SCHWARZ V. BOCHUM, 17.10.2014 (“SCHWARZ”)

Necessity/proportionality: Secure storage of fingerprints reduces risk of passports falsification and to facilitates EU borders control and,thus, it is appropriate.(¶¶ 41-45).

As to whether Article 1(2) of Regulation No 2252/2004 is appropriate for attaining the aim of preventing the falsification of passports, it is common ground that the storage of fingerprints on a highly secure storage medium as provided for by that provision requires sophisticated technology. Therefore such storage is likely to reduce the risk of passports being falsified and to facilitate the work of the authorities responsible for checking the authenticity of passports at EU borders.

Mr Schwarz submits that the method of ascertaining identity using fingerprints is not appropriate for attaining the aim of preventing fraudulent use of passports, since there have been mistakes when implementing that method in practice; given that no two digital copies of a set of fingerprints are ever identical, systems using that method are not sufficiently accurate, resulting in not inconsiderable rates of unauthorised persons being incorrectly accepted and of authorised persons being incorrectly rejected.

In that regard, however, it must be held that the fact that the method is not wholly reliable is not decisive. Although that method does not prevent all unauthorised persons from being accepted, it is enough that it significantly reduces the likelihood of such acceptance that would exist if that method were not used.

Although it is true that the use of fingerprints as a means of ascertaining identity may, on an exceptional basis, lead to authorised persons being rejected by mistake, the fact remains that a mismatch between the fingerprints of the holder of a passport and the data in that document does not mean that the person concerned will automatically be refused entry to the European Union, as is pointed out in the second subparagraph of Article 4(3) of Regulation No 2252/2004. A mismatch of that kind will simply draw the competent authorities’ attention to the person concerned and will result in a more detailed check of that person in order definitively to establish his identity.

In the light of the foregoing, the taking and storing of fingerprints referred to in Article 1(2) of Regulation No 2252/2004 are appropriate for attaining the aims pursued by that regulation and, by extension, the objective of preventing illegal entry to the European Union.