Data of a telephone subscriber legally-published in one Member State can also be used in another Member State

Scenario
In its Case C-536/15, the Court of Justice of the European Union (“CJEU”) was asked to decide a preliminary ruling on the interpretation of Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services (hereinafter referred to as the “Universal Service Directive”) and, more specifically, on the interpretation to be given to Article 25(2) according to which: “Member States shall ensure that all undertakings which assign telephone numbers to subscribers meet all reasonable requests to make available, for the purposes of the provision of publicly available directory enquiry services and directories, the relevant information in an agreed format on terms which are fair, objective, cost oriented and non-discriminatory”).
Main issue
The preliminary ruling was brought before the CJEU in the context of a dispute between, on one side, Dutch undertakings providing telephone subscriptions to users in the Netherlands, and on the other, the European Directory Assistance (“EDA”), a Belgian undertakings, requiring to obtain information on these subscribers. In the light of the refusal of Dutch companies to provide the required data, EDA addressed the case to the Consumer and Market Authority (“ACM”), which had accepted this request and informed the Dutch undertakings to provide the basic data concerning their subscribers on a fair, objective, cost-oriented and non-discriminatory manner. Against the unfavourable decision of the ACM, the Dutch undertakings appealed to the court of second instance (Administrative Court of Appeal for Trade and Industry), which referred the case to the CJEU.
Practical implications
The CJEU ruled that Art. 25(2) of the Universal Service Directive must be interpreted as meaning that the concept of ‘requests’ in that article, covers also requests made by an undertaking, established in a Member State other than that in which the undertakings which assign telephone numbers to subscribers are established, which requests the relevant information possessed by those undertakings in order to provide publicly available telephone directory enquiry services and directories in that Member State and/or in other Member States. Thus, the refusal of Dutch undertakings is incompatible with the application of non-discriminatory conditions. There is no need to establish a difference in treatment according to whether the undertaking requesting the transfer of personal data relating to subscribers is established in the territory of those subscribers’ Member State or in another Member State, since that undertaking collects that data for purposes identical to those for which it was collected with a view to its first publication and, consequently, that transfer is covered by the consent that was given by those subscribers. As a result Article 25(2) of the Universal Service Directive must be interpreted as precluding an undertaking which assigns telephone numbers to subscribers, and which is obliged under national legislation to request those subscribers’ consent to the use of data relating to them for the purposes of supplying directory enquiry services and directories, from differentiating in the request for those subscribers’ consent to that use according to the Member State in which the undertakings requesting the information referred to in that provision provide those services.

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