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VRw Reports of Cases
OPINION OF ADVOCATE GENERAL
SAUGMANDSGAARD OE
delivered on 3 May 2018'
Case C-207/16
Ministerio Fiscal
(Request for a preliminary ruling from the Audiencia Provincial de Tarragona (Provincial Court,
Tarragona, Spain))
(Reference for a preliminary ruling - Electronic communications - Processing of personal data -
Right to private life and right to protection of personal data - Directive 2002/58/EC - Article 1 and
Article 15(1) - Charter of Fundamental Rights of the European Union - Articles 7 and 8 and
Article 52(1) - Data collected in the context of the provision of electronic communications services -
Request for access by a police authority for the purposes of a criminal investigation - Principle of
proportionality - Concept of 'serious crime' capable of justifying an interference with fundamental
rights - Criteria of seriousness - Penalty incurred - Minimum threshold)
I. Introduction
1. This reference for a preliminary ruling concerns, in essence, the interpretation of the concept of
'serious crime'2 within the meaning of the case-law of the Court resulting from the judgment in
Digital Rights Ireland and Others3 ('the judgment in Digital Rights') and then from the judgment in
Tele2 Sverige and Watson and Others' ('the judgment in Tele2'), where that concept was used as a
criterion for the assessment of the lawfulness and proportionality of an interference with the rights
enshrined in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union ('the
Charter'), namely, respectively, the right to respect for private and family life and the right to
protection of personal data.
1 Original language: French.
2 This footnote is not relevant to the English translation.
3 Judgment of 8 April 2014 (C-293/12 and C-594/12, EU:C:2014:238), in which the Court declared 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/EC (OJ 2006 L 105,
p. 54) invalid on the ground that 'by adopting Directive 2006/24, the EU legislature has exceeded the limits imposed by compliance with the
principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter' (paragraph 69).
4 Judgment of 21 December 2016 (C-203/15 and C-698/15, EU:C:2016:970), in which the Court held that EU law, first, 'preclud[es] national
legislation which, for the purpose of fighting crime, provides for the general and indiscriminate retention of all traffic and location data of all
subscribers and registered users relating to all means of electronic communication' and, second, 'preclud[es] national legislation governing the
protection and security of traffic and location data and, in particular, access of the competent national authorities to the retained data, where
the objective pursued by that access, in the context of fighting crime, is not restricted solely to fighting serious crime, where access is not
subject to prior review by a court or an independent administrative authority, and where there is no requirement that the data concerned
should be retained within the European Union' (operative parts 1 and 2).
ECLI:EU:C:2018:300
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