Opinion of the Advocate General — ECLI:EU:C:2020:649
Date: 2020-09-03
Language of the case: German
Subject matter: Principles, objectives and tasks of the Treaties;Approximation of laws;Data protection
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Germany

summary 70. In short, in order for the Court to accept jurisdiction in a case in which the EU law at issue is being applied before the national court by virtue of its national extension beyond the originally conceived scope of application, three conditions must be fulfilled. 71. First, national law must contain a direct and unconditional renvoi to the EU provision whose interpretation by the Court is sought, which makes that provision of EU law not only clearly applicable to the case at hand, but also means that the guidance provided by the Court will be binding for the national court in that case. 72. Second, the EU rules extended by the national law must still operate within a functionally and legally comparable context, where there remains an interest in preserving conceptual uniformity, and within which the interpretation of EU law provisions may still be of some practical assistance to the referring court. 73. Third, the referring court is obliged to explain clearly how the two requirements stated above are met in the case at hand, setting out the relevant provisions of national law. 74. It is in the light of this framework that I shall now assess whether the Court has jurisdiction in the present case. 3. The present case 75. First, starting with the last procedural condition, the information required for the Court to rule on its jurisdiction is clearly set out in the order for reference. Indeed, the referring court exhaustively explains why, in its view, the Court has jurisdiction in accordance with the Dzodzi case-law. The Court does not need, therefore, to resort to any assumptions concerning national law in that regard. 76. Second, it is undisputed that the relevant national law, the AO, makes a ‘direct and unconditional’ renvoi to the provisions of Regulation 2016/679. An express renvoi to the provisions of that regulation is included in Paragraphs 2a, 32b, and 32e of the AO. In addition, Paragraph 32c(1)(2) of the AO states that the terms ‘the establishment, exercise or defence of civil law claims or … in the defence of civil law claims’ must be interpreted in the light of Article 23(1)(j) of Regulation 2016/679. (66) The intention to align the two sets of rules also transpires from the explanatory memorandum of that law. Furthermore, it is also common ground that the Court’s answer would be binding upon the referring court. 77. Third, however, I have strong doubts that there is any interest to ensure conceptual uniformity. Indeed, it seems to me that the EU and national provisions in question — when assessed both at macro level (in the context of the legal instrument to which they belong), and at micro level (focusing on the specific provisions alone) — neither pursue the same objective nor concern the same subject matter. 78. To begin with, it is hardly necessary to stress the significant differences, in terms of content and objective, of the different legislative frameworks of which the two provisions form part. Article 23(1) is a provision of the General Data Protection Regulation: a corpus of rules governing the processing of personal data in the single market. (67) That regulation, first and foremost, lays down limits to the use of data processing in order to protect the fundamental rights of data subjects. 79. By contrast, Paragraph 32c(1)(2) is a provision of Germany’s Tax Code, a very different legal instrument altogether. The provisions included in that instrument, including those on data processing, are geared towards ensuring uniform and lawful taxation and the safeguarding of tax revenue. 80. Moreover, the two specific provisions, whether taken together or by themselves, are also different in terms of objectives and content. 81. Article 23 of Regulation 2016/679 provides for situations in which the Union or the Member States are allowed to introduce restrictions to the rights normally granted to data subjects guaranteed in Chapter III of Regulation 2016/679 (for example, the rights of access, to rectification and to erasure), and the corresponding obligations placed on the controllers (such as information obligations). In the situations listed therein (to be interpreted restrictively), certain public or private interests can limit the fundamental right of individuals to the protection of personal data. (68) 82. By contrast, Paragraph 32c(1)(2) of the AO — included in the First Part, Fourth Chapter (‘Data protection and tax secrecy’) of the AO — is part of a set of rules aimed at regulating when the German tax authorities can (or cannot) disclose or make use of taxable persons’ data which they have gained access to in the context of tax-related procedures. Within that dimension, as also evidenced by the present case, those rules in effect act as restrictions or limitations to an individual’s right of access to information held by public authorities. 83. More specifically, the referring court explains that Paragraph 32c(1)(2) of the AO was introduced in order to remedy a disadvantageous status of the tax administration in the context of insolvency proceedings. Under German law, an action for revocation brought in the context of insolvency proceedings constitutes a civil law action which takes place before civil courts. German insolvency law places private law creditors and public law creditors on an equal footing, so that public law claims, such as taxes and social security contributions, do not have priority. 