On March 9, 2017, the Court of Justice of the European Union (ECJ) considers that there is no right to be forgotten in companies’ registers. However, upon expiry of a sufficiently long period after dissolution of the company concerned, Member States may provide for restricted access to such data by third parties in exceptional cases.
In case C-393/15, the Corte di Cassazione (the Italian Supreme Court) requested a preliminary ruling from 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 Italian 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.
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. Read more here.
On March 9, 2017, the ECJ agreed with the conclusion reached by AG Bot and held that “the public nature of company registers is intended to ensure legal certainty in dealings between companies and third parties”. Possibly, matters requiring the availability of personal data in the companies register may arise years after a company has ceased to exist. The ECJ deemed impossible to identify beforehand a time period after which the entry of the data in the register and their disclosure would no longer be necessary, especially considering the wide range of legal rights which may become relevant (even after a company’s dissolution), and the diversity of limitation periods provided for by the various national laws.
In this instance, “Member States cannot guarantee that natural persons whose data are included in the company register have the right to obtain, after a certain period of time from the dissolution of the company, the erasure of personal data concerning them”.
The Court considers that this interference with the fundamental rights to personal data protection “is not disproportionate in so far as (1) only a limited number of personal data items are entered in the company register and (2) it is justified that natural persons who choose to participate in trade through such a joint stock company or limited liability company, whose only safeguards for third parties are the assets of that company, should be required to disclose data relating to their identity and functions within that company.”
Nevertheless, the Court did not exclude that, in specific situations, legitimate reasons relating to the specific case of the person concerned may justify, exceptionally, that access to her personal data should be limited, upon expiry of a sufficiently long period after the company’s dissolution, to “third parties who can demonstrate a specific interest in consulting that data”.
Each Member State may decide to limit such access in its national legal system.
In the present case, the ECJ considers that the fact that real estate properties did not sell because potential purchasers had access to the data of Mr. Manni (the sole director of the company that went bankrupt) contained in the companies register “cannot justify a limitation of access by third parties to that data, in particular given the legitimate interest of those purchasers in availing of that information”.
The ECJ concluded: “as EU law currently stands, 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 the 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”.
Judgment in case n 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…
Press release No 27/17 dated March 9, 2017 in Case C-398/15 is available at http://curia.europa.eu… Open PDF