Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Reference for a preliminary ruling – Telecommunications sector – Processing of personal data and the protection of privacy – Directive 2002/58/EC – Article 15(1) – Restriction of the confidentiality of electronic communications – Judicial decision authorising the interception, recording and storage of telephone conversations of persons suspected of having committed a serious intentional offence – Practice whereby the decision is drawn up in accordance with a pre-drafted template text that does not contain individualised reasons – Second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union – Obligation to state reasons
Outcome of the case:
On those grounds, the Court (Third Chamber) hereby rules:
Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) read in the light of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union,
is to be interpreted as meaning that it does not preclude a national practice under which judicial decisions authorising the use of special investigative methods following a reasoned and detailed application from the criminal authorities, are drawn up by means of a pre-drafted text which does not contain individualised reasons, but which merely states, in addition to the validity period of the authorisation, that the requirements laid down by the legislation to which those decisions refer have been complied with, provided that the precise reasons why the court with jurisdiction considered that the legal requirements had been complied with, in the light of the factual and legal circumstances characterising the case in question, can be easily and unambiguously inferred from a cross-reading of the decision and the application for authorisation, the latter of which must be made accessible, after the authorisation has been given, to the person against whom the use of special investigative methods has been authorised.
32 In particular, that court points out that judicial decisions such as telephone tapping authorisations limit, with regard to the natural persons concerned, the rights and freedoms guaranteed in Articles 7, 8 and 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’). It also has doubts as to whether such a practice complies with the right to effective judicial protection, enshrined in Article 47 of the Charter, and the principle of proportionality as a general principle of EU law.
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39 In the light of those preliminary clarifications, it must be held that, by its first question, the referring court asks, in essence, whether Article 15(1) of Directive 2002/58, read in the light of the second paragraph of Article 47 of the Charter, must be interpreted as precluding a national practice under which judicial decisions authorising the use of special investigative methods, following a reasoned request by the criminal authorities, are drawn up in accordance with a pre-drafted text and without individualised reasons, merely stating, apart from the validity period of those authorisations, that the requirements laid down by that legislation, to which those decisions refer, have been complied with.
41 The latter article thus provides that Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5 of that directive, in particular when such a restriction constitutes a necessary, appropriate and proportionate measure within a democratic society, to ensure the prevention, investigation, detection and prosecution of criminal offences. It also states that all those legislative measures must be in accordance with the general principles of EU law, including the rights, freedoms and principles set out in the Charter.
43 Such measures and conditions must be in accordance with the general principles of EU law, including the principle of proportionality, and with the fundamental rights guaranteed by the Charter, as follows from Article 15(1) of Directive 2002/58, which refers to Article 6(1) and (2) TEU (see, to that effect, judgment of 6 October 2020, La Quadrature du Net and Others, C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791, paragraph 113 and the case-law cited).
44 In particular, the procedural conditions referred to in paragraph 42 above must be in accordance with the right to a fair trial, enshrined in the second paragraph of Article 47 of the Charter, which corresponds, as is apparent from the explanations relating to that article, to Article 6(1) ECHR. That right requires that all judgments must state the reasons on which they are based (see, to that effect, judgment of 6 September 2012, Trade Agency, C‑619/10, EU:C:2012:531, paragraphs 52 and 53 and the case-law cited).
45 Therefore, where a legislative measure adopted under Article 15(1) of Directive 2002/58 provides that restrictions to the principle of confidentiality of electronic communications laid down in Article 5(1) of that directive may be adopted by means of judicial decisions, Article 15(1), read in conjunction with the second paragraph of Article 47 of the Charter, requires Member States to provide that such decisions must state the reasons on which they are based.
46 Indeed, as the Advocate General noted in point 38 of his Opinion, the right to an effective judicial review, guaranteed by Article 47 of the Charter, requires that the person concerned must be able to ascertain the reasons for a decision taken in relation to him or her, either by reading that decision or by being informed of those reasons, so as to enable him or her to defend his or her rights in the best possible conditions and to decide in full knowledge of the facts whether or not to refer the matter to the court with jurisdiction to review the lawfulness of that decision (see, by analogy, judgment of 24 November 2020, Minister van Buitenlandse Zaken, C‑225/19 and C‑226/19, EU:C:2020:951, paragraph 43 and the case-law cited).
52 Thus, that practice forms part of legislative measures, adopted under Article 15(1) of Directive 2002/58, which provide for the possibility of taking reasoned judicial decisions which have the effect of restricting the principle of confidentiality of electronic communications and traffic data, laid down in Article 5(1) of that directive. In that regard, it is deemed to implement the obligation to state reasons laid down by those legislative measures in accordance with the requirements of the second paragraph of Article 47 of the Charter referred to in the last sentence of Article 15(1) of that directive with the reference to Article 6(1) and (2) TEU.
55 On the other hand, once the person concerned has been informed that special investigative methods have been applied to him or her, the obligation to state reasons referred to in the second paragraph of Article 47 of the Charter requires that that person be, in accordance with the case-law referred to in paragraph 46 of the present judgment, in a position to understand the reasons why the use of those methods has been authorised, in order to be able, where appropriate, to challenge that authorisation appropriately and effectively. That requirement also applies to any court, such as, inter alia, the trial court, which, in accordance with its powers, must examine, of its own motion or at the request of the person concerned, the lawfulness of that authorisation.
56 It will therefore be for the referring court to determine whether, in the context of the practice referred to in paragraph 39 above, compliance with that provision of the Charter and Directive 2002/58 is guaranteed. To that end, it will have to determine whether the person to whom special investigative methods have been applied and the court responsible for reviewing the legality of the authorisation to use those methods are both in a position to understand the reasons for that authorisation.
59 Furthermore, in order to comply with the obligation to state reasons under the second paragraph of Article 47 of the Charter, it is important, as the Advocate General observed, in essence, in point 41 of his Opinion, that those same persons should be able to understand easily and unambiguously, by means of a cross-reading of the authorisation to use special investigative methods and of the accompanying reasoned application, the precise reasons why that authorisation was granted in the light of the factual and legal circumstances characterising the individual case underlying the application, just as it is imperative that such a cross-reading should reveal the validity period of the authorisation.
61 If a cross-reading of the application and subsequent authorisation does not make it possible to understand, easily and unequivocally, the reasons for that authorisation, it must be held that the obligation to state reasons which follows from Article 15(1) of Directive 2002/58, read in the light of the second paragraph of Article 47 of the Charter, has not been complied with.
62 It should also be added that, in accordance with Article 52(3) of the Charter, the rights contained in the Charter have the same meaning and scope as the corresponding rights guaranteed by the ECHR, which does not preclude EU law from affording more extensive protection.
65 In the light of the foregoing grounds, the answer to the first question is that Article 15(1) of Directive 2002/58, read in the light of the second paragraph of Article 47 of the Charter, must be interpreted as meaning that it does not preclude a national practice under which judicial decisions authorising the use of special investigative methods following a reasoned and detailed application from the criminal authorities, are drawn up by means of a pre-drafted text which does not contain individualised reasons, but which merely states, in addition to the validity period of the authorisation, that the requirements laid down by the legislation to which those decisions refer have been complied with, provided that the precise reasons why the court with jurisdiction considered that the legal requirements had been complied with, in the light of the factual and legal circumstances characterising the case in question, can be easily and unambiguously inferred from a cross-reading of the decision and the application for authorisation, the latter of which must be made accessible, after the authorisation has been given, to the person against whom the use of special investigative methods has been authorised.