84. Nevertheless, as the referring court further points out, before Paragraph 32c(1)(2) of the AO was enacted, the tax authorities were, in practice, in a worse position than any other private creditor. Indeed, thanks to an access-friendly national case-law with regard to the rules on the freedom of and access to information, insolvency administrators were able to demand access to tax information relating to the insolvency debtor from the tax authorities. That enabled the administrators to decide in full knowledge of the fact whether to bring insolvency avoidance claims against those authorities. That possibility does not exist with respect to private creditors of the insolvency debtor given that those creditors are not subject to laws on the freedom of information. 85. It was in such a legislative context and practice that the German legislature introduced Paragraph 32c(1)(2) of the AO in order to prevent the tax authorities from being in a weaker position than other private creditors in insolvency proceedings. 86. Accordingly, the objectives of the two provisions are equally different: Article 23 of Regulation 2016/679 seeks to strike a fair balance between respect for natural persons’ fundamental rights affected by data processing (for example, private and family life) and the need to safeguard other legitimate interests in a democratic society (for example, national security). By contrast, Paragraph 32c(1)(2) of the AO aims at redressing a perceived imbalance with regard to tax authorities when avoidance claims are brought in the context of insolvency proceedings. 87. In addition, in order to arrive at such an objective, Paragraph 32c(1)(2) of the AO, far from simply extending the reach of Article 23(1) of Regulation 2016/679 to certain ‘neighbouring’ situations, ‘borrows’ a provision from the latter and through an intriguing legislative reference applies it to a rather different set of circumstances. That legislative construction is, however, only possible because there have already previously been, in other elements of the national legislative framework, several other extensions of the scope of Regulation 2016/679, ratione materiae and ratione personae. 88. First, Article 23(1) of Regulation 2016/679 applies only in respect of natural persons, whereas Paragraph 32c(1)(2) of the AO applies in respect of all natural and legal persons. In fact, in the present case access to information is sought in relation to tax data of a legal person. This is, obviously, no small detail: the balancing exercise required by Article 23(1) may not necessarily be carried out in the same manner in respect of data pertaining to a legal person, to which Regulation 2016/679 is not even applicable, thereby implying no balancing or legislative evaluation with regard to such a situation. The interest of a natural person to protect his own privacy and that of his family can hardly be compared to the interest of a legal person who may have to protect data concerning, for example, its business, its organisation or its fiscal position. 89. Second, as the German Government explained, under national law the insolvency administrator is a ‘third party’ (69) for the purposes of access to data of the insolvent debtor. Therefore, the insolvency administrator cannot be regarded as acting on the basis of rights which the data subject (the company under administration) has transferred to him. Yet, Article 23(1) of Regulation 2016/679 is concerned with rights of data subjects and obligations of data controllers. That provision simply does not concern third-party access to information held by public authorities. 90. Third, Article 23(1) of Regulation 2016/679, unlike Paragraph 32c(1)(2) of the AO, is not concerned with restrictions to requests for access to information, held by the public authorities, based on rules on transparency and openness. The EU provision sets out the permissible restrictions to the rights of data subjects (including the right of access), seeking to enforce their privacy rights against data holders and processors (regardless of their private or public nature). 91. Therefore, Article 23(1) of Regulation 2016/679 is a provision which permits specific exceptions to certain rights of data subjects, resulting from the system and the logic of the General Data Protection Regulation. It is intended to strike a fair balance between the fundamental rights of individuals, that is, natural persons, and certain vital public and private interests. 92. Paragraph 32c(1)(2) of the AO operates ‘a transplant’ of this provision seeking to provide a certain balance into a completely different legislative and factual context. The national provision in fact serves to curb an overly broad reach of the domestic rules on access to information in the possession of the public authorities, by depriving certain (third) parties of access to tax-related information, with a view to (re)establishing a balance between the parties in revocation actions in insolvency proceedings. 93. In conclusion, Article 23(1) of Regulation 2016/679 and Paragraph 32c(1)(2) of the AO form part of different bodies of law, pursue different objectives, and follow a completely different logic. I fail to see why there would be any interest, certainly on the part of the Union and possibly also of the Federal Republic of Germany, in ensuring a conceptual uniformity between them. 94. On that basis, I recommend that the Court declare that, in the present case, it lacks jurisdiction to answer the questions referred. 