CJEU’s AG Bot referred to the GDPR in his recent ‘right to be forgotten’ Opinion
It may only become applicable on 25 May 2018, but the GDPR already made its official debut in the case-law of the CJEU.
It was the last paragraph (§101) of the Conclusions of AG Bot in Case C-398/15 Manni, published on 8 September, that specifically referred to Regulation 2016/679 (the official name of the GDPR). The case concerns the question of whether the right to erasure (the accurate name of the more famous “right to be forgotten”) as enshrined in Article 12 of Directive 95/46 also applies in the case of personal data of entrepreneurs recorded in the Public Registry of companies, if their organisation went bankrupt years ago. Curiously, the preliminary ruling question doesn’t specifically refer to the right to erasure, but to the obligation in Article 6(1)(e) for controllers not to retain the data longer than necessary to achieve the purpose for which they were collected.
In fact, Mr Manni had requested his regional Chamber of Commerce to erase his personal data from the Public Registry of Companies, after he found out that he was losing clients who performed background checks on him through a private company that specialised in finding information in the Public Registry. This happened because Mr Manni had been an administrator of a company that was declared bankrupt more than 10 years before the facts in the main proceedings. In fact, the former company itself was radiated from the Public Registry (§30).
Disclaimer! The Opinion is not yet available in English, but in another handful of official languages of the EU. Therefore, the following quotes are all my translation from French or Romanian.
AG Bot advised the Court to reply to the preliminary ruling questions in the sense that all personal data in the Public Registry of companies should be retained there indefinitely, irrespective of the fact that companies to whose administrators the data refer are still active or not. “Public Registries of companies cannot achieve their main purpose, namely the consolidation of legal certainty by disclosing, in accordance with the transparency principle, legally accurate information, if access to this information would not be allowed indefinitely to all third parties” (§98).
The AG adds that “the choice of natural persons to get involved in the economic life through a commercial company implies a permanent requirement of transparency. For this main reason, detailed throughout the Opinion, I consider that the interference in the the right to the protection of personal data that are registered in a Public Registry of companies, specifically ensuring their publicity for an indefinite period of time and aimed towards any person who asks for access to these data, is justified by the preponderant interest of third parties to access those data” (§100).
Restricting the circle of ‘interested third parties’ would be incompatible with the purpose of the Public Registry
Before reaching this conclusion, the AG dismissed a proposal by the Commission that suggested a limited access to the personal data of administrators of bankrupt companies could be ensured only for those third parties that “show a legitimate interest” in obtaining it.
The AG considered that this suggestion “cannot, at this stage of development of EU law, ensure a fair balance between the objective of protecting third parties and the right to the protection of personal data registered in Public Registries of companies” (§87). In this regard, he recalled that the objective to protect the interest of third parties as enshrined in the First Council Directive 68/151 “is provided for in a sufficiently wide manner so as to encompass not only the creditors of a company, but also, in general, all persons that want to obtain information regarding that company” (§88).
Earlier, the AG had also found that the suggestion to anonymise data regarding the administrators of bankrupt companies is not compatible with the historical function of the Public Registry and with the objective to protect third parties that is inherent to such registries. “The objective to establish a full picture of a bankrupt company is incompatible with processing anonymous data” (§78).
Throughout the Opinion, the AG mainly interprets the principles underpinning the First Council Directive 68/151/EC (of 9 March 1968 on co-ordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community) and it is apparent that it enjoys precedence over Directive 95/46/EC.
Finally: the reference to the GDPR
The AG never refers in his analysis to Article 12 of Directive 95/46, which grants data subjects the right to erasure. However, come the last paragraph of the Opinion, the AG does refer to Article 17(3)(b) and (d) from Regulation (EU) 2016/679 (yes, the GDPR). He applies Article 17 GDPR to the facts of the case and mentions that the preceding analysis “is compatible” with it, because “this Article provides that the right to erasure of personal data, or ‘the right to be forgotten’, does not apply to a processing operation ‘for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller’ or ‘for archiving purposes in the public interest'” (§101).
While I find the Opinion of the AG clear and well argued, I have two comments. I wish he had referred more comprehensively to the fundamental rights aspect of the case when balancing the provisions of the two directives. But most of all, I wish he would have analysed the right to erasure itself, the conditions that trigger it and the exemptions under Article 13 of Directive 95/46.
My bet on the outcome of the case: the Court will follow the AG’s Opinion to a large extent. However, it may be more focused on the fundamental rights aspect of balancing the two Directives and it may actually analyse the content of the right to erasure and its exceptions. The outcome, however, is likely to be the same.
A small thing that bugs me about this case is that I find there is a differentiation between searching a Registry of Companies being interested in a company name and searching a Registry of Companies being interested in a specific natural person. I mean, all third parties may very well be interested in finding out everything there is to know about bankrupt Company X, discovering thus that Mr Manni was the administrator. To me, this does not seem to be the same situation as searching the Public Registry of companies using Mr Manni’s name to find out all about Mr Manni’s background. In §88 the AG even mentions, when recognising the all encompassing interest of every third party to access all information about a certain company indefinitely, that Directive 68/151 protects the interest of “all persons that want to obtain information regarding this company“. I know the case is about keeping or deleting the personal data of Mr Manni from the Registry. And ultimately it is important to keep the information there due to the general interest of knowing everything about the history of a company. However, does it make any difference for the lawfulness of certain processing operations related to the data in the Registry that the Registry of companies is used to create profiles of natural persons? I don’t know. But it’s something that bugged me while reading the Opinion. Moreover, if you compare this situation to the “clean slate” rules for certain offenders that have their data erased from the criminal record, it is even more bugging. (Note: at §34 the AG specifies he is only referring in his Opinion to the processing of personal data by the Chamber of Commerce and not by private companies specialising in providing background information about entrepreneurs).
Fun fact #1
The GDPR made its ‘unofficial’ debut in the case-law of the CJEU in the Opinion of AG Jaaskinen in C-131/14 Google v. Spain delivered on 25 June 2013. In fact, it was precisely Article 17 that was referred to in this Opinion as well, in §110. There’s another reference to the GDPR in §56, mentioning the new rules on the field of application of EU data protection law. Back then, the text of the GDPR was merely a proposal of the Commission – nor the EP, or the Council had adopted their own versions of the text, before entering the trilogue which resulted in the adopted text of Regulation 2016/679.
Fun fact #2
AG Bot is the AG that the delivered the Opinion in the Schrems case as well. The Court followed his Opinion to a large extent for its Judgment. There are fair chances the Court will follow again his Opinion.