Germany (Case A) and Poland (Case B)


Bruno Salomons

Cite as


To:      European Court of Justice, Court of Justice of the European Union

From: Bruno B. Salomons

Date:   25-4-2019

RE:     Federal Republic of Germany, data collection of suspected criminals


Part I - Facts

Mr. Piontek is a Bulgarian national living in Romania. Before moving to Romania, Mr. Piontek lived in the Republic of Vulgaria for some time. In Vulg aria he married his late wife, mrs. Piontek (neé Enea), who gave birth to their daughter. After the untimely death of mrs. Piontek, mr. Piontek was for a time suspected of committing a crime under the Vulgarian criminal code, namely the import of a peanut pastry dish that would ultimately become fatal to mrs. Piontek. Importing peanuts into the country is strictly illegal, due to the local population being allergic to the nut. Mr. Piontek was brought to trial and convicted, receiving a life sentence. However, in appeals this sentence was overturned on bases of fact and law on the 1st of July 2018.


Later that month Mr. Piontek moved to Romania with his daughter, Zeynep Piontek. Upon arrival at Henri Coandă Airport in Romania, both Mr. Piontek and his daughter are requested to have their fingerprints scanned. This reveals to Romanian authorities that Mr. Piontek has been the subject of criminal investigation, as well as that he has been acquitted, having received this data from Vulgaria as part of EU-Vulgarian cooperation. Mr. Piontek subsequently applied for the erasure of this data at the Bucharest District court. His application was denied, both in first instance and at the High Court of Appeals. In the meantime, the Romanian authorities have issued the eviction notice of Zenyep Piontek on the basis that she has overstayed the maximum allowed period. Mr. Piontek has also appealed this decision. The Supreme Court of Romania, being seized by Mr. Piontek, then requested a preliminary ruling on a few important questions, which will be the subject of the following part.


Part II - Legal Questions

The preliminary questions asked by the Supreme Court are threefold:


1.      Was the processing of Mr. Piontek’s data in line with art. 9 of the GDPR?

2.      Can Mr. Piontek ask for the erasure of data, even though Vulgaria is known to grant appeals without sufficient safeguards?

3.      Is the eviction of Zenyep Piontek in line with EU law?


Part III - Discussion

In the view of the Federal Republic of Germany, the first question is an improper question which makes a wrongful assumption. Namely, it presupposed the application of Regulation 2016/679, commonly known as the General Data Protection Regulation. However, to the Federal Republic of Germany it is clear that not Regulation 2016/679 but Regulation 2016/680 applies, dealing more specifically with the gathering of data in service of law enforcement. Specifically, this regulation deals with data processing by competent authorities for the purpose of ‘prevention, investigation, detection or prosecution of criminal offences’, including ‘the safeguarding against and the prevention of threats to the public security’.[1] Regulation 2016/68, as the lex specialis in this instance, is applicable over the General Data Protection Regulation.


The data processing that occurred when Mr. Piontek entered Romania was clearly done in the context of law enforcement. First of all, the charge of murder that was levelled against Mr. Piontek, although later successfully appealed, merits a certain vigilance by the Romanian authorities. Especially when the grounds for appeal are not known, as we will discuss more in depth later, the individual can still pose a threat to society. To know the criminal record of someone entering one’s country from outside the European Union can be vital in protecting central interests of the State. Secondly, the acquittal was for the charges of murder and the violation of the prohibition on imports of peanuts into Vulgaria. The defence put forward by Mr. Piontek at that time was that the death of his wife was ‘simply and accident’. Even if this were true, that would still open up Mr. Piontek to criminal liability. According to the Bulgarian Criminal Code, killing through negligence is punishable by a prison sentence of up to five years. In the Romanian Criminal Code, such conduct falls under the umbrella of murder. Even if the acquittal is accepted by Romanian authorities, the possibility that a crime has been committed under Romanian and Bulgarian law remains.


The previous two arguments have presupposed the view that the acquittal by Vulgarian courts are to be respected. A primary concern for the Federal Republic of Germany, however, is that Vulgarian courts do not provide the proper safeguards to actually convict in appeals. It is widely known that Vulgarian courts almost never convict on appeal, no matter the facts of the case. As such, Germany is of the view that the appeal should be disregarded. In the opinion of Germany, Mr. Piontek is convicted of violations of the Vulgarian Criminal Code.


Having determined with certainty that Regulation 2016/680 applies, we can now enter into a discussion on the precise provisions of the Regulation. Art. 4 of the Regulation allows for data to be processed by a compete...