95. However, since it is my duty to (fully) assist the Court, I will briefly deal with the substance of the questions referred, with the significant caveat that, from all the foregoing, I do not think that this Court could provide the referring court with any useful answer for the purpose of the dispute pending before it. 96. Metaphorically speaking, it is as if an ice hockey referee were to be asked whether the exception to the prohibition on icing is applicable in a situation where both teams are shorthanded but only one goaltender leaves his goal crease and moves in the direction of the puck, by someone playing chess in the audience of the ice rink for the purpose of deciding whether he or she could perhaps castle with his or her queen. The answer to such a question is certainly likely to be that the ice hockey rules do not preclude such a move, but I suspect that is because, it is safe to assume, those rules have nothing to say on attempts at castling with a queen in chess. B. The substance of the questions referred 97. By its three questions, the referring court seeks essentially to know whether a national provision — such as Paragraph 32c(1)(2) of the AO — that limits the right of access to personal data held by the tax authorities, when that data may be used to bring insolvency avoidance claims against those authorities, is compatible with Article 23(1) of Regulation 2016/679. 98. As follows from the considerations developed above, the answer to that question cannot but be in the affirmative. Due to its different content, scope and aim, Regulation 2016/679 has nothing to say on the concrete legislative choice made by the German authorities to limit the scope of the national rules on freedom of information in the context of insolvency proceedings in order to re-establish equality between the private and public law creditors. 99. At any rate, and despite the logical difficulty encountered in ‘fitting’ the EU provision in question into the facts of the case, in the following I shall attempt to interpret it as if it were applicable in a situation such as that at issue in the main proceedings. 1. First question 100. By its first question, the referring court asks essentially whether Article 23(1)(j) of Regulation 2016/679 permits restrictions introduced in pursuance of an interest of the public authorities, as opposed to the protection of private parties’ interests. 101. The referring court points out that such a possibility is evidently assumed by the national legislature: Paragraph 32c(1)(2) of the AO expressly refers to Article 23(1)(j) of Regulation 2016/679. However, that court notes that certain scholars suggest that the situations envisaged in points (i) and (j) of Article 23(1) allow restrictions only in pursuance of a private interest, and thus cannot ‘cover’ the furthering of a public objective. 102. The Land and the Czech and German Governments take the view that the first question must be answered in the affirmative. With regard to the (abstract) issue of construction of points (i) and (j) of Article 23(1), I share their view. It does not follow, either from the wording or the objective of Article 23(1)(j) of Regulation 2016/679, that that provision would be inapplicable in relation to public authorities. 103. Point (j) refers only to ‘enforcement of civil law claims’, without any limitation as to the private or public nature of the parties to the proceedings. Nothing in the wording of Article 23(1) of Regulation 2016/679 (or in recital 73) excludes from the scope of that provision civil law actions in which public authorities take part, as either the applicant or as the defendant. 104. In addition, even if civil law claims are mostly brought between private persons, in pursuit of a private interest, I fail to see any reasonable ground on the basis of which the EU legislature would have wished to treat differently civil law proceedings in which the public authorities are parties. Any such rule, granting more rights to certain claimants over other claimants, would be rather odd in my view. 105. The aim of the rule laid down in point (j) is — I assume — to permit the EU or national legislature to decide that, in the context of proceedings for the enforcement of civil law claims, the specific rules on discovery prevail, in case of conflict, over the general rules stemming from data protection. Indeed, most jurisdictions provide for special regimes of discovery in the context of judicial procedures, including civil law procedures. However, Member States’ regimes vary significantly. Given the importance of such regimes, it is possible to assume that the EU legislature could decide that their application should not be affected by the rules on data protection. Logically, that must be so, irrespective of whether the parties are subjects of private or public law, and regardless of the private or public interest on which their action or defence is based. 106. The Commission, however, puts forward the opposite view. It argues that Article 23(1) of Regulation 2016/679 draws a distinction of principle between the exceptions aimed at safeguarding public interests, listed in points (a) to (h), and those aimed at safeguarding private interests, listed in points (i) and (j) of that article. It explains that point (j) was not in the predecessor of the current provision (Article 13 of Directive 95/46/EC (70)), and was only added by the current regulation. The Commission contends that, because it was added at the end of the list, and not at the beginning of the list, point (j), like point (i), must be aimed at safeguarding private interests. 