This request for a preliminary ruling concerns, in essence, the interpretation of Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 11) (‘Directive 2002/58’), read in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
The request has been made in proceedings brought by the Ministerio Fiscal (Public Prosecutor’s Office, Spain) against the decision of the Juzgado de Instrucción No 3 de Tarragona (Court of Preliminary Investigation No 3, Tarragona, Spain, ‘the investigating magistrate’) refusing to grant the police access to personal data retained by providers of electronic communications services.
According to Article 2(b) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31), ‘processing of personal data’ means ‘any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction’.
Article 3 of the directive, entitled ‘Scope’, provides as follows:
Recitals 2, 11, 15 and 21 of Directive 2002/58 state:
Article 1 of Directive 2002/58, entitled ‘Scope and aim’, provides:
Article 2 of Directive 2002/58, entitled ‘Definitions’, is worded as follows:
Article 3 of Directive 2002/58, entitled ‘Services concerned’, provides:
Article 5 of Directive 2002/58, entitled ‘Confidentiality of the communications’, is worded as follows:
Article 6 of Directive 2002/58, entitled ‘Traffic data’, provides:
Article 15 of that directive, entitled ‘Application of certain provisions of Directive [95/46]’, provides, in paragraph 1 thereof:
Article 1 of Ley 25/2007 de conservación de datos relativos a las comunicaciones electrónicas y a la redes públicas de comunicaciones (Law 25/2007 on the retention of data relating to electronic communications and to public communication networks) of 18 October 2007 (BOE No 251 of 19 October 2007, p. 42517) provides:
Article 13(1) of Ley Orgánica 10/1995 del Código Penal (Criminal Code) of 23 November 1995 (BOE No 281 of 24 November 1995, p. 33987) is worded as follows:
Article 33 of the Criminal Code provides:
After the facts in the main proceedings had taken place, the Ley de Enjuiciamiento Criminal (Code of Criminal Procedure) was amended by Ley Orgánica 13/2015 de modificación de la Ley de Enjuiciamiento Criminal para el fortalecimiento de las garantías procesales y la regulación de las medidas de investigación tecnológica (Organic Law 13/2015 amending the Code of Criminal Procedure in order to strengthen the procedural guarantees and regulate technological investigative measures) of 5 October 2015 (BOE No 239 of 6 October 2015, p. 90192).
The law entered into force on 6 December 2015. It brings the field of access to telephone and telematic communications data which have been retained by providers of electronic communications services within the purview of the Code of Criminal Procedure.
Article 579(1) of the Code of Criminal Procedure in the version as amended by Organic Law 13/2015 provides:
Article 588 ter j of the Code is worded as follows:
Mr Hernandez Sierra lodged a complaint with the police for a robbery, which took place on 16 February 2015, during which he was injured and his wallet and mobile telephone were stolen.
On 27 February 2015, the police requested the investigating magistrate to order various providers of electronic communications services to provide (i) the telephone numbers that had been activated between 16 February and 27 February 2015 with the International Mobile Equipment Identity code (‘the IMEI code’) of the stolen mobile telephone and (ii) the personal data relating to the identity of the owners or users of the telephone numbers corresponding to the SIM cards activated with the code, such as their surnames, forenames and, if need be, addresses.
By order of 5 May 2015, the investigating magistrate refused that request. The latter held that the measure requested would not serve to identify the perpetrators of the offence. Moreover, it refused to grant the request on the ground that Law 25/2007 limited the communication of the data retained by the providers of electronic communications services to serious offences. Under the Criminal Code, serious offences are punishable by a term of imprisonment of more than five years, whereas the facts at issue in the main proceedings did not appear to constitute such an offence.
The Public Prosecutor’s Office appealed against that order before the referring court, claiming that communication of the data at issue ought to have been allowed by reason of the nature of the facts and pursuant to a judgment of the Tribunal Supremo (Supreme Court, Spain) of 26 July 2010 relating to a similar case.
The referring court explains that, subsequent to that order, the Spanish legislature amended the Code of Criminal Procedure by adopting Organic Law 13/2015. That legislation, which is relevant to the resolution of the case in the main proceedings, introduced two new alternative criteria for determining the degree of seriousness of an offence. The first is a substantive criterion, relating to conduct which corresponds to criminal classifications the criminal nature of which is specific and serious, and which is particularly harmful to individual and collective legal interests. Moreover, the national legislature relied on a formal normative criterion, based on the penalty prescribed for the offence in question. The threshold of three years’ imprisonment envisaged by that criterion does, however, cover the great majority of offences. In addition, the referring court considers that the State’s interest in punishing criminal conduct cannot justify disproportionate interferences with the fundamental rights enshrined in the Charter.
