CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
the data, defined by national law, which provided sufficient safeguards to
protect those rights. Accordingly, section 1 of DRIPA was not compatible
with Articles 7 and 8 of the Charter as it did not lay down clear and precise
rules providing for access to and use of retained data and access to that data
was not made dependent on prior review by a court or an independent
administrative body.
105. On appeal by the Secretary of State, the Court of Appeal sought a
preliminary ruling from the CJEU.
106. Before the CJEU this case was joined with the request for a
preliminary ruling from the Administrative Court of Appeal (kammarrätten)
in Stockholm in Case C-203/15 Tele2 Sverige AB v Post- och telestyrelsen.
Following an oral hearing in which some fifteen EU Member States
intervened, the CJEU gave judgment on 21 December 2016. The CJEU held
that Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and
11 and Article 52(1) of the Charter, had to be interpreted as precluding
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, was not restricted solely to fighting serious crime,
where access was not subject to prior review by a court or an independent
administrative authority, and where there was no requirement that the data
concerned should be retained within the European Union.
107. 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.
108. 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 EU 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)
109. 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
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