107. The Commission further submits that the addition of point (j) was meant to codify the Court’s findings in Promusicae, (71) in which the Court had found an apparent gap in the provisions which corresponded to the current Article 23 vis-à-vis the capacity of (private) parties to enforce their rights before national courts. In its view, the amendment had a very specific and narrow scope. 108. However, I see no element, either in the text of Regulation 2016/679 or in the preparatory works, supporting the Commission’s arguments. With regard to the latter, in particular, I find it rather puzzling that the Commission did not submit any such document before the Court, or at least refer to them in its observations. 109. In any event, from the publicly available preparatory works, it seems that point (j) did not appear in the Proposal for a regulation tabled by the Commission in 2012. (72) That point was subsequently introduced by the Council. (73) However, in the documents that I was able to review, I found no trace of the alleged intention of the EU legislature to limit the scope of this amendment to enforcement claims brought by private parties. (74) Nor did I find any specific indication that the EU legislature structured the list of possible restrictions according to the public interest/private interest dichotomy suggested by the Commission. 110. I am also not persuaded by the argument according to which the scope of point (j) is supposed to be rather narrow, in so far as the EU legislature has merely intended to react to the judgment in Promusicae. 111. Point (j) may well have been prompted by the judgment in Promusicae. However, I fail to see why, once that issue had been ‘opened up’ by the judgment, the legislature had necessarily intended to limit the amendment to the specific facts of that dispute. Why limit the amendment to civil law claims brought by private parties in the pursuit of a private interest? As mentioned in points 104 and 105 above, any such rule would seem quite unreasonable. 112. I therefore see no reason to conclude that Article 23(1)(j) of Regulation 2016/679 permits introducing restrictions only where the enforcement of civil law claims is pursued by private individuals. 2. Second question 113. By its second question, the referring court asks whether the expression ‘enforcement of civil law claims’ in Article 23(1)(j) of Regulation 2016/679 also encompasses the defence against civil law claims and, if so, whether the existence of the claim must have already been established. 114. The referring court explains that Paragraph 32c(1)(2) of the AO establishes essentially the principle that, in a situation such as that in the main proceedings, the duties to provide information are to be guided solely by civil law rules. However, those (national) rules provide for discovery obligations only where an insolvency avoidance claim is established on its merits and where the proceedings concern only the further determination of the nature and extent of the claim. Accordingly, until a duty of restitution is established, the insolvency administrator can request information only from the insolvency debtor. 115. The referring court points out that the term ‘Durchsetzung’ used in the German version of Article 23(1)(j) of Regulation 2016/679 traditionally refers to the sphere of the claimant and is mainly used as a synonym for the enforcement or execution of a claim which has already been established on its merits. That term is in fact similar to the terms ‘enforcement’ in the English version of the regulation and ‘exécution’ in the French version of the regulation. On that basis, the referring court wonders whether the defence against civil law claims can be subsumed under the term ‘enforcement’. In that context, it draws attention to the fact that other provisions of the regulation refer to the ‘establishment’, ‘exercise’ or ‘defence’ of legal claims. (75) 116. If the expression ‘enforcement of civil law claims’ includes the defence by the tax authorities against such claims, this raises the further question — according to the referring court — of whether the claims (in this case, the insolvency avoidance claims) must already have been established, or whether it is sufficient for the information to be requested in order to examine such claims. Indeed, the wording of Paragraph 32c(1)(2) of the AO refers to the defence of the legal entity of the tax authority ‘against civil law claims established against it’. (76) That suggests that the claimant has already raised a claim vis-à-vis the opposing party, and that the merits of that claim have already been substantiated. However, a different textual interpretation is also possible. In addition, if the national rule were to exclude the right of access to tax data only in enforcement procedures, that rule would to a great extent be ineffective: the insolvency administrator would have already acquired the necessary information. The referring court would thus be inclined to read Paragraph 32c(1)(2) of the AO to the effect that the wording ‘established’ also encompasses ‘yet to be established’ or ‘possible’. 117. Also with regard to that second question, I find myself in agreement with the views expressed by the Land and the Czech and German Governments. 118. To begin with, it seems to me that the enforcement of civil law claims necessarily involves an assessment of the arguments put forward in support of the existence of the claim, and also the argument in support of the non-existence of the claim. An interpretation to the contrary would be incompatible with the principle of equality of arms. Indeed, it would upset the procedural balance between the parties to the judicial proceedings by favouring the claimant. Accordingly, the concept of ‘enforcement’ must encompass that of ‘defence’ against the claim brought by the claimant. 