CJEU: AG Opinion in Y.S., M. and S. v. Minister voor Immigratie, Integratie en Asiel, Joined Cases C 141/12 and C 372/12, 12 December 2013

Monday, December 23, 2013

The case concerns three former Applicants for asylum who, in the course of their applications, sought to obtain access to an official document drafted by the immigration authority containing internal legal advice on whether to grant residence status. The issue is whether the legal analysis contained in the document constitutes ‘personal data’ within the meaning of Article 2(a) of the Privacy Directive, and whether the Applicants accordingly have a right to access the document under Article 12 of that Directive and Article 8(2) of the EU Charter. The referring court also asks whether, if the Applicant can rely directly on Article 41(1)(b) of the EU Charter, the authority can refuse access because of the ‘legitimate interests of confidentiality [in decision-making]'. The final question asks if the government body is obliged to provide a copy of a requested document ‘in order to do justice to the right of access’.

Advocate General Sharpston, in her Opinion of 12 December 2013, proposes that the Court of Justice of the European Union should answer the questions raised as follows:

(1) Facts relating to an identified or identifiable natural person are ‘personal data’ within the meaning of Article 2(a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. However, the reasoning underlying the resolution of a question of law – which involves the legal classification of facts relating to an identified or identifiable person and their assessment against the background of the applicable law – is not covered by the definition of ‘personal data’ in that directive. Directive 95/46 does not therefore require Member States to give access to such legal analysis when it is included in an internal document which also contains personal data.

(2) Pursuant to Article 12 of Directive 95/46, access must be given to data that are covered by the definition of ‘personal data’ in that directive, unless such access is restricted or exempted by Article 13 of that directive.

(3) Directive 95/46 does not establish a right of access to any specific document or file in which personal data are listed or used. Nor does it specify the material form in which personal data must be made accessible. Under Article 12 of Directive 95/46, Member States enjoy a considerable margin of discretion to determine the form in which to make personal data accessible. In making that assessment, Member States should take account of, in particular, (i) the material form(s) in which that information exists and can be made available to the data subject, (ii) the type of personal data and (iii) the objectives of the right of access.

(4) The protection of rights and freedoms of others in Article 13(1)(g) of Directive 95/46 does not encompass the rights and freedoms of the authority processing personal data. Nor is there any link between the interest in an internal undisturbed exchange of views within the public authority and the interests protected under Article 13(1)(d) or (f) of that directive.

(5) Article 41 of the Charter of Fundamental Rights of the European Union sets out rights that may be invoked against institutions, bodies, offices and agencies of the Union and therefore cannot apply to personal data and other information held by a Member State.

Read the full Opinionof Advocate General Sharpston and the original reference.

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