BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
authority, and where there was no requirement that the data concerned
should be retained within the European Union.
218. The CJEU declared the Court of Appeal’s question whether the
protection afforded by Articles 7 and 8 of the Charter was wider than that
guaranteed by Article 8 of the Convention inadmissible.
219. Following the handing down of the CJEU’s judgment, the case was
relisted before the Court of Appeal. On 31 January 2018 it granted
declaratory relief in the following terms: that section 1 of DRIPA was
inconsistent with European Union law to the extent that it permitted access
to retained data where the object pursued by access was not restricted solely
to fighting serious crime; or where access was not subject to prior review by
a court or independent administrative authority.
3. Ministerio Fiscal (Case C-207/16; ECLI:EU:C:2018:788)
220. This request for a preliminary ruling arose after Spanish police, in
the course of investigating the theft of a wallet and mobile telephone, asked
the investigating magistrate to grant them access to data identifying the
users of telephone numbers activated with the stolen telephone during a
period of twelve days prior to the theft. The investigating magistrate
rejected the request on the ground, inter alia, that the acts giving rise to the
criminal investigation did not constitute a “serious” offence. The referring
court subsequently sought guidance from the CJEU on fixing the threshold
of seriousness of offences above which an interference with fundamental
rights, such as competent national authorities’ access to personal data
retained by providers of electronic communications services, may be
justified.
221. On 2 October 2018 the Grand Chamber of the CJEU ruled that
Article 15(1) of Directive 2002/58/EC, read in the light of Articles 7 and 8
of the Charter of Fundamental Rights of the European Union, had to 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, entailed an interference with their fundamental
rights which was 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. In particular, it
indicated that:
“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.”
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