Judging the Charter

The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers

Michael Schwarz v Stadt Bochum

Case Number: C‑291/12

Relevance of Decision

The Court decided on the proportionality of the usage of fingerprints for biometric passports in relation to the rights to respect for private life (Article 7) and the protection of personal data (Article 8).

Facts of the case

Mr Schwarz applied to the Stadt Bochum for a passport, but refused at that time to have his fingerprints taken. After the Stadt Bochum rejected his application, Mr Schwarz brought an action before the referring court in which he requested that the city be ordered to issue him with a passport without taking his fingerprints

Before that court, Mr Schwarz disputes the validity of the regulation (Regulation No 2252/2004), which created the obligation to take the fingerprints of persons applying for passports. He submits that that regulation does not have an appropriate legal basis and is vitiated by a procedural defect. In addition, he claims that Article 1(2) of that regulation infringes the right to the protection of personal data laid down, in general terms, in Article 7 of the Charter, which relates to the right to respect for private life, and explicitly in Article 8 thereof.

Legal Questions

Does the obligation to take fingerprints of eprsons applying for passports infringe the rights to the protection of personal data (Article 7) and to respect for private life (Article 8)?

Court Findings

According to the Court it follows from a joint reading of Articles 7 and 8 that, as a general rule, any processing of personal data by a third party may constitute a threat to those rights.

The Court also states that

  • fingerprints constitute personal data, as they objectively contain unique information about individuals, which allows those individuals to be identified with precision
  • processing of personal data means any operation performed upon such data by a third party, such as the collecting, recording, storage, consultation or use thereof.
  • measures that national authorities have to take according to Article 1(2) of Regulation No 2252/2004, namely to take a person’s fingerprints to keep those in the storage medium in that person’s passport must be viewed as a processing of personal data.

Justification:

Processing of data for the issuance of passports is provided for by law (Regulation 2252/2004) and appropriate for attaining the aim of preventing the falsification of passports (even if not wholly reliable)

No other measures which would be both sufficiently effective in helping to achieve the aim of protecting against the fraudulent use of passports and less of a threat to the rights recognised by Articles 7 and 8 of the Charter than the measures deriving from the method based on the use of fingerprints.

The court in this regard stresses that that Article 1(2) of Regulation No 2252/2004 does not provide for the storage of fingerprints except within the passport itself, which belongs to the holder alone.

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Country

Europe