Key facts of the case:
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:
In the light of all the foregoing considerations, I propose that the Court answers the questions referred for a preliminary ruling by the Raad van State (Council of State, Netherlands) as follows:
8) B is a Turkish national born in 1982 whose spouse, P, ( 12 ) has dual Netherlands and Turkish nationality. On 17 February 2014, P submitted an application for a temporary residence permit for B for the purpose of family reunification. After an initial rejection, the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, ‘the Staatssecretaris’) finally granted the permit requested by decision of 4 April 2014 on the condition that B provided biometric data. B consented to the collection of those data before lodging, on 2 May 2014 and together with P, an administrative appeal against the collection and processing of her biometric data, in which B and P pleaded that the obligation to provide B’s biometric data was contrary to Article 7 of Decision No 2/76 and Article 13 of Decision No 1/80. On 23 December 2014, the Staatssecretaris refuted the argument that that obligation constituted a new restriction within the meaning of those provisions, the obligation to cooperate in the recording of data for identification purposes already having been established by legislation dating from 1965. While it is true that the collection and processing of data affect Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, ( 13 ) that adverse effect is justified by a legitimate objective. The Staatssecretaris considered that the collection and processing of biometric data are not contrary to Article 9 of the Association Agreement, either. ( 14 ) In contrast to the situation of EU citizens, the residence permit for Turkish nationals for the first admission is not declaratory but constitutive in nature, which justifies the biometric data of EU citizens not being collected or stored. The Staatssecretaris moreover pointed out that the passports of EU citizens contained biometric data.
13) It is in those circumstances that the Raad van State (Council of State, Netherlands) decided to stay the proceedings and, by order lodged at the Registry of the Court on 2 February 2018, referred 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 storage of the biometric data of third-country nationals, including Turkish nationals, in a filing system within the meaning of Article 2(a) and (b) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [ ( 16 )] 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 storage 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 ... 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?’
25) To answer to the question referred, it must first be borne in mind that biometric data are sensitive personal data the use and processing of which must be regulated. As such, they are protected by Article 8 of the Charter. Their role in identifying persons has already been acknowledged in the case-law of the Court. In particular, the Court has already held that fingerprints constitute ‘personal data’, as they objectively contain unique information about individuals which allows those individuals to be identified with precision. ( 27 ) The EU legislature has provided for recourse to be had to such data in order to establish the identity of EU citizens ( 28 ) or of third-country nationals. ( 29 ) Moreover, the actions of national authorities consisting in the taking and storing of fingerprints on the sticker and in the central filing system for foreign nationals must be regarded as a processing of personal data which is also regulated. ( 30 )