In its judgment of 5 September 2019 (case C‑417/18), the Court of Justice of the European Union considered that the Universal Service Directive requires Member States, subject to technical feasibility, to ensure that telecommunications undertakings make caller location information available free of charge to the authority handling emergency calls to 112, including in cases where the call is made from a mobile phone which is not fitted with a SIM card.

According to the Court of Justice, although Member States enjoy a certain degree of discretion when laying down the criteria relating to the accuracy and reliability of the information on the location of the caller to 112, these criteria must ensure, within the limits of technical feasibility, that the caller’s position is located as reliably and accurately as is necessary to enable the emergency services usefully to come to the caller’s assistance.

It goes without saying that the issue of caller location is of crucial importance in emergency calls.

The case behind the judgment delivered on 5 September 2019 by the Court of Justice of the European Union (“CJEU”) (case C‑417/18) is a sad reminder of this, so shocking are the facts of this case, which even go beyond the fiction of thriller movies such as The Guilty.

The facts of the case and the legal context

AW and Others are close relatives of ES, a teenager who was the victim in 2013 of a criminal act, i.e. she was kidnapped, raped and burnt alive in the trunk of a car.

Finding herself trapped in that car trunk, she had called several times the Lithuanian emergency call answering centre, using a mobile phone, on the single European emergency call number “112” in order to ask for help. However, the equipment in the emergency call answering centre did not display the number of the mobile phone used, which prevented ES from being located. The investigation did not establish whether the mobile phone was fitted with a SIM card or why her number was not displayed at the emergency call answering centre.

AW and Others brought an action before the Vilnius Regional Administrative Court seeking an order requiring the Lithuanian State to pay compensation for the non-material damage suffered by both ES and themselves. They contended that Lithuania failed properly to ensure practical implementation of Article 26(5) of the Universal Service Directive (Directive 2002/22/EC), which provides that Member States must ensure that telecommunications undertakings make available, free of charge, to the authority handling emergency calls made to 112, caller location information as soon as the call reaches. According to the claimants, the failure in providing caller location information meant that the police services were unable to locate ES, therefore preventing them from rescuing her.

Against this background, the Vilnius Regional Administrative Court referred the matter to the CJEU for a preliminary ruling to ascertain:

  • whether Article 26(5) of the Universal Service Directive imposes an obligation to transmit caller location information, in the case where the call is made from a mobile phone which is not fitted with a SIM card; and
  • whether the Member States enjoy a certain degree of discretion when laying down the criteria relating to the accuracy and reliability of the information on the location of the caller to 112 which enables them to limit that information to the identification of the base station which relayed the call.

The ruling of the CJEU

In its judgement of 5 September 2019, the CJEU stressed that it is apparent from the actual wording of Article 26(5) of the Universal Service Directive that “all calls to the single European emergency call number” are covered by the obligation to make caller location information available. In addition, the CJEU also recalled its previous case law according to which the Universal Service Directive, in its original version, imposes on Member States, subject to technical feasibility, an obligation to achieve a result, which is not limited to putting in place an appropriate regulatory framework, but which requires that the information on the location of all callers to 112 be actually transmitted to the emergency services (see CJEU, 11 September 2008, Commission v. Lithuania, C‑274/07, para 40). Therefore, calls to 112 made from a mobile phone which is not fitted with a SIM card cannot be excluded from the scope of the Universal Service Directive.

Consequently, the CJEU concluded that the Universal Service Directive requires the Member States, subject to technical feasibility, to ensure that telecommunications undertakings make caller location information available free of charge to the authority handling emergency calls to 112 as soon as the call reaches that authority, including in cases where the call is made from a mobile phone which is not fitted with a SIM card.

Further, the CJEU considered that although Member States enjoy a certain degree of discretion when laying down the criteria relating to the accuracy and reliability of the information on the location of the caller to 112, these criteria must ensure, within the limits of technical feasibility, that the caller’s position is located as reliably and accurately as is necessary to enable the emergency services usefully to come to the caller’s assistance. The discretion enjoyed by the Member States in laying down those criteria is therefore limited by the need to ensure the usefulness of the information transmitted in enabling the caller to be effectively located and, therefore, in enabling the emergency services to intervene. As such an assessment is highly technical and closely linked to the specific characteristics of the Lithuanian mobile telecommunications network, it is for the national court to carry out that assessment.