119. That conclusion is not called into question by the fact that other provisions of that regulation use the phrase ‘establishment, exercise or defence’ of a right before the courts. First, those provisions may have been drafted by different ‘hands’ at different times (as mentioned, point (j) was added by the Council at a later stage). Second, those other provisions do not include the term ‘enforcement’ among those used, and thus do not lend themselves to draw a meaningful comparison. 120. Following the same logic, I also take the view that the limitation provided for in Article 23(1)(j) of Regulation 2016/679 is not conditional on the requirement that civil law claims have already been established. 121. Admittedly, the term used in the regulation, in the various languages, (77) may be read as referring only to the enforcement phase of proceedings: that in which compliance by a party is obtained, if need be through coercion. However, that term may also be understood, more broadly, as referring to the start of proceedings in order to have one’s subjective right recognised and thus protected. 122. I think the latter interpretation should be preferred. I fail to see the logic of why the EU legislature would permit Member States to maintain their specific regimes on discovery only in certain types or stages of civil procedures and not in others. If reasons relating to the protection of the integrity and fairness of civil law proceedings allow Member States to introduce restrictions to the rights of data subjects (and obligations of data controllers), those rules should arguably apply, in principle, at any stage of the proceedings. (78) 123. The opposite interpretation would also seems counterintuitive: why allow Member States to limit access during the final (or enforcement) stage of the proceedings but not before? As the referring court rightly points out, the administrator would have acquired the information sought by then, and the rule restricting access would have become meaningless. 124. I thus conclude that the expression ‘enforcement of civil law claims’ in Article 23(1)(j) of Regulation 2016/679 also encompasses the defence against civil law claims, and is not limited to situations where the existence of the claim has already been established. 3. The third question 125. Finally, by its third question, the referring court asks, in essence, whether a national provision, such as Paragraph 32c(1)(2) of the AO, that limits the right of access to data held by the tax authorities, when that data may be used to bring insolvency avoidance claims against those authorities, is compatible with Article 23(1)(e) of Regulation 2016/679. 126. The referring court points out that Paragraph 32c(1)(2) of the AO does not refer to point (e), but to point (j), of Article 23(1). However, that court does not exclude that point (e) could nonetheless provide a valid basis for the national provision. In that connection, the national court wonders whether the objectives pursued by paragraph 32c(1)(2) of the AO — to place the tax authorities in an equivalent position to that of other creditors in case of insolvency avoidance claims, in order to ensure uniform taxation and safeguard tax revenue — may be considered an ‘important objective of general public interest’ within the meaning of point (e). Moreover, the referring court also asks whether the national provision at issue belongs to ‘taxation matters’, for the purposes of point (e), in so far as the subject matter of the dispute before it is not governed by tax law but by insolvency law. 127. In that regard, but with the caveat already expressed above, (79) I again agree with the Land, and the Czech and German Governments, according to which this question calls for a positive answer. 128. Point (e) of Article 23(1) allows restrictions intended to safeguard ‘other important objectives of general public interest of … a Member State, in particular an important economic or financial interest of the Union or of a Member State, including monetary, budgetary and taxation matters’. (80) It thus follows from the very wording of Article 23(1)(e) of Regulation 2016/679 that Member States are entitled to introduce restrictions to certain rights conferred by that regulation in order to pursue economic interests in taxation matters. 129. Article 23(1)(e) of Regulation 2016/679 reproduces, in substance, the wording of Article 13(1)(e) of Directive 95/46, (81) in respect of which the Court held that ‘a limitation of the data protection conferred by Directive 95/46 for tax purposes is … expressly provided for by that directive’. (82) 130. It is true, as the Commission points out, that Article 23(1)(e) of Regulation 2016/679 lists a number of exceptions and, as such, it should be interpreted narrowly. Admittedly, as a general rule, this is the correct approach. However, point (e) is not in itself a restriction, but just the statement of a legitimate aim. By its very nature, a legitimate aim is open-ended in its wording. That is common to most interests listed in Article 23(1) of Regulation 2016/679 (notably, national security, defence, and public security). The reason is, clearly, that a narrow interpretation and application of the restrictions permitted by Article 23(1) is ensured by requiring fulfilment of the conditions set out in the first sentence of that provision: any restriction must (i) be introduced by way of a legislative measure, (ii) respect the essence of fundamental rights and freedoms, and (iii) be a necessary and proportionate measure in a democratic society. 