On September 27, 2017 the Court of Justice of the European Union (CJEU) judged in Case C-73/16, Peter Puškár versus Finančné riaditeľstvo Slovenskej republiky, Kriminálny úrad finančnej správy (ECLI:EU:C:2017:725).

This request for a preliminary ruling concerns the interpretation of Articles 7, 8 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), of Article 1(1), of Article 7(e) and of Article 13(1)(e) and (f) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31), and of Article 4(3) TEU and of Article 267 TFEU.

The request has been made in proceedings between, on the one hand, Mr Peter Puškár and the Finančné riaditel’stvo Slovenskej republiky (Finance Directorate of the Slovak Republic, ‘the Finance Directorate’) and, on the other, the Kriminálny úrad finančnej správy (Financial Administration Criminal Office, Slovakia) concerning an action seeking to order the latter to remove Mr Puškár’s name from a list of persons considered by the Finance Directorate to be ‘front-men’, drawn up by the latter in the context of tax collection and the updating of which is carried out by the Finance Directorate, the tax offices subordinate to it and the Financial Administration Criminal Office (‘the contested list’).

 

The dispute in the main proceedings and the questions referred for a preliminary ruling

·   Believing himself to be a victim of an infringement of his rights relating to personality by the inclusion of his name on the contested list, Mr Puškár applied to the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic), by an action of 9 January 2014, followed by an appeal of 19 November 2014, to order the Finance Directorate, all tax offices under its control and the Financial Administration Criminal Office not to include his name on the contested list or any other similar list and to delete any reference to him from those lists and from the finance authority’s IT system.

 

·   According to Mr Puškár, the Finance Directorate and the Financial Administration Criminal Office have drawn up and are using the contested list, a list of natural persons, numbering 1 227 according to Mr Puškár, which the public authorities refer to by the expression ‘biele kone’ (‘white horses’). That expression is used for persons acting as ‘fronts’ in company director roles. Each natural person is, in principle, together with his national identity number and a tax identification number, associated with a legal person or legal persons — of which there are 3 369, according to Mr Puškár’s indications — within which he is deemed to be performing duties during a determined period.

 

·   The referring court states that the existence of the contested list has been confirmed by the Financial Administration Criminal Office, which submits, however, that this list was drawn up by the Finance Directorate.

 

·   According to the referring court, the contested list is protected against ‘unauthorised disclosure or access’ within the meaning of Article 17(1) of Directive 95/46, by appropriate technical and organisational measures. Nevertheless, neither in his pleadings nor at the hearing, did Mr Puškár claim that he had obtained the contested list with the consent legally required by the Finance Directorate or, where appropriate, the Financial Administration Criminal Office.

 

·   It is apparent from the order for reference that the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) has dismissed as unfounded the actions brought by Mr Puškár and two other persons included on the contested list on procedural grounds, namely the fact that those applicants had not exhausted the remedies before the national administrative authorities, or on substantive grounds.

 

·   Following the subsequent constitutional appeals lodged by Mr Puškár and those two other persons, the Ústavný súd Slovenskej republiky (Constitutional Court of the Slovak Republic), relying in particular on the case-law of the European Court of Human Rights, held that, in so doing, the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) had infringed several of those applicants’ fundamental rights, namely, inter alia, the right to a fair trial, the right to privacy as well as the right to the protection of personal data. Consequently, the Ústavný súd Slovenskej republiky (Constitutional Court of the Slovak Republic) set aside all of the judgments at issue of the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) and referred the cases back to that court so that it would rule again, reminding it that it was bound by the case-law of the European Court of Human Rights on the protection of personal data.

 

·   According to the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic), the Ústavný súd Slovenskej republiky (Constitutional Court of the Slovak Republic) did not take into account the relevant case-law of the Court of Justice on the application of EU law on the protection of personal data.

 

·   In those circumstances, the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘ (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 organisational measures for the protection of personal data against unauthorised 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 ?

(4)     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?’

 

 

Judgment

The CJEU ruled as follows:

1. Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that it does not preclude national legislation, which makes the exercise of a judicial remedy by a person stating that his right to protection of personal data guaranteed by 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, has been infringed, subject to the prior exhaustion of the remedies available to him before the national administrative authorities, provided that the practical arrangements for the exercise of such remedies do not disproportionately affect the right to an effective remedy before a court referred to in that article. It is important, in particular, that the prior exhaustion of the available remedies before the national administrative authorities does not lead to a substantial delay in bringing a legal action, that it involves the suspension of the limitation period of the rights concerned and that it does not involve excessive costs.

2. Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as precluding that a national court rejects, as evidence of an infringement of the protection of personal data conferred by Directive 95/46, a list, such as the contested list, submitted by the data subject and containing personal data relating to him, if that person had obtained that list without the consent, legally required, of the person responsible for processing that data, unless such rejection is laid down by national legislation and respects both the essential content of the right to an effective remedy and the principle of proportionality.

3. Article 7(e) Directive 95/46 must be interpreted as not precluding the processing of personal data by the authorities of a Member State for the purpose of collecting tax and combating tax fraud such as that effected by drawing up of a list of persons such as that at issue in the main proceedings, without the consent of the data subjects, provided that, first, those authorities were invested by the national legislation with tasks carried out in the public interest within the meaning of that article, that the drawing-up of that list and the inclusion on it of the names of the data subjects in fact be adequate and necessary for the attainment of the objectives pursued and that there be sufficient indications to assume that the data subjects are rightly included in that list and, second, that all of the conditions for the lawfulness of that processing of personal data imposed by Directive 95/46 be satisfied.

 

From the considerations of the Court

Preliminary observations

·   It must be held at the outset, on the basis of the information provided by the referring court, that the data included on the contested list, namely, inter alia, the names of some natural persons, including Mr Puškár, are ‘personal data’ within the meaning of Article 2(a) of the Directive 95/46, since they are ‘information relating to an identified or identifiable natural person’ (see, to that effect, judgments of 16 December 2008, Satakunnan Markkinapörssi and Satamedia, C‑73/07, EU:C:2008:727, paragraph 35, and of 1 October 2015, Bara and Others, C‑201/14, EU:C:2015:638, paragraph 29).

 

·   Both their collection and their use by the various tax authorities at issue in the case in the main proceedings therefore constitute ‘processing of personal data’ within the meaning of Article 2(b) of that directive (see, to that effect, judgments of 20 May 2003, Österreichischer Rundfunk and Others, C‑465/00, C‑138/01 and C‑139/01, EU:C:2003:294, paragraph 64; of 16 December 2008, Huber, C‑524/06, EU:C:2008:724, paragraph 43; and of 1 October 2015, Bara and Others, C‑201/14, EU:C:2015:638, paragraph 29).

 

·   The Spanish Government claims, however, that that processing of personal data is excluded from the scope of Directive 95/46 pursuant to the first indent of Article 3(2) thereof, under which that directive does not apply, in any case, to processing operations of personal data concerning public security, defence, State security, including the economic well-being of the State when the processing operation relates to State security matters, and the activities of the State in areas of criminal law.

 

·   In that regard, it should be borne in mind that the activities which are mentioned by way of example in that article are, in any event, activities of the State or of State authorities unrelated to the fields of activity of individuals (see judgments of 6 November 2003, Lindqvist, C‑101/01, EU:C:2003:596, paragraph 43, and of 16 December 2008, Satakunnan Markkinapörssi and Satamedia, C‑73/07, EU:C:2008:727, paragraph 41).

 

·   The Court has also considered that the activities mentioned by way of example in the first indent of Article 3(2) of Directive 95/46 are intended to define the scope of the exception which is provided for there, with the result that that exception applies only to the activities which are expressly listed there or which can be classified in the same category (see judgment of 6 November 2003, Lindqvist, C‑101/01, EU:C:2003:596, paragraph 44).

 

·   In so far as it renders inapplicable the system of protection of personal data provided for in Directive 95/46 and thus deviates from the objective underlying it, namely to ensure the protection of the fundamental rights and freedoms of natural persons with regard to the processing of personal data, the exception provided for in the first indent of Article 3(2) of that directive must be interpreted strictly.

 

·   In the case in the main proceedings it is apparent from the order for reference that the data at issue are collected and used for the purpose of collecting tax and combating tax fraud. Subject to the determinations to be carried out in that regard by the referring court, however, it does not appear that the processing of that data has as its object public security, defence or State security.

 

·   Besides, even if it does not appear to be excluded that that data may be used in criminal proceedings which may be brought, in the event of an infringement in the field of taxation, against certain persons whose names are included in the contested list, the data at issue in the case in the main proceedings do not appear to have been collected for the specific purpose of the pursuit of such criminal proceedings or in the context of State activities relating to areas of criminal law.

 

·   Moreover, it is clear from the case-law of the Court that tax data constitute ‘personal data’ within the meaning of Article 2(a) of Directive 95/46 (see, to that effect, judgment of 1 October 2015, Bara and Others, C‑201/14, EU:C:2015:638, paragraph 29).

