Staatssecretaris van Justitie en Veiligheid v A and Others.
Date: 2019-10-03
29


The referring court states that the national rule requiring the collection, recording and retention of the biometric data of third-country nationals in a central filing system constitutes a ‘new restriction’ within the meaning of Article 7 of Decision No 2/76 and Article 13 of Decision No 1/80. It notes that, in accordance with the Court’s case-law, such a restriction is prohibited unless it is justified by an overriding reason in the public interest, is appropriate for ensuring the attainment of the legitimate objective pursued and does not go beyond what is necessary to attain it. In that context, departing from the assumption that that rule pursues a legitimate objective and is suitable for achieving it, the referring court questions whether the collection, recording and retention of the biometric data of third-country nationals in a central filing system, as provided for by that rule, do not go beyond what is necessary to achieve the objective of preventing and combating identity and document fraud. According to the referring court, in so far as the taking and processing of biometric data constitute processing of personal data within the meaning of Article 2(b) of Directive 95/46 and in so far as such data fall within a special category of data within the meaning of Article 8(1) of that directive, derogations from and limitations on the protection of such data must apply only in so far as is strictly necessary, in accordance with the case-law of the Court following the judgment of 21 December 2016, Tele2 Sverige and Watson and Others (C‑203/15 and C‑698/15, EU:C:2016:970, paragraph 96).
33


In that regard, it should be noted, at the outset, that both Article 7 of Decision No 2/76 and Article 13 of Decision No 1/80 constitute standstill clauses which generally prohibit the introduction of any new national measure having the object or effect of making the exercise by a Turkish national of the freedom of movement for workers on national territory subject to conditions more restrictive than those which applied at the time when those decisions entered into force with regard to the Member State concerned (judgment of 7 August 2018, Yön, C‑123/17, EU:C:2018:632, paragraph 39).
34


The Court has previously held, first, that Article 7 of Decision No 2/76 applies ratione temporis to national measures introduced during the period between 20 December 1976 and 30 November 1980 and, second, that Article 13 of Decision No 1/80 applies ratione temporis to national measures introduced after 1 December 1980, which is the date marking the entry into force of that decision (judgment of 7 August 2018, Yön, C‑123/17, EU:C:2018:632, paragraph 48).
37


As has been pointed out in paragraph 33 above, the standstill clause set out in Article 13 of Decision No 1/80 prohibits generally the introduction of any new national measure having the object or effect of making the exercise by a Turkish national of the freedom of movement for workers on national territory subject to conditions more restrictive than those which applied at the time when Decision No 1/80 entered into force with regard to the Member State concerned (judgment of 29 March 2017, Tekdemir, C‑652/15, EU:C:2017:239, paragraph 25).
38


The Court has also recognised that that provision precludes the introduction into Member States’ legislation, as from the date of entry into force in the Member State concerned of Decision No 1/80, of any new restrictions on the exercise of the free movement of workers, including those relating to the substantive and/or procedural conditions governing the first admission into the territory of that Member State of Turkish nationals intending to exercise that freedom (judgment of 7 November 2013, Demir, C‑225/12, EU:C:2013:725, paragraph 34 and the case-law cited).
39


Furthermore, as is apparent from the case-law of the Court, national legislation tightening the conditions for the family reunification of Turkish workers lawfully residing in the Member State in question, in relation to the conditions applicable at the time of the entry into force in that Member State of Decision No 1/80, constitutes a ‘new restriction’, within the meaning of Article 13 of that decision, on the exercise by such Turkish workers of the freedom of movement for workers in that Member State (judgment of 29 March 2017, Tekdemir, C‑652/15, EU:C:2017:239, paragraph 31).
44


According to settled case-law, such a restriction is prohibited, unless it falls within the restrictions referred to in Article 14 of that decision or it is justified by an overriding reason in the public interest, is suitable to achieve the legitimate objective pursued and does not go beyond what is necessary in order to attain it (judgment of 7 August 2018, Yön, C‑123/17, EU:C:2018:632, paragraph 72 and the case-law cited).
46


With regard, first, to the question of whether the objective pursued by the national rule at issue in the main proceedings, namely the objective of preventing and combating identity and document fraud, may constitute an overriding reason in the public interest capable of justifying a ‘new restriction’ within the meaning of Article 13 of Decision No 1/80, it should be noted, in the first place, that the Court has previously held that the objective of preventing unlawful entry and residence constitutes such an overriding reason (judgment of 7 November 2013, Demir, C‑225/12, EU:C:2013:725, paragraph 41).
47


In the second place, the Court has also found that the collection and retention of fingerprints when issuing passports in order to prevent the falsification of passports and the fraudulent use of passports pursues an objective of public interest recognised by the European Union, namely prevention of illegal entry into its territory (see, to that effect, judgment of 17 October 2013, Schwarz, C‑291/12, EU:C:2013:670, paragraphs 36 to 38).
54


Respect for private life with regard to the processing of personal data, recognised by Articles 7 and 8 of the Charter, concerns any information relating to an identified or identifiable individual (judgment of 9 November 2010, Volker und Markus Schecke and Eifert, C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 52).
55


Thus, first, fingerprints and the facial image of a natural person constitute personal data, as they objectively contain unique information about individuals which allows those individuals to be identified with precision (judgment of 17 October 2013, Schwarz, C‑291/12, EU:C:2013:670, paragraph 27). Second, the activities comprising the collection, recording and retention of fingerprints and the facial image of third-country nationals in a filing system constitute the processing of personal data within the meaning of Article 8 of the Charter (see, to that effect, Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, point 123 and the case-law cited).
58


In the second place, the data referred to in the national rule at issue in the main proceedings are limited to 10 fingerprints and a facial image. The collection of those data, besides providing a reliable way of identifying the person concerned, is not of an intimate nature and does not cause any particular physical or mental discomfort for the person concerned (see, to that effect, judgment of 17 October 2013, Schwarz, C‑291/12, EU:C:2013:670, paragraph 48).
73


In that regard, according to settled case-law, the justification for making a request for a preliminary ruling is not for advisory opinions to be delivered on general or hypothetical questions, but rather that it is necessary for the effective resolution of a dispute concerning EU law (judgment of 21 December 2016, Tele2 Sverige and Watson and Others, C‑203/15 and C‑698/15, EU:C:2016:970, paragraph 130 and the case-law cited).