131. Thus, the only requirement laid down in point (e) of Article 23(1) is that the interest which the Member State intends to protect is an ‘important’ one. Yet again, the regulation does not offer any indication as to what may (or may not) be regarded as ‘important’. 132. Personally, I would read ‘important’ as simply ‘deserving of protection’: an interest that, in so far as it allows for derogation from a number of EU provisions, is recognised as legitimate also in the EU legal system. Therefore, provided the interest pursued benefits the generality (objective of general public interest), and that it is not at odds with any rule or principle of EU law, or at any rate unjust or unfair, that interest clearly falls within the scope of point (e). 133. Having said that, I hardly need to point out that the objective of ensuring uniform taxation and safeguarding tax revenue are recognised as legitimate aims in the EU legal system. (83) However, could the specific manner in which Paragraph 32c(1)(2) of the AO pursues that objective go beyond the ‘safe space’ granted to Member States by Article 23(1)(e) of Regulation 2016/679? 134. I do not think so. 135. I fail to see why EU law, and more specifically Article 23(1)(e) of Regulation 2016/679, should be interpreted as precluding a national provision, such as Paragraph 32c(1)(2) of the AO, that seeks to place the tax authorities in an equivalent position to that of other creditors in the context of insolvency avoidance claims. 136. Apart from the fact, again, that it is rather difficult to infer any position of Article 23(1) of the Regulation 2016/679 on the issue of equality of public and private law creditors in insolvency proceedings, I would also point out that, in a number of other Member States, the tax authorities enjoy a privileged position in the context of insolvency proceedings. It is thus conceivable that the German legislature may take the view that, in those proceedings, its tax authorities should be (at least) no worse off than private creditors. 137. The Commission argues, however, that establishing equal treatment between the tax administration and private-law creditors in actions such as that in the main proceedings does not constitute a general public interest, but an interest proper to the State which cannot be weighed against the fundamental right of the data subject to have access to the data collected concerning him or her. Therefore, the Commission considers that Article 23(1)(e) of Regulation 2016/679 must be interpreted as precluding a national provision such as Paragraph 32c(1)(2) of the AO. 138. The rationale behind the distinction between ‘general public interests’ and ‘interests proper to the State’, and the precise contours of the two concepts, frankly escape me. Failing an explanation from the Commission on this point, and finding no trace of it in the text of Regulation 2016/679, I find the Commission’s arguments unpersuasive. 139. In the light of the above, I conclude that a national provision, such as Paragraph 32c(1)(2) of the AO, that limits the right of access to information held by the tax authorities, when that information may then be used to bring insolvency avoidance claims against those authorities, cannot be said to be incompatible with Article 23(1)(e) of Regulation 2016/679, but in practical terms primarily because the latter provision has nothing to say on that specific issue. V. Conclusion 140. I propose that the Court declare that it lacks jurisdiction to answer the questions referred for a preliminary ruling by the Bundesverwaltungsgericht (Federal Administrative Court, Germany). 1 Original language: English. 2 Judgment of 18 October 1990 (C‑297/88 and C‑197/89, EU:C:1990:360) (‘Dzodzi’). 3 The Court itself referred to this strand of cases as ‘the Dzodzi line of cases’ in the judgments of 17 July 1997, Leur-Bloem (C‑28/95, EU:C:1997:369, paragraph 27), and of 17 July 1997, Giloy (C‑130/95, EU:C:1997:372, paragraph 23). 4 OJ 2016 L 119, p. 1. 5 Law that entered into force with effect from 25 May 2018. 6 Judgment of 26 September 1985 (166/84, EU:C:1985:373). 7 Opinion of Advocate General Mancini in Thomasdünger (166/84, EU:C:1985:208, points 1 and 2). 8 Judgment of 26 September 1985, Thomasdünger (166/84, EC:1985:373, paragraph 11). 9 Supra, footnote 2. 10 Opinion in Joined Cases Dzodzi (C‑297/88 and C‑197/89, EU:C:1990:274, points 8 to 11). The learned Advocate General took the same stance in his Opinion in Gmurzynska-Bscher (C‑231/89, EU:C:1990:276), delivered on the same day. 11 Dzodzi, paragraphs 29 to 43. 12 See, for example, judgment of 25 June 1992, Federconsorzi (C‑88/91, EU:C:1992:276). 13 See, inter alia, judgment of 12 July 2012, SC Volksbank România (C‑602/10, EU:C:2012:443). 14 See judgments of 3 December 1998, Schoonbroodt (C‑247/97, EU:C:1998:586), and of 11 January 2001, Kofisa Italia (C‑1/99, EU:C:2001:10). 15 See, inter alia, judgment of 7 November 2013, Isbir (C‑522/12, EU:C:2013:711). 16 See, among many, judgments of 11 December 2007, ETI and Others (C‑280/06, EU:C:2007:775), and of 14 March 2013, Allianz Hungária Biztosító and Others (C‑32/11, EU:C:2013:160). 17 See, to that effect, judgments of 4 December 2014, FNV Kunsten Informatie en Media (C‑413/13, EU:C:2014:2411, paragraph 19); of 26 November 2015, Maxima Latvija (C‑345/14, EU:C:2015:784, paragraph 13); and of 21 November 2019, Deutsche Post and Others (C‑203/18 and C‑374/18, EU:C:2019:999, paragraph 39). 