Opinion of the Advocate General — ECLI:EU:C:2020:18
Date: 2020-01-21
Language of the case: Estonian
Subject matter: Telecommunications;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Estonia

summary, the concept of ‘independent administrative authority’ within the meaning of Tele2 Sverige and Watson and Others is intended to guarantee the objectivity, reliability and effectiveness of the review. 107. It means examining whether the rules of Estonian law which set out the legal position and duties assigned to the public prosecutor’s office is likely to create legitimate doubts, in the minds of the persons concerned, as to the imperviousness of the public prosecutor to external influences and its neutrality with regard to the conflicting interests involved when carrying out a prior review of whether the access to data is proportionate. 108. The public prosecutor’s office plays an essential role in the conduct of criminal proceedings, since it directs pre-trial criminal investigations and has the power to prosecute a person suspected of having committed a criminal offence so that that person may be brought before a court. To that extent, it must be regarded as being an authority which participates in the administration of criminal justice. (62) 109. As stated by the Court with regard to the Procura della Repubblica (Office of the Public Prosecutor, Italy) and pursuant to a formula which I believe could be adopted in the present case, the role of the public prosecutor ‘is not to rule on an issue in complete independence but, acting as prosecutor in the proceedings, to submit that issue, if appropriate, for consideration by the competent judicial body’. (63) 110. Whilst the public prosecutor’s office has, in terms of its legal position and the duties assigned to it, special characteristics which distinguish it from a court and which justify its classification as an ‘authority participating in the administration of criminal justice in the Member States’, the fact remains that, from a functional point of view, where national law provides that the authority which carries out a prior review of the proportionality of the access, as required by Tele2 Sverige and Watson and Others, is the public prosecutor’s office, the latter must, in this particular regard, demonstrate a degree of independence similar to that of a court. The exercise of that function by an administrative authority rather than by a court must not affect the objectivity, reliability and effectiveness of the review. 111. In that regard, it should be borne in mind that, in accordance with Paragraph 901(2) of the Code of Criminal Procedure, the investigating authority may, with the authorisation of the public prosecutor’s office in the pre-trial procedure or with the authorisation of the court in judicial proceedings, ask an electronic communications undertaking for the data listed in Paragraph 1111(2) and (3) of the Law on electronic communications. 112. In addition, it is apparent from the Estonian legislation that the public prosecutor’s office directs the pre-trial procedure in criminal cases, the aim of which is to gather evidence and create the other conditions necessary for judicial proceedings to be held. Moreover, in the pre-trial procedure, the investigating authority and the public prosecutor’s office ascertain the circumstances exonerating and incriminating the suspect or accused. The public prosecutor’s office issues an indictment against a person if it is convinced that all the necessary evidence is gathered and there is reason to do so. In that case, the public prosecutor’s office brings the public prosecution before the court. 113. The referring court also observes that although the public prosecutor’s office must obtain the authorisation of an investigating judge for measures which constitute the most serious interference with a person’s fundamental rights (for instance, most surveillance activities, arrest), the powers of the public prosecutor’s office also include deciding on some procedural measures which severely interfere with several fundamental rights. (64) 114. The doubts expressed by the referring court as to whether the public prosecutor’s office meets the criterion of an ‘independent administrative authority’ within the meaning of Tele2 Sverige and Watson and Others are mainly based on the fact that, following the pre-trial procedure, the public prosecutor’s office issues an indictment against the person in question if it is convinced that all the necessary evidence is gathered in the criminal matter and there is reason to do so. In that case, the public prosecutor’s office brings the public prosecution before the court and is therefore also a party to the court proceedings. Accordingly, it is mainly on account of the status of the public prosecutor’s office as a prosecuting party that the referring court has doubts as to whether it may be regarded as an ‘independent administrative authority’ within the meaning of Tele2 Sverige and Watson and Others. 115. Expressed in that way, the doubts raised by the referring court therefore relate, more particularly, to the impartiality of the public prosecutor’s office when reviewing the proportionality of the access to data by the investigating authorities which it is expected to do before authorising such access. 