Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)
Judgment of the Court (Grand Chamber) of 21 March 2024, Landeshauptstadt Wiesbaden, Case C-61/22, EU:C:2024:251
Reference for a preliminary ruling – Regulation (EU) 2019/1157 – Strengthening the security of identity cards of EU citizens – Validity – Legal basis – Article 21(2) TFEU – Article 77(3) TFEU – Regulation (EU) 2019/1157 – Article 3(5) – Obligation for Member States to include two fingerprints in interoperable digital formats in the storage medium of identity cards – Article 7 of the Charter of Fundamental Rights of the European Union – Respect for private and family life – Article 8 of the Charter of Fundamental Rights – Protection of personal data – Regulation (EU) 2016/679 – Article 35 – Obligation to carry out a data protection impact assessment – Maintaining the effects for a certain time of a regulation which has been declared invalid
Facts
The request for a preliminary ruling was made in proceedings between RL, a German national, and the Landeshauptstadt Wiesbaden (City of Wiesbaden, Land capital, Germany) concerning the rejection by the latter of RL’s application for an identity card which does not include RL’s fingerprints. The application was rejected due to a national provision according to which the inclusion of two fingerprints in the storage medium of identity cards is mandatory. This national provision transposes Article 3(5) of Regulation 2019/1157, on strengthening the security of identity cards of Union citizens and of residence documents issued to Union citizens and their family members exercising their right of free movement.
RL brought an action before the Verwaltungsgericht Wiesbaden (Administrative Court, Wiesbaden, Germany), seeking an order requiring the Landeshauptstadt Wiesbaden to issue him with an identity card with no fingerprints being collected. The referring court had doubts regarding the validity of Regulation 2019/1157 or, at least, the validity of Article 3(5) thereof, on the grounds that, firstly, it was adopted on an incorrect legal basis, secondly, it violates Article 35 of the GDPR and, thirdly, it violates Articles 7 and 8 CFREU.
Findings of the ECJ
The ECJ declares Regulation 2019/1157 invalid only to the extent in which it was adopted on an incorrect legal basis, that is, Article 21(2) TFEU. Indeed, the adoption of Regulation 2019/1157 could be based on Article 21(2) TFEU “only if the purpose or the main or predominant component of that regulation were to fall outside the specific scope of Article 77(3) TFEU, namely the issuing of passports, identity cards, residence permits or any other such document, for the purposes of facilitating the exercise of the right referred to in Article 20(2)(a) TFEU.” Considering its purpose and its main components, Regulation 2019/1157 falls within the specific scope of Article 77(3) TFEU. Therefore, the ECJ concludes that, by adopting Regulation 2019/1157 on the basis of Article 21(2) TFEU, the EU legislature infringed Article 77(3) TFEU and had recourse to an inappropriate legislative procedure.
As for the second ground of invalidity mentioned by the referring court, the ECJ observes that Article 35(1) of the GDPR did not apply when Regulation 2019/1157 was adopted.
After examining the third ground of invalidity, the ECJ concludes that the obligation to include two fingerprints in the storage medium of identity cards, laid down in Article 3(5) of Regulation 2019/1157, constitutes a limitation on the exercise of the right to respect for private life and of the right to the protection of personal data, enshrined in Articles 7 and 8 CFREU, respectively. This limitation, however, complies with the requirements laid down in Article 52(1) CFREU. In particular, the ECJ considers that that limitation “does not appear to be – having regard to the nature of the data at issue, the nature of the processing operations and the manner in which they are carried out and the safeguards laid down – of a seriousness which is disproportionate when compared with the significance of the various objectives pursued by that measure.” According to the ECJ, “the inclusion of two fingerprints in the storage medium of identity cards is intended to combat the production of false identity cards and identity theft and to ensure the interoperability of identification document verification systems. On that basis, it is capable of contributing to the protection of the privacy of data subjects as well as, more broadly, to combating crime and terrorism.” The ECJ furthermore finds that such a measure is of particular importance not only for the EU and the Member States, but also for EU citizens, as it makes it possible to meet the requirement for every EU citizen to have a means of identifying himself or herself which is reliable and, for the Member States, to ensure that the persons relying on rights conferred by EU law do indeed hold those rights.
Regulation 2019/1157 being invalid with immediate effect would be likely to have serious negative consequences for a significant number of EU citizens. Therefore, the ECJ holds that the effects of Regulation 2019/1157 must be maintained until the entry into force, within a reasonable period which may not exceed two years from 1 January 2025, of a new regulation based on Article 77(3) TFEU and intended to replace it.
Judgment of the Court (Grand Chamber) of 7 May 2024, NADA e o., Case C-115/22, EU:C:2024:384
Reference for a preliminary ruling – Admissibility – Article 267 TFEU – Concept of ‘court or tribunal’ – National arbitration committee competent to combat doping in sport – Criteria – Independence of the body making the reference – Principle of effective judicial protection – Inadmissibility of the request for a preliminary ruling
Facts
In Austria, a professional athlete was found to have infringed the anti-doping rules, as a result of which she was made subject to penalties. All her results achieved in competition as from 10 May 2015 were annulled, all her titles, medals, prizes, entry fees and prize money as from that date were revoked, and she was suspended from sporting competitions of any kind for four years as from 31 May 2021.
The athlete requested that this decision of the Österreichische Anti‑Doping Rechtskommission (Austrian Anti-Doping Legal Committee) not be communicated to the general public and seeks to obtain, before the Unabhängige Schiedskommission Wien (Independent Arbitration Committee, Vienna, Austria), that that decision be amended so that the general public would not be informed of the anti-doping violations committed and of the penalties imposed. The Unabhängige Schiedskommission Wien asked the ECJ whether such publication, as provided for by Austrian law, is compatible with the GDPR.
Findings of the ECJ
The ECJ holds that the request for a preliminary ruling is inadmissible as the body making the reference is not a ‘court or tribunal’ within the meaning of Article 267 TFEU.
The ECJ recalls its case-law according to which, in order to determine whether the body in question is a ‘court or tribunal’, within the meaning of Article 267 TFEU, a number of factors must be taken into account, such as, inter alia, whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent.
On the basis of the information in the file submitted, the ECJ considers that the Unabhängige Schiedskommission Wien does not fulfil the criterion of independence. The ECJ emphasizes that the members of the Unabhängige Schiedskommission Wien are appointed by the Federal Minister for Arts, Culture, Civil Service and Sport for a renewable term of four years, which may be revoked early ‘on serious grounds’, without that concept being defined in the national legislation; that no specific rule guarantees the irremovability of its members; and that the decision to remove the members of the Unabhängige Schiedskommission Wien is a matter solely for that Minister, a member of the executive, without precise criteria or precise guarantees having been established in advance. In these conditions, the ECJ concludes that “the applicable national legislation does not ensure that the members of the [Unabhängige Schiedskommission Wien] are protected from external pressure, be it direct or indirect, that is liable to cast doubt on their independence, with the result that that body does not satisfy the external aspect of the requirement for a court or tribunal to be independent.”
The ECJ stresses, however, that this conclusion does not relieve the Unabhängige Schiedskommission Wien of the obligation to ensure that EU law is applied when adopting its decisions and to disapply, if necessary, national provisions which appear to be contrary to provisions of EU law that have direct effect, since these are obligations that fall on all competent national authorities, not only on judicial authorities.