18 Judgment of 16 March 2006, Poseidon Chartering (C‑3/04, EU:C:2006:176, paragraph 17). 19 See, among many, judgment of 17 July 1997, Leur-Bloem (C‑28/95, EU:C:1997:369, paragraph 32). 20 See, to that effect, judgments of 17 July 1997, Giloy (C‑130/95, EU:C:1997:372, paragraph 28), and of 21 July 2016, VM Remonts and Others (C‑542/14, EU:C:2016:578, paragraph 18). 21 Judgment of 7 January 2003 (C‑306/99, EU:C:2003:3, paragraph 92). 22 Judgment of 29 April 2004, British American Tobacco (C‑222/01, EU:C:2004:250, paragraph 41). 23 Judgment of 11 January 2001 Kofisa Italia (C‑1/99, EU:C:2001:10, paragraphs 18 to 33). 24 Judgment of 3 December 1998 Schoonbroodt (C‑247/97, EU:C:1998:586, paragraph 15). 25 Judgment of 14 January 2016 Ostas celtnieks (C‑234/14, EU:C:2016:6, paragraphs 20 and 21). 26 Respectively, judgments of 25 June 1992 (C‑88/91, EU:C:1992:276, paragraphs 2 and 3), and of 12 November 1992 (C‑73/89, EU:C:1992:431, paragraphs 13, 14 and 22). 27 Judgments of 11 January 2001, Kofisa Italia (C‑1/99, EU:C:2001:10, paragraph 31), and of 16 March 2006, Poseidon Chartering (C‑3/04, EU:C:2006:176, paragraph 18). 28 Judgment of 12 November 1992 (C‑73/89, EU:C:1992:431, paragraphs 22 and 23). 29 See, for example, judgments of 3 December 2015, Quenon K. (C‑338/14, EU:C:2015:795, paragraphs 15 to 19), and of 17 May 2017, ERGO Poisťovňa (C‑48/16, EU:C:2017:377, paragraphs 26 to 32). 30 C‑28/95, EU:C:1996:332. 31 C‑306/99, EU:C:2001:608. 32 Opinion in Kofisa Italia (C‑1/99 and C‑226/99, EU:C:2000:498, point 28 et seq.). 33 C‑267/99, EU:C:2001:190, points 22 to 35. 34 Opinion of Advocate General Tesauro in Kleinwort Benson (C‑346/93, EU:C:1995:17, points 18 et seq.). 35 Judgment of 28 March 1995 (C‑346/93, EU:C:1995:85, paragraphs 20 et seq.). 36 For an overview and critique, see Krommendijk, J., ‘Wide Open and Unguarded Stand our Gates: The CJEU and References for a Preliminary Ruling in Purely Internal Situations’, German Law Journal, vol. 18, 2017, pp. 1359 to 1394; and Arena, A., Le ‘situazioni puramente interne’ nel diritto dell’Unione Europea, Editoriale Scientifica, Naples, 2019, pp. 127 to 143 and 180 to 200. 37 See, for example, judgments of 18 December 2014, Generali-Providencia Biztosító (C‑470/13, EU:C:2014:2469, paragraph 25), and of 16 June 2016, Rodríguez Sánchez (C‑351/14, EU:C:2016:447, paragraph 66). See also order of 28 June 2016, Italsempione — Spedizioni Internazionali (C‑450/15, not published, EU:C:2016:508, paragraphs 21 to 23). 38 See, for example, order of 3 September 2015, Orrego Arias (C‑456/14, not published, EU:C:2015:550, paragraphs 24 and 25). 39 See, for example, judgment of 27 June 2018, SGI and Valériane (C‑459/17 and C‑460/17, EU:C:2018:501, paragraph 28). 40 See judgments of 7 January 2003, BIAO (C‑306/99, EU:C:2003:3, paragraph 92), and of 14 March 2013, Allianz Hungária Biztosító and Others (C‑32/11, EU:C:2013:160, paragraphs 18 and 22). 41 Judgments of 7 November 2013, Isbir (C‑522/12, EU:C:2013:711, paragraph 29), and of 21 November 2019, Deutsche Post and Others (C‑203/18 and C‑374/18, EU:C:2019:999, paragraph 40). 42 Judgment of 15 November 2016 (C‑268/15, EU:C:2016:874, paragraphs 47 to 55, especially 53 and 55). 43 See, for example, judgments of 7 July 2011, Agafiţei and Others (C‑310/10, EU:C:2011:467, paragraph 43); of 20 March 2014, Caixa d’Estalvis i Pensions de Barcelona (C‑139/12, EU:C:2014:174, paragraphs 46 and 47); of 24 October 2019, Belgische Staat (C‑469/18 and C‑470/18, EU:C:2019:895, paragraphs 24 and 25); and of 30 January 2020, I.G.I. (C‑394/18, EU:C:2020:56, paragraphs 47 to 54). See also orders of 3 July 2014, Tudoran (C‑92/14, EU:C:2014:2051, paragraphs 41 and 42), and of 12 May 2016, Sahyouni (C‑281/15, EU:C:2016:343, paragraphs 27 to 31). 44 Judgment of 18 October 2012 (C‑583/10, EU:C:2012:638, paragraphs 32 to 57). 45 The only decision that may, perhaps, be read as following Nolan, albeit with an a contrario reasoning, is the judgment of 26 March 2020, Kreissparkasse Saarlouis (C‑66/19, EU:C:2020:242, paragraphs 25 and 26). 46 Judgment of 13 March 2019 (C‑635/17, EU:C:2019:192, paragraph 42). 47 Judgment of 12 December 2019, G.S. and V.G. (Threat to public policy) (C‑381/18 and C‑382/18, EU:C:2019:1072, paragraph 47). 48 Judgment of 12 December 2019, G.S and V.G. (Threat to public policy) (C‑381/18 and C‑382/18, EU:C:2019:1072, paragraph 47). Emphasis added. 49 The truth to told, I actually believe, like my learned predecessors quoted throughout this Opinion, that the Dzodzi line of case-law is an anomaly and should be abandoned. Apart from that case-law being highly questionable in constitutional terms, especially today when, perhaps in contrast to the past, what falls ‘within the scope of EU law’ tends to be more vigorously guarded than before, the Dzodzi approach was also born at a time when the number of references coming from the national courts was much more moderate and the Court apparently did not mind taking on some extra work. But I also suspect that the Court is not yet ready to make such a step. 50 See, to that effect, judgments of 21 December 2011, Cicala (C‑482/10, EU:C:2011:868, paragraph 25), and of 7 November 2013, Romeo (C‑313/12, EU:C:2013:718, paragraphs 19 to 38). Cf. also Opinion of Advocate General Cruz Villalón in Allianz Hungária Biztosító and Others (C‑32/11, EU:C:2012:663, point 29). 51 See, similarly, Opinion of Advocate General Kokott in ETI and Others (C‑280/06, EU:C:2007:404, point 39), and Opinion of Advocate General Pikamäe in Joined Cases Deutsche Post and Others (C‑203/18 and C‑374/18, EU:C:2019:502, points 47 and 48). 52 Judgment of 21 December 2011, Cicala (C‑482/10, EU:C:2011:868, paragraph 27). 