Judgment;Summary — ECLI:EU:C:2022:813
Date: 2022-10-20
Language of the case: Bulgarian
Court formation: Eighth Chamber
Subject matter: Data protection
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-306/21 – 1 
Case C-306/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
12 May 2021 
Referring court:  
Varhoven administrativen sad (Bulgaria) 
Date of the decision to refer: 
23 April 2021 
Appellants in cassation:  
Komisia za zashtita na lichnite danni 
Tsentralna izbiratelna komisia 
Respondent in cassation:  
Koalitsia ‘Demokratichna Bulgaria – Оbredinenie’ 
  
Subject matter of the main proceedings 
Appeal in cassation brought by the Komisia za zashtita na lichnite danni 
(Commission for the Protection of Personal Data; ‘the KZLD’) of the Republic of 
Bulgaria and appeal in cassation brought by the Tsentralna isbiratelna komisia 
(Central Election Commission; ‘the TSIK’) of the Republic of Bulgaria against 
the decision of the Administrativen sad Sofia-grad (Administrative Court, Sofia 
City) of 15 March 2021 by which their common guidelines on the processing and 
protection of personal data in the electoral process were declared to be null and 
void 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation – on the basis of Article 267 TFEU – of Article 2(2)(a) and 
Article 6(1)(e) of Regulation (EU) 2016/679 of the European Parliament and of 
the Council of 27 April 2016 on the protection of natural persons with regard to 
the processing of personal data and on the free movement of such data, and 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-306/21 
 
2  
repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 
L 119, p. 1; ‘General Data Protection Regulation’ or ‘Regulation 2016/679’) in 
connection with the holding of elections to the National Assembly and with the 
prohibition on video recording when the ballot boxes are opened and the election 
results are determined 
Questions referred for a preliminary ruling 
The referring court refers the following questions for a preliminary ruling: 
1. Is Article 2(2)(a) of the General Data Protection Regulation to be interpreted 
as precluding the application of that regulation to an ostensibly purely internal 
situation, such as the holding of elections to the National Assembly, where the 
subject matter of the protection is the personal data of individuals – citizens of the 
European Union – and the data processing operations are not restricted to the 
collection of data in the context of the activity in question? 
2. If the first question is answered in the affirmative, does the conclusion of the 
holding of elections to the National Assembly, which do not appear to fall within 
the scope of EU law, release controllers, processors and persons who store 
personal data from their obligations under the regulation, as the sole means of 
protecting personal data of EU citizens at EU level? Does the applicability of the 
regulation depend solely on the activity for which the personal data were produced 
or collected, thereby also leading to the conclusion that its subsequent 
applicability is precluded? 
3. If the first question is answered in the negative, do Article 6[(1)](e) of the 
General Data Protection Regulation and the principle of proportionality enshrined 
in recitals 4 and 129 thereof preclude national rules implementing the regulation, 
such as those at issue, which preclude and restrict from the outset the possibility 
of carrying out any video recording during the determination of the election 
results at polling stations, do not allow for differentiation and regulation of 
individual elements of the recording process and preclude the possibility of 
achieving the objectives of the regulation – the protection of personal data of 
individuals – by other means? 
4. Alternatively, and in the context of the scope of application of EU law, do 
Article 6[(1)](e) of the General Data Protection Regulation and the principle of 
proportionality enshrined in recitals 4 and 129 thereof preclude – in the holding of 
municipal elections and elections to the European Parliament – national rules 
implementing that regulation, such as those at issue, which preclude and restrict 
from the outset the possibility of carrying out any video recording during the 
determination of the election results at polling stations, do not differentiate and 
regulate individual elements of the recording process or even allow for such 
differentiation and regulation, and preclude the possibility of achieving the 
objectives of the regulation – the protection of personal data of individuals – by 
other means? 
KOALITSIA ‘DEMOKRATICHNA BULGARIA – ОBREDINENIE’ 
 
