contrary to EU law called into question by the defendant’s reference to 
the Opinion of the Court of Justice of 26 July 2017 on the Agreement between 
Canada and the European Union on the transfer of Passenger Name Record data. 
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It is true that, in the context of the necessity of the interferences entailed by the 
agreement with the fundamental rights to respect for private life and the protection 
of personal data, the Court of Justice stressed that the transfer of PNR data to 
Canada is to take place regardless of whether there is any objective evidence that 
the passengers are liable to present a risk to public security in Canada. However, 
this does not constitute retention of data without a reason, because the storage and 
transfer are connected with the border control checks to which all air passengers 
who wish to enter or depart from Canada are subject under the requirements laid 
down by the Canadian law in force. This ground for storage ceases to be 
applicable when the air passengers depart from the territory. The continued 
storage after that point in time therefore requires — as a new ground — that 
objective evidence is identified from which it may be inferred that the air 
passengers concerned may present a risk in terms of the fight against terrorism 
and serious transnational crime. 
15 If the case-law of the Court of Justice is to be understood as meaning that the 
retention of data without a reason is not compatible with EU law under any 
circumstances, the defendant’s appeal on a point of law against the contested 
judgment of the Administrative Court cannot succeed. This is because, as is the 
case for the Swedish and United Kingdom legislation on data retention, which was 
the subject of the Tele2 Sverige and Watson and Others judgment, the first 
sentence of Paragraph 113a(1) in conjunction with Paragraph 113b of the TKG 
requires neither a ground — beyond the mere use of internet access or telephone 
services — for the storage nor a connection between the data stored and a criminal 
offence or a risk to public security. Rather, it is legislation which prescribes the 
storage of a large part of all relevant telecommunications traffic data without a 
particular reason, in a comprehensive manner and with no differentiation in terms 
of individuals, time and geography. 
16 Irrespective of the statements in the Tele2 Sverige and Watson and Others 
judgment, however, the referring court takes the view that it cannot be ruled out 
that Article 15(1) of Directive 2002/58 can be relied on as a basis for the 
obligation to retain telecommunications traffic data without a reason that is laid 
down in the first sentence of Paragraph 113a(1) in conjunction with 
Paragraph 113b of the TKG, for the following reasons: 
17 First, the relevant provisions of the TKG do not require the storage of all the 
telecommunications traffic data of all subscribers and registered users in relation 
to all means of electronic communication. Not only is the content of the 
communication excluded from the storage obligation, but, in addition, data 
regarding internet pages accessed, data from email services or data underlying 
links to or from specific connections in social or ecclesiastical spheres are not to 
be stored (see Paragraph 113b(5) and (6) of the TKG). Although the exclusion of 
certain means of communication or categories of data from the storage obligation 
may not eliminate the risk of a comprehensive profile of the individuals concerned 
being established, it may at least significantly reduce that risk. 
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18 Second, the referring court takes the view that the fact that the data retention 
period of six months to two years (see Article 6 of Directive 2006/24) is 
significantly reduced to four weeks and ten weeks pursuant to Paragraph 113b(1) 
of the TKG constitutes an even more important difference between the provisions 
of the TKG at issue here and the earlier provisions of Directive 2006/24 or the 
Swedish and United Kingdom legislation which are based on these provisions and 
which were the subject of the Tele2 Sverige and Watson and Others judgment. 
19 The shorter the periods during which the traffic data are stored, the lower the risk 
of a comprehensive profile of the individuals concerned being established. The 
shorter the storage period, the more incomplete the personal profile, as an 
inevitable consequence, and the lower the intensity of the interference with 
fundamental rights. 
20 Third, the provisions of the TKG at issue here are subject to strict restrictions with 
regard to the protection of the data stored and access to them. On the one hand, the 
provisions in Paragraph 113d et seq. of the TKG ensure effective protection of 
retained data against risks of misuse and against any unlawful access to those data. 
On the other hand, the retained data may, pursuant to Paragraph 113c(1) of the 
TKG, be used only to combat serious criminal offences and to prevent a specific 
threat to life and limb or a person’s freedom or to the continued existence of the 
Federal Republic or of a Federal Land. 
21 Under Paragraph 100g(2) of the StPO, the collection of traffic data for law 
enforcement purposes requires that there is a suspicion of one of the particularly 
serious criminal offences definitively specified in the law, that the offence is 
particularly serious in the individual case, that the investigation of the facts of the 
case or the determination of the whereabouts of the accused would otherwise be 
significantly impeded or futile, and that the collection of the data is proportionate 
to the importance of the matter. The collection or use of traffic data of the persons 
subject to an obligation of professional secrecy referred to in points 1 to 5 of the 
first sentence of Paragraph 53(1) of the StPO, which include lawyers, doctors or 
journalists, for example, is impermissible pursuant to Paragraph 100g(4) of the 
StPO. Paragraph 101a(1) of the StPO also contains a provision stipulating judicial 
authority for the collection of traffic data pursuant to Paragraph 100g of the StPO. 
22 It is true that these rules for restricting access are not applicable to the Internet 
Protocol address allocated to the subscriber for internet use. This is because, 
pursuant to point 3 of Paragraph 113c(1) of the TKG, those addresses may also be 
used in the context of the provision of inventory data information for the 
prosecution of any criminal offence, maintaining public order and security and 
generally carrying out the tasks of the intelligence services. However, it must be 
assumed that information specifying which subscriber was registered on the 
internet at an Internet Protocol address that was already known does not allow the 
creation of personal profiles and profiles of the movements of a data subject. 
