CJEU C-291/12 Schwarz: Mandatory passport fingerprints justified under fundamental rights

Facts — Mr. Schwarz (the data subject), applied to the Stadt Bochum for a passport, however, refused to have his fingerprints taken. As a result, the local authorities rejected his application. The data subject challenged the validity of Article 1(2) Regulation No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States, which creates the obligation to take fingerprints of individuals applying for passports. In the proceedings before the referring court, the data subject argued, among other claims, that the provision infringes upon the right to the protection of personal data and private life, as protected in Article 7 and 8 of the Charter of Fundamental Rights of the European Union. Holding — The Court firstly affirmed that the taking and storage of fingerprints in passports is a threat to the abovementioned rights.

Fingerprints constitute personal data as they contain unique information about individuals that allows for their precise identification. Moreover, the taking of fingerprints by national authorities and storage in the data subject’s passport classifies as the processing of personal data based on Article 2(b) Directive 95/46. However, the Court argued that this infringement is justified in accordance with Article 7(2) and Article 8(2) of the Charter of the European Union because the two rights are not absolute by virtue of Article 52(1) of the Charter of the European Union. The measure was provided for by law, namely, Article 1(2) Regulation No 2252/2004 and pursues objectives of general interest recognized by the Union—preventing the falsification of passports and fraudulent uses thereof, and illegal entry. In addition, the Court determined that the measure is proportionate to these aims for the following reasons: no effective alternative measures exist, specific safeguards are implemented to protect such data from being misused and abused, and it does not constitute as an operation of an intimate nature (i.e. it does not cause mental or physical discomfort).

Thus, the Court held that Article 1(2) Regulation No 2252/2004 is valid—consequently, the taking and storage of fingerprints for passports is justified in the European Union and does not infringe upon the right to the protection of personal data and private life. Holding — The Court firstly affirmed that the taking and storage of fingerprints in passports is a threat to the abovementioned rights. Fingerprints constitute personal data as they contain unique information about individuals that allows for their precise identification. Moreover, the taking of fingerprints by national authorities and storage in the data subject’s passport classifies as the processing of personal data based on Article 2(b) Directive 95/46. However, the Court argued that this infringement is justified in accordance with Article 7(2) and Article 8(2) of the Charter of the European Union because the two rights are not absolute by virtue of Article 52(1) of the Charter of the European Union.

The measure was provided for by law, namely, Article 1(2) Regulation No 2252/2004 and pursues objectives of general interest recognized by the Union—preventing the falsification of passports and fraudulent uses thereof, and illegal entry. In addition, the Court determined that the measure is proportionate to these aims for the following reasons: no effective alternative measures exist, specific safeguards are implemented to protect such data from being misused and abused, and it does not constitute as an operation of an intimate nature (i.e. it does not cause mental or physical discomfort). Thus, the Court held that Article 1(2) Regulation No 2252/2004 is valid—consequently, the taking and storage of fingerprints for passports is justified in the European Union and does not infringe upon the right to the protection of personal data and private life. Comment — Share your comments here!