3 
5. Does Article 6(1)(e) of the General Data Protection Regulation preclude the 
categorisation of the activities of ascertaining lawful conduct and determining the 
results of elections as a task carried out in the public interest which justifies a 
certain degree of interference, subject to the requirement of proportionality, with 
regard to the personal data of persons present at polling stations when they 
perform an official, public task which is regulated by law? 
6. If the previous question is answered in the affirmative, does the protection of 
personal data preclude the introduction of a national statutory prohibition on the 
collection and processing of personal data, which limits the possibility of carrying 
out ancillary activities consisting in the video recording of materials, objects or 
items which do not contain personal data, where the recording process potentially 
gives rise to the possibility of personal data also being collected during the video 
recording of persons present at polling stations who are carrying out an activity in 
the public interest at the relevant time? 
EU legislation and case-law relied on 
Article 16(1), Article 20(1), Article 20(2)(b) and the final sentence of 
Article 20(2) TFEU 
Article 8 of the Charter of Fundamental Rights of the European Union (the 
‘Charter’) 
Recital 4, first and second sentences, recital 56, recital 129, first, second, fourth 
and fifth sentences, in relation to the powers of the supervisory authorities, 
Article 2(2)(a), Article 6(1)(e) and (2) of Regulation 2016/679 
Judgment of 14 February 2019, Sergejs Buivids, C-345/17, EU:C:2019:122, 
paragraphs 30, 31 and 42 to 47 
Opinion of Advocate General Maduro of 30 September 2009 in Janko Rottmann, 
C-135/08, EU:C:2009:588, points 16 and 23 
Judgment of 20 September 2001, Grzelczyk, C-184/99, EU:C:2001:458, 
paragraph 31 
Judgment of 8 March 2011, Ruiz Zambrano, C-34/09, EU:C:2011:124, 
paragraph 41 
Judgment of 2 June 2016, Bogendorff von Wolffersdorff, C-438/14, 
EU:C:2016:401, paragraph 29 
Judgment of 2 October 2003, Carlos Garcia Avello, C-148/02, EU:C:2003:539, 
paragraph 26 
Judgment of 2 March 2010, Janko Rottmann, C-135/08, EU:C:2010:104, 
paragraphs 41 and 45 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-306/21 
 
4  
Judgment of 10 July 2018, Tietosuojavaltuutettu, C-25/17, EU:C:2018:551, 
paragraphs 36 to 42, 46 and 47 
Judgment of 10 December 2013, Shamso Abdullahi, C-394/12, EU:C:2013:813, 
paragraph 51 
Judgment of 31 March 1998, France and Others v Commission, C-68/94 and 
C-30/95, EU:C:1998:148, paragraph 168 
Judgment of 25 March 1999, Gencor v Commission, T-102/96, EU:T:1999:65, 
paragraph 148 
Judgment of 7 June 2005, VEMW and Others, C-17/03, EU:C:2005:362, 
paragraph 41 
Provisions of national law cited 
Electoral Code (‘the EC’) 
In relation to the counting of votes, Article 272 of the EC provides that, in 
elections for representatives of the National Assembly, candidates, supporters and 
representatives of parties, coalitions and action committees, observers, one 
registered interviewer per registered sociological agency and representatives of 
the mass media may be present at the polling stations when the ballot boxes are 
opened and when the results of the voting are determined, and they must be 
provided with a direct view of the counting of votes. Article 431 provides the 
same for the counting of votes in elections for municipal councillors and mayors. 
Articles 330 and 378 of the EC provide for the corresponding application of, in 
particular, that provision to the counting of votes in the elections for the President 
and Vice-President and the elections for the Bulgarian Members of the European 
Parliament, respectively. 
Article 57(1)(49) of the EC provides that the Central Election Commission, 
together with the Commission for the Protection of Personal Data, are to issue 
guidelines on the processing and protection of personal data in the electoral 
process. 
Guidelines on the processing and protection of personal data in the electoral 
process (‘the Guidelines’) 
The Guidelines are the administrative measure contested in the main proceedings. 
In Section I, point 2, the Guidelines provide, in relation to ‘supporters, observers 
and representatives of political parties, coalitions and action committees’, that 
those persons process personal data in accordance with Article 29 of Regulation 
2016/679 and are not to be regarded as controllers or processors. The cases in 
which those persons process personal data are expressly set out in the EC (right to 
KOALITSIA ‘DEMOKRATICHNA BULGARIA – ОBREDINENIE’ 
 
