Referral C-548/21 (Bezirkshauptmannschaft Landeck, 6 Sep 2021)

1) Is Article 15(1) (possibly read in combination with Article 5) of Directive 2002/58/EC, as amended by Directive 2009/136/EC, read in the light of Articles 7 and 8 of the Charter of Fundamental Rights, to be interpreted as meaning that public authorities’ access to data stored on mobile telephones entails interference with fundamental rights enshrined in those articles of the Charter which is sufficiently serious to entail that access being limited, in areas of prevention, investigation, detection and prosecution of criminal offences, to the objective of fighting serious crime?

2) Is Article 15(1) of Directive 2002/58/EC, as amended by Directive 2009/136, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights, to be interpreted as meaning that it precludes a national rule, such as that enacted in Paragraph 18 of the Strafprozessordnung (Austrian Code of Criminal Procedure), read in combination with Paragraph 99(1) thereof, which allows security authorities to grant themselves full and uncontrolled access to all digital data stored on a mobile telephone in the course of a criminal investigation without the authorisation of a court or independent administrative body?

3) Is Article 47 of the Charter of Fundamental Rights, possibly read in combination with Articles 41 and 52 thereof, to be interpreted, from the point of view of equality of arms and from the point of view of an effective remedy, as meaning that it precludes a national rule, such as that enacted in Paragraph 18 of the Code of Criminal Procedure, read in combination with Paragraph 99(1) thereof, which allows data processing of a mobile telephone without advising the data subject before or, at the very least, after the measure is taken