Opinion of the European Data Protection Supervisor on the Commission Green Paper on the Effective Enforcement of Judgements in the European Union: the Transparency of Debtors' Assets — COM(2008) 128 final
Date: 2009-01-27
Institutions: European Data Protection Supervisor
Subjects: Council of the European Union, European Data Protection Supervisor, European Parliament, access to EU information, application of EU law, provision of documents

27.1.2009

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Official Journal of the European Union

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I

(Resolutions, recommendations and opinions)

OPINIONS

EUROPEAN DATA PROTECTION SUPERVISOR

Opinion of
the European Data Protection Supervisor on the Commission Green Paper on
the Effective Enforcement of Judgements in the European Union: the Transparency of Debtors'
Assets — COM(2008) 128 final

(2009/C 20/01)

THE EUROPEAN DATA PROTECTION SUPERVISOR,

Having regard to the Treaty establishing the European Com-
munity, and in particular its Article 286,

Having regard to the Charter of Fundamental Rights of the
European Union, and in particular its Article 8,

Having regard to 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,

Having regard to Regulation (EC) No 45/2001 of the European
Parliament and of the Council of 18 December 2000 on the
protection of
individuals with regard to the processing of
personal data by the Community institutions and bodies and on
the free movement of such data, and in particular its Article 41,

Having regard to the request for an opinion in accordance with
Article 28(2) of Regulation (EC) No 45/2001 received on
10 March 2008 from the European Commission,

HAS ADOPTED THE FOLLOWING OPINION:

I. INTRODUCTION

Consultation of the EDPS

1. Prior to the adoption of the Green Paper, the Commission
informally consulted the EDPS on its draft version, which
the EDPS welcomed as it gave him an opportunity to make
some suggestions on the draft prior to its adoption by the
Commission.

2. As already made clear in his Policy paper on ‘The EDPS as
an advisor to the Community institutions’, the EDPS does
not only give advice on formal proposals, but may also
react on preceding documents, such as communications or
consultations, which serve as the basis for
the policy
choices made in the proposals for legislation (1). Accord-
ingly, in this case the EDPS was consulted by the Commis-
sion by letter of 6 March 2008.

3. On the same date,

the Commission launched a public
consultation, inviting interested parties to submit comments
by 30 September 2008. This opinion should be also
considered as complementing this public consultation. The
EDPS is available to provide informal comments on draft
proposals arising from this Green Paper and expects to be
consulted on any adopted legislative proposals pursuant to
Article 28(2) of Regulation (EC) No 45/2001.

The Green Paper in its context and focus of the opinion

4. The Green Paper focuses on possible measures at EU level
that can be adopted with a view to ‘improve the transparency
of the debtor's assets and the right of creditors to obtain informa-
tion whilst respecting the principles for the protection of debtor's
privacy’ pursuant to the provisions of Directive 95/46/EC.
The Green Paper analyzes in detail the current situation as
well as a broad range of possible options to reach these
objectives.

(1) Policy paper ‘The EDPS as an advisor to the Community Institutions on
proposals for legislation and related documents’, 18 March 2005, avail-
able at the EDPS website: www.edps.europa.eu

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5. Against this background, this opinion is mainly aimed at
providing guidance with regard to data protection issues
that may arise in possible legislative initiatives stemming
from this Green Paper.

such as compliance with a legal obligation or performance
of a task carried out in the public interest or in the exercise
of official authority (Article 7(a), 7(c) and 7(e) of
the
Directive).

6. First of all, it should be noted that the EDPS has already
issued some opinions about proposals having many simila-
rities with this draft Green Paper, in particular in the field
of maintenance obligations (1) as well as in the co-ordina-
tion of social security systems (2).

7. All

these initiatives share many elements:

fostering and
managing the circulation of personal
information with a
view to better ensure citizens' rights within an Area of
Freedom Security and Justice; coping with different legal
systems and national competent authorities; ensuring that
the circulation of personal data is done in compliance with
relevant data protection legislation, thus guaranteeing not
only citizens' fundamental right to data protection but also
the quality of the data used in the envisaged systems.

11. In this context, the EDPS notes that the use of consent as a
legal ground seems to have a very limited scope, since the
debtor is not likely to provide his consent freely for the
processing of his personal data for the purpose of ensuring
transparency of his assets in an enforcement perspective.
laying down a specific legal — EU or
On the contrary,
national — obligation for enforcement authorities
to
process debtors' personal data would not only provide a
suitable legal ground pursuant to Article 7(c), but may also
foster the efficient and uniform availability of debtors' data,
subject to clear data protection guarantees. Alternatively, a
specific provision could be developed aiming at the perfor-
mance of a public interest task pursuant to Article 7(e) of
the Directive.

