Are the Dutch rules requiring passport applicants to be fingerprinted and to have their biometric data stored initially in local registers, and then in a central register, compatible with EU law?
In 2010, the applicant applied for a Dutch passport. The local mayor refused to process her application because she had refused to be fingerprinted.
The Hague District Court held that the legislature had not exceeded its competence and that there was no infringement of Article 8 ECHR.
The applicant appealed to the Dutch Council of State [Raad van State], where it was recorded that she had refused to be fingerprinted because this biometric data would, in future, come to be included in a central register. She believed that that would be contrary to EU law. The EC Regulation only permitted the use of biometric data, such as fingerprints, in situations for verifying the authenticity of a document and the identity of the holder. Accordingly, the storage of biometric data in a register for judicial purposes and for use by the state’s security services was contrary to her fundamental rights as protected under the ECHR.
The applicant also claimed that she needed a passport in order to be treated at a Dutch hospital. Equally, she needed it to take out a rental lease on a property. It was even needed in the event of wishing to conclude a contract of employment.
An unofficial translation of the questions asked by the Raad van State reads:
1. Is Article 1(2) of Council Regulation (EC) No. 2252/2004 of 13 December 2004, on standards for security features and biometrics in passports and travel documents issued by Member States (OJ 2004 L 385, p. 1), as amended by Regulation (EC) No. 444/2009 of the European Parliament and of the Council of 28 May 2009 (OJ L142, p.1), valid in light of Articles 7 and 8 of the EU Charter of Fundamental Rights and Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms?
2. If the answer to question 1 entails that Article 1(2) of Council Regulation (EC) No. 2252/2004 of 13 December 2004, on standards for security features and biometrics in passports and travel documents issued by Member States (OJ 2004 L 385, p. 1), as amended by Regulation (EC) No. 444/2009 of the European Parliament and of the Council of 28 May 2009 (OJ L142, p.1) is valid, must Article 4(3) of the Regulation – in light of Articles 7 and 8 of the EU Charter of Fundamental Rights, Article 8(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 7(f) of the Privacy Directive when read together with Article 6(1)(b) of the Directive – be interpreted as meaning that for the purposes of implementing this Regulation by the Member States, legislation should guarantee that the biometric data collected and stored on the basis of this Regulation must not be collected, processed and used for purposes other than the issuing of the document?
This reference forms one of four made to the CJEU concerning the Dutch rules. The other 3 references from the Raad van State are docketed by the CJEU as: Case C-446/12, Willems and Case C-447/12, Kooistra.
The Dutch Council of State has observed that it is not a priori clear whether the restriction on the right to privacy is proportionate to the importance of preventing the misuse of passports and travel documents.
These 4 references from the Dutch Council of State have been made in the full knowledge that the Verwaltungsgericht Gelsenkirchen had already made a reference to the CJEU questioning the legal validity of the EC Regulation.
The Dutch Council of State shares the doubts as to the validity of the EC Regulation expressed by the German court in Case C-291/12, Michael Schwarz, and requests that the CJEU consider the Dutch references together with the German reference.
For further information about the reference from the German court, see Case C-291/12, Michael Schwarz – No fingerprints? No passport. An invalid EC Regulation?
Update – 11 October 2014
The Fourth Chamber is scheduled to hear Case C-449/12, van Luijk on 6 November 2014. The case will be heard together with the other above-mentioned references from the Dutch Council of State: Case C-446/12, Willems; Case C-447/12, Kooistra; and Case C-448/12, Roest.
Update – 20 March 2015
This case was heard on 6 November 2014. The judgment of the Fourth Chamber is due on 16 April 2015.
Update – 16 April 2015
For the judgment, see further, Case C-446/12, Willems – No fingerprints? No Dutch passport. No travel outside the EU.