Judgment of the Court of Justice First Chamber, 7 September 2023, Lietuvos Respublikos generalinė prokuratūra, C-162/22

• Date: 07 September 2023
• Year: 2023

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IV. PROTECTION OF PERSONAL DATA

Judgment of the Court of Justice (First Chamber), 7 September 2023, Lietuvos Respublikos

generalinė prokuratūra, C-162/22

Link to the full text of the judgment

Reference for a preliminary ruling – Telecommunications – Processing of personal data in the electronic

communications sector – Directive 2002/58/EC – Scope – Article 15(1) – Data retained by provide rs of

electronic communications se rvices and made avail able to authorities in charge of criminal proceedings –

Subsequent use of those data in an investigation into misconduct in office

The Lietuvos Respublikos generalinė prokuratūra (Prosecutor General’s Office of the Republic of

Lithuania) (‘the Prosecutor General’s Office’) opened an internal investigation into the appellant in the

main proceedings, who at the time was a public prosecutor in a Lithuanian public prosecutor’s office,

on the ground that there was reason to believe that he had, when leading a pre-trial investigation,

unlawfully provided information pertaining to that pre -trial investigation to the suspect and his

lawyer.

In its report on that investigation, the Prosecutor General’s Office found that the appellant in the main

proceedings had in fact engaged in misconduct in office. According to that report, that misconduct in

office was demonstrated by the evidence obtained during the internal investigation. In particular,

information obtained during criminal intelligence operations and data collected during two pre-trial

investigations confirmed telephone communications between the appellant in the main proceedings

and the suspect’s lawyer in the pre-trial investigation led by the appellant in the main proceedings

concerning the suspect. On the basis of that report, the Prosecutor General’s Office adopted two

orders by which it imposed a penalty on the appellant in the main proceedings and dismissed him

from service. The Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius,

Lithuania), before which the appellant in the main proceedings brought an action for annulment of

those two orders, dismissed that action on the ground, inter alia, that the criminal intelligence

operations carried out in the present case were lawful and that the information gathered in

accordance with the provisions of the Law on criminal intelligence

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had been used lawfully to assess

whether the appellant in the main proceedings had engaged in misconduct in office.

The appellant in the main proceedings brought an appeal before the Lietuvos vyriausiasis

administracinis teismas (Supreme Administrative Court of Lithuania), the referring court in the

present case, claiming that access by the intelligence bodies, in connection with a criminal intelligence

operation, to traffic data and the actual content of electronic communications constituted such a

serious interference with fundamental rights that, having regard to the provisions of the Directive on

privacy and electronic communications

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and the Charter of Fundamental Rights of the European

Union (‘the Charter’), such access could be granted only for the purpose of combating serious crime.

However, according to the appellant in the main proceedings, the Law on criminal intelligence

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Lietuvos Respub likos kriminalinės žvalgybos įstatymas (Law of the Repu blic of Lithuania on criminal intelligence) of 2 October 2012 (Žin.,

2012, No 122-6093), in the version applicable to the facts in the main p roceedings (‘the Law on criminal intelligence’).

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Inter alia A rticle 15(1) of Directive 2002/58/EC of the European Parliamen t 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 p rivacy and electronic communications)

(OJ 2002 L 201, p. 37), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009

L 337, p. 11).

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Article 19(3) of the Law on criminal intelligence.