Judgment_paragraph 26 · Criminal proceedings against H. K (C-746/18)

26It was in those circumstances that the Riigikohus (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Is Article 15(1) of Directive [2002/58], in conjunction with Articles 7, 8, 11 and 52(1) of the [Charter], to be interpreted as meaning that in criminal proceedings the access of State authorities to data making it possible to establish the source and destination, the date, the time, the duration and the type of the communication, the terminal used and the location of the mobile terminal used, in relation to a telephone or mobile telephone communication of a suspect, constitutes so serious an interference with the fundamental rights enshrined in those articles of the Charter that that access in the area of prevention, investigation, detection and prosecution of criminal offences must be restricted to the fighting of serious crime, regardless of the period to which the retained data to which the State authorities have access relate?(2) Is Article 15(1) of Directive [2002/58], on the basis of the principle of proportionality expressed in the judgment of [2 October 2018, Ministerio Fiscal (C‑207/16, EU:C:2018:788)], paragraphs 55 to 57, to be interpreted as meaning that, if the amount of data mentioned in the first question, to which the State authorities have access, is not large (both in terms of the type of data and in terms of its temporal extent), the associated interference with fundamental rights is justified by the objective of prevention, investigation, detection and prosecution of criminal offences generally, and that the greater the amount of data to which the State authorities have access, the more serious the criminal offences which are intended to be fought by the interference must be?(3) Does the requirement mentioned in the judgment of [21 December 2016, Tele2 (C‑203/15 and C‑698/15, EU:C:2016:970)], second point of the operative part, that the data access of the competent State authorities must be subject to prior review by a court or an independent administrative authority mean that Article 15(1) of Directive [2002/58] must be interpreted as meaning that the public prosecutor’s office which directs the pre-trial procedure, with it being obliged by law to act independently and only being bound by the law, and ascertains the circumstances both incriminating and exonerating the accused in the pre-trial procedure, but later represents the public prosecution in the judicial proceedings, may be regarded as an independent administrative authority?’

Criminal proceedings against H. K (C-746/18)

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