Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)

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Judgment of the Court (First Chamber) of 10 December 2020, J & S Service, Case C-620/19, EU:C:2020:1011.

Reference for a preliminary ruling – Personal data – Regulation (UE) 2016/679 – Article 23 – Restrictions – Important financial interest – Enforcement of civil law claims – National regulation referring to provisions of Union law – Tax data relating to legal persons – Incompetence of the Court

Facts

The dispute in the main proceedings opposes the Land Nordrhein‑Westfalen to D.‑H. T., acting as trustee in bankruptcy for J & S Service UG, in connection with a request for obtaining tax data concerning this company.

The tax administration having rejected this request, D.-H. T. appealed to the competent Verwaltungsgericht, which essentially upheld his appeal. The competent Oberverwaltungsgericht dismissed the appeal lodged by the Land Nordrhein-Westfalen against the judgment at first instance. This court considered in particular that the right of access to information, exercised on the basis of the law on freedom of information, was not precluded by existing specific rules in tax matters. Therefore, although the information requested was covered by tax secrecy, D.-H. T. was entitled, in his capacity as trustee in bankruptcy, to ask J & S Service for any information relating to the insolvency proceedings. The Land Nordrhein-Westfalen appealed against this decision to the Bundesverwaltungsgericht.

This court observed that the General Data Protection Regulation (GDPR)^[1] is not applicable in the case as the main proceedings do not concern personal data relating to a natural person (Articles 1 (1) and 4, point 1, GDPR), or on the right of access conferred on the data subject (Article 15 GDPR). However, it also noted that the ECJ has repeatedly considered itself to have jurisdiction to give preliminary rulings on questions concerning provisions of EU law in situations where the facts at issue were outside the scope of EU law, but where those provisions of EU law had been rendered applicable by national law. In this case, the provisions of the tax code at issue in the main proceedings refer to Article 23 GDPR in order to regulate the tax administration’s obligation to inform as well as the data subject’s right of access with regard to this administration. Insofar as this tax code refers, with regard to the processing of personal data of legal persons, to the provisions of the GDPR, the Bundesverwaltungsgericht referred to the ECJ questions regarding the interpretation of Article 23 GDPR.

Decision

After examining the conditions under which it is called upon to give a preliminary ruling, the ECJ stated that it was not competent to answer the questions referred by the Bundesverwaltungsgericht.

Recalling that its jurisdiction is limited to examining only the provisions of EU law, the ECJ observed that the provisions of the tax code at issue in the main proceedings are not limited to making the provisions of the GDPR applicable outside the scope of this regulation, but they modify their object and scope. According to the ECJ, while it is true that the provisions of the tax code at issue in the main proceedings result from an almost literal reproduction of certain provisions of the GDPR, the purpose and the context in which the latter was adopted differ substantially from the purpose and context of that domestic legislation.

In this regard, the ECJ observed that the concept of information relating to legal persons is distinct from the concept of personal data of natural persons as defined by EU law. The GDPR lays down rules relating to the protection of natural persons with regard to the processing of personal data but does not cover data relating to legal persons. Therefore, German law actually refers not to the protection of personal data of natural persons, governed by the GDPR in EU law, but to the concept, specific to national law, of protection of personal data of legal persons. In those circumstances, the questions referred for a preliminary ruling did not relate to the interpretation of a provision of EU law which would have been made applicable, beyond its scope, by a provision of national law, but to a concept of national law without equivalent in EU law.

Regarding to Article 23 GDPR, which seeks to strike a fair balance between respect for natural persons’ fundamental rights affected by data processing and the need to safeguard other legitimate interests in a democratic society, the ECJ clarified that this provision cannot be read without disregarding the fact that it specifically aims to guarantee the fundamental rights of natural persons. Thus, an interpretation of the provisions of the GDPR, in particular its Article 23, cannot be carried out in the same way as regards natural persons and as regards legal persons whose right to data protection has not been defined by the GDPR.

The ECJ concluded that it was not possible to consider that the provisions of the GDPR had been made applicable as such by national law, even outside the scope of this regulation, and that, therefore, there was no manifest interest in the ECJ interpreting those provisions with a view to ensuring their uniformity of interpretation.

Judgment of the Court (Grand Chamber) of 26 January 2021, VL v Szpital Kliniczny im. dra J. Babińskiego Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie, Case C-16/19, EU:C:2021:64.

