Michael Schwarz v Stadt Bochum.
Date: 2013-10-17
26. From the outset, it should be borne in mind that the right to respect for private life with regard to the processing of personal data concerns any information relating to an identified or identifiable individual (Joined Cases C‑92/09 and C‑93/09 Volker und Markus Schecke and Eifert  [2010] ECR I‑11063, paragraph 52, and Joined Cases C‑468/10 and C‑469/10 ASNEF and FECEMD  [2011] ECR I‑12181, paragraph 42).
27. Fingerprints constitute personal data, as they objectively contain unique information about individuals which allows those individuals to be identified with precision (see, to that effect, in particular, European Court of Human Rights judgment in S. and Marper v. United Kingdom , §§ 68 and 84, ECHR 2008).
33. Next, regarding whether the processing of fingerprints can be justified on the basis of some other legitimate basis laid down by law, it should be borne in mind from the outset that the rights recognised by Articles 7 and 8 of the Charter are not absolute rights, but must be considered in relation to their function in society (see, to that effect, Volker und Markus Schecke and Eifert , paragraph 48, and Case C‑543/09 Deutsche Telekom  [2011] ECR I‑3441, paragraph 51).
36. Second, concerning the objective of general interest underlying that limitation, it can be seen that Article 1(2) of Regulation No 2252/2004, when read in the light of recitals 2 and 3 of that regulation, has two specific aims: the first, to prevent the falsification of passports and the second, to prevent fraudulent use thereof, that is to say, use by persons other than their genuine holders.
37. Accordingly, Article 1(2) is designed, through pursuit of those aims, to prevent, inter alia, illegal entry into the European Union.
38. In those circumstances, it must be found that Article 1(2) of Regulation No 2252/2004 pursues an objective of general interest recognised by the Union.
40. Fourth, the Court must establish whether the limitations placed on those rights are proportionate to the aims pursued by Regulation No 2252/2004 and, by extension, to the objective of preventing illegal entry into the European Union. It must therefore be ascertained whether the measures implemented by that regulation are appropriate for attaining those aims and do not go beyond what is necessary to achieve them (see Volker und Markus Schecke and Eifert , paragraph 74).
46. Next, in assessing whether such processing is necessary, the legislature is obliged, inter alia, to examine whether it is possible to envisage measures which will interfere less with the rights recognised by Articles 7 and 8 of the Charter but will still contribute effectively to the objectives of the European Union rules in question (see, to that effect, Volker und Markus Schecke and Eifert , paragraph 86).
48. In this respect, it is be borne in mind, on the one hand, that that action involves no more than the taking of prints of two fingers, which can, moreover, generally be seen by others, so that this is not an operation of an intimate nature. Nor does it cause any particular physical or mental discomfort to the person affected any more than when that person’s facial image is taken.
61. The regulation not providing for any other form or method of storing those fingerprints, it cannot in and of itself, as is pointed out by recital 5 of Regulation No 444/2009, be interpreted as providing a legal basis for the centralised storage of data collected thereunder or for the use of such data for purposes other than that of preventing illegal entry into the European Union.
62. In those circumstances, the arguments put forward by the referring court concerning the risks linked to possible centralisation cannot, in any event, affect the validity of that regulation and would have, should the case arise, to be examined in the course of an action brought before the competent courts against legislation providing for a centralised fingerprint base.