WRITTEN QUESTION E-3616/01

by Yasmine Boudjenah (GUE/NGL) to the Commission

(8 January 2002)

Subject: Processing of personal data

The French Council of State recently ruled that banks can use nationality as a criterion when considering applications for bank loans or credit. The decision to do so, which is completely discriminatory, was sharply criticised in December 1998 by the National Commission for Information Technology and Civil Liberties (CNIL), which had adopted the following provisions nationality cannot be a variable that is used in such calculations [computerised calculation of risk evaluation], whether expressed as one of 'French, EEC national, other or, in particular, if specified precisely'; only information on the stability of the credit applicant's residence on French territory is of relevance.

Does the Commission take the view that this decision of the Council of State, which nullified the CNIL's recommendation, is incompatible with Community legislation on the protection of natural persons with regard to the processing of personal data?

What steps does it intend to take to put an end to such discrimination?

Answer given by Mr Bolkestein on behalf of the Commission

(26 February 2002)

The Honourable Member inquires about the Commission's view on the differences of view between the Commission Nationale de l'Informatique et des Libertés (CNIL) and the Association Française des Sociétés Financières about the inclusion of nationality as a factor in the automatic calculation of the risk (credit scoring) when considering credit applications. The Commission does not consider it appropriate to take a view on the application of national law in the specific case in question.

As a general rule, the effect of Article 12 of the EC Treaty, making illegal any discrimination on grounds of nationality, is not in the Commission's view to preclude entirely the processing of personal data concerning nationality for purposes of credit agreement. From the data protection point of view there is some room for nationality to be a relevant factor and therefore for its processing (together with other many factors) to be adequate, relevant and not excessive within the meaning of Article 6.1.c) of Directive 95/46/EC of the 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(1).

For example, a person's nationality may be relevant to that person's capacity to conclude a valid contract in certain limited circumstances, and may also be relevant to questions of devolution of property on marriage or death. In these limited circumstances, the possible incidence of foreign law is something that creditors might need to consider as an additional risk for the credit operation and the processing of nationality information could therefore be lawful.

However, taking into account the limited incidence that data about nationality may have, the Commission takes the view that companies and institutions should make all possible efforts to avoid the processing of this personal data of individuals, in particular because scoring by nationalities might conceal scoring on the basis of race or origin, special categories of data for which the Directive's rules are much stricter.

Finally, the Commission would recall that Directive 95/46/CE provides specific safeguards as regard decisions based solely on the automatic processing of personal data, in Article 15 and Article 12 (a) third indent.

(1) OJ L 281, 23.11.1995.