Opinion of the Advocate General — ECLI:EU:C:1999:300
Date: 1999-06-10
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: External relations;Commercial policy;Intellectual, industrial and commercial property;Data protection
Procedure: Reference for a preliminary ruling
Origin: Sweden

summary, the restriction undermines the effectiveness of Regulation No 3295/94 and must be set aside. 34. E. In the above assessment, I have examined the issue of the disclosure of the identity of the declarant and consignee of certain goods to the trade-mark holder only with regard to specific rules of secondary Community law, as set out in Regulation No 3295/94. However, it still remains to be established to what extent that specific Community legislation and the possibilities of disclosing information to the trade-mark holder permitted by it are compatible with the fundamental rules and general principles of Community law. In particular it is necessary to determine the extent to which the disclosure of the name and address of the declarant and the consignee of goods whose authenticity has been checked is consistent with the fundamental rules on the protection of private life and free development of the personality. 35. As we know, primary Community law provides for protection of fundamental human rights, as set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms, and as they result from the Member States' constitutional traditions. (8) Protection of confidentiality, as part of the right to a private life and free development of the personality, is a general principle of Community law which is recognised by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. That protection is also part of a constitutional tradition common to the Member States and is directly connected to European citizenship as enshrined in the Treaty establishing the European Community. 36. The Court has pointed out the need to protect private life in two types of case in particular. First, it has done so where it has examined the nature and scope of the powers of investigation which the Commission has been granted in connection with the application of the rules on competition. The Court has had occasion to refer to the inviolability of the home, which stems from the fundamental right to a private life, and has also recognised the need to protect any person in the sphere of whose private activity public authorities intervene as ageneral principle of Community law. (9) Secondly, the Court of Justice has held in staff cases that the right to respect for private life 'is one of the fundamental rights protected by the legal order of the Community'. It has also stated that that right includes in particular a person' s 'right to keep his state of health secret'. (10) 37. The Community institutions have not introduced comprehensive rules governing the protection of personal data, commercial and industrial secrecy and administrative confidentiality. It is for that reason that the second subparagraph of Article 6(1) of Regulation No 3295/94 refers to the national provisions. However, the Community legislator has addressed a similar issue, the protection of individuals with regard to the processing of personal data and the free movement of such data. This is dealt with in Directive 95/46/EC. (11) It is notable that recital 10 in the preamble to that directive illustrates the close connection between, on the one hand, the rules on the processing, dissemination and use of personal data and, on the other, respect for fundamental rights, in particular the right to privacy. For that reason the common denominator of legislative work at Community level and at national level is to ensure 'a high level of protection in the Community'. (12) 38. It is apparent from both the abovementioned case-law and Directive 95/46 that protection for the sphere of private activity of natural and legal persons occupies an important place among the legal principles introduced by the Community legal order. However, that protection neither can nor should be absolute. The Court of Justice has held that restrictions may be imposed on fundamental rights 'provided that they in fact correspond to objectives of general public interest and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the right protected'. (13) On the basis of that principle, the Court held that an applicant for a post as an official at a Community institution may not rely on the right to keep his state of health secret in order to refuse to undergo an Aidsscreening test prior to appointment. (14) Similarly, a Community official who wishes to obtain reimbursement of certain expenditure on medical treatment from the health insurance fund must provide the medical information for which he is asked and cannot rely on medical confidentiality to circumvent that obligation. (15) 39. This is the same spirit that inspired the authors of Directive 95/46. They did not consider that the right to protection of privacy life was absolute, which would mean a general prohibition on the selecting and processing of personal data. Rather than laying down an absolute prohibition, the directive indicates the need to ensure the balance between the interests involved having particular regard to the principle of proportionality. The processing of personal data must therefore be carried out with the consent of the person concerned 'or be necessary (16) for the conclusion or performance of a contract binding on the data subject, or as a legal requirement, or for the performance of a task carried out in the public interest or in the exercise of official authority, or in the legitimate interests of a natural or legal person ...'. (17) The processing must also relate to data which are 'adequate, relevant and not excessive in relation to the purposes for which they are processed'. (18) (19) Two other recitals in the preamble to Directive 95/46 are of interest to the present case. First, it is recognised that Member States may be led, by virtue of the provisions of Community law, to derogate from the provisions of the directive concerning the right of access to data, the obligation to inform individuals, and the quality of data in order to prevent crime, for criminal investigations and prosecutions and action in respect of breaches of ethics. (20) Lastly, exemptions from the protection given by the directive to those affected are permitted where the use of certain information 'is necessary in relation to a contract or a legal claim, where protection of an important public interest so requires, for example in cases of international transfers of data between tax or customs administrations ...'. (21) 40. The following conclusions can be drawn from the above assessment of the particular issue of law examined. First of all, it is not unreasonable for the information which is obtained by the customs authorities in carrying out theirfunctions and which relates to the identity of the declarant and consignee of goods subject to customs control to be covered by a prohibition on the disclosure of personal information, since the information falls within the protected sphere of private activity. An undertaking which imports and exports goods has every reason not to want competitors, those with whom it does business, and consumers to have access to information about its activity. However, that rule is not self-evident in particular cases such as that referred to in the second subparagraph of Article 6(1) of Regulation No 3295/94. That article provides that information must be disclosed to the trade-mark holder in order to safeguard certain interests which are regarded as being worthy of protection in the Community legal order. It is important, on the one hand, to uphold the public interest in combating trade in counterfeit or pirated goods and, on the other, to protect intellectual property rights. 