Slovakia, Supreme Court of the Slovak Republic, 3 February 2016

Identification of the case

• Articles n. 19 (3), 46 (2 and 4) of the Constitution of the Slovak Republic
• Paragraph 3(1) of Law No 9/2010 on Administrative Complaints
• Paragraphs 135 (1) and 250 (1 and 3) of the Civil Procedure Code
• Paragraph 164 of Law No 563/2009 on tax administration
• Paragraph 8 of Law No 479/2009 on State Administrative Bodies in the field of Taxes and Fees
• Paragraphs 4 (3) and 5 (3) of Law No 333/2011 on State Administrative Bodies in the field of Taxes, Fees and Customs

• Article 4 (3) of the TEU
• Article 267 of the TFEU
• Articles 1, 2, 3, 6, 7, 10, 11, 12, 13, 14, 17 and 22 of Directive n. 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data
• Articles 7, 8, 47 and 52 of the CFREU

Summary of the case

Mr. P. applied to the Supreme Court of the Slovak Republic asking that the Finance Directorate, all tax offices under its control and the Financial Administration Criminal Office be ordered to remove his name from a list, previously drawn up by the Finance Directorate, of people in charge of directive positions within companies.  Mr. P. upheld that such list (containing his Identity Number and Tax Identification Number) constituted a violation of his rights and thus asked for the removal of his name and of any reference to him from the list and from other similar lists, as well as from the finance authority’s IT system.

Mr. P. never claimed nor proved to have obtained the list with the consent, legally required, of the Finance Directorate or the Financial Administration Criminal Office.

The Supreme Court dismissed the claim since Mr. P. (as well as the other two applicants) had not exhausted the remedies before National Administrative Authorities. Mr. P. then lodged an appeal to the Constitutional Court of the Slovak Republic, which held that the Supreme Court had infringed the applicant’s fundamental rights, namely the right to an effective remedy and a fair trial, the right to privacy and the right to protection of personal data.  Thus, the Constitutional Court referred the case back to the Supreme Court which, believing that the Constitutional Court had not taken into account the case-law of the EU Court of Justice, decided to refer to such court for a preliminary ruling.

• Administrative judicial enforcement

An order to an administrative authority. A claim is brought on before the Supreme Court to order an administrative authority to remove any reference of the claimant from a list.

1)      Does Article 47(1) of the Charter, under which every person whose rights — including the right to privacy with respect to the processing of personal data in Article 1(1) et seq. of Directive 95/46 — are violated has the right to an effective remedy before a court in compliance with the conditions in Article 47 of the Charter, against a provision of national law which makes the exercise of an effective remedy before a court, meaning an administrative court, conditional on the fact that the claimant, to protect his rights and freedoms, must have previously exhausted the procedures available under lex specialis — law on a specific subject — such as the Slovak Law on administrative complaints?

2)      Can the right to respect for private and family life, home and communications, in Article 7 of the Charter, and the right to the protection of personal data in Article 8 be interpreted to the effect that where there is an alleged violation of the right to the protection of personal data, which, with respect to the European Union, is implemented primarily through Directive 95/46, and under which, in particular

-          the Member States must protect the right to privacy with respect to the processing of personal data (Article [1](1)), and

-          the Member States are authorised to process personal data where this is necessary for the implementation of a task performed in the public interest (Article 7(e)) or is necessary for the purpose of a legitimate interests that is performed by the responsible authority or by the third party or parties to whom the data are disclosed, and

-          a Member State is exceptionally authorised to limit obligations and rights (Article 13(1)(e) and (f)), where such a restriction is necessary to safeguard an important economic or financial interest of a Member State or of the European Union, including monetary, budgetary and taxation matters,

are interpreted in such a way as not to allow a Member State to create, without the consent of the person concerned, a list of personal data for the purposes of tax administration, so that the fact that personal data is made available to a public authority for the purpose of combating tax fraud in itself constitutes a risk?