116. Before addressing the issue of impartiality, I note that Paragraph 1(11) of the Law on the Public Prosecutor’s Office provides that the latter ‘performs its statutory duties independently’. Moreover, in accordance with Paragraph 2(2) of that law, ‘the public prosecutor performs his duties independently and acts exclusively according to the law and his convictions’. (65) 117. In that regard, the Estonian Government states that, although the public prosecutor’s office is an authority which falls under the jurisdiction of the Ministry of Justice, Estonian law precludes the latter from making an assessment on a specific procedure or from intervening in ongoing criminal proceedings. It explains that disregarding the independence of the public prosecutor’s office constitutes a punishable offence. 118. While there is therefore no reason to doubt the independence of the public prosecutor’s office in carrying out the duties assigned to it under Estonian legislation, that legislation seems to me, however, to be of such a nature as to raise legitimate doubts as to the ability of the public prosecutor’s office to carry out a neutral and objective prior review of the proportionality of the access to data when it may be called upon, in a given case, to perform at the same time duties consisting of directing the pre-trial procedure, the prosecution of criminal offences and representing the public prosecution in judicial proceedings. 119. It is true that several elements included in Estonian law constitute guarantees that the public prosecutor’s office acts, when fulfilling the duties assigned to it, in accordance with the requirement of impartiality. 120. Thus, pursuant to Paragraph 211(2) of the Code of Criminal Procedure, the public prosecutor’s office is required to ascertain the circumstances exonerating and incriminating the suspect or accused. 121. Furthermore, as is apparent from Paragraph 1(1) of the Law on the Public Prosecutor’s Office, the public prosecutor’s office is required to guarantee the lawfulness of the pre-trial procedure which it is responsible for directing. Moreover, in accordance with Paragraph 1(11) and Paragraph 2(2) of that law, the public prosecutor’s office must perform its duties in accordance with the law. This means that, in directing the pre-trial procedure, the public prosecutor’s office must ensure not only its effectiveness and but also that it does not constitute a disproportionate interference with the private life of the persons concerned. It may be considered that authorising access to retained data is an integral part of the broader role of the public prosecutor’s office which consists of monitoring the lawfulness of the means employed by the investigating authorities, in particular the proportionality of investigative acts in the light of the type and seriousness of the offence. 122. The argument could therefore be raised that it is precisely because it directs the pre-trial procedure that the public prosecutor’s office is able to assess whether, having regard to the specific circumstances of each case, access to data retained by telecommunications operators is strictly necessary, in the absence of alternative evidence, in order to advance the investigation of an alleged offence. 123. The fact remains that, from the point of view of persons affected by the request for access to data, the fact that the administrative authority responsible for assessing whether that access is strictly necessary within the framework of the investigation may, at the same time, prosecute them and later represent the public prosecution in judicial proceedings is, in my opinion, such as to weaken the guarantees of impartiality provided by Estonian law. From that point of view, there may be a potential for conflict between the duties assigned to the public prosecutor’s office, on the one hand, and the requirement that the prior review of the proportionality of the access to data be carried out with neutrality and objectivity, on the other. 124. Within the framework of its duties, the public prosecutor’s office is required to gather evidence, assess its relevance and to draw conclusions as to whether the person in question is guilty. It is for that State authority to put forward and prove the prosecution’s case in the context of the public prosecution which it represents before the court, being, therefore, a party to the proceedings. On account of those duties, the public prosecutor’s office is under an evidential burden which may appear, in the eyes of persons suspected of having committed a criminal offence, as being inconsistent with the ability of that authority to carry out, with neutrality and objectivity, a prior review of whether the access to data is proportionate. 125. As the Commission observes, the risk could be that, in view of the overlap in the duties assigned to it, the public prosecutor’s office may be perceived by the persons concerned as having an interest in giving broad access to their data, whether of an incriminating or exculpatory nature. Furthermore, the persons suspected of having committed a criminal offence may have legitimate doubts as to the impartiality of the public prosecutor’s office when it authorises access to their data, since it may be the prosecuting party in the proceedings which follow. I consider that the requirement of impartiality on the part of the administrative authority responsible for carrying out the prior review pursuant to Tele2 Sverige and Watson and Others presupposes a certain distance and neutrality with regard to the conflicting interests likely to come into play in the pre-trial procedure, namely, on the one hand, the effectiveness of that procedure and, on the other, the protection of the personal data of the persons concerned. According to the Commission, the situation could be different if the internal administrative organisation of the public prosecutor’s office was such that the public prosecutor responsible for ruling on a request for access to data played no role in the pre-trial procedure or any subsequent stages of the proceedings, including the public prosecution. 