Interpretation of Directive 96/45
EUROPEAN COURT OF JUSTICE (ECJ + GC)
- Joined Cases C-468/10 and C-469/10, ASNEF (C-468/10) and FECEMD (C-469/10)
v Administración del Estado, judgment of 24 November 2011 - Interpretation of
Article 7(f) of Directive 95/46/EC
In this preliminary ruling, the Court answered two questions referred by a Spanish
court on the interpretation of Article 7(f) of Directive 95/46/EC. By its first question
the referring court asked whether Article 7(f) of Directive 95/46 must be interpreted
as precluding national rules which, in order to allow such processing of that data
subject’s personal data as is necessary to pursue a legitimate interest, requires not only
that the fundamental rights and freedoms of the data subject be respected, but also that
the data should appear in public sources. The Court answered positively to that
question, by stating that Article 7(f) of Directive 95/46 must be interpreted as
precluding national rules which require, not only that the fundamental rights and
freedoms of the data subject be respected, but also that those data should appear in
public sources, thereby excluding, in a categorical and generalised way, any
processing of data not appearing in such sources.
By its second question, the referring court was asked whether Article 7(f) has direct
effect. The Court answered that Article 7(f) of Directive 95/46 has direct effect as it is
sufficiently precise to be relied on by an individual and applied by the national courts
and states an unconditional obligation (see, by analogy, Österreichischer Rundfunk
and Others, C-465/00 a.o., paragraph 100).
The judgment is rather short and interesting to read in its entirety. We flag in
particular the following points:

Citing Lindqvist (C-101/01), the ECJ confirms that Directive 95/46 is not
limited to minimal harmonisation but to harmonisation which is generally
complete. The Directive is aimed at guaranteeing free flow of personal data
combined with a high level of protection of those data (29);

From the objective of ensuring an equivalent level of protection, it stems that
Article 7 must be interpreted as setting out an exhaustive list. Therefore,
Member States cannot add new principles relating to the lawfulness of the
processing or impose additional requirements. This interpretation is not
brought into question by Article 5 of the Directive (31-33)

Distinction between national measures that provide for additional
requirements and national measures which provide for a mere clarification of
principles, the first type of which is precluded (35-39);

Direct effect of Article 7(f) (51-53).