5 
a direct view when results of the voting are determined, right to obtain copies of 
constituency voting records, etc.). When processing personal data, those persons 
may not go beyond the rights and obligations provided for in the EC. 
In Section II, point 9, the Guidelines provide, in relation to the ‘processing of 
personal data by means of video recording and/or dissemination (recording or live 
broadcast)’, that the mass media process personal data by video recording and/or 
dissemination only at the opening of the election day, the closing of the election 
day and when the results of the voting are determined. The purpose of the 
processing of personal data in the electoral process by means of video recording 
and/or dissemination is to ensure the transparency, objectivity and lawfulness of 
the electoral process, as well as the equal treatment of persons in the electoral 
process, and to guarantee freedom of expression and the right to information. No 
other participants in the electoral process may process personal data by means of 
video recording and/or dissemination, because their role in the electoral process is 
incompatible with the objective of processing personal data in the electoral 
process by means of video recording. The tasks and roles of those participants in 
the electoral process are expressly and exhaustively defined in the EC. 
Succinct presentation of the facts and procedure in the main proceedings 
1 By action of 10 February 2021, the Koalitsia ‘Demokratichna Bulgaria – 
Оbredinenie’ (‘Democratic Bulgaria – Union’ coalition) contested the lawfulness 
of the Guidelines in relation to the determination of election results and in relation 
to the rights of supporters, observers and representatives of the candidates in the 
processing of personal data and the possibility of those participants in the electoral 
process to use video recording and video broadcasting. 
2 By judgment of 15 March 2021, the Administrative Court, Sofia City annulled the 
Guidelines as unlawful on the ground that Regulation 2016/679 is not applicable. 
It stated that, in accordance with Article 2(2)(a) of that regulation, the latter does 
not apply to activities which fall outside the scope of EU law. According to that 
court of first instance, EU law, in whatever form, does not apply to the holding of 
national elections, whether for members of the national parliament or for local 
authorities. Therefore, the Guidelines, which were adopted on the basis of 
Regulation 2016/679, do not have a legal basis. 
3 It also stated that the national Zakon za zashtita na lichnite danni (Law on the 
protection of personal data; ‘the ZZLD’) is inapplicable, since, in accordance with 
Article 1(3) of the ZZLD, its main purpose is to ensure the protection of natural 
persons in accordance with Regulation 2016/679, and elections to the national 
parliament are not covered by that regulation. 
4 By appeals in cassation brought on 29 March 2021, the KZLD and the TSIK 
challenged the lawfulness of the decision at first instance. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-306/21 
 
6  
Essential arguments of the parties in the main proceedings 
5 The KZLD points out that the Guidelines apply to the holding of every election, 
not only those for the national parliament. It requests a reference for a preliminary 
ruling on the applicability of EU law to the dispute. The TSIK likewise argues, in 
its appeal in cassation, that the Guidelines apply on a repeated basis and supports 
the request for a reference for a preliminary ruling. 
6 The respondent in the appeal in cassation takes the view that the decision at first 
instance should be upheld. It submits that the request for a reference for a 
preliminary ruling submitted by KZLD does not contain a clear statement of 
reasons as to the need for a reference for a preliminary ruling and must therefore 
be rejected. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
7 Referring to the case-law of the Court of Justice (Sergejs Buivids and Ryneš), the 
referring court states that the video recording of the process of opening the ballot 
boxes and determining the result of the voting could constitute processing of 
personal data where it also includes images of the persons involved. 
8 The referring court takes the view that, since Article 20(2)(b) TFEU provides for 
the right of citizens of the Union to vote in elections to the European Parliament 
and in municipal elections, and the directives also apply to those elections, there is 
no doubt as to the applicability of EU law to the assessment of the lawfulness of 
the Guidelines, irrespective of whether the provisions of Regulation 2016/679 
apply to the elections of members of the national parliament. 
9 In accordance with recital 129 of Regulation 2016/679, national supervisory 
authorities may prohibit the processing of personal data. In the present case, the 
national supervisory authority has introduced a definitive limitation within the 
meaning of that recital, without it being possible to ensure the protection of the 
personal data of the persons present by other, appropriate means, for example by 
obtaining their consent in advance or by recording only objects and not those 
persons themselves. The referring court points out that, due to their importance for 
the functioning of representative democracy, the Guidelines affect the public at 
large in addition to their direct addressees. 
10 Citizenship of the Union is a legal and political status conferred on the nationals 
of a State beyond their State body politic (point 16 of the Opinion in Janko 
Rottmann) and is clearly manifested in the right to vote and to stand as candidates 
and in the political rights of citizens of the Union, as provided for in the Charter. 
Citizenship of the Union is intended to be the fundamental status of nationals of 
the Member States (Grzelczyk, Zambrano and Wolffersdorff judgments). 
Citizenship of the Union does not, however, cover internal situations which have 
no link with EU law (Carlos Avello judgment). According to Advocate General 
Maduro, European citizenship is a political relationship based on the mutual 
KOALITSIA ‘DEMOKRATICHNA BULGARIA – ОBREDINENIE’ 
 
