Deutsche Telekom AG v Bundesrepublik Deutschland.
Date: 2011-05-05
35. Article 25(2) of the Universal Service Directive must be interpreted in the light of its specific objective, which is to ensure compliance with the universal service obligation laid down in Article 5(1) of that directive.
39. In that regard, it should be borne in mind from the outset that, in paragraph 35 of its judgment in KPN Telecom , concerning the interpretation of Article 6(3) of the ONP Directive, the content of which is similar to that of Article 25(2) of the Universal Service Directive, the Court held that Article 6(3) did not seek to effect full harmonisation and that the Member States retained competence for determining whether in a specific national context certain additional data ought to be made available to third parties.
41. In that regard, it should first be observed that Article 25(2) of the Universal Service Directive is part of Chapter IV of that directive, which concerns end-user interests and rights. Yet the Court has held that the Framework Directive and the Universal Service Directive do not provide for full harmonisation of consumer‑protection aspects (Case C‑522/08 Telekomunikacja Polska [2010] ECR I‑0000, paragraph 29).
43. Thus, the CRF does not preclude national legislation such as that at issue in the main proceedings, which, being directed at any undertaking which assigns telephone numbers to end-users, affects electronic communications undertakings in a general and non-discriminatory manner – provided, however, that such legislation does not encroach upon the powers which the NRAs derive directly from the provisions of the CRF ( Telekomunikacja Polska , paragraphs 27 and 28; see also Case C‑424/07 Commission  v Germany  [2009] ECR I‑11431, paragraphs 78 and 91 to 99).
46. Secondly, national legislation such as that at issue in the main proceedings does not in any way affect the powers of the NRA concerned, arising under Article 16 of the Framework Directive and Article 17 of the Universal Service Directive, relating to the analysis of the various electronic communications markets and the imposition of regulatory obligations on undertakings with significant market power on markets which are not effectively competitive. None the less, the mere fact that, if the undertakings concerned comply with the national legislation at issue in the main proceedings, the NRA will no longer need, after any analysis it may carry out of the retail market concerned, to take any specific measures – that is to say, to require undertakings with significant market power to pass on external data to third-party undertakings – does not support the inference that the powers which the NRA concerned derives from Article 17 of the Universal Service Directive are directly affected (see, by analogy, as regards a general prohibition of tied sales, Telekomunikacja Polska , paragraph 28).
51. However, the right to the protection of personal data is not an absolute right, but must be considered in relation to its function in society (Joined Cases C‑92/09 and C‑93/09 Volker und Markus Schecke and Eifert  [2010] ECR I-0000, paragraph 48 and the case-law cited).
62. First, the wording of Article 12(2) of the Directive on privacy and electronic communications does not support the inference that the subscriber has a selective right to decide in favour of certain providers of publicly available directory enquiry services and directories. It should be noted in that regard that it is the publication itself of the personal data in a public directory with a specific purpose which may turn out to be detrimental for a subscriber. Where, however, the subscriber has consented to his data being published in a directory with a specific purpose, he will generally not have standing to object to the publication of the same data in another, similar directory.
63. Secondly, recital 39 to that directive confirms that the passing of subscribers’ personal data to third parties is ‘subject to the condition that the data may not be used for other purposes than those for which they were collected’.
64. Thirdly, the Directive on privacy and electronic communications refers to a situation in which provision can be made for the subscriber’s renewed or specific consent. Thus, under Article 12(3) of that directive, Member States may require that, for any purpose of a public directory other than the search of contact details of persons on the basis of their name and, where necessary, a minimum of other identifiers, additional consent be asked of the subscribers. Recital 39 to that directive states that renewed consent should be obtained from the subscriber ‘[i]f the party collecting the data from the subscriber or any third party to whom the data have been transmitted wishes to use the data for an additional purpose’.
65. It follows that, where a subscriber has been informed by the undertaking which assigned him a telephone number of the possibility that his personal data may be passed to a third-party undertaking, such as Deutsche Telekom, with a view to being published in a public directory, and where he has consented to the publication of those data in such a directory (in the present case, Deutsche Telekom’s directory), renewed consent is not needed from the subscriber for the passing of those same data to another undertaking which intends to publish a printed or electronic public directory, or to make such directories available for consultation through directory enquiry services, if it is guaranteed that the data in question will not be used for purposes other than those for which the data were collected with a view to their first publication. The consent given under Article 12(2) of the Directive on privacy and electronic communications, by a subscriber who has been duly informed, to the publication of his personal data in a public directory relates to the purpose of that publication and thus extends to any subsequent processing of those data by third-party undertakings active in the market for publicly available directory enquiry services and directories, provided that such processing pursues that same purpose.
66. Moreover, where a subscriber has consented to the passing of his personal data to a given undertaking with a view to their publication in a public directory of that undertaking, the passing of the same data to another undertaking intending to publish a public directory without renewed consent having been obtained from that subscriber is not capable of substantively impairing the right to protection of personal data, as recognised in Article 8 of the Charter.