Limited Right To Be Forgotten for Personal Data in Companies Registers

• 10/03/2017
• Articles

On 9 March 2017, the Court of Justice of the European Union (“ECJ”) handed down a judgment in which it specified to which extent the “right to be forgotten” applies to companies registers (Case C-398/15, Camera di Commercio, Industria, Artigianato e Agricoltura di Lecce v Salvatore Manni).

The ruling arises from a request by Salvatore Manni, a director of an Italian building company which had been awarded a contract for the construction of a tourist complex, to the Court of Lecce to order the Lecce Chamber of Commerce (the “LCC”) to erase, anonymise or block his personal data in the companies register. Mr. Manni argued that he could not sell the properties in the complex because it was apparent from the companies register that he had been the sole director of another company that went bankrupt in 1992. By judgment of 1 August 2011, the Court of Lecce ordered the LCC to anonymise Mr. Manni’s personal data. The LCC brought an appeal against that judgment before the Supreme Court of Italy which decided to stay the proceedings and refer a preliminary question to the ECJ.

The ECJ first noted that the disclosure of personal data in companies registers aims at protecting the interests of third parties in relation to joint stock companies and limited liability companies, since the only safeguard which they offer to third parties are their assets. Consequently, pursuant to the companies register, third parties may be able to ascertain their contents and other information concerning the company, especially details of the persons who are authorised to bind the company.

Furthermore, in line with the Opinion of the Advocate General, the ECJ also found that it is common ground that disputes or questions may arise for many years after the dissolution of a company. The ECJ pointed out that such questions or disputes may involve persons in several Member States, which have all different time limits with regard to the inclusion of personal data in the companies register. According to the ECJ, it seems thus impossible to identify a single period after which the entry of the data in the register and their disclosure would no longer be necessary.

Therefore, the ECJ held that the right of an individual to claim, after a specific period of time from the dissolution of the company, that his or her personal data be removed from the company register or not be publicly disclosed, cannot be guaranteed by Member States.

The ECJ considered that this interpretation does not result in a disproportionate interference with the rights of the individual whose data was being retained in so far as (i) the company register only contained a restricted amount of personal data; and (ii) individuals who choose to participate in trade through a limited liability company should be required to identify themselves and their role within the company, in order to protect third parties trading with that company.

Nevertheless, the ECJ admitted that Member States can include in their legal systems limitations on access to personal data stored in a company register under exceptional circumstances, provided that a sufficiently long period of time since the dissolution of the company has lapsed, even though third parties can demonstrate a specific interest in their consultation of the personal data.

However, the ECJ added that national legislators can decide on whether or not natural persons are entitled to apply for such a limitation of access to personal data concerning them. Furthermore, the ECJ held that, in case national law permits such applications, it will be for the national court to assess, having regard to all the relevant circumstances and taking into account the time elapsed since the dissolution of the company concerned, the possible existence of legitimate and overriding reasons that would exceptionally justify limiting third parties’ access to the data. Offering further guidance to the national court in relation to the case at issue, the ECJ stated that “the mere fact that, allegedly, the properties of a tourist complex built by Italiana Costruzioni, of which Mr Manni is currently the sole director, do not sell because of the fact that potential purchasers of those properties have access to that data in the company register, cannot be regarded as constituting such a reason, in particular in view of the legitimate interest of those purchasers in having that information.”