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clear from recitals 14 and 15 of Directive 2000/31 that the protection of the confidentiality of
communications and of natural persons with regard to the processing of personal data in the context
of information society services are governed only by Directives 95/46 and 97/66, the latter of which
prohibits, in Article 5 thereof, all forms of interception or surveillance of communications, in order
to protect confidentiality.
200
Questions related to the protection of the confidentiality of communications and personal data must
be assessed on the basis of Directive 2002/58 and Regulation 2016/679, which replaced Directive
97/66 and Directive 95/46 respectively, and it should be noted that the protection that Directive
2000/31 is intended to ensure cannot, in any event, undermine the requirements under Directive
2002/58 and Regulation 2016/679 (see, to that effect, judgment of 29 January 2008, Promusicae,
C‑275/06, EU:C:2008:54, paragraph 57).
201
The obligation imposed by the national legislation referred to in paragraph 195 of the present
judgment on providers of access to online public communication services and hosting service
providers requiring them to retain personal data relating to those services must, therefore – as the
Advocate General proposed in point 141 of his Opinion in Joined Cases La Quadrature du Net and
Others (C‑511/18 and C‑512/18, EU:C:2020:6) – be assessed on the basis of Directive 2002/58 or
Regulation 2016/679.
202
Accordingly, depending on whether the provision of services covered by that national legislation
falls within the scope of Directive 2002/58 or not, it is to be governed either by that directive,
specifically by Article 15(1) thereof, read in the light of Articles 7, 8 and 11 and Article 52(1) of the
Charter, or by Regulation 2016/679, specifically by Article 23(1) of that regulation, read in the light
of the same articles of the Charter.
203
In the present instance, it is conceivable, as the European Commission submitted in its written
observations, that some of the services to which the national legislation referred to in paragraph 195
of the present judgment is applicable constitute electronic communications services within the
meaning of Directive 2002/58, which is for the referring court to verify.
204
In that regard, Directive 2002/58 covers electronic communications services that satisfy the
conditions set out in Article 2(c) of Directive 2002/21, to which Article 2 of Directive 2002/58
refers and which defines an electronic communications service as ‘a service normally provided for
remuneration which consists wholly or mainly in the conveyance of signals on electronic
communications networks, including telecommunications services and transmission services in
networks used for broadcasting’. As regards information society services, such as those referred to
in paragraphs 197 and 198 of the present judgment and covered by Directive 2000/31, they are
electronic communications services to the extent that they consist wholly or mainly in the
conveyance of signals on electronic communications networks (see, to that effect, judgment of
5 June 2019, Skype Communications, C‑142/18, EU:C:2019:460, paragraphs 47 and 48).
205
Therefore, Internet access services, which appear to be covered by the national legislation referred
to in paragraph 195 of the present judgment, constitute electronic communications services within
the meaning of Directive 2002/21, as is confirmed by recital 10 of that directive (see, to that effect,
judgment of 5 June 2019, Skype Communications, C‑142/18, EU:C:2019:460, paragraph 37). That
is also the case for web-based email services, which, it appears, could conceivably also fall under
that national legislation, since, on a technical level, they also involve wholly or mainly the
conveyance of signals on electronic communications networks (see, to that effect, judgment of
13 June 2019, Google, C‑193/18, EU:C:2019:498, paragraphs 35 and 38).
206
With regard to the requirements resulting from Article 15(1) of Directive 2002/58, read in the light
of Articles 7, 8 and 11 and Article 52(1) of the Charter, it is appropriate to refer back to all of the
findings and assessments made in the context of the answer given to question 1 in each of Cases
C‑511/18 and C‑512/18 and to questions 1 and 2 in Case C‑520/18.
2/15/2021, 4:58 PM