On the 5th of September 2019, the Court of Justice of the European Union (CJEU) published a preliminary ruling (Case C-417/18) regarding the transmission of the location data of callers to the ‘112’ emergency number directly to emergency authorities.
The case at hand stems from the tragic death in Lithuania of a 17-year old girl on the 21st of September 2013. The girl, who was kidnapped, sexually abused and burnt alive in a car boot, tried to call the emergency authorities by dialling the ‘112’ emergency number a total of ten times. However, the emergency call centre was not able to see the telephone number on their equipment which made it impossible for them to determine the location of the girl. To this day, the authorities have not been able to establish whether the phone of the girl contained a SIM card or why her number was invisible for the emergency authorities.
The girl’s family has since brought forward an action before the Regional Administrative Court in Vilnius in order to seek compensation from the Lithuanian state for non-material damages. A part of their claim rests on the argument that the Lithuanian state did not adequately implement the Universal Service Directive.[1] The aim of the directive is to ensure that telecommunication enterprises provide emergency authorities, free of charge, with caller location data as soon as the emergency authority receives the call.
2. Questions referred for preliminary ruling
The Vilnius Administrative Court asked the CJEU whether the Universal Service Directive requires Member States to ensure that location data is provided to emergency authorities even when the call is received from a mobile phone without a SIM card. The CJEU stated in its judgment that the wording of the Universal Service Directive is clear in the sense that it states that ‘all calls to the single European emergency call number’ fall under the obligation to make location data available. In addition, the CJEU rules that Member States have, subject to technical feasibility, a duty to achieve the required results, effectively meaning that the mere implementation of a regulatory framework would not suffice as the Universal Service Directive requires that the location data off ‘112’ callers is de facto transmitted, free of charge, to the emergency authorities. As a result, calls to the ‘112’ number that are made from mobile phones without a SIM card also fall within the scope of the Universal Service Directive.
Additionally, the CJEU was also asked whether Member States, within their national laws, may exercise discretion in defining criteria related to the reliability and accuracy of the location data of ‘112’ callers. The CJEU noted that these criteria will have to ensure that, subject to technical feasibility, the location of the caller is retrieved as accurately and reliably as is necessary in order for the emergency services to aid the caller in need. The discretion of Member States in establishing those criteria is consequently limited by the requirement that the information is useful in allowing the emergency authorities to effectively locate the caller so that intervention is possible by the concerned authorities. The referring court is to carry out the assessment of these criteria based upon the specific technical features of the Lithuanian mobile telecommunications network.
The Vilnius Administrative Court also asked “whether EU law must be interpreted as meaning that where, in accordance with the domestic law of a Member State, the existence of an indirect causal link between the unlawful act committed by the national authorities and the damage sustained by an individual is regarded as sufficient to render the State liable, such an indirect causal link between a breach of EU law attributable to that Member State and the damage sustained by an individual must also be regarded as sufficient for the purposes of rendering that Member State liable for that breach of EU law?” The CJEU concluded that where the Administrative Court establishes an indirect causal link between the breach of EU law attributable to the state and the damage suffered by individuals, that will render the state liable under the condition that such an indirect link between an unlawful act by the state and the damage suffered by individuals would also be sufficient to give rise to non-contractual liability under a breach of domestic law.
3. Consequences
The CJEU amply clarified that national telecommunications service providers will need to forward the location data of all callers to the ‘112’ emergency line, including the location data of callers who use mobile phones without a SIM card, to the emergency authorities. In addition, the CJEU establishes that Member States are bound to use criteria that ensure that the location data supplied is reliable and accurate, allowing for emergency authorities to effectively locate the caller to the emergency number.
The case also shows the CJEU’s interpretation when it comes to the establishment of non-contractual liability for a breach of EU law. Non-contractual liability can be established through an indirect causal relationship between infringement of EU law attributable to the state and damage suffered by individuals when such liability can also be established under domestic law. Thus, it is up to the national court of the member state to establish whether an indirect causal link between the infringement and the alleged damages forms the ground for non-contractual liability based on either a breach of EU law or domestic law.
Article written by Legal Trainee Philippe Martens and Dr Michele Tufigno.
For more information or assistance on telecommunications law kindly contact Dr Ian Gauci on igauci@gtgadvocates.com or Dr Michele Tufigno on mtufigno@gtgadvocates.com.
Disclaimer: This article is not intended to impart legal advice and readers are asked to seek verification of statements made before acting on them.
[1] Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services.