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Council of State also requests explanation of privacy law from ECJ

Council of State also requests explanation of privacy law from ECJ

Just as the District Court of Middelburg has done, so now the Dutch Council of State has decided to refer to the ECJ for preliminary ruling questions regarding a couple of key concepts from the privacy law. What is striking is that there is a large overlap between the questions of both judicial authorities.

Summary of issues

Both issues have strong resemblances to each other and amount to the following. A foreign national desired access to the so-called “minute” [original], containing a legal analysis, and invoked the right of access from the privacy law. The question that then arises is:

1. whether the right of access is indeed applicable (because the right of inspection concerns a right of access to personal data and the question is whether that “minute” constitutes in fact personal data);

2. if so, whether the right then exists of access to and a copy of all documents or whether the issue of a summary of the processed personal data suffices.

In a previous blog, I have already paid extensive attention to the background of these questions. For more information, please refer to this blog.

Council of State critical of District Court

It is striking that the Council of State reveals regarding various points in the ruling that it is critical of the judgment of the District Court of Middelburg. For instance, the Council of State points out (once again) that the Council interprets an important ruling of the Dutch Supreme Court differently than the District Court does:

2.24. (…) Other than the District Court of Middelburg, the Division from the aforesaid ruling of the Supreme Court of 29 June 2007, which ruling was pronounced incidentally in civil proceedings and as such does not relate to the matter under discussion here, does not infer that this court of justice is of the opinion that a right exists to the acquisition of copies of documents. That ruling states no more than that it will often be possible to furnish a full summary through the issue of transcripts, copies or extracts and will sometimes have to take place on the instructions of the court. This last item corresponds with the ruling of the Division that access to documents must be granted if it is not possible to provide adequate information on personal data in another manner. Both courts of justice are consequently of the opinion that in order to satisfy the provisions of the obligation laid down in Section 35(2) of the Personal Data Protection Act, furnishing general information on processed personal data cannot be sufficient.

Incidentally, it is not that surprising that the Council of State is sticking to the course previously initiated. This (implicit) criticism of the District Court ruling fits within the course of the Council. It should not be overlooked, however, that the District Court of Middelburg has referred the questions for preliminary ruling precisely because of these different opinions of the Supreme Court and the Council of State on the privacy law.

Similar comments on the ruling of the District Court of Middelburg can also be found later in the ruling of the Council of State. Once again, the Council of State stands by its earlier ruling:

2.30 The District Court of Middelburg has considered in its order for reference as stated under 2.24. (known to the ECJ under number C-141/12), that it has doubts about this ruling of the Division. It considers whether the explanation given by the Division of the term “personal data” is in accordance with the definition of the term “personal data” as laid down in Article 2(a) of the Privacy Directive and the manner in which the [Data Protection Working] Party explains this term in its Opinion 4/2007. In the cases currently before the Court that opinion has also been invoked.

The Division states first and foremost that this opinion is not legally binding. (…) According to the Party, in order to be able to make reference to data relating to a person, the requirements of one of the following three alternative elements must be satisfied: 1) content: according to the customary opinion in a society, the information concerns a person, for instance a personnel file or patient record; or 2) purpose: the data are or will probably be used with the aim of assessing a person, handling a person in a certain manner, or influencing the status or behaviour of that person; or 3) result: the use of the data is expected to have consequences for someone’s rights or interests.

According to the opinion of the Division, a legal analysis does not come under the element of “content”. In addition, a legal analysis is not used with the aim of assessing a person, but an analysis is in and of itself an assessment of personal data. Therefore, it appears that the requirements of the element of “purpose” have also not been met. The use of a legal analysis, according to the Division’s opinion, also does not have any consequences for someone’s rights or interests, given that a person can only derive rights from a decision taken ultimately on the basis of a request. How the person involved is assessed or handled in society is not determined by a legal analysis, but by the data that underlie that analysis and the outcome of the decision-making process of which that analysis is part. Therefore, it appears that the requirements of the element of “result” have also not been met.

