Bosphorus presumption applicable to the storing of biometric data on a passport: decision of the ECHR in the case of Willems v. the Netherlands

The case of Willems v. the Netherlands (57294/16, 9.11.2021) concerned the refusal by the applicant to provide fingerprints that would be digitised and saved in his passport and in a database. Applying Regulation 2252/2004 on standards for security features and biometrics in passports and travel documents issued by Member States, as amended by Regulation 444/2009, the Administrative Jurisdiction Division of the Dutch Council of State dismissed as ill-founded the objections which the applicant had raised in this connection. The applicant then complained before the ECHR inter alia about a violation of Article 8 of the Convention (right to respect for private life).

In respect of the applicable EU legislation, the Administrative Jurisdiction Division considered, after referring questions to the CJEU for a preliminary ruling, that it left no room for the Member States to use alternatives to the prescribed way of storing the biometric data, nor did it provide for any applicable exceptions to the obligation to provide fingerprints.

In light of this finding, the ECHR recalled the requirements for the presumption of equivalent protection (“Bosphorus presumption”) to apply and concluded that they were fulfilled in the present case. As a consequence, there would only be a violation of the Convention in case of a “manifest deficiency” in the protection afforded by it (on this notion, see also Bivolaru and Moldovan v. France). As such a manifest deficiency had not been shown to exist by the applicant, the ECHR declared manifestly ill-founded the applicant’s complaint about a violation of Article 8.

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