3)      Can a list held by a financial authority of a Member State, which contains the claimant’s personal data and the inaccessibility of which has been secured by appropriate technical and organizational measures for the protection of personal data against unauthorized disclosure or access within the meaning of Article 17(1) of Directive 95/46, be regarded as unlawful evidence by virtue of the fact that it was obtained by the claimant without the lawful agreement of the relevant financial authority, which the referring court must refuse to admit in accordance with the requirements of EU law on a fair hearing in the second paragraph of Article 47(2) of the Charter ?

Is the abovementioned right to an effective legal remedy and to a fair hearing (in particular under Article 47 of the Charter) consistent with an approach taken by the referring court whereby, when, in this case, there is case-law from the European Court of Human Rights which differs from the answer obtained from the Court of Justice of the European Union, the referring court, in accordance with the principle of sincere cooperation in Article 4(3) TEU and Article 267 TFEU, gives precedence to the Court of Justice’s legal approach?

After stating that personal data collected for tax purposes fall within the scope of Directive n. 95/46, since they are dealt with by Article 13 (1) of such Directive, the Court commences to consider each one of the preliminary questions.

As far as the first one is concerned, the Court points out that the obligation to exhaust additional administrative remedies, whereas not excluded by Directive n. 95/46, must be scrutinized in light of Article 47 of the CFREU, Article 4 (3) of the TEU (principle of sincere cooperation) and Article 19 (1) of the TEU (effective judicial protection in the fields covered by EU law). Since such an obligation to exhaust additional administrative remedies constitutes a limitation of the right to an effective judicial remedy, it may be justified only when i) provided by law; ii) respectful of the essence of the right; iii) subject to the principle of proportionality; iv) compliant with objectives of general interest recognized by the EU or the need to protect the rights and freedoms of others. On such grounds, the Court declares that the Slovak legal provisions do not infringe EU Law, and only refers to the national court the assessment of the proportionality of the obligation to exhaust administrative remedies, even with regard to additional costs of the proceedings imposed on the parties.

The Court then moves on to consider the third question and highlights that, as in the first one, the rejection of evidence, even when obtained without a legally required consent, of an infringement of rights conferred by Directive n. 95/46 represent a limitation of the right to an effective remedy. Thus, the legitimacy of such rejection must be assessed on the basis of the same four criteria previously laid out (in accordance with Article 52 of the CFREU). The assessment is in principle to be carried out by the national court, in particular with regard to the proportionality test, where the court will have to examine whether a legitimate interest pursued by national rules limiting the right to an effective remedy takes precedence over interest in the protection of individuals’ rights and whether other means exist to ensure the achieving of the same goal.

With regard to the second question, the Court notes that, in principles, the processing of personal data for tax purposes is allowed under both Directive n. 95/46 and the Charter, especially Article 7. Notwithstanding, the national Court will have to assess whether the processing authorities have been invested with the mission to pursue a specific public interest (such as tax collection and fight against tax fraud) and whether the specific processing of data (i.e. the establishment of the contested list) is necessary for the performance of the tasks carried out in the public interest at issue in the case, in light of the principle of proportionality.

Finally, the Court rejects the fourth question, since raised in general terms and without clarifying the differences between the Case-law of the ECHR and the CJEU.

Role of the Charter and role of the general principles on enforcement

The interpretation of the Charter is at the very core of both the decision of the national Court and the CJEU decision. Indeed, the Slovak Constitutional Court had ruled that, by turning down Mr. P.’s complaints, the Najvyšší súd Slovenskej republiky had violated the rights to a fair trial, the right to privacy and the right to protection of personal data which are enshrined, respectively, in Articles n. 47, 7 and 8 of the CFREU. The Najvyšší súd Slovenskej republiky thus decided to refer preliminary questions in order to assess how the CJEU interpretation of such articles reflects on national provisions which, for instance, require the exhaustion of administrative remedies before accessing a court or empower national authorities to draw up a list containing personal data of selected citizens for fiscal purposes. Moreover, the referring court, when asking for the interpretation of Article 47, broadens the scope of its question (in comparison with the Constitutional Court decision) by highlighting the importance of the effectiveness principle, thus asking how the national provisions debated in the case must be assessed in light of such principle.

• Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
• Right to access a court
• Right to an effective remedy before a tribunal
• Right to a fair trial
• Right to a public hearing within a reasonable time

The national provisions examined in the CJEU decision are not used as legal basis for enunciation of principles and rights mentioned. Instead, the Court scrutinizes them in light of the principles expressed in the Charter, thus using the latter as legal basis for its reasoning.

Article 47 of the CFREU is used as legal basis to develop the reasoning of the Court when assessing the first and the third preliminary questions. The Court has to check whether the national provisions debated (i.e. exhaustion of administrative remedies before accessing a court and refusal to accept the contested list as evidence when obtained without the legally required consent of the authorities) can be deemed respectful of the principle of effectiveness. In doing so, the Court considers both Article 47, laying out the relevant principle/right, and Article 52, which enunciates the requirements for a limitation of the Charter-provided rights to be allowed under EU law.

Articles 7 and 8 of the CFREU are instead used in order to answer to the second preliminary question: the Court scrutinizes the list drawn up by the Slovak authorities in light of the right to privacy (Article 7) and to protection of personal data (Article 8). Their relevance rests in the circumstance that the Court directly consider the scope of said rights and the requirements of admissibility of the processing of personal data, in order to assess whether Slovak authorities had or had not violated the Charter when drawing up the list.  

• Equivalence
• Effectiveness
• Proportionality

The decision makes a very brief reference to the principle of equivalence when pointing out how the list of requirements under which Member States’ authorities can process personal data laid out in Article 7 of Directive n. 95/46, also serves the purpose to offer an equivalent level of protection in all the Member States.

In the decision, the principle of effectiveness is relevant from two different, although interlinked, perspectives. In first place, the Court uses the principle in order to scrutinize the national provisions debated. In doing so, it reassesses the legal assumption that national procedural rules have to comply with such principle and thus they cannot set up obligations, for the party, which could render impossible or extremely difficult to achieve an adequate level of protection. In the case, the issues considered by the Court are essentially two: i) the compliance, with the effectiveness principle, of national provisions which require the exhaustion of all possible administrative remedies before accessing a court in matters of data protection under Directive n. 95/46; ii) the rejection of evidence, such as the contested list, obtained without the previous legally required consent of the competent authority. In the decision, the CJEU states that, on a general level, both the requirement under point i) and the rejection of evidence under point ii) constitute a limitation of the right to an effective remedy as laid out in Article 47 of the Charter.

However, and this is the second relevant perspective, the Court then proceeds to assess whether or not such limitations are admissible. The effectiveness principle laid out in Article 47 is then to be interpreted in light of Article 52 of the Charter, which provide the requirements for the limitation of the rights conferred by the Charter, that are: i) the limitation must be provided by law; ii) it must respect the essence of the rights limited; iii) it must comply with the proportionality principle; iv) it must pursue objectives of general interest recognized by the EU or the need to protect the rights and freedoms of others. Whereas the first, second and fourth requirement are scrutinized by the CJEU itself, the proportionality test is mostly referred to the national Court.

In conclusion, the effectiveness principle acquires relevance in the decision on one hand because it is regarded as the main criterion to examine national procedural rules and, on the other hand, because it is also considered from the perspective of its admissible and legitimate limitations, as provided by the Charter itself.

As already pointed out, the principle of proportionality, as used in the decision, constitutes one of the requirements the national provisions must comply with in order to be deemed respectful of the right to an effective remedy. Between all the requirements of Article 52 of the Charter, proportionality is the only one whose examination and analysis falls, according to the CJEU, within the task of the national judge. Therefore, in the decision, the CJEU strongly emphasizes the importance of proportionality in determining the outcome of all the three preliminary questions admitted, but it does not carry out a thorough check of the national provisions in light of such principle, instead providing only general indications for the Slovak court. In particular, as far as the first question is concerned, the Court states that, in principle, Article 47 does not prevent the national legislature from requiring the exhaustion of all administrative remedies before exercising a judicial one, as long as the practical arrangements for the exercising of such remedies do not disproportionately affect the right to an effective remedy. More in detail, the CJEU then points out several issues which the national judge should take into account when carrying out the proportionality test: a) whether or not the exhaustion of administrative remedies may lead to a substantial delay in bringing the legal action; b) whether or not the exercising of administrative remedies suspends the limitation period of the rights concerned; c) whether or not such remedies involve excessive costs.