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23 Even if SpaceNet’s argument were to be accepted and it were to be assumed that 
increasingly technical procedures are being used, where an Internet Protocol 
address can no longer be clearly attributed to a specific telecommunications 
connection and can only be attributed to a relatively large group of connections, 
and the inventory data information has therefore developed into a measure 
involving a considerable ‘spread’, the degree of interference that such inventory 
data information entails is still significantly lower than that which exists in the 
consultation and use of the actual telecommunications traffic data. 
24 Fourth, the fact that the national legislature has thus complied with the obligations 
to act arising for the Member States from the right to security guaranteed by 
Article 6 of the Charter also militates in favour of the assumption that 
Article 15(1) of Directive 2002/58 can be relied on as a basis for the obligation to 
retain telecommunications traffic data without a reason, as laid down in the first 
sentence of Paragraph 113a(1) in conjunction with Paragraph 113b of the TKG. In 
the Digital Rights Ireland and Others judgment, the Court of Justice expressly 
mentioned Article 6 of the Charter and pointed out in that regard that the fight 
against international terrorism in order to maintain international peace and 
security constitutes an EU objective of general interest and that the same is true of 
the fight against serious crime in order to ensure public security. 
25 Against that background, the referring court is uncertain as to whether the case-
law of the Court of Justice to date must be understood as meaning that 
Article 15(1) of Directive 2002/58 cannot be relied on as a basis for the retention 
of data without a reason not only in the specific form which it takes in Directive 
2006/24 and the Swedish and United Kingdom legislation based thereon, but also 
generally. The reason for this is that the basic concept of data retention cannot be 
reconciled with the Court of Justice’s unqualified requirement that the data to be 
stored must be differentiated according to individuals, periods of time and 
geographical areas. 
26 The referring court also takes the view that the requirement to strike a balance 
between the obligation of the Member States to ensure the security of individuals 
within their territory and observance of the fundamental rights enshrined in 
Articles 7 and 8 of the Charter also militates against the assumption that the 
storage of traffic data without a reason is, per se, incompatible with the Charter. 
27 The referring court cannot therefore clearly infer from the case-law of the Court of 
Justice that national legislatures should no longer have the possibility, on the basis 
of an overall assessment, of introducing the retention of data without a reason, 
supplemented, where appropriate, by strict access rules, in order to take account of 
the specific risk potential associated with the new means of telecommunication. 
28 Fifth, the referring court points out that, in the event that it is generally not 
possible to rely on Article 15(1) of Directive 2002/58 as a basis for the retention 
of data without a reason and, as a result, the specific rules governing the means of 
communication covered, the categories of data to be stored, the storage period, the 
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conditions for access to the stored data and protection against the risks of misuse 
are irrelevant, the national legislature’s leeway in an area of law enforcement and 
national security, which in any event remains, in principle, the sole responsibility 
of each Member State pursuant to the third sentence of Article 4(2) TEU, would 
be significantly restricted. 
29 Sixth, finally, the referring court takes the view that, in the light also of the more 
recent case-law of the European Court of Human Rights (‘ECtHR’), the question 
whether the statements of the Court of Justice in the Tele2 Sverige and Watson 
and Others judgment are to be understood as prohibiting the Member States from 
relying on Article 15(1) of Directive 2002/58 as a basis for introducing an 
obligation to store telecommunications traffic data without a reason has not been 
clarified. 
30 Most recently, the ECtHR ruled in a judgment of 19 June 2018 that the Swedish 
legislation on the bulk interception of transborder data flows is in line with 
Article 8 of the European Convention for the Protection of Human Rights and 
Fundamental Freedoms (ECHR). The ECtHR stated that, in view of the current 
threats facing many States (including the scourge of global terrorism and other 
serious crime, such as drug trafficking, human trafficking, sexual exploitation of 
children and cybercrime), advancements in technology which have made it easier 
for terrorists and criminals to evade detection on the internet, and the 
unpredictability of the routes via which electronic data are transmitted, the 
decision to operate a bulk interception regime in order to identify hitherto 
unknown threats to national security is one which continues to fall within States’ 
margin of appreciation (ECtHR, judgment of 19 June 2018 — No 35252/08 
[ECLI: CE:ECHR:2018:0619JUD003525208], Centrum för Rättvisa v. Sweden — 
paragraph 112). In so far as the ECtHR refers to the unpredictability of the routes 
via which electronic data are transmitted and to advancements in technology 
which have made it easier for terrorists and criminals to evade detection on the 
internet, it emphasises, even more strongly than the Court of Justice of the 
European Union, the specific risk potential associated with the new means of 
telecommunication. 
31 The referring court makes reference to recital 11 of Directive 2002/58 and 
Article 52(3) of the Charter, from which it follows that the necessary consistency 
between the rights enshrined in the Charter and the corresponding rights 
guaranteed by the ECHR must be established without thereby adversely affecting 
the autonomy of EU law and that of the Court of Justice of the European Union. 
32 Finally, the referring court cites other pending preliminary ruling proceedings 
concerning an interpretation of the Tele2 Sverige and Watson and Others 
judgment, that is to say, the question whether a general prohibition on the 
retention of data without a reason — which cannot be overcome either in the light 
of the seriousness of the threats to national security to be combated or in the 
context of ‘being compensated for’ by rules restricting access and stringent 
security requirements — can be derived from that judgment. 
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33 The referring court cites the request for a preliminary ruling from the 
Investigatory Powers Tribunal — London (United Kingdom) (C-623/17), the 
request for a preliminary ruling from the Conseil d’État (Council of State) 
(France) (C-511/18 and C-512/18) and the request for a preliminary ruling from 
the Cour constitutionnelle (Constitutional Court) (Belgium) (C-520/18).