Judgment of the Court of Justice Grand Chamber, 22 December 2022, SpaceNet and Telekom Deutschland, C-793/19 and C-794/19

• Date: 22 December 2022
• Year: 2022

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IX. JUDGMENTS PREVIOUSLY DELIVERED

1. PROTECTION OF PERSONAL DATA

Judgment of the Court of Justice (Grand Chamber), 22 December 2022, SpaceNet and

Telekom Deutschland, C-793/19 and C-794/19

Link to the full text of the judgment

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

Confidentiality of communications – Providers of electronic communications services – General and

indiscriminate retention of traffic and location data – Directive 2002/58/EC – Article 15(1) – Charter of

Fundamental Rights of the European Union – Articles 6, 7, 8 and 11 and Article 52(1) – Article 4(2) TEU

In recent years, the Court has ruled, in several judgments, on the retention of and access to personal

data in the field of electronic communications.

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More recently, in the judgment in La Quadrature du net and Others,

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delivered by the Grand Chamber

on 6 October 2020, the Court confirmed its case-law arising from the judgment in Tele2 Sverige and

Watson and Others

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on the disproportionate nature of a general and indiscriminate retention of

traffic and location data relating to electronic communications. It also provided clarification, inter alia

as regards the extent of the powers conferred on the Member States by the Directive on privacy and

electronic communications with regard to the retention of such data for the purposes of safeguarding

national security, combating crime and safeguarding public security.

In the present joined cases, two requests for a preliminary ruling were submitted by the

Bundesverwaltungsgericht (Federal Administrative Court, Germany), before which the Federal

Republic of Germany brought an appeal on a point of law against two judgments which had upheld

the actions brought by two companies providing internet access services, SpaceNet AG (Case

C-793/19) and Telekom Deutschland GmbH (Case C-794/19). By those actions, those companies

challenged the obligation imposed by the German legislation

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to retain traffic and location data

relating to their customers’ electronic communications.

The doubts expressed by the referring court concern, inter alia, the compatibility with the Directive on

privacy and electronic communications,

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read in the light of the Charter of Fundamental Rights of

the European Union (‘the Charter’)

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and of Article 4(2) TEU, of national legislation which requires

providers of publicly available electronic communications services – inter alia for the purposes of

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Judgments of 8 April 2014, Digital Rights Ireland and Others (C-293/12 and C-594/12, EU:C:2014:238), of 21 December 2016, Tele2 Sverige

and Watson and Others (C-203/15 and C-698/15, EU:C:2016:970), and of 2 October 2018, Ministerio Fiscal (C-207/16, EU:C:2018:788).

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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). See also the judgment

delivered on the same day, Privacy International (C-623/17, EU:C:2020:790), concerning the general and indiscriminate transmission of traffic

and location data.

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In that judgment, the Court held that 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) (OJ 2002 L 201, p. 37) (‘the Directive on privacy and electronic communications’), 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), precludes national legislation

providing for the general and indiscriminate retention of traffic and location data for the purposes of combating crime.

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Combined provisions of Paragraph 113a(1) and Paragraph 113b of the Telekommunikationsgesetz (Law on telecommunications), of 22 June

2004 (BGBl. 2004 I, p. 1190), in the version applicable to the dispute in the main proceedings.

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More specifically, Article 15(1) of Directive 2002/58.

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Articles 6 to 8, 11 and Article 52(1) of the Charter.