8. Against this background, the EDPS notes that some of the
points made in the abovementioned opinions, as those
mentioned in the following paragraphs, might be relevant
and useful also in this case.

12. Therefore, the EDPS recommends that possible legislative
actions stemming from the Green Paper should ensure that
the processing of personal data carried out by the whole
range of enforcement authorities is clearly based on at least
one of the legal grounds laid down by Article 7 of Directive
95/46/EC (3).

II. SUBSTANTIVE COMMENTS

Differences in Member States legal systems and legal grounds for
processing personal data

Proportionality

9. First of all, it should be highlighted that in the area of trans-
parency of debtors' assets, as the Green Paper recognizes,
the systems currently in place in the Member States are
very heterogeneous, both with regard to the authorities in
charge of the enforcement (which may include both public
authorities and private qualified professionals), and with
regard to substantive rules. Since the Green Paper does not
these differences
envisage harmonizing these
should be taken into account because enforcement authori-
ties, acting as data controllers, may broadly differ.

aspects,

10. According to Directive 95/46/EC, data controllers may
process personal data only on the basis of the consent of
the person concerned or some other legitimate legal basis,

(1) Opinion of 16 May 2006 of the European Data Protection Supervisor
on the Proposal for a Council Regulation on jurisdiction, applicable
law, recognition and enforcement of decisions and cooperation in
matters relating to maintenance obligations (OJ C 242, 7.10.2006,
p. 20).

(2) Opinion of 6 March 2007 of the European data protection Supervisor
on the Proposal for a Regulation of the European Parliament and of the
Council laying down the procedure for implementing Regulation (EC)
No 883/2004 on the coordination of
security systems
social
(COM(2006) 16 final) (OJ C 91, 26.4.2007, p. 15).

13. Proportionality is a key concept to be taken into account in
this context, in particular by ensuring that personal infor-
mation about debtors is not excessive with regard to the
debt and that it is kept only for as long as it is necessary
for
further
processed (4).

the purpose for which it

is collected or

14. Therefore,

the

last

the EDPS welcomes

sentence of
Chapter 4.b which, referring to the need to respect the prin-
ciple of proportionality in the debtor's declaration, states
that ‘the declaration should avoid information which is not neces-
sary for the purpose for which it is required. A solution that
obliges the debtor to disclose all his assets in advance is less
privacy friendly than a solution where the debtor is required to
declare only the necessary information when specific conditions are
met’. Against this background, it is also important to ensure
that access to debtors' personal data is proportionate to the
purposes pursued and subject to specific limits. This issue is
already referred to in the last sentence of Chapter 4.c,

(3) See also EDPS Opinion on maintenance obligations, § 14-18, and
EDPS Opinion on coordination of social security systems, § 27-33.
(4) See also EDPS Opinion on maintenance obligations, § 45-49, and
EDPS Opinion on coordination of social security systems, § 21-26.

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where the Green Paper states that in order to avoid undue
coercion on the debtor, a possible future European Assets
Declaration could prohibit the publication of the debtor's
declaration in an open register. The EDPS notes that this
general statement will require special attention and further
specifications when putting forward proposals concerning a
possible European debtors' list.

an exception in this context. These possibilities have been
already used in a similar context at national or EU level, as
mentioned by the Green Paper with regard to access to
social security and tax registers and to cooperation between
national tax authorities (1). In some cases, additional guar-
antees have been provided, such as judicial control or
public oversight.

15. In this perspective, the EDPS recommends that the propor-
tionality principle is duly taken into account not only with
regard to the data elements to be disclosed by the debtors,
but also with regard to other aspects such as the period of
time during which the data are stored and disclosed, the
entities having access
to data, and the modalities of
disclosure.

