Access Alert | New Judgment from the Court of Justice of the European Union on Lawful Interception Obligations

Access Alert | New Judgment from the Court of Justice of the European Union on Lawful Interception Obligations

The Court of Justice of the European Union (CJEU) issued a judgment on 16 March 2023 regarding the legal framework governing costs incurred by electronic communications providers when assisting law enforcement authorities with the lawful interception of communications.

Under Article 12 of the European Electronic Communications Code, the provision of electronic communications networks or services, excluding number-independent interpersonal communications services, may be subject only to a general authorisation. Article 13 further provides that the general authorisation for the provision of electronic communications networks or services may be subject only to the non-discriminatory, proportionate, and transparent conditions listed in Annex I of the Code, including enabling legal interception by competent national authorities.

In Italy, telecommunications companies are obliged to intercept communications (voice, computer, telematic, and data) upon a judicial authority’s request in exchange for a set fee. A national decree from 2017 imposed a reduction of at least 50% of the reimbursements of the expenditures associated with those interception activities by telecommunications providers. Italian telecommunications operators asked Italian judicial authorities to overturn that decree on the grounds that the fees set forth do not adequately offset the expenses incurred. The Italian Council of State subsequently asked the CJEU to clarify whether EU law guarantees full compensation for the costs that operators actually incurred to carry out such interceptions.

In Case C-339/21 Colt Technology Services and Others, the CJEU ruled that EU law does not require full reimbursement of the costs incurred as this is left to the discretion of individual Member States. EU law does not preclude national legislation that fails to require full reimbursement of the costs incurred by providers of electronic communications services when they enable the legal interception of electronic communications by the competent national authorities, provided that the legislation is non-discriminatory, proportionate, and transparent.

Access Partnership is closely monitoring lawful intercept developments. For more information, contact Chrystel Erotokritou, Compliance Manager, at [email protected].

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