126. Since, as was confirmed at the hearing, the public prosecutor’s office is organised hierarchically within Estonia, I am not convinced that the Commission’s suggestion would overcome the shortcomings caused by the overlap in the duties assigned to the public prosecutor’s office under Estonian law. In any event, that does not mean that the idea behind that suggestion, namely that the prior review of the proportionality of the access to data should be carried out by an administrative authority which is not directly involved in the criminal investigation in question and adopts a neutral stance vis-à-vis the parties to the criminal proceedings, is of no consequence. Such an authority, independent of any interests related to the investigation and public prosecution in the case in the main proceedings, could not be criticised for wanting to put the interests of the investigation first at the expense of those linked to the protection of the data of the persons concerned. That authority would then be able to adopt, in an impartial way, a decision restricting the access to retained data to what is strictly necessary to achieve the objective pursued, in accordance with the requirement set out in Article 15(1) of Directive 2002/58, as interpreted by the Court in the judgments of 8 April 2014, Digital Rights Ireland and Others (66) and Tele2 Sverige and Watson and Others. At the same time, I am very aware that having an institution with an outside view on the interests relating to the proceedings in question must not be at the expense of weakening the effectiveness of the investigation, detection and prosecution of criminal offences. 127. In order to respect the procedural autonomy of the Member States, the Court should not interfere further with the general organisation of the administration of justice in the Member States, any more than in the internal organisation of the public prosecutor’s office. It is for the Member States to implement their own measures to ensure that the prior review of the access to retained data strikes a balance between the interests relating to the effectiveness of the criminal investigation and the right to data protection of the persons affected by that access. 128. I will close by stating that, in my opinion, the fact that no prior review is carried out by an ‘independent’ administrative authority within the meaning of Tele2 Sverige and Watson and Others cannot be offset by carrying out a judicial review after access has been granted. (67) Otherwise the prior nature of the review would lose its purpose, which is to prevent access to retained data that would be disproportionate to the objective of investigating, prosecuting and sanctioning criminal offences. 129. In view of the foregoing, I propose that the Court’s answer to the third question should be that Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8, 11 and Article 52(1) of the Charter, must be interpreted as meaning that the requirement that the access of the competent national authorities to retained data be subject to prior review by a court or an independent administrative authority is not met where national legislation provides that such review is to be carried out by the public prosecutor’s office which is responsible for directing the pre-trial procedure, whilst also being likely to represent the public prosecution in judicial proceedings. V. Conclusion 130. In the light of the foregoing, I propose that the Court should answer the questions referred by the Riigikohus (Supreme Court, Estonia) as follows: 1. Article 15(1) of Directive 2002/58/EC 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, read in the light of Articles 7, 8, 11 and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that the categories of data concerned and the duration of the period in respect of which access is sought should be included amongst the criteria for assessing the seriousness of the interference with fundamental rights that is associated with the access by competent national authorities to the personal data that providers of electronic communications services are obliged to retain under national legislation. It is for the referring court to assess, depending on the seriousness of the interference, whether that access was strictly necessary to achieve the objective of preventing, investigating, detecting and prosecuting criminal offences. 2. Article 15(1) of Directive 2002/58, as amended by Directive 2009/136, read in the light of Articles 7, 8, 11 and Article 52(1) of the Charter of Fundamental Rights, must be interpreted as meaning that the requirement that the access of the competent national authorities to retained data be subject to prior review by a court or an independent administrative authority is not met where national legislation provides that such review is to be carried out by the public prosecutor’s office which is responsible for directing the pre-trial procedure, whilst also being likely to represent the public prosecution in judicial proceedings. 1 Original language: French. 2 OJ 2002 L 201, p. 37. 3 OJ 2009 L 337, p. 11 (‘Directive 2002/58’). 4 ‘the Charter’. 5 C‑203/15 and C‑698/15 (‘Tele2 Sverige and Watson and Others’), EU:C:2016:970 (paragraph 120 and operative part 2). 6 Directive of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31). 7 RT I 2004, 87, 593. 8 RT I 2003, 27, 166. 9 RT I 1998, 41, 625. 10 The referring court notes that this was combined with a period of imprisonment of four years and seven months imposed by the Viru Maakohus (Viru Court of First Instance) by judgment of 22 March 2016 and a period of imprisonment of five years and one month was imposed on H.K. as a final aggregate penalty. 