Identification of the case
Fundamental rights involved
- Respect for private and family life (art. 7 CFREU)
- Protection of personal data (art. 8 CFREU)
National law sources
- Art. 11, 18, 19 Legislative Decree 196/2003
EU law sources
- Art. 6 para. 1 let. e), Art. 12 let. b), Art. 14 para. 1 let. a) Directive 95/46/CE
- Art. 3 Directive 68/151/CEE
- Art. 7 and 8 CFREU
ECHR provisionsArt. 7 and 8 ECHR
Summary of the case
Facts of the caseThe claimant was the director of a company, which went bankrupt in 1992. The insolvency procedure ended in 1995. The company was struck off the companies register in 2005.
Meanwhile the claimant became the sole director of another company, which was concerned with real estate and built up new houses in a resort.
The companies’ register, managed by the local Chamber of Commerce, Industry, Craft Trades and Agriculture, kept on publishing his name and surname as the cancelled company’s former director. The Chamber of Commerce denied his request for data erasure.
The claimant alleged that the persistence of his name in the business register caused many people not to buy many of the houses, which had been built by the new company he administrated.
The Tribunal of Lecce, according to the plaintiff’s requests, ordered the anonimisation of data and compensation to be paid by the defendant.
The Italian Court of Cassation, appealed by the Chamber of Commerce, referred two preliminary questions to the CJEU, which issued its decision on 9 March 2017.
Type of enforcement
- Civil judicial enforcement
Measures, actions, remedies claimed/appliedCompensation for the violation of the individual’s rights by the judiciary.
Order to erase, anonymise or block the data.
Preliminary questions1.Must the principle of keeping personal data in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed, laid down in Article 6(1)(e) of Directive 95/46, transposed by Legislative Decree No 196 of 30 June 2003, take precedence over and, therefore, preclude the system of disclosure established by means of the companies register provided for by Directive 68/151 and by national law in Article 2188 of the Civil Code and Article 8 of Law No 580 of 29 December 1993, in so far as it is a requirement of that system that anyone may, at any time, obtain the data relating to individuals in those registers?
2.Consequently, is it permissible under Article 3 of Directive 68/151, by way of derogation from the principles that there should be no time limit and that anyone may consult the data published in the companies register, for the data no longer to be subject to “disclosure”, in both those regards, but to be available for only a limited period and only to certain recipients, on the basis of a case-by-case assessment by the data manager?
Reasoning (legal principles applied)The question is whether the right to data protection entails the right to erasure or unpublication of data after the expiry of a certain time. In particular, whether the right to be forgotten applies also to public registers after the expiry of the period of time necessary for their scope. First of all, the Court recalls the interpretation of Art. 6 para. 1 let. e), Art. 12 let. b), Art. 14 para. 1 let. a) Directive 95/46/CE, together with art. 3 Directive 68/151/CEE provided by CJEU: «it is for the Member States to determine whether the natural persons referred to in Article 2(1)(d) and (j) of that directive may apply to the authority responsible for keeping, respectively, the central register, commercial register or companies register to determine, on the basis of a case-by-case assessment, if it is exceptionally justified, on compelling legitimate grounds relating to their particular situation, to limit, on the expiry of a sufficiently long period after the dissolution of the company concerned, access to personal data relating to them, entered in that register, to third parties who can demonstrate a specific interest in consulting that data». Taking into account specific points of the CJEU reasoning, the Court of Cassation affirms that MS are not obliged to guarantee data erasure in the above-mentioned cases, as the violation of the right to data protection is proportionate (limited personal data; awareness of the person involved, as company director). Moreover, MS law can foresee specific exceptions that could give room to data erasure. National judges should verify the existence of the exception in national legislation. As a consequence, the national court states that Italian law does not provide an exception to the publicity of this kind of data, which could allow such data to be unpublished according to time-related or subject-related criteria. The right to data protection does not comprehend (according to CJEU judgement, Legislative Decree 196/03, Art. 7 and 8 CFREU, Art. 8 ECHR) the ‘right to be forgotten’ regarding data available in public registers if an exception is not prescribed by law. This reasoning is compliant with art. 8 para. 2 ECHR and new Regulation 2016/679/UE as far as they discipline restrictions to the rght in question (see below). Moreover, a company being subject to insolvency procedures is not a piece of information damaging the reputation of its director (citing AG Opinion, para. 86). The Court concludes that, in light of legislation and the tasks of the Chambers of Commerce regarding the registers, it is legitimate to keep information on the role of director and liquidator, even if the company is declared bankrupt and then cancelled from the registry, as trade publicity prevails over private interest on the grounds of certainty in trade relationships. In the present case, the Court affirms the retention of data to be compliant with the law.
Role of the Charter and role of the general principles on enforcement
Relation to scope of the CharterThe case involves the rights of private life and data protection provided by Art. 7 and 8 CFREU.
Safeguards for access to justice
- Right to a public hearing within a reasonable time
Reference to national provisionsArt. 24 of the Italian Constitution
Relevant principles applied
Principle of proportionalityThe principle of proportionality is applied as test, according to the relevant ECHR jurisprudence, relevant provisions of CFREU and in the new Regulation 2016/679/UE, to verify if the erasure of personal data can be refused on the grounds of their necessity for public purposes. In particular, it is reminded that the Union or Member State law can impose restrictions on the erasure of personal data, as far as necessary and proportionate in a democratic society to safeguard public security or other important objectives of general public interest of the Union or of a Member State (including the keeping of public registers for general public interests) (Whereas nr. 73 of the Regulation).
Elements of judicial dialogue
Judicial dialogue patterns
Vertical dialogue type
- Direct dialogue between CJEU and National court (preliminary reference)
- CJEU C-398/15, Manni
- CJEU C-131/12, Google Spain
Dialogue techniquesPreliminary reference
Purposes of using judicial dialogueInterpretation of two Directives and definition of the possible limitations to the right to be forgotten in the specific case of public company registers.
Expected effects of judicial dialogueNational Supreme Court applies the proportionality test provided by ECHR and CFREU.