 

·   In that context, it should be noted that Article 13(1)(e) of Directive 95/46 authorises the Member States to take legislative measures to limit the scope of the obligations and rights provided for in Article 6(1), Article 10, Article 11(1) and Articles 12 and 21 of that directive where such a restriction constitutes a measure necessary to safeguard an important economic or financial interest of a Member State or of the European Union, including monetary, budgetary and taxation matters. A limitation of the data protection provided by Directive 95/46 for tax purposes is accordingly expressly provided for in that directive.

 

·   Article 13(1) of Directive 95/46 necessarily presupposes that the national measures referred to therein, such as those necessary to safeguard an important economic or financial interest of a Member State in the field of taxation, fall within the scope of that directive (see, by analogy, judgment of 21 December 2016, Tele2 Sverige and Watson and Others, C‑203/15 and C‑698/15, EU:C:2016:970, paragraph 73).

 

·   It follows from the foregoing that, subject to the determinations to be carried out by the referring court, processing of personal data, such as that at issue in the case in the main proceedings, falls within the scope of Directive 95/46.

 

The first question

·   By its first question, the referring court asks, in essence, whether Article 47 of the Charter must be interpreted as precluding national legislation, which makes the exercise of a judicial remedy by a person stating that his right to protection of personal data guaranteed by Directive 95/46 has been infringed, subject to the prior exhaustion of the remedies available to him before the national administrative authorities (‘the available administrative remedies’).

 

Admissibility

·   Mr Puškár and the Slovak Government dispute the admissibility of the first question referred.

 

·   Mr Puškár claims, in particular, that that question is hypothetical in so far as, following the dismissal by the referring court of his first action on the ground that he had not lodged an administrative complaint, he had exhausted, prior to his second appeal before that court, all possible prior remedies.

 

·   Similarly, the Slovak Government points out that the order for reference mentions at least two proceedings initiated by Mr Puškár, without specifying which of them is the subject of the present reference for a preliminary ruling. It claims that the information contained in the order for reference does not make it possible to determine whether a complaint had been lodged under Law No 9/2010, in which case the first question referred for a preliminary ruling would be inadmissible because of its hypothetical nature.

 

·   In that regard, it must be borne in mind that, according to the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (see, in particular, judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 55 and the case-law cited).

 

·   Questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (see judgment of 17 July 2014, YS and Others, C‑141/12 and C‑372/12, EU:C:2014:2081, paragraph 63). The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, in particular, judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 56 and the case-law cited).

 

·   However, that is not the case here. As was pointed out in paragraphs 29 and 30 of the present judgment, it is clear from the order for reference that the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) had initially rejected the actions brought by Mr Puškár and two other persons on the ground, inter alia, that they had not exhausted the available administrative remedies, and that those decisions were annulled by the Ústavný súd Slovenskej republiky (Constitutional Court of the Slovak Republic).

 

·   In those circumstances, it is not obvious that the interpretation of EU law sought by the referring court bears no relation to the actual facts of the main action or its purpose.

 

·   It follows that the first question is admissible.

 

Substance

·   Article 22 of Directive 95/46 requires specifically that Member States shall provide for the right of every person to a judicial remedy for any breach of the rights guaranteed him by the national law applicable to the processing of personal data in question.

 

·   That directive, which does not contain any provisions governing specifically the conditions under which that remedy may be exercised, does not however exclude the possibility that national law may also establish remedies before the administrative authorities. On the contrary, it should be pointed out that Article 22 expressly states that it is ‘without prejudice to any administrative remedy for which provision may be made, inter alia before the supervisory authority referred to in Article 28 [of Directive 95/46], prior to referral to the judicial authority’, that Member States are to provide for the right of every person to that judicial remedy.

 

·   However, it is necessary to determine whether Article 47 of the Charter precludes a Member State from providing that the exhaustion of available administrative remedies is a prerequisite for bringing such a judicial remedy.

 

·   It should be recalled that, according to settled case-law of the Court, under the principle of sincere cooperation laid down in Article 4(3) TEU it is for the courts of the Member States to ensure judicial protection of a person’s rights under EU law, in addition, Article 19(1) TEU requiring Member States to provide remedies sufficient to ensure effective judicial protection in the fields covered by EU law (see, inter alia, judgments of 8 November 2016, Lesoochranárske zoskupenie VLK, C‑243/15, EU:C:2016:838, paragraph 50, and of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 29).