With regard to the third question, the CJEU states that the rejection of the contested list as evidence, although obtained unlawfully, appears to disproportionately affect the right to an effective remedy, especially if the person whose personal data are on the list enjoys a right of access. In the case, the right of access is guaranteed by Article 12 of directive n. 95/46 but Article 13 (1) lays out some allowed restrictions. Therefore, it is for the referring national court to determine whether the restrictions to access imposed by national provisions are in accordance with the scope of the Directive, on a case-to case basis. 

The principle of proportionality is briefly mentioned when examining the second question as well. In particular, the Court, after having deemed admissible the processing of personal data for tax purposes under Directive n. 95/46, highlights that such processing must nonetheless be carried out within the limits of what is strictly necessary and, as always, only for the purpose of achieving the specific objectives pursued by the authorities. The scrutiny is then once again referred back to the national Court.

Elements of judicial dialogue

• Direct dialogue between CJEU and National court (preliminary reference)
• Dialogue between high court - lower instance court at national level

Preliminary reference

Conform interpretation with EU law as interpreted by the CJEU

Proportionality

The CJEU decision arises from a preliminary reference under Art. 267  of the TFEU. However, the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) deemed necessary to refer four questions to the CJEU since Slovak Constitutional Court (Ústavný súd Slovenskej republiky) had previously set aside a judgment from the Supreme Court. The Constitutional Court had ruled that the Supreme court had infringed the applicant’s right to a fair trial, to privacy and to protection of personal data; thus, it had to decide the case again, this time taking into account, as required by the Constitutional Court, the case-law of the European Court of Human Rights. Nevertheless, the Supreme Court opted for a preliminary reference in order to assess the correct interpretation of such rights in light of the CFREU, believing that the Constitutional Court had neglected to consider the CJEU case-law.

Therefore, in the case the issues at display are several: the legal structure used is that of preliminary ruling, and the main content of such ruling deals with interpretative matters, so that the national Court (i.e. the Slovak Supreme Court) could correctly apply or set aside the national provisions depending on their compliance with EU Law as interpreted by the CJEU. However, there is, in second place, also an issue related to the conflict between two national courts: the Slovak Supreme Court and the Slovak Constitutional Court. The judicial dialogue is therefore aimed at offering a uniform interpretative perspective so to avoid further conflicts. The CJEU provides then a set of criteria to assess the relationship between the national provisions, the Charter and Directive n. 95/46. It does not examine, though, the fourth question – concerning the “conflict” between its case-law and that of the ECHR – since it was raised in too general terms and did not precisely define the content and boundaries of such conflict.  

As far as the proportionality test is concerned, it is used by the CJEU as one of the main criteria that the national Courts have to follow when deciding on the compliance of their national rules with Directive n. 95/46 and the Charter. Even outside the scope of the decision here examined, the CJEU appears to provide with a general methodological and substantial principle, which regards proportionality as the “guiding criteria” especially in matters, such as data protection, where assessing the occurrence of a limitation of fundamental rights and, in second place, the admissibility of such limitation, can prove really hard.

The judicial dialogue in this decision serves in first place the purpose of providing the referring Court with an interpretation of Article 7, 8, 47 and 52 of the Charter with regard to data protection matters. In second place, the dialogue might also be aimed at preventing further conflicts between the national Courts involved by ensuring that a set of interpretative criteria to be used is laid out and analyzed.

As the follow-up decision will be issued the impact of the judicial dialogue will be clearer. Nonetheless, it might be expectable that, since the CJEU ruled that any restriction or additional procedural step in order to exercise a judicial remedy in data protection matters is, in principle, a limitation of the right to an effective remedy and it is admissible only in accordance with Article 52, the attention of the national Courts will strongly focus on the interpretation and application of such article.