Remarks and Considerations on the CJEU Decision on Biometric Passports

Remarks and Considerations on the CJEU Decision on Biometric Passports

Evanthia Chatziliasi (Hellenic Data Protection Authority, Greece) and Athena Bourka (European Agency for Network and Information Security, Greece)
DOI: 10.4018/978-1-4666-8153-8.ch013

Abstract

Biometric passports, namely passports including a storage medium that contains the facial image and two fingerprints of their owner, became mandatory when Regulation (EC) 2252/2004 entered into force. In the case C-291/12, the Court of Justice of the European Union was asked to examine whether biometric passports constitute a possible infringement of the fundamental right to the protection of personal data. This chapter aims at analyzing the aforementioned Judgment of the CJEU, focusing in particular on the application of the proportionality principle. The authors attempt to formulate some additional remarks and considerations on the critical matters of that case, and to this end, they especially focus on the processing of multiple biometric elements, the existence of alternative and less intrusive means, as well as the security of the biometric passports.
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The Right To The Protection Of Personal Data And The Proportionality Principle As A Limitation Of The Infringement

Article 8 of the Charter of Fundamental Rights of the European Union (hereinafter the Charter), which pursuant to Article 6 (1) of the TEU has the status of primary law of the EU after the entry into force of the Lisbon Treaty, recognizes the right to the protection of personal data. As to the interpretation of rights and principles established, one can observe that the Charter itself, both in its preamble and in article 52, sets out rules for the interpretation of its provisions (Skouris, 2011). In particular, article 52 (7) states that the courts of the European Union and the Member States shall take due account of the explanations drawn up to provide guidance in the interpretation of this Charter. The explanations on article 8 indicate that the right to the protection of personal data is based on Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31), on article 8 of the European Convention of Human Rights (ECHR) and on the Convention 108 of the Council of Europe. Consequently it can be reasonably argued that the pre-existing provisions on data protection give substance to the relevant provision of the Charter. This view is reinforced by the provision of article 52 (3), which states that if any of the rights of the Charter corresponds to a right enshrined in the ECHR, the meaning and the scope must be the same as those laid down by the said Convention. Therefore, the fundamental principles of data protection, even if not explicitly mentioned in article 8 of the Charter, constitute the core essence of the right to the protection of personal data as regulated in the Charter. It is accepted that in particular the principle of founding the processing on the consent of the data subject or on a legal provision, the principles of purpose and proportionality, the accuracy of the data, the provision of data subjects' rights and the assignment of the supervision of the compliance with these rules to an independent authority constitute the fundamental principles of data protection deriving from previous binding legal texts (Mitrou, 2008, p. 123; Vlachopoulos, 2007, p. 63).

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