The defendant was the sole director of a building company which was awarded a contract for the construction of a tourist complex. He brought proceedings against the Chamber of Commerce in the province of Lecce, Italy (“the authority”), claiming that the properties in that complex were not selling because it was apparent from the companies register that he had been the sole director and liquidator of another company which had been declared insolvent and struck off the companies register. The defendant alleged that the personal data concerning him, which appeared in the companies register, had been processed by a company specialised in the collection and processing of market information and in risk assessment, and that, notwithstanding a request to remove it from the register, the authority had not done so. He therefore sought an order requiring the authority to erase, anonymise or block the data linking him to the liquidation of the other company, together with an order that the authority compensate him for the damage he had suffered by reason of the injury to his reputation. The Court of Lecce upheld that claim, ordering the authority to anonymise the data linking the defendant to the liquidation of the other company and pay compensation, assessed at €2000, together with interest and costs. On the authority’s appeal, the Court of Cassation, Italy, referred to the Court of Justice of the European Union for a preliminary ruling the question, essentially, whether article 3 of First Council Directive 68/151/EEC and article 6(1)(e) of Parliament and Council Directive 95/46/EC meant that member states could, and indeed should, allow individuals, covered by article 2(1)(d) and (j) of Directive 68/151, to request the authority responsible for maintaining the companies register to limit, after a certain period had elapsed from the dissolution of the company concerned and on the basis of a case-by-case assessment, access to personal data concerning them and entered in that register.
On the reference—
Held, that member states could not, pursuant to articles 6(1)(e) and 12(b) of Parliament and Council Directive 95/46/EC, guarantee that the natural persons referred to in article 2(1)(d) and (j) of First Council Directive 68/151/EEC had the right to obtain, as a matter of principle, after a certain period of time from the dissolution of the company concerned, the erasure of personal data concerning them, which had been entered in the register pursuant to the latter provision, or the blocking of that data from the public. That interpretation of articles 6(1)(e) and 12(b) of Directive 95/46 did not, moreover, result in disproportionate interference with the fundamental rights of the persons concerned, and particularly their right to respect for private life and their right to protection of personal data. First, articles 2(1)(d) and (j) and 3 of Directive 68/151 required disclosure only for a limited number of personal data items, namely those relating to the identity and the respective functions of persons having the power to bind the company concerned to third parties and to represent it or take part in the administration, supervision or control of that company, or having been appointed as liquidator of that company. Secondly, Directive 68/151 provided for disclosure of the data referred to in article 2(1)(d) and (j), due, in particular, to the fact that the only safeguards that joint-stock companies and limited liability companies offered to third parties were their assets, which constituted an increased economic risk for the latter. In view of that, it appeared justified that natural persons who chose to participate in trade through such a company were required to disclose the data relating to their identity and functions within that company, especially since they were aware of that requirement when they decided to engage in such activity. Finally, in relation to subparagraph (a) of article 14 of Directive 95/46, in the weighting to be carried out under that provision, in principle, the need to protect the interests of third parties in relation to joint-stock companies and limited liability companies and to ensure legal certainty, fair trading and thus the proper functioning of the internal market took precedence. It could not be excluded, however, that there could be specific situations in which the overriding and legitimate reasons relating to the specific case of the person concerned justified, exceptionally, that access to personal data entered in the register was limited, upon expiry of a sufficiently long period after the dissolution of the company in question, to third parties who could demonstrate a specific interest in their consultation. In that regard, however, in so far as the application of subparagraph (a) of article 14 of Directive 95/46 was subject to the proviso that national law did not lay down a provision to the contrary, the final decision as to whether persons referred to in article 2(1)(d) and (j) of Directive 68/151 applied to the authority responsible for keeping the register for such limitation of access to personal data concerning them, on the basis of a case-by-case assessment, was a matter for the national legislatures and it was for the referring court to determine the provisions of its national law in that regard (judgment, paras 56–62, operative part).
L Caprioli for the authority.
G Palmieri, agent, and E De Bonis and P Grasso, for the Italian Government.
M Smolek and J Vláčil, agents, for the Czech Government.
T Henze and J Möller, agents, for the German Government.
Aoife Carroll (instructed by the Chief State Solicitor) for Ireland.
B Majczyna, agent, for the Polish Government.
L Inez Fernandes, M Figueiredo and C Vieira Guerra, agents, for the Portuguese Government.
P Costa de Oliveira and by D Nardi and H Støvlbæk, agents, for the European Commission.