Advocate General opined on the right to be forgotten in companies’ registers

images (22)The Advocate General (AG) of the Court of Justice of the European Union (ECJ) opined on the right to be forgotten in companies’ registers: no right to be forgotten there.

In case C-393/15, the Corte di Cassazione (the Italian Supreme Court) asked the ECJ to clarify the right of individuals to be forgotten, to have their data anonymized in searches attaining to companies’ registers or to provide access only to certain searchers. In particular, the Supreme Court sought the correct interpretation of the provisions of Articles 2(1)(d)(j) of Company Law Directive 68/151/EEC, of Articles 6(e) and 7(c),(e) and (f) of the Data Protection Directive 95/46/EC and Article 3 of Directive 68/151/EEC.

Mr. Manni was the sole director of a company that went bankrupt in 1992. The company was listed in Registro delle Imprese (Italian Companies’ Register) of Lecce (“Register”). In 2005 the company was deleted from the Register as active company but the Registry retained the information regarding the company including Mr. Manni’s information. Mr. Manni believed that because of his information being available from the Register, he was losing clients when they would perform background checks on him. He demanded the Register the deletion or anonymization of his personal data. The Register refused and Mr. Manni sued. The local court (Tribunale di Lecce) ordered  the anonymization of Manny’s data, holding that there was no public interest in knowing who was the sole director of a company which went bankrupt. The Register appealed the decision to the Corte di Cassazione which requested a preliminary ruling from the ECJ.

On September 8, 2016, the AG, Yves Bot – the same AG involved in the Schrems case C-362/14 – issued an opinion advising the ECJ that all personal data in public registers of companies should be retained indefinitely, irrespective of the fact that the relevant company is active or inactive.

Public Registers of companies cannot achieve their main purpose, namely the consolidation of legal certainty by disclosing, in accordance with the transparency principle, legally accurate information, if access to this information is not allowed indefinitely to all third parties. (unofficial translation)

The AG opined that two principles are at stake here: on one hand, the public interest to have access to companies’ registers, as set out by Directive 68/151, and, on the other hand, the right to be forgotten after a reasonable period according to the retention policy of Directive 95/46/EC.

The AG noted that under EU law, retention of data in public companies’ registries has no set time limit. He also noted that the records at the companies’ register provides a reliable source that ensures a certain level of legal certainty. This protects the interest of third parties that interact with companies. Publicity of the details of the relevant individuals is in the public interest as well.

The public interest in accessing the companies’ information trumps the individuals’ right to be forgotten in order to preserve the essential function of these registers “to outline a complete picture of the existence, and of the history of a company, and in allowing anyone to access the information that build this overview, wherever they are and without time constraints”.

The AG refers to Regulation EU 2016/679 (GDPR) and in particular to Article 17(3)(b) and (d), noting that the interpretation is in line with the GDPR.

Article 17(3)(b) and (d) exclude the attachment of the right to be forgotten when “processing is necessary”

for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; Article 17(3)(b).

and

for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) in so far as the right referred to in paragraph 1 is likely to render impossible or seriously impair the achievement of the objectives of that processing. Article 17(3)(d).

C-398/15, Camera di Commercio, Industria, Artigianato e Agricultura di Lecce v. Salvatore Manni is available (in several languages but not in English) at http://curia.europa.eu…

 

For more information, Francesca Giannoni-Crystal.

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