CJEU on Police Access to Mobile Phone Data

Nov 1, 2024 Benn-Ibler Rechtsanwälte

The European Court of Justice has been asked to rule on the legality of police access to personal data stored on a mobile phone in the context of a criminal investigation.

In the national case to be decided, the Austrian police had seized the mobile phone of the recipient of a package after discovering 85 grams of cannabis in the package during a narcotics check and then attempted in vain to unlock the phone in order to access the data therein. The police had no authorisation from a public prosecutor or a court, did not document the unlocking attempts, and did not inform the owner of the phone. As a result, the person concerned challenged the seizure of his phone complaint before an Austrian court. It was only in the course of these proceedings that he became aware of the police’s attempts to unlock his phone.

The Austrian court has referred the following question to the CJEU for a preliminary ruling: To what extent is the Austrian law allowing the police to proceed in this manner compatible with EU law?

The Court of Justice stated that police access to personal data stored on a mobile phone in the course of a criminal investigation can seriously infringe the fundamental rights of the data subject. However, access to phone data during criminal investigations is not necessarily limited to the fight against serious forms of crime. It is for the national legislators to define the aspects which have to be taken into account in the context of such access, in particular the nature or categories of offences in question.

Also, data subject must be informed of the reasons on which the authorisation to access their data is based as soon as the communication of that information is no longer likely to jeopardise the investigations.

CJEU Press Release No 171/24 (4 October 2024)