 

·   That requirement on the part of the Member States corresponds to the right enshrined in Article 47 of the Charter, entitled ‘Right to an effective remedy and to a fair trial’, which provides that everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal (see, to that effect, judgment of 16 May 2017, Berlioz Investment Fund, C‑682/15, EU:C:2017:373, paragraph 44, and of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 30).

 

·   It follows that, when they set out detailed procedural rules for legal actions intended to ensure the protection of rights conferred by Directive 95/46, the Member States must ensure compliance with the right to an effective remedy and to a fair hearing, enshrined in Article 47 of the Charter, which constitutes a reaffirmation of the principle of effective judicial protection (see, to that effect, judgments of 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 46, and of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 31).

 

·   It follows that the characteristics of the remedy provided for in Article 22 of Directive 95/46 must be determined in a manner that is consistent with Article 47 of the Charter (see, by analogy, judgments of 17 December 2015, Tall, C‑239/14, EU:C:2015:824, paragraph 51, and of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 31).

 

·   In the present case, it is common ground in the case in the main proceedings that, by making the admissibility of a legal action brought by a person alleging infringement of his right to protection of personal data guaranteed by Directive 95/46 subject to the prior exhaustion of the administrative remedies available, the national legislation at issue introduces an additional step for access to the courts. As the Advocate General also stated in point 53 of her Opinion, such a procedural rule would delay access to a judicial remedy and could also cause additional costs to be incurred.

 

·   The obligation to exhaust additional administrative remedies thereby constitutes, as a precondition for bringing a legal action, a limitation on the right to an effective remedy before a court within the meaning of Article 47 of the Charter which, in accordance with Article 52(1) of the Charter can therefore be justified only if it is provided for by law, if it respects the essence of that right and, subject to the principle of proportionality, if it is necessary and genuinely meets objectives of general interest recognised by the EU or the need to protect the rights and freedoms of others (see, to that effect, judgment of 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, paragraph 49).

 

·   It must be held that, in the case in the main proceedings, it is clear from the order for reference that the legal basis for the obligation to exhaust available administrative remedies is set out in Paragraph 250v(3) of the Code of Civil Procedure, in such a way that it must be regarded as being provided for by national law (see, to that effect, judgment of 15 September 2016, Star Storage and Others, Case C‑439/14 and C‑488/14, paragraph 50 and the case-law cited).

 

·   Moreover, that obligation respects the essential content of the fundamental right to effective judicial protection, as enshrined in Article 47 of the Charter. That obligation does not call into question that right as such. An additional procedural step is merely imposed in order to exercise it.

 

·   Nonetheless, it must still be determined whether the obligation to exhaust available administrative remedies corresponds to an objective in the general interest and whether, in the affirmative, it complies with the principle of proportionality within the meaning of Article 52(1) of the Charter.

 

·   It is clear from the order for reference and from the observations of the Slovak Government that the reasons for the mandatory introduction of an administrative complaint before bringing a legal action are linked, first, to the administrative authority, if it accepts the applicant’s arguments, to remedy more quickly an unlawful situation when it finds that the complaint is well founded, and to avoid seeing unexpected actions brought against that authority in court. Second, those reasons relate to the fact that such an obligation contributes to the efficiency of the judicial procedure where that authority does not share the applicant’s opinion and where the latter then lodges a legal action, because the judge can then rely on the existing administrative record.

 

·   Thus it appears that the obligation to exhaust available administrative remedies is intended to relieve the courts of disputes which can be decided directly before the administrative authority concerned and to increase the efficiency of judicial proceedings as regards disputes in which a legal action is brought despite the fact that a complaint has already been lodged. The obligation therefore pursues legitimate general interest objectives.

 

·   As is clear from point 62 of the Advocate General’s Opinion, the obligation to exhaust the available administrative remedies appears appropriate for achieving those objectives, no less onerous method than that obligation suggesting itself as capable of realising those objectives as efficiently.

 

·   Moreover, it is not evident that any disadvantages caused by the obligation to exhaust available administrative remedies are clearly disproportionate to those objectives (see, by analogy, judgment of 18 March 2010, Alassini and Others, C‑317/08 to C‑320/08, EU:C:2010:146, paragraph 65).