53 Order of 9 September 2014, Parva Investitsionna Banka and Others (C‑488/13, EU:C:2014:2191, paragraph 29). 54 Supra, point 44 of this Opinion. 55 See, to that effect, Ritter, C., ‘Purely Internal Situations, Reverse Discrimination, Guimont, Dzodzi and Article 234’, European Law Review, 31, 2006, pp. 690 to 710, at 709; and Iglesias Sanchéz, S., ‘Purely Internal Situations and the Limits of EU law: A Consolidated Case Law or a Notion to be Abandoned?’, European Constitutional Law Review, 14, 2018, pp. 7 to 36, at 31. 56 See, to that effect, Opinion of Advocate General Wahl in Joined Cases Venturini and Others (C‑159/12 to C‑161/12, EU:C:2013:529, points 54 to 62). 57 Indeed, some decisions of the Court may be read as suggesting that the existence of an actual interest of the Union in interpreting the provisions at stake in order to forestall future differences in interpretation must be ‘established’ (see especially judgment of 7 July 2011, Agafiţei and Others (C‑310/10, EU:C:2011:467, paragraph 42); see also judgments of 12 July 2012, SC Volksbank România (C‑602/10, EU:C:2012:443, paragraphs 87 and 88), and of 19 October 2017, Europamur Alimentación (C‑295/16, EU:C:2017:782, paragraph 32)) or at any rate ‘conceivable’ (judgment of 19 October 2017, Solar Electric Martinique (C‑303/16, EU:C:2017:773, paragraph 29)). 58 See supra, point 41 of this Opinion. 59 Dzodzi, paragraphs 29 to 43. 60 Judgment of 17 July 1997, Leur-Bloem (C‑28/95, EU:C:1997:369, paragraphs 31 and 32). 61 Respectively, judgments of 19 October 2017, Solar Electric Martinique (C‑303/16, EU:C:2017:773, paragraph 29), and of 27 June 2018, SGI and Valériane (C‑459/17 and C‑460/17, EU:C:2018:501, paragraph 28). 62 Judgment of 19 October 2017, Europamur Alimentación (C‑295/16, EU:C:2017:782, paragraph 31). 63 See, inter alia, case-law referred to supra, in footnote 17. 64 Respectively, judgments of 12 November 1992, Fournier (C‑73/89, EU:C:1992:431, paragraph 23) (integration of a concept included in the EU directive on insurance against civil liability for the use of motor vehicles in an agreement regulating the same subject matter); of 7 January 2003, BIAO (C‑306/99, EU:C:2003:3, paragraphs 68 to 77) (extension of an EU accounting rule to certain situations falling outside the scope of the relevant EU directive); and of 14 January 2016, Ostas celtnieks (C‑234/14, EU:C:2016:6, paragraphs 17 to 19) (extension of EU public procurement rules to a contract the market value of which was below the threshold set out in the relevant EU directive). 65 But see also judgment of 12 July 2012, SC Volksbank România (C‑602/10, EU:C:2012:443, paragraphs 85 to 93), where the Court accepted jurisdiction to interpret the EU provisions on credit agreements for consumers despite the fact that those provisions did not apply in the main proceedings ratione temporis and ratione materiae. Nevertheless, it is indisputable that both sets of rules applied to very similar situations, as they concerned the same subject matter (credit agreements) and pursued the same objective (to protect consumers). 66 Quoted in full above in point 11 of this Opinion. 67 See, in particular, recitals 2 and 4 and Article 1 of Regulation 2016/679. 68 See especially recitals 4 and 73 of Regulation 2016/679. More generally, see Feiler, L., Forgó, N., Weig, M., The EU General Data Protection Regulation (GDPR) — A Commentary, GLP, 2018, pp. 138 to 140; Moore, D., ‘Comment to Article 23 — Restrictions’, in Kuner, C., Bygrave, L., Docksey, C., Drechsler, L. (eds), The EU General Data Protection Regulation (GDPR) — A Commentary, Oxford University Press, 2020, pp. 543 to 554; and Ehmann, E., Selmayer, M. (eds.), Datenschutz-Grundverordnung: Kommentar. 2nd edn, C.H.Beck, 2018, pp. 467 to 469. 69 For that concept in Regulation 2016/679, see Article 4, point (10). 70 Directive 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). 71 Judgment of 29 January 2008 (C‑275/06, EU:C:2008:54, paragraphs 51 to 55). 72 Proposal for a Regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) COM(2012) 11 final of 25 January 2012 (pp. 54 and 55). 73 See, inter alia, Council documents 9398/15 of 1 June 2015 (pp. 145 and 146), and 9565/15 of 11 June 2015 (pp. 107 and 108). 74 Leaving aside the broader structural question on how far such an alleged intention should in fact be relevant if it is in no way reflected in either the text of the legal act or its recitals — in detail see my Opinion in BV (C‑129/19, EU:C:2020:375, points 119 to 123). 75 Article 9(2)(f), Article 17(3)(e), Article 18(1)(c) and (2), Article 21(1), second sentence, and Article 49(1)(e) of Regulation 2016/679. 76 Emphasis added. 77 That expression is similar, inter alia, to the Czech (‘vymáhání’), Spanish (‘ejecución’), Finnish (‘täytäntöönpano’), Italian (‘esecuzione’), Portuguese (‘execução’) and Slovak (‘vymáhanie’) versions of the regulation. 78 See, by analogy, the reasonably broader logic embraced by the Court in the interpretation of the expression ‘may be disclosed in civil or commercial proceedings’ as to whether that proceedings must in fact already be pending in the judgment of 13 September 2018, Buccioni (C‑594/16, EU:C:2018:717, paragraph 35). 79 Points 93 to 95 of this Opinion. 80 Emphasis added. 81 Point 106 of this Opinion. 82 Judgment of 27 September 2017, Puškár (C‑73/16, EU:C:2017:725, paragraph 42). 83 See, to that effect, judgments of 13 December 2005, Marks & Spencer (C‑446/03, EU:C:2005:763, paragraph 51), and of 13 March 2007, Test Claimants in the Thin Cap Group Litigation (C‑524/04, EU:C:2007:161, paragraph 68).