Judgment of the Court of Justice Third Chamber, 16 February 2023, HYA and Others Grounds for authorising telephone tapping, C-349/21

• Date: 16 February 2023
• Year: 2023

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I. FUNDAMENTAL RIGHTS: PROTECTION OF PERSONAL DATA

Judgment of the Court of Justice (Third Chamber), 16 February 2023, HYA and Others

(Grounds for authorising telephone tapping), C-349/21

Link to the full text of the judgment

Reference for a preliminary ruling – Telecommunications sector – Processing of personal data and the

protection of privacy – Directive 2002/58/EC – Article 15(1) – Limitation 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

In the context of criminal proceedings, the President of the Spetsializiran nakazatelen sad (Specialised

Criminal Court, Bulgaria) had, by several decisions, granted applications from the Spetsializirana

prokuratura (Specialised Public Prosecutor’s Office, Bulgaria) for authorisation to use special

investigative methods in order to listen to and record the telephone conversations of various persons

suspected of having committed serious offences. In stating the reasons for his decisions, the

President followed the current domestic judicial practice of using a pre-drafted template that does

not contain individualised reasons, which in essence merely indicates that the requirements laid

down by the national legislation on interception of telecommunications, to which the template refers,

have been complied with.

Subsequently, the Specialised Public Prosecutor’s Office had accused the persons concerned by that

telephone tapping of participation in an organised criminal gang. The content of the recorded

conversations was of direct relevance in establishing whether the indictments of those persons were

well founded.

Hearing the substance of the case, the Specialised Criminal Court, which is the referring court,

explained that it must first review the validity of the procedure for authorising the telephone tapping.

Faced in particular with doubts as to whether the abovementioned judicial practice was consistent

with EU law, that court decided to refer a question to the Court of Justice for a preliminary ruling.

Findings of the Court

The Court notes that the judicial practice at issue forms part of the legislative measures adopted by

Bulgaria under the Directive on privacy and electronic communications,

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which provide for the

possibility of reasoned judicial decisions having the effect of restricting the principle of confidentiality

of electronic communications and traffic data, enshrined in that directive

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. That practice is thus

intended to implement the duty to state reasons laid down in those legislative measures in

accordance with the requirements of the Charter of Fundamental Rights of the European Union

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to

which that directive refers.

1

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).

2

Article 5(1) of the Directive on privacy and electronic communications.

3

Second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).