 

·   In that regard, it should be recalled that the Court held that the principle of effective judicial protection, reaffirmed in Article 47 of the Charter, did not preclude national legislation making the application of legal action in the field of electronic communications and consumer services subject to the prior implementation of out-of-court conciliation and mediation procedures provided that those procedures do not result in a decision which is binding on the parties, that they do not cause a substantial delay for the purposes of bringing legal proceedings, that they suspend the period for the time-barring of claims and that they do not give rise to costs — or give rise to very low costs — for the parties, and only if electronic means are not the only means by which the settlement procedure may be accessed and interim measures are possible in exceptional cases where the urgency of the situation so requires (see, to that effect, judgments of 18 March 2010, Alassini and Others, C‑317/08 to C‑320/08, EU:C:2010:146, paragraph 67, and of 14 June 2017, Menini and Rampanelli, C‑75/16, EU:C:2017:457, paragraph 61).

 

·   Those various conditions apply mutatis mutandis to the obligation to exhaust the available administrative remedies at issue in the case in the main proceedings.

 

·   It is therefore for the referring court to examine whether the practical arrangements for the exercise of administrative remedies available under Slovak law do not disproportionately affect the right to an effective remedy before a court referred to in Article 47 of the Charter.

 

·   In that context, it should be noted that Mr Puškár claimed, inter alia, that there was uncertainty as to whether the period for bringing a legal action before the national court begins before a decision has been taken, was taken in the context of an action brought before the administrative authority concerned. If that were the case, the obligation to exhaust available administrative remedies, which might prevent access to judicial protection, would not comply with the right to an effective remedy before a court referred to in Article 47 of the Charter.

 

·   As far as delays are concerned, it should be borne in mind that Article 47(2) of the Charter provides for the right of every person to have their case dealt with within a reasonable period of time. While that right admittedly relates to judicial proceedings themselves, it may not however be undermined by a condition prior to bringing a legal action.

 

·   As regards the costs which a prior administrative complaint might entail, as the Advocate General also stated in points 68 and 69 of her Opinion, although it is in principle permissible for Member States to impose an appropriate charge for bringing an action before an administrative authority, such a charge may not, however, be set at a level which might constitute an obstacle to the exercise of the right to a judicial remedy guaranteed by Article 47 of the Charter. In that regard, account must be taken of the fact that that charge adds to the costs of the judicial proceedings.

 

·   In the light of all the foregoing considerations, the answer to the first question must be that Article 47 of the Charter must be interpreted as meaning that it does not preclude national legislation, which makes the exercise of a judicial remedy by a person stating that his right to protection of personal data guaranteed by Directive 95/46 has been infringed, subject to the prior exhaustion of the available administrative remedies, provided that the practical arrangements for the exercise of such remedies do not disproportionately affect the right to an effective remedy before a court referred to in that article. It is important, in particular, that the prior exhaustion of the available administrative remedies does not lead to a substantial delay in bringing a legal action, that it involves the suspension of the limitation period of the rights concerned and that it does not involve excessive costs.

 

The third question

·   By its third question, which it is appropriate to examine in the second place, the referring court asks, in essence, whether Article 47 of the Charter must be interpreted as precluding that a national court rejects, as evidence of an infringement of the protection of personal data conferred by Directive 95/46, a list, such as the contested list, submitted by the data subject and containing personal data relating to him, if that person had obtained that list without the consent, legally required, of the person responsible for processing that data.

 

Admissibility

·   Several parties and interested parties having submitted observations to the Court take the view that the third question referred for a preliminary ruling is inadmissible.

 

·   First, according to Mr Puškár and the Slovak Government, that question has no connection with EU law in the absence of EU rules on the lawfulness of evidence.

 

·   That argument cannot, however, be accepted.

 

·   It is important to note that Mr Puškár seeks judicial review of a measure by the Slovak tax authorities, namely the drawing up of the contested list, by which the rights conferred on him by Directive 95/46 have, according to him, been infringed.

 

·   The dismissal by the referring court of the evidence at issue in the main proceedings merely on the ground that Mr Puškár has obtained it without the consent, legally required, of the data controller constitutes a limitation on the right to a judicial remedy guaranteed by Article 22 of Directive 95/46 and a limitation on the right to an effective remedy before a court within the meaning of Article 47 of the Charter.

 

·   On the other hand, the Czech Government has expressed doubts as to the relevance of the third question to the resolution of the dispute in the main proceedings, since one of the administrative authorities involved in that dispute, namely the Financial Administration Criminal Office, does not challenge the existence of the contested list. According to the Czech Government, the dispute in the main proceedings does not therefore raise any question as to the existence of the contested list, so that it is not necessary to decide on the admissibility of that list as evidence.

 

·   In that regard, it is sufficient to note that the referring court does not appear to have decided on the circumstances surrounding the drawing up of the contested list.

