Advocate General opinion on access to communications data by competent authorities

February 7, 2020

The Advocate General has issued an opinion in the case of HK v Prokuratuur (Case C-746/18). The issues in the case were whether categories of data and duration of access are relevant criteria when a court is considering the seriousness of the interference with fundamental rights when it rules on whether access to data held by an electronic communications service provider is strictly necessary under Article 15(1) of the E-Privacy Directive (2002/58/EC). The Advocate General also dealt with a question about the independence of competent authorities.

The case arose in the context of an Estonian Supreme Court referral to the Court of Justice of the European Union.  The case related to criminal proceedings brought against HK for several robberies he committed using another person’s bank card and violence against parties to court proceedings. 

The reports underpinning the finding that those criminal offences had been committed were drawn up using personal data obtained in connection with the provision of electronic communications services. The Estonian Supreme Court had reservations regarding the compatibility with EU law of the circumstances in which the investigating authorities had access to that information.

Those doubts concerned the question of whether Article 15(1) meant that the categories of data concerned and the duration of the period for which access is sought are included amongst the criteria to assess the seriousness of the interference with fundamental rights that is associated with the access by competent national authorities to the personal data that providers of electronic communications services are obliged to retain under national legislation.

The AG stated that Article 15(1) meant that categories of data and duration of access should be included. He further stated that it was for the referring court to assess, depending on the seriousness of the interference, whether that access was strictly necessary to achieve the objective of preventing, investigating, detecting and prosecuting criminal offences.

The referring court also asked whether the Public Prosecutor’s Office in view of the various duties assigned to it under Estonian law, is an ‘independent’ administrative authority under Tele2 Sverige and Watson and others (Cases C-203/15 and C-698/15).

The AG’s view was that the requirement that the access by the competent national authorities to retained data be subject to prior review by a court or an independent administrative authority is not met where national legislation provides that such review is to be carried out by the public prosecutor’s office which is responsible for directing the pre-trial procedure, while also being likely to represent the public prosecution in judicial proceedings.