In a recent judgment of 9th March 2017, the Court of Justice of the European Union (“CJEU”), Case C- 398/15 has decided that except in certain exceptional cases, “the right to be forgotten” is not applicable in relation to the personal data of entrepreneurs who are registered with the Commercial Registry.

Regarding the case in question, Mr. M. the administrator of an Italian company, initiated proceedings against the Chamber of Commerce of Lecce (Italy), calling for the cancellation, making anonymous or blocking of the personal data appearing on the companies register, which link his name to an insolvent and liquidated company of which he was the sole administrator. He specifically argued that the fact that he appeared on the companies register as the administrator of a company which became insolvent in 1992 and which was liquidated in 2005, was seriously harming the sale of a series of properties of another company of which he is currently administrator.

The Court of the First Instance of Lecce upheld the claim of Mr. M, and ordered that the personal data linking him to the insolvent and liquidated company be made anonymous.

Said decision was appealed before the la Corte Suprema di Cassazione (Italian Court of Cassation), which in view of the dispute, referred the matter to the CJEU in order to determine whether article 3 of Directive 68/151 and article 6, section 1, letter e) of Directive 95/46 should be interpreted in the sense that member States can, or must, allow the administrators and liquidators to request from the authority responsible for the companies register that it limits, once a certain amount of time has elapsed following the liquidation of the company in question and on a case by case basis, the access to personal data entered on said register.

In this respect, the CJEU has determined that the need to protect the interests of third parties which enter into contracts with joint stock or limited liability companies, even after their liquidation, should prevail over the protection of the personal data of administrators and liquidators, on the following basis:

  • Even after the dissolution of a company, the rights and legal relations linked thereto continue to exist, thus personal data should remain accessible to third parties at the companies register so that, if necessary, the latter may bring an action against the members of the administration organ or the liquidators of the company, where appropriate.
  • Joint stock companies and limited liability companies only offer their assets as guarantees to third parties, which constitutes an increased economic risk for the latter.
  • Natural persons who choose to participate in trade through a joint stock or limited liability company are previously aware of the obligation to make public personal data regarding their identity and functions within the company.
  • Given that only a limited amount of personal data is published on the companies register (identity and post), this does not result in a disproportionate interference with the fundamental rights of the persons concerned, and particularly their right to respect for a private life and their right to the protection of personal data.

Regarding the period during which the personal data of the administrators and liquidators should appear on the companies register, the CJEU has established that, given the considerable difference in the limitation periods provided for by the various national laws of the member States, it seems impossible to identify a single time limit as from the dissolution of a company, since upon its conclusion, the inclusion of such data in the register and their disclosure would no longer be necessary.

Notwithstanding the above, the CJEU has stated that, “it is for the Member States to determine whether the administrators and liquidators 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, upon 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”.

Whereas, in the specific case analysed, the CJEU has considered that the grounds alleged by Mr. M., that is, the fact that potential buyers were able to access his personal data on the companies register was negatively affecting the sale of a series of properties owned by a company of which he is administrator, is not a good enough reason for limiting access to the data, given the legitimate interest of the buyers in consulting such information.

 

 

Ismael Marina Schneider

Vilá Abogados

 

For more information, please contact:

va@vila.es

 

17th March 2017