Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)

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Judgment of the Court (Third Chamber) of 16 February 2023, HYA and Others (Grounds for authorising telephone tapping), Case C-349/21, EU:C:2023:102.

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

Facts

In 2017, the President of the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria), based on reasoned, detailed and substantiated applications from the Spetsializirana prokuratura (Specialised Public Prosecutor’s Office, Bulgaria), authorised the telephone tapping of four individuals suspected of committing serious intentional crimes. In giving reasons for his decisions, the President followed the existing national judicial practice of using a pre-drafted template designed to cover all possible cases of authorisation, that did not contain individualised reasons and which, in essence, merely stated that the requirements of the national legislation on telephone tapping, referred to in the template, had been met, as well as the length of time during which the use of special investigative methods was authorised.

In 2020, the Specialised Public Prosecutor’s Office accused those four persons, together with a fifth, of participating in an organised criminal gang for the purpose of enrichment, smuggling third-country nationals across Bulgarian borders, assisting them to enter Bulgarian territory illegally and receiving or giving bribes in connection with those activities. Since the content of the recorded conversations is of direct importance in establishing the validity of the indictment, the Specialised Criminal Court must first review the legality of the procedure that led to the authorisation of the telephone tapping.

In this context, that court asks whether the national practice regarding the reasons given for decisions authorising telephone tapping is compatible with the Directive 2002/58, read in the light of the Charter of Fundamental Rights of the European Union.

Findings of the ECJ  

As regards the national practice at issue – by which the court authorising the telephone tapping adopts its decision on the basis of a pre-drafted template designed to cover all possible cases of authorisation without containing individualised reasons –, the ECJ notes that the court which grants such authorisations takes its decision on the basis of an application, the content of which, provided for by law, must enable it to ascertain whether the conditions for the grant of such authorisation have been met. As that practice forms part of legislative measures 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 Directive 2002/58, Article 15(1) of that directive, read in the light of the second paragraph of Article 47 of the Charter, requires those judicial decisions to be reasoned.

In this context, the ECJ emphasises that, by signing a pre-drafted text in accordance with a template indicating that the legal requirements have been complied with, the court having jurisdiction endorses the grounds of the application while ensuring compliance with the legal requirements. According to the ECJ, “it would be artificial to require that the authorisation to use special investigative methods should contain a specific and detailed statement of reasons, whereas the application in respect of which that authorisation is granted already contains such a statement of reasons under national law”.

However, the obligation to state reasons referred to in the second paragraph of Article 47 of the Charter requires both the person to whom special investigative methods have been applied to and the court responsible for reviewing the legality of the authorisation to use those methods to be in a position to understand the reasons for that authorisation. This requires them to have access not only to the authorisation decision but also to the application of the authority which requested that authorisation. Indeed, they “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”. In particular, when the authorisation decision merely indicates the validity period of authorisation and states that the legal provisions have been met, it is essential that the application should clearly state all the necessary information so that the persons concerned are in a position to understand that, on the basis of this information alone, the court which granted the authorisation has, by endorsing the reasoning contained in the application, come to the conclusion that all the legal requirements have been met.

Therefore, the ECJ interprets  Article 15(1) of Directive 2002/58, read in the light of the second paragraph of Article 47 of the Charter, 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”.

Judgment of the Court (Fifth Chamber) of 16 March 2023, Colt Technology Services and Others, Case C‑339/21, EU:C:2023:214.

Reference for a preliminary ruling – Electronic communications networks and services – Directive (EU) 2018/1972 – Article 13 – Conditions attached to the general authorisation – Annex I, Part A, point 4 – Enabling of legal interception by competent national authorities – Article 3 – General objectives – National legislation on the reimbursement of costs associated with interception activities that telecommunications operators are ordered by the judicial authorities to carry out – Absence of full reimbursement mechanism – Principles of non-discrimination, proportionality and transparency

Facts

In Italy, telecommunications operators are required, in the event of a request from the judicial authorities, to carry out interception of communications (voice, computer, telematic and data) in return for a fixed rate. The amounts which they receive were modified by a decree of 2017, which established a reduction of at least 50% of the reimbursements of the costs associated with those interception operations. The telecommunications operators concerned in the main proceedings sought annulment of that decree from the Italian judicial authorities, claiming that the fees provided for do not fully cover the costs incurred.

The Consiglio di Stato (Council of State, Italy), hearing the case on appeal, asks the ECJ whether EU law, in particular Article 13 of Directive 2018/1972, precludes national legislation which does not require full reimbursement of the costs actually incurred by providers of electronic communications services when they enable the legal interception of electronic communications by the competent national authorities

Findings of the ECJ 

According to Article 13 of Directive 2018/1972, the general authorisation for the provision of electronic communications networks or services may be subject only to the conditions listed in Annex I to that directive, and those conditions are to be non-discriminatory, proportionate and transparent. Those conditions include the condition of enabling legal interception by the competent national authorities.

However, the EU legislature neither imposed nor excluded reimbursement, by the Member States concerned, of the costs that would be incurred by the undertakings concerned when they enable legal interception in accordance with the terms of that condition. Therefore, in the absence of clarification in that regard in Directive 2018/1972, the Member States have discretion in the matter and such discretion must be exercised in accordance with the principles of non-discrimination, proportionality and transparency. 

Therefore, the ECJ interprets Article 13 of Directive 2018/1972 as “not precluding national legislation which does not require full reimbursement of the costs actually incurred by providers of electronic communications services when they enable the legal interception of electronic communications by the competent national authorities, provided that that legislation is non-discriminatory, proportionate and transparent”.

In the present case, it appears to the ECJ that the national legislation at issue in the main proceedings is non-discriminatory, proportionate and transparent, which is, however, for the referring court to ascertain. The ECJ stresses that the reimbursements provided for by the national legislation at issue in relation to the condition of enabling legal interception are comparable for all operators offering electronic communications services in Italy, since the reimbursements are provided for on the basis of fixed unit rates, determined by type of interception service carried out. Furthermore, those rates must, according to the applicable Italian legislation, be calculated by the authorities by taking account of technological progress in the sector, which has made certain services less expensive, and of the fact that those services are essential to the pursuit of general aims of an overriding public interest and that they can be provided only by telecommunications operators. Lastly, in accordance with that legislation, those rates are fixed by means of a formal administrative act, which is published and freely accessible.