11 The offence of exerting an influence on the administration of justice. I note that the facts alleged against H.K. have been, in that regard, reclassified by the Viru Maakohus (Viru Court of First Instance) under Paragraph 323(1) of the Criminal Code as the offence of violence against parties to court proceedings. 12 C‑207/16 (‘Ministerio Fiscal’), EU:C:2018:788. 13 Operative part 2 of that judgment. 14 Paragraphs 53 and 57 of that judgment. 15 Paragraphs 55 to 57 of that judgment. 16 Paragraph 120 and operative part 2 of that judgment. 17 The referring court cites, in that regard, the judgments of the European Court of Human Rights of 2 September 2010, Uzun v. Germany (CE:ECHR:2010:0902JUD003562305, §§ 71 to 74), and of 12 January 2016, Szabó and Vissy v. Hungary (CE:ECHR:2016:0112JUD003713814, § 77). 18 Ministerio Fiscal (paragraph 34 and the case-law cited). 19 Idem. 20 Ministerio Fiscal (paragraph 35 and the case-law cited). 21 Ministerio Fiscal (paragraph 36 and the case-law cited). 22 Ministerio Fiscal (paragraph 37 and the case-law cited). 23 See Ministerio Fiscal (paragraphs 38 and 39). 24 See, inter alia, by analogy, judgment of 10 April 2003, Steffensen (C‑276/01, EU:C:2003:228, paragraph 71). In that judgment, the Court also addressed this issue in the light of the principle of effectiveness as a limit to the procedural autonomy of the Member States (paragraphs 66 to 68 of that judgment). 25 The Commission points out, in that regard, that the present case can be distinguished from that giving rise to Ministerio Fiscal. 26 See Ministerio Fiscal (paragraphs 49 and 50). 27 Tele2 Sverige and Watson and Others (paragraph 112). 28 C‑520/18, EU:C:2020:7. See, in particular, points 72 to 107 of this Opinion. 29 See Tele2 Sverige and Watson and Others (paragraph 113). 30 See Tele2 Sverige and Watson and Others (paragraph 115). 31 See Tele2 Sverige and Watson and Others (paragraph 116). 32 Tele2 Sverige and Watson and Others (paragraph 117). 33 Tele2 Sverige and Watson and Others (paragraph 118). 34 Tele2 Sverige and Watson and Others (paragraph 119). 35 Idem. 36 Tele2 Sverige and Watson and Others (paragraph 120). 37 Idem. 38 Tele2 Sverige and Watson and Others (paragraph 121). 39 See Tele2 Sverige and Watson and Others (paragraph 122). 40 See Ministerio Fiscal (paragraph 53). 41 Ministerio Fiscal (paragraph 54). 42 Ministerio Fiscal (paragraph 55). 43 Ministerio Fiscal (paragraph 56). 44 Ministerio Fiscal (paragraph 57). 45 Ministerio Fiscal (paragraph 61). 46 Ministerio Fiscal (paragraph 59). 47 Idem. 48 Ministerio Fiscal (paragraph 60). 49 Ministerio Fiscal (paragraph 62). 50 See Ministerio Fiscal. See, to the same effect, the Opinion of Advocate General Saugmandsgaard Øe in Ministerio Fiscal (C‑207/16, EU:C:2018:300), who observes that the police authorities’ request concerned ‘a clearly defined period of short duration, namely around 12 days’ (points 33 and 84). 51 Ministerio Fiscal (paragraph 56). 52 Paragraph 1111(11) of the Law on electronic communications and Paragraph 901 of the Code of Criminal Procedure. 53 See Ministerio Fiscal (paragraph 53). 54 Also referred to as the ‘ultima ratio principle’. 55 Tele2 Sverige and Watson and Others (paragraph 120 and the case-law cited), italics added. See, to the same effect, Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017 (EU:C:2017:592, paragraphs 202 and 208). 56 See, inter alia, judgment of 6 October 2015, Schrems (C‑362/14, EU:C:2015:650, paragraphs 40 and 41 and the case-law cited). See, also, Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017 (EU:C:2017:592, paragraph 229). 57 Judgment of 8 April 2014, Commission v Hungary (C‑288/12, EU:C:2014:237, paragraph 51 and the case-law cited). 58 Judgment of 8 April 2014, Commission v Hungary (C‑288/12, EU:C:2014:237 paragraph 53 and the case-law cited). 59 See judgment of 9 October 2019, NJ (Public Prosecutor’s Office, Vienna (C‑489/19 PPU, EU:C:2019:849, paragraph 38 and the case-law cited). 60 See, most recently, judgment of 12 December 2019, JR and YC (Procureurs de Lyon et Tours and Procureurs de Lyon et de Tours), C‑566/19 PPU and C‑626/19 PPU, EU:C:2019:1077, in which the Court found, inter alia, that the evidence presented to it was sufficient to demonstrate that ‘in France, public prosecutors have the power independently to assess, particularly in relation to the executive, whether the issuing of a European Arrest Warrant is necessary and proportionate, and exercise that power objectively, taking into account all of the inculpatory and exculpatory evidence’ (paragraph 55 of the judgment). 61 On the two aspects of the requirement of independence see, by analogy, with regard to national courts called upon to rule on issues relating to the interpretation and application of EU law, judgment of 5 November 2019, Commission v Poland (Independence of ordinary courts) (C‑192/18, EU:C:2019:924, paragraphs 108 to 110 and the case-law cited). 62 See, inter alia, judgment of 27 May 2019, PF (Prosecutor General of Lithuania) (C‑509/18, EU:C:2019:457, paragraphs 39 and 40). 63 Judgment of 12 December 1996, X (C‑74/95 and C‑129/95, EU:C:1996:491, paragraph 19). 64 For example, the public prosecutor’s office grants authorisation for the undercover surveillance of a person, an object or a location and, in many cases, for a search. 65 See, also, to the same effect, Paragraph 30(2) of the Code of Criminal Procedure. 66 C-293/12 and C-594/12, EU:C:2014:238. 67 According to the evidence submitted to the Court at the hearing, under Estonian law, that judicial review may be carried out at the end of the pre-trial procedure when a suspect, having been informed of the criminal file, decides to challenge a procedural document, or at the hearing.