7 
commitment undertaken by the peoples of Europe to open their respective bodies 
politic to other European citizens (point 23 of the Opinion in Janko Rottmann). 
11 The referring court draws a distinction between personal data as an identifier of 
each person and the identity of the bearer of personal data as a citizen of the 
Union, but it considers that that distinction is irrelevant in the present case, since 
the Guidelines are not applicable only in an ostensibly purely internal situation 
such as elections to the national parliament. However, it is necessary to clarify the 
scope of the protection of personal data of EU citizens in purely internal 
situations. 
12 In that respect, the referring court states, citing paragraphs 41 and 45 of the 
judgment in Janko Rottmann, that the Member States must, when exercising their 
powers in the sphere of nationality, have due regard to European Union law. 
13 Referring to recital 56 of Regulation 2016/679, the referring court asks whether 
the regulation precludes the activity of determining election results from being 
categorised as an activity in the public interest, with all the ensuing consequences 
for the protection of the personal data of the persons present when election results 
are determined. In that context, it is necessary to clarify whether Regulation 
2016/679 applies only to elections to the European Parliament and municipal 
elections or whether it also applies to elections to the national parliament. 
14 Next, the referring court states that any data that may have been collected will 
continue to be stored or processed after the conclusion of a specific election and 
should therefore fall within the scope of EU law. Otherwise, both the supervisory 
activity of the competent bodies and direct actions brought by data subjects in 
relation to their personal data as citizens of the Union would be impermissible 
solely because such data was collected in the context of an activity which falls 
outside the scope of EU law. 
15 Referring to the need for a strict interpretation of the exceptions to the scope of 
application of Directive 95/46 that are provided for in Article 3(2) of that directive 
(paragraphs 36 to 42, 46 and 47 of the judgment in Tietosuojavaltuutettu), the 
referring court finds that there are certain similarities between the present case and 
indications identified in the case-law on Article 3, namely the possibility of 
transmitting the data to an unlimited number of persons and of retaining them 
after the elections have been concluded. Those indications militate in favour of the 
applicability of Regulation 2016/679 to an ostensibly purely internal situation. 
However, Article 2(2) of that regulation is not identical to the provision of 
Article 3(2) of Directive 95/46, with the result that that analysis cannot be 
conclusive. In addition, the Court of Justice has held that that directive applies to 
acts of police officers in the performance of their duties (paragraphs 42 to 47 of 
the judgment in Sergejs Buivids), since ‘that directive contains no express 
exception which excludes the processing of personal data of public officials from 
its scope’ (paragraph 45). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-306/21 
 
8  
16 The referring court states that, in accordance with the case-law (Abdullahi, 
paragraph 51; VEMW and Others, paragraph 41; France and Others v 
Commission, paragraph 168; Gencor v Commission, paragraph 148), in 
interpreting a provision of EU law, it is necessary to consider not only its wording 
but also the context in which it occurs and the objects of the rules of which it is 
part, as well as its general structure. In that regard, the referring court refers to the 
first sentence of recital 14 of Regulation 2016/679, according to which the 
‘protection afforded by this Regulation should apply to natural persons, whatever 
their nationality or place of residence, in relation to the processing of their 
personal data’. Moreover, since the regulation is the only Union act affording 
clearer and more detailed protection of personal data in the Union, the question 
arises as to whether the protection of personal data relevant in the context of the 
identification of a person who is a citizen of the Union is applicable because he or 
she has that status. 
17 Next, the referring court states that the direct view required by the EC in respect 
of the opening of ballot boxes and the determination of results could be achieved 
by recording the activities of the members of the election commissions and by 
way of the election reports themselves, but that the collection of personal data in 
the context of that process is a matter of organisation and regulation. However, the 
Guidelines pre-empt those issues by imposing a prohibition on video recording. 
Having regard to recitals 4 and 129 of Regulation 2016/679 and the requirement 
of proportionality of the measures applied by the supervisory authorities, the 
question arises as to whether Article 6[(1)](e) of the regulation precludes a 
measure such as the Guidelines, which contain a prohibition without even 
allowing for an examination and supplementary regulation of the requirements for 
the processing of personal data in the light of Article 5 of the regulation. 
18 Finally, the referring court states that the members of the constituency 
commissions and the persons who have the right to be present at the polling 
stations act in a public capacity. In particular, there is no doubt that once they 
register and arrive at the polling station at the beginning of election day, they are 
recognised and identified, and the protection of their privacy is relatively limited, 
with the result that the objective pursued by the Guidelines can also be achieved 
only to a limited extent. 
19 Since the answers to these questions do not follow unequivocally from the case-
law of the Court of Justice or from the legislation, the referring court considers it 
necessary to refer the above questions to the Court of Justice for a preliminary 
ruling.