When is the Charter of Fundamental Rights of the European Union (the Charter) applicable to Member State measures? According to Article 51(1) of the Charter, it will only apply to the Member States when they are implementing EU law. The wording of the provision seems restrictive, but the European Court of Justice (CJEU) has interpreted it extensively in its case-law, especially in its case Åklagaren v. Åkerberg Fransson (C-617/10, commented previously on this blog here). In Willems, Joined Cases C-446/12 – C-449/12, of 16 April 2015, it seems as the CJEU wants to change its stand in the question and take a step back from its previous ruling in Åklagaren v. Åkerberg Fransson.
According to Regulation No 2252/2004 Member States shall collect and store fingerprints and other biometric data in the storage medium of passports and other travel documents. The biometric data shall only be used to verify the authenticity of a document or the identity of the holder, pursuant to Article 4(3) of the Regulation. Three persons applied for passports in the Netherlands and one applied for a Dutch identity card. All applications were rejected due to the refusal of the applicants to leave digital fingerprints (par. 16). The applicants argued, inter alia, that the way the biometric data are stored constitutes a serious breach of their physical integrity and their right to privacy (par. 17-18). They also claimed that using biometric data for other purposes than the original purpose when it was collected is contrary to fundamental rights (par. 20).
The applicants’ claims were rejected at first instance and they appealed to the Council of State (Raad van State), which referred two questions for a preliminary ruling. The first question concerns identity cards and it will not be analysed here. Our focus will be on the second question: If Article 4(3) of Regulation No 2252/2004, read together with Articles 6 and 7 of Directive 95/46 and Articles 7 and 8 of the Charter, have to be interpreted as meaning that it compels Member States to safeguard that biometric data collected and stored pursuant to that Regulation will not be collected, processed and used for purposes other than to issue passports or other travel documents (par. 43).
Regarding the collection of biometric data for the purposes laid down in Article 4(3) of the Regulation the Court has already stated in Schwarz (C-291/12) that this is compatible with Articles 7 and 8 of the Charter. The CJEU states that it is clear from the case-law that the fundamental rights set up by the Charter have to be respected when national legislation falls within the scope of EU law, consequently the applicability of EU law leads to the applicability of the Charter, as seen in Åklagaren v. Åkerberg Fransson (par. 49). However, in Willems the Court argues that Regulation No 2252/2004 is not applicable and therefore there is no need to adjudicate if storage and use of biometric data for other purposes is compatible with the Charter (par. 50). Therefore, the Member States do not have to guarantee in their national legislation that biometric data collected and stored in accordance with the Regulation will not be collected, processed or used for other purposes than to issue passports or travel documents since that is not a matter falling within the scope of Regulation No 2252/2004 (par. 53).
Åklagaren v. Åkerberg Fransson
In the case of Åklagaren v. Åkerberg Fransson C-617/10 the CJEU faced a similar problem but came to a very different conclusion. The case concerned the principle of ne bis in idem with regard to tax surcharge and tax evasion crime when sanctioning evasion of VAT tax. The case was decided by the Grand Chamber but was controversial because of how far the Court extended the application of Article 50 of the Charter, the prohibition of dual punishment, to national law.
According to Article 51(1) of the Charter it will only apply to the Member States when they are “implementing” EU law and in Åklagaren v. Åkerberg Fransson the Court stated that it applies when a Member State acts within the scope of EU law and found that the provision in Directive 2006/112/EC, which requires a Member State to sanction evasion of the VAT tax, was sufficient to apply the Charter to criminal procedure regarding VAT tax.
CJEU’s stance on the applicability of Article 51 of the Charter
Åklagaren v. Åkerberg Fransson shows how the CJEU is both able and willing to expand the scope of EU law where it finds this necessary, although some claim that it is necessary to widen the application of the Charter considerably by an extensive interpretation of Article 51. Jakab in his essay on the subject, commented previously on this blog here, is of that opinion. Willems seem to confirm the worries of Jakab that the CJEU may slow down its own progress in widening of the applicability of the Charter.
Professor Steve Peers comments Willems in another blog post and raises strong criticism against the CJEU’s reasoning. He describes it as appalling and denounces it in particular because the Court never considered the applicability of the Data Protection Directive 95/46. Peers claims that the Court should not have limited itself and should have answered whether or not the Data Protection Directive applies and consider the applicability of the Charter in that context. According to Peers the national court have already identified the Data Protection Directive as relevant to the case and it is in line of the Court’s case-law to rephrase the questions posed by the national court in order to give a complete answer. Furthermore, Peers writes about the Court’s unwillingness to apply the Charter in a more general perspective and makes a comparison to the ruling in Schwarz (C-291/12).
In addition the Court refers to the European Convention on Human Rights (ECHR) (par. 51), which seems a bit contradictory after the negative Opinion 2/13 by the Court (commented previously on this blog here). The CJEU appear reluctant to surrender its powers but still makes a reference to national measures and the ECHR. It is interesting that the CJEU finds that ECHR may be applied when the Charter cannot.
Willems appear to be a step back by the CJEU when it comes to an extensive application of the Charter. The CJEU could have kept delivering activist judgments, such as Åklagaren v. Åkerberg Fransson, to keep the EU effective in protecting fundamental rights but instead chose a more careful approach. Is this just an exception or does this mean that the CJEU is putting the progress to a halt? It is hard to predict the consequences for now, as Willems leave many questions unanswered, making it troublesome to foresee when national measures falls within the scope of EU law.
by Thomas Johansson, Lisa Nyström and Julia Sandgren