In that regard, the referring court considers that, in the main proceedings, Directives 95/46 and 2002/58 establish a link with the Charter. The national legislation at issue in the main proceedings therefore comes within its scope, in accordance with Article 51(1) of the Charter, despite the fact that Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58 (OJ 2006 L 105, p. 54) was annulled by the judgment of 8 April 2014, Digital Rights Ireland and Others (C‑293/12 and C‑594/12, EU:C:2014:238).
In that judgment, the Court recognised that the retention and communication of traffic data constitute particularly serious interferences with the rights guaranteed in Articles 7 and 8 of the Charter and established criteria for the assessment of whether the principle of proportionality has been observed, including the seriousness of the offences warranting the retention of data and access thereto for the purposes of an investigation.
In those circumstances, the Audiencia Provincial de Tarragona (Provincial Court, Tarragona, Spain) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
By decision of the President of the Court of 23 May 2016, the proceedings before the Court were stayed pending delivery of the judgment in Tele2 Sverige and Watson and Others, C‑203/15 and C‑698/15 (judgment of 21 December 2016, EU:C:2016:970, hereinafter ‘Tele2 Sverige and Watson and Others’). Further to the delivery of that judgment, the referring court was asked whether it wished to maintain or withdraw its request for a preliminary ruling. In its response by letter of 30 January 2017, received at the Court on 14 February 2017, the referring court stated that, in its view, that judgment did not enable it to assess with a sufficient degree of certainty the national legislation at issue in the main proceedings in the light of EU law. Consequently, the proceedings before the Court were resumed on 16 February 2017.
The Spanish Government claims that, first, the Court lacks jurisdiction to reply to the request for a preliminary ruling and, secondly, the request is inadmissible.
In its written observations submitted to the Court, the Spanish Government expressed the view, endorsed by the United Kingdom Government during the hearing, that the Court does not have jurisdiction to answer the question referred for a preliminary ruling, on the ground that, in accordance with the first indent of Article 3(2) of Directive 95/46 and Article 1(3) of Directive 2002/58, the case in the main proceedings is excluded from the scope of those two directives. Therefore, the case does not fall within the scope of EU law, with the result that the Charter, in accordance with Article 51(1) thereof, is not applicable.
According to the Spanish Government, the Court did, admittedly, rule in Tele2 Sverige and Watson and Others that a legislative measure governing national authorities’ access to data retained by providers of electronic communications services comes within the scope of Directive 2002/58. However, the present case concerns a request for access made by a public authority, by virtue of a judicial decision in connection with a criminal investigation, to personal data retained by providers of electronic communications services. The Spanish Government infers that the request for access is part of national authorities’ exercise of jus puniendi, as a result of which it constitutes an activity of the State in areas of criminal law falling under the exception provided for in the first indent of Article 3(2) of Directive 95/46 and Article 1(3) of Directive 2002/58.
In order to assess the claim that the Court does not have jurisdiction, it must be observed that Article 1(1) of Directive 2002/58 states that the directive provides for the harmonisation of the national provisions required, inter alia, to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communications sector. In accordance with Article 1(2) thereof, the directive particularises and complements Directive 95/46 for the purposes set out in Article 1(1).
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).
The protection of the confidentiality of electronic communications and related traffic data, guaranteed by Article 5(1) of Directive 2002/58, applies to the measures taken by all persons other than users, whether private persons or bodies or State bodies. As confirmed in recital 21 of that directive, the aim of the directive is to prevent unauthorised access to communications, including ‘any data related to such communications’, in order to protect the confidentiality of electronic communications (Tele2 Sverige and Watson and Others, paragraph 77).
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.
In the present case, as stated in the order for reference, the request at issue in the main proceedings, by which the police seeks judicial authorisation to access personal data retained by providers of electronic communications services, is based on Law 25/2007, read in conjunction with the Code of Criminal Procedure in the version applicable to the facts in the main proceedings, which governs the access of public authorities to such data. That legislation permits the police, in the event that the judicial authorisation applied for on the basis of that legislation is granted, to require providers of electronic communications services to make personal data available to it and, in so doing, in the light of the definition in Article 2(b) of Directive 95/46, which is applicable in connection with Directive 2002/58 pursuant to the first paragraph of Article 2 of the latter directive, to ‘process’ those data within the meaning of the two directives. That legislation therefore governs the activities of providers of electronic communications services and, as a result, falls within the scope of Directive 2002/58.
In those circumstances, the fact, noted by the Spanish Government, that the request for access was made in connection with a criminal investigation does not make Directive 2002/58 inapplicable to the case in the main proceedings by virtue of Article 1(3) of the directive.
