ECJ rules on right to retain data on EU resident aliens

Jeremy Phillips

The Court of Justice of the European Communities gave its ruling two days ago in Case C‑524/06, Heinz Huber v Bundesrepublik Deutschland, in response to a reference for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen, Germany.

The facts were simple. Huber, an Austrian national, moved to Germany in 1996 in order to work there as a self-employed insurance agent. The following data relating to him was stored in the German Central Register of Foreign Nationals (Ausländerzentralregister, AZR): (i)his name, date and place of birth, nationality, marital status and gender; (ii) a record of his entries into and exits from Germany, and his residence status; (iii) particulars of passports issued to him; (iv)a record of his previous statements as to domicile and (v) reference numbers issued by the Bundesamt, particulars of the authorities which supplied the data and the reference numbers used by those authorities.

Taking the view that he was discriminated agains because no such database existed in respect of German nationals, Huber, having initially failed to secure the deletion of that data, commenced legal proceedings before the Verwaltungsgericht Köln (Administrative Court, Cologne) which upheld his claim. That court held that the general processing through the AZR of data regarding a Union citizen who is not a German national could be justified by the objective of the swift treatment of cases relating to the right of residence of foreign nationals. In addition, the storage and processing of that data was contrary to various provisions of European law. The Bundesrepublik Deutschland appealed to the Oberverwaltungsgericht, which stayed the proceedings pending a response from the Court of Justice to the following questions:

“(1) Is the general processing of personal data of foreign citizens of the Union in a central register of foreign nationals compatible with … the prohibition of discrimination on grounds of nationality against citizens of the Union who exercise their right to move and reside freely within the territory of the Member States (Article 12(1) EC, in conjunction with Articles 17 EC and 18(1) EC)[?]

(2) [Is such processing compatible with] the prohibition of restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State (first paragraph of Article 43 EC)[?]

(3) [Is such treatment compatible with] the requirement of necessity under Article 7(e) of Directive 95/46 …?”.

The Grand Chamber of the Court has now ruled as follows:

“1. A system for processing personal data relating to Union citizens who are not nationals of the Member State concerned, such as that put in place by the Law on the central register of foreign nationals …, and having as its object the provision of support to the national authorities responsible for the application of the law relating to the right of residence does not satisfy the requirement of necessity laid down by Article 7(e) of Directive 95/46…, interpreted in the light of the prohibition on any discrimination on grounds of nationality, unless:

– it contains only the data which are necessary for the application by those authorities of that legislation, and

– its centralised nature enables the legislation relating to the right of residence to be more effectively applied as regards Union citizens who are not nationals of that Member State.

It is for the national court to ascertain whether those conditions are satisfied in the main proceedings.

The storage and processing of personal data containing individualised personal information in a register such as the Central Register of Foreign Nationals for statistical purposes cannot, on any basis, be considered to be necessary within the meaning of Article 7(e) of Directive 95/46.

2. Article 12(1) EC must be interpreted as meaning that it precludes the putting in place by a Member State, for the purpose of fighting crime, of a system for processing personal data specific to Union citizens who are not nationals of that Member State”.

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