26.1.2013

Official Journal of the European Union

C 26/15

(Case C-119/12) (<span class="super">1</span>)

(Electronic communications - Directive 2002/58/EC - Article 6(2) and (5) - Processing of personal data - Traffic data necessary for billing and debt collection - Debt collection by a third company - Persons acting under the authority of the providers of public communications networks and electronic communications services)

2013/C 26/26

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Josef Probst

Defendant: mr.nexnet GmbH

Re:

Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 6(2) and (5) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37) — Passing of traffic data relating to subscribers and users, processed and held by the provider of a public communications network — National legislation permitting such data to be passed to the assignee of a claim for payment in respect of telecommunications services, in the case where contractual stipulations safeguard confidential treatment of the data passed and make it possible for each party to check that the other has ensured that those data are protected

Operative part of the judgment

Article 6(2) and (5) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) must be interpreted as authorising a provider of public communications networks and of publicly-accessible electronic communications services to pass traffic data to the assignee of its claims for payment in respect of the supply of telecommunications services for the purpose of recovery of those claims, and as authorising that assignee to process those data on condition, first, that the latter acts under the authority of the service provider as regards the processing of those data and, second, that that assignee confines itself to processing the traffic data necessary for the purposes of recovering the claims assigned.

Irrespective of the classification of the contract of assignment, the assignee is deemed to act under the authority of the service provider, within the meaning of Article 6(5) of Directive 2002/58, where, for the processing of traffic data, it acts exclusively on the instructions and under the control of that provider. In particular, the contract concluded between them must contain provisions capable of guaranteeing the lawful processing, by the assignee, of the traffic data and of enabling the service provider to ensure, at all times, that that assignee is complying with those provisions.

(<span class="super">1</span>) OJ C 174, 16.06.2012.