Case C-372/12, Minister voor Immigratie, Integratie en Asiel, other parties: M. and S. – is a Dutch ‘minute’ subject to EU data processing law?

For the purposes of the EU’s Data Processing Directive 95/46, is a Dutch document known as a ‘minuut’ just a civil servant’s description for applying the law to a person’s asylum application, or is it also personal data to which a person can have access?

Facts

The Dutch legal system has a great many cases of asylum seekers requesting the Dutch Immigration Service to provide a copy of a document known as a ‘minuut’. This document often contains information about: an applicant’s origin and file history, the evidence submitted, declarations and details, and the legal provisions applicable to that individual’s application. The minuut also contains an assessment of that data in the light of those legal provisions. Before July 2009, asylum seekers could request and would be supplied with a copy of the minuut. Since then, the Dutch Immigration Service has been turning down these requests on the basis that it now describes the minuut as ‘legal analysis’.

Yet because the Immigration Service’s refusal to supply a copy of the minuut constitutes a decision, an individual has the right to appeal. It is an appeal also dealt with by the Immigration Service but can eventually be heard by a Dutch judge sitting in an administrative law court.

One such court is found in Middelburg. Earlier in 2012, the administrative law judge at the Middelburg District Court heard a case about whether the Dutch Immigration Service’s practice of refusing access to the minuut complied with EU fundamental rights law and data processing. The Middelburg judge noted that Dutch public law seemed contradictory. On the one hand, the Dutch Supreme Court had taken a broad approach to acknowledging the right of an individual to access and inspect the files held on people, and it justified this on the basis that people should be able to check the accuracy of the information held about them. On the other hand, the Dutch Council of State had taken a more restrictive approach and had ruled that the minuut did not fall within the concept of personal data – the view expressed in its case law was that not every document needed to be copied. The divergent approaches of the Supreme Court and the Council of State struck the judge as not only contradictory but he also found it very difficult to square the Council of State’s approach to personal data and data protection with the approach taken by the EU’s Article 29 Data Protection Working Party in Opinion 4/2007 ‘on the concept of personal data’. Accordingly, the Middelburg judge made a reference to the CJEU, which has been docketed as Case C-141/12, Y.S.

In this reference of Case C-372/12, Minister voor Immigratie, Integratie en Asiel, other parties: M. and S., it is the Dutch Council of State which has made a reference to the CJEU and it has asked 6 questions.

Question 1 relates to the fact that the Council of State interprets the Dutch Supreme Court’s judgment in a way which differs from that expressed by the Middelburg judge. For whereas the Supreme Court’s judgment related to a civil action which, as such, was irrelevant to the case here before the Council of State, the Supreme Court judgment merely says that the provision of a complete overview of the documents can often be given by providing copies and excerpts – and that approach accords with the rulings of the Council of State that allows files to be inspected where it is not possible for a data subject to know about the personal data held in any other appropriate way.

Its Question 2 relates to what the words “right of access” mean in the various language versions of Article 8(2) of the Charter of Fundamental Rights of the European Union – the specific issue being whether a ‘full summary’ of the file will suffice?

Questions 3 and 4 relate to Case C-482/10, Cicala in which the CJEU considered that Article 41(2)(c) of the Directive was directed not to the Member States but only to the EU institutions and its agencies.

Question 5 again relates to the Middelburg District Court’s assessment of the Dutch Council of State’s case law and the perceived inconsistent approach with the EU’s Article 29 Data Protection Working Party in Opinion 4/2007 ‘on the concept of personal data’. The Council of State points out that the Opinion is not legally binding, and it argues that ‘legal analysis’ does not fall within the Working Party’s definitions which are laid down in that Opinion.

Question 6 relates to the grounds for refusing an access request and an earlier ruling of the Dutch Council of State.

Questions Referred

According to the Curia website, the Dutch Council of State [Raad van State] has asked:

1. Should the second indent of Article 12(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 be interpreted to mean that there is a right to a copy of documents in which personal data have been processed, or is it sufficient if a full summary, in an intelligible form, of the personal data that have undergone processing in the documents concerned is provided?

2. Should the words “right of access” in Article 8(2) of the Charter of Fundamental Rights of the European Union […] be interpreted to mean that there is a right to a copy of documents in which personal data have been processed, or is it sufficient if there is provision of a full summary, in an intelligible form, of the personal data that have undergone processing in the documents concerned within the meaning of the second indent of Article 12(a) of Directive 95/46/EC …?

3. Is Article 41(2)(b) of the Charter of Fundamental Rights of the European Union also addressed to the Member States of the European Union in so far as they are implementing European Union law within the meaning of Article 51(1) of that Charter?

4. Does the consequence that, as a result of the granting of access to “minutes”, the reasons why a particular decision is proposed are no longer recorded therein, which is not in the interests of the internal undisturbed exchange of views within the public authority concerned and of orderly decision-making, constitute a legitimate interest of confidentiality within the meaning of Article 41(2)(b) of the Charter of Fundamental Rights of the European Union?

5. Can a legal analysis, as set out in a “minute”, be regarded as personal data within the meaning of Article 2(a) of Directive 95/46/EC …?

6. Does the protection of the rights and freedoms of others, within the meaning of Article 13(1)(g) of Directive 95/46/EC …, also cover the interest in an internal undisturbed exchange of views within the public authority concerned? If the answer to that is in the negative, can that interest then be covered by Article 13(1)(d) or (f) of that directive?