In the Opinion he delivered on Thursday 3 May to the European Court of Justice (ECJ), Advocate General, Henrik Saugmandsgaard Øe, holds that in Case C-207/16 even criminal offences that are not particularly serious may justify disclosure of basic electronic communications metadata that allow for the identification of an individual, provided such disclosure does not seriously undermine the right to privacy.
In an investigation concerning the robbery of a wallet and a mobile telephone, the Spanish police asked the examining magistrate to grant it access to identification data of users of telephone numbers activated from the stolen telephone for a period of 12 days from the date of the theft. The examining magistrate refused that request on the ground that it did not constitute a ‘serious’ offence and did not justify access to identification data under Spanish law.
Although Directive 2002/58/EC on privacy and electronic communications provides that Member States may restrict citizens’ rights where such a restriction constitutes a necessary, appropriate and proportionate measure to obtain certain goals, two Court judgements of 2014 and 2016 (see EUROPE 11056, 11694), used the concept of ‘serious offences’ to assess the lawfulness and proportionality of interference with the right to respect for private and family life and the right to protection of personal data enshrined in the Charter of Fundamental Rights of the European Union.
Requested to assess the case, the Provincial Court of Tarragona, submitted a request for preliminary ruling to the Court on whether the setting of the seriousness threshold for offences, introduced since the decision of the examining judge mentioned in Spanish law, can determine a limitation on fundamental rights.
In his Opinion, Mr Saugmandsgaard Øe states, first of all, that a measure such as that requested by the Spanish police constitutes an interference with the right to respect for private and family life and with the right to protection of personal data. Nevertheless, the Advocate General is of the view that the targeted measure is for a limited period and the potentially harmful effects are both slight and limited and the interference is therefore not particularly serious as regards the rights mentioned above.
Interpreting Directive 2002/58/EC, the Advocate General concludes that this kind of interference that is not serious can be justified in non-serious offences, which is the case in point. (Original version in French by Lucas Tripoteau)