Case C-473/12, IPI – creating an Hercule Poirot exception to EU data processing law? [judgment 2013, ECLI:EU:C:2013:715]

Could the EU’s data processing Directive 95/46/EC be interpreted in such a way as to make an exception for private detectives?

Facts
The Belgian Association of Estate Agents, known as the IPI [L’Institut professionnel des agents immobiliers], was seeking a judicial declaration from the commercial court in Charleroi to stop two people from engaging in market practices which the IPI felt were contrary to Belgian law.

Part of the IPI’s case rested on information obtained from private detectives. This resulted in a discussion about a 2010 judgment from a Belgian court of appeal. That court had held that when a private detective was writing up his report about a particular identifiable person, data about that data subject had undergone automated processing. Under Belgian data processing law, a data subject has the right to be informed about data processing, and the purposes of that data processing. Accordingly, a private detective must indicate for whom he is working and for what purposes the information is to serve. Equally, in the event that data is gathered indirectly by a third party, then that data must be declared at the moment when the data is registered.

Because of the IPI’s submissions, the Charleroi court noted two points: first, IPI’s belief that it was impossible for private detectives to do their job; and second, that any refusal to create an exception to the data processing law for the benefit of private detectives was discriminatory because there were other professions, like journalists, who did have the benefit of such an exception. The Charleroi court, however, disagreed with the IPI and it refused to create an exception for private detectives. However, it did wonder what weight should be attributed to information gathered by private detectives and it referred a question to the Belgian Constitutional Court.

The hearing at the Belgian Constitutional Court was also attended by other parties such as the Belgian Association of insurance inspectors and insurance experts; and the Belgian Association of private detectives. Each submitted that the Charleroi court was wrong and explained in detail the constraints upon private detectives. They also pointed out that French private detectives entrusted with spotting insurance fraud operated under more relaxed rules than those applicable to Belgian detectives. This difference constituted discrimination. Consequently, the intention of the Directive to achieve a harmonized EU internal market had not been realised. And to bolster their submissions, they also mentioned Luxembourg’s, Holland’s, and Poland’s exceptions to EU data processing law’s ‘duty to inform’.

The Belgian Council of Ministers was also represented at the hearing. It submitted that a private detective was but a normal citizen without special enforcement powers and whose evidence in court weighed no heavier than that of any other citizen. However, a private detective’s activities were focussed on the private lives of private citizens. As such, the regulation of private detectives was completely different to that of journalists and the security services since the destinations of the information were quite distinct. The Council of Ministers also pointed out that discrimination would arise if private detectives would be given an exception to data processing law since none was given to private citizens. Equally, the Belgian Council of Ministers submitted that this measure was proportionate to the goal of the legislation. The Directive had a dual purpose: to harmonise the legislation of the Member States, and to strengthen a citizen’s right to privacy. One goal could not be relied on to prevent the other. Belgian statute provided exceptions to journalists and writers for the purposes of freedom of expression. Moreover, there was no private detective exception in French statute, nor in the statutes of Denmark, the UK, Luxembourg, or Switzerland. The Council of Ministers also made the point that the question which had been submitted to the Constitutional Court by the Charleroi court was premised on the belief that the work of a private detective had become impossible, and that premiss was incorrect.

Unsure how to interpret EU law, the 12 judges of the Belgian Constitutional Court decided to make a reference to the CJEU.

Questions Referred
An unofficial translation of the questions asked by the Belgian Constitutional Court reads:

1. Is Article 13(1)(g) in fine 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 to be interpreted as meaning the Member States are free to create, or not, an exception to the immediate information obligation in Article 11(1) where this is necessary to protect the rights and freedoms of others, or are the Member States concerned subject to limitations?

2. Do the activities of private detectives, governed by internal rules and exercised for the benefit of governments which are also authorised to bring proceedings before judicial authorities in the event of any infringement of the provisions protecting a professional title and the organisation of a profession, fall – depending on the circumstances – under the exception in Article 13(1)(d) and (g) in fine of the Directive?

3. If the answer to question 2 is no, then is Article 13(3)(1)(d) and (g) in fine of the Directive compatible with Article 6(3) of the Treaty of the European Union, and more precisely, the principle of equality and non-discrimination?