 

·   In those circumstances, having regard to the case-law referred to in paragraphs 49 and 50 of the present judgment, it is not clear that the interpretation sought of EU law has nothing to do with the facts or the subject matter of the dispute in the main proceedings.

 

·   In the light of all the foregoing considerations, the third question must be considered to be admissible.

 

Substance

·   As has been stated in paragraph 82 of the present judgment, rejecting a list, such as the contested list, as evidence of an infringement of the rights conferred by Directive 95/46, constitutes a limitation on the right to an effective remedy before a court within the meaning of Article 47 of the Charter.

 

·   It is clear from paragraph 62 of the present judgment that such a restriction is justified only, in accordance with Article 52(1) of the Charter, if it is provided for by law, if it respects the essence of that right and, subject to the principle of proportionality, if it is necessary and genuinely meets objectives of general interest recognised by the EU or the need to protect the rights and freedoms of others.

 

·   Therefore, before the disputed list can be rejected as evidence, the referring court must first of all satisfy itself that that restriction of the right to an effective remedy is indeed provided for by national law.

 

·   Next, that court must examine whether such a rejection affects the essential content of the fundamental right to effective judicial protection, as enshrined in Article 47 of the Charter. In that context, it will in particular be necessary to ascertain whether the existence of the contested list and the fact that it contains personal data relating to Mr Puškár are challenged in the context of the dispute in the main proceedings and, where appropriate, if he has other evidence in that regard.

 

·   Finally, it will be for that court to determine whether the rejection of the contested list as evidence is necessary and does in fact satisfy the general interest objectives recognised by the European Union or the need to protect the rights and freedoms of others.

 

·   In that regard, it appears that the objective of avoiding the unauthorised use of internal documents in judicial proceedings is capable of constituting a legitimate general interest objective (see, to that effect, orders of 23 October 2002, Austria v Council, C‑445/00, EU:C:2002:607, paragraph 12; of 23 March 2007, Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten, C‑221/06, EU:C:2007:185, paragraph 19; and of 29 January 2009, Donnici v Parliament, C‑9/08, not published, EU:C:2009:40, paragraph 13). Furthermore, where a list, such as the contested list, is intended to remain confidential and also contains personal data of other natural persons, there is a need to protect the rights of those persons.

 

·   If the rejection of a list, such as the contested list, as evidence obtained without the consent, legally required, of the authority responsible for processing the data appearing on that list, appears appropriate for achieving those objectives, it is however for the referring court to ascertain whether such a rejection does not disproportionately affect the right to an effective remedy before a court referred to in Article 47 of the Charter.

 

·   At the very least, if the person whose personal data is on the list enjoys a right of access to those data, such rejection appears disproportionate to those very objectives.

 

·   In that regard, Article 12 of Directive 95/46 guarantees everyone a right of access to the data collected relating to him. Furthermore, it is clear from Articles 10 and 11 of Directive 95/46 that the person responsible for processing such data must provide the data subjects with certain information relating to that processing.

 

·   Although Article 13(1) of Directive 95/46 limits the scope of the rights provided for in Articles 10 to 12 of that directive where such a restriction constitutes a necessary measure to safeguard, in particular, the prevention, investigation, detection and prosecution of criminal offences or an important economic or financial interest of a Member State, including taxation and monitoring, inspection or regulatory functions, it expressly requires that such restrictions are imposed by legislative measures (see, to that effect, judgment of 1 October 2015, Bara and Others v Commission, C‑201/14, EU:C:2015:638, paragraph 39).

 

·   Thus, in order to assess the proportionality of a rejection of the disputed list as evidence, the referring court must examine whether its national legislation limits, in relation to the data included in the list, information and access rights laid down in Articles 10 to 12 of Directive 95/46 and if such a limitation is, where appropriate, justified. Moreover, even where that is the case and there is evidence to support a legitimate interest in the possible confidentiality of the contested list, the national courts must determine on a case-by-case basis whether this takes precedence over interest in the protection of the rights of the individual and whether, in the proceedings before that court, other means exist to ensure that confidentiality, in particular as regards the personal data of other natural persons included on that list.

 

·   In the light of the foregoing considerations, the answer to the third question is that Article 47 of the Charter must be interpreted as precluding that a national court rejects, as evidence of an infringement of the protection of personal data conferred by Directive 95/46, a list, such as the contested list, submitted by the data subject and containing personal data relating to him, if that person had obtained that list without the consent, legally required, of the person responsible for processing that data, unless such rejection is laid down by national legislation and respects both the essential content of the right to an effective remedy and the principle of proportionality.