41. I therefore consider that, having regard to the approach adopted in Article 6 of Regulation No 3295/94, the Community legislator has properly balanced the existing interests, on the one hand the interests of the declarant and the consignee of goods and on the other the interests of the trade-mark holder and the market in general. Even though that approach could be regarded as entailing a restriction on the protection of the private activity of the declarant and consignee of goods, it is nevertheless not contrary to the general principles of Community law, because that restriction is legitimate and justified and it is consistent with the obligations stemming from the principle of proportionality. 42. The following arguments support that assertion. First, disclosure of the information in question to the trade-mark holder takes place under Regulation No 3295/94 at a stage when there are already serious suspicions that the goods which are subject to customs control are not genuine. The competent administrative authorities consider that those goods 'correspond to the description of the counterfeit or pirated goods'. In other words, it is not provided in the regulation that personal or professional confidentiality will be lifted for all persons in the course of customs clearance for goods, but only where there are serious suspicions of an infringement. 43. Further, as has been stated above, the disclosure of the identity of the consignee and declarant to the trade-mark holder has a specific purpose. The person who obtains that information may use it only to ask the competent national authorities to take a decision as to whether the goods in question are actually counterfeit or pirated. It should be reiterated that the needs relating to the combating of certain infringements or the administration of justice are regarded as justifying the introduction of exceptions to the rules adopted to protect personal or professional confidentiality. (22) 44. Lastly, the additional guarantees afforded to the declarant and consignee by the Community legislator are not insignificant. I have described those guarantees above and I consider that they should be borne in mind. First, it is clear from the wording of the second subparagraph of Article 6(1) of Regulation No 3295/94 that, before the trade-mark holder is informed of the name and address of the declarant and consignee, the competent administrative service informs them of the suspicions which exist concerning the authenticity of the contested goods. They can subsequently take appropriate measures, in particular by withdrawing the goods from customs. Secondly, and more importantly, the declarant and consignee of the goods are protected by the security which must be provided by the trade-mark holder in case he misuses the information to which he obtains access under Article 6 of Regulation No 3295/94 or if it is found, at the end of the procedure, that the detained goods are not counterfeit or pirated. 45. Article 6 of Regulation No 3295/94 cannot therefore be regarded as being contrary to the general principles of Community law. VII - Conclusion 46. In the light of the foregoing, I propose that the Court give the following answer to the question referred by the national court: The second subparagraph of Article 6(1) of Council Regulation (EC) No 3295/94 of 22 December 1994 laying down measures to prohibit the release for free circulation, export, re-export or entry for a suspensive procedure of counterfeit and pirated goods conflicts with national legislation which in principle prohibits, or permits only in exceptional cases, disclosure to the trade-mark holder of the name and address of the declarant and consignee of goods subject to customs control, which would enable the trade-mark holder to ask the competent national authorities to take a decision as to whether those goods are counterfeit or pirated. 1: Original language: Greek. 2: - OJ 1994 L 341, p. 8. 3: - My emphasis. 4: - SFS 1980:100 5: - Eighth recital in the preamble to Regulation No 3295/94. 6: - Council Regulation (EEC) No 3842/86 of 1 December 1986 laying down measures to prohibit the release for free circulation of counterfeit goods (OJ 1986 L 357, p. 1). 7: - See, for example, Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20, Case C-472/93 Spano [1995] ECR I-4321 and Case C-106/89 Marleasing [1990] ECR I-4135. Those judgments concern the incorporation of Community directives into the national legal order. The principle of 'consistent interpretation' does, however, also apply to cases concerning the application of Community regulations where legislative powers are conferred directly upon national authorities by those regulations. In other words, even though regulations by their nature do not require national measures to be taken to ensure the incorporation of the regulation into national law, provision may be made for the regulation to be applied in accordance with certain existing national rules. Regulation No 3295/94 belongs to that particular group. In such cases, I consider that the reference to the principle that national provisions must be interpreted 'in the light' of Community law is of value. 8: - See in particular Article F.2 of the Treaty on European Union, signed at Maastricht on 7 February 1992, and Article 6(1) and 6(2) of the Treaty on European Union, signed at Amsterdam, which recently entered into force. 9: - See in particular Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859, paragraphs 17 and 19, Case 85/87 Dow Benelux v Commission [1989] ECR 3137, and Case 97/87 Dow Chemical Ibérica and Others v Commission [1989] ECR 3165. 10: - Case C-404/92 X v Commission [1994] ECR I-4737, paragraph 17. See also Case T-500/93 Y v Court of Justice [1996] ECR-SC I-A-335; II-977; Case T-90/95 Gill v Commission [1997] ECR-SC I-A-471; II-1231; and Case T-66/98 Gaspari v Parliament [1999] ECR-SC I-A-55, II-287. 11: - 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 (OJ 1995 L 281, p. 31). 12: - Recital 10 in the preamble to Directive 95/46. 13: - Case C-404/92 X v Commission, cited above (footnote 9), paragraph 18, and Case C-62/90 Commission v Germany [1992] ECR I-2575, paragraph 23. 14: - Case C-404/92 X v Commission, cited above (footnote 9). 15: - See Case T-90/95 Gill v Commission and Case T-66/98 Gaspari v Commission (cited above, footnote 9). 16: - My italics. 17: - Recital 30 in the preamble to Directive 95/46. 18: - My italics. 19: - Recital 28 in the preamble to Directive 95/46. 20: - See Recitals 43 and 44 in the preamble to Directive 95/46. 21: - Recital 58 in the preamble to Directive 95/46. 22: - For example, point 37 above concerning Directive 95/96.