Deutsche Telekom AG – CJEU Judgment (European Union, 2011)

Deutsche Telekom, a telecommunications network operator in Germany, publishes directories containing data related to its own customers and that of subscribers of approximately 100 other undertakings in accordance with paragraphs 47(1), 104 and 105 of the Telekommunikationsgesetz (German Law on Telecommunications) (‘TKG’). GoYellow and Telex AG operate an internet and telephone directory enquiry service through the use of available data provided to them by Deutsche Telekom for remuneration. However, the aforementioned companies came to a disagreement as to the scope of the data Deutsche Telekom has to provide to GoYellow and Telex AG. The matter was brought before the Bundesnetzagentur. On 11 September 2006, the Court ordered Deutsche Telekom to grant access to GoYellow and Telex AG to both data relating to Deutsche Telekom’s own subscribers and external data (i.e. data related to the subscribers of third-party telephone service providers), even when subscribers wished the respective data to be published solely by Deutsche Telekom. Deutsche Telekom challenged this decision before the Verwaltungsgericht Köln (Administrative Court, Cologne). On 14 February 2008, the Court dismissed the action. Deutsche Telekom appealed before the Bundesverwaltungsgericht (Federal Administrative Court) on the grounds that an obligation to make such external data available infringes Article 25(2) Universal Service Directive 2002/22/EC and Article 12 ePrivacy Directive 2002/58/EC—the matter was referred to the CJEU for a preliminary ruling. The Court firstly determined that Article 25 Universal Service Directive 2002/22/EC does not provide for full harmonization and is aimed at guaranteeing that at least one extensive directory is made available to end-users. Therefore, a minimum requirement is outlined under this article and Member States can consequently impose more stringent provisions. The Court thus held that Article 25(2) Universal Service Directive 2002/22/EC does not preclude national legislation from imposing undertakings assigning telephone numbers to end-users to forward subscriber data relating to their subscribers and subscribers of other undertakings to directory-enquiry services and directory providers. The Court then proceeded to assess the matter in relation to Article 12 ePrivacy Directive 2002/58/EC. It firstly acknowledged that this matter is relevant to the protection of personal data, as enshrined in Article 8(1) CFR. Article 12(2) ePrivacy Directive 2002/58/EC prescribed that subscribers were free to decide whether their personal data was to be included in a public directory, and if that were the case, which personal data too. This right is, however, exclusively related to the purpose for the publication of such data in a public directory, as opposed to the identity of any specific directory provider. Thus, there was no requirement for renewed consent. Moreover, Recital 39 Directive reaffirmed that the passing of subscriber’s personal data to third parties was subject to the (only) condition that such data may not be used for purposes beyond those for which they were collected. In addition, the Directive outlined instances in which additional consent was required, which implies that in all other situations, no consent was needed unless specified. Thus, the Court found that Article 12 ePrivacy Directive 2002/58/EC must be interpreted as allowing Member States to require publishers of directories and suppliers of directory enquiry services to forward personal data to third-party directory publishers without specific consent from the subscribers.