The Council of State should recognize, however, that precisely because the District Court of Middelburg has referred questions to the ECJ, the risk has arisen that the privacy law in the Netherlandswill be interpreted in different ways. That is also why the Council considered the following twice (using roughly the same words):

Nevertheless, in light of the order for reference of the District Court of Middelburg, a lack of clarity now exists within Dutch case law regarding the interpretation of the second indent of Article 12, heading and under a, of the Privacy Directive. It is for this reason that the Division sees cause to refer the following question:

Overlap in questions

Of interest is that both judicial authorities have referred the same or virtually the same questions to a degree. To that end, see the table below. I quote the questions of the District Court of Middelburg and of the Council of State as they have been published on the Curia website.

Summary of question Middelburg District Court Council of State
1 Re the term “personal data” Are the data reproduced in the “minute” concerning the data subject and which relate to the data subject, personal data within the meaning of Article 2(a) of the Privacy Directive?
2 Is a “minute” personal data? Is the legal analysis contained in the “minute” personal data within the meaning of the aforesaid provision? Can a legal analysis, as set out in a “minute”, be regarded as personal data within the meaning of Article 2(a) of Directive 95/46/EC […]?
3 Does full access have to be granted (or does a summary suffice)? The District Court refers to both the Privacy Directive and the Charter in a question; the Council of State splits this up. (See next column.)If the ECJ confirms that the data described above are personal data, should the processor/government body grant access to those personal data pursuant to Article 12 of the Privacy Directive and Article 8(2) of the EU Charter? The Council splits up the question into two subquestions, specifically separately for an invocation of the Privacy Directive and for an invocation of the fundamental rights from the Charter. Should the second indent of Article 12(a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data be interpreted to mean that there is a right to a copy of documents in which personal data have been processed, or is it sufficient if a full summary, in an intelligible form, of the personal data that have undergone processing in the documents concerned is provided?Should the words “right of access” in Article 8(2) of the Charter of Fundamental Rights of the European Union be interpreted to mean that there is a right to a copy of documents in which personal data have been processed, or is it sufficient if there is provision of a full summary, in an intelligible form, of the personal data that have undergone processing in the documents concerned within the meaning of the second indent of Article 12(a) of Directive 95/46/EC […]?
4 Is the interest of an internal, undisturbed exchange of views also part of a ground for exception in the privacy law? Does the protection of the rights and freedoms of others, within the meaning of Article 13(1)(g) of Directive 95/46/EC …, also cover the interest in an internal undisturbed exchange of views within the public authority concerned? If the answer to that is in the negative, can that interest then be covered by Article 13(1)(d) or (f) of that directive?
5 Does a right of direct access to information follow from the fundamental right to proper administration? In that context, may the data subject rely on Article 41(2)(b) of the EU Charter, and if so, must the phrase “while respecting the legitimate interests of confidentiality [in decision-making]” included therein be interpreted in such a way that the right of access to the “minute” may be refused on that ground? Is Article 41(2)(b) of the Charter of Fundamental Rights of the European Union also addressed to the Member States of the European Union in so far as they are implementing European Union law within the meaning of Article 51(1) of that Charter?
6 If so, can the interest of orderly decision-making form an exception thereto? Does the consequence that, as a result of the granting of access to “minutes”, the reasons why a particular decision is proposed are no longer recorded therein, which is not in the interests of the internal undisturbed exchange of views within the public authority concerned and of orderly decision-making, constitute a legitimate interest of confidentiality within the meaning of Article 41(2)(b) of the Charter of Fundamental Rights of the European Union?

Two new questions

Although the Council of State formulates most of the questions in a somewhat more nuanced manner, in essence it means that the Council has referred only two supplemental questions (numbered 4 and 6 by me). Both of these questions refer to the possible existence of exceptions (in the event of reliance upon either the Privacy Directive or the Charter (of Fundamental Rights)). It would not have surprised me if the Court of Justice had ended up “interpreting” this question in respect of exceptions also without these new questions for preliminary ruling in the question (numbered 3 by me) of the District Court of Middelburg, but it is nonetheless good that this question is now explicitly before the ECJ.

Awaiting ruling

We are awaiting the ruling of the ECJ, but it could take up to two years before one is issued. We will keep you abreast of developments.

Mark Jansen

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