Case C-543/09

Deutsche Telekom AG

v

Bundesrepublik Deutschland

(Reference for a preliminary ruling from the Bundesverwaltungsgericht)

(Electronic communications – Directive 2002/22/EC – Article 25(2) – Directive 2002/58/EC – Article 12 – Provision of directory enquiry services and directories – Obligation placed on an undertaking assigning telephone numbers to pass to other undertakings data in its possession relating to the subscribers of third-party undertakings)

Summary of the Judgment

1.        Approximation of laws – Telecommunications sector – Electronic communications networks and services – Universal service and users’ rights – Directive 2002/22

(European Parliament and Council Directive 2002/22, Arts 5(1) and 25(2))

2.        Approximation of laws – Telecommunications sector – Processing of personal data and the protection of privacy in the electronic communications sector – Directive 2002/58

(European Parliament and Council Directive 2002/22, recital 39 and Art. 12)

1.        Article 25(2) of Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services must be interpreted as not precluding national legislation under which undertakings assigning telephone numbers to end-users must make available to undertakings whose activity consists in providing publicly available directory enquiry services and directories not only data relating to their own subscribers but also data in their possession relating to subscribers of third-party undertakings.

First, Article 25(2) of Directive 2002/22 is part of Chapter IV of that directive, which concerns end-user interests and rights. That directive does not, however, provide for full harmonisation of all aspects of consumer protection.

Secondly, Article 25(2) of the Universal Service Directive is aimed at ensuring fulfilment of the obligation, placed on the Member States under Article 5(1) of that directive, to ensure that at least one comprehensive directory or one comprehensive telephone directory enquiry service is made available to end-users. Since that marks a minimum requirement which the Member States must satisfy, in principle they remain free to adopt more stringent provisions in order to facilitate the entry of new traders on the market for publicly available telephone and directory services.

(see paras 41-42, 47, operative part 1)

2.        Article 12 of Directive 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector must be interpreted as not precluding national legislation under which an undertaking publishing public directories must pass personal data in its possession relating to subscribers of other telephone service providers to a third-party undertaking whose activity consists in publishing a printed or electronic public directory or making such directories obtainable through directory enquiry services, and under which the passing on of those data is not conditional on renewed consent from the subscribers, provided, however, that those subscribers have been informed, before the first inclusion of their data in a public directory, of the purpose of that directory and of the fact that those data could be communicated to another telephone service provider and that it is guaranteed that those data will not, once passed on, be used for purposes other than those for which they were collected with a view to their first publication.

The subscriber’s consent under Article 12(2) relates to the purpose of the publication of personal data in a public directory and not to the identity of any particular directory provider, with the result that the subscriber does not have a selective right to decide in favour of certain providers of publicly available directory enquiry services and directories. Since it is the publication itself of the personal data in a public directory with a specific purpose which may turn out to be detrimental for a subscriber, it follows that where the subscriber has consented to his data being published in a directory with a specific purpose, he will generally not have standing to object to the publication of the same data in another, similar directory. Moreover, it is apparent from recital 39 in the preamble to that directive that renewed consent should be obtained from the subscriber if the party collecting the data from the subscriber or any third party to whom the data have been transmitted wishes to use them for other purposes.

(see paras 61-62, 64-65, 67, operative part 2)