It is also irrelevant in that regard that the request for access at issue in the main proceedings relates, as is apparent from the Spanish Government’s written answer to a question raised by the Court and confirmed by both that government and the Public Prosecutor’s Office during the hearing, to the granting of access to only the telephone numbers corresponding to the SIM cards activated with the IMEI code of the stolen mobile telephone and to the data relating to the identity of the owners of those cards, such as their surnames, forenames and, if need be, addresses, not to the data relating to the communications carried out with those SIM cards and the location data concerning the stolen mobile telephone.
As observed by the Advocate General in point 54 of his Opinion, Directive 2002/58, pursuant to Article 1(1) and Article 3 thereof, governs all processing of personal data in connection with the provision of electronic communications services. In addition, in accordance with subparagraph (b) of the second paragraph of Article 2 of the directive, the notion of ‘traffic data’ covers ‘any data processed for the purpose of the conveyance of a communication on an electronic communications network or for the billing thereof’.
In that connection, as regards, more specifically, data relating to the identity of owners of SIM cards, it is apparent from recital 15 of Directive 2002/58 that traffic data may include, inter alia, the name and address of the person sending a communication or using a connection to carry out a communication. Data relating to the identity of owners of SIM cards can also prove necessary in order to bill for the electronic communications services provided and therefore form part of traffic data as defined in subparagraph (b) of the second paragraph of Article 2 of the directive. Consequently, those data fall within the scope of Directive 2002/58.
The Court therefore has jurisdiction to reply to the question raised by the referring court.
The Spanish Government argues that the request for a preliminary ruling is inadmissible on the ground that it does not clearly identify the provisions of EU law on which the Court is asked to give a preliminary ruling. What is more, the police request at issue in the main proceedings does not concern the interception of communications made by means of the SIM cards activated with the IMEI code of the stolen mobile telephone, but rather the establishment of a link between the cards and their owners, in such a way that the confidentiality of the communications is not affected. Article 7 of the Charter, referred to in the questions referred for a preliminary ruling, is therefore irrelevant to the present case.
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).
In the present case, the order for reference contains sufficient factual and legal information required both for the definition of the provisions of EU law referred to in the questions referred for a preliminary ruling and for the understanding of the scope of those questions. More specifically, it is apparent from the order for reference that the questions referred for a preliminary ruling are intended to enable the referring court to assess whether, and to what extent, the national legislation, on which the police request at issue in the main proceedings is based, pursues an objective which is capable of justifying infringement of the fundamental rights enshrined in Articles 7 and 8 of the Charter. According to the statements of the referring court, that national legislation falls within the scope of Directive 2002/58, with the result that the Charter is applicable to the case in the main proceedings. The questions referred for a preliminary ruling are thus directly related to the subject matter of the main proceedings and cannot therefore be regarded as hypothetical.
In those circumstances, the questions referred for a preliminary ruling are admissible.
By its two questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 15(1) of Directive 2002/58, read in the light of Articles 7 and 8 of the Charter, must be interpreted as meaning that public authorities’ access to data for the purpose of identifying the owners of SIM cards activated with a stolen mobile telephone, such as the surnames, forenames and, if need be, addresses of the owners of the SIM cards, entails interference with their fundamental rights, enshrined in those articles of the Charter, which is sufficiently serious to entail that access being limited, in the area of prevention, investigation, detection and prosecution of criminal offences, to the objective of fighting serious crime and, if so, by reference to which criteria the seriousness of the offence at issue must be assessed.
In that regard, it is apparent from the order for reference that, as observed in essence by the Advocate General in point 38 of his Opinion, the request for a preliminary ruling does not seek to determine whether the personal data at issue in the main proceedings have been retained by providers of electronic communications services in a manner consistent with the requirements laid down in Article 15(1) of Directive 2002/58, read in the light of Articles 7 and 8 of the Charter. As stated in paragraph 46 of this judgment, the request concerns only whether, and to what extent, the objective pursued by the legislation at issue in the main proceedings is capable of justifying the access of public authorities, such as the police, to such data, without the other conditions for access deriving from Article 15(1) forming part of the subject matter of the request.
More specifically, the referring court is uncertain as to the factors that should be taken into consideration in order to assess whether the offences in respect of which the police may be authorised, for the purposes of an investigation, to have access to personal data retained by providers of electronic communications services are sufficiently serious to warrant the interference entailed by such access with the fundamental rights enshrined in Articles 7 and 8 of the Charter, as interpreted by the Court in its judgment of 8 April 2014, Digital Rights Ireland and Others (C‑293/12 and C‑594/12, EU:C:2014:238), and in Tele2 Sverige and Watson and Others.