Reference for a preliminary ruling – Social policy – Equal treatment in employment and occupation – Directive 2000/78/EC – Article 2(1) and (2)(a) and (b) – ‘Concept of discrimination’ – Direct discrimination – Indirect discrimination – Discrimination on grounds of disability – Difference in treatment within a group of workers with disabilities – Grant of an allowance to workers with disabilities who have submitted disability certificates after a date chosen by the employer – Exclusion of workers with disabilities who have submitted their certificates before that date

Facts

VL was employed by a hospital in Kraków (Poland) from October 2011 to September 2016. In December 2011, she obtained a disability certificate, which she submitted to her employer that same month. In order to reduce the amount of the contributions payable by the hospital to the State Fund for the Rehabilitation of Persons with Disabilities, the director of that establishment decided, following a meeting with the staff which took place in the second half of 2013, to grant a monthly allowance to employees who, following that meeting, submitted certificates attesting to their disabilities. On the basis of that decision, the allowance was granted to thirteen workers who had submitted their certificates after that meeting, whereas sixteen other workers, including VL, who had submitted their certificates earlier, did not receive that allowance.

The action brought against her employer having been dismissed at first instance, VL brought an appeal before the referring court, the Sąd Okręgowy w Krakowie (Regional Court, Kraków, Poland). VL argued that the practice adopted by her employer had the effect to exclude certain workers with disabilities from receiving an allowance granted to workers with disabilities, the sole aim of which was to reduce the contributions payable by the hospital by encouraging workers with disabilities who had not yet submitted disability certificates to do so. In her view, that practice is contrary to Council Directive 2000/78/EC, of 27 November 2000, establishing a general framework for equal treatment in employment and occupation (OJ 2000, L 303, p. 16), which prohibits all discrimination, whether direct or indirect, on grounds of disability.

Having doubts as to the interpretation of Article 2 of that directive and, in particular, as to whether discrimination, within the meaning of that provision, may be taken to occur where a distinction is made by an employer within a group of workers with the same protected characteristic, the referring court decided to refer a question to the ECJ. It sought to ascertain whether the practice adopted by an employer and consisting in the exclusion of workers with disabilities, who have already submitted disability certificates to that employer before the date chosen by that employer for the submission of such a certificate, from receiving an allowance paid to workers with disabilities may constitute discrimination for the purposes of Article 2 of Directive 2000/78.

Decision

Firstly, the ECJ noted that the wording of Article 2(1) and (2) of Directive 2000/78 does not permit the conclusion that, regarding the protected ground of disability, the prohibition of discrimination laid down by that directive is limited only to differences in treatment between persons who have disabilities and persons who do not have disabilities. It follows from the expression ‘on any of the grounds referred to in Article 1’ and the terms ‘another [person]’ and ‘other persons’ that discrimination on the grounds of disability, for the purposes of Directive 2000/78, cannot be said to occur unless the less favourable treatment or particular disadvantage at issue is experienced as a result of disability.

Also, the objective of that directive supports an interpretation whereby that directive does not limit the circle of persons in relation to whom a comparison may be made in order to identify discrimination on the grounds of disability to those who do not have disabilities. In this context, the ECJ recalled its case-law according to which the principle of equal treatment enshrined in that directive applies not to a particular category of persons but by reference to the grounds listed exhaustively in Article 1 thereof, namely disability. The ECJ also acknowledged that it is true that instances of discrimination on the grounds of disability, for the purposes of Directive 2000/78, are, as a rule, those where persons with disabilities are subject to less favourable treatment or are at a particular disadvantage as compared with persons who do not have disabilities. However, the protection granted by that directive would be diminished if it were to be considered that a situation where such discrimination occurs within a group of persons, all of whom have disabilities, is, by definition, not covered by the prohibition of discrimination laid down thereby solely on the ground that the difference in treatment at issue takes place as between persons with disabilities.

The ECJ thus concluded that ‘the principle of equal treatment enshrined in Directive 2000/78 is intended to protect a worker who has a disability, for the purposes of that directive, against any discrimination on the basis of that disability, not only as compared with workers who do not have disabilities, but also as compared with other workers who have disabilities.’

The ECJ went on to assess whether the practice at issue in the main proceedings may constitute discrimination on the grounds of disability as prohibited by Directive 2000/78. In that regard, the ECJ interpreted Directive 2000/78 as meaning, on the one hand, that ‘the practice adopted by an employer and consisting in the payment of an allowance to workers with disabilities who have submitted their disability certificates after a date chosen by that employer, and not to workers with disabilities who have submitted those certificates before that date, may constitute direct discrimination if it is established that that practice is based on a criterion that is inextricably linked to disability, inasmuch as it is such as to make it impossible for a clearly identified group of workers, consisting of all the workers with disabilities whose disabled status was necessarily known to the employer when that practice was introduced, to satisfy that temporal condition.’ On the other hand, the ECJ clarified that ‘that practice, although apparently neutral, may constitute discrimination indirectly based on disability if it is established that, without being objectively justified by a legitimate aim and without the means of achieving that aim being appropriate and necessary, it puts workers with disabilities at a particular disadvantage depending on the nature of their disabilities, including whether they are visible or require reasonable adjustments to be made to working conditions.’

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[1] Regulation (EU) 2016/679 of the European Parliament and of the Council, of 27 April 2016, on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016, L 119, p. 1).