Opinion of the Advocate General — ECLI:EU:C:2002:513
Date: 2002-09-19
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws;Fundamental rights;Data protection
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary of the Judgment 
1. Approximation of laws — Directive 95/46 — Scope — Definition of processing of 
personal data wholly or partly by automatic means — Act of referring, on an internet 
page, to various persons and identifying them by name or by other means — 
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SUMMARY — CASE C-101/01 
Included — Exceptions — Activities of the State or of State authorities unrelated to 
the fields of activity of individuals — Activities carried out in the course of private or 
family life of individuals — Processing of personal data consisting in publication on 
the internet in the exercise of charitable or religious activities — Not included 
(Directive 95/46 of the European Parliament and of the Council, Art. 3(1) and Art. 2, 
first and second indents) 
2. Approximation of laws — Directive 95/46 — Scope — Definition of personal data 
concerning health — Reference to foot injury resulting in part-time sick leave — 
Included 
(Directive 95/46 of the European Parliament and of the Council, Art. 8(1)) 
3. Approximation of laws — Directive 95/46 — Transfer of personal data to a third 
country — Definition — Loading of data on an internet page accessible to those with 
the technical means to access it, including those in third countries — Not included 
(Directive of the European Parliament and of the Council 95/46, Art. 25) 
4. Approximation of laws — Directive 95/46 — Respect for fundamental rights — 
Freedom of expression — Obligation of national authorities responsible for applying 
national legislation implementing the directive to ensure a fair balance between the 
rights and interests in question 
(European Convention for Human Rights, Art. 10; Directive of the European 
Parliament and of the Council 95/46) 
5. Approximation of laws — Directive 95/46 — National legislation for the protection 
of personal data — Need for consistency with provisions of directive and its 
objective — Possibility of a Member State's extending its scope to areas not included 
in the scope of the directive — Limits 
(Directive 95/46 of the Parliament and of the Council) 
1. The act of referring, on an internet 
page, to various persons and identify­
ing them by name or by other means, 
for instance by giving their telephone 
number or information regarding their 
working conditions and hobbies, con­
stitutes 'the processing of personal data 
wholly or partly by automatic means' 
within the meaning of Article 3(1) of 
Directive 95/46 on the protection of 
individuals with regard to the process­
ing of personal data and on the free 
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movement of such data. Such process­
ing of personal data in the exercise of 
charitable or religious activity is not 
covered by any of the exceptions in 
paragraph 2 of that article. 
The first exception, provided for by the 
first indent of paragraph 2, concerns 
the processing of personal data in the 
course of an activity which falls outside 
the scope of Community law, such as 
those provided for by Titles V and VI 
of the Treaty on European Union, and 
in any case processing operations con­
cerning public security, defence, State 
security (including the economic well-
being of the State when the processing 
operation relates to State security 
matters) and the activities of the State 
in areas of criminal law. The activities 
mentioned by way of example in that 
provision are, in any event, activities of 
the State or of State authorities unre­
lated to the fields of activity of indi­
viduals and intended to define the 
scope of the exception provided for 
there, with the result that that excep­
tion applies only to the activities which 
are expressly listed there or which can 
be classified in the same category. 
Charitable or religious activities cannot 
be considered equivalent to the activ­
ities listed in that provision and are 
thus not covered by that exception. The 
second exception, provided for by the 
second indent of paragraph 2, relates 
only to activities which are carried out 
in the course of private or family life of 
individuals, which is clearly not the 
case with the processing of personal 
data consisting in publication on the 
internet so that those data are made 
accessible to an indefinite number of 
people. 
(see paras 27, 38, 43-48, 
operative part 1-2) 
2. Reference to the fact that an individual 
has injured her foot and is on half-time 
on medical grounds constitutes per­
sonal data concerning health within the 
meaning of Article 8(1) of Directive 
95/46 on the protection of individuals 
with regard to the processing of per­
sonal data and on the free movement of 
such data. In the light of the purpose of 
the directive, the expression 'data con­
cerning health' used in that provision 
must be given a wide interpretation so 
as to include information concerning 
all aspects, both physical and mental, 
of the health of an individual. 
(see paras 50-51, operative part 3) 
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SUMMARY — CASE C-101/01 
3. There is no 'transfer [of data] to a third 
c o u n t r y ' w i th in the mean ing of 
Article 25 of Directive 95/46 on the 
protection of individuals with regard to 
the processing of personal data and on 
the free movement of such data where 
an individual in a Member State loads 
personal data onto an internet page 
which is stored on an internet site on 
which the page can be consulted and 
which is hosted by a natural or legal 
person who is established in that State 
or in another Member State, thereby 
making those data accessible to anyone 
who connects to the internet, including 
people in a third country. 
Given, first, the state of development of 
the internet at the time Directive 95/46 
was drawn up and, second, the absence 
of criteria applicable to use of the 
internet in Chapter IV in which 
Article 25 appears , and which is 
intended to allow the Member States 
to monitor transfers of personal data to 
third countries and to prohibit such 
transfer where they do not offer an 
adequate level of protection, one can­
not presume that the Community legis­
lature intended the expression 'transfer 
[of data] to a third country' to cover 
the loading, by an individual in Mrs 
Lindqvist's position, of data onto an 
internet page, even if those data are 
thereby made accessible to persons in 
third countries with the technical 
means to access them. 
(see paras 63-64, 68, 71 , 
operative part 4) 
4. The provisions of Directive 95/46 on 
the protection of individuals with 
regard to the processing of personal 
data and on the free movement of such 
data do not, in themselves, bring about 
a restriction which conflicts with the 
genera l p r inc ip le of f reedom of 
expression or other freedoms and 
rights, which are applicable within the 
European Union and are enshrined 
inter alia in Article 10 of the European 
Convent ion for the Protection of 
Human Rights. It is for the national 
authorities and courts responsible for 
applying the national legislation imple­
menting Directive 95/46 to ensure a 
fair balance between the rights and 
interests in question, including the 
fundamental rights protected by the 
Community legal order. 
(see para. 90, operative part 5) 
5. Measures taken by the Member States 
to ensure the protection of personal 
data must be consistent both with the 
provisions of Directive 95/46 on the 
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protection of individuals with regard to 
the processing of personal data and on 
the free movement of such data and 
with its objective of maintaining a 
balance between freedom of movement 
of personal data and the protection of 
private life. However, nothing prevents 
a Member State from extending the 
scope of the national legislation imple­
menting the provisions of Directive 
95/46 to areas not included in the 
scope thereof provided that no other 
provision of Community law precludes 
it. 
(see para. 99, operative part 6) 
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