Limitation of purposes

and

legitimate

16. Another relevant issue is the purpose limitation principle,
according to which data should be collected for specified,
explicit
further
processed for purposes incompatible with those purposes
(Article 6(1)(b) of Directive 95/46/EC). Therefore,
a
complete and precise definition of the purposes for which
debtor's personal data are processed would be an essential
element of any proposal on transparency of debtors' assets.

purposes

and

not

17. This means that for example, as already briefly mentioned
in footnote 25 of the draft Green Paper, the information on
the debtor obtained for debt recovery should not be used
for purposes other than the enforcement of the title held
by the creditor.

initiative would establish that

18. However, exceptions to the principle of purpose limitation
may be needed. This may happen, for example, in case a
legislative
enforcement
authorities collect from third parties (such as, for example,
tax or social security authorities) personal data which have
than debt
been originally collected for purposes other
recovery, like in the case of population registers as well as
social security or tax registers (mentioned at paragraph II.2
of the Green Paper). Furthermore, it may also happen in
case data processed for debt recovery are necessary to
pursue other purposes, like for example in the case of a
taxation investigation or the prosecution of a criminal
offence.

19. These cases should be addressed in the light of Article 13
of Directive 95/46/EC, which lays down some possible
exemptions to the principle of purpose limitation. In par-
ticular, Article 13(1), letter (a) — prosecution of criminal
offences —, letter (e) — taxation matters —, letter (f) —
exercise of official authority — or letter (g) — the protec-
tion of the rights and freedoms of others — could justify

20. Nonetheless, Article 13 of Directive 95/46/EC requires that
these exceptions shall be necessary and based on legislative
measures, which can be taken both at EU or national level.
In this context,
it would be desirable that any proposals
stemming from the Green Paper ensure that processing of
personal data originally collected for purposes other than
debt recovery are explicitly and clearly based on legislative
measures. Furthermore, the legislator may consider whether
to specifically refer in legislative measures stemming from
the Green Paper
to the conditions under which data
collected to ensure transparency of debtors' assets may be
processed for a different purpose.

21. Against this background, the EDPS recommends that any
measures on transparency of debtors' assets respect the
purpose limitation principle and that any necessary excep-
tion would comply with the conditions laid down by
Article 13 of Directive 95/46/EC (2).

Information to debtors, data subject' rights and security measures

22. Besides the issues mentioned above, possible initiatives
stemming from the Green Paper should also duly consider
the following aspects:

— pursuant

to Section IV of Directive 95/46/EC,

is
essential to adequately inform data subjects about the
processing of their personal data and about their rights.
In particular, this means that adequate information to
debtors
should be provided disregarding whether
personal data have been collected directly from them or
indirectly from third parties,

it

— the data subjects' rights of access and rectification of
to Article 12 of Directive
personal data, pursuant
95/46/EC, as well as the right to object to the proces-
sing on the basis of compelling legitimate grounds,
pursuant
In this
to Article 14, should be ensured.
perspective, measures facilitating the use of these rights
in a trans-border context might be envisaged (3),

(1) See pages 7-8 of the Green Paper.
(2) See EDPS Opinion on maintenance obligations § 14-16, and EDPS

Opinion on coordination of social security systems § 18-20.

(3) See, for example EDPS Opinion on coordination of social security
systems § 36-38, as well as Article 6 of the Commission proposal for a
Council Framework Decision on the exchange of information extracted
from criminal records between Member States (COM(2005) 690 final).

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— appropriate

technical

and organizational measures
pursuant to Article 17 of Directive 95/46/EC should be
envisaged with a view to ensure an appropriate level of
security in the transmission of the information between
enforcement authorities and access to this information.
Security of the system should be taken into account
already at the moment of defining the architecture of
the system of information exchange.

III. CONCLUSION

23. The EDPS welcomes the Green Paper and the broad consul-
tation to which it has been submitted and recommends
that:

— possible legislative actions stemming from the Green
Paper should ensure that the processing of personal
data carried out by the whole range of enforcement
authorities is clearly based on at least one of the legal
grounds laid down by Article 7 of Directive 95/46/EC,
and in particular its letter (c) and/or (e),

— the proportionality principle is duly taken into account
not only with regard to the data elements to be
disclosed by the debtors, but also with regard to other

aspects such as the period of time during which the
data are stored and disclosed, the entities having access
to data, and the modalities of disclosure,

— any measures on transparency of debtors' assets respect
the purpose limitation principle and that any necessary
exception would comply with the conditions laid down
by Article 13 of Directive 95/46/EC,

— aspects concerning the provision of information to the
debtors, the rights of data subjects, and the security of
processing are duly taken into account.

24. The EDPS is available to provide informal comments on
draft proposals arising from this Green Paper and expects
to be consulted on any adopted legislative proposals
pursuant to Article 28(2) of Regulation (EC) No 45/2001.

Done at Brussels, 22 September 2008.

Peter HUSTINX

European Data Protection Supervisor