As to the existence of an interference with those fundamental rights, it should be borne in mind, as observed by the Advocate General in points 76 and 77 of his Opinion, that the access of public authorities to such data constitutes an interference with the fundamental right to respect for private life, enshrined in Article 7 of the Charter, even in the absence of circumstances which would allow that interference to be defined as ‘serious’, without it being relevant that the information in question relating to private life is sensitive or whether the persons concerned have been inconvenienced in any way. Such access also constitutes interference with the fundamental right to the protection of personal data guaranteed in Article 8 of the Charter, as it constitutes processing of personal data (see, to that effect, Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, points 124 and 126 and the case-law cited).
As regards the objectives that are capable of justifying national legislation, such as that at issue in the main proceedings, governing the access of public authorities to data retained by providers of electronic communications services and thereby derogating from the principle of confidentiality of electronic communications, it must be borne in mind that the list of objectives set out in the first sentence of Article 15(1) of Directive 2002/58 is exhaustive, as a result of which that access must correspond, genuinely and strictly, to one of those objectives (see, to that effect, Tele2 Sverige and Watson and Others, paragraphs 90 and 115).
As regards the objective of preventing, investigating, detecting and prosecuting criminal offences, it should be noted that the wording of the first sentence of Article 15(1) of Directive 2002/58 does not limit that objective to the fight against serious crime alone, but refers to ‘criminal offences’ generally.
In that regard, the Court has admittedly held that, in areas of prevention, investigation, detection and prosecution of criminal offences, only the objective of fighting serious crime is capable of justifying public authorities’ access to personal data retained by providers of electronic communications services which, taken as a whole, allow precise conclusions to be drawn concerning the private lives of the persons whose data is concerned (see, to that effect, Tele2 Sverige and Watson and Others, paragraph 99).
However, the Court explained its interpretation by reference to the fact that the objective pursued by legislation governing that access must be proportionate to the seriousness of the interference with the fundamental rights in question that that access entails (see, to that effect, Tele2 Sverige and Watson and Others, paragraph 115).
In accordance with the principle of proportionality, serious interference can be justified, in areas of prevention, investigation, detection and prosecution of criminal offences, only by the objective of fighting crime which must also be defined as ‘serious’.
By contrast, when the interference that such access entails is not serious, that access is capable of being justified by the objective of preventing, investigating, detecting and prosecuting ‘criminal offences’ generally.
It should therefore, first of all, be determined whether, in the present case, in the light of the facts of the case, the interference with fundamental rights enshrined in Articles 7 and 8 of the Charter that police access to the data in question in the main proceedings would entail must be regarded as ‘serious’.
In that regard, the sole purpose of the request at issue in the main proceedings, by which the police seeks, for the purposes of a criminal investigation, a court authorisation to access personal data retained by providers of electronic communications services, is to identify the owners of SIM cards activated over a period of 12 days with the IMEI code of the stolen mobile telephone. As noted in paragraph 40 of the present judgment, that request seeks access to only the telephone numbers corresponding to those SIM cards and to the data relating to the identity of the owners of those cards, such as their surnames, forenames and, if need be, addresses. By contrast, those data do not concern, as confirmed by both the Spanish Government and the Public Prosecutor’s Office during the hearing, the communications carried out with the stolen mobile telephone or its location.
It is therefore apparent that the data concerned by the request for access at issue in the main proceedings only enables the SIM card or cards activated with the stolen mobile telephone to be linked, during a specific period, with the identity of the owners of those SIM cards. Without those data being cross-referenced with the data pertaining to the communications with those SIM cards and the location data, those data do not make it possible to ascertain the date, time, duration and recipients of the communications made with the SIM card or cards in question, nor the locations where those communications took place or the frequency of those communications with specific people during a given period. Those data do not therefore allow precise conclusions to be drawn concerning the private lives of the persons whose data is concerned.
In those circumstances, access to only the data referred to in the request at issue in the main proceedings cannot be defined as ‘serious’ interference with the fundamental rights of the persons whose data is concerned.
As stated in paragraphs 53 to 57 of this judgment, the interference that access to such data entails is therefore capable of being justified by the objective, to which the first sentence of Article 15(1) of Directive 2002/58 refers, of preventing, investigating, detecting and prosecuting ‘criminal offences’ generally, without it being necessary that those offences be defined as ‘serious’.
In the light of the foregoing considerations, the answer to the questions referred is that Article 15(1) of Directive 2002/58, read in the light of Articles 7 and 8 of the Charter, must be interpreted as meaning that the access of public authorities to data for the purpose of identifying the owners of SIM cards activated with a stolen mobile telephone, such as the surnames, forenames and, if need be, addresses of the owners, entails interference with their fundamental rights, enshrined in those articles of the Charter, which is not sufficiently serious to entail that access being limited, in the area of prevention, investigation, detection and prosecution of criminal offences, to the objective of fighting serious crime.
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.