OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 29 January 2004

Case C-350/02



Commission of the European Communities

v

Kingdom of the Netherlands





(Failure of a Member State to fulfil obligations – Reasoned opinion – Requirement to give detailed explanation of complaints – Telecommunications – Directive 97/66/EC – Protection of privacy – Processing of personal data)

– Article 6(1) of the Directive required that all data not excluded by Article 6(2) to (4) of the Directive were to be erased or made anonymous; by contrast, Article 11.5(1) TL (the provision transposing it) required only that all data to be specified in a Royal Decree were to be erased. There would be complete transposition of the Directive only if the Decree contained a comprehensive list. Since the Commission had not received any supplementary provisions, it had therefore to conclude that Article 6(1) of the Directive had not been transposed completely;

– the terms in which Article 11.5(2) TL was couched were unclear, the provisions of paragraphs 2 to 5 of Article 6 of the Directive were each plainly treated as exceptions from Article 6(1) of the Directive, whereas on the Commission’s reading only paragraphs 2 and 3 provided for exceptions from paragraph 1 and the subsequent paragraphs related only to those exceptions;

– Article 11.5(3) TL provided that implementation of Article 11.5 TL would be provided for in a Royal Decree, which, however, had not been communicated to the Commission.

– that Article 6(1) of the Directive had indeed not been correctly transposed by Article 11.5(1) TL, in particular because the Royal Decree provided for had not been enacted, but that an amendment to the Telecommunications Law in the process of being enacted would be supplemented by removing the reference in Article 11.5 TL to enactment of a Decree, thus achieving complete transposition of Article 6(1) of the Directive;

– that in its opinion, Article 11.5(2) TL correctly transposed Article 6(2) to (5) of the Directive as separate exceptions to Article 6(1) of the Directive, although the terms in which Article 6 of the Directive was couched were not wholly unambiguous; and

– that the Royal Decree had not yet been enacted, but that because of the amendment in the process of being enacted the need for such a decree would disappear.

1. a declaration that, by failing to adopt all the laws, regulations and administrative provisions necessary to transpose Articles 6 and 9 of Directive 97/66 into national law, or in any event by not communicating those provisions to the Commission, the Kingdom of the Netherlands has failed to fulfil its obligations under the EC Treaty;

2. an order for costs against the Kingdom of the Netherlands.

– Dismiss the Commission’s action, first, in so far as it claims that Article 6(2), (3), (4) and (5) of Directive 97/66 had not been transposed correctly and, second, in so far as it claims that Article 6 of Directive 97/66 had not been completely transposed in that the supplementary provisions referred to in Article 11.5(3) TL had not been communicated to the Commission.

‘(17) Whereas the data relating to subscribers processed to establish calls contain information on the private life of natural persons and concern the right to respect for their correspondence or concern the legitimate interests of legal persons; whereas such data may only be stored to the extent that is necessary for the provision of the service for the purpose of billing and for interconnection payments, and for a limited time; whereas any further processing which the provider of the publicly available telecommunications services may want to perform for the marketing of its own telecommunications services may only be allowed if the subscriber has agreed to this on the basis of accurate and full information given by the provider of the publicly available telecommunications services about the types of further processing he intends to perform.’

– number or identification of the subscriber station,

– address of the subscriber and the type of station,

– total number of units to be charged for the accounting period,

– called subscriber number,

– type, starting time and duration of the calls made and/or the data volume transmitted,

– date of the call/service,

– other information concerning payments such as advance payment, payments by instalments, disconnection and reminders.’

(a) to calculate the bill of the subscriber or of the person who has undertaken in law to the provider to pay the bill, or for the purpose of payments for interconnection or other forms of access;

(b) to enable the provider to undertake market research or to market its own telecommunications services, if the subscriber has given his consent thereto;

(c) to determine disputes … or …;

(d) to manage traffic;

(e) to provide customers with information concerning traffic data provided that such data relate to such customers;

(f) to detect fraud; or

(g) if it is lawful by or under a law.

