ECJ decision on Spain likely to have implications for all EU Member States and revision of the EU DP Directive

According to a 24th November decision by the European Court of Justice (ECJ), Spain’s data protection secondary regulations are not in compliance with the EU Data Protection Directive.

The case, which was brought by ASNEF (National Association of Financial Institutions, Spain), deals with implementation of Article 7 (f)* of EU Data Protection Directive 95/46/EC. ASNEF claimed that as legitimate interests of the data controller could not act as a justification for data processing in Spain, the legislation was affecting the development of business in Spain ‘as international companies were deterred from the costs and risks of operating within such a strict framework.’

Javier Fernández-Samaniego, head of Bird & Bird’s Madrid Data Protection team, the law firm which took the case to the ECJ on behalf of ASNEF, said: “Hopefully, this judgement will have an impact on the European Commission’s proposals for the reform of data protection legislation as it highlights the difficulties that the lack of harmonisation among Member States creates for multinational companies. This issue is affecting the development of European industry, as a number of international investors are refusing to do business in a number of European countries due to their strict approach to data protection, and because different countries treat identical issues in completely different ways. This is something which the new legislation must address.”

*Note: Art. 7 states: “Member States shall provide that personal data may be processed only if:”….

7 (f) “processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article 1 (1).”

The ECJ judgement will be analysed in a future issue of PL&B International Report.