 

The second question

·   By its second question, the referring court asks, in essence, whether Directive 95/46 and Articles 7 and 8 of the Charter are to be interpreted as precluding the processing of personal data by the authorities of a Member State for the purpose of collecting tax and combating tax fraud such as that effected by drawing up the contested list in the main proceedings without the consent of the data subjects.

 

Admissibility

·   According to Mr Puškár, the second question is hypothetical and of no relevance to the outcome of the dispute in the main proceedings. In his view, the national court seeks only to ascertain whether the processing of personal data by the Finance Directorate is admissible as a general rule but does not specifically address the contested list which was designed by the Finance Directorate without legal basis.

 

·   It must however be taken into account, having regard to the case-law referred to in paragraphs 49 and 50 of the present judgment, and the information contained in the order for reference, that it is not clear that the interpretation of EU law sought has nothing to do with the facts or the subject matter of the dispute in the main proceedings.

 

Substance

·   The second question must be examined in the light of Directive 95/46, inasmuch as, as is clear inter alia from the objective of that directive, as set out in Article 1(1) thereof, as long as the conditions governing the legal processing of personal data under that directive are fulfilled, that processing shall be deemed to satisfy also the requirements laid down in Articles 7 and 8 of the Charter.

 

·   As is apparent from paragraphs 33 and 34 of the present judgment, the drawing up of a list, such as the contested list, which contains the names of certain natural persons and associates them with one or more legal persons within which those natural persons purport to act as company directors, constitutes ‘processing of personal data’ within the meaning of Article 2(b) of Directive 95/46.

 

·   In accordance with the provisions of Chapter II of Directive 95/46, entitled ‘General rules on the lawfulness of the processing of personal data’, subject to the exceptions permitted under Article 13 of that directive, all processing of personal data must comply, first, with the principles relating to data quality set out in Article 6 of the directive and, secondly, with one of the criteria for making data processing legitimate listed in Article 7 of that directive (see, to that effect, judgment of 1 October 2015, Bara and Others, C‑201/14, EU:C:2015:638, paragraph 30).

 

·   It is also important to recall that it follows from the objective of ensuring an equivalent level of protection in all Member States, pursued by that directive, that Article 7 thereof sets out an exhaustive and restrictive list of cases in which the processing of personal data can be regarded as being lawful (see judgment of 24 November 2011, ASNEF and FECEMD, C‑468/10 and C‑469/10, EU:C:2011:777, paragraph 30).

 

·   In particular, it should be stated that Article 7(e) provides that personal data may lawfully be processed if ‘it is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed’.

 

·   The establishment of the contested list appears likely to fall within that provision.

 

·   It appears that the collection of the tax and combating tax fraud, for the purposes of which the contested list is established, must be regarded as tasks carried out in the public interest within the meaning of that provision.

 

·   However, it is for the referring court to determine whether the Slovak authorities having compiled the list or those to whom it was notified have been invested with those missions by Slovak legislation.

 

·   In that regard, it must be observed that Article 6(1)(b) of Directive 95/46 requires that personal data be collected for specific, explicit and legitimate purposes. As the Advocate General stated in point 106 of her Opinion, the objective of the processing of personal data is inextricably linked, within the scope of Article 7(e) of Directive 95/46, to the task of the controller. Consequently, the transfer of the task to the latter must clearly include the purpose of the processing.

 

·   It is also for the referring court to determine whether 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 the main proceedings, taking account, in particular, of the precise purpose of the establishment of the contested list, the legal effects to which the persons appearing on it and the public nature of that list are subject and whether or not that list is of a public nature.

 

·   It is important, in that regard, to ensure that the principle of proportionality is respected. The protection of the fundamental right to respect for private life at the European Union level requires that derogations from the protection of personal data and its limitations be carried out within the limits of what is strictly necessary (see, to that effect, judgment of 21 December 2016, Tele2 Sverige and Watson and Others, C‑203/15 and C‑698/15, EU:C:2016:970, paragraph 96 and the case-law cited).

 

·   It is thus for the national court to ascertain whether the establishment of the contested list and the inclusion of the names of the data subjects in such a register are suitable for achieving the objectives pursued by them and whether there is no other less restrictive means in order to achieve those objectives.

