Reference for a preliminary ruling — EEC-Turkey Association Agreement — Decision No 2/76 — Article 7 — Decision No 1/80 — Article 13 — ‘Standstill’ clauses — New restriction — Collection, registration and retention of biometric data of Turkish nationals in a central filing system — Overriding reasons of public interest — Objective of preventing and combating identity and document fraud — Articles 7 and 8 of the Charter of Fundamental Rights of the European Union — Right to respect for private life — Right to the protection of personal data — Proportionality.
Outcome of the case:
On those grounds, the Court (First Chamber) hereby rules:
Article 13 of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey, signed in Ankara on 12 September 1963 by the Republic of Turkey, on the one hand, and by the Member States of the European Economic Community (EEC) and the Community, on the other, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 must be interpreted as meaning that a national rule, such as that at issue in the main proceedings, which makes the issuance of a temporary residence permit to third-country nationals, including Turkish nationals, conditional upon the collection, recording and retention of their biometric data in a central filing system does constitute a ‘new restriction’ within the meaning of that provision. Such a restriction is, however, justified by the objective of preventing and combating identity and document fraud.
31) In those circumstances, the Raad van State (Council of State) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) (a) Must Article 7 of [Decision No 2/76] and Article 13 of [Decision No 1/80] be interpreted as not precluding a national rule providing for the general processing and [retention] of the biometric data of third-country nationals, including Turkish nationals, in a filing system within the meaning of [Article 2(c)] of [Directive 95/46] on the ground that that national rule does not go further than is necessary to achieve the legitimate objective [pursued], [namely] preventing and combating identity fraud and document fraud?
(b) Is it significant in this regard that the duration of the [retention] of the biometric data is linked to the duration of the lawful and/or illegal stay of third-country nationals, including Turkish nationals?
(2) Must Article 7 of [Decision No 2/76] and Article 13 of [Decision No 1/80] be interpreted as meaning that a national rule does not constitute a restriction, within the meaning of those provisions, if the effect of that national rule on access to employment, as referred to in those provisions, is too uncertain and too indirect to be regarded as constituting an obstacle to such access?
(3) (a) If the answer to [the second question] is that a national rule which makes it possible to make available to third parties the biometric data of third-country nationals, including Turkish nationals, contained in a filing system, with a view to the prevention, detection and investigation of offences — whether or not of a terrorist nature — constitutes a new restriction, must Article 52(1), read in conjunction with Articles 7 and 8, of the Charter of Fundamental Rights of the European Union then be interpreted as precluding such a national rule?
(b) Is it significant in this regard that that third-country national, at the time when he is detained on suspicion of having committed an offence, has in his possession the residence document on which his biometric data are stored?’
53) In that respect, it should be recalled that Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’) provides, inter alia, that everyone has the right to respect for his or her private life. Under Article 8(1) thereof, everyone has the right to the protection of personal data concerning him or her.
54) Respect for private life with regard to the processing of personal data, recognised by Articles 7 and 8 of the Charter, concerns any information relating to an identified or identifiable individual (judgment of 9 November 2010, Volker und Markus Schecke and Eifert, C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 52).
55) Thus, first, fingerprints and the facial image of a natural person constitute personal data, as they objectively contain unique information about individuals which allows those individuals to be identified with precision (judgment of 17 October 2013, Schwarz, C‑291/12, EU:C:2013:670, paragraph 27). Second, the activities comprising the collection, recording and retention of fingerprints and the facial image of third-country nationals in a filing system constitute the processing of personal data within the meaning of Article 8 of the Charter (see, to that effect, Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, point 123 and the case-law cited).