Proceedings brought by Ministerio Fiscal.
Date: 2018-10-02
Article 1(3) of Directive 2002/58 excludes from its scope ‘activities of the State’ in specified fields, including the activities of the State in areas of criminal law and in the areas of public security, defence and State security, including the economic well-being of the State when the activities relate to State security matters (Tele2 Sverige and Watson and Others, paragraph 69 and the case-law cited). The activities mentioned therein by way of example are, in any event, activities of the State or of State authorities and are unrelated to fields in which individuals are active (see, by analogy, in respect of the first indent of Article 3(2) of Directive 95/46, judgment of 10 July 2018, Jehovan Todistajat, C‑25/17, EU:C:2018:551, paragraph 38 and the case-law cited).
Article 3 of Directive 2002/58 states that the directive is to apply to the processing of personal data in connection with the provision of publicly available electronic communications services in public communications networks in the European Union, including public communications networks supporting data collection and identification devices (‘electronic communications services’). Consequently, that directive must be regarded as regulating the activities of the providers of such services (Tele2 Sverige and Watson and Others, paragraph 70).
As regards Article 15(1) of Directive 2002/58, the Court has previously held that the legislative measures that are referred to in that provision come within the scope of that directive, even if they concern activities characteristic of States or State authorities, and are unrelated to fields in which individuals are active, and even if the objectives that such measures must pursue overlap substantially with the objectives pursued by the activities referred to in Article 1(3) of Directive 2002/58. Article 15(1) necessarily presupposes that the national measures referred to therein fall within the scope of that directive, since it expressly authorises the Member States to adopt them only if the conditions laid down in the directive are met. Further, the legislative measures referred to in Article 15(1) of Directive 2002/58 govern, for the purposes mentioned in that provision, the activity of providers of electronic communications services (see, to that effect, Tele2 Sverige and Watson and Others, paragraphs 72 to 74).
The Court concluded that Article 15(1), read in conjunction with Article 3 of Directive 2002/58, must be interpreted as meaning that the scope of the directive extends not only to a legislative measure that requires providers of electronic communications services to retain traffic and location data, but also to a legislative measure relating to the access of the national authorities to the data retained by those providers (see, to that effect, Tele2 Sverige and Watson and Others, paragraphs 75 and 76).
It should also be noted that legislative measures requiring providers of electronic communications services to retain personal data or to grant competent national authorities access to those data necessarily involve the processing, by those providers, of the data (see, to that effect, Tele2 Sverige and Watson and Others, paragraphs 75 and 78). Such measures, to the extent that they regulate the activities of such providers, cannot be regarded as activities characteristic of States, referred to in Article 1(3) of Directive 2002/58.
The Court has consistently held that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions put by national courts concern the interpretation of a provision of EU law, the Court is, in principle, bound to give a ruling. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 10 July 2018, Jehovan Todistajat, C‑25/17, EU:C:2018:551, paragraph 31 and the case-law cited).