 

·   The fact that a person is placed on the contested list is likely to infringe some of his rights. Indeed, inclusion in that list could harm his reputation and affect his relations with the tax authorities. Likewise, such inclusion could affect the presumption of innocence of that person, set out in Article 48(1) of the Charter, as well as the freedom of enterprise enshrined in Article 16 of the Charter of legal persons associated with the natural persons included in the contested list. It appears that an infringement of this kind can be proportionate only if there are sufficient grounds to suspect the person concerned of purportedly acting as a company director of the legal persons associated with him and accordingly undermines the public interest in the collection of taxes and combating tax fraud.

 

·   Although the referring court came to the conclusion that the establishment of the contested list is necessary for the performance of tasks carried out in the public interest of the controller in accordance with Article 7(e) of Directive 95/46, it should also determine that the other conditions for the lawfulness of that processing of personal data imposed by the directive are satisfied, in particular those arising under Articles 6 and 10 to 12 thereof.

 

·   Furthermore, if there were grounds for limiting, under Article 13 of Directive 95/46, certain of the rights provided for in those articles, such as the right to information of the data subject, such a limitation should, as is clear from paragraph 96 of the present judgment, be necessary for the protection of an interest referred to in Article 13(1), such as, inter alia, an important economic and financial interest in the field of taxation and be based on legislative measures.

 

·   In the light of the foregoing considerations, the answer to the second question is that Article 7(e) Directive 95/46 must be interpreted as not precluding the processing of personal data by the authorities of a Member State for the purpose of collecting tax and combating tax fraud such as that effected by drawing up the contested list in the main proceedings, without the consent of the data subjects, provided that, first, those authorities were invested by the national legislation with tasks carried out in the public interest within the meaning of that article, that the drawing-up of that list and the inclusion on it of the names of the data subjects in fact be appropriate and necessary for the purpose of attaining the objectives pursued and that there be sufficient indications to assume that the data subjects are rightly included in that list and, second, that all of the conditions for the lawfulness of that processing of personal data imposed by Directive 95/46 be satisfied.

 

The fourth question

·   By its fourth question, the national court asks, in essence, whether Article 47 of the Charter must be interpreted as precluding a national court, having found that, in a case before it, there are differences between the case-law of the European Court of Human Rights and that of the Court of Justice, following the latter.

 

·   That question was raised by the referring court in general terms, without the latter clarifying in a clear and concrete manner what those differences are.

 

·   It should be borne in mind that the requirements concerning the content of a request for a preliminary ruling are expressly set out in Article 94 of the Court’s Rules of Procedure, of which the national court should, in the context of the cooperation instituted by Article 267 TFEU, be aware and which it is bound to observe scrupulously. Thus, the referring court must set out the precise reasons that led it to raise the question of the interpretation of certain provisions of EU law and to consider it necessary to refer questions to the Court of Justice for a preliminary ruling. The Court has previously held that it is essential that the national court should give at the very least some explanation of the reasons for the choice of the EU law provisions which it seeks to have interpreted and of the link it establishes between those provisions and the national legislation applicable to the proceedings pending before it (judgment of 9 March 2017, Milkova, C‑406/15, EU:C:2017:198, paragraphs 72 and 73 and the case-law cited).

 

·   Those requirements also appear in the recommendations of the Court of Justice of the European Union to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2016 C 439, p. 1).

 

·   In the present case, it must be held that the fourth question does not satisfy the requirements set out in the preceding paragraphs.

 

·   It should also be borne in mind that, in accordance with the Court’s settled case-law, the justification for making a request for a preliminary ruling is not for advisory opinions to be delivered on general or hypothetical questions, but rather that it is necessary for the effective resolution of a dispute concerning EU law (see judgment of 21 December 2016, Tele2 Sverige and Watson and Others, C‑203/15 and C‑698/15, EU:C:2016:970, paragraph 130).

 

·   It follows that the third question is inadmissible.

 

For further information click here to be forwarded to the text of the judgment as published on the website of the CJEU, which will open in a new window.

 

Click here to be forwarded to the opinion in this case as delivered by Advocate General Kokott on March 30, 2017.

 

Did you know that in our section CJEU Rulings we have made a selection of rulings of the CJEU? We have organized these rulings based on the subject they relate to (e.g. Freedom of establishment, Free movement of capital, Indirect taxes on the raising of capital, etc).

 

Copyright – internationaltaxplaza.info

 

 

Stay informed: Subscribe to International Tax Plaza’s Newsletter! It’s completely FREE OF CHARGE!

 

and

 

Follow International Tax Plaza on Twitter (@IntTaxPlaza)

 

 

Submit to FacebookSubmit to Google PlusSubmit to StumbleuponSubmit to TwitterSubmit to LinkedIn
INTERESTING ARTICLES