16.11.2016

EuGH (Schlussanträge): Telefonverzeichnisse, Informationspflicht und Einwilligung (E-Privacy-RL)

EuGH (Schlussanträge des GA) 9.11.2016, Rs C‑536/15, Tele 2:
18. By its second question, the national court essentially asks the Court whether it is contrary to Article 25(2) of the Universal Service Directive and, in particular, the principle of non-discrimination to which the latter refers, for an undertaking that has received a request to make available its subscribers’ personal data to draw a distinction, when obtaining its subscribers’ consent, based on the Member State in which the telephone directory service and/or telephone directory enquiry service is provided.
19. In other words, if the request for information to be made available referred to in Article 25(2) of the Universal Service Directive is made by a telephone directory enquiry operator and/or a telephone directory operator providing its services in a Member State other than the subscriber’s Member State of residence, may that request be made to depend on the granting of specific consent by the subscriber?

IV – Conclusion
51. In the light of the foregoing, I therefore propose that the Court give the following answer to the second question submitted by the College van Beroep voor het bedrijfsleven (Administrative Court of Appeal for Trade and Industry):
On a proper construction of Article 25(2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, and Article 12 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), as amended by Directive 2009/136, it is contrary to those provisions for an undertaking that has received a request for its subscribers’ personal data to be made available to draw a distinction, when obtaining its subscribers’ consent, according to the Member State in which the telephone directory service and/or telephone directory enquiry service is offered, provided, however, that such data is intended to be used for purposes identical to those for which it was collected with a view to its first publication.

That undertaking must therefore ensure that, when the subscription contract is signed, subscribers receive clear, precise information on the different aspects of the processing of their data and, in particular, on the supply of such data for the purpose of its publication in a telephone directory or of its use by a telephone directory enquiries service in a Member State other than the subscriber’s Member State of residence.