– is permitted for subscriber billing etc. (Article 11.5(2)(a) TL), this exception is plainly intended to correspond to Article 6(2) of the Directive, which provides that data may be processed ‘for the purpose of subscriber billing’;

– is permitted for marketing one’s own telecommunications services etc. (Article 11.5(2)(b) TL), this exception is plainly intended to correspond to Article 6(3) of the Directive, which permits a provider to process data ‘for the purpose of marketing its own telecommunications services’;

– is permitted for traffic management, giving customers information and fraud detection (Article 11.5(2)(d), (e) and (f) TL), this exception is plainly intended to correspond to Article 6(4) of the Directive, which permits the processing of data for ‘traffic management, customer enquiries, fraud detection’;

– is permitted in so far as is necessary to settle disputes (Article 11.5(2)(c) TL), this exception is plainly intended to correspond to Article 6(5) of the Directive, which is intended to allow a specified category of persons ‘to be informed of billing or traffic data … in view of settling disputes’;

– is permitted where authorised by or under a Law (Article 11.5(2)(g) TL), this exception has to be based on Article 6(2) to (5) of the Directive.

(1) declare that, by failing to adopt the laws, regulations or administrative provisions necessary to transpose Article 9 of Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector, by failing to transpose Article 6(1) of that Directive completely and correctly into national law, and by failing to adopt the laws, regulations and administrative provisions necessary to transpose Article 6 of the Directive, the Kingdom of the Netherlands has failed to fulfil its obligations under the EC Treaty, and, as to the remainder, dismiss the action as inadmissible.

(2) order the Kingdom of the Netherlands to bear its own costs and three quarters of the costs of the Commission and, as to the remainder, order the Commission to bear its own costs.

– Original language: German.

– OJ 1998 L 24, p. 1.

– OJ 2002 L 201, p. 37.

– See Case C-152/98 Commission v Netherlands [2001] ECR I-3463, paragraph 23.

– See Case C-439/99 Commission v Italy [2002] ECR I-305, paragraphs 10 to 12.

– See Commission v Italy (cited above, note 5), paragraphs 10 to 12.

– See Case C-52/90 Commission v Denmark [1992] ECR I-2187, paragraphs 17 to 18; Case C‑347/88 Commission v Greece [1990] ECR I-4747, paragraph 24; and Case 325/82 Commission v Germany [1984] ECR I-777, paragraphs 8 and 9. See in particular also the Opinion of Advocate General Lenz in Commission v Denmark (cited above), paragraphs 21 ff., 38 ff. and 42 to 45, and the Opinion of Advocate General Tesauro in Commission v Greece (cited above), paragraphs 8, 11 and 13 to 16.

– See above, paragraph 28.

– See above, paragraph 31.

– See Joined Cases 19/60, 21/60, 2/61 and 3/61 Société Fives Lilles Cail and Others v High Authority [1961] ECR 281; the Judgments and Opinions cited above in note 7; and Werner Günther, Die Präklusion neuer Angriffs-, Verteidigungs- und Beweismittel im Verfahren vor dem Gerichtshof der Europäischen Gemeinschaften, Carl Heymanns, Cologne, 1970, pp. 21 ff.

– See above, paragraph 24.

– See above, paragraph 28.

– See above, paragraph 31.

– See Case C-279/94 Commission v Italy [1997] ECR I‑4743, paragraph 4 of the rubic.

– See Case C-287/00 Commission v Germany [2002] ECR I-5811, paragraph 21.

– See Commission v Italy (cited above, note 5), paragraph 14.

– See above, paragraph 31.

– See above, paragraph 9.

– See above, paragraph 9.

– See above, paragraph 39.

– See Case C-220/94 Commission v Luxembourg [1995] ECR I-1589, paragraph 1 of the rubric; Case C-217/97 Commission v Germany [1999] ECR I-5087, paragraph 32; and see also below, paragraph 60.

– See, inter alia, Case C-147/00 Commission v France [2001] ECR I-2387, paragraph 26; Case C-364/00 Commission v Netherlands [2002] ECR I-4177, paragraph 8; and Case C-351/01 Commission v France [2002] ECR I-8101, paragraph 9.

– See above, paragraph 15.

– See above, paragraph 18.

– They are, ‘the number or identification of the subscriber station’, ‘the total number of units to be charged for the accounting period’, ‘called subscriber number’, ‘type, starting time and duration of the calls made and/or the data volume transmitted’ and ‘date of the call/service’.

– They are, ‘address of the subscriber and the type of station’ and ‘other information concerning payments such as advance payments, payments by instalments, disconnection and reminders’.

– See below, paragraphs 65 ff., and in particular paragraph 74.

– See Commission v Luxembourg (cited above, note 21), paragraph 1 of the rubric; and Commission v Germany (cited above, note 21), paragraph 32.

– See below, paragraphs 65 ff., and in particular paragraph 74.

– See above, paragraph 60.

– See above, paragraph 57.

– See above, paragraph 60.

– See above, paragraph 60.

– See above, paragraph 67 ff.

– See above, paragraph 60.

– See above, paragraph 45.