The European Court of Justice ruled on 17 October 2013 that the inclusion of the fingerprints in the EU electronic passports is lawful.
While the Court acknowledged that taking and storing of fingerprints in passports constitutes an infringement of the rights to respect for private life and the protection of personal data, it ruled that security is more important than privacy and such measures are justified for the purpose of preventing any fraudulent use of passports.
The ruling also claims that the measure of taking fingerprints is not that sensitive, because it "involves no more than the taking of prints of two fingers, which can, moreover, generally be seen by others, so that this is not an operation of an intimate nature."
The decision admits that the electronic passports are not flawless, but argues that "the fact that the method is not wholly reliable is not decisive. Although that method does not prevent all unauthorised persons from being accepted, it is enough that it significantly reduces the likelihood of such acceptance that would exist if that method were not used."
At the same time, the Court emphasized that the Regulation allows the storage of fingerprints only in the electronic passport that will be held by the owner and that it cannot be interpreted "as providing a legal basis for the centralised storage of data collected or for the use of such data for purposes other than that of preventing illegal entry into the EU”.
This is not the only case where the ECJ will be asked to rule on biometric passports, with another one where Dutch applicants had been refused the issuing of their passports because they did not accept to provide their fingerprints, that were stored in a database.
Gus Hosein from Privacy International explained Bloomberg BNA that "the court had ‘narrowly interpreted’ EU law, and there was potential for challenges against the taking of fingerprints for inclusion in passports to be brought before the European Court of Human Rights. The court ruling was the ‘perpetuation of a stupid mistake’ made by the European Parliament when it approved the collection of fingerprints for passports."
But the EU seems to try to get to the next level of fingerprinting regular people in its new 1 billion Euro Smart Borders proposal that would include all personal details and the 10 fingerprints of all non-EU citizens over 12 years old who want to enter the European Union. All being held in one database.
Press release: Including fingerprints in passports is lawful (17.10.2013)
Full Judgement – Michael Schwarz vs. Stadt Bochum (17.10.2013)
Security trumps privacy, EU court says (17.10.2013)
EU Collection of Fingerprints for Passports Threatens Privacy, but Is Lawful, ECJ Rules (21.10.2013)
EDRi-gram: ECJ to rule on the biometric passports (10.10.2012)